United States v. Curry

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 26, 2025
• Docket: 24-3169
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 26 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-3169 D.C. No. Plaintiff - Appellee, 1:21-cr-02053-SAB-1 v. MEMORANDUM* DAVID ELMO CURRY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Washington Stanley Allen Bastian, District Judge, Presiding

Argued and Submitted September 15, 2025 Seattle, Washington

Before: W. FLETCHER and DE ALBA, Circuit Judges, and ORRICK, District Judge.**

David Elmo Curry appeals his convictions on two counts of attempting to

persuade, induce, entice, or coerce a minor to engage in unlawful sexual activity, in

violation of 18 U.S.C. § 2422(b). We have jurisdiction under 28 U.S.C. § 1291.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William Horsley Orrick, III, United States District Judge for the Northern District of California, sitting by designation. We affirm the conviction on Count 1 and reverse the conviction on Count 2.

1. Sufficient evidence supports the conviction on Count 1. To convict

Curry of violating § 2422(b), the government had to prove Curry took a substantial

step toward causing “a minor’s assent to unlawful sexual activity.” United States

v. McCarron, 30 F.4th 1157, 1163 (9th Cir. 2022).

Here, a rational juror could find that Curry took a substantial step toward

causing a minor’s assent by using “Kelli,” a perceived parent, as an intermediary to

obtain the assent of her fictional minor daughters. See United States v. Eller,

57 F.4th 1117, 1120 (9th Cir. 2020) (Ҥ 2422(b) applies to defendants who use an

intermediary in their attempt to coerce minors to engage in unlawful sexual

activity.”). Curry suggested specific sexual acts he would engage in with Kelli’s

daughters; agreed to Kelli’s terms, including using a condom and refraining from

causing pain; offered to purchase lubricant in the girls’ favorite flavor; confirmed

that Kelli approved of his appearance; and arranged a time and place to meet Kelli

and the girls. A rational juror could find that Curry sought to convince Kelli to

permit him to engage in sexual activity with her daughters and relied on Kelli’s

ability as a parent to direct her daughters’ behavior. See United States v.

Macapagal, 56 F.4th 742, 745 (9th Cir. 2022); United States v. Spurlock, 495 F.3d

1011, 1014 (8th Cir. 2007) (“We do not believe the statute exempts sexual

predators who attempt to harm a child by exploiting the child’s natural impulse to

2 24-3169 trust and obey her parents.”).

In addition, a rational juror could find that Curry took a substantial step

toward achieving a minor’s assent to unlawful sexual activity by purchasing

lubricant in the flavor Kelli suggested, then driving 80 miles with the lubricant to

the arranged meeting place. Curry admitted to law enforcement officers that he

intended to use the lubricant during oral sex with the minor daughters. A rational

juror could find that Curry sought to use the lubricant to either entice the daughters

or reduce any inhibitions they might have.

2. “The entrapment defense has two elements: (1) the defendant was

induced to commit the crime by a government agent, and (2) he was not otherwise

predisposed to commit the crime.” United States v. Spentz, 653 F.3d 815, 818

(9th Cir. 2011) (internal quotation marks and citation omitted). To show

entitlement to a jury instruction, Curry was required to submit “some evidence

demonstrating [both] elements of the defense . . . .” Id.

On Count 1, Curry failed to present evidence of inducement. Inducement

“consists of an ‘opportunity’ plus something else—typically, excessive pressure by

the government upon the defendant or the government’s taking advantage of an

alternative, non-criminal type of motive.” Id. (quoting United States v. Poehlman,

217 F.3d 692, 701 (9th Cir. 2000)). Here, a detective posing as Kelli suggested

that Curry engage in sexual activity with minors, and Curry promptly agreed and

3 24-3169 began discussing the details. Within a few hours of the detective first contacting

him, Curry drove 80 miles to have sex with the minors. Aside from briefly

mentioning the possibility of a “setup,” Curry expressed no reluctance to go

through with the crime. The evidence demonstrates that the government “merely

afford[ed]” Curry the opportunity to commit the crime, but did not exert excessive

pressure or otherwise induce Curry. Sherman v. United States, 356 U.S. 369, 372

(1958). Therefore, the district court did not abuse its discretion in denying Curry’s

requested instruction on Count 1.

3. However, the district court did abuse its discretion in denying Curry’s

requested entrapment instruction on Count 2. Curry presented some evidence of

inducement. Curry posted an advertisement on an adult website, Doublelist!,

seeking a sexual relationship with an adult woman. In response, posing as thirteen-

year-old “Sunny,” a detective contacted Curry and expressed interest in a sexual

relationship. The detective exchanged text messages almost daily with Curry for

several weeks, initiating the majority of their conversations. Curry frequently

discussed personal, nonsexual details about his life and expressed how much he

enjoyed communicating with Sunny. Curry thus presented “some” evidence that

the government induced him to commit the crime by applying excessive pressure

and “play[ing] on his obvious need” for companionship. Poehlman, 217 F.3d at

702.

4 24-3169 Curry also presented some evidence of his lack of predisposition. In

considering whether a defendant was predisposed to commit a crime, we consider:

[T]he character or reputation of the defendant, including any prior criminal record; whether the suggestion of the criminal activity was initially made by the Government; whether the defendant was engaged in the criminal activity for profit; whether the defendant evidenced reluctance to commit the offense, overcome only by repeated Government inducement or persuasion; and the nature of the inducement or persuasion supplied by the Government.

United States v. Cortes, 757 F.3d 850, 858 (9th Cir. 2014) (alteration in original)

(citation omitted). While Curry’s prior attempts to engage in sexual activity with

Kelli’s daughters may demonstrate some predisposition, it was the detective,

posing as Sunny, who first contacted Curry and expressed interest in sex. Curry

was not engaged in criminal activity for profit. Most importantly, Curry expressed

far more reluctance to communicate or engage in sexual activity with Sunny. See

id. (“Although none of these factors is controlling, the defendant’s reluctance to

engage in criminal activity is the most important” (citation omitted)). Curry

immediately expressed concern that Sunny was a law enforcement officer, raised

the possibility several times during their conversations, and at one point stopped

talking to Sunny for over a week for that reason. Curry also backed out of three

planned meetings and eventually stopped responding to Sunny’s attempts to

contact him. Because Curry presented some evidence showing both inducement

5 24-3169 by the government and his lack of predisposition on Count 2, the district court

erred in denying the requested entrapment instruction. See Spentz, 653 F.3d at 818

(“Only slight evidence will create the factual issue necessary to get the defense to

the jury,” regardless of whether “the evidence is weak, insufficient, inconsistent, or

of doubtful credibility” (citation omitted)).

AFFIRMED IN PART AND REVERSED IN PART.

6 24-3169