United States v. Pérez-Rodríguez
| Decision Date | 02 September 2021 |
| Docket Number | No. 19-1538,19-1538 |
| Citation | 13 F.4th 1 |
| Parties | UNITED STATES of America, Appellee, v. Rafael PÉREZ-RODRÍGUEZ, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Linda A. Backiel for appellant.
Julia Meconiates, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee.
Before Kayatta, Lipez, and Barron, Circuit Judges.
Rafael Pérez-Rodríguez was convicted by a jury of attempted enticement of a minor for unlawful sexual activity in violation of 18 U.S.C. § 2422(b). He was apprehended through a sting operation in which a government agent created a profile on an adults-only dating application posing as a gay adult man, and, after being contacted by Pérez, then offered to arrange a sexual encounter with his minor "boyfriend." Pérez appeals on several grounds, including insufficiency of the evidence and the denial of a jury instruction on the entrapment defense. While we find Pérez's challenge to the sufficiency of the evidence meritless, we conclude that the district court committed plain error in failing to give the entrapment instruction. We therefore vacate the conviction and remand for a new trial.
In 2015, Ryan Seig, a special agent with the child exploitation unit of Homeland Security Investigations ("HSI"), conducted a sting operation using the geosocial networking application Grindr. Agent Seig testified that the purpose of the application is "to talk and usually meet with someone else who shares your interests." On cross-examination, he added "it's social networking among homosexuals." Grindr describes itself as "the largest social networking app for gay, bi, trans, and queer people." About, Grindr, https://www.grindr.com/about/ (last visited August 25, 2021). Grindr allows users to create profiles and to exchange messages with other users with profiles in their geographic area. Per Agent Seig's testimony, "[a] profile is a small blurb about what you are looking for, possibly what you look like, and sort of a general description of who you are and what you want." Grindr requires users to be eighteen years of age or older and does not allow individuals to use the platform to seek sexual encounters with minors.
Agent Seig created a Grindr profile under the name "Dave W." He wrote in his profile, "Looking for young fun or to share my young fun." He testified that he chose this text as a "veiled" reference to a sexual encounter with a minor, explaining that "someone who was familiar with the way pedophiles communicate on the internet could read this and know what it meant." The profile also described "Dave W." as "Muscular, White, Single."
On December 30, 2015, the Dave undercover profile received a message from a profile with the name "Mirando," a profile created by Pérez. Dave and "Mirando" exchanged messages on Grindr, and then moved to text messaging. The precise language of the messages is crucial to this case.1 Thus, we reproduce key parts of the exchange in full. The conversation began as follows:
Pérez then sent two photos of himself to "Dave," and Dave provided Pérez with a telephone number.
The next day, December 31, Pérez sent Dave a text message to continue the conversation. He again expressed sexual interest in "Dave's" minor "boyfriend." Dave messaged, "we're going to have a lot of fun, friend. :) ... Him you and I[.]" Pérez requested pictures of "Dave." Pérez asked Dave questions about his relationship with the minor. ("How did you get him?" and "How long have you had him?").
On January 1, Pérez messaged Dave and said, "Happy New Year." He again said, "I want your boyfriend." Pérez and Dave discussed their availability for a meeting that week. They exchanged messages about what Pérez wants to do during the sexual encounter. Pérez asked several questions about how Dave met the minor, what the minor's parents think, and whether "Dave's" family knows about the minor. "Dave's" answers included "He's my friend" and "I am a ‘good influence.’ "
On January 2, Dave initiated the conversation. He writes, The following day, Dave and Pérez discussed meeting.
Pérez then requested a picture of Dave again. He asked Dave several more questions about his relationship with the minor. Dave said that the minor is "excited, happy" about the planned sexual encounter. They agreed to meet at Guaynabo Plaza. Pérez stated "first I see you" and asked "Can you come alone?" Dave replied, "I can leave him at my place and you can follow me there, ok?" Pérez responded, "Yes."
The following morning, Monday, January 4, Dave started the conversation again, initiating this exchange:
The two men eventually agreed to meet at the Martinez Nadal train station at 4 p.m.
At the appointed time, Agent Seig drove to the station and parked his vehicle in the parking lot. Seig had informed other members of his unit about the meeting, and several additional HSI agents were also waiting in the parking lot. Pérez drove into the parking lot, pulled up alongside Agent Seig's vehicle, and got out of his car. HSI agents immediately arrested him.
On January 27, 2016, a grand jury returned an indictment charging Pérez with one count of attempted enticement of a minor in violation of 18 U.S.C. § 2422(b). Prior to commencement of the jury trial, the parties submitted proposed jury instructions. Pérez filed a separate ex parte request for an entrapment jury instruction.
A two-day jury trial was held beginning on May 15, 2017. The government's case primarily consisted of Agent Seig's testimony and the transcripts of the Grindr and text messages.2 Pérez did not present any witnesses.3 At the close of the evidence, Pérez moved for acquittal under Rule 29. The district court denied the motion. The parties participated in a charging conference, which was not recorded. Nevertheless, the record indicates that Pérez renewed his request for an entrapment jury instruction at that conference because the district court denied the entrapment instruction in a docket entry, stating, Before instructing the jury, the court asked the parties if there were "any objections to the instructions." Pérez did not raise any objections at that time. After charging the jury, the district court did not invite objections from the parties. Pérez did not raise any objection. The jury deliberated for less than one hour and returned a guilty verdict. On May 14, 2019, Pérez was sentenced to 151 months of incarceration.
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