United States v. Gamache
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<pre> United States Court of Appeals <br> For the First Circuit <br> ____________________ <br> <br> <br>No. 97-2418 <br> <br> UNITED STATES, <br> <br> Appellee, <br> <br> v. <br> <br> PAUL GEORGE GAMACHE, <br> <br> Defendant, Appellant. <br> <br> ____________________ <br> <br> APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br> FOR THE DISTRICT OF NEW HAMPSHIRE <br> <br> [Hon. Joseph A. DiClerico, Jr., U.S. District Judge] <br> <br> ____________________ <br> <br> Before <br> <br> Torruella, Chief Judge, <br> <br> Stahl, Circuit Judge, <br> <br>and Rosenn, Senior Circuit Judge. <br> <br> _____________________ <br> <br> Michael J. Sheehan, by appointment of the Court, for <br>appellant. <br> Jean B. Weld, Assistant United States Attorney, with whom <br>Paul M. Gagnon, United States Attorney, and Arnold H. Huftalen, <br>Assistant United States Attorney, were on brief, for appellee. <br> <br> <br> ____________________ <br> <br> August 5, 1998 <br> ____________________ <br> TORRUELLA, Chief Judge. This appeal presents some <br>serious and disturbing issues which are both constitutional and <br>substantive in nature. Appellant was charged and convicted in a <br>jury trial in which it was alleged that he traveled in interstate <br>commerce for the purpose of engaging in an illegal "sexual act" <br>with minors, in violation of 18 U.S.C. 2423(b), and that he <br>attempted to use a minor to engage in sexually explicit conduct for <br>the purpose of producing visual depictions of that conduct, in <br>violation of 18 U.S.C. 2251(a). Upon his conviction, appellant <br>was sentenced to a term of imprisonment of 60 months. <br> Five issues are raised on appeal, but because of our <br>disposition of this case, only two need be decided by us. These <br>are: (1) whether, as applied in this case, 18 U.S.C. 2423(b) <br>withstands a constitutional challenge based on the contention that <br>it attempts to punish "mere thoughts," and (2) whether the district <br>court committed reversible error by not giving any jury instruction <br>on the question of entrapment, notwithstanding appellant's request <br>for such an instruction. We conclude that, as applied to the facts <br>of this case, the challenged statute punishes conduct, not "mere <br>thoughts" as is claimed, and thus that it passes constitutional <br>scrutiny. However, we reverse appellant's conviction on both <br>counts because we are of the view that he was entitled to have the <br>jury instructed as to the defense of entrapment, and that the trial <br>court's failure to give the instruction substantially affected his <br>rights to a fair trial.
A. The Background Facts <br> In May 1995 a detective in the Keene, New Hampshire <br>Police Department, as part of a sting operation aimed at uncovering <br>child exploitation, placed a classified advertisement in the <br>personal section of the Tri-State Swingers magazine which read as <br>follows: <br> FEMALE-TROY, NH; F.F.-female, 31; Single mom, <br> two girls, one boy, seeks male as partner and <br> mentor, seeks fun, enjoys travel and <br> photography, FF P.O. Box 771, Troy, New <br> Hampshire, 03465. <br> <br>Approximately 104 responses were received by the detective, who in <br>turn answered the 97 individuals who sent addresses. Among those <br>was appellant, then a 55-year old resident of Brunswick, Maine, who <br>was employed as a service worker with the Maine Yankee Nuclear <br>Power Plant. <br> Because of the nature of the issues raised we are <br>required to reproduce in sordid detail the various epistolary <br>exchanges that ensued between appellant and the detective. <br> This first response from appellant, which is postmarked <br>October 14, 1995, stated in its relevant parts: <br> Your ad interested me. Being your ad is in a <br> swingers mag -- I will assume that you would <br> be willing to swing. With that, I'll describe <br> myself . . . . I enjoy hunting, fishing & <br> camping. I am looking for someone to join me <br> in the pursuit of happiness. If you are that <br> person, then maybe we should meet & discuss <br> the situation. I can travel or you could come <br> here. Please send photo & tell me about <br> yourself. If I interest you send phone # and <br> I'll call you to set up a date. <br> <br>The detective answered on October 18, 1995: <br> I am assuming that you responded to my ad in <br> part to be a mentor to my children and you are <br> interested in family fun. I am hoping that <br> you think liberally about sex. My family is <br> very comfortable in front of the camera . . . <br> <br>At trial the detective testified that the use of the word "mentor" <br>in the advertisement was purposeful in order to draw out only <br>persons who were interested in "inter-generational sexual <br>interaction between adults and children." Appellant testified, <br>however, that after looking the term "mentor" up in the dictionary, <br>he concluded that it meant "like role model," that "it was just <br>another gal looking for somebody to take care of her kids like they <br>do nowadays all over the country . . . [f]inancially, take them <br>fishing, hunting, whatever." <br> Appellant next wrote the detective a lengthy letter, <br>postmarked October 23, 1995: <br> I find no problem, being a mentor to your <br> children & yes family fun does interest me. I <br> hunt, fish & go camping, in fact I just bought <br> a camper yesterday & am getting it ready for <br> next weekend. My son & friend & I are going <br> up north to deer hunt . . . .
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<pre> United States Court of Appeals <br> For the First Circuit <br> ____________________ <br> <br> <br>No. 97-2418 <br> <br> UNITED STATES, <br> <br> Appellee, <br> <br> v. <br> <br> PAUL GEORGE GAMACHE, <br> <br> Defendant, Appellant. <br> <br> ____________________ <br> <br> APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br> FOR THE DISTRICT OF NEW HAMPSHIRE <br> <br> [Hon. Joseph A. DiClerico, Jr., U.S. District Judge] <br> <br> ____________________ <br> <br> Before <br> <br> Torruella, Chief Judge, <br> <br> Stahl, Circuit Judge, <br> <br>and Rosenn, Senior Circuit Judge. <br> <br> _____________________ <br> <br> Michael J. Sheehan, by appointment of the Court, for <br>appellant. <br> Jean B. Weld, Assistant United States Attorney, with whom <br>Paul M. Gagnon, United States Attorney, and Arnold H. Huftalen, <br>Assistant United States Attorney, were on brief, for appellee. <br> <br> <br> ____________________ <br> <br> August 5, 1998 <br> ____________________ <br> TORRUELLA, Chief Judge. This appeal presents some <br>serious and disturbing issues which are both constitutional and <br>substantive in nature. Appellant was charged and convicted in a <br>jury trial in which it was alleged that he traveled in interstate <br>commerce for the purpose of engaging in an illegal "sexual act" <br>with minors, in violation of 18 U.S.C. 2423(b), and that he <br>attempted to use a minor to engage in sexually explicit conduct for <br>the purpose of producing visual depictions of that conduct, in <br>violation of 18 U.S.C. 2251(a). Upon his conviction, appellant <br>was sentenced to a term of imprisonment of 60 months. <br> Five issues are raised on appeal, but because of our <br>disposition of this case, only two need be decided by us. These <br>are: (1) whether, as applied in this case, 18 U.S.C. 2423(b) <br>withstands a constitutional challenge based on the contention that <br>it attempts to punish "mere thoughts," and (2) whether the district <br>court committed reversible error by not giving any jury instruction <br>on the question of entrapment, notwithstanding appellant's request <br>for such an instruction. We conclude that, as applied to the facts <br>of this case, the challenged statute punishes conduct, not "mere <br>thoughts" as is claimed, and thus that it passes constitutional <br>scrutiny. However, we reverse appellant's conviction on both <br>counts because we are of the view that he was entitled to have the <br>jury instructed as to the defense of entrapment, and that the trial <br>court's failure to give the instruction substantially affected his <br>rights to a fair trial.
A. The Background Facts <br> In May 1995 a detective in the Keene, New Hampshire <br>Police Department, as part of a sting operation aimed at uncovering <br>child exploitation, placed a classified advertisement in the <br>personal section of the Tri-State Swingers magazine which read as <br>follows: <br> FEMALE-TROY, NH; F.F.-female, 31; Single mom, <br> two girls, one boy, seeks male as partner and <br> mentor, seeks fun, enjoys travel and <br> photography, FF P.O. Box 771, Troy, New <br> Hampshire, 03465. <br> <br>Approximately 104 responses were received by the detective, who in <br>turn answered the 97 individuals who sent addresses. Among those <br>was appellant, then a 55-year old resident of Brunswick, Maine, who <br>was employed as a service worker with the Maine Yankee Nuclear <br>Power Plant. <br> Because of the nature of the issues raised we are <br>required to reproduce in sordid detail the various epistolary <br>exchanges that ensued between appellant and the detective. <br> This first response from appellant, which is postmarked <br>October 14, 1995, stated in its relevant parts: <br> Your ad interested me. Being your ad is in a <br> swingers mag -- I will assume that you would <br> be willing to swing. With that, I'll describe <br> myself . . . . I enjoy hunting, fishing & <br> camping. I am looking for someone to join me <br> in the pursuit of happiness. If you are that <br> person, then maybe we should meet & discuss <br> the situation. I can travel or you could come <br> here. Please send photo & tell me about <br> yourself. If I interest you send phone # and <br> I'll call you to set up a date. <br> <br>The detective answered on October 18, 1995: <br> I am assuming that you responded to my ad in <br> part to be a mentor to my children and you are <br> interested in family fun. I am hoping that <br> you think liberally about sex. My family is <br> very comfortable in front of the camera . . . <br> <br>At trial the detective testified that the use of the word "mentor" <br>in the advertisement was purposeful in order to draw out only <br>persons who were interested in "inter-generational sexual <br>interaction between adults and children." Appellant testified, <br>however, that after looking the term "mentor" up in the dictionary, <br>he concluded that it meant "like role model," that "it was just <br>another gal looking for somebody to take care of her kids like they <br>do nowadays all over the country . . . [f]inancially, take them <br>fishing, hunting, whatever." <br> Appellant next wrote the detective a lengthy letter, <br>postmarked October 23, 1995: <br> I find no problem, being a mentor to your <br> children & yes family fun does interest me. I <br> hunt, fish & go camping, in fact I just bought <br> a camper yesterday & am getting it ready for <br> next weekend. My son & friend & I are going <br> up north to deer hunt . . . . I also have a <br> high speed bass boat -- I fish in tournaments, <br> I am very outdoorsie. Also do ice fishing. I <br> also have a camper on my truck, so whenever <br> your ready to meet me, we could meet at a <br> certain location & be comfortable. <br> <br> You say you hope I am liberal about sex, I am <br> not exactly sure of what you are referring to <br> in this area. So I guess I'll tell you what I <br> think about sex. First off let me tell you, <br> that I am an easy going person, I enjoy life <br> to the fullest. I am not a jealous person & <br> do not like arguing or fighting. I do not do <br> drugs, only beer & my smokes. Sex to me is <br> very special. Before I got married in the <br> early 80's I had a girlfriend & we both were <br> into the swinging scene. We are/were both bi, <br> it was one of the best periods of my life -- I <br> met some real nice couples & we had many <br> moments of pure enjoyment, in fact my swinging <br> friends were better friends than my straight <br> friends . . . <br> <br> The great part was not only did we enjoy the <br> sexual part, but we also did other non sexual <br> things together, cookouts, camping & saunas. <br> Yes F.F. I consider myself to be ultra liberal <br> about sex . . . Oh yes, I forgot, I enjoy <br> going to the nudist camp in your fine state -- <br> but at present being single -- they don't <br> allow single males . . . <br> <br> Well F.F. I've told you about me -- now its <br> your turn to tell me about you. Some of my <br> questions I have of you are: <br> <br> 1. What is it your looking for in life if it <br> was with me? <br> <br> 2. What are your interests? <br> <br> 3. Are you a bisexual woman? <br> <br> 4. Tell me about your family. Oh yes -- you <br> said your family is very comfortable in front <br> of the camera -- what are you referring to? <br> <br> 5. Could you send a photo of yourself, nude <br> preferred, but not required. Also one of the <br> family. <br> <br> 6. Do you use drugs, smoke or drink? <br> <br> 7. What kind of personality do you have? <br> <br> 8. What do you do for work? <br> <br> 9. Anything else that would be helpful in <br> trying to get to know what you're like. For <br> both our sakes, it will be much better to know <br> all we can about each other and accept what <br> is! . . . . Well F.F. I guess I've told you <br> about me, I hope in the near future, to hear <br> about you . . . . <br> <br> P.S. I was looking at the map -- I think its <br> about 3 hrs. drive to you. Again your <br> options: <br> <br> 1. You and your family can come here. <br> <br> 2. I can meet you at your place. <br> <br> 3. Anywhere in between. <br> <br> On November 1, 1995 the detective returned this <br>communication: <br> I am glad you agree with the liberal <br> upbringing of children, My 12-year-old son, <br> and his 10 and 8-year-old sisters all practice <br> nudism in our home. They are very comfortable <br> being naked in front of one another . . . What <br> I am talking about when I speak of family fun <br> is that all of my children freely involve <br> themselves in sex training sessions. Some of <br> these training sessions have been <br> photographed. The kids love to see themselves <br> on video. I am very interested in introducing <br> an adult male to further my children's sexual <br> education and experiences. When I was a young <br> girl my uncle was very kind to me and showed <br> me the ways of love making. Let me know if you <br> are interested . . . . <br> <br>For the first time in this series of exchanges, the detective <br>answers as "Frances" instead of "F.F." Appellant picks up on this <br>and other suggestions in his answer to this letter, which is also <br>postmarked November 1, 1995: <br> You appear by your letters that you are trying <br> to see if I am shocked by what you are telling <br> me. I can assure you, that I am not shocked, <br> I really think you are a super person & will <br> have less problems with your children than <br> most straight, prudish couples have with their <br> kids. It sounds like your looking for another <br> uncle like you had, to give your children the <br> same experience as you had -- a loving, caring <br> person. <br> <br> The way I look at all this -- as everyone is <br> willing to learn about sex & is not forced, <br> what harm is done? None as far as I am <br> concerned . . . . <br> <br> You say you are very interested in introducing <br> an adult man to further your children's sexual <br> education & experiences. Frances I would be <br> honored, if you choose me to be that adult <br> man. <br> <br> Also Frances, as I told you, aside from the <br> sex department -- I am looking for a family <br> type life, camping, fishing, hunting, sharing <br> the ups & downs of what life has to offer <br> . . . . <br> <br> Could you send me a picture of you & the <br> children? . . . I guess I am trying to get a <br> mental picture of you & the children . . . . <br> <br> This thought just came into my mind -- you <br> said the children freely involved themselves <br> in sex training sessions, do you have sex with <br> them? Have you introduced your son to orgasm? <br> What are your goals -- Teaching them straight <br> sex, or bi-sex too? . . . . I want to have a <br> better understanding of what you desire of me <br> . . . . <br> <br> Approximately two weeks later, on November 14, 1995, <br>"Frances" wrote in return, again indicating that she wanted "to <br>expand [her] children's education and experience." "She" also <br>indicated that "she" shared appellant's nude photograph with them, <br>and that they were "very excited about meeting" him. "Frances" <br>introduces her "children," "Steve," age 12, "Jenny," age 10, and <br>"Sarah," who is "just about to turn 8." The letter went on to say <br>how she participated "during sex training with [her] children," and <br>proceeded to describe the nature of these activities, and what was <br>expected of appellant in this respect. The subject of the "uncle" <br>was again raised, and "Frances" stated, "I hope my children can <br>gain the same type of experience through someone like you." The <br>clincher comes at the end when "Frances" expresses her desire to <br>know appellant "for real. Maybe you have a video camera or have <br>access to one, let me know." <br> Appellant's answer, postmarked November 20, 1995, is <br>addressed to "Frances, Steve, Jenny, & Sarah." Appellant expresses <br>his understanding of "Frances'" request for secrecy, "as we all <br>know, it is against the law to be having sex with minors" . . . . <br>As to "Frances'" last suggestion, however, appellant states: <br> No I don't have a videocamera or access to <br> one, I don't know anything about them. But <br> when we get together, I'll take you out & you <br> pick the one you like & I'll buy it. I always <br> thought about getting one -- but again I don't <br> have a clue as to what make, model or anything <br> about them. You seem to have knowledge -- So <br> it will be your job to pick one out . . . . I <br> do understand when you say you want to weed <br> out weirdos & people who would want to hurt <br> your children . . . . I do not consider myself <br> a pervert or a child molester . . . . <br> <br> You ask if I had any experiences & my feelings <br> with young people. <br> <br> 1. I get along very well with all my grand <br> children, I've always been like a magnet with <br> kids. They seem to accept me very well. <br> 2. No Frances I've never had an opportunity <br> to experience family fun before. <br> 3. The closest I came to having one was when <br> I was around 11 or 12 . . . . [He recounts an <br> experience with his stepmother] . . . . <br> <br> You asked if I am completely opposed to sexual <br> touching with Steve? Frances, . . . I am bi- <br> sexual! If Steve is interested & wants to <br> learn the pleasures of bisexuality I'd be more <br> than willing to touch, stimulate & have oral <br> sex with him . . . . <br> <br> "Frances" next communicated with appellant on <br>November 28, 1995. In this letter "she" again referred to the <br>"uncle [who] taught [her] about sex when [she] was very young, and <br>wanting "the same type of experience for [her] children." <br>"Frances" also tells appellant that she is not interested in <br>finding a partner for herself "right now" as she is interested "in <br>introducing an adult to educate [her] children." "She" indicates <br>that she has been involved with their sexual education: <br> The kids really enjoy being in front of our <br> video camera. I would suggest you send a <br> video of yourself so the children can see <br> . . . <br> <br> P.S. I would suggest you buy any of the new <br> and smaller camcorders. Any model will do. <br> Let us know which one you pick out, they are <br> all good. <br> <br> Appellant wrote back in a letter postmarked December 1, <br>1995. He suggested that they meet for a "get acquainted" meeting <br>at McDonald's or Dunkin' Donuts on his way back from a trip he was <br>making to Connecticut. He wanted to know if in fact "Frances" was <br>a woman: <br> I hope you understand this. Your ad in <br> TriState you asked for a partner and mentor <br> for your children, now in this last letter you <br> say your not interested in finding yourself a <br> partner, rather you are more interested in <br> finding an adult male for the children to <br> educate them, I guess you really want an adult <br> sex toy for kids . . . . I want you to know <br> that I would be happy to be used as your toy <br> for the further education of your children in <br> the world of sex. I've thought about you all <br> daily & have even come up with what I think is <br> a good idea for the 1st class that the <br> children and I could have -- If your <br> interested, tell me & in the next letter, I'll <br> give you a graphic detail of what the class <br> would consist of! <br> <br>Appellant then asks "Frances" a series of questions about the <br>sexual experiences of the "children." And finally: <br> I am happy to hear you say you don't want to <br> force me to do anything I don't feel <br> comfortable with. The only thing I don't feel <br> comfortable with is the buying [of] a <br> camcorder & sending a video. As I already <br> told you, I don't have a clue about them or <br> how to operate them . . . . <br> <br> "Frances'" next letter is dated December 11, 1995. "She" <br>encloses a photograph of "herself" and reiterates that "she" is <br>"mainly interested in finding some one who can sexually educate <br>["her"] children through having sex with them." The letter then <br>states that: <br> I realize that this is something not everyone <br> can do or feel comfortable with. Let me know <br> if you feel all right with this. Maybe if you <br> send a letter directly to the kids telling <br> them about sex and what you hope to do with <br> them when we all meet would be good. <br> <br>"She" then goes on to describe the "children's" sex experiences up <br>to then, and that he should decide what he should do. <br> Appellant next sent "all of you" a Christmas card post <br>marked December 18, 1995 in which he stated that he wished he <br>"could have been your Christmas present laying under the tree. <br>Maybe next year." <br> On that same date appellant also wrote a lengthy letter <br>directed to "Frances," which responds to "her's" of the 11th: <br> I do want to thank you for the picture. You <br> are a very attractive lady, along with having <br> very sensual eyes, I envy your uncle that you <br> told me about -- He was a very lucky man. My <br> hope is someday I may be as lucky. Yes my <br> dear, I know -- you're not interested in me -- <br> but rather for the kids. I was just letting <br> you know how I feel. <br> <br>Appellant then goes on to explain, at length and in detail, how he <br>will carry about the sexual "education" of "Frances'" "children". <br>He ends by telling "her" that "[t]he next letter will be for the <br>kids -- let them open it so it can be kind of personal for them." <br> True to his word appellant next writes "Steve, Jenny, and <br>Sarah" in a letter postmarked December 19, 1995, in which no words <br>are spared describing the sexual activities that will take place <br>when "they" "begin having classes in the very near future -- before <br>they get married -- Ha, Ha." (underlining in the original). <br>Appellant ends the letter by asking "them" for a photograph, which <br>"[does not] have to be nude unless you'd like to." <br> "Frances" responded on December 22, 1995: <br> The kids really liked your letter and had a <br> lot of questions about when we will all get <br> together and the things you wrote about . . . <br> If you are still willing we would love to have <br> you come and meet with us . . . A motel would <br> be nice. I would like to meet in Keene, New <br> Hampshire. I will leave the planning up to <br> you. The kids told me that they would love to <br> have oral sex with you the first time and any <br> pictures or videos that are taken will be <br> given to you as a gift. <br> <br> On December 28, 1995, appellant answered "Frances, Steve, <br>Jenny, & Sarah" to the effect that "[t]he fact that you all want to <br>meet with me, make love & a beautiful film is more than I could <br>ever hope for. I promise I will do all in my power to make you all <br>happy, both in the sexual department & also in normal life <br>activities, if you will let me." He goes on to state that "this <br>will be a new experience for me as well." The rest of the letter <br>deals mainly with the arrangements for the meeting, which appellant <br>suggests take place at the Troy (N.H.) Post Office. He proposes <br>that, from there, all of them travel to Keene. Appellant ends by <br>asking for a "regular picture of the kids to put on [his] dresser" <br>next to "Frances'." <br> "Frances" answered on January 3, 1996, indicating that <br>the "kids" were "very excited about your being involved in their <br>sexual sessions and your bringing a video camera to make a film. <br>Since it will be our first time you may keep the film." "She" was <br>not agreeable to the Troy suggestion, however, and insisted on a <br>motel in Keene. As to the request for the "children's" photo, <br>"she" also rejected the request and told appellant that he was <br>"free to take as many pictures as you want when we meet." <br> Appellant's final letter is postmarked January 3, 1995, <br>and again it is addressed to "Frances, Steve, Jenny & Sarah." The <br>final plans for the meeting are proposed, with the date of <br>January 20th and the "Super 8 Motel" in Keene being suggested as <br>the time and place to meet. Appellant draws a map with directions <br>as to how to get there and indicates that he will sit in his truck <br>in the parking area until "they" come along side him. Then he will <br>get out and approach "them." He includes a photograph of his truck <br>so "they" will recognize it. <br> In the last of this distasteful correspondence, dated <br>January 16, 1996, "Frances" tells appellant that everything is on <br>course for the meeting but that "our video camera is broken so I <br>will leave the video or pictures (your choice) up to you." <br> The line and bait cast, all that remained was the setting <br>of the hook. <br> On the appointed date, appellant drove from his home in <br>Maine to Keene, New Hampshire, arriving at about 1:00 p.m. at the <br>parking lot of the Super 8 Motel in that town, where he parked his <br>truck awaiting the arrival of "Frances" and the "kids." Observing <br>his arrival, however, was the Keene detective who had commenced the <br>events that eventually led to this encounter. Upon matching <br>appellant's vehicle with the Polaroid photo that Gamache had sent <br>"Frances" on January 3, which showed a pickup truck with a camper, <br>the detective and other accompanying police officers approached <br>appellant, who had remained seated in the vehicle, and proceeded to <br>arrest him and to execute an anticipatory search warrant that had <br>been issued against appellant and his vehicle. <br> Inside the cab were found bags of snacks and candy, <br>several two-liter bottles of soda, a bottle of wine, eleven <br>styrofoam cups, a jar of mixed nuts, a vibrator, a Polaroid camera <br>loaded with film, ten extra cartridges of film, nine condoms, a <br>lubricating jelly tube, a partially used tube of jelly, and a <br>number of items conflictingly described as "small condoms" by the <br>detective and as "finger cots" by appellant, who testified at trial <br>that they are used to protect injured fingers. Several of these <br>latter items were also found in appellant's pockets, within a <br>plastic bag which also contained jelly and adult condoms. <br> While this incident was developing, the Brunswick, Maine <br>police were executing a search warrant of appellant's home, where <br>they found a road map with the town of Keene circled, "Frances'" <br>letters to appellant, and a note on a marker board in the kitchen, <br>written by appellant's roommate, telling him not to forget his <br>camera. However, they found no evidence that appellant was <br>interested in, or had a history of, the exploitation of children or <br>child pornography. <br>B. The Constitutional Challenge to 18 U.S.C. 2423(b) <br> Section 2423(b) provides that: <br> A person who travels in interstate commerce, <br> or conspires to do so . . . for the purpose of <br> engaging in any sexual act (as defined in <br> 2246) with a person under 18 years of age <br> that would be violation of chapter 109A if the <br> sexual act occurred in the special maritime <br> and territorial jurisdiction of the United <br> States shall be fined under this title, <br> imprisoned not more than 10 years, or both. <br> <br> Count I of the indictment, which deals with this <br>provision, charges appellant with having traveled in interstate <br>commerce from Maine to New Hampshire for the purpose of engaging in <br>an illegal sexual act with a person under the age of 18. It is not <br>at issue that the acts in question are within the definition of <br>illegal "sexual act[s]" as defined in 18 U.S.C. 2246(2). <br> On the one hand, appellant alleges the invalidity of this <br>statute because according to him, it criminalizes "mere thought," <br>yet, on the other hand, he claims that it is "unconstitutional in <br>that it criminalizes one who crosses a state border with a sinister <br>intent, without needing to prove any other act." These really are <br>different and somewhat inconsistent arguments, which we address <br>separately, but which in any event are unavailing to appellant. <br> Whether it is constitutionally permissible to criminally <br>punish "mere thought" may pose an interesting subject for academic <br>discourse, see Steffan v. Perry, 41 F.3d 677, 713-14 (D.C. Cir. <br>1994); LaFave & Scott, Criminal Law 25, at 177-79 (1976), but, as <br>can be seen from our recitation of the practically undisputed facts <br>in this appeal, that is not the way this statute is being applied <br>to appellant. Appellant did not abstractly contemplate crossing <br>state boundaries with a thought to committing a crime upon reaching <br>his destination. Appellant did not merely sit in the quiet of his <br>house, contemplate evil thoughts, and then flip the channels of his <br>television set, and continue blithely with other musings. <br>Appellant is not charged, nor does this statute, as applied, punish <br>mere voyeurism. <br> As the record clearly establishes, appellant, at a <br>minimum, engaged in a series of acts long past the "mere thinking" <br>stage. See United States v. Price, 134 F.3d 340, 351 (6th Cir. <br>1998) ("[B]ecause of the . . . danger of convicting for mere <br>'thoughts' . . . we require that the 'substantial step' consist of <br>'objective acts.'"). This series of acts includes the interchange <br>of extensive correspondence that eventually led to the actual trip <br>and that shows that at some point he became an active participant <br>in the planning of this trip; the purchasing of supplies, and their <br>transportation in his vehicle (supplies which, it could be argued, <br>were designed to be used to carry out his allegedly nefarious <br>purposes); and his actual traveling to the subject place, on the <br>subject date, at least arguably (if you interpret the evidence in <br>favor of the Government, see United States v. Loder, 23 F.3d 586, <br>589 (1st Cir. 1994)), ready, willing and able to carry out his <br>"educational" mission. Given these circumstances, it can hardly be <br>claimed that punishment for "mere thought" is at issue. <br> The variation of this "thought crime" theme to the <br>effect that the statute is unconstitutional because "it <br>criminalizes one who crosses a state border with sinister intent, <br>without the need to prove any other act" (emphasis supplied) <br>demonstrates an inconsistency with the argument that "mere thought" <br>is being punished. The "other" act language concedes that at least <br>one act took place, i.e., crossing a state line, which is something <br>more than "mere thought". An alternate interpretation of this <br>claim presupposes that Congress cannot criminalize a single act. <br>This is a novel theory for which we can find no support. One <br>clearly defined act is sufficient. In this case, the act is <br>"traveling in interstate commerce," a phrase which supplies not <br>only the jurisdictional basis for the federalization of the <br>proscribed conduct, but also the "objective act" that facilitates <br>the proof of the intent, together with the other evidence <br>introduced. See Hoke v. United States, 227 U.S. 308, 323 (1923) <br>(similar language in the Mann Act constitutional); United States v.Vang, 128 F.3d 1065, 1073 (7th Cir. 1997), cert. denied, 118 S. Ct. <br>1107 (1998) ( 2423(b) constitutional); United States v. Delpit, 94 <br>F.3d 1134, 1149 (8th Cir. 1996) (similar language in the Murder- <br>for-Hire Statute upheld); Price, 134 F.3d at 351. On this last <br>point, of course, just crossing the state border is not enough: the <br>Government must also prove that the crossing was made with the <br>intent to engage in the proscribed conduct. <br> Proof of intent naturally means proving state of mind, <br>but that does not mean that one is punishing "mere thought" any <br>more than that the requirement of proving mens rea in most crimes <br>means that one is solely punishing "mere thought." Now, <br>undoubtedly, establishing intent, short of a situation in which it <br>is admitted, is difficult and usually depends on the use of <br>circumstantial evidence. See id. But as we all know, <br>circumstantial evidence, if it meets all the other criteria of <br>admissibility, is just as appropriate as direct evidence and is <br>entitled to be given whatever weight the jury deems it should be <br>given under the circumstances within which it unfolds. In any <br>event, difficulty of proof is not a valid criteria for determining <br>the constitutionality of the present statute. <br> Appellant's challenge in this respect is not well taken <br>and is rejected. <br>C. The Entrapment Issue <br> Appellant fares better on his entrapment argument. <br> A properly preserved request for an entrapment <br>instruction will be reviewed plenarily on appeal. See United <br>States v. Rodrguez, 858 F.2d 809, 812 (1st Cir. 1988). <br> A criminal defendant is entitled to an instruction on his <br>theory of defense so long as the theory is a valid one and there is <br>evidence in the record to support it. See id. In making this <br>determination, the district court is not allowed to weigh the <br>evidence, make credibility determinations, or resolve conflicts in <br>the proof. Rather, the court's function is to examine the evidence <br>on the record and to draw those inferences as can reasonably be <br>drawn therefrom, determining whether the proof, taken in the light <br>most favorable to the defense can plausibly support the theory of <br>the defense. See id.; see also United States v. Montaez, 105 F.3d <br>36, 39 (1st Cir. 1997). This is not a very high standard to meet, <br>for in its present context, to be "plausible" is to be <br>"superficially reasonable." See Webster's Third New International <br>Dictionary, at 1736 (1971). <br> Entrapment occurs "when the criminal design originates <br>with the officials of the government, and they implant in the mind <br>of an innocent person the disposition to commit the alleged offense <br>and induce its commission in order that they may prosecute." <br>Sorrells v. United States, 287 U.S. 435, 442 (1932). This defense <br>has two elements: (1) improper Government inducement of the crime, <br>and (2) lack of predisposition on the part of the defendant to <br>engage in the criminal conduct. See Montaez, 105 F.3d at 38; <br>United States v. Gendron, 18 F.3d 955, 961 (1st Cir. 1994). The <br>defendant carries the initial burden of producing some evidence of <br>both the Government's improper inducement, and the defendant's lack <br>of predisposition to commit the alleged offense, so as to "raise a <br>reasonable doubt as to whether he 'was an unwavering innocent' <br>rather than an 'unwavering criminal.'" United States v. Joost, 92 <br>F.3d 7, 12 (1st Cir. 1996). <br> "Inducement" exists when the governmental deception or <br>instigation actually implants the criminal design in the <br>defendant's mind. See United States v. Russell, 411 U.S. 423, 436 <br>(1973). Inducement may include persuasion, false statements, or <br>other governmental conduct that creates a risk of causing an <br>otherwise unwilling person to commit the crime charged. SeeGendron, 18 F.3d at 961-62. <br> A "sting" operation is not improper inducement if it <br>merely provides an opportunity to commit a crime, but proof of <br>opportunity plus "something else" may be adequate to meet a <br>defendant's burden. See Joost, 92 F.3d at 12. Examples found <br>sufficient by courts include threats, forceful solicitation and <br>dogged insistence, and repeated suggestions. See id. <br> Once the defendant makes a showing of inducement and lack <br>of predisposition, the Government must prove defendant's <br>predisposition to engage in the charged criminal activity, beyond <br>a reasonable doubt. See United States v. Walker, 344 F.2d 795, 796 <br>(1st Cir. 1965). Factors to be considered by the court in <br>assessing whether the defendant was predisposed to commit the crime <br>charged are: (1) the character or reputation of the defendant; (2) <br>whether the initial suggestion of criminal activity was made by the <br>Government; (3) whether the defendant was engaged in the criminal <br>activity for profit; (4) whether the defendant showed reluctance to <br>commit the offense, which was overcome by the governmental <br>persuasion; and (5) the nature of the inducement or persuasion <br>offered by the Government. See United States v. Busby, 780 F.2d <br>804, 807 (9th Cir. 1986). <br> Two recent decisions -- one from the Supreme Court and <br>the other from this Circuit -- have delineated more precisely the <br>contours of the entrapment defense. In United States v. Jacobson, <br>503 U.S. 540 (1992), the Supreme Court held that Jacobson had been <br>entrapped as a matter of law when government agents engaged in a <br>campaign of phony mailings, which involved seven or eight mailings <br>spanning a 26-month period, that induced him to violate the federal <br>ban on child pornography by purchasing two illegal pornographic <br>magazines. After reviewing the Government's persistent <br>encouragements, which included letters from fictional lobbying <br>organizations that claimed to promote sexual freedoms, the Supreme <br>Court found that Jacobson's "ready response to these solicitations <br>cannot be enough to establish beyond a reasonable doubt that he was <br>predisposed, prior to the Government acts intended to create <br>predisposition, to commit the crime." Id. at 553. <br> In United States v. Gendron, 18 F.3d 955 (1st Cir. 1994), <br>then Chief Judge (now Justice) Breyer provided our "most useful <br>discussion" of the entrapment defense post-Jacobson. United Statesv. Acosta, 67 F.3d 334, 337 (1st Cir. 1995). We explained that the <br>Government "sting" in Jacobson did more than simply offer an <br>"ordinary opportunity" to buy child pornography. Rather, that <br>sting combined an ordinary opportunity with certain "extra <br>elements" so that there was a "risk of catching in the law <br>enforcement net not only those who might well have committed the <br>crime elsewhere (in the absence of the sting), but also those who <br>(in its absence) likely would never have done so." Gendron, 18 <br>F.3d at 961. We then identified three such "extra elements." <br>First, the Government's operation "reflected a psychologically <br>'graduated' set of responses to Jacobson's own noncriminal <br>responses, beginning with innocent lures and progressing to frank <br>offers." Id. at 962. Second, the Government's solicitations <br>appealed to alternative motives (i.e., anti-censorship motives), <br>see id., which suggested that the illicit conduct was "something <br>the [defendant] ought to be allowed to do," Jacobson, 503 U.S. at <br>553. Third, the Government's efforts stretched out over two <br>years. Id. <br> Without unduly repeating the details of this depressing <br>record, we survey the relevant evidence. It is undisputed that the <br>Government initiated this victimless incident with its <br>advertisement. Thereafter, a stream of correspondence followed <br>even after it became apparent, from the initial letters, that <br>appellant was on a different wavelength than the detective. <br>Appellant was interested in having sex with the adult "Frances." <br>His initial response was directed to "F.F."/"Frances," not her <br>"children." What each understood "mentor" and "family fun" to <br>mean, at least at the beginning, was very different, and this can <br>be garnered not only from reading the correspondence, but also from <br>both the detective's and appellant's testimony at trial. Appellant <br>ultimately became ensnared by the detective's artifice. The record <br>is clear that it was the Government's insistence and artful <br>manipulation of appellant that finally drew him into the web <br>skillfully spun by the detective. To this we must add that it was <br>appellant's contention, and he so testified, that all of his <br>correspondence about sex with minors was a ruse to have sex with <br>"Frances," who was his target from the time that he answered the <br>ad. Although this version is obviously disputed by the Government, <br>that is irrelevant to the question of whether it raises an issue of <br>entrapment to be put before the jury. <br> Furthermore, appellant had no criminal record, <br>particularly as to the child molestation, exploitation, or any <br>related matter. In fact, on the stand, the detective testified <br>that appellant did not even fit a pedophile profile and that there <br>was no evidence that linked him to prior sexual activities with <br>children. It was the Government that first mentioned the <br>"children" as sex objects; it was the Government that first used <br>sexually explicit language involving the "children"; it was the <br>Government that escalated the subject of sex with children; and it <br>was the Government that first brought up the use of photographic <br>equipment. <br> As to the latter, the entrapment issue becomes even more <br>apparent with respect to the allegations of attempted manufacture <br>of child pornography. Appellant's response to "Frances'" suggestion <br>of using a camera reveals how far photography was from his <br>cerebrations or fantasies when he wrote: "No, I don't have any <br>videocamera or access to one, I don't know anything about them." <br>The record is redundant with the Government's relentless <br>reiteration of the subject to a person that was patently ignorant <br>of this activity, even to the very last moment. <br> Turning first to "inducement," we think that, in light of <br>our analysis in Gendron, the evidence of improper inducement here <br>was sufficient to submit the question to the jury. First, Gamache <br>initially expressed only his desire for a sexual relationship with <br>Frances and his intent to form a non-sexual relationship with her <br>children. In addition, the agent here manufactured the aura of a <br>personal relationship between Gamache and the fictional "Frances," <br>and "Frances" disclosed her fictional illicit intentions only well <br>into the correspondence. These solicitations are quite similar to <br>the type of "psychologically graduated" responses that the JacobsonCourt found objectionable. Second, the government agent provided <br>justifications for the illicit activity (intergenerational sex) by <br>describing "herself" as glad that Gamache was "liberal" like her, <br>expressing that she, as the mother of the children, strongly <br>approved of the illegal activity, and explaining that she had <br>engaged in this conduct as a child and found it beneficial to her. <br>These solicitations suggested that Gamache ought to be allowed to <br>engage in the illicit activity, just as the Government in Jacobsonused a fake lobbying organization to appeal to anti-censorship <br>motives. Finally, the Government's sting commenced in May 1995 and <br>did not result in any illegal conduct until January 1996. Thus, <br>the Government persevered for almost seven months to elicit the <br>offense conduct. In Gendron, we observed that, in Jacobson, the <br>Government had conceded that its methods amounted to an "improper <br>inducement" as a matter of law. Gendron, 18 F.3d at 963 (citing <br>Jacobson, 503 U.S. at 549 n.2). We think that these "extra <br>elements" are sufficient to satisfy the defendant's burden on the <br>inducement prong. See id. at 961. <br> Turning to the predisposition prong, under the analysis <br>set forth in Jacobson, a reasonable jury could find that Gamache <br>was not predisposed to commit the offense. "[P]roof that [the <br>defendant] engaged in legal conduct and possessed certain <br>generalized personal inclinations is not sufficient evidence to <br>prove beyond a reasonable doubt that he would have been predisposed <br>to commit the crime charged independent of the Government's <br>coaxing." Jacobson, 503 U.S. at 551 n.3. As we explained in <br>Gendron: <br> The evidence of predisposition [in <br> Jacobson] consisted of two facts: (1) that <br> before the government became involved <br> Jacobson was on a private bookstore <br> mailing list for dubious photos; and (2) <br> that he responded affirmatively to the <br> government's solicitations. The first <br> fact . . . showed little about a <br> predisposition to act unlawfully because <br> ordering the photos was lawful at the <br> time. . . . The second, placing orders, <br> could not show how Jacobson would have <br> acted had the solicitation lacked . . . <br> the improper appeals to anti-censorship <br> motives, the graduated response, and the <br> lengthy time frame. [As a result,] the <br> government's evidence did not show how <br> Jacobson would have acted had he been <br> faced with an ordinary "opportunity" to <br> commit the crime rather than a special <br> "inducement." <br>Gendron, 18 F.3d at 963. As in Jacobson, Gamache initially <br>expressed an interest in unusual sexual activities, but these <br>activities were not illegal with Frances. Nor is the inference <br>permissible that the tendency to engage in unusual, albeit legal, <br>sexual activity with an adult indicates a predisposition towards <br>pedophilia. <br> The Government responds that Gamache's enthusiastic <br>response, as expressed in the correspondence, in conjunction with <br>the lack of coercion and/or affirmative pressure by the Government <br>agent, is enough to take the entrapment defense away from the jury. <br>We disagree. Gamache's stated willingness to commit the crime, <br>although clearly relevant to the jury's inquiry, is not sufficient <br>by itself to mandate a finding that he was predisposed. As Judge <br>Posner explained: <br> Had the Court in Jacobson believed that <br> the legal concept of predisposition is <br> exhausted in the demonstrated willingness <br> of the defendant to commit the crime <br> without threats or promises by the <br> government, then Jacobson was predisposed, <br> in which event the Court's reversal of his <br> conviction would be difficult to explain. <br> The government did not offer Jacobson any <br> inducements to buy pornographic magazines <br> or threaten him with harm if he failed to <br> buy them. It was not as if the government <br> had had to badger Jacobson for 26 months <br> in order to overcome his resistance to <br> committing a crime. He never resisted. <br>United States v. Hollingsworth, 27 F.2d 1196, 1199 (7th Cir. <br>1994). <br> Furthermore, as we have noted, there was no evidence <br>presented that Gamache had engaged in similar activities <br>independent of this sting operation. The jury could have relied <br>on this evidence to find a lack of predisposition because the <br>concept of predisposition has a definite temporal reference: "the <br>inquiry must focus on a defendant's predisposition before contact <br>with government officers or agents." United States v. Brown, 43 <br>F.3d 618, 627 (11th Cir. 1995) (citing Jacobson, 503 U.S. at 547 <br>n.2); see also United States v. Gifford, 17 F.3d 462, 469 (1st Cir. <br>1994) (identifying as "critical" the time "in advance of the <br>government's initial intervention"). All of the Government's <br>circumstantial evidence bearing on Gamache's intent when he crossed <br>the state line resulted from the Government's initial contact. The <br>argument is clear in regard to his conviction for attempting to use <br>a minor to engage in sexually explicit conduct for the purpose of <br>producing visual depictions. Despite the Government's dogged <br>insistence that Gamache bring a video camera, Gamache professed <br>ignorance about such cameras and resisted purchasing one. There is <br>no evidence independent of Gamache's correspondence with the <br>government agents -- other than perhaps "small condoms" found on <br>the defendant (which the defendant testified were "finger cots" <br>that protected injuries to his fingers) -- that indicated a <br>predisposition to engage in illegal sexual contact with minors <br>prior to, and apart from, the correspondence. And while "ready <br>commission of the criminal act can itself adequately evince an <br>individual's predisposition" and thus provide sufficient evidence <br>to support a jury's finding that the defendant was predisposed to <br>commit the offense, Gifford, 17 F.3d at 469, eagerness alone, when <br>coupled with the "extra elements" present in this sting operation, <br>is not sufficient to remove the predisposition question from the <br>jury's purview. <br> We conclude that appellant met the dual burdens required <br>for an instruction on entrapment, because the evidence raises a <br>reasonable doubt that the Government improperly induced a citizen <br>to commit crimes that he was not predisposed to commit, yet crimes <br>for which he was charged and convicted. "[E]ven where there are no <br>credibility issues or tensions in the evidence -- and some do exist <br>here -- entrapment is treated as an issue of fact for a jury." <br>Acosta, 67 F.3d at 338. Although it is not dispositive of the <br>issues before us, we take note of the fact that in sentencing <br>appellant the district judge granted a downward departure from the <br>Guidelines, based on his conclusion that appellant had engaged in <br>"aberrant behavior," a conclusion that would seems to include some <br>element of lack of predisposition. <br> The district court committed reversible error in not <br>giving an instruction on the issue of entrapment. Appellant's <br>conviction is reversed and a new trial is ordered.</pre>
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