United States v. Perez-Rodriguez

13 F.4th 1

• Court: Court of Appeals for the First Circuit
• Decided: September 2, 2021
• Docket: 19-1538P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-1538

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL PÉREZ-RODRÍGUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Kayatta, Lipez, and Barron, Circuit Judges.

Linda A. Backiel for appellant. Julia Meconiates, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá- Almonte, Assistant United States Attorney, were on brief, for appellee.

September 2, 2021 LIPEZ, Circuit Judge. Rafael Pérez-Rodríguez was

convicted by a jury of attempted enticement of a minor for unlawful

sexual activity in violation of 18 U.S.C. § 2422(b). He was

apprehended through a sting operation in which a government agent

created a profile on an adults-only dating application posing as

a gay adult man, and, after being contacted by Pérez, then offered

to arrange a sexual encounter with his minor "boyfriend." Pérez

appeals on several grounds, including insufficiency of the

evidence and the denial of a jury instruction on the entrapment

defense. While we find Pérez's challenge to the sufficiency of

the evidence meritless, we conclude that the district court

committed plain error in failing to give the entrapment

instruction. We therefore vacate the conviction and remand for a

new trial.

I.

In 2015, Ryan Seig, a special agent with the child

exploitation unit of Homeland Security Investigations ("HSI"),

conducted a sting operation using the geosocial networking

application Grindr. Agent Seig testified that the purpose of the

application is "to talk and usually meet with someone else who

shares your interests." On cross-examination, he added "it's

social networking among homosexuals." Grindr describes itself as

"the largest social networking app for gay, bi, trans, and queer

people." About, Grindr, https://www.grindr.com/about/ (last

- 2 - visited August 25, 2021). Grindr allows users to create profiles

and to exchange messages with other users with profiles in their

geographic area. Per Agent Seig's testimony, "[a] profile is a

small blurb about what you are looking for, possibly what you look

like, and sort of a general description of who you are and what

you want." Grindr requires users to be eighteen years of age or

older and does not allow individuals to use the platform to seek

sexual encounters with minors.

Agent Seig created a Grindr profile under the name "Dave

W." He wrote in his profile, "Looking for young fun or to share

my young fun." He testified that he chose this text as a "veiled"

reference to a sexual encounter with a minor, explaining that

"someone who was familiar with the way pedophiles communicate on

the internet could read this and know what it meant." The profile

also described "Dave W." as "Muscular, White, Single."

On December 30, 2015, the Dave undercover profile

received a message from a profile with the name "Mirando," a

profile created by Pérez. Dave and "Mirando" exchanged messages

on Grindr, and then moved to text messaging. The precise language

of the messages is crucial to this case.1 Thus, we reproduce key

parts of the exchange in full. The conversation began as follows:

1The messages were primarily in Spanish. We draw from the certified English translations that were admitted into evidence.

- 3 - Pérez: Hello what are you doing?

Dave: Hey what's up

Pérez: Let's see you

Dave: Cool, do you like really young guys?

Pérez: Yes Age? I started at 8

Dave: Me? 35, but my boyfriend is young

Pérez: Hahhaha Okk How old is he? What does your boyfriend like?

Dave: He likes everything :) He is very young, what age do you like?

Pérez: The younger the better I don't discriminate I started at 8 hehehhe So you tell me What does he like to do? We are close, we can come up with some fun From there up I do it all

Dave: Do you understand English? I speak only a little Spanish My boyfriend is 11 years old. Do you want to play with him?

Pérez: Mmmm yessss Where is he? I speak little only a little English? Share pics?? You tell me when and where??? Do you prefer to call? Yes, I want to play

Dave: We live in[] San Juan. We're free next week.

- 4 - Pérez: Ok Have whatsapp? Send me pics? Can you now?

Dave: Yes I'm busy with a party

Pérez: Ok, but you are close Can you get away? Can you*

Dave: Last night, no haha :) Do you want anal with him or oral?

Pérez: Everything I want the 3 of us to play You for a while and me for a while. You like?

Dave: Me too Yes

Pérez: Send me something to see you playing with him I like taboo

Dave: Me too :)

Pérez: Have a pic? Are you with him at the party

Dave: I don't want to send a pic because I won't know who you are until we meet Yes, he is here You can take pics if this happens. Just no faces I don't have whatsapp But I can text

Pérez: Text is better

Pérez then sent two photos of himself to "Dave," and Dave provided

Pérez with a telephone number.

The next day, December 31, Pérez sent Dave a text message

to continue the conversation. He again expressed sexual interest

in "Dave's" minor "boyfriend." Dave messaged, "we're going to

- 5 - have a lot of fun, friend. :) . . . Him you and I[.]" Pérez

requested pictures of "Dave." Pérez asked Dave questions about

his relationship with the minor. ("How did you get him?" and "How

long have you had him?").

On January 1, Pérez messaged Dave and said, "Happy New

Year." He again said, "I want your boyfriend." Pérez and Dave

discussed their availability for a meeting that week. They

exchanged messages about what Pérez wants to do during the sexual

encounter. Pérez asked several questions about how Dave met the

minor, what the minor's parents think, and whether "Dave's" family

knows about the minor. "Dave's" answers included "He's my friend"

and "I am a 'good influence.'"

On January 2, Dave initiated the conversation. He

writes, "Just saying hi. Very busy with family! Happy new

year ;)[.]" The following day, Dave and Pérez discussed meeting.

Pérez: Let's see each other tomorrow to get to know you

Dave: Ok, what time can you do it?

Pérez: Write me when you wake up I get up early Where should we meet?

Dave: Are we using your house or mine for the threesome?

Pérez: Yes. I live alone. But if it's at home, then it should be in the afternoon But I want to see you before to get to know you and see what you want to do so that I'm comfortable

Dave: I understand. Me too.

- 6 - Pérez: Ok

Dave: Where is a good place for us all to meet?

Pérez: Where should we meet

Dave: We can meet and then go to your house for sex with all of us? I can meet anywhere. It doesn't matter. We'll talk in the morning when you know more concerning your schedule

Pérez: Yes Depends on what we talk about and we'll go I am free. Write to me tomorrow.

Pérez then requested a picture of Dave again. He asked Dave

several more questions about his relationship with the minor. Dave

said that the minor is "excited, happy" about the planned sexual

encounter. They agreed to meet at Guaynabo Plaza. Pérez stated

"first I see you" and asked "Can you come alone?" Dave replied,

"I can leave him at my place and you can follow me there, ok?"

Pérez responded, "Yes."

The following morning, Monday, January 4, Dave started

the conversation again, initiating this exchange:

Dave: Can you meet at 3?

Pérez: Ok

Dave: Cool

Dave: I spoke with him and he's excited :) He's worrie[d] about what clothes to bring LOL What parking do you want to meet in? Are you busy?

- 7 - Pérez: Hahahhahha Go to Guaynabo Plaza and I'll tell you where we'll meet Remember that I want to talk to you first. I need to feel safe.

Dave: Yes, me too, it's a good idea. I am also scared.

Pérez: That's why I want to see you by yourself. I would like to know you first.

Dave: Yes, he will be at my house

Dave: Waiting with the XBOX and beers LOL

Pérez: What are you like, physically? Mmmmm I like beer He doesn't get in trouble for drinking?

Dave: Like in my profile. 5'9" or 5'10". Brown hair.

Pérez: Gym body?

Dave: Yes, I lift weights 4-5 days a week I am not fat

Pérez: And what's he like?

Dave: Skinny, like a young guy. He is Boricua, with short hair.

Dave: He likes soccer jerseys? He's very intelligent and friendly

Pérez: Let's see one another now to talk and be horny about what we're going to do.

- 8 - The two men eventually agreed to meet at the Martinez Nadal train

station at 4 p.m.

At the appointed time, Agent Seig drove to the station

and parked his vehicle in the parking lot. Seig had informed other

members of his unit about the meeting, and several additional HSI

agents were also waiting in the parking lot. Pérez drove into the

parking lot, pulled up alongside Agent Seig's vehicle, and got out

of his car. HSI agents immediately arrested him.

On January 27, 2016, a grand jury returned an indictment

charging Pérez with one count of attempted enticement of a minor

in violation of 18 U.S.C. § 2422(b). Prior to commencement of the

jury trial, the parties submitted proposed jury instructions.

Pérez filed a separate ex parte request for an entrapment jury

instruction.

A two-day jury trial was held beginning on May 15, 2017.

The government's case primarily consisted of Agent Seig's

testimony and the transcripts of the Grindr and text messages.2

Pérez did not present any witnesses.3 At the close of the evidence,

2The government also presented testimony from two other HSI agents present at the arrest. An AT&T security manager also explained how he confirmed that the phone which sent the messages belonged to Pérez.

3Pérez attempted to present character witnesses, but the court excluded the testimony as impermissible under the Federal Rules of Evidence because there was no pertinent character trait associated with the crime charged.

- 9 - Pérez moved for acquittal under Rule 29. The district court denied

the motion. The parties participated in a charging conference,

which was not recorded. Nevertheless, the record indicates that

Pérez renewed his request for an entrapment jury instruction at

that conference because the district court denied the entrapment

instruction in a docket entry, stating, "The ruling is based on

the arguments presented by the government and defendant's response

during the charging conference in connection with predisposition.

In the end, the evidence presented at trial did not justify an

entrapment instruction." Before instructing the jury, the court

asked the parties if there were "any objections to the

instructions." Pérez did not raise any objections at that time.

After charging the jury, the district court did not invite

objections from the parties. Pérez did not raise any objection.

The jury deliberated for less than one hour and returned a guilty

verdict. On May 14, 2019, Pérez was sentenced to 151 months of

incarceration.

Pérez timely filed this appeal. In addition to

challenging the sufficiency of the evidence, he asserts that the

district court erred in rejecting his request for an entrapment

instruction.4

Pérez raises four additional claims of error: (1) inadequate 4

questioning during voir dire, (2) violations of the Jones Act, see 48 U.S.C. § 864 (requiring that all trial proceedings in the

- 10 - II.

We review de novo the district court's denial of Pérez's

properly preserved claim that the evidence presented at trial was

insufficient to support the jury's verdict. See United States v.

Tanco-Baez, 942 F.3d 7, 15 (1st Cir. 2019). In evaluating a

sufficiency of the evidence claim, "we examine the evidence, both

direct and circumstantial, in the light most favorable to the

prosecution and decide whether that evidence, including all

plausible inferences drawn therefrom, would allow a rational

factfinder to conclude beyond a reasonable doubt that the defendant

committed the charged count or crime." United States v. Velázquez-

Aponte, 940 F.3d 785, 798 (1st Cir. 2019) (quoting United States

v. Díaz-Rosado, 857 F.3d 116, 120–21 (1st Cir. 2017)).

A. The Elements of the Offense

Pérez was found guilty of violating 18 U.S.C. § 2422(b),

which provides:

Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18

District of Puerto Rico be conducted in English), and the Court Reporter Act, see 28 U.S.C. § 753(b) (requiring federal court proceedings to be recorded verbatim), (3) improper opinion testimony, and (4) improper exclusion of a character witness. Except for some observations on the voir dire process, we do not address the other issues raised given our conclusion that Pérez's conviction must be vacated on the basis of the court's failure to give an entrapment instruction.

- 11 - years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

To support a conviction under the attempt portion of the statute,

the government must show that the defendant attempted to "(1) use

a facility of interstate commerce (2) to knowingly persuade,

induce, entice, or coerce (3) an individual under the age of 18

(4) to engage in illegal sexual activity."5 United States v. Berk,

652 F.3d 132, 138 (1st Cir. 2011) (quoting United States v.

Gravenhorst, 190 F. App'x 1, 3 (1st Cir. 2006) (per curiam)).

To prove an attempt, the government must establish both

a specific intent to commit the substantive offense and a

substantial step toward its commission. Id. at 140. Hence, for

conviction under § 2422, the specific intent required is the intent

to persuade, induce, entice, or coerce a minor into engaging in

illegal sexual activity. We have interpreted this requirement as

broadly requiring an intent "to achieve a mental state -- a minor's

assent -- regardless of the accused's intentions vis-à-vis the

actual consummation of sexual activities with the minor." United

States v. Dwinells, 508 F.3d 63, 71 (1st Cir. 2007) (emphasis

omitted).

5Here, the government argued, the illegal sexual activity was sexual assault under Puerto Rico law. See P.R. Laws Ann. tit. 33, § 5191(a) (defining sexual assault to include sex with someone under age sixteen).

- 12 - A substantial step toward commission of an offense is

"less than what is necessary to complete the substantive crime,

but more than 'mere preparation.'" Berk, 652 F.3d at 140 (quoting

United States v. Piesak, 521 F.3d 41, 44 (1st Cir. 2008)). This

requirement serves to "distinguish between those who express

criminal aims without doing much to act on them and others who

have proved themselves dangerous by taking a substantial step down

a path of conduct reasonably calculated to end in the substantive

offense." United States v. Doyon, 194 F.3d 207, 211 (1st Cir.

1999). We have found that a variety of actions, including actions

short of meeting the minor in person, can constitute a substantial

step toward a § 2422(b) offense. See United States v. Rang, 919

F.3d 113, 121 (1st Cir. 2019) (defendant reserved hotel room and

sought consent from the minor's mother for a "sleepover" with the

minor); Berk, 652 F.3d at 140 (defendant offered to help a woman

find housing in exchange for sex with her daughter and sent the

woman leads about homes for rent); Gravenhorst, 190 F. App'x at 4

(defendant sent minors sexually explicit messages and proposed

meeting in person). But see Berk, 652 F.3d at 140-41 (noting that

"explicit sexual talk alone" does not constitute a substantial

step toward a § 2422(b) offense (citing United States v. Gladish,

536 F.3d 646, 652 (7th Cir. 2008))). Direct communication with a

minor, real or fictitious, is not required. A person can commit

a § 2422(b) offense by communicating with an adult who acts as an

- 13 - "intermediary" between the defendant and a minor. See Berk, 652

F.3d at 140.

B. The Sufficiency of the Evidence Against Pérez

On the first element, intent, Pérez argues that the

government failed to provide enough evidence to allow a jury to

conclude that he intended to persuade, induce, entice, or coerce

a minor. He asserts: "There was no reason to do that [i.e.,

persuade, induce, entice, or coerce] here because the agent offered

[a minor] he presented as already ready, willing, and experienced,

'lik[ing] everything.'" In his view, the evidence, at most, could

allow the jury to conclude that Pérez communicated with an adult

with the intention of "bringing about a meeting at which prohibited

conduct was supposed to, or likely to occur."

Pérez's focus on the fictitious minor's supposed sexual

experience and willing participation is seriously misplaced. A

child who has previously been sexually abused or is otherwise

depicted as "experienced" can still be a victim of persuasion,

inducement, enticement, or coercion. See United States v. Hinkel,

837 F.3d 111, 116 (1st Cir. 2016) (upholding a § 2422(b) conviction

where the minor was described as "15 but experienced"). And a

child's expression that he "like[s] it" and wants to engage in

illegal sexual activity does not mean that persuasion, inducement,

enticement, or coercion could not possibly play a role. See

Dwinells, 508 F.3d at 67 (upholding a § 2422(b) conviction where

- 14 - law enforcement agents posing as minors responded positively to

the defendant's sexual advances, including one fictitious minor

who "assured him that she would consent" to sexual activity in

person). To suggest otherwise is to misunderstand the nature of

child sexual abuse. See United States v. Gonyer, 761 F.3d 157,

167 (1st Cir. 2014) (describing the process of a sexual predator

"grooming" a child to form an emotional connection which would

lead the child to be persuaded to engage in sexual activity);

United States v. Brand, 467 F.3d 179, 203 (2d Cir. 2006) ("Child

sexual abuse is often effectuated following a period of 'grooming'

and the sexualization of the relationship." (quoting Sana Loue,

Legal and Epidemiological Aspects of Child Maltreatment, 19 J.

Legal Med. 471, 479 (1998))).

It was reasonable for the jury to believe that the

fictitious eleven-year-old boy Dave "offered" to Pérez would not

participate in the planned sexual encounter absent persuasion,

inducement, coercion, or enticement -- at a minimum, "implicit

coaxing or encouragement." See United States v. Montijo-Maysonet,

974 F.3d 34, 42 (1st Cir. 2020) ("[T]he four verbs Congress

used -- including 'entice' and 'induce' -- plainly reach implicit

coaxing or encouragement designed to 'achieve . . . the minor's

assent' to unlawful sex[.]" (second omission in original) (quoting

Dwinells, 508 F.3d at 71)). And it was reasonable for the jury to

conclude that Pérez must have been cognizant of that reality and

- 15 - was relying on Dave to affect his "boyfriend's" mental state such

that the minor would participate. Although Agent Seig's text

messages can be read to imply that Dave had already groomed the

minor for the sexual activity, the jury could reasonably infer

that Pérez intended to use Dave as an intermediary to "entice"

(meaning "to draw on by arousing hope or desire: allure, attract,"

id.) the minor into participating in illegal sexual activity with

Pérez on January 4, 2016.

On the second element, substantial step, Pérez

emphasizes that he never communicated directly with a minor. Such

communication is not required to establish a substantial step

towards commission of a § 2422(b) offense. In Berk, we recognized

that "a defendant can be convicted [of a § 2422(b) offense] even

if the relevant communications are with an intermediary." 652

F.3d at 140. Berk involved communications between the defendant

and parents of minor children, but we did not state that only

parents could serve as intermediaries in the commission of a

§ 2422(b) offense. See id. Indeed, the rationale for relying on

a sexual predator's use of intermediaries extends to any adult

with sufficient influence or control over a minor. As explained

by the Third Circuit, in an opinion cited in Berk, § 2422(b) is

"part of an overall policy to aggressively combat computer-related

sex crimes against children[] [and] [i]t would be wholly

inconsistent with the purpose and policy of the statute to allow

- 16 - sexual predators to use adult intermediaries to shield themselves

from prosecution." United States v. Nestor, 574 F.3d 159, 162 (3d

Cir. 2009); see also Montijo-Maysonet, 974 F.3d at 42 ("Congress

. . . meant to cast a broad net (consistent with the Constitution)

to catch predators who use the Internet to lure children into

sexual encounters." (citing H.R. Rep. 105-557, at 21 (1998), as

reprinted in 1998 U.S.C.C.A.N. 678, 678–79)).

The "broad net" plainly must cover a defendant who

attempted to use any intermediary adult perceived to have

sufficient sway to "lead a child to participate in sexual

activity." See United States v. Douglas, 626 F.3d 161, 164 (2d

Cir. 2010). The defendant's understanding of the nature and degree

of the adult's control over the minor is a question of fact for

the jury. Here, the jury could reasonably infer that an adult man

whose "boyfriend" is a minor, and who confidently invites another

man to have sex with the child, would have been viewed by the

defendant as someone with the power to elicit the minor's assent

to illegal sexual activity.6

Pérez similarly argues a lack of evidence of a

substantial step because the evidence showed he arrived at the

6 Pérez mischaracterizes the evidence by describing Dave as "a part-time tutor" to the minor. While Dave did mention that the minor was his student, he more importantly described him as his "boyfriend" and a person with whom he had an ongoing sexual relationship for six months.

- 17 - parking lot to meet Dave, not the minor. We agree with the district

court that "the act of traveling to meet an intermediary . . . has

been held sufficient to establish a 'substantial step.'" United

States v. Pérez-Rodríguez, No. 16-041 2016, WL 7442650, at *2

(D.P.R. Dec. 27, 2016) (citing Berk, 652 F.3d at 140). Drawing

all inferences in favor of the government, a rational jury could

find that Pérez's communications with Dave and his subsequent

arrival at the meeting he arranged with Dave constituted a

substantial step to persuade, induce, entice, or coerce a minor.

Thus, there was sufficient evidence to convict and the motion for

acquittal was properly denied.

III.

The district court declined to instruct the jury as to

the elements of Pérez's primary defense, entrapment, because, in

its view, the record did not contain sufficient evidence to warrant

the instruction. Pérez argues that this omission denied him a

fair trial.

A. Standard of Review

Preserved objections to the denial of a requested jury

instruction are subject to plenary review. United States v. Joost,

92 F.3d 7, 12 (1st Cir. 1996). If, however, the defendant fails

to preserve his claim of entitlement to a jury instruction, the

claim is forfeited, and we review the district court's decision

under the plain error standard of Rule 52(b) of the Federal Rules

- 18 - of Criminal Procedure. United States v. Baltas, 236 F.3d 27, 36

(1st Cir. 2001). It has been the longstanding rule of this circuit

to treat a challenge to jury instructions as forfeited if the

defendant fails to object to the instructions after the judge has

charged the jury, regardless of whether he previously brought the

matter to the judge's attention. United States v. Wilkinson, 926

F.2d 22, 26 (1st Cir. 1991) ("As we have repeatedly held, . . .

[a] party may not claim error in the judge's charge to the jury

unless that party 'objects' after the judge gives the charge but

before the 'jury retires . . . .'" (quoting Fed. R. Crim. P. 30)),

overruled on other grounds by Bailey v. United States, 516 U.S.

137, 149 (1995). Though Pérez requested an entrapment instruction

before the trial and argued for it at a charging conference, he

did not lodge a post-charge objection to the denial of the

instruction.7 Thus, Pérez's claim is subject to plain error

review.

To meet the heavy burden of establishing plain error, an

appellant must 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,

Pérez also failed to make an objection when the judge invited 7

objections on the record directly before instructing the jury. Even if Pérez had made such an objection, his claim would still be subject to plain error review under our precedent because he did not renew it after the instruction, and we hold parties strictly to that timing. See Wilkinson, 926 F.2d at 26.

- 19 - integrity, or public reputation of judicial proceedings." United

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

prong, "error," consists of "[d]eviation from a legal rule."

United States v. Olano, 507 U.S. 725, 732-33 (1993). The second

prong requires that the error identified in the first prong is not

"open to doubt or question," though an appellant can meet this

requirement even in the "absence of a decision directly on point."

United States v. Morales, 801 F.3d 1, 10 (1st Cir. 2015).8 To

establish the third prong, the appellant must show that "it is

reasonably probable that the . . . error affected the result of

the proceedings." United States v. Latorre-Cacho, 874 F.3d 299,

303 (1st Cir. 2017). Our analysis under the fourth prong is

guided by our fundamental concern with "the public legitimacy of

our justice system[,] [which] relies on procedures that are

'neutral, accurate, consistent, trustworthy, and fair.'" Rosales-

Mireles v. United States, 138 S. Ct. 1897, 1908 (2018) (quoting

Josh Bowers & Paul H. Robinson, Perceptions of Fairness and

We note that, in our circuit, the second prong is sometimes 8

described as "clear and obvious error," e.g., United States v. Scott, 877 F.3d 42, 49 (1st Cir. 2017), while in other opinions it is phrased as "clear or obvious error," e.g., United States v. Aquino-Florenciani, 894 F.3d 4, 7 (1st Cir. 2018). As far as we can tell, there is no substantive difference between the two usages. In fact, we are unaware of any decision suggesting that the words "clear" and "obvious" have different meanings. We will use the "clear or obvious" formulation here, which appears to be the more frequent usage.

- 20 - Justice: The Shared Aims and Occasional Conflicts of Legitimacy

and Moral Credibility, 47 Wake Forest L. Rev. 211, 215–16 (2012)).

The plain error standard is a difficult burden for any

appellant to meet. See United States v. Gelin, 712 F.3d 612, 620

(1st Cir. 2013) ("This multi-factor analysis makes the road to

success under the plain error standard rather steep; hence,

reversal constitutes a remedy that is granted sparingly."). It is

a particularly challenging standard to meet in the context of an

unpreserved objection to jury instructions. See United States v.

Paniagua–Ramos, 251 F.3d 242, 246 (1st Cir. 2001) ("[T]he plain

error hurdle, high in all events, nowhere looms larger than in the

context of alleged instructional errors."). Nonetheless, on rare

occasions, the severity of an error in instructing the jury does

rise to the level of plain error and requires vacatur of the

conviction. See, e.g., Latorre-Cacho, 874 F.3d at 310; United

States v. Delgado-Marrero, 744 F.3d 167, 189 (1st Cir. 2014).

B. The Entrapment Defense

Entrapment provides a defense if law enforcement

officers "originate a criminal design, implant in an innocent

person's mind the disposition to commit a criminal act, and then

induce commission of the crime so that the Government may

prosecute." Jacobson v. United States, 503 U.S. 540, 548 (1992);

see United States v. Teleguz, 492 F.3d 80, 84 (1st Cir. 2007)

("Congress could not have intended that its statutes were to be

- 21 - enforced by tempting innocent persons into violations." (quoting

Sherman v. United States, 356 U.S. 369, 372 (1958)). The defense

has two prongs: (1) improper government inducement and (2) the

defendant's lack of predisposition to commit the offense charged.

Id.

1. Improper Inducement

Improper inducement, also referred to as "government

overreaching," occurs when law enforcement agents engage in

conduct "of the type that would cause a person not otherwise

predisposed to commit a crime to do so." Hinkel, 837 F.3d at 117.

The mere creation of an "opportunity to commit a crime" through a

"sting" operation does not, in and of itself, constitute improper

inducement. United States v. Gendron, 18 F.3d 955, 961 (1st Cir.

1994) (quoting Jacobson, 503 U.S. at 550). Rather, "[a]n

'inducement' consists of an 'opportunity' plus something else --

typically, excessive pressure by the government upon the defendant

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

criminal type of motive." Id. "Plus" factors that may tip a

government operation from a permissible sting operation to

improper inducement include, for example, intimidation and

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

sympathies, and "repeated suggestions." Id. (collecting cases).

"[E]ven very subtle governmental pressure, if skillfully applied,

can amount to inducement." United States v. Poehlman, 217 F.3d

- 22 - 692, 701 (9th Cir. 2000). The judgment of whether government

conduct has crossed the line from valid law enforcement tactic to

improper inducement is often a difficult factfinding question for

the jury because "the facts [may] fall somewhere in a middle ground

between what is plainly proper and what is plainly improper."

United States v. Acosta, 67 F.3d 334, 338 (1st Cir. 1995); see

also id. ("To assume that we are dealing with a sharp boundary

rather than a spectrum is an illusion.").

2. Lack of Predisposition

The second element of the entrapment defense turns on

whether the "defendant was disposed to commit the criminal act

prior to first being approached by Government agents." Jacobson,

503 U.S. at 549. Our decision in Gendron sets forth our

understanding of this element as follows:

The right way to ask the question, it seems to us, is to abstract from -- to assume away -- the present circumstances insofar as they reveal government overreaching. That is to say, we should ask how the defendant likely would have reacted to an ordinary opportunity to commit the crime. By using the word "ordinary," we mean an opportunity that lacked those special features of the government's conduct that made of it an "inducement," or an "overreaching." Was the defendant "predisposed" to respond affirmatively to a proper, not to an improper, lure?

Gendron, 18 F.3d at 962 (citation omitted). The purpose of this

predisposition inquiry is to determine whether the defendant is

"someone who would likely commit the crime under the circumstances

- 23 - and for the reasons normally associated with that crime, and who

therefore poses the sort of threat to society that the statute

seeks to control, and which the government, through the 'sting,'

seeks to stop." Id. at 963. The "critical time" for the

predisposition analysis is the time "in advance of the government's

initial intervention." United States v. Gifford, 17 F.3d 462, 469

(1st Cir. 1994); see also United States v. Gamache, 156 F.3d 1, 12

(1st Cir. 1998) ("[T]he concept of predisposition has a definite

temporal reference: 'the inquiry must focus on a defendant's

predisposition before contact with government officers or

agents.'" (quoting United States v. Brown, 43 F.3d 618, 627 (11th

Cir. 1995)); Poehlman, 217 F.3d at 703 ("Quite obviously, by the

time a defendant actually commits the crime, he will have become

disposed to do so. However, the relevant time frame for assessing

a defendant's disposition comes before he has any contact with

government agents, which is doubtless why it's called

predisposition."). While evidence of the defendant's response to

the government's inducement may be relevant to the predisposition

inquiry, that evidence must be evaluated in terms of what it

reveals about the defendant's readiness to commit the crime before

the government contacted him. See Gifford, 17 F.3d at 469.

We have advised trial courts that the following factors

may be useful in evaluating the evidence of predisposition or lack

thereof:

- 24 - (1) the character or reputation of the defendant; (2) whether the initial suggestion of criminal activity was made by the Government; (3) whether the defendant was engaged in the criminal activity for profit; (4) whether the defendant showed reluctance to commit the offense, which was overcome by the governmental persuasion; and (5) the nature of the inducement or persuasion offered by the Government.

Gamache, 156 F.3d at 9–10. The second, fourth, and fifth of these

factors are also relevant to the improper inducement analysis.

Thus, while improper inducement and lack of predisposition are two

separate prongs, the same factual evidence will often be relevant

to both prongs.

3. The Defendant's Burden of Production

A defendant is entitled to a jury instruction on

entrapment if he meets a modest burden of production on the two

prongs of the defense. United States v. Rodriguez, 858 F.2d 809,

814 (1st Cir. 1988). This rule is in keeping with the "general

proposition [that] a defendant is entitled to an instruction as to

any recognized defense for which there exists evidence sufficient

for a reasonable jury to find in his favor." Mathews v. United

States, 485 U.S. 58, 63 (1988).

In analyzing whether the defendant has met his burden,

the court must construe the evidence in the light most favorable

to the defendant. Rodriguez, 858 F.2d at 813. An entrapment

instruction is required if the evidence, viewed in this charitable

- 25 - fashion, "furnishes an arguable basis for application of the

proposed rule of law." Id. at 814 (quoting United States v. Coady,

809 F.2d 119, 121 (1st Cir. 1987)). In other words, the record

must contain evidence that makes the entrapment theory "plausible"

or "superficially reasonable." Gamache, 156 F.3d at 9. As we

have previously emphasized, "[t]his is not a very high standard to

meet." Id.

A defendant does not need to introduce his own evidence

to meet this burden. Rodriguez, 858 F.2d at 813. He may rely on

"evidence adduced during the government's case" or "any probative

material in the record." Id. The proof may be "circumstantial

rather than direct." Id. If there are factual disputes in the

record, the court is not permitted to "weigh the evidence, make

credibility determinations, or resolve conflicts in the proof."

Gamache, 156 F.3d at 9. If the parties argue competing inferences,

the court must draw all reasonable inferences in favor of the

defendant's entrapment theory. Id. Ultimately, if "a reasonable

jury could view the evidence as establishing that defendant was

entrapped . . . [the defendant] [i]s entitled to an entrapment

instruction." Teleguz, 492 F.3d at 84. Determining whether

government conduct has crossed the line into improper inducement

or whether a person was predisposed to commit an offense are

delicate questions of fact for the jury to sort out. See Acosta,

67 F.3d at 338. Thus, a judge should not hesitate to send the

- 26 - question to the jury if there is even ambiguous evidence of

entrapment.

Once the defendant meets his burden of production,

entrapment becomes a question of fact for the jury. Id. At that

stage, the government bears the burden of proving beyond a

reasonable doubt either that there was no improper inducement or

that the defendant was predisposed to commit the offense. Id. If

"a rational jury could decide either way, its verdict will not be

disturbed." Id.

IV.

Consistent with our earlier explanation of the plain

error standard, Pérez is entitled to relief if he is able to

demonstrate that: (1) the district court erred in failing to give

an entrapment instruction; (2) his entitlement to that instruction

was clear or obvious; (3) the omission affected his substantial

rights; and (4) it undermined the fundamental fairness of the

trial. See Duarte, 246 F.3d at 60.

A. Error

The district court denied Pérez's requested entrapment

instruction for failure to meet his burden of production on the

lack of predisposition prong, without addressing whether Pérez had

met his burden of production on the improper inducement prong.

Because the defendant is required to meet the burden of production

on both prongs, a court may deny an entrapment instruction based

- 27 - on a failure to show evidence on one prong or the other, without

discussing both. See, e.g., United States v. Rivera-Ruperto, 846

F.3d 417, 431 (1st Cir. 2017); United States v. Sánchez-Berríos,

424 F.3d 65, 77 (1st Cir. 2005). Because we disagree with the

district court's assessment of the evidence on predisposition, we

must consider both prongs. If the defendant failed to meet his

burden of production on the improper inducement prong, an error by

the judge in the assessment of the predisposition prong would be

harmless.

We also repeat that improper inducement and

predisposition are analytically linked in that improper

inducement, and the defendant's responses to it, are part of the

evidence courts should consider in deciding whether the defendant

met his burden of production on the lack of predisposition prong.

Gamache, 156 F.3d at 9–10; see Joost, 92 F.3d at 13-14 ("As for

the absence of predisposition prong, much of what we have pointed

to [in the improper inducement analysis] is relevant."). In

evaluating the question of whether the defendant was predisposed,

the factfinder must "abstract from -- . . . assume away -- the

present circumstances insofar as they reveal government

overreaching." Gendron, 18 F.3d at 962 (emphasis omitted). If

there was no improper inducement, we already have our answer as to

how the defendant would respond to "an ordinary opportunity to

commit the crime" and any further analysis of predisposition is

- 28 - unnecessary. Id. (emphasis omitted). But if there was improper

inducement, the nature of that inducement and the defendant's

responses to it are relevant to the predisposition analysis to the

extent that they allow inferences about the defendant's state of

mind prior to the government's intervention. Rodriguez, 858 F.2d

at 816 (considering evidence of the defendant's responses to

improper inducement because "later events often may shed light on

earlier motivations").

Agent Seig created a Grindr profile appearing to belong

to an adult named "Dave W." The profile described Dave as

"[m]uscular, [w]hite, [s]ingle." Pérez sent a message to that

profile, presumably believing he was speaking with that adult man.

Dave quickly turned the conversation towards sexual activity with

a minor by offering to arrange a sexual encounter with his eleven-

year-old "boyfriend." Dave said that both he and the minor would

be part of the encounter, stating it would be "him you and I" and

describing the encounter as a "threesome." This type of "bundling

of licit and illicit sex into a package deal" can constitute a

"plus factor" for purposes of establishing improper inducement.

Hinkel, 837 F.3d at 118; see also Gendron, 18 F.3d at 961

(describing "the government's taking advantage of an alternative,

non-criminal type of motive" as a "typical[]" example of an

inducement plus factor).

- 29 - Agent Seig, writing as Dave, represented from the start

that the eleven-year-old minor was his "boyfriend" -- a term which

suggests the legally impossible notion that the minor was a

consenting participant in a sexual and romantic relationship with

Dave. Agent Seig repeatedly stated that this imagined encounter

would be a positive experience for the minor. Such repeated

suggestions "downplay[ing] the harm" caused by child sexual abuse,

or otherwise justifying it, can constitute a "plus factor" which

a jury may rely on to find improper inducement. See Hinkel, 837

F.3d at 118 (stating that the defendant presented evidence of

"clever and sophisticated inducement" where the law enforcement

agent "on numerous occasions, downplayed the harm that could be

expected to flow from the commission of the crime by describing

how 'amazing' the encounter would be, how 'excited' 'Samantha'

was, and how 'Lisa' 'appreciate[d]' how 'honest and caring' Hinkel

had been in his messages"); Gamache, 156 F.3d at 11 (stating that

the law enforcement agent's repeated "justifications for the

illicit activity (intergenerational sex) by describing 'herself'

as glad that Gamache was 'liberal' like her, expressing that she,

as the mother of the children, strongly approved of the illegal

activity, and explaining that she had engaged in this conduct as

a child and found it beneficial" constituted evidence of improper

inducement); see also Jacobson, 503 U.S. at 540 (describing the

government's improper inducement as including repeated

- 30 - "suggesti[ons] that petitioner ought to be allowed to do what he

had been solicited to do," i.e., purchase child pornography).

Hence, the record contained evidence that would allow a

jury to find two significant "plus" factors in Agent Seig's

communications with Pérez: first, Seig's linking the opportunity

for adult sexual activity, a lawful objective of Grindr users,

with the unlawful sexual activity involving a minor -- establishing

a kind of prerequisite for the adult activity; second, Seig's

repeated suggestions that the illegal conduct was not harmful, but

actually beneficial, to the minor. Thus, a reasonable jury could

have found improper inducement -- a necessary precondition for a

defendant to meet his burden of production on lack of

predisposition.

Pérez met his burden of production on the lack of

predisposition prong if the record would permit a reasonable

inference by the jurors that, before his interaction with Agent

Seig, Pérez was not predisposed to commit the crime of enticing a

minor to commit unlawful sexual activity. See Gendron, 18 F.3d at

962. The five factors identified in Gamache guide our analysis.

See 156 F.3d at 9-10.

As to the first factor, the character or reputation of

the defendant, the evidence might include prior criminal

convictions for similar offenses or a history of sexual interest

- 31 - in minors. Tellingly, the record contains no such evidence. See

id. at 12 ("[T]here was no evidence presented that Gamache had

engaged in similar activities independent of this sting operation.

The jury could have relied on this evidence to find a lack of

predisposition . . . ."); see also Hinkel, 837 F.3d at 118 (stating

that the defendant produced sufficient evidence to "clearly" meet

his prima facie burden of a lack of predisposition because, inter

alia, "the government had not uncovered any evidence suggesting

that he had other underage victims"). The absence of any kind of

negative character evidence relating to sexual activity with

minors is one point in favor of allowing the entrapment

There are two statements from Pérez early in the

conversation with Dave that "I started at 8." As noted earlier,

the exchange begins as follows:

Pérez: Hello what are you doing?

Pérez: Hahhaha Okk How old is he?

- 32 - What does your boyfriend like?

Dave: He likes everything :) He is very young, what age do you like?

Pérez: The younger the better I don't discriminate I started at 8 hehehhe So you tell me What does he like to do? We are close, we can come up with some fun From there up I do it all

Dave: Do you understand English? I speak only a little Spanish My boyfriend is 11 years old. Do you want to play with him?

Pérez: Mmmm yessss Where is he? I speak little only a little English? Share pics?? You tell me when and where??? Do you prefer to call? Yes, I want to play

The dissent states that, "in context," the exchange

plainly reflects a "stark pre-dispositional admission by Pérez."

In fact, however, the dissent ignores the context of Pérez's

statements that "I started at 8." Both statements are made before

the notion of sex with a minor entered the conversation ("My

boyfriend is 11 years old. Do you want to play with him?"). Until

Dave talks about his eleven-year-old "boyfriend," the

conversation, which took place on a dating app for adults, can be

read as discussing sex with young adults. When Dave refers to

himself as thirty-five, he could be saying that he is thirty-five

- 33 - years old, or that he started having his sexual experiences at age

thirty-five. Clearly, he (i.e., Agent Seig, posing as Dave) is

not saying that his partners in his sexual experiences are thirty-

five. It thus remains unclear, when Pérez reiterates that he

"started at 8," whether he is referring to the beginning of his

own sexual experiences or the age of boys with whom he has had

sex.

The dissent similarly ignores the context when Pérez

says, "the younger the better." Here, too, he makes the statement

before Dave made any reference to his "boyfriend" being underage.

Thus, it is hardly clear that Pérez is admitting to having an

interest in children rather than meaning that he is interested in

younger adults. The latter interpretation is plausible,

particularly in light of Dave's reference to "really young guys,"

(the word "guys" tending to imply adults), and the fact that Pérez

made the comments on an adults-only dating app. As for Pérez's

apparent eagerness when he discovers that Dave's "boyfriend" is

only eleven, we have said in our case law that " eagerness alone

. . . is not sufficient to remove the predisposition question from

the jury's purview." Gamache, 156 F.3d at 12.

Hence, the text is ambiguous enough that a jury, not a

judge, needed to determine its meaning. See id. at 9 ("[T]he

court's function is to examine the evidence on the record and to

draw those inferences as can reasonably be drawn therefrom,

- 34 - determining whether the proof, taken in the light most favorable

to the defense can plausibly support the theory of the defense.").

Thus, for the purpose of evaluating the evidence on the

predisposition prong, the "I started at 8" statements do not

provide evidence of a history of sexual interest in minors.

On the second factor, the initial suggestion of criminal

activity, it is indisputable that the government first suggested

the sexual abuse of a minor. In fact, as we have noted, Pérez

encountered law enforcement on a forum intended to be used only by

adults.9 The jury could reasonably draw the inference from Pérez's

use of Grindr that, before his conversation with "Dave," he was

interested in sex with other adult men, not children. Indeed, the

expert psychologist who testified at sentencing drew this same

inference, stating: "A pedophile will not be using, my personal

clinical opinion, I don't think they will use Grindr because he

will be easily identified." Although Agent Seig testified that he

designed his profile to contain "veiled" references which would be

understood as suggesting sexual abuse of a minor "by someone who

was versed in communicating in the realm of pedophiles," we must

interpret the evidence in the manner most charitable to Pérez.

Agent Seig testified that profiles explicitly seeking sexual 9

encounters with minors "would be removed from the social network, because many people would report that and then the owners of the network would remove it."

- 35 - Here, there is no basis for concluding on this record that Pérez

understood these veiled references.

The third factor -- whether the defendant engaged in the

criminal activity for profit -- is not relevant here, but we note

that monetary profit was not at issue.

As for the fourth factor, "whether the defendant showed

reluctance to commit the offense," the transcripts show that Pérez

insisted on meeting Dave without the minor's presence. Taken in

the light most favorable to Pérez, as it must be at this stage,

this insistence can be read as a sign of some reluctance to commit

the crime. Pérez made clear that any subsequent meeting with the

minor would depend on how the meeting with Dave went, and it is a

reasonable inference from the messages that Pérez had not made up

his mind about actually meeting the child. A jury could also

conclude from Pérez's insistence on meeting with Dave alone, his

repeated statements that he wanted to get to know Dave first, and

his clear interest in Dave, that Pérez was hesitant about moving

beyond the realm of fantasy with a minor and was motivated by a

desire to "be horny" with an adult in whom he was sexually

interested. Although a jury could also conclude that Pérez

intended to proceed directly to a meeting with the minor after

seeing Dave and ensuring he was not a law enforcement officer,

that plausible inference is not sufficient to take the entrapment

defense from the jury. See Gamache, 156 F.3d at 10 (explaining

- 36 - that whether the government disputes the defendant's version of

the facts is "irrelevant to the question of whether it raises an

issue of entrapment to be put before the jury"); Rodriguez, 858

F.2d at 815 (explaining that it is sufficient that "[the

defendant's] version, whether or not it strikes us as particularly

credible, is neither thoroughly implausible nor constructed

entirely of gauzy generalities").

The fifth factor, "the nature of the inducement or

persuasion offered by the Government," brings us back to the

improper inducement analysis. From the very beginning of the

conversation, Pérez expressed his interest in "Dave," an adult

man. Before either party said anything about a minor, Pérez said

to Dave, "Let's see you," likely meaning that he wanted to see a

picture of "Dave." Later in the conversation, Pérez asked Dave

for pictures again and for a physical description of his body. A

juror could reasonably infer that Pérez was primarily motivated by

sexual interest in "Dave," not the minor. Pérez also asked Dave

questions about how he "got" his "boyfriend." Drawing inferences

in favor of Pérez, these questions suggest that he asked them

because he had not ever thought about or tried to entice a minor

into sex before, and would not do so without the encouragement of

the government agent and repeated statements "downplaying the

harm," Hinkel, 837 F.3d at 118, or, even more offensively,

normalizing the sexual behavior with the minor.

- 37 - To be sure, there are different inferences one could

draw from the communications between Pérez and Dave. But, in

determining whether the defendant has met his burden of production,

we are required to draw all inferences in favor of the defendant.

The evidence relevant to the factors listed in Gamache provides at

least some evidence of lack of predisposition. Thus, the record

met Pérez's modest burden of production, and the district court

erred by denying the entrapment instruction.

B. Clear or Obvious Error

1. Relevant First Circuit Precedent

Prior to Pérez's trial in May 2017, our court had decided

two significant cases addressing the circumstances in which a

defendant is entitled to jury instructions on the entrapment

defense in the context of child sexual abuse sting operations:

Hinkel, 837 F.3d at 111, and Gamache, 156 F.3d at 1. Because these

cases reveal the clarity of the district court's error, we describe

their facts in some detail.

a. Hinkel

Hinkel was convicted of attempted enticement of a minor

in violation of § 2422(b) -- the precise offense at issue here --

after email correspondence with a law enforcement agent posing as

"Lisa," the thirty-eight-year-old mother of a fictitious fifteen-

year-old girl, "Samantha." Hinkel, 837 F.3d at 116. Hinkel

contacted "Lisa" based on a personal ad posted to an "online

- 38 - message board . . . frequented by those seeking adult sex

partners." Id. at 115. The ad stated, "mom with daughter looking

for taboo relationship." Id. at 116. Hinkel responded with an

email containing "graphic descriptions of sexual acts that he

imagined engaging in with 'Lisa' and her daughter." Id. The

government agent posing as "Lisa" promptly told Hinkel that her

daughter was "15 but experienced," to which Hinkel responded,

"Sounds very naughty! I am concerned about her age since legally

she should be 16 or older." Id. The agent answered "she[']s not

[16 or older] so i guess this conversation is over." Id. Hinkel

immediately replied, "Nope..... It is not over! I want to talk

more! I'm very intrigued by it all. Such taboo and naughty

play!!!!" Id.

For the next month, Hinkel continued to correspond with

Lisa in "lurid detail" about his desire to have sex with

"Samantha," though he occasionally expressed "conflicting

feelings." Id. at 116-17. Lisa reassured Hinkel, writing "i think

you will love her...and i appreciate the way you describe our

situation." Id. at 117. Hinkel also exchanged sexually graphic

emails with Samantha directly. Id. Hinkel and Lisa made plans

for Hinkel to visit and have sex with Samantha. Id. Lisa told

him that the planned encounter would be "such an amazing experience

for us to have together." Id. When Hinkel arrived at the appointed

time and place, he was arrested and subsequently charged and

- 39 - convicted of a § 2422(b) offense. Id. At his trial, the government

introduced evidence of "five cartoons, which consist of detailed

anime drawings of adults and minors engaged in sex acts" that law

enforcement had found on Hinkel's computer. Id. at 122.

Hinkel's primary defense at his trial was entrapment,

and -- unlike here -- the district court instructed the jury on

the elements of that defense. Id. On appeal, Hinkel claimed the

government's evidence was insufficient to overcome the entrapment

defense. Id. We rejected that challenge because it was reasonable

for the jury to find that entrapment had not occurred. Id. at

120. Of importance here, however, is our explicit consideration

of whether Hinkel had satisfied his burden of production even

though the district court had instructed the jury on entrapment.

Id. at 118. Hence, although the posture of Hinkel was different,

its discussion of the facts that clearly met the threshold for an

entrapment instruction is directly applicable here.

b. Gamache

Following a postal service correspondence with a law

enforcement agent posing as a mother of three young children,

Gamache was convicted of travel with intent to engage in illicit

sexual conduct with a minor in violation of 18 U.S.C. § 2423(b),

and an attempt to use a minor to produce sexually explicit images

in violation of 18 U.S.C. § 2251(a). Gamache, 156 F.3d at 2. The

agent had published a personal ad in an adult magazine which read,

- 40 - in part, "female, 31; Single mom, two girls, one boy, seeks male

as partner and mentor, seeks fun, enjoys travel and photography."

Id. at 3. Gamache responded with interest in the adult female

author of the advertisement. Id.

The agent, posing as "Frances," steered the

correspondence toward sex with her three minor children, ages

twelve, ten, and eight. Id. at 4. Frances wrote that she wanted

to "introduc[e] an adult male to further [her] children's sexual

education and experiences." Id. Gamache responded that he was

"not shocked" and that he would be "honored" to be chosen as the

adult man to have sex with Frances's children. Id. Over several

months of continuing correspondence, Frances described sexual

activities she wanted Gamache to engage in with her children, and

Gamache replied in kind, sharing his own ideas and desires. Id.

at 4-7. He also sent a letter to the children describing sexual

activities he planned to engage in with them. Id. at 7. Throughout

the correspondence, Frances referenced a "kind" uncle who "taught

[her] about sex when [she] was very young, and wanting the same

type of experience for [her] children." Id. at 4-5 (alterations

in original). She told Gamache the children were "very excited

about meeting" him, and they arranged for Gamache to meet "Frances"

and her children at a motel. Id. at 5-7. When Gamache arrived at

the motel, he was arrested. Id. at 7.

- 41 - Gamache requested an entrapment instruction at his

trial, and the court rejected his request. Id. at 3. His objection

was properly preserved and subject to plenary review. Id. at 9.

We held that Gamache had met his burden of production on both

prongs of the entrapment defense and that the court erred in

failing to give the instruction. Id. at 12. We vacated the

conviction and remanded for a new trial.

c. Common Principles in Hinkel and Gamache

Our review of Hinkel and Gamache reveals that, at the

time the district court rejected Pérez's request for an entrapment

instruction, we had previously held that certain facts in

combination -- present in both of those cases -- entitled a

defendant to an entrapment instruction.

In both cases, the government originated the criminal

design and invited the defendants to participate by placing an

ambiguous advertisement in an adults-only forum; then, when the

defendants responded to the advertisements, the government offered

to arrange a sexual encounter involving a minor. Hinkel, 837 F.3d

at 116; Gamache, 156 F.3d at 10. In both cases, we noted that the

government agents used the tactic of "bundling . . . licit and

illicit sex into a package deal," meaning that they offered a

sexual encounter that would include both legal sex with an adult

and illegal sex with a minor. Hinkel, 837 F.3d at 118; see also

Gamache, 156 F.3d at 10. A key component of the government agent's

- 42 - strategy in both cases was "downplay[ing] the harm" that would

flow from the crime through repeated statements portraying sex

with a minor as normal or even beneficial. Hinkel, 837 F.3d at

116; see Gamache, 156 F.3d at 10-11. In both cases, the defendants

manifested some hesitancy to commit the offense, though most of

their communications expressed eagerness to do so, and,

ultimately, both defendants showed up for a meeting with the minor.

Finally, in both cases, there was no evidence of the defendants'

prior sexual activity with minors. Hinkel, 837 F.3d at 116;

Gamache, 156 F.3d at 10.

Not surprisingly, given these similarities, we cited

Gamache as apt precedent in stating that the defendant met his

burden of production in Hinkel. The cases, of course, are not

identical. Gamache involved a more prolonged period of

correspondence and, arguably, more severe government manipulation.

Despite those differences, however, when all inferences are drawn

in favor of the defendant, the record in each case told, in

essence, the same story: a defendant without any known prior sexual

contact with minors moved from his initial, lawful inquiry about

adult sex to what a jury could find was an attempt to commit an

offense involving sexual exploitation of a minor, prompted by

encouragement from the government that a reasonable juror could

deem improper inducement.

- 43 - 2. Comparing Pérez's Case with Hinkel and Gamache

a. Initiation by the Government Agent

Like the law enforcement agents in Hinkel and Gamache,

Agent Seig purported to be an adult using a forum for adults

seeking adult sexual partners, and alluded to the possibility of

a relationship with a younger person without specifying the nature

of the relationship or the age of the young person. See Hinkel,

837 F.3d at 116; Gamache, 156 F.3d at 10. Pérez took the bait and

contacted the agent. Like Hinkel and Gamache, his initial message

did not include any reference to sex with a minor. He wrote,

"Hello what are you doing?" and then "Let's see you." It was the

government agent who turned the conversation to sex with minors,

asking if Pérez "liked really young guys," and then, when he

responded affirmatively, making the offer of sex with a minor: "My

boyfriend is 11 years old. Do you want to play with him?" When

Pérez again responded affirmatively, Agent Seig made that offer

more explicit, asking what sex act Pérez wanted to engage in with

the minor. While Pérez expressed enthusiastic interest, "[i]t was

the Government that first mentioned the 'child[]' as [a] sex

object[]; it was the Government that first used sexually explicit

language involving the 'child[]'; [and] it was the Government that

escalated the subject of sex with [the] child[]." Gamache, 156

F.3d at 10.

- 44 - b. Government's Bundling of Licit and Illicit Sex

Agent Seig's sting operation relied on precisely the

same tactic we described in Hinkel and Gamache: the "bundling of

licit and illicit sex into a package deal." Hinkel, 837 F.3d at

118; see also Gamache 156 F.3d at 10. Pérez reached out to Dave

-- described as a "[m]uscular, [w]hite, [s]ingle" adult man -- on

an adult dating application. He clearly remained interested in

the adult throughout the conversation, including asking for photos

just of Dave when Dave would not send photos of the minor. These

circumstances permit a plausible inference that Pérez was not

predisposed to sexually abuse a child, but, rather, was motivated

by interest in sex with Dave. See Gamache, 156 F.3d at 10 (noting

a plausible argument that "all of [Gamache's] correspondence about

sex with minors was a ruse to have sex with 'Frances,' who was his

target from the time that he answered the ad").

c. Government Agent's Statements Normalizing Sexual

Abuse

Dave's comments repeatedly portraying sex with a minor

as normal or even beneficial resemble those made by the agents in

Hinkel and Gamache. See Hinkel, 837 F.3d at 118 (stating that the

agent "downplayed the harm that could be expected to flow from the

commission of the crime by describing how 'amazing' the encounter

would be"); Gamache, 156 F.3d at 11 ("[T]he government agent

provided justifications for the illicit activity [by] . . .

- 45 - expressing that she, as the mother of the children, strongly

approved of the illegal activity, and explaining that she had

engaged in this conduct as a child and found it beneficial to

her."). The government's perverse statements that the minors would

enjoy and benefit from sexual exploitation were important because

such suggestions have the potential to influence the mind of a

person who is not predisposed to abuse children and convince him

that sex with a minor is acceptable. See Gamache, 156 F.3d at 11

("These solicitations suggested that Gamache ought to be allowed

to engage in the illicit activity . . . .").

d. Defendant's Reluctance to Commit the Offense

As in Hinkel and Gamache, some of Pérez's actions could

be interpreted as reluctance to commit the offense. He repeatedly

insisted on meeting with Dave alone, without the minor's presence.

That demand could be interpreted as an indication that he was

reluctant to go through with meeting the minor, despite his many

statements of enthusiasm about doing so.

To be sure, Pérez's plausible expression of reluctance

differed from the more explicit statements in Hinkel and Gamache.

Still, there was no outright rejection of the criminal conduct in

either of those cases. Hinkel briefly indicated hesitation when

"Lisa" told him that her daughter was fifteen, but clearly overcame

his reluctance just moments later, stating in response to an

obvious exit opportunity, "Nope..... It is not over! I want to

- 46 - talk more! I'm very intrigued by it all. Such taboo and naughty

play!!!!"10 See Hinkel, 837 F.3d at 116. Hinkel subsequently did

arrange and show up at a meeting with the fictitious fifteen-year-

old. Id. at 117. Gamache initially resisted Frances's suggestion

that he bring a video camera, but he stated his hesitance was based

on technological ignorance, not any moral opposition to creating

child pornography. See Gamache, 156 F.3d at 12. In the end,

Gamache did show up for a meeting with the children and brought a

video camera with him.

e. Defendant's Eagerness to Commit the Offense

Aside from his insistence on meeting Dave separately

prior to meeting the minor, Pérez's responses to Dave's suggestions

of sexual activity with an eleven-year-old boy were decidedly not

reluctant. His immediate response to Dave's offer of sex with his

"boyfriend" was "yes," and he made explicit statements about the

sex acts he wanted to engage in with the boy.11 Gamache and Hinkel

10In an apparent attempt to suggest that Hinkel was reluctant to engage in sex with a minor in a way that Pérez was not, the dissent ignores this quick abandonment of any hesitation in its characterization of Hinkel's response to the prospect of sex with a minor.

11The dissent focuses on this immediate affirmative response, suggesting that Pérez's enthusiasm made the necessity of an entrapment instruction in this case unclear, and, thus, its omission was not plain error. But our precedent has been clear on this point: "[E]agerness alone . . . is not sufficient to remove the predisposition question from the jury's purview." Gamache, 156 F.3d at 12. Similarly, the dissent emphasizes that Pérez went

- 47 - expressed similar reactions to law enforcement agents' criminal

suggestions. See Hinkel, 837 F.3d at 118 (describing the

defendant's response as "eager[]"); Gamache, 156 F.3d at 11

(describing the defendant's response as "enthusiastic"). Both

Hinkel and Gamache gave graphic descriptions of the sex acts they

wanted to engage in with minors. See Hinkel, 837 F.3d at 116

(stating that "Hinkel corresponded frequently and in lurid detail

with 'Lisa' and her fictitious daughter 'Samantha'" and that he

"describ[ed] his own sexual desires in detail"); Gamache, 156 F.3d

at 6 (describing a letter from Gamache to Frances that

"explain[ed], at length and in detail, how he will carry about the

sexual 'education' of 'Frances'' 'children'").

Our holdings in Hinkel and Gamache make clear that a

defendant can meet his burden of production on lack of

predisposition even if he responded eagerly or enthusiastically to

the proposed criminal conduct. As we have noted, in Gamache we

explained, "[W]hile 'ready commission of the criminal act can

to meet with Dave just five days after the first message. This time frame may be another display of eagerness, certainly worthy of the jury's consideration, but it did not warrant withholding the entrapment instruction from the jury when other evidence in the record supported a finding of a lack of predisposition. The dissent also overlooks the fact that Pérez was arrested, not at a planned meeting with the minor, but rather, at a meeting with Dave. Read in the light most favorable to Pérez, he was prepared to meet with the adult intermediary alone, but had not clearly agreed to meet with the minor. By contrast, Hinkel and Gamache were arrested at planned meetings with minors. See Hinkel, 837 F.3d at 116; Gamache, 156 F.3d at 7.

- 48 - itself adequately evince an individual's predisposition' and thus

provide sufficient evidence to support a jury's finding that the

defendant was predisposed to commit the offense, eagerness alone,

when coupled with the 'extra elements' present in this sting

operation, is not sufficient to remove the predisposition question

from the jury's purview." 156 F.3d at 12 (citation omitted)

(quoting Gifford, 17 F.3d at 469); see also id. at 11-12

("[W]illingness to commit the crime, although clearly relevant to

the jury's inquiry, is not sufficient by itself to mandate a

finding that he was predisposed."); Rodriguez, 858 F.2d at 816

("Although a jury might well find that Rodriguez's wiliness, and

the level of experience and enthusiasm which he subsequently

exhibited, were inconsistent with the claim of initial

unreadiness, such a finding would not be inevitable.").

f. Prior Sexual Interest in Children

As Pérez notes, the trial record contained "absolutely

no evidence that, aside from this virtual conversation, Mr. Pérez

had engaged, tried to engage, or would have considered engaging in

sex with a minor."12 In Gamache, we emphasized the importance of

the absence of evidence of prior similar conduct in meeting the

defendant's burden of production on lack of predisposition. See

12 As noted above in Section IV.A.2., the meaning of Pérez's statements that "I started at 8" is ambiguous. If all inferences are drawn in his favor, those statements do not constitute evidence of prior sexual interest in children.

- 49 - Gamache, 156 F.3d at 12 ("[T]here was no evidence presented that

Gamache had engaged in similar activities independent of this sting

operation. The jury could have relied on this evidence to find a

lack of predisposition . . . .").

Of course, to address the burden of production on the

predisposition issue, a defendant could introduce some evidence of

positive relationships with children, though Gamache makes clear

that the defendant need not introduce such evidence to meet that

burden. See id. Indeed, Hinkel offered evidence that he "had

raised two adult children and had not been accused of having an

inappropriate relationship with either of them." Hinkel, 837 F.3d

at 118. However, in Hinkel, there was contrary evidence that

Hinkel had sexual interest in children before the contact with the

government, in the form of cartoon images of adult sexual conduct

with children recovered from his computer. Id. at 122. Hinkel

challenged the admission of that evidence on appeal. Id. In

rejecting that claim, we recognized that the images were "probative

of Hinkel's predisposition" and may tend to show "sexual

inclination towards children." Id. (quoting United States v.

Chambers, 642 F.3d 588, 595–96 (7th Cir. 2011)). Still, even with

the record containing evidence of Hinkel's sexual inclination

towards children, we agreed with the district court that Hinkel

had provided enough evidence of lack of predisposition to mount a

- 50 - "credible entrapment case." Id. at 118. Again, there was no such

evidence of Pérez's prior sexual interest in children.

3. Conclusion

As we have described, this case is strikingly similar to

Hinkel and Gamache. Agent Seig used the same tactics we saw in

those cases -- placing an ambiguous lure on an adults-only forum,

inviting the defendant who responded to the lure to engage in a

"bundled" sexual encounter with an adult and a child, and

repeatedly insisting that this sexual abuse was beneficial to the

child. Pérez responded similarly to Hinkel and Gamache --

enthusiastic interest coupled with a weak expression of

reluctance. And as in Gamache, the record at Pérez's trial

contained no evidence of any sexual interest in children prior to

the government's intervention.

In Hinkel, we stated that the facts "clearly" met the

defendant's "'modest' burden of making a prima facie showing that

there is some evidence both elements [of the entrapment defense]

are satisfied." Hinkel, 837 F.3d at 117; see also id. at 118

(stating that the evidence at Hinkel's trial supported "a credible

entrapment case"). In Gamache, we concluded that "appellant met

the dual burdens required for an instruction on entrapment, because

the evidence raises a reasonable doubt that the Government

improperly induced a citizen to commit crimes that he was not

predisposed to commit, yet crimes for which he was charged and

- 51 - convicted." Gamache, 156 F.3d at 12. The district court ignored

our precedents when it decided a trial record containing strikingly

similar core facts did not warrant an entrapment instruction

because the defendant did not meet his burden of production on the

predisposition prong of the defense.

Tellingly, the government's brief on appeal does not

even mention Hinkel or Gamache, much less attempt to distinguish

those cases from the circumstances present here. The government's

primary argument is that Pérez cannot meet his burden on lack of

predisposition because he "jumped at the opportunity to 'play'

with the 11-year-old boyfriend." That position is obviously

foreclosed by our case law, and, if it influenced the district

court's decision to deny the entrapment instruction, it should not

have.

The dissent claims that comparing this case to Hinkel

and Gamache is like "saying apples and oranges are 'clearly and

obviously' the same because they both grow on trees in orchards."

To be sure, there are distinctions among the three cases, but all

three involve a mix of evidence -- some favorable to the entrapment

defense, some tending to disprove entrapment. Each case involved

statements reflecting eagerness and others reflecting reluctance.

Although those statements appeared in conversations which played

out across different time frames featuring different modes of

communication, and the specific facts of the cases do not perfectly

- 52 - align, there is the significant overlap in the categories of facts

that we have described. The district court's failure to see that

overlap between this case on the one hand, and Hinkel and Gamache

on the other -- cases in which we stated the predisposition issue

needed to go to the jury -- was a clear error. Although there are

many varieties of apples, they are apples all the same.

C. Substantial Rights

Next, we ask whether the clear or obvious error affected

the defendant's substantial rights. By refusing to give an

entrapment instruction, the court denied Pérez an opportunity to

have the jury consider his primary defense. See United States v.

Benavidez, 558 F.2d 308, 309 (5th Cir. 1977). As we have discussed

at length, Pérez's entrapment defense, reviewed in the light most

favorable to him, as required by law, was plausible. There was a

reasonable probability that a rational jury could credit the

defense, even in the face of the government's attempt to disprove

the entrapment defense beyond a reasonable doubt. See United

States v. Benjamin, 252 F.3d 1, 9 (1st Cir. 2001) (stating that to

determine whether an error affected the defendant's substantial

rights, the court "must determine 'whether the record contains

evidence that could rationally lead to a contrary finding with

respect to the omitted [jury instruction]'" (quoting Neder v.

United States, 527 U.S. 1, 19 (1999))). Thus, Pérez's substantial

rights were affected.

- 53 - D. Fundamental Fairness

Finally, we ask whether this error is one that

"impugn[ed] the fairness, integrity, or public reputation of the

criminal proceeding as a whole." United States v. Padilla, 415

F.3d 211, 221 (1st Cir. 2005). Our analysis under this final prong

of plain error review is "flexible . . . and depends significantly

on the nature of the error, its context, and the facts of the

case." United States v. Gandia-Maysonet, 227 F.3d 1, 6 (1st Cir.

2000).

Entrapment is a judicially created defense reflecting a

recognition that "[m]anifestly, [the law enforcement] function

does not include the manufacturing of crime." Sherman, 356 U.S.

at 369 (citing Sorrells v. United States, 287 U.S. 435, 443

(1932)). Given the importance of the defense, erroneous or

confusing jury instructions regarding entrapment compromise the

fairness of a trial. E.g., United States v. Kopstein, 759 F.3d

168, 182 (2d Cir. 2014) (holding that misleading jury instructions

regarding entrapment, the defendant's "only viable defense,"

created so much confusion as to "call into question the fairness

and integrity of [the defendant's] conviction" (quoting United

States v. Rossomando, 144 F.3d 197, 201 (2d Cir. 1998))); United

States v. Burt, 143 F.3d 1215, 1219 (9th Cir. 1998); United States

v. Duran, 133 F.3d 1324, 1335 (10th Cir. 1998); Here, we did not

have an instruction that was problematic because it was confusing.

- 54 - Rather, we had a complete failure to instruct the jury on the

defendant's primary defense. See Benavidez, 558 F.2d at 310.

Because of the court's refusal to give Pérez's requested

instruction, "the jury was not in a position to fairly evaluate

the defendant's case," see id., as it did not know that the

government was required to prove beyond a reasonable doubt that

either no improper inducement took place, or that Pérez was

predisposed to commit the offense. It is fundamentally unfair to

allow a jury to convict without instructing it on the law relevant

to a plausible entrapment theory that was "fairly raised" at trial.

This is not the common plain error case where the failure

of a defendant to properly preserve an objection for de novo review

means that the trial court never had an opportunity to rule on the

matter at issue. Pérez requested an entrapment instruction before

trial and renewed his request at a charging conference shortly

before the jury instructions were delivered. Although these steps

did not preserve Pérez's challenge under our circuit's law --

because he did not renew his objection after the court charged the

jury -- the fact remains that the court was fully advised that

Pérez sought the instruction, and objected to its denial, because

he intended to rely, and did in fact rely, on entrapment as a

- 55 - defense.13 Yet, the court denied the request in a single conclusory

sentence, providing no explanation for its determination that

Pérez had not met his burden of production on the predisposition

prong of the defense.14

Pérez is now serving a sentence of 151 months' (twelve

and a half years') imprisonment based on the outcome of a trial at

which the court summarily and improperly excluded his primary

defense. Under these circumstances, the trial court's clear or

obvious error in refusing to present Pérez's entrapment defense to

the jury affected his substantial rights and undermined the

fundamental fairness of his trial. To correct that error, we must

remand for a new trial.

Given that we are remanding for a new trial, we choose

to comment on one aspect of any new trial: the voir dire process.

As noted above, Pérez also failed to object on the record 13

when the judge invited objections immediately before instructing the jury. Despite this omission, the trial record makes clear that the district court was aware of Pérez's objection.

To the extent that it might be relevant to the fourth prong 14

analysis, we note that the retrial in this case will not require a victim to endure a second trial. Obviously, there was no actual victim of child sexual abuse in this attempt case. Cf. United States v. Colon-Nales, 464 F.3d 21, 29 (1st Cir. 2006) ("Given the unchallenged nature of the evidence in this case . . . the greater threat to the 'fairness, integrity and public reputation of judicial proceedings' would be to send this back for trial . . . thereby requiring the carjacking and rape victim to testify twice.")

- 56 - See, e.g., United States v. Gonzalez-Maldonado, 115 F.3d 9, 13

(1st Cir. 1997) ("In order to give as much guidance as possible to

the district court, we also discuss some of the other claims that

are likely to resurface if there is a new trial."). Pérez insists

that there was error in the district court's handling of the voir

dire. We do not go that far. But the briefing has convinced us

that the court would be well-advised to explore the issue of anti-

gay bias more thoroughly than it did in the voir dire process

reflected in the record.

The court devoted only one question to the topic of anti-

gay bias, asking the panel: "Do you feel that you would not be

able to render a fair and impartial verdict based on the evidence

and my instructions if the defendant were homosexual or gay?" On

remand, the court should carefully consider Pérez's argument that

this single self-assessment question "was inadequate to permit

discovery of stereotypical and pejorative notions rooted in an

extremely relevant bias." As Pérez notes, this case raises

particular concerns about anti-gay bias not only because the

defendant is gay, but because of the graphic sexual nature of the

evidence and the repugnant but unfortunately widespread

prejudicial belief that gay men are likely to sexually abuse

- 57 - children.15 Questions probing prospective jurors' actual bias

against gay men -- rather than their self-assessment of their

ability to be impartial at a criminal trial where the defendant is

gay -- would be more useful in identifying jurors who could not be

fair and impartial in dealing with the difficult facts of this

case.

Vacated and remanded.

- Concurring Opinion Follows -

See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 983 (N.D. 15

Cal. 2010) ("[S]tereotypes imagine gay men and lesbians as . . . child molesters who recruit young children into homosexuality. No evidence supports these stereotypes."), aff'd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012); Luke A. Boso, Dignity, Inequality, and Stereotypes, 92 Wash. L. Rev. 1119, 1142-43 (2017) (discussing manifestations of the false stereotype that gay men are likely to be pedophiles).

- 58 - LIPEZ, Circuit Judge, concurring. I write separately to

urge our court in a future en banc proceeding to abandon the rigid

and outdated interpretation of Rule 30(d) of the Federal Rules of

Criminal Procedure that we had to apply in this case. We are the

only circuit that -- without regard for the specificity or timing

of a party's initial objection to jury instructions -- deems that

objection forfeited if it is not repeated after the court instructs

the jury. See United States v. Roberson, 459 F.3d 39, 45 (1st

Cir. 2006). That preservation requirement serves no useful purpose

in the administration of justice, and it is premised on

practicalities that no longer exist.

To be clear, I do not raise this issue because of any

reservations about the strength of the majority's plain error

analysis in this case. Rather, I am concerned about the impact of

our existing rule on criminal defendants who cannot meet that

exacting standard in other instances where it is inappropriately

applied. Pérez's case provides a helpful illustration of why the

rule requiring a pointless post-charge objection is misguided.

Before his trial commenced, Pérez filed an ex parte

request for an entrapment jury instruction. At the close of

evidence in the two-day trial, the parties participated in an

unrecorded charging conference. Even without a record of the

conference, it is clear from the district court's docket entry

that Pérez renewed his request for an entrapment jury instruction.

- 59 - The district court denied the instruction, stating: "The ruling is

based on the arguments presented by the government and defendant's

response during the charging conference in connection with

predisposition."16 Following the conference, the attorneys gave

their closing arguments and the court then proceeded to charge the

jury. It did not invite objections from the parties, and Pérez did

not raise an objection.

Under our court's interpretation of Rule 30(d), Pérez

forfeited his claim that he was entitled to an entrapment

instruction, subjecting that claim to plain-error review. See

Fed. R. Crim. P. 52(b). In other words, our law faulted Pérez for

failing to reiterate an objection that had just been rejected at

the charging conference. See United States v. Meadows, 571 F.3d

131, 146 (1st Cir. 2009) ("Objections registered during pre-charge

hearings are insufficient to preserve the issue." (quoting

Roberson, 459 F.3d at 45)).

Rule 30(d) does not require that interpretation. It

states: "A party who objects to any portion of the instructions or

to a failure to give a requested instruction must inform the court

16 Before instructing the jury, the court asked the parties if there were objections to the instructions. Pérez did not object at that time, but that lack of objection would not matter because our precedent requires the objection to be made after the jury is instructed. See Roberson, 459 F.3d at 45. Even if Pérez had objected when invited to do so by the judge, his claim would still be considered forfeited and subject to plain error review on appeal. Id.

- 60 - of the specific objection and the grounds for objection before the

jury retires to deliberate." By its terms, then, the rule requires

only that the party's objection be specific, explained, and

presented before the jury deliberates. Pérez satisfied each of

those requirements.

Our rule insisting on a post-charge objection under Rule

30(d) has its origins in a decades-old, out-of-circuit precedent

-- authored by one of our First Circuit colleagues sitting by

designation -- that involved the similar requirement in civil cases

to timely raise instructional challenges. See Fed. R. Civ. P. 51.

In that 1966 case, Judge Aldrich observed that "[t]he duty imposed

upon counsel of 'stating distinctly the matter to which he objects

and the grounds of his objection' cannot normally be performed

until the charge has been heard in its entirety." Dunn v. St.

Louis-San Francisco Ry. Co., 370 F.2d 681, 684 (10th Cir. 1966)

(Aldrich, J. sitting by designation) (quoting then-current

language of Fed. R. Civ. P. 51). Based on that view -- i.e., that

specificity will likely be infeasible before counsel hears the

instructions as given -- the panel in Dunn concluded that an

instructional objection ordinarily will be deemed preserved only

if it is voiced after the court charges the jury. See id. We

subsequently adopted that post-charge preservation rule in our

circuit, including for criminal cases governed by Rule 30(d). See

United States v. Leach, 427 F.2d 1107, 1113 (1st Cir. 1970) (citing

- 61 - Dunn as precedent for concluding that a claim for a jury

instruction was forfeited where counsel requested the instruction

but did not renew his objection after the instructions were

delivered). While Dunn allowed for limited exceptions to the

requirement that objections be made after the jury charge, see 370

F.2d at 684, the First Circuit requires a post-charge objection in

all criminal cases.17 See United States v. Coady, 809 F.2d 119,

123 (1st Cir. 1987) (rejecting an argument that a claim regarding

jury instructions could be preserved through a pre-charge

objection, stating, "[t]hat counsel may have discoursed upon the

nature of his theory at some time prior to the giving of the charge

will not excuse noncompliance with the express mandates of Rule

30").

The Dunn rationale for requiring a post-charge objection

in most cases may have been apt when it was articulated more than

a half-century ago. The judges of that era did not routinely give

lawyers advance copies of their proposed instructions for

discussion and debate at charging conferences. Indeed, even during

In a civil proceeding, the trial court has been required 17

since 2003 to "inform the parties of its proposed instructions and proposed action on the requests [for instructions] before instructing the jury and before final jury arguments," Fed. R. Civ. P. 51(b)(1) (emphasis added), and it "must give the parties an opportunity to object on the record and out of the jury's hearing before the instructions and arguments are delivered," id. at (b)(2). The rule states that an objection is timely if made "at the opportunity provided under Rule 51(b)(2)."

- 62 - my tenure as a Maine state trial judge two decades later -- in the

late 1980s and early 1990s -- most judges did not preview

instructions with counsel in their entirety before delivering

them. Hence, the general practice supported the assumption that

parties ordinarily could not object with the specificity required

by Rules 51 and 30(d) until they heard the instructions as

delivered.

That is simply not the current reality. Today, attorneys

are well-positioned to make specific objections to assist the judge

in correcting errors before he or she charges the jury. The

court's ability to distribute proposed instructions in advance and

to easily revise them on the computer means that the attorney's

obligation to object with specificity can now be -- and ordinarily

is -- performed before "the charge has been heard in its entirety."

Dunn, 370 F.2d at 684. My experience as an appellate judge reading

trial records tells me that, as a result of this current practice,

surprises in the instructions as given are rare. Thus, by

maintaining our rule, we impose the harsh consequence of plain-

error review without justification.

We are an outlier in requiring a post-charge objection

in criminal cases under all circumstances. Every other circuit

that has considered the sufficiency of a pre-charge objection

employs a more flexible approach, in which a pre-charge objection

is evaluated for its adequacy in meeting Rule 30(d)'s requirements

- 63 - to provide the trial court with specific notice of an asserted

instructional error. See United States v. Grote, 961 F.3d 105,

115 (2d Cir. 2020) (an objection prior to jury charge is not

forfeited if "taking further exception under the circumstances

would have been futile" (quoting United States v. Rosemond, 841

F.3d 95, 107 (2d Cir. 2016)); United States v. Russell, 134 F.3d

171, 178 (3d Cir. 1998) ("[T]he crux of Rule 30 is that the district

court be given notice of potential errors in the jury instructions,

not that a party be 'required to adhere to any formalities of

language and style to preserve his objection on the record.'"

(quoting United States v. O'Neill, 116 F.3d 245, 247 (7th Cir.

1997)); United States v. Hollinger, 553 F.2d 535, 543 (7th Cir.

1977) ("[S]pecific and distinct objections voiced in an earlier

instructions conference held in the presence of a court reporter

will be considered timely under [Rule 30(d)] . . . . [W]e shall

henceforth allow counsel to incorporate [objections] by

reference."); United States v. Kessi, 868 F.2d 1097, 1102 (9th

Cir. 1989) (parties need not object following the instructions if

doing so would be a "pointless formality"); United States v.

Kottwitz, 614 F.3d 1241, 1270 (11th Cir. 2010) (objection is

preserved so long as it is "sufficient to give the district court

the chance to correct errors before the case goes to the jury"),

opinion withdrawn in part on denial of reh'g on other grounds, 627

F.3d 1383 (11th Cir. 2010); see also United States v. McDonnell,

- 64 - 792 F.3d 478, 504 & n.15 (4th Cir. 2015) (noting that the appellant

objected at a pre-charge conference and should have repeated his

objection after the instructions were delivered, but still

applying harmless error review, rather than plain error), vacated

on other grounds, 136 S. Ct. 2355 (2016);18 United States v.

Bornfield, 184 F.3d 1144, 1146 (10th Cir. 1999) (stating that a

party is "obligated to object on the record before the jury retired

to preserve his objection for appellate review" and acknowledging

that the objection might properly occur at a pre-charge

conference).

That flexible approach not only fulfills the notice

purpose of Rule 30(d), but it also aligns with our forfeiture

doctrine more broadly. Issues not raised in the trial court are

deemed forfeited, and subject to plain error review on appeal, to

prevent a party from wasting judicial resources and undermining

finality by "sandbagging" the court. See Puckett v. United States,

556 U.S. 129, 134 (2009) ("[T]he contemporaneous-objection rule

Indeed, on further review, the Supreme Court also applied 18

a harmless error analysis and vacated the conviction on the ground that an error in the jury instructions was not harmless. See McDonnell, 136 S. Ct. at 2375. The Supreme Court did not comment on the timing requirements of Rule 30(d) or explicitly affirm a flexible application of the rule. Although McDonnell is not binding intervening precedent that would require us to abandon our current rule, see United States v. Walker-Couvertier, 860 F.3d 1, 8 (1st Cir. 2017), it does give tacit approval to review for harmless error rather than plain error when an appellant objected at a pre-charge conference but not after the instructions were delivered.

- 65 - prevents a litigant from 'sandbagging' the court -- remaining

silent about his objection and belatedly raising the error only if

the case does not conclude in his favor."); United States v.

Correa-Osorio, 784 F.3d 11, 22 (1st Cir. 2015) (stating that the

plain error rule "(hopefully) deters unsavory sandbagging by

lawyers (i.e., their keeping mum about an error, pocketing it for

later just in case the jury does not acquit) and gives judges the

chance to fix things without the need for appeals and new trials").

Our obsolete interpretation of Rule 30(d) does nothing to prevent

"sandbagging." Where, as in this case, a defendant files a written

request for an instruction, and argues for that request at a

charging conference, he is not "sandbagging" when he raises that

same issue on appeal. He has clearly brought the issue to the

trial court's attention and given the court an opportunity to

correct the instructions.

Indeed, from a practical standpoint, an objection made

during a charging conference, before the instructions have been

delivered, should be preferred to a post-charge objection. The

earlier notice provides more timely opportunity for the court to

correct any errors. See Hollinger, 553 F.2d at 542-43

("Ordinarily, trial judges will derive considerable benefit from

a serious exchange of views by opposing counsel regarding the

proper formulation of the applicable rules of law before they must

charge the jury."). In addition, when a request regarding jury

- 66 - instructions has been discussed in detail at a charging conference,

and the court has ruled, there is no advantage to anyone for

lawyers to persist with the same objection. To the contrary, such

persistence can be awkward for counsel and off-putting for the

court. See United States v. Toribio-Lugo, 376 F.3d 33, 41 (1st

Cir. 2004) ("To do her job, a lawyer must be forceful, but she

also must handle her relationship with the presiding judge with

care."); United States v. Kelinson, 205 F.2d 600, 601-02 (2d Cir.

1953) ("[Rule 30(d)] does not require a lawyer to become a

chattering magpie.").

Importantly, I am not suggesting that a party's failure

to lodge an objection after the court has delivered the jury charge

should never result in forfeiture of the claim on appeal.

Inevitably, some pre-charge objections will be insufficiently

specific, or inadequately explained, and will therefore not

fulfill the notice objective of Rule 30(d). But Rule 30(d) does

not require us to demand pointless repetition of objections that

were distinctly raised and decisively denied.

In short, our court's outdated, inflexible approach to

Rule 30(d) neither advances the purpose of the rule nor serves the

interests of justice and, hence, it poses an unjustifiable barrier

to plenary appellate review of fully preserved objections. We

should replace our outmoded instructional-error doctrine with the

flexible approach that -- for good reason -- is now the prevailing

- 67 - view. In other words, like our sister circuits, we should

recognize that a pre-charge objection may preserve a jury

instruction issue for appellate review if the objection was

sufficiently specific to give the trial court notice of the claimed

error and repetition of the objection post-charge would be a futile

exercise.

- 68 - BARRON, Circuit Judge, concurring. I share the concern

that Judge Lipez expresses about the way that our precedent

currently requires us to construe Rule 30(d) of the Federal Rules

of Criminal Procedure. The text of the rule, his concurrence

points out, does not compel the rigid procedure for preserving

objections to jury instructions that our case law requires. There

may often be benefits to voicing objections to instructions after

the charge to the jury has been given. But, they are not manifest

in every case. Indeed, the case at hand exemplifies the point.

The sole ground that the District Court gave at the charging

conference for denying the requested instruction here was that the

evidence developed at trial had failed to provide a factual basis

for giving it. Nothing about the charge itself could have called

that ruling into question. Yet, our precedent still requires that

we treat this defendant's failure to seek reconsideration of that

ruling as if it were a failure to have requested the instruction

at all. See United States v. Baltas, 236 F.3d 27 (1st Cir. 2001).

- Dissenting Opinion Follows -

- 69 - KAYATTA, Circuit Judge, dissenting.

The majority's analysis hinges crucially on the

assertion that, as to the matter of predisposition, this case is

so like Hinkel and Gamache that the need for an entrapment

instruction was "clear or obvious." Respectfully, I cannot see

how this is so in this case.

Here is what Hinkel said when he first learned that a

15-year-old was involved: "Sounds very naughty. I am concerned

about her age since legally she should be 16 or older." It then

took a month before the continued enticement ripened into a planned

meeting. Here, by contrast, is what Pérez said upon first learning

that an eleven-year-old was involved: "Mmmm yes." Within three

days Pérez was messaging, "I want your boyfriend." And within

five days from the first message, the meet was on.

There is more. Hinkel offered affirmative evidence that

he had never sought a relationship with someone not of legal age.

Pérez offered no such evidence. Rather, when the agent asked Pérez

at the outset of their communications "what age do you like?,"

Pérez replied, "The younger the better. I don't discriminate. I

started at 8. Hehehe. So you tell me." And when asked "do you

like really young guys?," he replied: "Yes. Age? I started

at 8." So while Hinkel was saying he never even looked for sex

with a minor, Pérez was highlighting a nondiscriminatory track

- 70 - record. And he was clearly saying in context that eight years old

was not too young.

Gamache is even further removed. The defendant in

Gamache initially expressed interest solely in an adult

relationship. Only after "the Government's insistence and artful

manipulation" over the course of eight months did he become ready

to meet the supposed victims, and even then he was saying "this

will be a new experience for me." United States v. Gamache, 156

F.3d 1, 6, 10 (1st Cir. 1998). Pérez, conversely, expressed eager

interest immediately. And unlike Hinkel and Gamache, he offered

no evidence suggesting a lack of predisposition.

The majority's effort to avoid the stark pre-

dispositional admission by Pérez at the very outset of his

exchanges with the agent warrants particular scrutiny. Ignoring

Pérez's express assurance that he likes them the "younger the

better," all the majority can do is claim that there is some

ambiguity about what the agent meant when he subsequently referred

to his own age. And the majority's claim that it is not obvious

what Pérez was saying is twice-flawed: It certainly seems obvious

he was indeed saying he likes them "the younger the better;" and,

in any event, I do not see how it was possibly plain error for the

trial court to have read Pérez's statement exactly as I do, i.e.,

as a frank, un-coaxed profession of the precise predisposition at

issue. And since there is zero contrary evidence, I simply cannot

- 71 - see how it was also plain error to conclude that Pérez failed to

generate a sufficient claim of entrapment to get to a jury. See

Gamache, 156 F.3d at 9 ("The defendant carries the initial burden

of producing some evidence of both the Government's improper

inducement, and the defendant's lack of predisposition to commit

the alleged offense, so as to 'raise a reasonable doubt as to

whether he was an unwavering innocent rather than an unwavering

criminal.'" (quoting United States v. Joost, 92 F.3d 7, 12 (1st

Cir. 1996)) (second emphasis added)); see also id. ("[T]he court's

function is to examine the evidence on the record and to draw those

inferences as can reasonably be drawn therefrom, determining

whether the proof, taken in the light most favorable to the defense

can plausibly support the theory of the defense." (first emphasis

added)).

The bottom line is that the majority significantly errs

in comparing Hinkel and Gamache to this case by noting the

similarities while ignoring or downplaying the very material

differences. The resulting reasoning is like saying apples and

oranges are clearly and obviously the same because they both grow

- 72 - on trees in orchards. I would rule that it was not clear or

obvious that an entrapment instruction was required in this case.19

19 I do agree, however, with my colleague's concurrences that we should revisit our rule on preserving objections to jury instructions. As ably explained, our rule is not derived from the text of Rule 30(d), no longer fits practice, and is apt to produce unfair results. I also agree with Part V of the majority opinion.

- 73 -