United States v. Sewell

103 F.4th 1292

UNITED STATES of America, Plaintiff-Appellee, v. Gerald S. SEWELL, Defendant-Appellant.

No. 23-2844

United States Court of Appeals, Seventh Circuit

Argued April 2, 2024

Decided June 10, 2024

Appeal from the United States District Court for the Southern District of Illinois. No. 3:20-cr-30098-NJR-1 — Nancy J. Rosenstengel, Chief Judge.

Laura Reppert, Attorney, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Talmage E. Newton, Attorney, Newton Barth, LLP, St. Louis, MO, for Defendant-Appellant.

Before Rovner, Hamilton, and Scudder, Circuit Judges.

Scudder, Circuit Judge.

We face another appeal questioning the need to give the jury an entrapment instruction where a law enforcement sting operation results in federal charges for attempted enticement of a minor. Line drawing in this area is difficult, for the law permits the use of sting operations to solicit the crime but not to entrap—in short, not to induce someone who is otherwise not predisposed to commit the crime. This case falls on the easier side of the divide, as the undercover FBI agent who posed as a 15-year-old girl on Craigslist did no more than solicit Gerald Sewell's participation in sexual activity, while Sewell pressed for the encounter to occur. On these facts, the district court committed no error in denying Sewell's request for a jury instruction on entrapment. So we affirm.

I

A

On June 27, 2020, Gerald Sewell took to Craigslist seeking a sexual encounter. He responded to a post on the "Missed Connections" page and in short order found himself in a conversation with someone he believed was a 15-year-old girl named Brionica but who turned out to be an undercover FBI agent. The conversation, which lasted just under six hours, quickly turned sexual, with the two planning to meet later the same day. They exchanged photos, discussed their age difference, and in no uncertain terms conveyed their respective sexual interests. That same afternoon Sewell drove across state lines from Missouri to Illinois to what he believed was Brionica's home where he promptly found himself under arrest.

B

Federal charges followed, with Sewell being indicted both for attempted enticement of a minor (18 U.S.C. § 2422(b)) and for traveling across state lines with intent to engage in illicit sexual conduct (18 U.S.C. § 2423(b)). He pleaded not guilty, chose to go to trial, and asked the district court for a jury instruction on entrapment. The district court deferred ruling on the motion until the close of evidence and then denied Sewell's request. The district court saw no evidence of persistent persuasion by the undercover agent and no reluctance by Sewell. To the contrary, the court found the government properly used the sting operation to solicit the crime without overstepping and inducing Sewell.

The jury convicted Sewell on both counts. Section 2422(b) carries a mandatory minimum of ten years' imprisonment, so the district court imposed concurrent ten-year sentences on both counts.

Sewell now appeals, challenging the district court's denial of an entrapment instruction.

II

Our role as a court of review is to take a fresh and independent look at Sewell's challenge to the district court's decision not to provide an entrapment instruction. See United States v. Mercado, 53 F.4th 1071, 1079 (7th Cir. 2022).

A

Our en banc decision ten years ago in United States v. Mayfield established a careful and durable framework for evaluating claims of government entrapment. 771 F.3d 417 (7th Cir. 2014). We explained that "[e]ntrapment 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." Id. at 420. The defense "has two distinct" but "conceptually related" elements: (1) "government inducement" and (2) "lack of predisposition." Id. at 430. And the law entitles a defendant to an entrapment instruction "whenever there is sufficient evidence from which a reasonable jury could find entrapment." Id. at 429 (quoting Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988)). In making that determination, the district court must avoid "weigh[ing] the evidence or decid[ing] whether the defense is believable" and instead determine if there is "more than a scintilla of evidence of entrapment." Mercado, 53 F.4th at 1079-80 (explaining that once the defendant proffers some evidence on both prongs of the defense, the burden of disproving entrapment shifts to the government).

Inducement, we have explained, "requires more than government solicitation of the crime," as "the fact that the government's agents initiated contact with the defendant and offered an ordinary opportunity to commit the charged crime is insufficient to raise an entrapment defense." Mayfield, 771 F.3d at 433. We have described the "something more" that is required as "plus factors," Mercado, 53 F.4th at 1083, meaning "some other government conduct that creates a risk that a person who would not commit the crime if left to his own devices will do so in response to the government's efforts." Mayfield, 771 F.3d at 434-35. Those factors, we elaborated in Mayfield, might take many forms, including but not limited to:

repeated attempts at persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward beyond that inherent in the customary execution of the crime, pleas based on need, sympathy, or friendship, or any other conduct by government agents that 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 efforts.

Id. at 435.

When it comes to the predisposition prong, the focus shifts from the government to the defendant. Predisposition "refers to the likelihood that the defendant would have committed the crime without the government's intervention, or actively wanted to but hadn't yet found the means." Id. at 436. The necessary assessment is "chiefly probabilistic, not psychological." Id. at 428. As we explained in United States v. Anderson, "Mayfield measures predisposition based not on why the defendant might or might not commit the crime but on whether the defendant would have committed the crime, more likely than not, without the government's inducement." 55 F.4th 545, 553 (7th Cir. 2022) (emphasis in original).

B

District courts regularly encounter claims of entrapment made by defendants charged with attempted enticement of a minor as a result of a sting operation. Indeed, we see many similar appeals, and two recent decisions help inform our application of Mayfield's framework to Sewell's case.

In United States v. Anderson, we considered a challenge to the district court's denial of a requested entrapment instruction in circumstances where an undercover agent, posing as a 15-year-old, made at least eleven direct requests for a sexual encounter over a two-day period. See id. at 550. Anderson repeatedly expressed reluctance, a desire not to go to jail, and fear for the welfare of his daughter if he were to be convicted and have to serve time. See id. at 554. But the undercover agent did not relent, promising and then reassuring Anderson that their relationship would remain secret. See id. As the time of their planned meeting approached, Anderson again hesitated but the agent pressed for the sexual rendezvous to occur by "employ[ing] guilt" and remarking, I "just wish you would have told me earlier. I was excited." Id.

Although observing that there was "no minimum number of times the government must invite the defendant to commit the crime" to constitute inducement, we concluded that Robert Anderson's jury should have received an entrapment instruction. Id. at 555. We emphasized that the agent not only was the first to "propose[ ] sex with an underage partner," but also then engaged in a two-day campaign of persistent "coaxing and persuad[ing]" despite Anderson's reluctance throughout the chat communications. Id. at 549-50. (While that evidence sufficed to warrant an entrapment instruction, the jury at Anderson's second trial still convicted him, finding the government disproved entrapment beyond a reasonable doubt.)

We reached a contrary conclusion in United States v. Mercado, where we affirmed the district court's denial of an entrapment instruction because the government's conduct did not entail any Mayfield plus factors. See 53 F.4th at 1084. Rafael Mercado exchanged numerous messages over the course of five days with an undercover agent posing as a 15-year-old girl named Alexis. See id. at 1074. Although the agent was the first to allude to a sexual encounter, the record showed that the sexual overture was nothing more than a "solicitation[ ] or invitation[ ]"—not inducement. Id. at 1082. Rather than "repeatedly declin[ing] persistent government pressure," Mercado was the one who injected sexual content into the conversation, including by asking for revealing photographs of Alexis. Id. at 1081-82. Like the district court, we saw no error in denying an entrapment instruction because the government merely "furnished Mercado the chance to commit th[e] crime on customary terms—a text conversation on a hook-up website followed by a meeting." Id. at 1085.

III

Turning to Sewell's case, the district court chose to focus on the inducement prong, and we follow suit. See United States v. Plowman, 700 F.3d 1052, 1057 (7th Cir. 2012) (explaining that when evidence of inducement is lacking "there is no need to consider predisposition" (quoting United States v. Pillado, 656 F.3d 754, 764 (7th Cir. 2011)). Viewing the evidence in the light most favorable to Sewell, we see no evidence of inducement, only solicitation of the crime, which is insufficient to put the entrapment defense before the jury. See Anderson, 55 F.4th at 555; Mercado, 53 F.4th at 1082.

A

Sewell urges us to focus our analysis on how the...