United States v. Davila-Nieves ( 2012 )

United States Court of Appeals
For the First Circuit
No. 10-1719
UNITED STATES OF AMERICA,
Appellee,
v.
EDUARDO DÁVILA-NIEVES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Torruella, Boudin, and Thompson, Circuit Judges.
Héctor Luis Ramos-Vega, Assistant Federal Public Defender,
with whom Héctor E. Guzmán, Jr., Federal Public Defender, was on
brief, for Appellant.
Jenifer Yois Hernández-Vega, with whom Rosa Emilia Rodríguez-
Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United
States Attorney, Chief, Appellate Division, and Luke Cass, Assistant
United States Attorney, were on brief, for appellee.
January 6, 2012
THOMPSON, Circuit Judge. Eduardo Dávila-Nieves (Dávila)
got caught attempting to induce a person he believed to be a minor
to engage in sexual activity, and a Puerto Rico jury found him
guilty of violating 18 U.S.C. § 2422(b). Claiming multiple errors,
he appeals. As we find no merit to Dávila's arguments, we affirm.
BACKGROUND
"The facts, though disturbing, are not greatly disputed.
Regardless, because [Dávila] challenges the sufficiency of the
evidence, we recount them in some detail, and in the light most
favorable to the verdict." United States v. Berk, 652 F.3d 132, 134
(1st Cir. 2011).
In June of 2007, a thirteen-year-old girl, Y.G., received
a cell phone call from Dávila, whom she did not know. He asked Y.G.
whether she was "the girl from the gas station." Y.G. said she was
not, but continued the conversation. Before hanging up, Dávila said
he would call her back later. He did call back, and asked Y.G. her
name and age. Y.G. falsely said that her name was Margarita and
that she was fourteen. Dávila told her his real name, Eduardo, and
his age, twenty-seven. They talked into the early morning.
Dávila and Y.G. continued communicating by phone and using
text messages. Although the relationship started out as a
friendship, Dávila steered their conversations to sexual matters.
If they spent time together, he said, they might end up having sex.
In phone conversations, Dávila discussed what he would do if they
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had sex and how Y.G. would feel. He also masturbated and asked Y.G.
to touch herself.
Dávila made arrangements to meet Y.G. near her house on
June 1, 2007. On that day, Y.G.'s family was having a birthday
party for her younger sister and Y.G. said she could slip out to
meet him. The meeting never happened because Y.G.'s uncle noticed
a call that she received from Dávila. When Y.G.'s uncle asked her
about the call, she told him that it was from a twenty-seven-year
old friend of hers whom she spoke with regularly. He told Y.G.'s
mother, who alerted the authorities.
Law enforcement officials began an investigation to
corroborate Y.G.'s story. They ultimately recorded several
conversations between Y.G. and Dávila. During those conversations,
Dávila once again made plans to meet Y.G., this time at the movies.
Y.G. also told Dávila other information - her real name and age,
where she lived, where she went to school, and what grade she was
in. Dávila said he wanted to take Y.G. to a motel where they could
have sex. Although a meeting was initially scheduled to take place
on June 21, it was cancelled because law enforcement officials
needed more information to confirm Dávila's identity and location.
The Sting
Using Dávila's telephone number and records from the
Puerto Rico Department of Motor Vehicles, law enforcement agents
were able to verify Dávila's identity. Once they confirmed that
Dávila had engaged in sexually themed communications with Y.G., that
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he was interested in meeting with her, and that he knew she was only
thirteen, a sting operation targeting him commenced in earnest. To
set up the operation, federal agent Rebecca González (González)
instructed Y.G. to provide Dávila with an email address, which she
did. Then, (pretending to be Y.G.) González sent an email to Dávila
saying that Y.G.'s mom had found out about their plan to meet at the
movies and had taken away Y.G.'s mobile phone. With no phone, she
would have to channel her communications with Dávila through a
thirteen-year-old friend, "Vanessa." Actually, "Vanessa" was a
fictional character played by González.
Dávila responded by email: "Hello is [sic] you know who,
forget it, I'll wait for your call or leave me a message." On July
2, González, still pretending to be Y.G., emailed Dávila asking if
he had received a text message from "Vanessa." Dávila replied on
July 9: "Greetings, I haven't got any message. I wanted to know if
you have called me several times private. When ever [sic] you want
we can meet, bye."
The trap had been set, but it would still be some time
before it was sprung. In the meantime, there was almost a two-month
break in communications between Dávila and law enforcement because
González had to wait for her agency to provide her with an
undercover phone. On September 5, 2007, González, pretending to be
Y.G., reinitiated contact by emailing the fictitious "Vanessa's"
mobile phone number (the new undercover phone number) to Dávila.
Dávila called soon afterwards and throughout the rest of the month,
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González, posing as "Vanessa," recorded four calls in which Dávila
broached sexual topics and invited "Vanessa" to meet with him.
The operation seemed to be running smoothly until
September 25, 2007. On that date, Dávila placed a late night 3 a.m.
phone call to "Vanessa." Initially, she did not pick up the phone
but eventually she called Dávila back. In the conversation that
ensued, Dávila asked repeatedly whether "Vanessa" wanted him to hang
up so she could go back to sleep. As the conversation progressed,
Dávila disclosed that he was in Miami looking for a job and would
be returning to Puerto Rico on October 9. He offered to buy
"Vanessa" a plane ticket to come to Miami, but she declined the
offer. After that call, communications between Dávila and "Vanessa"
ceased for about seven months. During that period, the undercover
cell phone González had been using was turned off.
The sting operation resumed again on April 24, 2008, when
"Vanessa" emailed Dávila to let him know she had a new mobile phone.
Dávila sent emails on April 27 and April 28 asking for the new phone
number. During April and May, "Vanessa" and Dávila communicated
using text messages and email. "Vanessa" asked Dávila for his
mobile phone number on several occasions, but he did not provide one
right away. According to González, this was because Dávila did not
have a mobile phone at that time. However, Dávila did try to
contact "Vanessa" by calling her from a restricted phone number.
He also sent her an email stating that "I have called you several
times restricted and you don't answer." "Vanessa" responded via
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email on May 12 saying, "Hey, don't call me private because I don't
know who it is, just in case I am with my mom. Give me your number
or call today in the evening." On May 15, Dávila responded, "Every
time I call you nobody answers it. What is more I'm not going to
call, if you want to see me I'm going to be at the Fajardo
basketball court in the TV transmission bus."
Two days later Dávila emailed "Vanessa" and asked her to
open an account so they could chat using an instant messenger
service. She responded on May 20, adding Dávila as a "buddy" on her
"buddy list" and sending Dávila an email invitation to chat in real
time using instant messaging. On May 23, Dávila texted "Vanessa"
with a new mobile phone number and they resumed speaking by phone,
in addition to communicating using text messages and email. Law
enforcement officials recorded several calls between Dávila and
"Vanessa" in May and June of 2008.
On May 28, Dávila installed a webcam and invited "Vanessa"
to see a video image of him over the internet. When she accepted
and could see his image, he asked her to rate how he looked on a
scale from 1 to 10. When she said she could see him from the neck
up, he said that what was missing was "for [him] to get undressed."
Dávila mentioned that he had seen an online photograph of "Vanessa"
in a bathing suit and that it "was not bad."1 At this point, the
1
As part of establishing her undercover persona as "Vanessa,"
González set up online profiles in which she posted actual pictures
of herself when she was thirteen years old.
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conversations between Dávila and "Vanessa" became more explicit.2
Dávila said he had to "be beside [her] to teach [her]" and asked if
she would let herself be "taught." "Vanessa" asked what he wanted
to teach her and he said about the computer, messenger, "and other
things," saying that "I am talking in double intentions." Dávila
asked "Vanessa" if she would bathe him. He told her that when a
rooster makes love to a chicken "it is called that the rooster steps
on it" and asked her if she was "going to let the rooster step on
[her]?" "Vanessa" told Dávila "I have never been with anyone."
"Vanessa" said that a friend told her sexual intercourse hurts and
that she bled. Dávila agreed but said that "afterwards its [sic]
delicious" and "you are going to get hooked on how good it is and
feels." Dávila offered to use condoms, telling "Vanessa" that
"you're not going to have kids or diseases." He suggested that she
"drink some beer so that [she] would relax" and then said he would
bring beer and Smirnoff Ice beverages when they met.
During these conversations, Dávila expressed concern that
"Vanessa" would "accuse" him "that [he] had relations with [her]"
and that he would get sent to jail. Dávila then explained to
"Vanessa" what it means to be a pedophile, which he described as "a
man that goes to bed with girls, that is a crime." Dávila said, "I
don't want to do you." "Vanessa" asked if Dávila had ever been with
2
We need not recount all the details of the sexually explicit
conversations which followed. We include only some of the many
examples from the record.
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a girl her age. Dávila replied that he had already had sex with a
fourteen-year-old, "and she loved it." When "Vanessa" asked if it
hurt, Dávila said that it needs to be done "softly" and said he
would bring tampons in case she bled. He requested "please, the
only thing I ask you is that you don't hurt me." Dávila proceeded
to discuss in detail the sexual acts he would perform on "Vanessa."
Dávila continued communicating with "Vanessa" for about
two more weeks while law enforcement officials made recordings,
which were eventually used as evidence at trial. On June 16, 2008,
the trap finally snapped shut. Dávila told "Vanessa" that he had
that day off from work and wanted to meet. Communicating by phone
and chat messages, they arranged to meet at a toy store in a local
mall. However, when Dávila arrived for the meeting, he was met by
law enforcement and arrested. Law enforcement officials found a
cooler in his car stocked with beer and Smirnoff Ice beverages.
The Trial
Dávila was charged with violating 18 U.S.C. § 2422(b).3
The complaint alleged that Dávila used a means of interstate
3
Section 2422(b) states:
Whoever, using the mail or any facility or means of
interstate or foreign commerce, or within the
special maritime and territorial jurisdiction of
the United States knowingly persuades, induces,
entices, or coerces any individual who has not
attained the age of 18 years, to engage in
prostitution or any sexual activity for which any
person can be charged with a criminal offense, or
attempts to do so, shall be fined under this title
and imprisoned not less than 10 years or for life.
18 U.S.C. § 2422(b).
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commerce in an attempt to knowingly persuade, induce, and entice a
thirteen-year-old to engage in sexual activity for which he could
be charged with a criminal offense under Puerto Rico law.
At trial, the government presented numerous recordings and
transcripts of phone conversations, transcripts of internet chat
sessions, and emails between Dávila and "Vanessa." However, the
government did not present any documentary or testimonial evidence
about the Puerto Rico statute that criminalized Dávila's attempted
behavior, P.R. Laws Ann. tit. 33, § 4770 (the "Puerto Rico
statute").4 Citing this omission, Dávila moved for a judgment of
acquittal based on insufficient evidence under Rule 29 of the
Federal Rules of Criminal Procedure. The government countered that
it did not have to present evidence of the Puerto Rico statute,
arguing that it is the trial judge who should set forth the statute
in the jury charge. The district court agreed and denied Dávila's
motion, referencing the fact that a court can take judicial notice
of federal and state law and instruct the jury accordingly.
Dávila proceeded with his defense. Then, at the close of
trial, he requested an entrapment jury instruction, which the
government objected to. The district court declined to give the
4
"Any person who performs sexual penetration, whether
vaginal, anal, oral-genital, digital or instrumental under any of
the following circumstances shall incur a severe second degree
felony: (a) If the victim has not yet reached the age of sixteen
(16) at the time of the event." P.R. Laws Ann. tit. 33, § 4770.
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instruction. The court did, however, as requested by the
government, read the Puerto Rico statute to the jury.5
After the jury returned a guilty verdict, Dávila renewed
his motion for a judgment of acquittal. Alternatively he moved for
a new trial, claiming that the court, when it took judicial notice
of the Puerto Rico statute, erroneously failed to instruct the jury
that it was not required to accept judicially noticed facts as
conclusive. The district court denied both motions and this appeal
followed.
To this court, Dávila advances three arguments. First,
reiterating the insufficiency argument he made at trial and raising
constitutional claims as well, Dávila contends that the district
court should have granted a judgment of acquittal. Second, Dávila
claims that he is entitled to a new trial because the court did not
instruct the jury that it was not required to accept judicially
noticed facts as conclusive. Finally, Dávila argues that the
district court's failure to instruct the jury on his entrapment
theory of defense also qualifies him for a new trial.
5
The district court instructed the jury: "[I]n Puerto Rico
the following is a criminal offense pursuant to article 142 of the
Penal Code which reads: 'Sexual Aggression. Any person who engages
in sexual penetration be it vaginal, anal, oral, digital or
instrumental in any of the following circumstances. A, if the
victim at the time of the events is less then [sic] 16 years old.'"
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ANALYSIS
Judgment of Acquittal
To establish an offense under § 2422(b), the government
must prove that a defendant (1) used a facility of interstate
commerce (2) to attempt to, or to knowingly, persuade, induce or
entice (3) someone younger than eighteen years old (4) to engage in
criminal sexual activity. See United States v. Brand, 467 F.3d 179,
201-02 (2d Cir. 2006); United States v. Munro, 394 F.3d 865, 869
(10th Cir. 2005). The criminal offense requirement of element four
may be defined by the laws of the states, see United States v.
Dwinells, 508 F.3d 63, 72 (1st Cir. 2007), and here it is defined
by P.R. Laws Ann. tit. 33, § 4470.
It is proof of this fourth element that Dávila claims was
lacking. In particular, Dávila contends that because the government
did not introduce the Puerto Rico statute into evidence, there was
no evidence from which a reasonable jury could find that the
behavior he attempted to engage in with "Vanessa" was criminal under
Puerto Rico law.6 Dávila then takes this argument one step further
and asserts that by taking judicial notice of the Puerto Rico
statute, the district court not only relieved the government of its
burden of proof but also improperly suggested that the government
6
To be clear, Dávila does not dispute that attempting to have
sex with a minor is illegal under Puerto Rico law. Rather, his
argument is that the government was required to introduce evidence
proving beyond a reasonable doubt every element of the crime with
which he was charged, and that because the government failed to
introduce into evidence the Puerto Rico statute criminalizing his
behavior, it failed to meet its burden of proof as a matter of law.
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had proven the fourth element - that he engaged in criminal sexual
activity - in violation of Dávila's due process and Sixth Amendment
rights.
We review de novo a district court's denial of a Rule 29
motion for judgment of acquittal. United States v. Rodríguez-
Lozada, 558 F.3d 29, 39 (1st Cir. 2009). In doing so, we do not
weigh competing evidence; rather, we merely verify that some
evidence adequately supports the jury's verdict. Id. We must
affirm Dávila's conviction if, drawing all reasonable inferences in
favor of the verdict, a jury could find that each element of the
charged offense was satisfied beyond a reasonable doubt. United
States v. Rosado-Pérez, 605 F.3d 48, 52 (1st Cir. 2010).
Here the evidence was sufficient. It is well established
that district courts may take judicial notice of state law "'without
plea or proof.'" Getty Petroleum Mktg., Inc. v. Capital Terminal
Co., 391 F.3d 312, 320 (1st Cir. 2004) (quoting Lamar v. Micou, 114
U.S. 218, 223 (1885)). Further, "where a federal prosecution hinges
on an interpretation or application of state law, it is the district
court's function to explain the relevant state law to the jury."
See United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 49 (1st
Cir. 2004).
Nonetheless, as is true in all criminal cases, the
government has the burden of proving all elements of the charged
crime beyond a reasonable doubt. Francis v. Franklin, 471 U.S. 307,
313 (1985). Thus, the government had to introduce sufficient
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evidence of Dávila's conduct which, if the jury found it to be true,
constituted criminal behavior under Puerto Rico law. That being
said, however, the government (contrary to Dávila's assertion) was
not required to introduce evidence as to the content of the Puerto
Rico staute. See Getty Petroleum Mktg., Inc., 391 F.3d at 320.
Rather it was proper for the district court to take judicial notice
of the statute itself. See Fazal-Ur-Raheman-Fazal, 355 F.3d at 49
(citing United States v. Clements, 588 F.2d 1030, 1037 (5th Cir.
1979) (where violation of a state law is an element of the charged
federal crime, a "court may properly take notice of a state law" and
then "instruct[] the jury on the applicable law")); see also Hanley
v. United States, 416 F.2d 1160, 1164 (5th Cir. 1969) (where
violation of state laws is an element of the charged federal crime,
it is appropriate for "government counsel to request the court to
take judicial notice of the [state] laws and to instruct the jury
regarding them"). Thus we conclude that the record (which included
the judicially noticed statute) contained sufficient evidence from
which a jury could reasonably conclude beyond a reasonable doubt
that Dávila violated § 2422.
We turn to Dávila's constitutional arguments. In support
of his claimed due process violation, Dávila points to the principle
that "the Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged." In re Winship,
397 U.S. 358, 364 (1970). With respect to the claimed Sixth
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Amendment violation, Dávila contends that by improperly suggesting
to the jury that the government had proven the fourth element of
§ 2422(b), the trial court deprived him of his right to have his
guilt or innocence determined by a jury. See Duncan v. Louisiana,
391 U.S. 145, 149 (1968); United States v. Bello, 194 F.3d 18, 25
(1st Cir. 1999).
We agree with Dávila that because the right to a jury
trial in a criminal case is so fundamental, "a court may not step
in and direct a finding of contested fact in favor of the
prosecution 'regardless of how overwhelmingly the evidence may point
in that direction.'" United States v. Argentine, 814 F.2d 783, 788
(1st Cir. 1987) (quoting United States v. Martin Linen Supply Co.,
430 U.S. 564, 573 (1977)). However, this was not what occurred
here. The trial judge did exactly what she was supposed to do –
taking judicial notice of the relevant state law, she read it to the
jury during her instruction and then left it to them to determine
whether the government's evidence proved that what Dávila attempted
to do with a fictional thirteen-year-old girl fit within the type
of conduct criminalized by the statute. See Fazal-Ur-Raheman-Fazal,
355 F.3d at 49 (district court should have permitted the jury to
apply the relevant facts to the state law to decide whether an
element of the crime had been proven). There was no improper
lessening of the government's burden or burden shifting. Dávila's
constitutional rights were not infringed.
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201(f) Instruction
Federal Rule of Evidence 201 provides that when a court
takes judicial notice of an adjudicative fact in a criminal case,
it "must instruct the jury that it may or may not accept the noticed
fact as conclusive." Fed. R. Evid. 201(f).7 Dávila faults the
district court for its failure to provide this instruction in
connection with its reading of the Puerto Rico statute. Although
Dávila made this same argument in his motion for a new trial, he
never requested such an instruction in advance of the jury charge.
This is so despite the fact that the court indicated it could take
judicial notice of the statute and explicitly stated that it would
include the statute in the charge. We have considered the failure
to request a jury instruction to waive the right to that
instruction. See United States v. Alberico, 559 F.3d 24, 27 (1st
Cir. 2009). Even assuming we were to review the court's failure to
give the instruction for plain error, Dávila would not prevail. See
id.The short answer is that Rule 201 applies when a court
takes judicial notice of adjudicative facts, not when it takes
judicial notice of law, as it did here. See Fed. R. Evid. 201(a).
Juries are required to follow the law as it is explained to them by
the trial court. See Fazal-Ur-Raheman-Fazal, 355 F.3d at 49
7
At the time of trial, the rule was substantively the same;
however, it was contained in subsection (g) and read as follows:
"In a criminal case, the court shall instruct the jury that it may,
but is not required to, accept as conclusive any fact judicially
noticed." Fed. R. Evid. 201(g) (2009).
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(quoting United States v. Gaudin, 515 U.S. 506, 513 (1995)). It
would be nonsensical for a trial court to take judicial notice of
a particular state law, read it to the jury, and then instruct the
jury that it may disregard that law. There was no error, plain or
otherwise.
Entrapment Instruction
Entrapment is a judicially-created doctrine, which
recognizes that Congress did not intend for law enforcement to
implement statutes by tempting innocent people to commit crimes.
United States v. Teleguz, 492 F.3d 80, 84 (1st Cir. 2007).
"Entrapment occurs 'when the criminal design originates with the
officials of the government, and they implant in the mind of an
innocent person the disposition to commit the alleged offense and
induce its commission in order that they may prosecute.'" United
States v. Gamache, 156 F.3d 1, 9 (1st Cir. 1998) (quoting Sorrells
v. United States, 287 U.S. 435, 442 (1932)). Operations which
merely give a defendant an opportunity to commit a crime, including
sting operations, ordinarily do not constitute entrapment. See
Teleguz, 492 F.3d at 84.
According to Dávila, the court should have given an
entrapment instruction. Since Dávila preserved his objection below,
we review the district court's refusal to instruct the jury on
entrapment de novo . United States v. Vasco, 564 F.3d 12, 18 (1st
Cir. 2009). To be entitled to such an instruction, "a defendant
must adduce 'some hard evidence' that (i) government actors induced
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him to commit the charged crime and (ii) he was not predisposed to
commit that crime." Id. (quoting United States v. Shinderman, 515
F.3d 5, 13 (1st Cir. 2008)). A defendant has the burden of
producing some evidence of both prongs. Gamache, 156 F.3d at 9.
"While this burden is 'modest', it 'requires more than self-serving
assertions.'" Vasco, 564 F.3d at 18 (quoting Shinderman, 515 F.3d
at 14). It requires that the hard evidence, "if believed, would
lead a reasonable person to the requisite conclusion; it is not
enough that there be doubt in the absence of evidence on a given
point." United States v. Young, 78 F.3d 758, 760 (1st Cir. 1995).
When considering whether an entrapment instruction is
appropriate, the district court may not make credibility
determinations, weigh the evidence, or resolve conflicts in the
proof. Gamache, 156 F.3d at 9. "The question is whether a
reasonable jury could view the evidence as establishing that
defendant was entrapped." Teleguz, 492 F.3d at 84. In so doing,
the court must view the evidence in the light most favorable to the
defense. Gamache, 156 F.3d at 9. With these parameters in mind,
we first consider whether there was improper government inducement.
"To demonstrate inducement, a defendant must show not only
that the government provided the defendant with the opportunity to
commit the crime, but also the existence of a 'plus' factor that
raises concerns of 'government overreaching.'" Vasco, 564 F.3d at
18 (quoting United States v. Gendron, 18 F.3d 955, 961-62 (1st Cir.
1994)). Typical plus factors are "'excessive pressure by the
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government upon the defendant or the government's taking advantage
of an alternative, non-criminal type of motive.'" Young, 78 F.3d
at 761 (quoting Gendron, 18 F.3d at 961). Courts have also found
improper inducement when the government used intimidation, threats,
or "dogged insistence." Vasco, 564 F.3d at 18.
Dávila's claim of improper inducement focuses on the fact
that it was law enforcement that reinitiated contact with him (and
not vice versa) after his first aborted meeting with Y.G. and again
in April 2008, after a seven-month break in communications with
"Vanessa." This government conduct, he contends, rose to the level
of actually planting in his mind criminal designs that he had
previously abandoned. Dávila further claims reluctance on his part
pointing to statements he made to "Vanessa" such as: "I'm not going
to call"; "I don't want to do you"; "you are a minor"; and "you want
me to hang up?".
Not true, says the government, countering that it used no
intimidation, threats, excessive insistence, or pressure, and that
it merely presented Dávila with an opportunity to commit the
offense. Once it did so, Dávila aggressively and persistently
pursued a sexual relationship first with Y.G. and then with
"Vanessa." The government further avers that the break in
communications between September 2007 and April 2008 happened
because Puerto Rico law enforcement officials believed Dávila was
outside of their jurisdiction.
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With respect to this break in communication, we do not
place the same significance on it as Dávila does. Following the
seven-month hiatus, Dávila was quick to get back to where he started
and steer his conversations with "Vanessa" toward sexual topics.
Further, though the break in communication resulted in the
government initiating contact with Dávila on more than one occasion,
multiple solicitations of a defendant do not necessarily equal
improper inducement. See United States v. Otero, 277 Fed. App'x 12,
15 (1st Cir. 2008); see also Teleguz, 492 F.3d at 84 (stating that
"merely giving a defendant an opportunity to commit a crime when the
government puts forth an enthusiastic and persistent buyer of
illicit goods cannot be improper inducement"). Additionally, the
lapses in communication were, at least in part, the result of either
agent González or Dávila's not having the means to communicate, or
of Dávila's being outside of law enforcement's jurisdiction. As
suggested by the government, the entrapment doctrine takes into
account practical problems faced by law enforcement officials. See
Teleguz, 492 F.3d at 84; United States v. Luisi, 482 F.3d 43, 52
(1st Cir. 2007) (noting that significant government involvement in
illegal activities is often required in the prosecution of
"victimless" crimes); United States v. Bradley, 820 F.2d 3, 6 (1st
Cir. 1987) (same). Finally, it is important to note that "[n]either
mere solicitation nor the creation of opportunities to commit an
offense comprises inducement as that term is used in entrapment
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jurisprudence." United States v. Gifford, 17 F.3d 462, 468 (1st
Cir. 1994).
As for Dávila's claimed reluctance, his actions speak
louder than words. The ample uncontested evidence of Dávila's
actions (including that he repeatedly engaged in sexually explicit
conversations with minors and made multiple attempts to meet minors
to engage in sexual relations with them) clearly demonstrates an
eagerness to commit the crime rather than reluctance that was
overcome only by inducement. It is also important to distinguish
between initiating contact with someone versus suggesting that they
commit a crime. Although Y.G. and "Vanessa" each initiated contact
with Dávila once by sending him a new mobile phone number, neither
broached the subject of engaging in a sexual relationship with him.
If Dávila had indeed abandoned his criminal intent, he could have
disregarded their messages, or contacted them and maintained an
appropriate relationship. He chose not to do that. Instead, he not
only broached the topic of engaging in sexual relations, but also
followed through by attempting to meet for that purpose. Dávila
went so far as to bring with him a cooler full of beer and Smirnoff
drinks, consistent with his suggestion that "Vanessa" drink alcohol
to relax before having sex.
Having considered the "broader record," we find that
Dávila "did not make the requisite entry-level showing for an
entrapment instruction." Teleguz, 492 F.3d at 85. Given that the
government's communications with Dávila merely provided him with a
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means to communicate with Y.G. and "Vanessa" and were not of a
sexual nature, they fell short of overreaching and served merely to
offer Dávila an opportunity to commit a crime. There is simply no
"plus factor" here to move this investigation beyond a sting
operation into the realm of improper government inducement. Id.(finding that "sting operations by their nature often involve
government manipulation, solicitation, and, at times, deceit"). As
no reasonable jury could conclude that there was improper government
inducement, we need not consider the second factor of
predisposition.8 See Vasco, 564 F.3d at 20. The district court
properly refused to instruct the jury on entrapment.
CONCLUSION
For the foregoing reasons, we affirm the district court
judgment.
8
We do note that there is evidence (including Dávila's
admission to "Vanessa" that he previously had sex with a fourteen-
year-old), which contradicts Dávila's claim that he was not
predisposed to commit the crime. See United States v. Tom, 330
F.3d 83, 90 (1st Cir. 2003); United States v. LaFreniere, 236 F.3d
41, 46 (1st Cir. 2001).
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