United States v. Anderson
| Decision Date | 15 December 2022 |
| Docket Number | 22-1301 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert Shawn ANDERSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Grant Thomas Hodges, Attorney, Office of the United States Attorney, Rock Island, IL, for Plaintiff-Appellee.
Rosana E. Brown, Attorney, Office of the Federal Public Defender, Springfield, IL, Thomas Drysdale, Attorney, Office of the Federal Public Defender, Urbana, IL, for Defendant-Appellant.
Before Wood, Hamilton, and St. Eve, Circuit Judges.
After exchanging hundreds of messages with an FBI agent—who posed first as an 18-year-old woman and then as a 15-year-old girl—and driving to a planned rendezvous at a gas station, appellant Robert Anderson was charged with and convicted of attempted enticement of a minor in violation of 18 U.S.C. § 2422(b). Anderson has appealed on one issue: whether he offered sufficient evidence of entrapment to have the jury instructed on that defense. In United States v. Mayfield , 771 F.3d 417 (7th Cir. 2014) (en banc), we clarified that legal standard. We held that a defendant who offers "some evidence" of both government inducement and his own lack of predisposition is entitled to have the entrapment defense submitted to the jury. Id. at 443.
As we explain below, the district court here erred by preventing Anderson from presenting his entrapment defense to the jury. On this record, a jury could find government inducement in the form of what Mayfield called "subtle, persistent, or persuasive conduct." As for predisposition, Anderson had no record of any sexual misconduct or any other offenses against children. It was the government agent, not Anderson, who first suggested a criminal liaison. Anderson repeatedly expressed reluctance, and the agent responded with persistent coaxing and persuasion. In the end, though, Anderson did agree to meet for sex someone he thought was an underage girl. We offer no prediction about whether his defense should succeed at trial, but under Mayfield , that was an issue for the jury, not the court.
It is a federal crime for an adult to use a means of interstate commerce, such as communications over the internet, to entice a minor to engage in sexual activity. It is also a crime for an adult to use such means to attempt to entice someone he believes to be a minor to engage in sexual activity. 18 U.S.C. § 2422(b).
Entrapment by the government is a complete defense to the crime. To establish the defense, the accused must come forward with evidence that he was not predisposed to commit the crime and that the government induced him to commit it. Mayfield , 771 F.3d at 442. Predisposition refers to whether the defendant was likely to commit the crime, even without government intervention. Id. Inducement means government solicitation of the crime "plus some other government conduct" that risks causing someone to commit the crime even if he would not have done so "if left to his own devices." Id. at 434–35 (emphasis in original). If the accused offers some evidence on both points, the defense should be submitted to the jury with instructions that the government has the burden of disproving entrapment beyond a reasonable doubt. Id. at 443.
Whether the accused raises the defense before or during trial, the judge's role is not to weigh the evidence for and against the defense. "[A]lthough more than a scintilla of evidence of entrapment is needed ... the defendant need only point to evidence in the record that would allow a rational jury to conclude that he was entrapped." Mayfield , 771 F.3d at 440. We turn next to that record evidence.
On Valentine's Day 2020, the FBI launched "Cupid's Arrow," a sting operation designed to identify and apprehend child predators. The FBI used an online dating application that adults often use to communicate via text to facilitate meetings for sex. The dating app restricts its users to those who say they are 18 or older.
The FBI paid an unidentified 30-year-old civilian to contribute a photograph of herself. The FBI edited the photograph to make her look younger and used it to create a profile for a fictional "Bailey" who claimed she was 18 years old. Playing the role of "Bailey" was an FBI agent. The agent would later reveal to Anderson that the fictional "Bailey" was supposedly only 15 years old.
Before that disclosure, Anderson had exchanged messages with the person claiming to be 18 years old. The sting operation comprised nearly 300 texts back and forth over two days. We need not quote them all, but we summarize them with a focus on those where Anderson showed some evidence of entrapment, in terms of both government inducement and his own lack of predisposition.
The evidence shows that it was the agent who first proposed sex with an underage partner. After the agent claimed to be only 15, the agent invited Anderson at least eleven times to meet privately for sex. More often than not, when Anderson expressed reluctance about going to prison and fears about leaving behind his young daughter, the agent persisted and promised to "keep a secret."
On the first day, February 14th, Anderson and the agent tentatively expressed a mutual interest in sex. All this occurred when "Bailey" was presenting herself as 18 years old, using a photograph of a 30-year-old, and all before "Bailey" revealed she was supposedly only 15.
The conversation continued on and off over two days discussing, most often through euphemisms, the topic of sex. In response to Anderson's question about a possible pregnancy, the agent said that "Bailey" was 15. The agent then asked to meet, the first of at least eleven direct requests for sex. Anderson expressed reluctance for fear of going to prison.
The two of them exchanged more pleasantries, and the agent then suggested for the third and fourth times meeting at "Bailey's" home. Anderson then asked for pictures and offered to take "Bailey" on a ride. The agent clarified that "Bailey" was "Not really looking to just hang out lol."
To be sure, Anderson did not respond to "Bailey's" claim to be only 15 by terminating the conversation immediately, as he should have. After the agent told Anderson that "Bailey" was 15, he asked "Bailey" whether she was on "any kinda protection at all," asked her to send a photograph of her breast, promising to delete it, and asked, "How do you like sex," among other lewd and disturbing comments.
Yet Anderson also expressed reluctance, repeatedly, expressing fear of going to prison and thinking of the welfare of his daughter if he were to follow through to meet "Bailey" for sex. Whenever he did, the agent continued to press him to "come over." After more text messages on a second day, Anderson finally agreed to meet, provided they met at a public place, a nearby gas station. The fictional "Bailey" was not there, but officers arrested Anderson. He was charged with attempted enticement of a minor under 18 U.S.C. § 2422(b).
The government moved in limine to bar an entrapment defense at trial. The district judge, after explicitly weighing the evidence for and against the defense, granted the motion. Anderson took his case to trial without an entrapment jury instruction nor any mention of entrapment at trial. The jury found him guilty as charged. Anderson now appeals the district court's decision to bar his entrapment defense. Because the district court determined before trial that Anderson would not be allowed to present an entrapment defense, our review is de novo , meaning without deference to the district court's views. United States v. Garcia , 37 F.4th 1294, 1302 (7th Cir. 2022). Our role is to view the evidence in the light most favorable to the accused, i.e., without weighing the evidence or deciding how we think a jury should rule on the entrapment defense. Mayfield , 771 F.3d at 441 ().
Mayfield explained in detail the substance and procedure of the law of entrapment. We summarize here. "Entrapment is a defense to criminal liability when the defendant was not predisposed to commit the charged crime before the intervention of the government's agents and the government's conduct induced him to commit it." 771 F.3d at 420. We decided to rehear Mayfield en banc to clear up "confusion in our entrapment jurisprudence," in terms of both substance and procedure. Id.
Substantively, we described the doctrine of entrapment as having two elements—government inducement and a lack of predisposition—two "conceptually related but formally and temporally distinct" features. 771 F.3d at 420. Procedurally, Mayfield held that a defendant who offers "some evidence" of each element of the defense is entitled to have the defense submitted to the jury. Id. Both elements are rooted in Supreme Court decisions dating back nearly a century. See Jacobson v. United States , 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992) ; Sherman v. United States , 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) ; Sorrells v. United States , 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932).
Entrapment under Mayfield consists of two substantive elements, inducement by the government and a lack of predisposition in the defendant. "Conduct by the government's agents amounts to inducement if, considering its character and the factual context, it creates a risk that a person who otherwise would not commit the crime if left alone will do so in response to the government's persuasion." Mayfield , 771 F.3d at 443.
Inducement means more than that the government merely solicited, suggested, or created the "ordinary" opportunity to commit the crime. Id. at 434. Inducement requires "the character and degree of the government's persistence or...
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