United States v. McKenzie

• Court: Court of Appeals for the First Circuit
• Decided: June 12, 2026
• Docket: 24-2087
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 24-2087

UNITED STATES OF AMERICA,

Appellee,

v.

DIMITRI MCKENZIE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Barron, Chief Judge, Howard and Kayatta, Circuit Judges.

Jeremiah R. Newhall, with whom Newhall Law Firm was on brief, for appellant. Karen L. Eisenstadt, Assistant United States Attorney, with whom Leah B. Foley, United States Attorney, was on brief, for appellee.

June 12, 2026 KAYATTA, Circuit Judge. In response to an online

advertisement for commercial sex, Dimitri McKenzie agreed to pay

for sex with "Bri," who he was told was fourteen years old.

Unbeknownst to McKenzie, "Bri" did not exist, and the ad had been

posted as part of an undercover operation conducted by federal law

enforcement. When McKenzie arrived at an agreed-upon hotel later

that night, agents arrested him. A federal jury subsequently

convicted him of attempted sex trafficking of a child, in violation

of 18 U.S.C. §§ 1591 and 1594.

McKenzie appeals his conviction, citing various alleged

errors in the trial proceedings and the judgment entered against

him. Because we find no merit in McKenzie's trial-related

arguments, we affirm his conviction. In so doing, we also clarify

the judgment as described below.

I.

A.

We provide the facts of this case with the following

glosses: Because McKenzie raises a challenge to the sufficiency

of the evidence, we relate the facts relevant to that challenge

"in the light most favorable to the prosecution"; as to the facts

relevant to McKenzie's other claims, "we provide a more or less

neutral summary" and "reserve further exposition of those facts

for our analysis of the claims themselves." United States v. Díaz-

Rosado, 857 F.3d 116, 117 (1st Cir. 2017) (citation modified).

- 2 - B.

This case arises from an online undercover operation

conducted in the Boston area by Homeland Security Investigations

(HSI).1 On November 2, 2022, HSI special agent Kristen Draper

posted an advertisement on a commercial-sex website.2 According

to testimony later given at trial, the ad showed two

"young-looking" adult women, fully clothed and with faces obscured

by emojis. The accompanying text read "fresh, tight, and ready

for a good time" and listed an age of "99 years old."3

Around 8:30 p.m., McKenzie texted the phone number

listed on the ad. Agent Draper responded, and the conversation

proceeded as follows4:

DRAPER: I got couple young and fresh. bri 14 yo and jes 12 yo. one hour is $400 with both or $300 for 1 some things are lil extra MCKENZIE: I'm not into anything under 18

1 This "sting" operation has given rise to at least two other cases that have reached this circuit recently. See United States v. Medina, 155 F.4th 11 (1st Cir. 2025), cert. denied, No. 25-6203, 2026 WL 79673 (U.S. Jan. 12, 2026) (mem.); United States v. Quraishi, No. 25-1115 (1st Cir. argued Sept. 3, 2025). 2 Multiple HSI agents participated in the operation. For the sake of simplicity, we use Agent Draper as a stand-in for the entire undercover team. 3 At trial, Agent Draper testified that the website does not allow a user to select an age under eighteen years old, so she intended the listed age of ninety-nine years old to indicate that the poster "couldn't post the actual age of the individuals being advertised." 4 We reproduce the messages here in their original form, aside from minor changes for clarity, which appear in brackets.

- 3 - DRAPER: ok no worries babe. hit me up if u change your mind

McKenzie responded twenty-two seconds later:

MCKENZIE: Feds DRAPER: your the feds? u gotta tell me MCKENZIE: Hell no You Definitely are DRAPER: nope. but just let us be. thanks MCKENZIE: I only have 100 Could you do that DRAPER: i could do it for one girl for 20 mins. so like a [quick visit] no extras def no anal wear condom MCKENZIE: Ok DRAPER: which girl. you like young and super tight or lil more experience with 14 yo MCKENZIE: 14

At that point, it was 8:52 p.m., and about twenty-two

minutes had passed since McKenzie initiated the conversation.

McKenzie then asked Agent Draper to "[v]erify" by sending a picture

of "Bri."5 When the picture did not come through, McKenzie texted,

"Im out I'm just really suspicious of this whole thing." But

sixteen seconds later, he followed up: "What's the address."

After Agent Draper sent the address for a hotel in Waltham,

Massachusetts, McKenzie asked, "Is there anyway you can confirm

you not the feds." The two then discussed how each could trust

that the other was not law enforcement. At one point, in response

to McKenzie's requests for verification, Agent Draper stated, "i

5 Because no "Bri" existed, we put her name in quotations.

- 4 - aint sending porn. thats some federal prison shit." Eventually,

McKenzie implored, "Please I want this I'm just scared."

In response, Agent Draper called McKenzie twice, but she

got no response either time. A few minutes later, McKenzie called

back, and Agent Draper picked up. During the ensuing conversation,

Agent Draper apparently intimated that "Bri" and "Jes" were her

daughters and agreed to provide a picture of "Bri." After the

call, when the picture did not immediately come, McKenzie called

again -- without an answer -- and then texted, "Hey" and "You still

there?" At that point, Agent Draper sent an age-regressed image

of an adult woman with the date scrawled on her palm; in the image,

the woman has a nose piercing and what appears to be a tattoo on

her wrist largely covered by her sleeve.6 Within moments, McKenzie

replied, "I'm on my way." Agent Draper then explained the

procedure: McKenzie would meet Agent Draper outside the hotel,

and, if she approved, she would give him the key card to a hotel

room where "Bri" would be waiting for him.

Before arriving, McKenzie texted once more, this time

asking whether Agent Draper was available for commercial sex. When

she said no and McKenzie called that suspicious, she retorted,

"Seriously dude I'm not tryna be rude but this is what we do... if

6 Agent Draper testified at trial that the image had been put through an age-regression application. McKenzie did not challenge this testimony below and does not do so before us, either.

- 5 - ur not interested that's cool." Within a minute, McKenzie

clarified, "I'm on my way [right now]."

Twenty minutes later, after stopping at an ATM to

withdraw $120, McKenzie met Agent Draper in the hotel parking lot.

It was roughly 10:37 p.m. The two confirmed the details of their

deal, McKenzie showed that he had the agreed-upon $100, and Agent

Draper handed him a room keycard. Agents then emerged and arrested

McKenzie.

II.

A federal grand jury in the District of Massachusetts

subsequently indicted McKenzie on one count of attempted sex

trafficking of a child, in violation of 18 U.S.C. § 1591(a)(1),

(b)(2) and § 1594(a). The case proceeded to trial, where, McKenzie

asserts, the district court committed several errors that

prejudiced his defense. We recount here only a sketch of the

proceedings, shading in the details later as we confront each

alleged error.

At trial, the government primarily relied on the

testimony of Agent Draper, accompanied by transcripts of the text

messages and phone calls between her and McKenzie. The defense

case consisted solely of McKenzie's testimony on his own behalf.

Based on that testimony, the defense argued that McKenzie had no

prior sexual interest in minors, that he did not actually believe

"Bri" was a minor, and that he went to the hotel intending only to

- 6 - "talk" to "Bri" and help her escape trafficking rather than to

have commercial sex.

After three days of deliberation, the jury returned a

guilty verdict.7 The district court entered judgment against

McKenzie and sentenced him to a term of imprisonment of 126 months.

III.

McKenzie's primary argument on appeal presents a

question of mens rea: What awareness of the fictional "Bri's" age

did McKenzie need to have to be guilty of attempted sex trafficking

of a minor?8

McKenzie argues that, because no actual minor was

involved in this case, the government needed to prove that he

believed "Bri" was under the age of eighteen. The government, for

its part, contends that it only needed to show that McKenzie acted

with reckless disregard as to "Bri's" age. We hold that, as to

the age of the person solicited, the mens rea element of attempted

7 On the second day of deliberations, a Friday, the jury reported being deadlocked and the court gave an Allen charge. See Allen v. United States, 164 U.S. 492, 501 (1896). Because one juror had a flight the next morning, the court gave the parties a choice: either press on with deliberations and risk a mistrial if the jury did not reach a verdict by the end of the day, or replace the departing juror with the first alternate and resume deliberations the following Monday. At McKenzie's request, the court proceeded with the latter option, and the jury convicted McKenzie on Monday morning. 8 Throughout this opinion, we use the term "minor" to refer to a person under the age of eighteen and the term "adult" to refer to a person aged eighteen or older.

- 7 - sex trafficking of a minor is satisfied by proof that the defendant

either believed, or recklessly disregarded a substantial and

unjustifiable risk, that the person solicited for commercial sex

was under the age of eighteen. Our reasoning follows.

The issue of mens rea arises in two of McKenzie's

challenges on appeal -- one to the district court's jury

instructions and one to the sufficiency of the evidence. The two

challenges make essentially the same argument: Absent the

involvement of an actual minor, a conviction for attempted sex

trafficking of a minor requires that the defendant actually

believed the person he solicited for commercial sex was under the

age of eighteen; reckless disregard as to the person's age,

McKenzie contends, is not enough.9

The material facts regarding this issue are undisputed.

The government presented no evidence that McKenzie's conduct

involved any actual minor. Both individuals pictured in the

9 McKenzie originally framed his claim of instructional error more broadly, seemingly contending that reckless disregard as to age would not be sufficient even if an actual minor was involved. However, at oral argument, counsel for McKenzie conceded -- sensibly in view of the statutory text -- that a defendant could be convicted of attempted sex trafficking of a minor based on a mens rea of reckless disregard as to age if the defendant's conduct involved an actual minor. In light of that concession, we view McKenzie's instructional-error and sufficiency-of-the-evidence challenges as coextensively asserting that reckless disregard as to age is only insufficient where, as here, no actual minor was involved.

- 8 - original advertisement that McKenzie responded to were adults.

The picture of "Bri" that Agent Draper sent McKenzie depicted an

adult put through age-regression software. And no minor was in

the hotel room that Agent Draper directed McKenzie to right before

his arrest.

In relevant part, the district court's mens rea

instruction stated:

So what [the government has] got to prove beyond a reasonable doubt is that Mr. McKenzie, not what he testified to, but he intended to entice, obtain, patronize, or solicit a person to engage in a commercial sex act.

[And that] Mr. McKenzie knew that the object of the commercial sex act was a child who had not obtained the age of 18 years or that he was acting in reckless disregard of whether that person was 18 or not. And so you have in mind -- first of all, he has to have intended sex for money. Now this is only an attempt, because there really wasn't a person here in the room. An attempt to do that. And then the second point is he has got to know or at least genuinely believe that the person who is being offered for the commercial sex act is a minor under the age of 18 years or he was acting in reckless disregard, he didn't care whether the person was or was not.

McKenzie timely objected to the inclusion of the

"reckless disregard" mens rea standard, thereby preserving his

claim of instructional error for appeal. See United States v.

Stefanik, 674 F.3d 71, 76 (1st Cir. 2012). He also preserved his

sufficiency-of-the-evidence claim by moving for a judgment of

- 9 - acquittal at the close of the government's case and renewing that

motion at the close of evidence. See id. at 74. Both challenges

present a question of law, which we review de novo. Id. at 76

(claim of instructional legal error); id. at 74 (sufficiency of

the evidence).10

B.

As this issue is essentially one of statutory

interpretation, "we begin with the language of the statute itself."

In re Fin. Oversight & Mgmt. Bd. for P.R., 919 F.3d 121, 128 (1st

Cir. 2019). The statute in question defines the offense of sex

trafficking of a minor as, in relevant part:

(a) . . . knowingly . . . (1) . . . recruit[ing], entic[ing], harbor[ing], transport[ing], provid[ing], obtain[ing], advertis[ing], maintain[ing], patroniz[ing], or solicit[ing] by any means a person . . . knowing, or, . . . in reckless disregard of the fact, . . . that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act . . . .

10 McKenzie's instructional-error claim challenges only the inclusion of the "reckless disregard" mens rea standard in the jury instructions, not the form or wording of the instructions. See Stefanik, 674 F.3d at 76 (differentiating between categorical challenges to the giving of an instruction at all and challenges to the "form or wording" of an instruction (quoting Uphoff Figueroa v. Alejandro, 597 F.3d 423, 434 (1st Cir. 2010))). Likewise, McKenzie's sufficiency-of-the-evidence argument challenges only the absence of an actual minor. He does not contend that the evidence could not support a finding of reckless disregard as to age. Nor does he challenge any other element of the offense.

- 10 - 18 U.S.C. § 1591(a).11 Section 1594(a), in turn, makes it an

offense to "attempt[] to violate section . . . 1591." Id.

§ 1594(a).

As relevant here, then, the substantive offense of sex

trafficking of a minor requires two mental states: (1) knowingly

soliciting a person; while (2) knowing that, or recklessly

disregarding the fact that, a minor will be caused to engage in

commercial sex by virtue of that solicitation. We are concerned

here only with the latter mental state, under which reckless

disregard as to age is clearly sufficient for a conviction of sex

trafficking of a minor. Although the statute does not define

"reckless disregard," caselaw establishes that "[a] person acts

recklessly, in the most common formulation, when he 'consciously

disregards a substantial and unjustifiable risk' attached to his

conduct, in 'gross deviation' from accepted standards." Borden v.

United States, 593 U.S. 420, 427 (2021) (quoting Model Penal Code

§ 2.02(2)(c) (A.L.I. 1985)); see also Neder v. United States, 527

U.S. 1, 21 (1999) ("Where Congress uses terms that have accumulated

settled meaning under the common law, a court must infer, unless

11 For convenience, we refer to the menagerie of actions proscribed by § 1591(a)(1) -- recruiting, enticing, harboring, transporting, providing, obtaining, advertising, maintaining, patronizing, and soliciting -- as, simply, "soliciting" or "solicitation." We note, however, that the statute requires knowledge, not just reckless disregard, of age when the charge is based on advertising. 18 U.S.C. § 1591(a).

- 11 - the statute otherwise dictates, that Congress means to incorporate

the established meaning of these terms." (citation modified)).

As for attempted sex trafficking of a minor, McKenzie

concedes that reckless disregard as to age generally suffices for

a conviction. He also concedes that an attempt conviction does

not generally require that the person solicited be an actual minor

(such as where an adult, undercover officer poses as a minor).

See, e.g., Bronson v. United States, No. 22-1745, 2023 WL 9900908,

at *1 (1st Cir. Sep. 5, 2023) ("[Petitioner's] contention that he

is actually innocent of the crime [of attempted sex trafficking of

a minor] because there was no actual minor involved here fails to

present a debatable claim."). McKenzie argues instead that, where

the person solicited is not actually a minor, reckless disregard

is not sufficient: The defendant must believe the person solicited

is a minor. We therefore must determine whether this reading of

the statute is correct.

C.

The parties each assert that out-of-circuit caselaw

resolves this issue. We are unconvinced.

The government, for one, points out that several out-

of-circuit cases involving undercover officers posing as minors

list reckless disregard as to age as a sufficient mens rea for

attempted sex trafficking of a minor. See, e.g., United States v.

Haas, 986 F.3d 467, 478 (4th Cir. 2021) ("To sustain this

- 12 - attempted-sex-trafficking-of-a-child conviction, the government

must have proven that . . . [the defendant] knew or recklessly

disregarded that the person was under the age of

eighteen . . . ."). Yet, in each such case, the reviewing court

either rested its decision on a finding of knowledge or else was

not asked to decide the particular issue before us. See id.

(addressing claim that defendant did not engage in a substantial

step); United States v. Puff, No. 23-4457, 2025 WL 830439, at *2–3

(4th Cir. Mar. 17, 2025) (unpublished opinion) (per curiam)

(concluding evidence supported finding of knowledge); United

States v. Tunchez, 772 F. App'x 105, 106 (5th Cir. 2019)

(unpublished opinion) (per curiam) (reviewing facts suggesting

knowledge); United States v. Zam Lian Mung, 989 F.3d 639, 642–43

(8th Cir. 2021) (rejecting, on plain-error review, argument that

reckless-disregard standard did not apply to sex trafficking of a

minor absent allegations of force, fraud, or coercion of the

minor); United States v. Baker, No. 24-1242, 2025 WL 342862, at *1

(9th Cir. Jan. 30, 2025) (unpublished opinion) (deciding evidence

supported finding of knowledge); United States v. Robinson, 993

F.3d 839, 844 (10th Cir. 2021) (addressing argument that defendant

did not intend for target to engage in commercial sex acts until

after she was no longer a minor).

McKenzie, for his part, reads the out-of-circuit caselaw

as requiring that, where the person solicited either is an adult

- 13 - posing as a minor or does not exist at all, the defendant believe

the person solicited was a minor. In doing so, he points primarily

to the Eighth Circuit's decision in United States v. Wolff, 796

F.3d 972 (8th Cir. 2015) (per curiam). The defendant there had

been ensnared in a sting operation when he tried to arrange for

commercial sex with a sixteen-year-old. Id. at 973. Faced with

Wolff's argument that a conviction required an actual minor, the

Eighth Circuit explained that "the government must prove the

requisite intent applicable to the predicate offense, but proof of

the ability to actually carry out the predicate offense is not

required for conviction under an attempt statute." Id. at 974–75.

In the end, "Wolff's subjective intent to engage in a commercial

sex act with someone he believed to be a minor female," combined

with the steps he took toward that goal, "constitute[d] attempted

sex trafficking of a minor in violation of 18 U.S.C. § 1594(a)."

Id. at 975. That Wolff's belief as to age was sufficient, though,

does not mean that reckless disregard would not have been as well.

See United States v. Saldaña-Rivera, 914 F.3d 721, 725 (1st Cir.

2019) (observing that courts may "cho[o]se to rest on obviously

sufficient grounds for affirmance without suggesting that other

grounds [are] also not available"); see also United States v.

Medina, 155 F.4th 11, 20–22 (1st Cir. 2025) (similarly approving

of jury instructions that required knowledge as to age, without

indicating that a reckless-disregard-as-to-age instruction would

- 14 - have been improper), cert. denied, No. 25-6203, 2026 WL 79673 (U.S.

Jan. 12, 2026) (mem.).

McKenzie also points to United States v. Jayavarman, 871

F.3d 1050 (9th Cir. 2017). In Jayavarman, the Ninth Circuit

rejected the argument that an attempt to produce and transport a

visual depiction of a minor engaged in sexually explicit conduct,

in violation of 18 U.S.C. § 2251(c), required the presence of an

actual minor, holding that "a defendant may be convicted of an

attempt to violate § 2251(c) if he believes that the victim is a

minor, even if the victim turns out to be an adult." Id. at 1059.

McKenzie reads this as requiring such belief when there is no

actual minor involved. And, because a completed offense under

§ 2251(c) imposes strict liability as to age, id. at 1058, McKenzie

argues we should not understand an attempt to violate § 1591(a) to

require any lower mens rea than an attempt to violate § 2251(c).

There are two problems with this reasoning. First, as

with Wolff, Jayavarman's conclusion that belief as to age suffices

for an attempt to violate § 2251(c) does not mean that such belief

is required. Second, even if it did, § 2251(c)'s strict liability

regime in fact makes it an inappropriate comparator for attempted

sex trafficking of a minor. This is because "[t]he rationale for

punishing factually impossible attempts" -- i.e., where no minor

is present -- "is that the defendant has taken substantial steps

with a culpable mens rea." Kenneth W. Simons, Mistake and

- 15 - Impossibility, Law and Fact, and Culpability: A Speculative Essay,

81 J. Crim. L. & Criminology 447, 480 n.109 (1990). "This

rationale, however, does not extend to strict liability, which

requires no culpability at all." Id. In contrast, § 1591(a)'s

"reckless disregard" is a culpable mens rea, requiring some

awareness of a substantial risk of criminality. For this reason,

we find Jayavarman's holding as to § 2251(c) unhelpful in

understanding § 1591(a).

So, as far as the precedent cited by the parties goes,

we are left with a blank slate upon which to write our answer.

D.

We turn, then, to the federal law of attempt in general.

"There is no statutory definition of attempt anywhere in the

federal law." United States v. Dworken, 855 F.2d 12, 16 (1st Cir.

1988). Instead, this circuit turns to the Model Penal Code to

define "attempt." United States v. Benítez-Beltrán, 892 F.3d 462,

468 (1st Cir. 2018). Under that definition, "we have viewed the

two key elements of the offense of attempt as (1) an intent to

commit the substantive offense and (2) a substantial step towards

its commission." United States v. Doyon, 194 F.3d 207, 210 (1st

Cir. 1999) (citation modified).

However, that "intent" need not attach to all elements

of the substantive offense. Rather, as the commentary to the Model

Penal Code explains, the requisite intent "extends to the conduct

- 16 - of the actor and to the results that his conduct causes" but "need

not encompass all of the circumstances included in the formal

definition of the substantive offense." A.L.I., Model Penal Code

& Commentaries § 5.01 cmt. 2, at 301 (1985). These "circumstances"

"refer to the objective situation that the law requires to exist,"

such as the traditional requirement that a burglary take place at

night. Id. at 301 n.9. As to these circumstances, "it is

sufficient that [the defendant] acts with the culpability that is

required for commission of the completed crime." Id. at 301; see

also Simons, supra, at 478–84 (discussing application of different

mental states to circumstances and results for attempt liability).

In arguing that the government must show he subjectively

believed "Bri" was under eighteen to convict, McKenzie points to

the second element of attempt, the "substantial step," which

requires that the defendant "purposely do[] or omit[] to do

anything that, under the circumstances as he believes them to be,

is an act or omission constituting a substantial step in a course

of conduct planned to culminate in his commission of the crime."

Dworken, 855 F.2d at 16 (emphasis added) (quoting Model Penal Code

§ 5.01(1)(c) (A.L.I. 1985)). However, the language "under the

circumstances as he believes them to be" simply ensures that, where

a defendant believes a circumstance of the offense exists, the

fact that the defendant is mistaken in that belief will not prevent

a conviction for attempt. A.L.I., supra, § 5.01 cmt. 2, at 302

- 17 - n.12. It does not override the principle that, as to such

circumstances, an attempt defendant need only "act[] with the kind

of culpability otherwise required for commission of the crime."

Dworken, 855 F.2d at 16 (quoting Model Penal Code § 5.01(1)(c)

(A.L.I. 1985)).

For example, suppose a law makes it a crime to knowingly

injure a person while recklessly disregarding that the person is

an FBI agent. See Herbert Wechsler, William Kenneth Jones & Harold

L. Korn, The Treatment of Inchoate Crimes in the Model Penal Code

of the American Law Institute: Attempt, Solicitation, and

Conspiracy, 61 Colum. L. Rev. 571, 575–76 (1961).12 Under the

foregoing framework for attempt liability, the injury is the result

that a defendant must intend, while "the fact that the victim is

an agent would be only a circumstance as to which the actor [must

have] the kind of culpability otherwise required for commission of

the crime." Id. (quotation marks omitted). There would thus be

an attempt to violate the statute if the actor attempted to injure

a person, while recklessly disregarding the risk that the victim

may be an FBI agent. Id. This is true regardless of the actor's

subjective beliefs because "the language 'under the circumstances

12 We have relied on this article before in understanding the law of attempt, as it "was written by the Chief Reporter and Special Consultants of the Model Penal Code, and was substantially adopted in the official commentary to the Code." Dworken, 855 F.2d at 16–17, 17 n.2.

- 18 - as he believes them to be' . . . does not affect the analysis of

cases like" this FBI agent hypothetical. A.L.I., supra, § 5.01

cmt. 2, at 302 n.12. The actor may, in fact, genuinely believe

that the person is not an FBI agent, but the actor may also believe

in circumstances that create a substantial and unjustifiable risk

that the person is an FBI agent, such as that the person is wearing

an FBI jacket and displaying an FBI badge. See also id. at 301–03,

303 n.13 (dissecting similar hypotheticals).

To apply this framework to sex trafficking of a minor,

then, we must identify the conduct, result, and circumstances of

the offense. That offense, as we have noted, prohibits knowingly

soliciting a person while knowing or recklessly disregarding "that

the person has not attained the age of 18 years and will be caused

to engage in a commercial sex act." 18 U.S.C. § 1591(a). The act

of soliciting a person is plainly "the conduct of the actor,"

A.L.I., supra, § 5.01 cmt. 2, at 301, to which the "intent to

commit the substantive offense," Doyon, 194 F.3d at 210 (quotation

marks omitted), must extend for an attempt conviction. Similarly,

the language "will be caused to engage in a commercial sex act"

suggests that commercial sex is "the result[] that [the

defendant's] conduct causes," to which such intent also must apply.

A.L.I., supra, § 5.01 cmt. 2, at 301.

The age of the person solicited, on the other hand, is

a "circumstance." Id.; see also id. at 301–02 (describing "the

- 19 - age of the victim" as a circumstance of the offense of "sexual

intercourse with a female under a prescribed age"). It is

separated from the "conduct" of solicitation in § 1591(a) by a

paragraph break and a distinct mens rea. And, unlike causing a

person to engage in a commercial sex act, the age of the person

solicited cannot be a result of the defendant's conduct since the

defendant does not cause that person to be a minor. For an

attempted-sex-trafficking-of-a-minor conviction, then, as to the

circumstance of the age of the person solicited, "it is sufficient

that [the defendant] acts with the culpability that is required

for commission of the completed crime," id. at 301 -- to wit, with

either knowledge or reckless disregard.

Therefore, the federal law of attempt liability suggests

that an attempt to violate § 1591(a) -- i.e., an attempt to commit

sex trafficking of a minor under § 1594(a) -- may be found where

a defendant intends to solicit a person for commercial sex, if the

defendant recklessly disregards whether the person solicited is

under eighteen. That is so, even if the defendant believes the

person to be an adult. This framework does not distinguish between

those cases where the person solicited is actually a minor and

those where the person solicited either turns out to be an adult

posing as a minor or does not exist at all. Rather, the foregoing

analysis indicates that, contrary to McKenzie's arguments, a mens

rea of reckless disregard as to age suffices for an attempt

- 20 - conviction even where the defendant's conduct involved no actual

minor.

E.

Nevertheless, McKenzie seems to point to the statutory

text, which refers to "the fact" "that the person has not attained

the age of 18 years," 18 U.S.C. § 1591(a), to imply that an attempt

conviction requires the actual existence of a person younger than

eighteen. See Fact, Black's Law Dictionary (12th ed. 2024)

(defining "fact" as "[s]omething that actually exists"). Under

that reading, it might make sense to require that an actual minor

be solicited for an attempt conviction relying on the reckless-

disregard standard. On the other hand, several considerations

convince us that the better reading is that no actual minor need

be involved.

First, we must interpret § 1591(a), the substantive

offense statute, not on its own but through the lens of § 1594(a),

the attempt statute. We deal here with an "attempt[] to violate

section . . . 1591." 18 U.S.C. § 1594(a). For such an attempt,

not every fact necessary for the completed offense needs to be

present, since "proof of the ability to actually carry out the

predicate offense is not required for conviction under an attempt

statute." Wolff, 796 F.3d at 974–75. McKenzie develops no

argument why the "fact" of an actual minor would be uniquely

necessary for an attempt conviction.

- 21 - Second, requiring the presence of an actual minor would

clash to some extent with indications of congressional intent in

the most recent legislation to meaningfully amend § 1591(a), the

Justice for Victims of Trafficking Act of 2015 (JVTA), Pub. L.

No. 114-22, 129 Stat. 227. See Bittner v. United States, 598 U.S.

85, 96–98 (2023) (considering "drafting history" -- i.e.,

amendments to a statutory provision over time -- as one of several

"contextual clues" toward that provision's meaning). The JVTA

amended § 1591(a) by adding three new prohibited

actions -- patronizing, soliciting, and advertising -- and

clarifying that knowledge as to age is required where the action

alleged is advertising a person for commercial sex. §§ 108(a)(1),

118(b)(1)–(2), 129 Stat. at 238, 247. In a statement of purpose

in the JVTA, Congress expressed its intent to "mak[e] absolutely

clear . . . that criminals who purchase sexual acts from human

trafficking victims may be arrested, prosecuted, and convicted as

sex trafficking offenders." Id. § 109(4), 129 Stat. at 239. In

so doing, Congress favorably cited an Eighth Circuit opinion that

reinstated the attempted-sex-trafficking convictions of two

defendants caught in a sting operation in which adult law-

enforcement agents posed as a man offering his girlfriend's minor

daughters for commercial sex, using age-regressed photos of adult

female officers. Id. § 109(3), 129 Stat. at 239 (citing United

States v. Jungers, 702 F.3d 1066 (8th Cir. 2013)); see Bittner,

- 22 - 598 U.S. at 98 n.6 ("A preamble, purpose clause, or recital is a

permissible indicator of meaning." (quoting Antonin Scalia & Bryan

Garner, Reading Law: The Interpretation of Legal Texts 217

(2012))).

In other words, in the JVTA, Congress simultaneously

(1) implicitly affirmed that a conviction for attempted sex

trafficking of a minor may properly arise from a sting operation

involving no actual minor, (2) did not amend § 1591(a) or § 1594(a)

to clearly require knowledge or belief as to age for such a

conviction, and (3) did amend § 1591(a) to require such knowledge

in different circumstances (i.e., where the defendant only

advertised a person for commercial sex). To be clear, the Eighth

Circuit's decision in Jungers did not speak directly to the mens

rea required for an attempt conviction. Nor would requiring the

government to prove belief as to age in sting-operation cases

prevent law enforcement from gaining convictions from such

operations. See, e.g., Tunchez, 772 F. App'x at 106 (affirming

conviction arising from similar sting operation based on

defendant's belief that undercover officer was a minor). Still,

the JVTA shows that Congress knows how to unequivocally require a

higher mens rea for certain sex trafficking convictions. That it

did not do so for attempted sex trafficking of a minor supports

reading the statute to allow an attempt conviction, even absent an

actual minor, based on reckless disregard as to age.

- 23 - Finally, the policy behind modern attempt liability

suggests no actual minor need be involved where the defendant has

the culpable mental state of recklessness. McKenzie argues that,

where an actual minor is involved, the defendant "threatens real

harm," but "[a] defendant who seeks sexual contact with an adult

or an imaginary person, while being reckless about their age, does

not." However, between "the dangerousness of the actor's conduct"

and "the dangerousness of the actor, as a person manifesting a

firm disposition to commit a crime," "the proper focus of attention

is the actor's disposition." A.L.I., supra, § 5.01 cmt. 1, at

298; see also Dworken, 855 F.2d at 16 ("The function of this

definition [of attempt] is to make amenable to the corrective

process those persons who have manifested a propensity to engage

in dangerous criminal activity."). A defendant who solicits

commercial sex from a person, recklessly disregarding a

substantial risk that the person is under eighteen, has shown a

willingness to endanger a minor, regardless of whether the person

solicited was under eighteen (or existed at all).

F.

The foregoing points toward the conclusion that a

defendant may be convicted of attempted sex trafficking of a minor

where he acts with reckless disregard as to whether the person

solicited is a minor, even if that person is, in fact, an adult or

a nonexistent creation of law enforcement.

- 24 - McKenzie, though, contends that such a conclusion would

permit a conviction in the face of legal impossibility. A "pure

legal impossibility . . . arises when no statute proscribes the

result that the defendant expected, desired, and intended to

achieve." United States v. Fernandez, 722 F.3d 1, 31 (1st Cir.

2013) (citation modified). We have said before that "[p]ure legal

impossibility is always a defense," including when the charged

crime is an inchoate offense. United States v. Carter, 15 F.4th

26, 36 (1st Cir. 2021) (quoting Fernandez, 722 F.3d at 31). After

all, a person cannot be convicted of attempting to do something

that itself is not unlawful. See Fernandez, 722 F.3d at 31 ("[A]

hunter cannot be convicted of attempting to shoot a deer if the

law does not prohibit shooting deer in the first place." (quoting

United States v. Hsu, 155 F.3d 189, 199 n.16 (3d Cir. 1998))).13

13 In contrast, "factual impossibility," in which "a circumstance unknown to the defendant prevents him from achieving a specific objective," United States v. Dixon, 449 F.3d 194, 201–02 (1st Cir. 2006), is "not a defense to liability for inchoate offenses such as conspiracy or attempt," Carter, 15 F.4th at 47 (citation modified). For example, if a defendant believes he is soliciting a seventeen-year-old for commercial sex but is actually soliciting a nineteen-year-old, it would be factually impossible for him to complete the offense of sex trafficking of a minor, but that factual impossibility would not preclude an attempt conviction. See United States v. Chavez, 29 F.4th 1223, 1228 (10th Cir. 2022). "Pure legal impossibility" may also be distinguished from "mixed fact/law impossibility," which "involve[s] a factual mistake relating to a legal determination." Fernandez, 722 F.3d at 31 (quoting Ira P. Robbins, Attempting the Impossible: The Emerging Consensus, 23 Harv. J. on Legis. 377, 394 (1986)). In such a situation, "the actor's goal is illegal, but commission of the offense is somehow rendered impossible by attendant

- 25 - From this premise, McKenzie's argument proceeds as

follows. The district court's jury instructions allowed the jury

to convict McKenzie if he acted with reckless disregard as to

"Bri's" age, even if he truly believed "Bri" was an adult. But if

he truly believed "Bri" was an adult, then, at most, he intended

to solicit commercial sex with an adult. And § 1591(a) does not

prohibit solicitation of commercial sex with an adult.14

Therefore, the jury instructions permitted a conviction for an

attempt to commit a legally impossible offense.

We are not persuaded. In framing this as a case of legal

impossibility, McKenzie misconstrues the doctrine. In his view,

"[t]he test is whether, if all things were as the defendant

believed them to be, the defendant's intended acts would have

violated a statute." In fact, the pertinent question is whether

the law "proscribe[s] the goal that the defendant sought to

achieve." Hsu, 155 F.3d at 199 n.16 (quoting Ira P. Robbins,

Attempting the Impossible: The Emerging Consensus, 23 Harv. J. on

circumstances." See Hsu, 155 F.3d at 199 n.16. Most federal courts of appeal do not recognize "mixed fact/law impossibility" as a defense, Hsu, 155 F.3d at 199 & n.16, though we have not weighed in one way or the other, Fernandez, 722 F.3d at 31 (distinguishing this type of impossibility from pure legal impossibility). 14 Section 1591(a) does criminalize the solicitation of an adult where force, threats, fraud, or coercion cause the adult to engage in commercial sex. The government does not press any argument that this alternate ground for criminal liability applies to McKenzie's case.

- 26 - Legis. 377, 389 (1986)). Even under the situation described by

McKenzie, his goal was not the solicitation of commercial sex with

an adult but rather the solicitation of commercial sex with a

person whose potential minority he recklessly disregarded. That

McKenzie believed that person to be an adult does not mean that he

intended it so. He may have, instead, intended simply to solicit

commercial sex, without caring whether the person solicited was an

adult or a minor. That does not make out a legal impossibility

defense. See generally Simons, supra, at 478–83, 479 n.105

(dissecting hypothetical where "the crime of receiving stolen

property requires only reckless, conscious disregard of the risk

that they are stolen," defendant receives property believing it is

not stolen, property is in fact not stolen, and yet defendant's

belief is reckless, under same Model Penal Code-derived definition

of "reckless" we use here).

This conception of legal impossibility may be narrower

than McKenzie had hoped, but that is a function of the statute.

Although we have said that "[p]ure legal impossibility is always

a defense," Carter, 15 F.4th at 36 (quoting Fernandez, 722 F.3d at

31), legal impossibility must be adjudged through the lens of the

offense as defined by statute, see United States v. Bailey, 444

U.S. 394, 406 (1980) ("Principles derived from common law as well

as precepts suggested by the American Law Institute must bow to

legislative mandates."). Congress has chosen to prohibit not just

- 27 - the knowing solicitation of a minor for commercial sex, but the

knowing solicitation of a person for commercial sex, while knowing

or recklessly disregarding that such person is a minor. To qualify

for the defense of legal impossibility, then, it is not enough

that McKenzie simply believed that "Bri" was an adult in the face

of a substantial risk that she was not. See A.L.I., supra, § 5.01

cmt. 2, at 302 n.12, 303 n.13 (explaining that, as to offense of

injuring person while recklessly unaware of FBI position, "the

actor's mistaken belief as to the particular circumstances is made

irrelevant by law").

That this is not a case of legal impossibility becomes

clear once one tweaks the facts. Suppose McKenzie genuinely

believed "Bri" was an adult, but that belief was mistaken -- "Bri"

was actually a minor. McKenzie's proposed legal-impossibility

analysis would equally apply to this scenario because, if all

things were as he believed them to be, he would only be trying to

solicit an adult and could therefore not be guilty of attempted

sex trafficking of a minor. This scenario, however, would not be

one of legal impossibility, but of mistake of fact -- which would

not be a cognizable defense to attempted sex trafficking of a

minor. See United States v. Encarnación-Ruiz, 787 F.3d 581, 585

(1st Cir. 2015) (construing defendant's mistaken belief as to

victim's age as a mistake-of-fact defense). "It is a basic

principle of criminal law that ignorance or mistake of fact may

- 28 - provide a defense to a crime if it negates the requisite element

of intent." United States v. Mardirosian, 602 F.3d 1, 8 (1st Cir.

2010) (citation modified). But "an actor whose mistake was

reckless cannot use that mistake as a defense to a crime of

recklessness." 1 Wharton's Criminal Law § 13:2 (16th ed. 2021).

So McKenzie's belief that "Bri" was an adult would not give rise

to an issue of legal impossibility if "Bri" were a minor, so long

as his belief was reckless.15 Likewise, it does not give rise to

an issue of legal impossibility even though "Bri" was not a minor.

G.

Finally, McKenzie expresses a concern, understandable in

some sense, that, under our holding today, the offense of attempted

sex trafficking of a minor "would capture a host of innocent

conduct between consenting youthful adults." We feel confident

that this is not so for two reasons.

First, these statutory provisions cover only the knowing

solicitation of a person, knowing or recklessly disregarding that

such person "will be caused to engage in a commercial sex act."

18 U.S.C. § 1591(a); see also id. § 1591(e)(3) (defining

15 Indeed, McKenzie argues only that "[t]he charge as instructed to the jury was legally impossible without an actual minor" and concedes that, "[i]f the [person solicited] had been a minor, then reckless disregard of her age would be an appropriate jury charge." He provides no reason, however, why one situation -- no minor -- is a legal impossibility but the other -- actual minor -- is not, if the defendant's reckless belief is the same in both situations.

- 29 - "commercial sex act" as "any sex act, on account of which anything

of value is given to or received by any person"). They would not,

for example, apply to an individual who meets a young-looking but

adult person online or in a bar and has consensual, noncommercial

sex with that person.16

Second, the "reckless disregard" standard is not a light

one. It requires that the defendant be aware of the risk that the

person solicited is a minor, that the risk be substantial, and

that ignoring that risk represent a "gross deviation" from the

norm. Borden, 593 U.S. at 427; see also Michael T. Cahill,

Attempt, Reckless Homicide, and the Design of Criminal Law, 78 U.

Colo. L. Rev. 879, 902 (2007) (explaining that "there is not always

a lot of moral difference between knowledge and recklessness"

because a reckless person still "recognizes a significant risk"

but "is interested in performing a certain act, or achieving some

other result, regardless of that risk"). We thus find it unlikely

McKenzie counters that "there are numerous federal crimes 16

prohibiting sexual contact with minors without limitation to commercial sex, and Congress could add a recklessness mens rea to any of them." But to the extent that we presume that Congress, in enacting a law, considers the law's practical ramifications within the context of other laws, that presumption applies to the other laws that Congress has enacted, not to those it might enact in some hypothetical future. See, e.g., Norman Singer & Shambie Singer, 2B Sutherland Statutes and Statutory Construction § 51.2 (7th ed. 2025) ("Courts assume that a legislature always has in mind previous statutes relating to the same subject when it enacts a new provision."). Similarly, that some forms of commercial sex may be lawful in some states, as McKenzie points out, makes no difference to our understanding of this federal statute.

- 30 - that we today construct a trap for the unwary. Rather, we feel

secure this "trap" will only capture actors who intend to solicit

another person for commercial sex, recognize that the person very

well may be a minor, and continue in their conduct all the same.

H.

We therefore hold that a defendant may be convicted of

attempted sex trafficking of a minor, in violation of 18 U.S.C.

§§ 1591(a)(1) and 1594(a), where he acts in reckless disregard of

a substantial and unjustifiable risk that the person solicited is

under eighteen -- regardless of whether the person solicited turns

out to actually be under eighteen. That being so, we find no error

in the district court's jury instructions and no merit in

McKenzie's sufficiency-of-the-evidence argument.

IV.

Next, we consider McKenzie's argument that the district

court erred in refusing to instruct the jury on entrapment. We

find no cause for reversal here.

We review de novo a preserved challenge to a district

court's refusal to give an entrapment instruction. United States

v. Dávila-Nieves, 670 F.3d 1, 9 (1st Cir. 2012). "To obtain an

entrapment instruction, the defendant must show, with 'some hard

evidence,' that (1) the government induced the commission of the

charged crime and (2) he was not otherwise predisposed to commit

it." United States v. O'Donovan, 126 F.4th 17, 40 (1st Cir. 2025)

- 31 - (quoting United States v. Sandoval, 6 F.4th 63, 100 (1st Cir.

2021)). "In other words, the record must contain evidence that

makes the entrapment theory 'plausible' or 'superficially

reasonable.'" United States v. Pérez-Rodríguez, 13 F.4th 1, 19

(1st Cir. 2021) (quoting United States v. Gamache, 156 F.3d 1, 9

(1st Cir. 1998)). In reviewing the record, we must take the facts

in the light most favorable to the defendant and indulge all

reasonable inferences to his benefit. Id.

We begin -- and end -- with the inducement prong. To

establish inducement, a defendant must show that government agents

engaged in conduct "that would cause a person not otherwise

predisposed to commit a crime to do so." United States v. Hinkel,

837 F.3d 111, 117 (1st Cir. 2016). In that sense, the inducement

must be "improper." Pérez-Rodríguez, 13 F.4th at 17. A sting

operation that "[m]erely provid[es] an opportunity to commit a

crime is not improper inducement." O'Donovan, 126 F.4th at 40.

Rather, improper inducement requires "opportunity plus something

else." Id. This "plus" factor may consist of "intimidation and

threats, 'dogged insistence,' playing on the defendant's

sympathies, [or] 'repeated suggestions.'" Pérez-Rodríguez, 13

F.4th at 17 (quoting United States v. Gendron, 18 F.3d 955, 961

(1st Cir. 1994)); see also Dávila-Nieves, 670 F.3d at 10 ("Typical

plus factors are excessive pressure by the government upon the

- 32 - defendant or the government's taking advantage of an alternative,

non-criminal type of motive." (citation modified)).

Here, McKenzie points to several facts allegedly showing

improper inducement. To start, he emphasizes that, when Agent

Draper first offered him twelve-year-old "Jes" and fourteen-year-

old "Bri," McKenzie responded that he was "not into anything under

18"; yet, he says, the government persisted. He also argues that

Agent Draper used photos of adult women as another form of

inducement. Next, he suggests Agent Draper downplayed the harm of

commercial sex with a minor by comparing it to child pornography.

And he contends that, toward the end of their conversation, Agent

Draper "cajoled [him], telling him that they had no time for

talking, it was time for action." Finally, McKenzie points out

that it took two hours for Agent Draper to talk him into the

transaction. Not one of these facts evinces improper inducement.

First, the fact that McKenzie said at the outset that he

was "not into anything under 18" is of no help to him. The record

is clear that Agent Draper at that point ended the exchange, which

later recommenced only because McKenzie again reached out to Agent

Draper, without any intervening indication that she had "anything"

over eighteen to offer. See United States v. Medina-Ortiz, 160

F.4th 11, 17 (1st Cir. 2025) (rejecting inducement argument where,

after undercover officer told defendant she was fourteen,

- 33 - "[defendant] (despite having time to consider his actions during

the communication pause) reconnected with 'her'").

The photos that Agent Draper used did not give rise to

inducement, either. McKenzie implies that it was improper for

Agent Draper to use adult women in the original ad and the later

verification photo of "Bri." The unstated premise is that Agent

Draper was luring McKenzie in by intentionally making "Bri" look

like an adult. But Agent Draper was doing the opposite: using

age-regression software to make an adult look like a minor, thereby

buttressing -- rather than belying -- Agent Draper's express

representations that she had nothing to offer McKenzie if he did

not want a minor.

Nor was there anything improper in Agent Draper's

expressed hesitation to send a pornographic picture of "Bri" on

the ground that it could land her in federal prison. McKenzie

contends that we should read into Agent Draper's statement an

attempt to downplay the seriousness of having commercial sex with

a minor. While we have found that "downplaying the harm caused by

child abuse" can be a plus factor, Pérez-Rodríguez, 13 F.4th at 20

(citation modified), nothing in Agent Draper's comment about the

penalties associated with child pornography suggests that

commercial sex trafficking does not harm the subject minor. Cf.

id. (highlighting that government agent "repeatedly stated that

- 34 - this imagined [sexual] encounter would be a positive experience

for the minor"); see also id. at 20–21 (collecting cases).

Similarly, Agent Draper did not cajole McKenzie in any

way. In the portion of the text transcripts to which McKenzie

points, Agent Draper merely said, "if ur not interested that's

cool," "Lol k just don't know if ur for real or just wanna talk,"

and asked him twice whether he was close to the hotel. Even

drawing reasonable inferences in McKenzie's favor, we do not read

Agent Draper's messages as saying, as McKenzie reads them, that

"they had no time for talking, it was time for action." Agent

Draper at no point said the deal would be off the table if McKenzie

did not arrive soon; she merely asked where he was. In fact, at

the beginning of this part of the exchange, she gave him yet

another chance to walk away if he was not interested in commercial

sex with "Bri."

Finally, we see nothing improper in the duration of Agent

Draper's connections with McKenzie. Certainly, the length of the

government's interactions with a defendant may suggest inducement.

Compare Gamache, 156 F.3d at 11 (stressing that "the Government

persevered for almost seven months to elicit the offense conduct"),

with Medina-Ortiz, 160 F.4th at 14–16 (finding no inducement in

operation spanning several days). But, here, McKenzie took less

than twenty-two minutes from the start of the interaction to make

clear his intent to have sex with a fourteen-year-old. From that

- 35 - point, McKenzie focused on trying to confirm Agent Draper was not

a "fed" then showed up at the agreed-upon hotel a little over two

hours after their conversation began. In so proceeding, McKenzie

"demonstrate[d] an eagerness to commit the crime rather than

reluctance that was overcome only by inducement." Dávila-Nieves,

670 F.3d at 11.

Because McKenzie failed to produce any evidence of

improper inducement on the part of Agent Draper, the district court

did not err in refusing to give his requested entrapment

instruction.17

McKenzie also challenges the district court's

evidentiary rulings excluding three sets of evidence he sought to

introduce in his defense: (1) a church sermon McKenzie gave shortly

before his arrest, (2) testimony from McKenzie's father regarding

McKenzie's good character and state of mind, and

(3) cross-examination of Agent Draper regarding McKenzie's lack of

a criminal record and the penalties for child pornography.

17 We note that McKenzie also argues the district court applied the wrong standard below. However, our conclusion on de novo review that no entrapment instruction was warranted renders harmless any error in the district court's standard. See United States v. Symonevich, 688 F.3d 12, 24 (1st Cir. 2012) ("An error mandates reversal only when it is prejudicial based on a review of the entire record."). Similarly, given that McKenzie's challenge falters on the inducement prong of entrapment, we need not consider McKenzie's arguments on the predisposition prong. See Pérez- Rodríguez, 13 F.4th at 19.

- 36 - "To preserve a claim of error in a ruling to exclude

evidence, a party need only inform the court of the substance of

the evidence by an offer of proof." United States v. Saemisch, 18

F.4th 50, 59 (1st Cir. 2021) (citing Fed. R. Evid. 103(a)(2)).

Where the claim has not been preserved, we apply plain-error

review, which requires an appellant to show "(1) that an error

occurred (2) which was clear or obvious and which not only

(3) affected the defendant's substantial rights, but also

(4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." United States v.

Encarnacion, 26 F.4th 490, 504 (1st Cir. 2022) (quoting United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). Where the

claim has been preserved, we review the district court's decision

for abuse of discretion. Saemisch, 18 F.4th at 59. Even under

this standard, though, we will not reverse "if the error was

harmless, that is, if it is highly probable that the error did not

affect the outcome of the case." Neece v. City of Chicopee, 106

F.4th 83, 93 (1st Cir. 2024) (citation modified).

As to the substantive rules applied to evidentiary

challenges, relevance serves as the touchstone. Irrelevant

evidence is inadmissible at trial. Fed. R. Evid. 402. Evidence

is relevant only if: "(a) it has any tendency to make a fact more

or less probable than it would be without the evidence; and (b) the

fact is of consequence in determining the action." Fed. R.

- 37 - Evid. 401. Of course, other rules further limit the admissibility

of relevant evidence, but preservation and relevance suffice to

guide us through McKenzie's evidentiary challenges.

First, McKenzie claims error in the district court's

exclusion of a sermon McKenzie gave at his church on October 2,

2022, one month before his arrest. In the sermon, McKenzie

referred to himself as "somebody here who has transgressed against

God," discussed his loneliness, and explained the need to "go to

God and pray and let him clean you up." After McKenzie and the

government filed motions in limine on the subject, the district

court excluded the sermon as irrelevant. McKenzie argues the

district court erred because the sermon was relevant to corroborate

his trial testimony that "he sought adult prostitutes out of

loneliness in the year leading up to his arrest," as well as to

rebut the government's argument that he fabricated that testimony

to support his defense.

We review for abuse of discretion and find no error in

the district court's decision.18 McKenzie's sermon falters at the

doorstep of relevance under Rule 401. Whether McKenzie felt lonely

18 The government asserts that we should apply plain-error review because McKenzie did not tie his sermon to his state of mind below. Because we conclude McKenzie loses even under an abuse-of-discretion standard, we need not address the government's waiver argument. See Medina, 155 F.4th at 21 n.6.

- 38 - or sought out commercial sex with adults has no "tendency to make

[the] fact more or less probable" that he attempted to solicit

commercial sex with "Bri" while recklessly disregarding a

substantial risk that she was a minor. Fed. R. Evid. 401. These

facts may have spoken to McKenzie's motive for seeking out

commercial sex generally, but McKenzie's conviction for attempted

sex trafficking did not hinge on motive. See Medina, 155 F.4th at

21 (distinguishing intent from motive). The district court did

not abuse its discretion in excluding this evidence as irrelevant.

McKenzie also challenges the district court's exclusion

of proposed testimony from his father. A week before trial, the

government filed a motion in limine addressing his father's

potential testimony regarding McKenzie's religious beliefs and

lack of sexual interest in minors. The motion asked the district

court "to compel the defense to make an offer of proof as to the

expected testimony of [McKenzie's father] and to exclude

questioning in areas that call for speculation, hearsay, or

inadmissible opinion of character evidence." McKenzie responded

with his own motion in limine "to admit evidence of defendant's

state of mind." The motion described his father's testimony as

"regarding [the McKenzies'] faith, world view, and the concepts

that (1) humans can not comprehend God's eternal plan, and (2) God

offers redemption to sinners through good works." The district

- 39 - court addressed McKenzie's motion orally, stating, "there's a

motion in limine to admit evidence of the defendant's state of

mind, and three matters have been set forth there. None of them

is relevant. They're all excluded."19 When defense counsel pressed

the court regarding McKenzie's father, specifically whether, if

McKenzie testified that his religion impacted his decision on the

day in question, his father could then be permitted to testify,

the court elaborated, "It's advisory. I've made my ruling. I

don't know what's going to happen. We'll see."

Now, on appeal, McKenzie asks us to find error in that

advisory, pretrial ruling that the proffered testimony by

McKenzie's father would not be relevant. Generally, where a

defendant raises an evidentiary issue in a motion in limine, the

issue will be preserved for appeal if the district court rejects

the defendant's argument unconditionally. Encarnacion, 26 F.4th

at 504; see also Fed. R. Evid. 103(b). Where the district court's

ruling is conditional, though, the defendant must re-raise the

issue at trial to preserve his appellate rights. Id. Here, the

district court made its ruling with regard to McKenzie's father's

testimony conditional by labelling the ruling "advisory" and

suggesting that McKenzie's testimony might change the court's

19 The "three matters" referred to comprise: (1) the sermon; (2) McKenzie's father's testimony regarding his religious beliefs; and (3) notes from McKenzie's phone, the exclusion of which McKenzie does not challenge here.

- 40 - mind. McKenzie never sought to introduce any of his father's

testimony at trial thereafter, failing to preserve his claim for

appeal. See United States v. Grullon, 996 F.3d 21, 31 (1st Cir.

2021) (finding evidentiary claim unpreserved where district court

made "preliminary" ruling and defendant "made no attempt to raise

the . . . evidence during trial").

The entirety of McKenzie's challenge with respect to his

father's testimony is thus subject to plain-error review. However,

McKenzie has failed to make any plain-error argument on appeal.

As a result, we treat the challenge as waived entirely. See United

States v. Martínez-Mercado, 132 F.4th 61, 68–69 (1st Cir. 2025)

("A defendant on appeal waives a forfeited claim when his brief

fails to even mention plain error, let alone argue for its

application." (citation modified)).

We next turn to the district court's exclusion of

testimony regarding McKenzie's lack of a criminal record and the

penalties for child pornography.

During cross-examination of Agent Draper, defense

counsel asked, "After, um, Mr. McKenzie was arrested, did you check

to see if he had ever been arrested for anything before?" The

government objected, and the district court sustained the

objection without further discussion. McKenzie argues only that

this exclusion constituted error because his lack of a criminal

- 41 - record was relevant to the propensity prong of his proposed

entrapment defense. But given the district court's finding that

McKenzie failed to make even a plausible showing of improper

inducement -- and our affirmance of that finding -- McKenzie's

propensity to commit the crime (or lack thereof) was irrelevant.

For a similar reason, we find no reversible error in the

exclusion of testimony regarding the penalties for child

pornography. Earlier in the cross-examination of Agent Draper,

defense counsel requested the court's permission to ask "a limited

question suggesting that the penalties for child pornography are

similar to the penalties for this crime." The court denied that

request. McKenzie claims the testimony would have been relevant

to his "downplaying" theory of inducement in his entrapment

defense. But our finding that Agent Draper's reference to child

pornography in her text messages with McKenzie did not constitute

improper inducement renders harmless any error in excluding this

evidence. Even with the child-pornography penalties, McKenzie

would not be entitled to an entrapment instruction.

VI.

Finally, McKenzie contends that the specific judgment

entered by the district court has erroneously deprived him of

certain sentence-related benefits under the First Step Act of 2018,

Pub. L. No. 115-391, 132 Stat. 5194.

- 42 - The First Step Act grants some prisoners time credits

toward their sentences for completing "evidence-based recidivism

reduction programming." 18 U.S.C. § 3632(d)(4)(A). A prisoner

serving a sentence under 18 U.S.C. § 1594 is eligible for such

programming, but a prisoner serving a sentence under 18 U.S.C.

§ 1591 is not. 18 U.S.C. § 3632(d)(4)(D)(xxvii). The district

court's judgment describes McKenzie's offense as "Attempted Sex

Trafficking of a Child," and lists as the statutory sections

violated, "18 USC § 1591(a)(1), (b)(2) and 18 USC § 1594(a)."

Based on the inclusion of § 1591 in the judgment, McKenzie tells

us, the Bureau of Prisons (BOP) has deemed him ineligible for the

First Step Act's time credits. The government does not dispute

that McKenzie, who was convicted only of an attempt under § 1594,

should be eligible for such time credits. The question is how to

remedy this situation.

McKenzie asks that we remand for the district court to

correct the judgment under Federal Rule of Criminal Procedure 36.

Pursuant to Rule 36, "the court may at any time correct a clerical

error in a judgment." Fed. R. Crim. P. 36; see, e.g., United

States v. Ahmed, 51 F.4th 12, 19 n.4 (1st Cir. 2022) (remanding to

allow parties to request Rule 36 correction where defendant was

charged with substantive healthcare fraud but judgment incorrectly

listed conviction as conspiracy to commit healthcare fraud). But

no clerical error occurred here. Because § 1594(a) covers attempts

- 43 - to commit a variety of offenses,20 the judgment needed to include

statutory references to § 1591(a)(1) and (b)(2) to clarify which

offense was attempted and what penalties attached.21 And "[t]he

inclusion of statutory references to both the [attempt] statute

and the sections describing the object of the [attempt] does not

transform the judgment into one that describes a conviction of the

substantive crime." United States v. Warren, 5 F.4th 1078, 1081

(9th Cir. 2021). After all, under "Nature of Offense," the

judgment correctly states, "Attempted Sex Trafficking of a Child."

This case, then, does not fit within Rule 36's remit for clerical

errors.

In the alternative, McKenzie asks the panel to state

that his attempt conviction "is not legally equivalent to a

conviction under 18 U.S.C. § 1591," at least for purposes of the

First Step Act. We agree with this approach, which has already

been adopted by the Ninth Circuit in an analogous case. See

Warren, 5 F.4th at 1081 n.2 ("[Defendant] now has the opportunity

to present to the BOP this opinion, which construes the judgment

to reflect that Defendant committed a single offense under 18

U.S.C. § 1594(c)."); see also United States v. Phillips, No. CR

20 In full, § 1594(a) reads, "Whoever attempts to violate section 1581, 1583, 1584, 1589, 1590, or 1591 shall be punishable in the same manner as a completed violation of that section." 21 Section 1591(a)(1) provides the substantive offense, while § 1591(b)(2) provides the penalty.

- 44 - 13-286, 2022 WL 17415077, at *3 (E.D. La. Dec. 5, 2022) (following

a similar approach). The First Step Act specifically makes

prisoners serving a sentence under § 1594 eligible for its time

credits. But, as we have explained, a judgment of conviction under

§ 1594 must include a reference to the underlying substantive

offense. Thus, under the BOP's alleged reading, every prisoner

convicted under § 1594 would be held ineligible for the First Step

Act's time credits, in contravention of the Act's direct statutory

mandate. We therefore clarify that McKenzie has been convicted

only under 18 U.S.C. § 1594, not 18 U.S.C. § 1591.

VII.

For the foregoing reasons, we find no reversible error

and affirm McKenzie's conviction under 18 U.S.C. § 1594.

- 45 -