United States v. Richard Rutgerson

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15536
________________________
D.C. Docket No. 0:14-cr-60083-DPG-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD RUTGERSON,
Defendant – Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 12, 2016)
Before MARCUS, JORDAN and BLACK, Circuit Judges.
MARCUS, Circuit Judge:
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Defendant Richard Rutgerson, using an internet site frequented by
prostitutes and their clients, responded to a posting by Amberly, who described
herself as a “sweet petite young lady.” Amberly answered Rutgerson’s message,
offering in veiled terms to have sex with him for money and revealing that she was
15 years old. Undeterred as long as they were discreet, Rutgerson proceeded to
arrange a meeting with Amberly where he expected to pay her for sex. Upon
arriving at the hotel designated for their rendezvous, Rutgerson was surprised to
learn that Amberly was not a 15-year-old prostitute, but rather a creation of the
Fort Lauderdale Police Department, whose officers arrested him. Rutgerson was
charged and convicted of attempting to persuade, induce, entice, or coerce a minor
into engaging in prostitution or unlawful sex, in violation of 18 U.S.C. § 2422(b).
On appeal, Rutgerson challenges the sufficiency of the evidence supporting
his conviction, arguing that he could not have persuaded, induced, enticed, or
coerced a minor into engaging in prostitution when the minor has held herself out
as a prostitute before he made contact with her. We disagree. Where an underage
prostitute holds herself out as willing to engage in sex for money, the offer to pay
that money qualifies as sufficient inducement under § 2422(b). We also conclude
that Rutgerson is not entitled to relief based on the district court’s refusal to deliver
a confusing and erroneous jury instruction requested by Rutgerson or in its
exclusion of particular evidence. Accordingly, we affirm.
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I.
On April 24, 2014, a grand jury sitting in the United States District Court for
the Southern District of Florida indicted Rutgerson with one count of:
using any facility and means of interstate commerce, [to]
knowingly attempt to persuade, induce, entice, and
coerce an individual who had not attained the age of
eighteen years, to engage in prostitution or any sexual
activity for which a person can be charged with a
criminal offense, in violation of Title 18, United States
Code, Section 2422(b).
Rutgerson’s case proceeded to a jury trial on August 25, 2014.
At trial, the government first called Detective Robert Mauro, who was part
of the Fort Lauderdale Internet Crimes Against Children task force. Detective
Mauro testified that Rutgerson replied to an ad that he and Detective Jennifer
Montgomery posted on backpage.com as part of an operation that targeted child
predators on the Internet.
The ad was posted on January 23, 2014, and was titled:
❤❤❤ SwEEt Petite yOung Lady...❤❤❤ Come See
Me!! ❤AMBERLY❤ Ft Laud❤ - 99.
The ad included photos of a woman’s stomach and legs and read this way:
Hi, I’m Amberly. . .pics are 100% real ((promise)).....
New 2 BP and hOping tO like it here ❤
i’m 5’2, 103 lbs, grEEn EyeS with a swEEt bAby dOLL
sMile ❤
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i PreFer mature upScale GENTLEmen who like the
cOmpany of a petite yOung lady and Enjoy bEing
paMpered & spOiled. If this sounds like you, hit me Up!
i'm juSt an email or pHonE cALL aWay!! Come see
MEEEE! ! ! ❤❤❤
❤
Gmail me @cutieamberly99 for my #
Poster’s age: 99
Mauro testified that he had been trained how to sound like a child online,
using typos, spelling errors, slang, and words that adults typically do not use as
much as children. He explained that the heart symbols and the spelling that
alternated between capital and lowercase letters were indicative of how a teenager
texted and communicated on the internet. The words “petite” and “young”
indicated that the poster was under 18. Maura testified that, through his training
and experience, he knew that the number 99, in the underage prostitution world, is
code for a child, so the 99 in the ad was a “big hint” that the person posting the ad
was underage. The woman in the pictures was actually Detective Montgomery,
taken when she was 34 years old.
On January 22, 2014, Richard Rutgerson responded to the e-mail address
listed in the ad. Mauro, playing the role of Amberly, replied. Their conversation
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continued via email and text message for the next two days, culminating in a
meeting for sex and Rutgerson’s arrest at a La Quinta Inn in Plantation, Florida.
The government introduced a composite exhibit of the e-mail exchange
between Rutgerson and Amberly. The conversation began:
Rutgerson: Hi babe.
Can you tell me more about you?
Amberly: im available tomorrw... im new on here and
fyi im young. bp [backpage.com] shut down my ad twice
thats why I cant put a phone # now cuz they kno its me.
what are u lookn for
Rutgerson: I’m looking for a playmate.
What are you looking for?
Amberly: im on bp. . . wat do you think lol
are you good with a young playmate or no
Rutgerson: How young are you?
Where will you be available?
Amberly: im 15 bu ppl say i look older. im clean and
descreet. im gonna be near ft laud airport
Rutgerson: Can you send me more pictures?
Ya. I’m fine. So long as we’re discrete.
What do you like to do? What are your rules?
In subsequent emails, Rutgerson again asked Amberly what she liked to do
and what her “rules” were. She responded that her rules were that he could not
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“tattle” about her age, pee on her, or do anything that hurt. Amberly asked what he
wanted to do, and Rutgerson replied that he was looking on Backpage, so “what do
you think[?]” Rutgerson asked how Amberly could get a hotel room and whether
she was working with someone else. She told him that she was working with a 17-
year-old friend named Nicki who was in charge and set the rules.
Rutgerson asked how much it would cost to meet with her, and she told him
it depended on what he wanted. He asked, whether she was available for GFE,
PFE, or other extras. Mauro testified that, in the prostitution world, “GFE” meant
“girlfriend experience,” meaning that it involved a sexual encounter and included
something more romantic like cuddling or hand holding. “PSE” means “porn star
experience,” which means “straight sex, a little more of the hardcore sex, nothing
like the girlfriend experience.” “Extras” referred to different fetishes. Rutgerson
also asked, “Do you masterbate? Do you cum easy? Do you like to be eaten out?”
After those e-mail communications, Rutgerson texted Amberly’s phone. The
government then introduced a series of text messages between Rutgerson and
Amberly, which started near midnight on January 22 and continued into the early
morning hours of January 23. Rutgerson asked, “So how much?” and, “How much
to meet?” Amberly responded:
Amberly: depends wat u want.. i told u. i dont meet to
hang out n i kno thats not wat ur gonna pay for
Rutgerson: GFE?
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Amberly: an hour gfe i can do for $175 extras depends
wat extras u want
Rutgerson proposed various “extras” in which he was interested. Amberly said she
was fine with whatever he wanted, except for “Greek,” which Mauro explained
meant anal sex. The conversation continued:
Rutgerson: Ok. $?
Amberly: i like condoms but maybe i can make
exception
for an hour?!?! $200
...
Rutgerson: Ok. Can we do it more than once?
Amberly: whatevr u wanna squeeze into the hr is fine
Rutgerson: How about 2 hours for 300
Rutgerson also asked Amberly if she enjoyed receiving oral sex, saying, “I want
you to cum too ;-).”
During the conversation, Amberly pressed Rutgerson to get out of work and
come see her. She said that she was leaving that night so he had to hurry. He told
her that he would not be able to meet her that night and that she should go ahead
and take another date. Amberly then said that she would be staying in town for a
little while longer. He responded that he wanted the first date she had on Friday or
Saturday night, so he could get her “fresh.” He asked if he could have sex without
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a condom and whether she was on birth control. Amberly responded, “y...u wanna
cum inside me? thats more $ but u kno that.”
Rutgerson attempted to get Amberly to come from Fort Lauderdale to meet
him in Miami. He offered to pick her up or to get a hotel room in Miami. She
refused, explaining that she was 15 and could not drive. On January 24, 2014,
Rutgerson texted that he had gotten off work early and offered to drive the hour to
Fort Lauderdale if Amberly was still available. She gave him the address of a La
Quinta Inn in Plantation, told him to hurry, and advised him to “bring $ n stop
playin games.” He told her that he was on his way. Rutgerson sent Amberly a
series of text messages from the car as he drove to Fort Lauderdale and showed no
reluctance to have sex with a 15-year-old in those text messages.
Mauro and other officers arrested Rutgerson when he arrived at the hotel in
Fort Lauderdale. Mauro interviewed Rutgerson after explaining his Miranda
rights. The recording of that interview was introduced and played before the jury.
In the interview, Mauro asked Rutgerson if he thought he was going to have a
sexual encounter with a 15-year-old. Rutgerson replied that he did not know what
was going to happen until he got there and that he “was just coming to hang out,”
but that “nine times out of ten that’s what happens.” Rutgerson further admitted
that he believed Amberly was 15 years old when he was texting and e-mailing her.
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The interview also contained the following exchange, which was read to the
jury by the prosecutor and Detective Mauro:
Det. Montgomery: Do you think she was lying about her
age, did you suspect she was, or did you think she
sounded like she might be telling the truth?
Rutgerson: I think it could have gone either way. I think
I couldn’t honestly believe someone that young was
doing that, so either there was someone forcing her to do
that and I thought -- I hope -- I hope I would have seen
the distress when I . . . met her.
He also said that he had “no bad intentions” and that he would have liked to
believe that he would have done “nothing indecent” if he felt that she was
underage.
On cross-examination, Mauro testified that he could not remember any time
when he had seen a minor posting with an age other than 99. Rutgerson also
introduced a number of Backpage ads with posters that claimed they were adults
but that contained heart symbols, upper- and lowercase letters, and words like
“petite,” “young,” and “sweet.” Mauro agreed that he had investigated Rutgerson
“very thoroughly” and that he had never learned that Rutgerson had any of the
training that enabled Mauro to identify the number 99, hearts, or capital letters as
being indicia of a minor posting.
The government next called Detective Nicholas Masters. Masters testified
about the sting operation and Rutgerson’s arrest. He stated that, when Rutgerson
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was arrested, he found $400 and two condoms in Rutgerson’s front pocket, as well
as a large amount of cash in Rutgerson’s wallet and other pockets. He added that
he searched Rutgerson’s car where he discovered an iPhone and more condoms.
The government also called Special Agent Daniel Johns, who worked with the
Federal Bureau of Investigation and was the liaison with the Internet Crimes
Against Children task force at the Broward Sherriff’s Office. Johns testified that
no specific sex acts were mentioned before Rutgerson asked about whether “GFE,”
“PSE,” or “extras” were available. Amberly indicated that she was underage many
times, having made references to her age and to her inability to drive or rent a hotel
room. Rutgerson emailed, called, or text messaged her 114 times in total.
Johns also testified that he had searched the internet history on Rutgerson’s
phone. His web history contained hundreds of searches on Backpage and other
sites involving escorts or prostitution. Johns said that Rutgerson searched for
pornography on his iPhone, but discovered only commercially available adult
pornography, not child pornography. Indeed, Johns did not find any child
pornography on Rutgerson’s iPhone.
The government rested at the close of Detective Johns’s testimony.
Rutgerson then moved the court for a judgment of acquittal, pursuant to Federal
Rule of Criminal Procedure 29, on three grounds. First, he argued that the
government had not carried its burden of proof in two ways. He claimed that the
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evidence was insufficient to allow the jury to find beyond a reasonable doubt that
Rutgerson had any “intent to influence the will of” Amberly. The government had
presented only a solicitation case, he argued, and solicitation has not been
criminalized by 18 U.S.C. § 2422(b). Second, Rutgerson insisted that the
government had not presented any evidence to rebut his entrapment defense by
showing that he was predisposed to engage in sex with a minor. He maintained
that “[t]his statute is a child predator statute,” not a soliciting statute. The
government’s broad definition of “persuade, induce, entice or coerce” had
effectively moved a “purely local crime[] . . . into the realm of Federal court,”
rendering it unconstitutional in violation of “principles of federalism.” Finally,
Rutgerson said that, even if his other arguments failed, to the extent that the
statute’s terms were ambiguous, the rule of lenity demanded that the district court
adopt a narrower interpretation of the phrase “persuades, induces, entices, or
coerces.” The district judge denied the Rule 29 motion in its entirety.
Rutgerson called two witnesses on his behalf. The first, Timothy Jones,
testified that Rutgerson left work at around 5:00 p.m. on January 23. Rutgerson
argued that this established that his work had not prevented him from seeing
Amberly that day, as his text messages to her had indicated. The other witness was
Valerie Rivera, a licensed private investigator. She had Googled the many
websites and names that came up in Rutgerson’s iPhone history. Through her,
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Rutgerson entered into evidence images of the websites that the detectives had
uncovered in his iPhone history.
After the close of his case, Rutgerson renewed his Rule 29 motion for a
judgment of acquittal. The district court again denied the motion because “there
[was] sufficient evidence to proceed.”
The court instructed the jury regarding the elements of attempting to entice,
persuade, or induce a minor to engage in prostitution or unlawful sexual activity.
It also provided an entrapment instruction.
In closing argument, Rutgerson made two basic points. First, he attempted
to convince the jury that the government had not proven beyond a reasonable doubt
that he believed Amberly was a minor. He noted that the pictures on her profile
appeared to be of an older woman, and that he had expressed doubt that a fifteen-
year-old could rent a hotel room. Second, he argued that the evidence all pointed
to Amberly having persuaded him to meet for sex, that she made her agreement to
have sex clear from the outset, and thus that there was no evidence that he intended
to persuade her to have sex.
On August 28, 2014, the jury found Rutgerson guilty of having violated 18
U.S.C. § 2422(b). And on December 5, 2014, the court sentenced him to the
mandatory minimum prison term of 10 years.
This timely appeal followed.
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II.
Rutgerson first argues that the evidence was insufficient to support his
conviction under § 2422(b), or that he was predisposed to violate the statute. We
review the sufficiency of the evidence de novo. United States v. Ramirez,
426 F.3d 1344, 1351 (11th Cir. 2005). We are required to affirm Rutgerson’s
conviction if “any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Hunt, 187 F.3d 1269, 1270
(11th Cir. 1999) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Thus,
we view “all the evidence in the light most favorable to the government and draw[]
all reasonable inferences and credibility choices in favor of the jury’s verdict.”
United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th Cir. 2010) (quoting United
States v. Taylor, 480 F.3d 1025, 1026 (11th Cir. 2007)). Because Rutgerson was
charged with attempt, sufficient evidence would support his conviction if a
reasonable jury could have found beyond a reasonable doubt that he “(1) had the
specific intent or mens rea to commit the underlying charged crimes, and (2) took
actions that constituted a substantial step toward the commission of [each] crime.”
United States v. Lee, 603 F.3d 904, 913-14 (11th Cir. 2010) (quoting United States
v. Yost, 479 F.3d 815, 819 (11th Cir. 2007)).
Based on our review of the evidence adduced at trial, we are satisfied that a
reasonable jury could have found that Rutgerson attempted to induce Amberly to
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have sex with him, as proscribed by § 2422(b). The evidence established that he
energetically pursued Amberly over three days in an attempt to induce her to agree
on a price, terms, time, and location for a sexual encounter. Moreover, a
reasonable jury could also have found (as it obviously did) that Rutgerson was
predisposed to commit the charged crime and thus had not been entrapped. He
readily committed the crime and expressed no hesitation about having sex with
Amberly when she informed him that she was only 15 years old.
A.
Rutgerson was convicted of attempting to violate 18 U.S.C. § 2422(b). The
statute provides:
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). Thus, the government had to prove that (1) Rutgerson “acted
with the specific intent to persuade, induce, entice or coerce [Amberly] to engage
in criminal sexual activity,” and (2) “took a substantial step toward the commission
of the underlying crime[].” Yost, 479 F.3d at 819. “The underlying criminal
conduct that Congress expressly proscribed in passing § 2422(b) is the persuasion,
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inducement, enticement, or coercion of the minor rather than the sex act itself.”
United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004).
We have held that the terms persuade, induce, and entice in § 2422(b) should
be given their ordinary meaning. United States v. Panfil, 338 F.3d 1299, 1301
(11th Cir. 2003). That is precisely what the district court did here. The judge
instructed the jury:
As used in this instruction, persuade means to win over,
by an appeal to one’s reason and feelings, into doing or
believing something.
Induce means to stimulate the occurrence of or to cause.
Entice means to lure or attract by arousing hope or desire.
These definitions are in line with the ordinary meaning of those terms. Indeed, the
definition of “induce” exactly matches the definition we endorsed in Murrell, 368
F.3d at 1287. Similarly, the definitions of “persuade” and “entice” match their
ordinary meanings. See “Persuade,” Merriam-Webster Unabridged Dictionary (3d
ed. 2015) (“[W]in over by an appeal to one’s reason and feelings (as into doing or
believing something)”); “Entice,” Merriam-Webster Unabridged Dictionary (3d ed.
2015) (“[T]o draw on by arousing hope or desire”). With these definitions in
mind, there was more than enough evidence to support the jury’s finding that
Rutgerson was guilty of attempting to persuade, induce, or entice Amberly to
engage in prostitution with him.
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First, it is undisputed that Rutgerson initiated contact with Amberly after
seeing her ad and indicated that he was looking for a “playmate.” More
importantly, the jury reasonably could have concluded that Rutgerson offered to
pay a sum of money to Amberly in order to induce her to agree to have sex with
him. By definition, this constitutes a violation of § 2422(b). So far as Rutgerson
knew, Amberly would not agree to have sex with him without receiving payment.
Thus, his offer of money was a clear attempt to persuade, induce, or entice her into
having sex with him. A reasonable jury could easily have found Rutgerson guilty
of violating § 2422(b) based on this fact alone.
Moreover, contrary to the defendant’s argument, this was not simply a
“market transaction” whereby Rutgerson passively accepted an offer posed by
Amberly. Passing over whether this argument would even constitute a defense, it
is plainly not supported by the facts here. Instead, the evidence showed that
Rutgerson engaged in active negotiations as to price and the particular sexual
activities in which he wished to engage. Amberly told Rutgerson she could do “an
hour gfe [] for $175.” Rutgerson responded by suggesting various extras,
including oral sex, using his fingers to penetrate her, and not wearing a condom.
She replied that the price would be $200 for an hour with his extras. Rutgerson
asked whether it would be possible to do two hours for $300. This continued
negotiation undoubtedly forms part of Rutgerson’s efforts to persuade, induce, or
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entice Amberly to have sex with him. Indeed, there is not the slightest suggestion
in this record that Amberly held herself out as being willing to engage in sex acts
with Rutgerson in the absence of being induced by the offer to pay her a substantial
sum of money.
Nor was the offer of money the only means by which Rutgerson attempted
to persuade, induce, or entice Amberly. He also engaged in explicit sexual
dialogue, including telling Amberly that he “want[ed] her to cum too,” and
repeatedly asked what sex acts she would assent to and what she enjoyed. A
reasonable jury could interpret this dialogue as suggesting that Rutgerson was
trying to persuade Amberly that she would enjoy having sex with him, thus further
enticing her into agreeing to have sex with him.
To the extent that Rutgerson suggests that an underage prostitute who holds
herself out for sex cannot be induced within the meaning of § 2422(b) as a matter
of law, he is mistaken. According to Rutgerson, the “question is not whether
Rutgerson believed that Amberly would have had sex with him in the absence of
payment,” but rather whether he believed she “was prepared to have sex with
anybody who paid her price -- i.e., that this was the business she chose -- such that
no external inducement, enticement, or persuasion was necessary.” This flouts the
plain meaning of § 2422(b). The statute criminalizes attempting to induce a minor
to “engage in prostitution or any sexual activity for which any person can be
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charged with a criminal offense.” 18 U.S.C. § 2422(b). Each time Amberly, a
fifteen-year-old, assented to have sex with an adult in exchange for money, she
was engaging in “prostitution” or sexual activity that “can be charged with a
criminal offense.” That many individuals might have sought to induce or entice
the same underage prostitute to engage in sex for money -- even if each one was
successful -- does not immunize Rutgerson from prosecution under § 2422(b). The
essential point is that Rutgerson attempted to persuade or induce Amberly to
engage in sex with him by offering to pay her money (and a substantial amount at
that) for her services. Rutgerson’s claim that he believed Amberly would agree to
have sex with anyone who paid her price essentially gives away the argument. It
(correctly) assumes that her agreement to have sex was dependent on the payment
of money. As we have already observed, offering or agreeing to pay money in
exchange for engaging in various sex acts qualifies as inducement within the
meaning of the statute; it was the necessary element that would cause Amberly to
agree to have sex with Rutgerson.
B.
Rutgerson also argues that even if the evidence was sufficient to establish a
violation of § 2422(b), he should not have been convicted because he was
entrapped into committing the crime as a matter of law. Entrapment is an
affirmative defense that requires (1) government inducement of the crime, and (2)
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lack of predisposition on the part of the defendant to commit the crime before the
inducement. United States v. Orisnord, 483 F.3d 1169, 1178 (11th Cir. 2007);
United States v. Ryan, 289 F.3d 1339, 1343 (11th Cir. 2002). The defendant bears
the initial burden of production as to the government inducement and he may meet
this burden by producing any evidence that is sufficient to raise a jury question that
the government “created a substantial risk that the offense would be committed by
a person other than one ready to commit it.” Ryan, 289 F.3d at 1343-44 (quoting
United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995)). “The defendant may
make such a showing by demonstrating that he had not favorably received the
government plan, and the government had had to ‘push it’ on him, or that several
attempts at setting up an illicit deal had failed and on at least one occasion he had
directly refused to participate.” United States v. Andrews, 765 F.2d 1491, 1499
(11th Cir. 1985) (citations omitted).
Since entrapment is generally a jury question,1 entrapment as a matter of law
is a sufficiency-of-the-evidence inquiry that we review de novo, viewing all facts
1
The district court delivered the following instruction regarding entrapment:
Entrapment occurs when law enforcement officers or others, under their direction,
persuade a Defendant to commit a crime that the Defendant had no previous
intent to commit.
The Defendant has claimed to be a victim of entrapment regarding the charged
offense.
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and making all inferences in favor of the government. United States v. King, 73
F.3d 1564, 1568 (11th Cir. 1996). Where, as here, the jury has rejected an
entrapment defense and government inducement is not at issue, “our review is
limited to deciding whether the evidence was sufficient for a reasonable jury to
conclude [beyond a reasonable doubt] that the defendant was predisposed to take
part in the illicit transaction.” Brown, 43 F.3d at 622.
Predisposition is a fact-intensive and subjective inquiry, requiring the jury to
consider the defendant’s readiness and willingness to engage in the charged crime
absent any contact with the government’s agents. Brown, 43 F.3d at 624; Jacobson
v. United States, 503 U.S. 540, 548-49 (1992) (holding that once government
inducement is shown, “the prosecution must prove beyond reasonable doubt that
the defendant was disposed to commit the criminal act prior to first being
approached by Government agents.”). We have rejected creating a “fixed list of
The law forbids convicting an entrapped defendant, but there is no entrapment,
when a defendant is willing to break the law and the Government merely provides
what appears to be a favorable opportunity for the Defendant to commit a crime.
For example, it is not entrapment for a Government agent to pretend to be
someone else and after, directly or through another person, to engage in an
unlawful transaction.
So a Defendant is not a victim of entrapment, if you find beyond a reasonable
doubt that the Government only offered the Defendant an opportunity to commit a
crime the Defendant was already willing to commit.
But if there is a reasonable doubt about whether the Defendant was willing to
commit the crime without the persuasion of a Government officer or a person
under the Government’s direction, then you must find the Defendant not guilty.
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factors” for evaluating an entrapment defense, but we have posited “several
guiding principles”:
Predisposition may be demonstrated simply by a
defendant’s ready commission of the charged crime. A
predisposition finding is also supported by evidence that
the defendant was given opportunities to back out of
illegal transactions but failed to do so. Post-crime
statements will support a jury’s rejection of an
entrapment defense. Existence of prior related offenses
is relevant, but not dispositive. Evidence of legal activity
combined with evidence of certain non-criminal
tendencies, standing alone, cannot support a conviction.
Finally, the fact-intensive nature of the entrapment
defense often makes jury consideration of demeanor and
credibility evidence a pivotal factor.
Brown, 43 F.3d at 625 (citations omitted).
Viewing the evidence in the light most favorable to the government, a
variety of factors support a finding that Rutgerson was not entrapped as a matter of
law. In the first place, Rutgerson made the initial contact with Amberly and, after
she said that she was 15, Rutgerson readily proceeded to attempt to arrange a
sexual encounter with her. She repeatedly asked if he was okay with her tender
age, and he replied that he was okay as long as they were discreet. Rutgerson
never once said that he did not want to have sex with a 15-year-old (even as he was
repeatedly advised of Amberly’s age), and, as we have outlined the facts,
persistently pursued Amberly over three days in an attempt to agree on a price,
rules, time, and location for a sexual encounter.
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Second, Rutgerson did not back out of his meeting with Amberly and never
expressed any hesitation about having sex with a minor, although he repeatedly
had the opportunity. Indeed, he drove from Miami to Fort Lauderdale for the
purpose of paying her for sex. He repeatedly rescheduled his date with her after
his work kept interfering. And in spite of the expressed concerns that Amberly
was not real or was part of a sting operation, Rutgerson continued to pursue a
sexual encounter with her. Cf. Lee, 603 F.3d at 915 (concern that online person
defendant intends to have sex with is part of a sting operation supports a relevant
inference of guilt because “a relationship with . . . an adult[] would not have
concerned law enforcement”). In the third place, his post-arrest statements were
quite damning: he stated that he believed he was texting and e-mailing a 15-year-
old, and that while he was not sure what was going to happen when he got there,
“nine times out of ten” a sexual encounter happens. Fourth, and finally, although
there was no evidence of prior related offenses, the government introduced
evidence that, before reaching out to Amberly, Rutgerson had accessed numerous
ads for “young” prostitutes online. Plainly, Rutgerson was familiar with the
website he used to locate Amberly’s ad. While there was no evidence that the
other prostitutes Rutgerson contacted were under 18, his search history suggests
that he was predisposed to attempt to entice young women into having sex.
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The long and short of it is that the government agents “simply provided
[Rutgerson] with the opportunity to commit a crime” by posting the backpage ads,
and his “ready commission of the criminal act amply demonstrate[d] [his]
predisposition.” See Jacobson, 503 U.S. at 550. The evidence supports the jury’s
verdict.
III.
Rutgerson argues next that the district court erred by refusing to give a
proposed theory of the defense instruction to the jury. We review a refusal to give
a requested jury instruction for abuse of discretion. United States v. Duperval, 777
F.3d 1324, 1331 (11th Cir. 2015). A trial court enjoys broad discretion to
formulate jury instructions provided those instructions are correct statements of the
law. United States v. Merrill, 513 F.3d 1293, 1305 (11th Cir. 2008). A refusal to
incorporate a requested instruction will be reversed only if “(1) the requested
instruction was substantively correct, (2) the court’s charge to the jury did not
cover the gist of the instruction, and (3) the failure to give the instruction
substantially impaired the defendant’s ability to present an effective defense.”
United States v. Culver, 598 F.3d 740, 751 (11th Cir. 2010) (quoting United States
v. Klopf, 423 F.3d 1228, 1241 (11th Cir. 2005)). An instruction that tracks the
statute’s text will almost always convey the statute’s requirements. United States
v. Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004). “Under our deferential standard of
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review, we reverse only if ‘we are left with a substantial and [in]eradicable doubt
as to whether the jury was properly guided in its deliberations.’” United States v.
Browne, 505 F.3d 1229, 1276 (11th Cir. 2007) (quoting United States v. Eckhardt,
466 F.3d 938, 948 (11th Cir. 2006)); accord McCormick v. Aderholt, 293 F.3d
1254, 1260 (11th Cir. 2002).
Rutgerson proposed the following jury instruction:
It is a theory of defense that Mr. Rutgerson did not
violate the statute he is charged with because he did not
persuade, induce, entice, or coerce a person who he
believed was under 18 to engage in prostitution or
unlawful sexual activity, or attempt to do so.
To prove Mr. Rutgerson guilty of Count 1, the
government must prove beyond a reasonable doubt that
Mr. Rutgerson intended to persuade, induce, entice, or
coerce Detective Montgomery and that he believed her to
be under 18 years old, not that he acted with the intent to
engage in sexual activity with her.
If you believe that Detective Montgomery presented as
[a] 15-year old who was ready and willing to engage in
sexual activity with Mr. Rutgerson, but that Mr.
Rutgerson did not persuade, induce, entice, or coerce
Detective Montgomery to do so, then you must find Mr.
Rutgerson not guilty. Under these circumstances, you
must find Mr. Rutgerson not guilty even if you believe
that he intended to engage in sexual activity with
Detective Montgomery and that he believed she was
under 18 years old.
On the other hand, if you believe that the evidence
establishes beyond a reasonable doubt that Mr. Rutgerson
did persuade, induce, entice, or coerce Detective
Montgomery to engage in unlawful sexual activity, and
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that he believed she was under 18 years old, you should
find him guilty.
The district court determined that the proposed instruction was a substantive
instruction, not a theory of the defense instruction, and declined to give it. The
court initially agreed, however, to give the first paragraph of the instruction in a
slightly modified form. But in response to a government objection, the court
declined to give even the modified version. The district court observed that, while
Rutgerson had not been charged with statutory rape, a minor could not consent in
any event, so the instruction was not appropriate.
The district court ultimately gave the jury an instruction that largely tracked
the statutory language of § 2422(b). 2 The court further instructed the jury that
2
The district court’s instruction to the jury read as follows:
It is a federal crime for anyone using any facility or means of interstate or foreign
commerce including transmissions by computer on the internet, to persuade,
induce, entice, or coerce anyone under 18 years old to engage in prostitution or
any sexual activity for which any person could be charged with a criminal
offense.
The Defendant can be found guilty of this crime only if all of the following facts
are proved beyond a reasonable doubt:
One, the Defendant knowingly persuaded, induced, enticed or coerced
Amber Lee to engage in prostitution or unlawful sexual activity, as
charged;
two, the Defendant used a computer or telephone to do so;
Three, when the Defendant did these acts, he believed Amber Lee was less
than 18 years old; and
four, one or more of the individuals engaging in the sexual activity could
have been charged with a criminal offense under the law of Florida.
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Rutgerson could be found guilty of using a computer to entice a minor to engage in
unlawful sexual activity only if the government proved beyond a reasonable doubt,
along with the other elements, that Rutgerson “knowingly persuaded, induced,
enticed or coerced [Amberly] to engage in prostitution or unlawful sexual activity
as charged.” It also explained what it means to attempt to violate the statute.
As an initial matter, we agree with the district court that Rutgerson’s
proposed instruction was a substantive instruction on the statute, not a theory of the
defense. The proposed instruction did not simply seek to describe what the
defense was arguing, but rather sought to define the law by which the jury was to
decide the case. But the district court already outlined -- and ultimately delivered
to the jury -- a wholly appropriate instruction on the substantive law governing the
case. The instruction actually given to the jury tracked the statutory text,
So the Government must prove that one or more of the individuals engaging in the
sexual activity could have been charged with a criminal offense under the laws of
Florida.
As a matter of law, the following acts are crimes under Florida law: Sexual
activity with a person under the age of 18.
As used in this instruction, persuade means to win over by an appeal to one’s
reason and feelings, into doing or believing something.
Induce means to stimulate the occurrence of or to cause.
Entice means to lure or attract by arousing hope or desire.
As used in this instruction, the term prostitution means engaging in or agreeing or
offering to engage in any lewd act, with or for another person, in exchange for
money or other consideration.
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appropriately and correctly conveying the law to the jury. See Hurn, 368 F.3d at
1362. Because the proposed instruction was actually substantive, the gist of what
Rutgerson proposed had already been covered. Indeed, offering a second
substantive instruction covering the same ground was unnecessary and would
likely have proven confusing.
That confusion would likely have been compounded because Rutgerson’s
proposed instruction was substantively incorrect. The proposed instruction
informed the jurors that they could find Rutgerson guilty if they believed “that the
evidence establishes beyond a reasonable doubt that Mr. Rutgerson did persuade,
induce, entice, or coerce Detective Montgomery to engage in unlawful sexual
activity, and that he believed she was under 18 years old.” Likewise, the
instruction directed jurors to find Rutgerson not guilty if they concluded that
Amberly “presented as [a] 15-year old who was ready and willing to engage in
sexual activity with Mr. Rutgerson, but that Mr. Rutgerson did not persuade,
induce, entice, or coerce” her to do so. One flaw in these instructions is that they
failed to convey to the jury that Rutgerson was charged with an attempted violation
of § 2422(b). The proposed instructions appear to suggest that Rutgerson must
have actually been successful in persuading Amerbly to have sex with him before
he could be found guilty. Contrary to the language in the proposed instruction,
Rutgerson still could have been found guilty for attempting to violate § 2422(b)
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had he tried unsuccessfully to entice Amberly into engaging in sex. Because the
proposed instruction does not admit of this possibility, it was not substantively
correct. Moreover, whether Amberly was “ready and willing” to engage in sexual
activity with Rutgerson misses the essential statutory requirement -- whether
Rutgerson attempted to induce Amberly by offering her a substantial sum of
money to do so. The district court did not abuse its considerable discretion in
declining to deliver the proposed instruction to the jury.
In any event, Rutgerson’s ability to present an effective defense was not
impaired by the court’s failure to give the proffered instruction for two other
reasons. First, the instruction given by the trial court accurately conveyed the
substantive law and the core of his defense theory. Moreover, Rutgerson’s counsel
was permitted to argue his theory of defense extensively in closing argument.
Thus, for example, counsel argued:
This case is not about whether Mr. Rutgerson was going
to go hire the services of a prostitute. Of course, of
course he was going up there to have sex with a
prostitute. He had condoms in his pocket, he had money
to pay.
....
You are to determine from the evidence in this case
whether the Defendant is guilty or not guilty of that
specific crime. Not was he going to engage in
prostitution; absolutely not, that’s not what you are here
to determine. You are here to determine who Mr.
Rutgerson believed, who the Government has proved,
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beyond a reasonable doubt, and whether they have done
that, he believed he was going to see, and whether he
induced, coerced, enticed or persuaded that person to do
it.
Rutgerson also robustly argued that the evidence established that Detective
Montgomery was posing “as a prostitute, who is ready, willing and able to engage
in sex.” But, he said, there was “no evidence -- nobody came up on the stand and
told you . . . this is where Mr. Rutgerson was really trying to persuade and entice
and coerce this person into performing sexual acts, because they can’t.” His
defense was not impaired because the district court declined to present his
proposed instruction.
IV.
Finally, Rutgerson claims that the district court abused its discretion by
refusing to let Detective Mauro testify that, after extensive investigation, he had
not found any indication that Rutgerson had ever visited any websites dedicated to
sex with minors. He argues that this evidence would have been significant to show
that Rutgerson lacked knowledge that various traits in Amberly’s initial ad
indicated she was underage and also undermined the argument that he was
predisposed to commit the crime. Although we think that the district court erred in
excluding this evidence, the error was harmless and does not entitle Rutgerson to
relief from his conviction.
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We review a district court’s evidentiary rulings for abuse of discretion.
United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002). “[E]videntiary and
other nonconstitutional errors do not constitute grounds for reversal unless there is
a reasonable likelihood that they affected the defendant’s substantial rights; where
an error had no substantial influence on the outcome, and sufficient evidence
uninfected by error supports the verdict, reversal is not warranted.” United States
v. Arbolaez, 450 F.3d 1283, 1290 (11th Cir. 2006) (quoting United States v.
Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990)).
The general rule precluding introduction of character evidence to show a
person’s predisposition to commit (or not commit) a crime is clear. Fed. R. Evid.
404(a)(1) expressly provides that “[e]vidence of a person’s character or character
trait is not admissible to prove that on a particular occasion the person acted in
accordance with the character or trait.” As such, the government generally cannot
introduce evidence attempting to show that a defendant was predisposed to commit
a crime, see United States v. Brannan, 562 F.3d 1300, 1308 (11th Cir. 2009), nor
can a defendant present evidence of generally good conduct in an attempt to negate
the government’s showing of criminal intent, United States v. Ellisor, 522 F.3d
1255, 1270-71 (11th Cir. 2008). But, “[w]hen a person’s character or character
trait is an essential element of a charge, claim, or defense, the character or trait
may . . . be proved by relevant specific instances of the person’s conduct.” See
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Fed. R. Evid. 405(b). Thus, for instance, when a defendant raises an entrapment
defense, the government is permitted to introduce specific instances of conduct
designed to show that the defendant was predisposed to commit the crime of which
he was accused. Brannan, 562 F.3d at 1308.
We are presented in this case with a slightly different question: whether a
defendant who has raised an entrapment defense may present evidence of specific
conduct to show a lack of predisposition to commit the charged crime. We believe
that the best answer to this question would be to allow a defendant claiming
entrapment to present evidence which meaningfully bears upon his lack of
predisposition to commit the crime with which he is charged. Although we have
not previously had the opportunity to decide this issue, the Ninth Circuit’s decision
in United States v. Thomas, 134 F.3d 975 (9th Cir. 1998), offers some guidance.
There, the defendant sought to present evidence that he had no prior arrests or
criminal record of any kind to show that he was not predisposed to engage in a
large-scale drug trafficking scheme and had fallen victim to government entrapment.
Id. at 979. The Ninth Circuit noted that a defendant’s character is an essential
element of an entrapment defense because the government must prove that he was
predisposed to commit the crime. Id. at 980. Where the defendant’s predisposition
to commit the crime is at issue, the lack of previous related bad acts by the defendant
is relevant. Id. at 979. Moreover, the Ninth Circuit determined that it was important
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to allow the defendant a fair opportunity to present evidence to counter the effect of
the government’s presentation suggesting that he had a predisposition to commit the
crime. Id. at 980.
Similarly, in this case, Rutgerson sought to present evidence that the police
had not found any evidence that he had visited sites dedicated to sex with minors in
order to show that he was not predisposed to seeking out minors to have sex with
him. This was intended to help rebut any testimony showing that he was
predisposed toward attempting to induce an underage prostitute to have sex with
him. Most notable among that evidence, perhaps, was evidence that he had
searched for and viewed the ads of multiple “young” prostitutes online and had
contacted those prostitutes. Since Rutgerson’s predisposition to commit the
charged crime was an essential element at issue after he raised a claim of
entrapment, the district court should have allowed him to present evidence tending
to rebut the government’s evidential foundation that he was predisposed to violate
§ 2422(b). To that end, highlighting the lack of evidence that Rutgerson had
visited any websites dedicated to sex with minors would have been relevant.
But the mere citation of error does not entitle Rutgerson to relief because the
error plainly was harmless. We are satisfied after carefully reviewing this record
that the error did not have a substantial effect on the outcome of the case, and more
than sufficient evidence supported the jury’s verdict. See Arbolaez, 450 F.3d at
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1290. First, and most important, essentially the same body of evidence that
Rutgerson sought to adduce through Detective Mauro was elicited from another
witness. Detective Johns testified that he searched the internet history on
Rutgerson’s phone. On cross-examination, Johns admitted that, in filling out a
warrant to search Rutgerson’s phone, he had sworn that if Rutgerson were a child
predator, he would possess child pornography on his phone. However, he stated
that the forensic search of Rutgerson’s phone revealed no child pornography or
access to the kinds of internet sites where people discussed gathering, collecting,
and obtaining child pornography. Rutgerson emphasized this testimony during
closing arguments, observing for the jury that there was no evidence that he had
ever visited a child pornography website or attempted to have sex with an underage
person. Moreover, Detective Mauro testified that he was not suggesting that
Rutgerson had any knowledge that an age listing of 99; the erratic use of capital
and lowercase letters; or, finally, the use of the phrase “sweet, young, and petite”
in Amberly’s ad would signify that she was underage.3 Finally, Rutgerson was
3
The examination went this way:
Q: Just so we are all clear about your testimony, you told this jury that this,
the 99, the capitals and lowercases, the use of sweet, young, petite, based
on your training and experience, was to signify a minor. Do you recall
that testimony?
A: Yes, sir.
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permitted to present the testimony of private investigator Valerie Rivera and,
through her, enter into evidence images of the websites that the police had
uncovered in his iPhone history. Those images further bolstered Rutgerson’s claim
that he never accessed child pornography.
Moreover, whatever benefit Rutgerson may have received from Detective
Mauro’s testimony would have been overwhelmed by the evidential foundation
that Rutgerson was predisposed to commit the crime. In addition to evidence
establishing his many searches for “young” prostitutes, Rutgerson expressed no
hesitation whatsoever upon learning that Amberly was underage. His only concern
on that front appeared to be that they be discreet. Far from hesitating after learning
Amberly’s tender age, Rutgerson actively pursued a sexual encounter with her
across several days, and exhaustively negotiated the price, terms, and conditions
for various sexual activities. The evidence that he was disallowed from eliciting
from Detective Mauro would not have overcome the powerful evidence that he
was, in fact, predisposed to commit the crime with which he was charged. The
district court’s error in prohibiting the evidence was harmless.
AFFIRMED.
Q: You are not suggesting that Mr. Rutgerson had any knowledge that it
would have signified a minor to him, are you?
A: No.
34