Jury Instructions/Entrapment – An instruction on the defense of entrapment is warranted if there is evidence of improper inducement by the government such as “bundling” legal sex with an adult with illegal sex with a minor or if the government agent downplays potential harm caused by the illegal conduct.
In a sting operation, an undercover government agent offered to arrange for Rafael Pérez-Rodríguez to have a sexual encounter with himself and a minor. When Pérez-Rodríguez arrived at the site of a planned meeting with the agent, he was arrested and charged under 18 U.S.C.§ 2422(b) with the attempted enticement of a minor for unlawful sexual activity. At his jury trial, Pérez-Rodríguez requested a charge on entrapment, but the district court denied his request, and the jury returned a verdict of guilty.
On appeal, Pérez-Rodríguez argued that the court should have granted his charge request. Under plain-error review because Pérez-Rodríguez did not lodge a post-charge objection to the denial, the First Circuit found for Pérez-Rodríguez, vacating his conviction and remanding for a new trial.
Drawing inferences in favor of Pérez-Rodríguez, the court held that the undercover agent’s conduct could have been found by the jury to be improper inducement because it included two significant “plus factors”: “bundling” legal sex with an adult with illegal sex with a minor; and downplaying of the harm caused by the illegal conduct. The factors in Gamache also suggest that the jury could have found that Pérez-Rodríguez lacked a predisposition to commit the crime. The record contained no evidence that he previously engaged in a similar crime, the agent first brought up the illegal activity, and Pérez-Rodríguez showed reluctance to meet a child.
Gamache and other similar precedents in the circuit made the error in denying the instruction clear. By refusing to give an entrapment instruction, the district court denied him the chance to have the jury consider his primary defense, so his substantial rights were also affected, and the fundamental fairness of the trial was undermined.
Pérez-Rodríguez also argued sufficiency, errors in voir dire, and three additional grounds for appeal. The First Circuit did hold that the evidence was sufficient, but it did not reach the other claims. While it did not rule on Pérez-Rodríguez’s voir-dire claim, however, the appellate court did take the bold step of instructing the district court on remand to “carefully consider” the defendant’s argument that a simple self-assessment question was inadequate to root-out anti-gay prejudice. This case “raises particular concerns” in that regard because of “the repugnant but unfortunately widespread prejudicial belief that gay men are likely to sexually abuse children.”
In addition to writing the majority opinion, Judge Lipez wrote separately in concurrence to urge the entire First Circuit, in some future en banc proceeding, to abandon its rule considering an initial objection to jury instructions to be forfeited if it is not repeated after the charge is actually given.
Judge Barron also wrote a separate concurrence stating that he too was concerned about the rule Lipez discussed.
Judge Kayatta dissented because he did not consider the precedent cited by the majority to be sufficiently similar to make any error clear.
Appeal from the District of Puerto Rico
Opinion by Lipez, joined by Barron
Concurrence by Lipez
Concurrence by Barron
Dissent by Kayatta
Click here to read the opinion