United States v. Kopstein

759 F.3d 168, 2014 WL 3561750, 2014 U.S. App. LEXIS 13869

Opinions

Judge LIVINGSTON dissents in a separate opinion.

DENNIS JACOBS, Circuit Judge:

Scott D. Kopstein was convicted by a jury, in the United States District Court for the Eastern District of New York (Sey-bert, /.), of transporting and shipping child pornography to a federal agent posing as a twelve-year-old girl during an electronic conversation in a “chat room.” Kopstein did not deny that he possessed the images, but argued that he was entrapped into transporting and shipping them when the agent threatened to terminate the conversation (and Kopstein’s sexual excitement) if Kopstein did not comply with the agent’s repeated requests that he transmit child pornography.

Given Kopstein’s trial strategy, it was critical that the jury be adequately instructed on entrapment, a defense that the district court deemed “surely ... not frivolous.” App. 235. A review of the trial transcript, however, reveals substantial jury confusion, made worse by supplemental jury instructions that: (1) could be understood to say that the jury could convict even if the entrapment defense was successful; (2) lacked consistent direction as to what must be “induced” to show entrapment; and (3) suggested that the government had to both “prove” and “disprove” entrapment. The instructions therefore failed to consistently and adequately guide the jury on Kopstein’s only defense to the only charge that carried a mandatory minimum sentence.

We vacate Kopstein’s conviction and remand for a new trial.

I

In June 2009, Kopstein, a 20-year-old New York college undergraduate, initiated an instant message chat with an undercover federal agent posing as a 12-year-old girl in California.

Kopstein immediately turned the conversation toward sex. He repeatedly sent naked pictures of himself to the agent, and asked the agent to return the favor. See App. 22-23. In-response, the agent sent Kopstein a yearbook-style photo of a young girl; but Kopstein requested “more naughty pics.” Id. When the agent said he did not have any, the following exchange ensued:

[Kopstein]: do u have any other pics?

[Agent]: yeah ... what do i get out of it? ?????? ?

[Kopstein]: i got some more naughty pics of me for you

[Kopstein]: if i can see more of u

[Agent]: u hav any w a girl

[Kopstein]: none of me with a girl

[Agent]: awwwww

[Kopstein]: but I have other people with other girls

[Agent]: any good ones

[Kopstein]: yea

[Kopstein]: if u send me more pics

[Kopstein]: ill show u alot

Id. at 24. The agent responded by sending Kopstein a photo of a girl in a dress, and Kopstein detailed the sexual acts he wished to perform on the girl. See id.

The agent quickly steered the conversation back to his request for child pornography:

[Agent]: thought u were gona send me some stuff

[Kopstein]: send me a few more pics

[Kopstein]: then ill send u alot

[Agent]: nope

[Kopstein]: okkk

Id. at 24-25. Undiscouraged, Kopstein sent more pictures of himself, which prompted the agent to muse:

[Agent]: sur got a lot of pics of urself

[Agent]: hehehehhe

Id. at 25.

Only at that point did Kopstein send the agent child pornography. Id. Kopstein expressed hope that these images would sexually excite his chat partner, and the agent was enthusiastic: “i lik[e] pics like that”; “wow ... that last pic was nice ... she is cute.” Id. The agent also expressed a fondness for videos that depict a young girl “and a guy having real fun,” but Kop-stein demurred: “its more fun to do it yourself.” Id.

The rest of the chat consisted of Kop-stein gloating about sexual experiences with an 11-year-old girl and expressing a desire to actually meet his chat partner for sex. See id. at 27-28. The agent sent additional inoffensive pictures of a young girl, and Kopstein responded with more images of child pornography. See id. at 25-28. Asked where Kopstein had found these pictures, Kopstein explained, “other people.” Id. at 28. Soon after, Kopstein ended the chat. See id. at 29.

Federal agents thereafter seized Kop-stein’s computer and recovered many other images of child pornography. Kopstein signed an affidavit confessing to a habit of initiating “sexual conversations ... with younger girls” and to sometimes trading pictures of himself for pictures of those girls (the images are not characterized). He added, however, that he “never shared [pictures of his chat partners] with anyone” else and never “met, talked to on the phone, or had sex of any kind[ ] with any underage girl.” See id. at 20-21.

II

Kopstein was charged with three counts of transporting and shipping child pornography. Transport and shipment, unlike possession, is punishable by a five-year mandatory minimum sentence. See 18 U.S.C. § 2252(b)(1).

At the three-day trial, Kopstein’s only defense was that he had been entrapped into transporting and shipping child pornography (though not into possessing it). The theory was that the agent’s request for “good” pictures of “girls,” and the implicit threat that the agent would cut off the chat if Kopstein did not comply, induced Kopstein into sending the images, which he had no predisposition or inclination to do.

In summation, Kopstein’s counsel conceded that Kopstein initiated the chat and that the government had proven “the underlying act: transporting and shipping.” App. 145. He affirmatively invited the jury to convict Kopstein of the lesser-included offense of possession, for which Kopstein had no defense. See id. at 155. Counsel argued, however, that (1) the federal agent induced the transport and shipment conduct; and (2) the government did not prove beyond a reasonable doubt that Kopstein was predisposed to send the images. See id. at 146-52.

A unanimous jury found Kopstein guilty of transporting and shipping child pornography. In December 2012, the district court sentenced Kopstein to 66 months’ imprisonment, adding six months to the mandatory minimum because Kopstein sent child pornography to a person he thought was a 12-year-old girl. See id. at 272.

Ill

“We review a jury instruction challenge de novo, but we will reverse only where the charge, viewed as a whole, demonstrates prejudicial error.” United States v. Coppola, 671 F.3d 220, 247 (2d Cir.2012). “Instructions are erroneous if they mislead the jury as to the correct legal standard or do not adequately inform the jury of the law.” Hudson v. New York City, 271 F.3d 62, 67 (2d Cir.2001) (internal quotation marks and alterations omitted). “Objectionable instructions are considered in the context of the entire jury charge, and reversal is required where, based on a review of the record as a whole, the error was prejudicial or the charge was highly confusing.” Id. at 67-68 (internal quotation marks and alteration omitted); see also Nat’l R.R. Passenger Corp. v. One 25,900 Square Foot More or Less Parcel of Land, 766 F.2d 685, 688 (2d Cir.1985) (“A charge that appears likely to have left the jury ‘highly confused’ may, on that ground alone, be reversed.”).

We will vacate a conviction if the initial jury instructions are faulty, the jury expresses confusion, and the court’s supplemental instruction fails to alleviate the jury’s concerns or only adds to the already-existing confusion. For example, in United States v. Rossomando, we concluded, on plain-error review, that

the court’s initial charge posed a genuine risk of confusing the jury into believing that it would be proper to convict Rossomando ... without finding that he [committed an essential element], and that the court’s supplemental charge on intent did not adequately cure any such potential misperception. We therefore reverse the district court’s judgment because we are not fully confident that the jury found Rossomando guilty of an essential element of [the crime], and because our doubts are sufficient to call into question the fairness and integrity of Rossomando’s conviction.

144 F.3d 197, 200-01 (2d Cir.1998) (citation omitted).

Even if an initial instruction is not itself erroneous or highly confusing, a supplemental instruction prompted by a jury question may be so muddled as to warrant vacatur. We have explained:

If the court’s instructions ... had been confined to those contained in its original charge to the jury, a reversal would not be required.... However, in its supplemental instructions to the jury after deliberations had begun, the district court left the issue ... in further confusion and thereby inadvertently undermined its earlier correct instructions .... In short, the court’s supplemental instructions to the jury were sufficiently incomplete and misleading so as to make the charge, viewed as a whole, inadequate....

United States v. Hastings, 918 F.2d 369, 371-73 (2d Cir.1990) (citations omitted); see also United States v. Velez, 652 F.2d 258, 262 (2d Cir.1981) (“Although reluctant to upset a conviction because of an error in the supplemental charge, we are constrained to reverse here because the trial court’s failure to recharge the jury on [an] element was both erroneous and highly prejudicial.”).

A supplemental instruction can be a potent influence. A jury’s interruption of its deliberations “to seek further explanation of the law” is a “critical moment in a criminal trial”; and we therefore ascribe “crucial importance” to a “completely accurate statement by the judge” at that moment. United States v. Lefkowitz, 284 F.2d 310, 314 (2d Cir.1960). “[T]he district court must exercise special care to see that inaccuracy or imbalance in supplemental instructions do not poison an otherwise healthy trial. This is especially true since the judge’s last word is apt to be the decisive word.” Tart v. McGann, 697 F.2d 75, 77 (2d Cir.1982) (internal quotation marks and citations omitted).

Unaddressed or aggravated juror confusion is almost certainly not harmless if it pertains to a defendant’s “only” or “primary” defense. See Velez, 652 F.2d at 262; Rossomando, 144 F.3d at 198.

IV

“[A] valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in criminal conduct.” Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). The defendant bears the burden of presenting credible evidence of government inducement. See United States v. Bala, 236 F.3d 87, 94 (2d Cir.2000). If the defendant sustains that burden, the prosecution must prove predisposition to commit the crime beyond a reasonable doubt. See United States v. Al-Moayad, 545 F.3d 139, 153 (2d Cir.2008). The government may do so by demonstrating “(1) an existing course of criminal conduct similar to the crime for which the defendant is charged, (2) an already formed design on the part of the accused to commit the crime for which he is charged, or (3) a willingness to commit the crime for which he is charged as evidenced by the accused’s ready response to the inducement.” Id. at 154 (internal quotation marks and alteration omitted).

The government relied on Kop-stein’s ready compliance, which “is usually indicated by the promptness of a defendant’s agreement to commit an offense.” United States v. Cromitie, 727 F.3d 194, 206 (2d Cir.2013).

y

A

In deciding whether jury instructions are prejudicially erroneous or highly confusing, we evaluate them in the context of the entire record. See, e.g., Hudson, 271 F.3d at 67-68. We therefore discuss the jury instructions and their context at some length.

The initial entrapment charge, unchallenged on appeal, was as follows¹:

The defendant asserts as a defense to the indictment three counts of transporting and shipping child pornography that he was entrapped into committing those offenses by the undercover government agent. The defendant may not be convicted of a crime if it was the Government who gave the defendant the idea to commit the crime, if it was the Government who also persuaded him to commit the crime, and if he was not ready and willing to commit the crime before the Government agent first was in communication with him.

On the other hand, if the defendant was already ready and willing to commit the crime of transporting and shipping child pornography, and the Government merely presented him with an opportunity to do so, that would not constitute entrapment.

Your inquiry on this issue should first be to determine if there is any evidence that the undercover agent took the first step that led to a criminal act of the defendant transporting and shipping child pornography. If you find there was no such evidence, there can be no entrapment, and your inquiry on this defense should end there.

If, on the other hand, you find some evidence that the undercover government agent initiated the criminal acts charged in the indictment, then you must decide if the Government has satisfied its burden to prove beyond a reasonable doubt that prior to that the defendant was ready and willing to commit the crimes of transporting and shipping child pornography.

If you find beyond a reasonable doubt that the defendant was predisposed, that is, ready and willing to commit transporting and shipping child pornography as charged, and merely was awaiting a favorable opportunity to commit those offenses, then you should find that the defendant was not entrapped.

On the other hand, if you have a reasonable doubt that the defendant would have committed the offenses charged without the Government’s inducements, you must acquit the defendant of the crimes of transporting and shipping child pornography.

187-88.

Confusion set in with the explanation as to the lesser included offense of possession ²:

In some cases, the law which a defendant is charged with breaking actually covers two separate crimes. One is more serious than the second, and the second is generally called a lesser included offense.

The indictment in this case charges the defendant with three counts of transporting and shipping child pornography, and I have explained to you the elements which the Government must prove beyond a reasonable doubt before you may convict him of that crime.

If you find that the Government has not satisfied its burden of proof on any of those elements, then before you may render a verdict of not guilty as to transporting and shipping child pornography, you must proceed to determine whether the defendant has committed the lesser crime of possession of child pornography.

On the other hand, if you find that the Government has proven the defendant’s guilt beyond a reasonable doubt as to each of the three counts of transporting and shipping child pornography, you should stop deliberating and inform the Court before you consider the lesser included offense.

Id. at 188-89 (emphasis added). The emphasized passage (“before you may render a verdict”) could be read to instruct that if the jurors find that Kopstein was entrapped into transporting and shipping child pornography (which would be a complete defense to that charge), they should not render a verdict of not guilty on that charge (the correct outcome) until after they had determined whether Kopstein committed the lesser offense of possession.³ That in turn could have misled the jury into thinking that it could return a verdict of guilty on the greater offense even if the prosecution had failed to prove a necessary part of its case, simply because Kopstein was guilty of the lesser offense. This source of potential confusion would recur throughout the instructions.

Right before the jury retired to deliberate, the court summarized its instructions as follows⁴:

As I instructed you earlier, if you find that the Government has not satisfied its burden of proof on any of those elements, then before you may render a verdict of not guilty as to transporting and shipping child pornography, you must proceed to determine whether the defendant has committed the lesser crime of possession of child pornography.

On the other hand, if you find that the Government has proven the defendant’s guilt beyond a reasonable doubt as to each of the three counts of transporting and shipping child pornography, you should stop deliberating and inform the Court before you consider the lesser included offense.

Id. at 198-99 (emphasis added). Once again, the language could be misunderstood (as it was) to say that the jury should not automatically return a verdict of not guilty as to transporting and shipping even if the government failed to sustain its burden — while of course that is exactly what the jury was required to do if the entrapment defense was successful.

Kopstein’s counsel objected that the instructions suggested to the jurors that “they should consider the lesser included [offense] if they find the defendant not guilty by reason of a failure to prove the elements. But it should also include a situation whether they find him not guilty, not just because of a failure ... not to prove the elements, but ... by reason of the defense of entrapment.” Id. at 201. The government did not object and the court then told the jurors:

Ladies and gentlemen, there’s an issue I want to bring to your attention. I misspoke previously. On pages 44 and 59 of the charge that you will be getting, I failed to include the following instruction: If you find that the Government has not satisfied its burden of proof on any of those elements, or if you find that the defendant has proven his defense of entrapment, before you may render a verdict—

Id. at 202 (emphasis added). Kopstein’s counsel objected on the ground that Kop-stein was being assigned the burden of proof. Id. at 208. The Court acknowledged the objection, and continued:

It should read on 44 and again on 59: If you find that the Government has not satisfied its burden of proof on any of those elements, or if you find that the Government has not disproved the defendant’s defense of entrapment, then you must go on to consider the lesser included offense of ... possession of child pornography.

All right. Ladies and gentlemen, that will appear again on page 59, and I instruct you that the same rules apply. If the Government fails to prove beyond a reasonable doubt the elements of shipping or transporting child pornography, or whether or not the Government failed to prove beyond a reasonable doubt that the defendant was not entrapped. All right.

Id. at 203 (emphasis added). Thus, it remained muddled whether the jury must find the defendant not guilty of transport and shipment if the prosecution failed to prove its case or if the entrapment defense were successful. The last line of instructions the jury heard before entering deliberations did not help: “whether or not the Government failed to prove beyond a reasonable doubt that the defendant was not entrapped.”

B

Shortly after deliberations began, the jury submitted a note requesting clarification regarding page 44 of the jury instructions, which discussed the lesser-included offense of possession. See id. at 206. The court asked the jury to be more specific, prompting this second note:

Please clarify:

p. 42 “If you find there was no such evidence there can be no entrapment and your inquiry on this defense should end there”

p. 44 “or if the government has not disproved the defense of entrapment beyond a reasonable doubt, then before you may render a verdict of not guilty” If we find in favor of the page 42 instructions, do we consider the instruction on page 44 and if so what does it mean to “disprove the defense of entrapment”?

Id. at 225.

The referent of the phrase “[s]uch evidence” on page 42 is “any evidence that the undercover agent took the first step that led to the criminal act of the defendant transporting and shipping child pornography.” But the jury is left to wonder what the “first step” was that “led to” the transporting and shipping of the images in question: Possession of the child pornography (Kopstein)? Initiation of the chat (Kopstein)? Sexual references (Kopstein)? Mention of pictures involving other “girl[s]” (the agent)? Request to transmit an image of a child being raped (the agent)?

The jury’s cryptic note also reflects basic confusion about some critical points:

• The jury was wondering why it should not “render” a verdict for defendant if the government did not “disprove the defense of entrapment.” Well might one wonder.

• The jury does not know what it means to “disprove the defense of entrapment.” If it did not understand that, it understood nothing.

As the district court recognized, the jurors “are getting confused about the defense of entrapment, and they are coordinating it to inducement, which is understandable.” Id. at 208.

The note prompted colloquy between court and counsel on how to dispel the confusion. Though the jury did not hear this discussion, the back-and-forth draws on some of the same sources of confusion that had appeared (and would reappear) throughout the transcript and reflects as well the active intervention of Kopstein’s counsel (as well as the constructive role performed by the prosecutor):

THE COURT: I was basically going to advise them if they initially decide — if they do not initially determine beyond a reasonable doubt that the Government agent induced the criminal activity—

[Kopstein’s counsel]: That reverses the burden.

THE COURT: No, that makes it worse. Let me redo this. Initially they have to decide whether or not the Government has proven beyond a reasonable doubt that the Government agent induced the criminal activity.

[Kopstein’s counsel]: I think, your Hon- or, you said it correctly the first time—

THE COURT: You have to show that the Government agent induced the defendant to engage in criminal activity.

[Kopstein’s counsel]: But the defendant does not have to show that beyond a reasonable doubt.

THE COURT: No, the Government has to show that.

[Kopstein’s counsel]: All right.

[Prosecutor]: The Government has to show beyond a reasonable doubt that the defendant ... was ready and willing to commit the crimes of transporting. That’s what the Government has to prove beyond a reasonable doubt.

THE COURT: And one of the elements of that is to establish that the Government agent induced the defendant to enter into the criminal activity. Because if you don’t have the inducement—

[Prosecutor]: We don’t have to disprove the—

THE COURT: No, you have to prove beyond, a reasonable doubt that the Government agent induced—

[Kopstein’s counsel]: Did you mean to say “did not induce”?

[Prosecutor]: Your Honor, the defense of entrapment is that they claim there was an inducement.

THE COURT: Right. You have to prove beyond a reasonable doubt that—

[Prosecutor]: — that the defendant was, despite the claim of inducement, was nonetheless ready and willing to commit the crime.

[Kopstein’s counsel]: Well, your Honor, they seem to be focusing first on the inducement.

THE COURT: Right. That’s an element of entrapment.

[Kopstein’s counsel]: Right. Right.... I’m concerned they may think the first step is simply entering into a chat without regard whether the first step had anything to do with transporting.

THE COURT: That they induced the defendant to send, transport, to ship the materials.

[Kopstein’s counsel]: Obviously, the charge as given is correct, but I think they are confused. What I would suggest the Court do is to explain the language on page 42 means that if there is any evidence that the Government agent took the first step, that is, gave the defendant the idea to commit the crime and persuaded him to commit the crime, then you proceed to the issue of predisposition on which the Government bears the burden of establishing beyond a reasonable doubt that he was predisposed—

THE COURT: But there has to be some evidence.

[Kopstein’s counsel]: Right....I think that when they say “first step that led,” they may think that is something different than giving the defendant the idea to commit the crime or persuading the defendant to commit the crime. They may think the first step is meeting in a chat-That is what led to this, notwithstanding that I may have been a government agent during the course of the chat who persuaded him to commit the crime. That first step may be something different than the actual inducement, and that’s why I’m worried about that question. I think as long as that is clarified, it will be pretty easy for them to follow this instruction....

[Prosecutor]: That may be an interesting inquiry, but that is not the question posed. The question posed seems to confuse the issue on page 44 and the verbiage that was put in, which is disprove the defense of entrapment. The way that is done in the entrapment charge is by the Government’s burden of proving beyond a reasonable doubt that defendant had a predisposition, that he was already willing and able to commit the act despite the inducement. So this concept of disproving the defense of entrapment appears to confuse the jury in what the burden is on the Government — ...

THE COURT: How about there must be some evidence of inducement that the Government agent took the first step to have the defendant transport, ship child pornography?

[Kopstein’s counsel]: That’s fine.

[Prosecutor]: Yes.

THE COURT: There’s no problem with that. The first step that led to a criminal act and so forth. If you find there is no such evidence, there can be no entrapment, and your inquiry on this defense should end. If, on the other hand, you find some evidence that the undercover government agent initiated the criminal acts charged in the indictment, then you must consider if the Government had satisfied its burden beyond a reasonable doubt that prior to that the defendant was ready, willing and so forth. And that gets into the whole predisposition. Moving on to the lesser included, which is on page 44, we can list the elements what the Government would be required to disprove. Your position ... is that the defendant wasn’t predisposed to commit this crime.

[Kopstein’s counsel]: Right, and that there was an inducement in the chat and by the agent....

THE COURT: What about: The Government has failed to prove beyond a reasonable doubt that the defendant was not entrapped. I mean, that’s what you have to prove. You have to disprove that he was entrapped. We tell them what entrapment is. In order for them to even consider entrapment, they have to find there was some evidence of inducement. If there is no evidence of inducement, they don’t bother with entrapment.

[Prosecutor]: Correct. So what language?

THE COURT: At 44, the language would be: If you find that the Government has not satisfied its burden of proof on any of these elements, or that the Government has failed to prove beyond a reasonable doubt that the defendant was not entrapped.... In order to find him not entrapped, they have to find, first, that there was some inducement.

[Prosecutor]: I don’t disagree. I’m fine with that.

THE COURT: Hopefully, that will do it. We’ll bring them out and give it.

Id. at 208-16 (emphases added).

When the jury was called back in, the following supplemental instruction was given:

With respect to page 42: Initially, before you even consider entrapment, you have to find that there has been presented in this case some evidence that the defendant was induced by the Government agent to commit the criminal act, the first step in committing the criminal act of transporting child pornography and shipping child pornography.

So again, there must be some evidence of inducement on the part of the Government agent that this inducement caused the defendant to take the first step. If there is no such evidence, or you conclude there is no such evidence based on the testimony, then you cannot consider entrapment, and your inquiry stops there.

Now, your next question relates to page 44: Or if the Government has not disproved the defense of entrapment beyond a reasonable doubt, then before you may render a verdict of not guilty

I know that is confusing.

And you then go on to say: If we find in favor of the page 42 instruction, do we consider the instruction on page 44?

If, on page 42, you find that there was some evidence of inducement by the Government agent and that this caused the first step to have the defendant transport or ship ... child pornography, if you find there is some evidence of that, then you consider entrapment. All right.

If you find there is no evidence of that, then forget about entrapment and disregard any mention of entrapment.

So look at page 42. Initially, make a determination whether there is some evidence of inducement, that is, that the Government agent took the first step to have defendant transport and/or ship child pornography.

Now, with regard to the instructions here, if you decide there is no inducement, disregard the instructions on entrapment, and then you go on to the next step, which is to decide whether or not the Government has proven each and every element of the transporting and shipping of child pornography beyond a reasonable doubt.

If you decide that the Government has proven this beyond a reasonable doubt on all three counts, then you report that to the Court.

If you decide that the Government has not proven it on all three counts, the three elements that I’ve told you about, then you let the Court know. And if you can’t decide on all three counts, let me know.

If your verdict is not guilty on all three counts, then you can go on to consider the lesser included. If you can’t decide on all three counts, then you come in and tell me you can’t decide, and we’ll go from there.

But if you decide that the Government has proven the defendant’s guilt, once you get to the three counts, beyond a reasonable doubt, you tell me that, and you stop your deliberations.

So let’s review for a moment.

On page 42, the first inquiry you make is whether or not there is some evidence of entrapment. If you — I’m sorry, of inducement, not entrapment. If you find there is some evidence that the Government agent took the first step to have the defendant transport or ship child pornography, t hen you go on to consider the other elements as to whether or not the Government has proven entrapment and has disproven entrapment beyond a reasonable doubt.

First off, is there some evidence of inducement?

If you find there is some evidence of inducement, you go on to consider whether or not the Government has dis-proven beyond a reasonable doubt that the other elements of entrapment which I’ve listed here apply.

In other words, if the defendant was already ready and willing to commit the crime of transporting and shipping child pornography, and the Government merely presented him with an opportunity to do this, all right. Then there’s no entrapment.

First, look if there is some evidence of inducement. If you find there is no evidence of inducement, that stops the inquiry on entrapment. If you find there is some evidence of inducement in that first step, then you go on to decide whether or not the Government has proven to you beyond a reasonable doubt that the defendant was already ready, willing and able to commit the crime of transporting child pornography, and if the Government merely presented him with an opportunity to do so, that wouldn’t constitute entrapment.

If you decide this issue of entrapment, you go on to decide whether or not the Government has proved beyond a reasonable doubt the three elements — or the elements that I’ve outlined for you for transporting and shipping child pornography. If all those elements are met beyond a reasonable doubt, then you should convict the defendant and report your verdict.

If you find beyond a reasonable doubt that the Government has not met that— if you find that the Government has not met that standard as to shipping and transporting, and if you unanimously agree that the defendant has not, for each of the counts, you will render a verdict in favor of the defendant.

If you cannot make up your mind on the three count guilty or not guilty, then you come in and report that to me.

Let me know if that helps or confuses you further.

Id. at 216-21 (emphases added).

Kopstein’s counsel objected that the supplemental charge “indicated that even if [the jury] found entrapment, ... [it] can still go on to consider transporting and shipping.” Id. at 221. When the court told him that it was not the “sense of it,” he backed down. Id. at 222-23. The jury soon after returned a unanimous guilty verdict.

VI

The jury instructions, including the supplemental instructions, drew upon multiple sources of confusion.

A

First, the jury’s note reflects confusion regarding whether the “before you may render a verdict” language in the original instructions authorized a finding of guilt even if the entrapment defense were successful or the government failed to sustain its burden of proof on an element of the offense. The supplemental instructions compounded the problem several times over by indicating that, however the jury decided entrapment, it should nevertheless proceed to consider the three elements of transport and shipment. See id. at 220 (“If you decide this issue of entrapment, you go on to decide whether or not the Government has proved beyond a reasonable doubt the three elements — or the elements that I’ve outlined for you for transporting and shipping child pornography. If all those elements are met beyond a reasonable doubt, then you should convict the defendant and report your verdict.”). This could only increase the jury’s already considerable confusion by indicating that entrapment was not a dispositive defense.⁵

B

Second, the court’s supplemental instructions regarding inducement and the “first step” were inconsistent and problematic given the facts of this case.⁶

At times, the court stated (in accord with model jury instructions) that the proper inducement inquiry was whether the government agent took the first step. See App. at 218 (“Initially, make a determination whether there is some evidence of inducement, that is, that the Government agent took the first step to have defendant transport and/or ship child pornography.”); see also 1-8 Modern Federal Jury Instructions-Criminal 8.07 (“Your inquiry on this issue should first be to determine if there is any evidence that a gov ernment agent took the first step that led to a criminal act.”). At other times, however, the court took for granted that Kop-stein took the “first step,” short-circuiting an inquiry it simultaneously assigned to the jury. See App. 217 (“So again, there must be some evidence of inducement on the part of the Government agent that this inducement caused the defendant to take the first step.” (emphasis added)).

Worse, unaided reference to the “first step” could not provide sufficient guidance to the jury, given the possibilities that the cognizable “first step” was the initiation of the chat, or the reference to sexual matters, or the proposal that child pornography be transported or shipped — or even possession of the images.

The entrapment defense contemplates “government inducement of the crime,” Mathews, 485 U.S. at 63, 108 S.Ct. 883 (emphasis added), not government inducement of a related crime or any crime. Kopstein was clearly, and admittedly, not induced to possess child pornography and to initiate the chat, but that does not say whether Kopstein was induced to commit the offenses of conviction: ie., transport and shipment of child pornography.

“The question of entrapment is generally one for the jury, rather than for the court.” Id. Kopstein did not suppose that a child would want to look at child pornography, and expressed no interest in transporting it until the agent several times urged Kopstein to do so. So the initial question of fact was whether Kop-stein was induced by the agent to transport and ship images of child pornography involving other individuals and victims.

As the district court observed, Kop-stein’s entrapment defense “surely was not frivolous.”⁷ App. 235. But the undefined and inconsistent references to a “first step” offered insufficient guidance for the jury to untie the knotty issues of inducement. The court should have made clear that the critical inquiry concerned inducement of the transport and shipment, and not inducement of other conduct, however reprehensible.⁸

C

In addition to these two underlying sources of confusion, another problem in the supplemental instructions could only have left the jury more perplexed: inconsistent pronouncements on whether the government was required to “prove” entrapment or “disprove” entrapment. See, e.g., id. at 219 (“If you find there is some evidence that the Government agent took the first step to have the defendant transport or ship child pornography, then you go on to consider the other elements as to whether or not the Government has prov en entrapment and has disproven entrapment beyond a reasonable doubt.”).

D

The Government argues that, despite these errors and sources of confusion, the district court stated the standards correctly elsewhere in the transcript. We have, however, “reject[ed] the notion” that incorrect statements “are necessarily ‘cured’ so long as the charge contains the correct standard elsewhere. Our precedents do not stand for any such proposition. They emphasize, rather, that the instructions must be considered as a whole.” Hudson, 271 F.3d at 70. Prudence counsels vacatur when the instructions become sufficiently confused, as we emphasized in a civil case:

Reviewing [the judge’s] instructions as a whole, we find the mention of the correct standard inadequate. After reading and rereading the charge, we conclude that it was confusing as to whether intent to do wrong was required to find a violation of Ellison’s ... rights.... In light of this confusion, we do not know whether a correctly charged jury would have rendered a different verdict. Under the circumstances, the prudent course is to vacate the judgment of the district court and to remand for a new trial.

Id. at 70-71. Clear and adequate jury instructions are no less important when a criminal defendant’s liberty is at stake.

In sum, the jury instructions compounded the jury’s bewilderment regarding Kop-stein’s only viable defense. “[Bjecause our doubts are sufficient to call into question the fairness and integrity of [Kopstein’s] conviction,” that conviction must be vacated. Rossomando, 144 F.3d at 200-01; see also Hastings, 918 F.2d at 373; Velez, 652 F.2d at 262.

VII

The dissent can be treated briefly:

• The revolting particulars of Kopstein's exchanges with the agent, set out fulsomely in the dissent, demonstrate only that there is enough here to justify rejection of the entrapment defense — which no one is disputing. But conviction itself was properly reserved to the jury, acting under sufficiently useful instructions. The dissent, discounting that procedural nicety, finds that Kopstein “was not entrapped, but utterly predisposed.” Dissenting Opinion at 184. However, as the district court observed, Kopstein’s entrapment defense was “surely ... not frivolous,” App. 235, and even the government has not argued, either in the district court or on appeal, that it was.

• The dissent conflates two distinct questions of predisposition: (1) to receive sexualized images of the girl Kopstein met online, conduct with which he was not charged; and (2) the charged conduct, the transport and shipment of images of unrelated child pornography involving different girls. A jury might find, as the dissent does, that Kopstein’s predisposition to engage in other conduct bears upon his predisposition to transport and ship the child pornography solicited by the government agent. Then again, a jury might find that it does not.

• The dissent glosses over the last ten words of the jury note: “what does it mean to ‘disprove the defense of entrapment’ ”? Id. at 225. If the jury did not understand that, exactly what part of the entrapment defense did it understand?

• The dissent points out that the district court’s use of “term[s] of abeyance” are blessed by model instructions and by the acquiescence of Kopstein’s counsel during the reading of the initial instructions. But the jury’s later note specifically asked about the phrase “before you may render a verdict of not guilty,” suggesting confusion about why it should not “render” a verdict for Kopstein if the government did not disprove the defense of entrapment. Further guidance became necessary; but the supplemental instruction could only have deepened the confusion: “If you decide this issue of entrapment, you go on to decide whether or not the Government has proved beyond a reasonable doubt the three elements.... ” Id. at 220. At the risk of being obvious, this advice works only if the jury decides the issue of entrapment by finding there was none.

• The bouncing ball that a reader should follow going through the jury instructions is: the “first step.” The dissent argues that there was not “any need to define” it, Dissenting Op. at 196, because Kopstein initiated all of them. That is not so, see supra Parts V.B., VLB; but the argument proves too much, because, as the dissent recognizes, the jury could have considered as a first step Kopstein’s “possession of the images,” Dissenting Op. at 197, which may not be a first step to transporting or shipping them, and is in fact a different offense.

• The dissent sees no more than “minor” and “trifling misstatements,” id. at 184, and takes them one by one to mitigate their impact: the “district court might better have said” something else, id. at 193; or a specific error is harmless, id. at 195 (“In essence, the inconsistency favored Kop-stein and therefore did not prejudice him.”); or a misstatement was “corrected,” id. at 197-98. But a jury composed of laypersons cannot be expected to perform the work done in the dissent: grammatical parsing, subtle exegesis, rhetorical deconstruction, and editing for harmlessness. After all, two judges of this Court have found it difficult enough to follow the jury instructions, and with great respect it may be said that the 41-page dissent does not much dispel the confusion.⁹

CONCLUSION

For the foregoing reasons, we vacate Kopstein’s conviction and remand for a new trial.

Footnotes

1

. This section appears, in relevant part, on page 42 of the instructions given to the jury. Passim, the court, counsel, and the jury referred to instructions by page number.

2

. This section appears on page 44 of the instructions given to the jury.

3

. Maybe it was intended that the jury would understand that the "rendering” of the verdict would not take place until the jury's return to open court; but few lawyers and no laymen would intuit the distinction.

4

.This section appears on page 59 of the instructions given to the jury.

5

. It is undisputed by the government that Kopstein adequately raised this objection to the district court, which dismissed it because that was not the court’s "sense” of the instruction’s meaning. App. 223.

6

. Kopstein’s counsel pointed out possible jury confusion regarding inducement and the “first step,” but did not make a specific objection during or after the reading of the supplemental instructions. Review of this purported error is therefore governed by the plain error standard. See Fed.R.Crim.P. 30(d), 52(b). Even so, however, a confusing juiy instruction on the defendant's sole defense will constitute plain error. See Rossomando, 144 F.3d at 203 (even though Rosso-mando's counsel expressed satisfaction with supplemental instruction, "because the court’s initial charge could have utterly vitiated Rossomando’s defense, and because the jury’s request for further instruction is a concrete indication that it may in fact have done so, the failure of the supplemental charge to restore Rossomando’s defense critically undermines our confidence in Rossomando’s conviction, and warrants reversal for plain error”).

7

. By observing that the defense was not frivolous, we do not mean to express any view about the ultimate merit of the defense. A properly instructed jury might well conclude that Kopstein's desire to see "more naughty pics” of the "girl” with whom he was corresponding, or to “see more of [yo]u,” indicated a predisposition to engage, as a principal or as an inducer, in the transmission of child pornography. But the jury was not required to see the evidence in that light, and would have been equally entitled to conclude that Kopstein, left to his own devices and absent the prodding of the agent, would have contented himself with erotic "chat” and with the contemplation of his own collection of illegal child pornography.

8

. The prosecutor's trial summation urged the jury to speculate about what Kopstein would have done if his chat partner had been a real girl living nearby. See App. 158-59 ("And does anyone here think that if that location was on Long Island, this would only be a transportation of child pornography charge....”). Kopstein does not challenge the prosecutor's line of argument on appeal, but the prosecutor thus invited speculation on a subject that would likely further distract the jury from the conduct charged.

9

. Rather than attempt reconciliation of the transcript excerpts in the two competing opinions, the interested reader is invited to proceed directly to the transcript and to simply read the instructions aloud, in full. See Appendix at 160-225, United States v. Kopstein, No. 13-417 (2d Cir. July 17, 2013), ECF No. 28.