United States v. Spradley

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 29, 2025
• Docket: 23-3222
• Status: Published

Opinion

Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 29, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court ___________________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-3222

STEVEN E. SPRADLEY,

Defendant - Appellant. ___________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 5:21-CR-40088-TC-1) ___________________________________________

Paige A. Nichols, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Topeka, Kansas, for Defendant-Appellant.

James A. Brown, Appellate Chief (Kate E. Brubacher, United States Attorney, with him on the brief), Office of the United States Attorney, District of Kansas, Topeka, Kansas, for Plaintiff-Appellee. ___________________________________________

Before BACHARACH, MURPHY, and EID, Circuit Judges. ___________________________________________

BACHARACH, Circuit Judge. ___________________________________________

In this appeal, we must decide whether the trial evidence could have

supported a defense of entrapment. This issue arose when the defendant, Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 2

Mr. Steven Spradley, drove to another state to meet a deputy sheriff

pretending to be a 17-year-old girl. After Mr. Spradley made the drive, he

was charged with crossing the state line to pay for sex with a minor. 18

U.S.C. § 2423(b).

Mr. Spradley asserted a defense of entrapment; but the district court

refused to instruct on this defense based on insufficiency of the evidence,

and Mr. Spradley was convicted. In light of this conviction, we must

decide whether a reasonable jury could have found entrapment based on the

trial evidence. Mathews v. United States, 485 U.S. 58, 63 (1988). We

answer yes.

1. Mr. Spradley is the target of a sting operation.

When the incident took place, Mr. Spradley was 56 years old and

living in Kansas City, Missouri. He expressed loneliness, testifying that he

used the internet to “meet somebody.” R. vol. 3, at 387. Through the

internet, Mr. Spradley spotted an advertisement posted by a deputy sheriff

impersonating a young woman: “Needing to make some money. Recently

graduated and looking to make money for a new ride to attend cosmetology

school.” Supp. R. vol. 1, at 4.

Mr. Spradley responded: “I’ll give you $500 to spend the weekend

trading orgasms with me ... :)” Id. at 5. The deputy sheriff, still

impersonating the young woman, said that she was 17 and asked if her age

would pose a problem. Mr. Spradley didn’t answer directly, but he

2 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 3

continued emailing and texting the fictitious girl. In these messages,

Mr. Spradley said that he wanted a relationship with the girl, offering to

take her around Kansas City, showing her photographs of a motorcycle and

a pet bird, and asking if they could talk on the phone.

As the two arranged to meet, the fictitious girl indicated that

Mr. Spradley would need to make the drive to Kansas, explaining that her

car wouldn’t make it to Missouri. Mr. Spradley agreed and said that he

would bring $500 and whiskey. He made the drive but didn’t have the $500

or the whiskey when he arrived.

2. The district court erred in failing to instruct on entrapment.

We conclude that Mr. Spradley was entitled to an instruction on

entrapment.

a. Standard of Review

In determining whether the evidence could have supported a finding

of entrapment, we conduct de novo review and resolve all reasonable

inferences from the evidence in the light most favorable to Mr. Spradley.

United States v. Stein, 985 F.3d 1254, 1264 (10th Cir. 2021). In that

review, we consider the defense of entrapment, which is “fact-intensive,”

often “mak[ing] jury consideration of demeanor and credibility evidence a

pivotal factor.” United States v. Brown, 43 F.3d 618, 625 (11th Cir. 1995).

This fact-intensive defense contains two elements:

3 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 4

1. The defendant lacked a predisposition to commit the offense.

2. A governmental agent induced commission of the offense.

United States v. Fadel, 844 F.2d 1425, 1429 (10th Cir. 1988). We evaluate

predisposition and inducement based on the underlying offense, which

involves travel in interstate commerce with a motivating purpose to pay for

sex with someone below the age of 18. 18 U.S.C. § 2423(b) (2021); 1 see

p. 2, above. An instruction on entrapment is required if there is at least

some evidence that (1) the defendant lacked predisposition and (2) a

government agent induced commission of the offense. See United States v.

Mayfield, 771 F.3d 417, 420 (7th Cir. 2014) (en banc) (“The defendant is

entitled to an entrapment jury instruction if he can show that some

evidence supports both elements of the defense.”).

b. Predisposition

Predisposition means a defendant’s willingness to “engage in the

illegal activity for which he has been charged . . . .” United States v. Ortiz,

804 F.2d 1161, 1165 (10th Cir. 1986). The jury can infer predisposition

1 When Mr. Spradley was indicted, the body of § 2423(b) used the term a motivating purpose rather than intent. 18 U.S.C. § 2423(b) (2021). The government equated the two terms, stating that “courts have concluded that the statute [18 U.S.C. § 2423(b)] requires that a person cross state lines with the specific intent to engage in an illicit sexual act.” Appellee’s Resp. Br. at 15. After Mr. Spradley appealed, Congress changed the term a motivating purpose to intent. National Defense Authorization Act for Fiscal Year 2024, Pub. L. No. 118-31, § 5102, 137 Stat. 136, 934.

4 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 5

either from the defendant’s previous conduct or readiness to accept a

governmental agent’s illicit offer. Id. at 1165–66. As a result,

“[p]redisposition rarely will be susceptible to resolution as a matter of

law.” Mayfield, 771 F.3d at 441.

Mr. Spradley argues that he lacked the predisposition either (1) to

pay for sex or (2) to have sex with someone 17 years old or younger. For

this argument, Mr. Spradley needed to show a factual dispute concerning

the origin of his criminal purpose. Id. at 440. If he made that showing, the

government would have needed to demonstrate predisposition beyond a

reasonable doubt. Id.

i. Paying for sex

In considering whether Mr. Spradley was predisposed to pay for sex,

the jury could rely on his trial testimony, messages, and lack of money

when he drove to meet the girl.

Mr. Spradley testified that he

• had never paid for sex and

• had not intended to pay the fictitious girl for sex. 2

2 At trial, the government asked Mr. Spradley if he had previously offered money for sex. But Mr. Spradley didn’t testify that he had ever paid for sex.

Mr. Spradley did acknowledge that he had offered money to women; but he characterized these offers as efforts to obtain female companionship rather than sex. We must view that testimony in the light most favorable to Mr. Spradley. See Part 2(a), above. 5 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 6

To counter that testimony, the government points to Mr. Spradley’s

response to the advertisement, where he stated that he would pay $500 for

sex. But Mr. Spradley testified that he had offered the money because a

coworker had suggested a response so outrageous that the other person

would either decline to respond or “come back on the affirmative” if her

message had been fake. R. vol. 3, at 391.

The government also points out that Mr. Spradley and the fictitious

girl continued to text about the $500. But these texts virtually always

included internet slang for joking: lol, Lawlz, or � just playing. This

slang might have been meaningless, but it might also have indicated that

Mr. Spradley regarded the continued talk about the $500 as a running joke.

In addition, the government notes that Mr. Spradley said that he

would bring $500 when they met. But when he traveled to meet the

fictitious girl, he didn’t have the money.

Given the trial testimony, the messages, and the facts surrounding the

trip, the jury could reasonably find that Mr. Spradley had lacked a

predisposition to pay for sex. Of course, the jury might also have

distrusted Mr. Spradley’s trial testimony, downplaying his use of internet

slang for jokes and concluding that he would have retrieved the $500 after

meeting the girl. Viewing the evidence and reasonable inferences favorably

to Mr. Spradley, however, a jury could reasonably have found no

predisposition to pay for sex. 6 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 7

ii. Engaging in sex with someone younger than 18

Even if Mr. Spradley had been predisposed to pay for sex, he could

still satisfy this element of the defense if he lacked a predisposition to

engage in sex with someone who was younger than 18.

In our view, a jury could reasonably find that Mr. Spradley wasn’t

predisposed to have sex with someone younger than 18. For this finding,

the jury could reasonably rely on Mr. Spradley’s trial testimony and his

messages with the fictitious girl.

Mr. Spradley testified that when the girl said she was only 17, he

immediately regarded the ad as a fake:

Q. Did you believe she was 17?

A. No.

Q. Why did you not believe that she was accepting your offer?

A. On the face of the ad, when I saw that ad, it’s been my experience that it’s posted in the wrong place. It had a -- and I don’t even know how to describe it, but I knew it was fake. And when I responded to it and they replied with -- almost immediately -- with an affirmative “sure, yeah,” it told me everything that I needed to know that the ad was fake.

R. vol. 3, at 374. Mr. Spradley was then asked why he continued

messaging. Id. He responded that he had continued messaging to find out

who the person was and why the person was lying:

Q. Okay. You’re saying that the ad was fake. Question arises: Why did you persist?

7 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 8

A. Part of my OCT, and it’s actually a strength in the IT field, is an obsession to follow through, to see things through the end. If you’re troubleshooting a PC, find out why the problem occurred. If -- if you think you’re being lied to or taken advantage of, find out who it is; find out why. Why are they lying to you?

Id. Mr. Spradley added that he not only used the messages to identify the

person and the reason for the lies, but also

• tried to trace the person’s IP address,

• insisted on a telephone call in order to find clues about the person’s reasons for lying, and

• learned that the metadata on the girl’s photo had been altered.

The jury could have credited Mr. Spradley’s testimony based on the

messages themselves. In these messages, Mr. Spradley asked again and

again for a chance to talk on the telephone. The fictitious girl disregarded

several of these requests, which could have fostered Mr. Spradley’s

skepticism about what the person had been saying.

Mr. Spradley also asked for a photo and received it minutes after the

fictitious girl had said that she was seventeen:

8 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 9

Supp. R. vol. 1, at 13. The photo was actually a female officer in her 30s.

From the photo, Mr. Spradley could reasonably infer that he had been right

to doubt the person’s truthfulness when she said she was 17 years old.

Granted, the jury might have disbelieved Mr. Spradley’s testimony.

But a reasonable jury could have credited Mr. Spradley’s testimony and

supporting evidence to find that he lacked a predisposition to have sex

with someone younger than 18.

c. Inducement

Entrapment also requires inducement, which is governmental conduct

creating “a substantial risk that an undisposed person or otherwise law-

abiding citizen would commit the offense.” United States v. Ortiz, 804 F.2d

1161, 1165 (10th Cir. 1986). Inducement can consist of persuasion or false

promises of companionship. Id.

In our view, a reasonable jury could find that the deputy sheriff had

recognized Mr. Spradley’s loneliness and exploited it, enticing him to drive

to Kansas in order to fulfill his fantasy of a romantic relationship. For

example, the jury could infer deception to exploit Mr. Spradley’s

loneliness. See United States v. Shinderman, 515 F.3d 5, 15 (1st Cir. 2008)

(stating that inducement can consist of deception designed to prey on a

defendant’s weakness); United States v. Plowman, 700 F.3d 1052, 1059

(7th Cir. 2012) (“We recognize that inducement can occur when a

government agent preys on a defendant’s emotional weaknesses.”); see also

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United States v. Theagene, 565 F.3d 911, 922 (5th Cir. 2009) (recognizing

that “courts have identified inducement when government agents . . . take

‘actions designed specifically to take advantage of the defendant’s

weaknesses’” (quoting United States v. Gutierrez, 343 F.3d 415, 420 (5th

Cir. 2003))); United States v. Poehlman, 217 F.3d 692, 698–99 (9th Cir.

2000) (concluding that the jury could find inducement based on the

government agents’ use of friendship, sympathy, and psychological

pressure over a defendant seeking a long-term relationship).

A reasonable jury could have regarded Mr. Spradley as lonely based

on his testimony and his messages. For example, he testified that he had

been lonely and messaged the fictitious girl, saying that

• “[b]eing single sucks” and

• he missed “having someone to do things with.”

Supp. R. vol. 1, at 15, 20. Given the testimony and the messages, the jury

could reasonably find that Mr. Spradley had acted out of loneliness. See

United States v. Poehlman, 217 F.3d 692, 695, 702 (9th Cir. 2000)

(concluding that a jury could find inducement based on the government’s

exploitation of a “lonely and depressed” person’s “obvious need for an

adult relationship”).

The jury could also reasonably find that the deputy sheriff had

exploited Mr. Spradley by appealing to his desire for a romantic

relationship. For this finding, the jury could point to the deputy sheriff ’s 10 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 11

messages, which disclosed intimate details about the fictitious girl’s life,

suggesting her receptiveness to Mr. Spradley’s expressions of loneliness

and desire for a girlfriend. For example, the fictitious girl

• shared that she had been raised by a single mother,

• discussed food and movies,

• discussed marijuana preferences,

• disclosed her middle name and asked Mr. Spradley what his middle name was,

• shared her birthday month, and

• asked Mr. Spradley about his pet bird.

Mr. Spradley answered these questions and sometimes elaborated,

suggesting that the fictitious girl’s effort to build rapport had worked.

A reasonable jury could also find that the deputy sheriff had

downplayed the harm of interaction by

• telling Mr. Spradley that the girl was nearly 18 and

• implying that she had sexual experience and would enjoy a sexual encounter.

See United States v. Pérez-Rodríguez, 13 F.4th 1, 20 (1st Cir. 2021)

(“[R]epeated 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.”).

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First, the deputy sheriff said that the girl was 17 years old and gave a

birth date in August, meaning that she would turn 18 in just two months.

Though the girl wasn’t 18, she was above the age of legal consent for sex

where she lived. See Kan. Stat. Ann. § 21-5507. So non-commercial

consensual sex with the girl would have been legal.

Second, the fictitious girl sent messages suggesting sexual

experience, such as “standard rules” for sex. Supp. R. vol. 1, at 25. And

when Mr. Spradley offered to spend the weekend “trading orgasms,” the

fictitious girl asked “[w]hen can we do this,” implying familiarity with

sex. Id. at 5.

After offering a relationship and suggesting that the girl was sexually

experienced, the deputy sheriff needed Mr. Spradley to drive across the

Kansas border in order to convict him of a federal crime. 3 So the fictitious

girl asked Mr. Spradley to visit her in Kansas. 4

3 Even if Mr. Spradley had not crossed a state line, he might have been guilty of other crimes under state law. See, e.g., Kan. Stat. Ann. § 21- 6421(b)(1) (“Buying sexual relations”); Kan. Stat. Ann. § 21-6422(a)(1) (commercial sexual exploitation of a child). But Mr. Spradley was not charged with those crimes. 4 The government argues that Mr. Spradley initiated the offer to make the drive, pointing to his message: “You want me to come over there? I live in Kansas City. Don’t you live in Topeka?” Supp. R. vol. 1, at 17. But Mr. Spradley was just responding to the fictitious girl’s request for him to “swing by.” Id. 12 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 13

But before Mr. Spradley would make the drive, he wanted to talk to

whoever was messaging him. So Mr. Spradley asked the person to talk on

the phone; however, the fictitious girl declined. Mr. Spradley asked again;

she again declined. This process repeated itself until the deputy sheriff

determined that Mr. Spradley would likely need to hear “a female voice”

before making the drive. R. vol. 3, at 238, 313. Only then did a female

officer call, pretending to be the girl messaging with Mr. Spradley. After

this call, Mr. Spradley made the drive from Missouri to Kansas.

The jury could reasonably find inducement, attributing

Mr. Spradley’s acquiescence to the deputy sheriff ’s exploitation of a lonely

man searching for companionship and intimacy.

3. We shouldn’t affirm based on the dissent’s theory that Mr. Spradley could have “backed out.”

The dissent contends that the jury couldn’t have found entrapment

because Mr. Spradley had a chance to “back out” when the fictitious girl

asked if her age posed a problem. This contention is new.

Unlike the dissent, the government hasn’t

• characterized the fictitious girl’s disclosure of her age as an opportunity for Mr. Spradley to “back out” or

• argued that the chance to “back out” would have foreclosed a finding of entrapment.

The dissent resists characterization of its position as “new,” calling it

an “application of governing law” on the issue of inducement. Dissent at

13 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 14

10. But this position is new regardless of the dissent’s characterization as

an application of law to the broader issue of inducement. After all, the

government doesn’t refer to a chance to “back out” or argue that this

chance would alone prevent an instruction on entrapment.

The dissent disagrees, interpreting the government’s appeal brief as

arguing that an instruction on entrapment was unnecessary because

Mr. Spradley had turned down a chance to back out. Id. at 8–9. For this

interpretation, the dissent relies on several sentences pointing out that

Mr. Spradley continued to message the fictitious girl after she had said she

was seventeen. Id. Of course, the jury could consider Mr. Spradley’s

continued messaging in connection with an entrapment defense; no one

suggests otherwise. But the dissent goes an additional step, arguing that a

chance to back out—in itself—would prevent a finding of inducement

irrespective of any other factors. The government never made this

argument.

The dissent also relies on two parts of a motion in limine in district

court. Id. at 9. But we focus on the parties’ arguments here rather than in

district court. See Safeway Stores 46 Inc. v. WY Plaza LC, 65 F.4th 474,

496 (10th Cir. 2023) (restricting consideration of arguments to affirm on

alternative grounds to those arguments that the appellee presented on

appeal rather than in district court).

14 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 15

Given the government’s failure to argue that the chance to back out

was alone fatal to an entrapment defense, “we follow the principle of party

presentation.” United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020).

This principle counsels against “craft[ing] arguments sua sponte to affirm

on alternate grounds” and reaffirms our role as neutral adjudicators of the

parties’ arguments. United States v. Woodard, 5 F.4th 1148, 1154 (10th Cir.

2021). Given our role as neutral adjudicators, we ordinarily decline to

affirm on a ground sua sponte when “the parties have not had an

opportunity” to brief the issue. United States v. Chavez, 976 F.3d 1178,

1203 n.17 (10th Cir. 2020).

Granted, we can (1) independently state the law even when the

parties share a misunderstanding, Kamen v. Kemper Fin. Servs., Inc., 500

U.S. 90, 99 (1991), and (2) affirm on alternative ground when the record is

developed on a point of law, Elkins v. Comfort, 392 F.3d 1159, 1162 (10th

Cir. 2004). So when a party presents an argument, we aren’t constrained by

the parties’ legal theories. See Kamen, 500 U.S. at 99 (“When an issue or

claim is properly before the court,” the court can “identify and apply the

proper construction of governing law.”). For example, we can sua sponte

• arrive at our own interpretation of a statute even when the parties share a different understanding, Oklahoma v. United States Dep’t of Health & Hum. Servs., 107 F.4th 1209, 1222 n.11 (10th Cir. 2024) (stating that “we must independently interpret the [applicable] statutory phrase irrespective of the parties’ positions”), cert. granted, judgment vacated on other grounds sub nom. Oklahoma v. Dep’t of Health & Hum. Servs., 15 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 16

No. 24-437, 2025 WL 1787685 (U.S. June 30, 2025); WWC Holding Co. v. Sopkin, 488 F.3d 1262, 1276 n.10 (10th Cir. 2007) (“[W]e are not limited to the parties’ positions on what a statute means, because we review a question of statutory construction de novo.”),

• characterize a contract as ambiguous even when the parties regard the meaning as clear, United States v. Cortez-Nieto, 43 F.4th 1034, 1052 (10th Cir. 2022), 5 or

• define the standard of review even when the parties share a different understanding of the standard, United States v. Garcia, 74 F.4th 1073, 1094 (10th Cir. 2023).

In this case, however, the dissent isn’t suggesting that the parties are

wrong about the law. Instead, the dissent is making a new argument that

Mr. Spradley can’t assert entrapment because he declined to back out when

the fictitious girl said she was 17.

For new arguments, we have discretion to affirm on any ground

supported by the record. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130

(10th Cir. 2011). But when deciding whether to exercise that discretion, we

consider whether

• the alternative theory was briefed,

• the parties had an opportunity to develop the factual record, and

5 The dissent cites a minority opinion in United States v. Hohn, 123 F.4th 1084, 1119–30 (10th Cir. 2024) (en banc) (Bacharach, J., concurring in part & dissenting in part), cited in Dissent at 10. This minority opinion takes a similar approach, stating that we can take a middle ground on the burden of proof when the parties take more extreme positions. Id. at 1129 n.7. 16 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 17

• the question presented is one of law or fact.

Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004). Here, however,

the government hasn’t argued that Mr. Spradley’s chance to back out would

alone prevent a defense of entrapment. And given the absence of such an

argument, the parties haven’t pointed to a record on the issue.

The government could have argued, as the dissent does, that

Mr. Spradley can’t assert entrapment based solely on his failure to “back

out” when the fictitious girl said she was seventeen. If the government had

urged affirmance on this ground, Mr. Spradley might have countered with

other appellate arguments. But even without any appellate argument on the

issue, the record contains testimony that Mr. Spradley didn’t believe the

fictitious girl when she said she was seventeen.

Mr. Spradley’s skepticism is supported by his actions. Those actions

did involve continued messaging, as the dissent points out. But

Mr. Spradley also insisted on a photo, researched the metadata on the

eventual photo, determined that it had been heavily altered, and insisted on

a phone call. See pp. 7–10, above. From Mr. Spradley’s testimony and his

actions, a reasonable jury could find that Mr. Spradley hadn’t believed that

the fictitious girl was under 18. Id. And if Mr. Spradley didn’t believe that

he was messaging with a 17-year-old girl, as he testified, he would have

had no reason to “back out” when the fictitious girl asked if her age would

create a problem. 17 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 18

Of course, the jury ultimately found that Mr. Spradley had believed

that the fictitious girl was 17 by the time that he drove to Kansas. By that

time, however, the law-enforcement officer had sent multiple messages,

which the jury could interpret as efforts to develop a rapport with

Mr. Spradley and to loosen his resistance. See pp. 10–11, above. But the

dissent’s theory of a chance to back out involves Mr. Spradley’s belief

when the fictitious girl said she was 17—not when Mr. Spradley later made

the drive to Kansas.

Even if the issue were otherwise suitable for us to consider, we

would typically affirm on a new ground only if the disposition were clear.

See Griffith v. El Paso Cnty., 129 F.4th 790, 816 (10th Cir. 2025)

(declining to affirm on an unpresented argument because the outcome

would be “unclear” “at best”); Ave. Cap. Mgmt. II, L.P. v. Schaden, 843

F.3d 876, 886 (10th Cir. 2016) (“[E]ven for matters of law, we decline to

consider newly presented legal arguments unless the proper legal

disposition is beyond reasonable doubt.”); United States v. Lyons, 510 F.3d

1225, 1238 (10th Cir. 2007) (“Our discretion allows us to determine an

issue raised for the first time on appeal if it is a pure matter of law and its

proper resolution is certain.”). If we were to entertain the dissent’s theory,

its applicability here would be unclear.

Granted, we have not required an entrapment instruction when the

government argued that the defendant (1) had believed that he was

18 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 19

communicating with an underage girl and (2) had turned down a chance to

“back out.” For example, these arguments appeared in United States v.

Robinson, 993 F.3d 839 (10th Cir. 2021), and United States v. Munro, 394

F.3d 865 (10th Cir. 2005).

In Robinson, a law-enforcement officer posed as a 17-year-old girl.

993 F.3d at 845. But the defendant never suggested that he had questioned

whether he was communicating with a 17-year-old girl. Instead, he

testified only that he was “hesitant to proceed” upon learning that the girl

was only 17. Id. We concluded that rather than back out, the defendant

“caused the relationship to progress” by making plans to get a fake ID,

asking the fictitious girl to delete messages, and buying her a bus ticket.

Id. at 847.

Similarly, Munro involved an undercover operation with a law-

enforcement officer pretending to be a 13-year-old girl. 394 F.3d at 868.

When the fictitious girl said that she was just 13, the defendant asked

about sex and proposed oral sex. Id. We concluded that the evidence was

insufficient for an instruction on entrapment, pointing to the officer’s

testimony that he had given the defendant multiple chances to back out and

he declined. Id. at 871–72. But the defendant didn’t deny that he had

believed that he was communicating with a 13-year-old girl. See id.

The dissent argues that Robinson and Munro show that when a

defendant bypasses a chance to back out from a crime, the district court

19 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 20

can decline to instruct on entrapment irrespective of any other factors.

Dissent at 4–5. In these cases, however, the defendants never questioned

whether they were messaging with underage girls. In contrast,

Mr. Spradley testified that he had

• decided from the outset that the other person wasn’t who she was pretending to be,

• not believed that the person was 17 years old,

• insisted on a photo and phone call to try to determine why the person was lying, and

• researched the metadata on the photo and determined that it was heavily altered.

Nothing similar existed in Robinson or Munro; in those cases, the

defendants hadn’t doubted the fictitious girls’ statements. See pp. 19–20,

above.

The dissent also suggests that we should focus solely on the

government’s conduct and disregard Mr. Spradley’s actual beliefs because

the inducement test is objective. Dissent at 13–15. This suggestion assumes

that a refusal to “back out” requires disregard of Mr. Spradley’s skepticism

about the girl’s truthfulness when presented with the purported chance to

back out.

We lack briefing on the issue, and our court hasn’t decided whether

the test for inducement is objective, subjective, or mixed. But two circuits

have addressed the test: The D.C. Circuit says the test is objective, the

20 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 21

Ninth Circuit subjective. Contrast United States v. Sanchez, 88 F.3d 1243,

1249 (D.C. Cir. 1996) (objective test), abrogated in part on other grounds

by Peguero v. United States, 526 U.S. 23, 24 (1999), with United States v.

Williams, 547 F.3d 1187, 1197 (9th Cir. 2008) (subjective test). We not

only have a circuit split but also lack any briefing on the objectivity or

subjectivity of the test. Despite this lack of pertinent briefing on the issue,

the dissent sides with the D.C. Circuit, treating the test as objective.

Dissent at 13–15. We view it as imprudent to sua sponte decide the issue

without any briefing.

Even if we were to side with the D.C. Circuit, however, it hasn’t

suggested that courts should disregard the defendant’s actual

characteristics. After all, some individuals are “particularly susceptible to

inducement,” which is a subjective inquiry. United States v. McGill, 754

F.3d 452, 459 (7th Cir. 2014). So even under an objective test, the court

might consider a defendant’s particular susceptibility to inducement. Id. 6

6 Citing United States v. Sanchez, the dissent states that the objective test “look[s] at the government’s behavior in relation to a hypothetical reasonable, law-abiding citizen.” Dissent at 13. But Sanchez doesn’t say that we disregard the defendant’s actual characteristics or susceptibilities. See United States v. Sanchez, 88 F.3d 1243 (D.C. Cir. 1996), abrogated in part on other grounds by Peguero v. United States, 526 U.S. 23, 24 (1999). In fact, many circuits even allow expert testimony on a defendant’s particular susceptibility to inducement. E.g., United States v. Nunn, 940 F.2d 1148, 1149 (8th Cir. 1991) (“Expert testimony of a psychiatrist or psychologist is admissible to prove a defendant’s unusual susceptibility to inducement.”); United States v. Sandoval-Mendoza, 472 F.3d 645, 655–56

21 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 22

Given the lack of input from the parties, we have little reason to

reach beyond the parties’ arguments. The existence of a chance to back out

turns on facts involving Mr. Spradley’s susceptibility to inducement, and

those underlying factual questions cast uncertainty on the outcome under

the dissent’s approach.

We addressed similar circumstances in United States v. Chavez, 976

F.3d 1178 (10th Cir. 2020). There too, we considered whether to affirm a

conviction on a theory that the government hadn’t argued. We declined to

do so, reasoning that it would be imprudent to do so. Id. at 1203 n.17. In

declining to entertain the theory, we reasoned that it would be imprudent to

“craft[] arguments for affirmance completely sua sponte and, more

(9th Cir. 2006) (stating that expert medical opinion testimony on a defendant’s unusual vulnerability to inducement is admissible when adequately supported because such testimony “is highly relevant to an entrapment defense”); United States v. Hill, 655 F.2d 512, 516 (3d Cir. 1981) (concluding that expert testimony may be admissible on a defendant’s susceptibility to inducement from subnormal intelligence or psychological characteristics), implicitly overruled in part on other grounds as recognized by United States v. Bay, 852 F.2d 702, 703 (3d Cir. 1988); United States v. Newman, 849 F.2d 156, 165 (5th Cir. 1988) (“We conclude that when an entrapment defense is raised, expert psychiatric testimony is admissible to demonstrate that a mental disease, defect or subnormal intelligence makes a defendant [particularly] susceptible to inducement.”).

22 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 23

specifically, without the benefit of the parties’ adversarial exchange.” Id. 7

We also addressed the issue in United States v. Woodard, where we again

regarded it as imprudent to affirm on a ground that the government hadn’t

raised. 5 F.4th 1148, 1154 (10th Cir. 2021); see also Safeway Stores 46

7 In Chavez, we explained:

[T]he Dissent crafts arguments for affirmance completely sua sponte and, more specifically, without the benefit of the parties’ adversarial exchange. As a jurisprudential matter, this is imprudent, and—under these circumstances, where we have demonstrated (with reference to the parties’ arguments) that [the defendant’s] conviction rests unjustly on legal error—it is troubling. “[T]he adversary system is a cornerstone of our jurisprudence.” Indeed, the very notion of “judicial precedent implies that the point to the decision ... should have been argued by opposing counsel.” This adversarial testing serves important ends: notably, it increases the odds that the court will “reach the ‘correct’ decision because the advocates will uncover and present more useful information and arguments ... than the court would develop on its own.” After all, “[c]ounsel almost always know a great deal more about their cases than we do.” To be sure, appellate courts have the “discretion to affirm on any ground adequately supported by the record.” But ordinarily, in exercising that discretion, we have been—as a matter of basic fairness—“guided” by whether the parties have “fully briefed and argued” the alternate ground, and whether they have had “a fair opportunity to develop the factual record.” These circumstances are conspicuously absent here. Accordingly, we deem the Dissent’s sua sponte handiwork to be, again, not only imprudent, but—under these circumstances, where [the defendant’s] demonstrably infirm conviction hangs in the balance—troubling. Because the parties have not had an opportunity to engage with the merits of the Dissent’s arguments, neither will we.

976 F.3d at 1203 n.17 (citations omitted).

23 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 24

Inc. v. WY Plaza LC, 65 F.4th 474, 496 (10th Cir. 2023) (stating in a civil

case that “we generally consider it imprudent to consider grounds for

affirmance that the appellee has not argued on appeal”).

Like the majorities in Chavez and Woodard, we consider it imprudent

to affirm on a theory that the government hasn’t raised. We can speculate

about how Mr. Spradley might have countered if the government had

argued that a chance to back out would alone prevent an instruction on

entrapment. Even without knowing how Mr. Spradley would have

countered, however, the record contains testimony that Mr. Spradley had

disbelieved the fictitious girl when she said that she was 17. We thus view

it as imprudent to affirm on a theory of our own device, particularly when

the outcome isn’t clear.

4. The failure to instruct on entrapment is not harmless.

The government argues that even if the district court should have

instructed the jury on entrapment, the omission would have been harmless

because the evidence overwhelmingly shows a predisposition to commit the

offense and little evidence of inducement. For this argument, the

government simply incorporates its earlier characterization of the

evidence. Mr. Spradley responds that any error would necessarily be

reversible. We need not decide whether the error could be harmless: Even

if the error could be harmless, the government wouldn’t have satisfied its

burden. See United States v. Calzada-Maravillas, 443 F.3d 1301, 1306

24 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 25

(10th Cir. 2006) (stating that the government bears the burden on

harmlessness for preserved errors).

Because Mr. Spradley has presented sufficient evidence to obtain an

instruction on entrapment, “proof that [he] was not entrapped effectively

becomes an element of the crime.” United States v. Duran, 133 F.3d 1324,

1331 (10th Cir. 1998). So the district court’s failure to instruct on

entrapment involves omission of an element. When the instructions omit an

element, we’ve identified two standards for harmlessness. United States v.

Kahn, 58 F.4th 1308, 1318 (10th Cir. 2023). The government didn’t satisfy

either standard.

First, we have asked whether the government has proven “beyond a

reasonable doubt that the error complained of did not contribute to the

verdict obtained.” Id. (quoting United States v. Luke-Sanchez, 483 F.3d

703, 705 (10th Cir. 2007)). If this is the standard, the government wouldn’t

have satisfied its burden. Although a reasonable juror could find the

crossing of a state line to pay for sex with a minor, Mr. Spradley would

have avoided a conviction upon a finding of entrapment. But the district

court didn’t tell the jury to consider Mr. Spradley’s evidence of

entrapment. So the finding of guilt sheds no light on how the jury would

have assessed the possibility of entrapment.

Second, we have asked whether the government has proven “beyond a

reasonable doubt that the omitted element was uncontested and supported

25 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 26

by overwhelming evidence, such that the jury verdict would have been the

same absent the error.” Id. (quoting United States v. Neder, 527 U.S. 1, 17

(1999)). If this is the standard, the government still wouldn’t have satisfied

this burden. The parties disagreed over whether the government had

entrapped Mr. Spradley, and we have elsewhere held that a reasonable

juror could have found entrapment. See Part 2, above. So the evidence was

contested. See United States v. Kahn, 58 F.4th 1308, 1319 (10th Cir. 2023)

(“Where an element of an offense is contested at trial, as it was here, the

Constitution requires that the issue be put before a jury—not an appellate

court.”).

Under either standard, the government wouldn’t have satisfied its

burden on harmlessness.

* * *

Mr. Spradley has also urged reversal based on errors concerning

(1) the content of an instruction given after the jury announced a deadlock,

(2) the introduction of testimony concerning the reason that law

enforcement agents used a fictitious girl in the sting operation, and (3) the

existence of cumulative error. We need not address these arguments in

light of the district court’s erroneous failure to instruct the jury on

26 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 27

5. Mr. Spradley can be retried on remand.

Mr. Spradley challenges not only the failure to instruct on

entrapment, but also the sufficiency of evidence to convict. If the evidence

were insufficient to convict, the government could not retry Mr. Spradley.

United States v. Wheeler, 776 F.3d 736, 741 (10th Cir. 2015). So we must

decide whether the evidence was sufficient. Id. We conclude that it was.

The district court concluded that the evidence was sufficient and

denied a motion for judgment of acquittal. We conduct de novo review,

considering the evidence in the light most favorable to the government.

United States v. Murphy, 100 F.4th 1184, 1195–96 (10th Cir. 2024). With

this view of the evidence, we consider whether any rational jury could

have found the elements of guilt beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

Mr. Spradley argues that no rational jury could have found a

motivating purpose to engage in commercial sex with someone younger

than eighteen. As noted above, Mr. Spradley testified that he hadn’t

believed what the person was saying. See p. 7, above. But the jury could

disbelieve Mr. Spradley’s testimony about his intentions. United States v.

Magleby, 241 F.3d 1306, 1312 (10th Cir. 2001).

First, if we view the evidence in the light most favorable to the

government, the jury could reasonably find that Mr. Spradley had intended

to pay for sex. For this finding, the jury could rely on Mr. Spradley’s

27 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 28

• first message, stating that he would pay $500 “to spend the weekend trading orgasms,” Supp. R. vol. 1, at 5, and

• later message stating that he would bring $500.

• had opened with an offer to pay for sex because he didn’t believe that the ad was genuine and

• had not paid for sex.

But the jury didn’t have to believe Mr. Spradley’s explanation. See

Magleby, 241 F.3d at 1312.

Granted, what Mr. Spradley earlier said doesn’t provide direct

evidence of what he believed when he drove to Kansas. But a jury can draw

logical inferences from circumstantial evidence. United States v. Jones, 44

F.3d 860, 865 (10th Cir. 1995). So Mr. Spradley’s initial offer and later

reference to $500 could support a logical inference that he had intended to

pay the fictitious girl for sex.

Mr. Spradley also points out that when he crossed the state line, he

didn’t have the $500. See p. 6, above. But the jury could reasonably find

that Mr. Spradley had planned to get cash once he met the girl.

Second, Mr. Spradley testified that he hadn’t believed that he was

messaging a 17-year-old girl. See p. 7, above. But again, the jury didn’t

have to believe Mr. Spradley. For example, the jury could reasonably have

relied on the fictitious girl’s statements that (1) she was 17 and (2) her

mother had taken away access to social media. 28 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 29

Mr. Spradley argues that a jury could only speculate about

Mr. Spradley’s perception of the person’s age. We disagree. Granted, the

fictitious girl sent a photo of a female in her 30s. But we view the evidence

favorably to the government at this stage. See United States v. Roberts, 185

F.3d 1125, 1140 (10th Cir. 1999). With this view of the evidence, a jury

could logically infer Mr. Spradley’s thinking from the fictitious girl’s

statement that she was 17 and needed her mother’s permission to use social

media.

The evidence was thus sufficient to convict; so Mr. Spradley can be

retried on remand.

6. Conclusion

Given the evidence, a reasonable jury could find that the deputy

sheriff had induced Mr. Spradley to commit the offense despite his lack of

a predisposition. The district court thus erred in declining to instruct the

jury on entrapment. In light of that error, we vacate the conviction and

remand for new proceedings. In the new proceedings, Mr. Spradley is

subject to retrial 8 because the evidence was sufficient to convict.

8 The dissent states that

• our decision “may portend the end of undercover operations targeting child predators in this Circuit” and “spell[] the end of undercover operations targeting child predators in the Tenth Circuit” and

29 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 30

The mandate shall issue forthwith.

• it is unclear “how an undercover operation targeting sexual predators online could ever avoid an entrapment instruction.”

Dissent at 2, 17. Respectfully, we do not share these concerns.

We’re concluding only that the district court should have instructed the jury on entrapment. On remand, the district court may retry the defendant; and the new jury might reject the defense of entrapment. In any event, we’ve not questioned the government’s ability to target child predators through undercover operations.

And if the government argues in a future case that the defendant could have backed out, we can address this issue. Our opinion here wouldn’t constrain us because we’re not deciding the merits of the dissent’s sua sponte theory to affirm. See Merrifield v. Bd. of Cnty. Comm’rs, 654 F.3d 1073, 1084 (10th Cir. 2011) (“It is elementary that an opinion is not binding precedent on an issue it did not address.”). 30 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 31 No. 23-3222, United States v. Spradley

EID, J., dissenting.

Steven Spradley responded to an undercover agent’s online advertisement,

which made no mention of sex, by offering $500 “to spend the weekend trading

orgasms with [him].” Supp. R. Vol. I at 5. The undercover officer, posing as a

seventeen-year-old girl named “Ashlee,” replied that she was interested in Spradley’s

offer, but cautioned that she was underage. She even went so far as to ask Spradley

whether her age posed a “problem,” providing him with an opportunity to back out of

any plan to have sex with a minor. Id. at 6. Instead of ending the conversation or

withdrawing his offer to pay $500 for sex, Spradley continued communicating with

Ashlee, eventually driving to a neighboring state to meet Ashlee in the hopes of

having, in his words, “great sex.” Id. at 27.

Given these facts, the district court was not required to instruct the jury on

Spradley’s desired entrapment defense. When, as here, an undercover agent offers a

defendant an “out” that the defendant refuses to take, it can hardly be said that the

government “induced” an otherwise law-abiding citizen to commit a crime. Instead,

in such a circumstance, it is the defendant who makes the deliberate choice to commit

the offense—not because of any government action, but because of his own

predisposition. In fact, our Circuit has already recognized that the “need for an

entrapment instruction” is “vitiat[ed]” when the government gives the defendant an

“opportunity to back out” of the crime. United States v. Munro, 394 F.3d 865, 871–

72 (10th Cir. 2005).

1 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 32 No. 23-3222, United States v. Spradley

This settled principle leads to the inevitable conclusion that the government

did not entrap Spradley. But the majority concludes otherwise. Because I cannot

agree with the majority’s approach to determining what constitutes government

“inducement”—which, I fear, may portend the end of undercover operations targeting

child predators in this Circuit—I respectfully dissent. 1

I.

A.

To explain why Spradley is not entitled to an entrapment instruction, I begin

with the definition of entrapment. It is well settled that, to mount a valid entrapment

defense, a defendant must show an evidentiary basis on which the jury could find

(1) “government inducement of the crime,” and (2) “a lack of predisposition on the

part of the defendant to engage in the criminal conduct.” Mathews v. United States,

485 U.S. 58, 62–63 (1988). “The primary distinction between these elements,” we

have explained, “is that inducement focuses on the government’s conduct while

predisposition focuses on a defendant’s attitude or condition.” United States v.

Young, 954 F.2d 614, 616 (10th Cir. 1992).

1 I dissent on the entrapment issue, but I agree with the majority that there was sufficient evidence to support Spradley’s conviction for traveling with a motivating purpose of engaging in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). Spradley does not dispute that the government proved beyond a reasonable doubt that he traveled in interstate commerce. And the jury heard overwhelming evidence that the entire purpose of Spradley’s trip to Kansas was to engage in sex with “Ashlee”— who he was told was seventeen years old—in exchange for $500. 2 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 33 No. 23-3222, United States v. Spradley

Accordingly, inducement encompasses only “government conduct which

creates a substantial risk that an undisposed person or otherwise law-abiding citizen

would commit the offense.” United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir.

1986) (emphasis added). That inquiry is an “objective” one, “measuring whether the

government’s behavior was such that a law-abiding citizen’s will to obey the law

could have been overborne.” United States v. Kelly, 748 F.2d 691, 697 (D.C. Cir.

1984).

But there is no risk that the government’s conduct would cause a law-abiding

citizen to commit a criminal offense when the government provides the potential

defendant with an opportunity to withdraw from engaging in criminal conduct. An

otherwise law-abiding citizen will always choose to withdraw when presented with

information that their conduct, if continued, would constitute a criminal offense.

That conclusion derives both from common law and from common sense. In

particular, it traces back to fundamental principles of causation. Inducement, as the

Supreme Court has construed it, looks to the causal relationship between the

government’s conduct and the defendant’s criminal act. See Sorrells v. United

States, 287 U.S. 435, 452 (1932). When the government offers the target of an

undercover operation an opportunity to back out of committing the crime, the

government’s actions are not the predominant cause of the crime. Rather, the crime

is attributed to the defendant’s own free choice. In that way, the defendant’s decision

to decline the chance to “back out” acts as an intervening circumstance, severing the

causal link between the government’s conduct and the defendant’s criminal act.

3 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 34 No. 23-3222, United States v. Spradley

In light of the foregoing, our Court has repeatedly concluded that a jury

instruction for entrapment is not warranted when an undercover agent offered the

defendant a chance to back out of the charged crime.

For instance, in United States v. Robinson, 993 F.3d 839 (10th Cir. 2021), we

confronted the question of whether a sting operation—remarkably similar to the one

here—entrapped a defendant convicted of attempted sex trafficking of a minor in

violation of 18 U.S.C. § 1591(a). There, the FBI had created a fictitious social media

profile on a dating website and matched with the defendant, who was seeking to

recruit prostitutes for a business venture. Id. at 843. After showing interest in the

defendant’s prostitution business, the undercover agent informed the defendant that

“she was only seventeen years old.” Id. “Despite learning” that she was a minor, the

“[d]efendant caused the relationship to progress.” Id. at 847. In fact, “[f]ar from

ending things, [the] [d]efendant kept communicating with” the undercover agent,

“bought her a bus ticket” to see him, and continued to send sexually explicit

messages. Id. We held that the government did not induce the defendant “to engage

in illegal conduct with a minor” because “[w]hen the government disclosed [that the

fictitious girl] was underage, it provided [the] [d]efendant with an out he refused to

take.” Id. That alone, we explained, was sufficient to defeat an entrapment defense

as a matter of law. Id.

For support, Robinson cited our decision in United States v. Munro, 394 F.3d

865 (10th Cir. 2005). In Munro, we held that the defendant was not entitled to an

entrapment instruction because the undercover officer “gave [the defendant] more

4 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 35 No. 23-3222, United States v. Spradley

than one opportunity to back out” of meeting a minor to engage in sexual activity.

Id. at 871. Specifically, after identifying herself as a thirteen-year-old girl and

agreeing to meet to have sex, the undercover officer stated, “i don’t want [to] sneak

out and have this be a joke for u,” and asked, “So u will be there and u not messing

with me?” Id. at 872 n.1. The officer testified at trial that he sent these messages “to

give the individual an easy way out of backing out of the chat if they are not fully

intending on meeting a young child.” Id. That, the Court explained, “vitiat[ed] the

need for an entrapment instruction.” Id. at 872–73.

The upshot of these two cases is clear: when the government either discloses

information that would put the defendant on notice that his conduct, if continued,

would constitute a criminal offense, or provides the defendant with a way to back out

of the crime, there is no government inducement. 2 Without inducement, an

entrapment defense must fail. Robinson, 993 F.3d at 847.

B.

Applying our well-settled precedent to the facts of this case, I would conclude

that Spradley was not entitled to have the jury hear his entrapment defense. As in

2 The First Circuit has similarly held that government conduct does not amount to inducement when an undercover officer gives the defendant an “opportunity to back away from the crime.” United States v. Vasco, 564 F.3d 12, 19 (1st Cir. 2009); see United States v. Cascella, 943 F.3d 1, 8 (1st Cir. 2019). The Eleventh Circuit, meanwhile, has suggested that “[e]vidence that a defendant was afforded an opportunity to back out of a transaction and did not avail himself of that opportunity [ ] constitutes evidence of predisposition.” See United States v. Ventura, 936 F.2d 1228, 1231 (11th Cir. 1991). Whether properly analyzed under the inducement or predisposition prong, the result is the same: a defendant who fails to take advantage of a chance to back out of the crime cannot establish entrapment. 5 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 36 No. 23-3222, United States v. Spradley

Robinson and Munro, the government could not have induced Spradley because it

provided Spradley with an out—an out that Spradley refused to take.

Within the first few messages of their conversation, after discussing Spradley’s

money-for-sex offer, the undercover agent informed Spradley that “Ashlee” was

seventeen. Not only did the officer disclose that she was a minor, but the officer also

specifically asked Spradley if that posed a problem, indicating that their arrangement

was wrongful. 3 Supplied with the requisite information to know that his conduct, if

continued, would be unlawful––yet with a readily available escape hatch––Spradley

forged ahead. Without any reservation, he continued to communicate with Ashlee,

confirming his plan to have sex with her in exchange for $500 and eventually

offering to drive across state lines to pick her up to facilitate their meeting. And he

continued to share intimate and sexually explicit messages with her until the day he

was arrested after driving from Kansas City to Topeka to meet her. Thus, all of

Spradley’s conduct following Ashlee’s disclosure that she was a minor indicates that

he declined the government’s offer to back out of the crime.

3 Despite the majority’s suggestion that Spradley faced no criminal liability until the government persuaded him to drive across the Kansas border, see Maj. Op. at 12, knowingly “[h]iring a person younger than 18 years of age by . . . offering . . . anything of value to any person, to engage in . . . sexual intercourse” constitutes commercial sexual exploitation of a child under Kansas law. Kan. Stat. Ann. § 21- 6422(a)(1). Consequently, when Spradley declined the government’s out, he committed a felony, even if he was not ultimately charged with that crime in state court. Had he accepted the government’s offer to back out, he would not have continued to commit the crimes he did, including the federal crime he was convicted of here. In that way, the government’s conduct did not induce an otherwise law- abiding citizen to commit any crimes—much less the crime of traveling with the purpose of engaging in commercial sex with a minor. 6 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 37 No. 23-3222, United States v. Spradley

In fact, the government’s case here is even stronger than in Robinson and

Munro, because the undercover agent went beyond merely disclosing Ashlee’s age

and explicitly asked Spradley whether that fact posed a problem. The officer’s

question not only put Spradley on notice that their arrangement was unlawful, but it

also provided Spradley with a clear opportunity to back out of the crime.

The government’s conduct, therefore, could not and did not create “a

substantial risk that an undisposed person or otherwise law-abiding citizen would

commit the offense.” Ortiz, 804 F.2d at 1165. Any law-abiding citizen would have

ended the conversation or withdrawn the offer to pay for sex the moment he learned

that he was communicating with a minor. Any law-abiding citizen certainly would

not have continued to send sexually explicit messages 4 and would not have driven

over sixty miles across state lines to have sex with a minor in exchange for money.

Thus, the government’s conduct did not induce Spradley to travel with the purpose of

engaging in commercial sex with a minor.

C.

The majority does little to rebut this unavoidable conclusion. Instead, the

majority resorts to the party presentation principle to skirt the issue, simultaneously

4 The majority suggests that much of the conversation about the money-for-sex scheme was a joke because Spradley included internet slang at the end of his messages. Maj. Op. at 6. But including common slang like “laugh out loud” or “lawlz” at the end of a message, even when viewed in the light most favorable to the defendant, does not automatically turn a serious message into a joke, shielding the participants from criminal liability.

7 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 38 No. 23-3222, United States v. Spradley

misapplying it here and drastically overstating its applicability in the process. And

what little the majority does say about the government-provided “out” demonstrates

that the majority fundamentally misunderstands the inquiry under the inducement

prong.

1.

The majority refuses to apply these principles of inducement in part because it

claims that the government never advanced the argument that the undercover agent

provided an “out” to Spradley, which in turn negated inducement. But a quick look

at the government’s brief on appeal belies the majority’s claim. In a nutshell, here’s

what the government argued: the “exchanges” between Spradley and the undercover

agent demonstrate that the government’s conduct “did not create a substantial risk

that an undisposed person would agree to cross state lines in order to purchase sex

from a minor.” Aple. Br. at 34–35. Those exchanges included telling Spradley “that

[Ashlee] was 17 years old and ask[ing] [him] if that was a problem.” Id. at 35. And

the government pointed out that Spradley “voiced no objection” when he learned

“Ashlee was 17 years old,” instead deciding to continue their sexually explicit

conversation and make plans to have sex in exchange for money. Id. The

government concluded its argument on the inducement prong by stating the

following:

These exchanges make clear that Ashlee did not induce Defendant to offer to pay her money for sex through persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship. On the contrary, Defendant proposed

8 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 39 No. 23-3222, United States v. Spradley

the crime and stated that he was eager to carry it out even after Ashlee told him she was 17 years old.

Id. at 35–36 (emphasis added).

That latter point echoed what the government stated below when it argued that

there was no inducement because Spradley “had multiple opportunities to withdraw

from the conversation but did not.” R. Vol. I at 156. Thus, although the government

did not attach a label to its argument or use the phrase “back out,” it argued in

substance that the agent’s disclosure of Ashlee’s age and Spradley’s decision to forge

ahead defeated inducement. In my view, that is the only plausible way to understand

the government’s position.

The majority seemingly takes issue with the government’s failure to expressly

characterize the undercover agent’s disclosure of Ashlee’s age as an opportunity to

“back out” of committing the crime. But we have never required litigants to use

magic words to identify their legal theories, nor have we placed any special

importance on a party’s characterization of its own argument. The substance of the

argument is all that matters. And here, the government’s argument was, in essence,

that it did not induce Spradley because it disclosed Ashlee’s age and asked if her

underage status posed a problem, thereby providing “multiple opportunities to

withdraw from the conversation.” R. Vol. I at 156. The majority’s contention that I

am crafting a “new” argument for the government is baffling, to say the least.

Even assuming the government had not advanced this precise theory, the party

presentation principle would not prevent our Court from applying the principles

9 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 40 No. 23-3222, United States v. Spradley

discussed above to this case. I agree with the majority that federal courts generally

“rely on the parties to frame the issues for decision.” Greenlaw v. United States, 554

U.S. 237, 244 (2008). However, once “an issue or claim is properly before the court,

the court is not limited to the particular legal theories advanced by the parties, but

rather retains the independent power to identify and apply the proper construction of

governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); United

States v. Hohn, 123 F.4th 1084, 1129 n.7 (10th Cir. 2024) (en banc) (Bacharach, J.,

dissenting in part) (quoting the same). Relying on this language, we have previously

explained that the party presentation principle seeks to prevent our Court from

“raising new issues.” United States v. Cortez-Nieto, 43 F.4th 1034, 1052 (10th Cir.

2022). But “once a party raises an issue, we are not required to ‘render [our]

decision in accordance with the position of one of the parties.’” Baca v. Cosper, 128

F.4th 1319, 1327 n.5 (10th Cir. 2025) (alteration in original) (quoting Cortez-Nieto,

43 F.4th at 1052).

Here, whether the government induced Spradley to commit the offense is not a

“new” issue. Both parties raised and extensively briefed the issue. See Aplt. Br. at

46–49; Aple. Br. at 33–36. My view as to why no government inducement occurred

here—that is, because the government offered Spradley an opportunity to back out of

committing the crime—is therefore only an application of governing law within the

already-presented issue of inducement. In that way, my position does not run afoul

of the party presentation principle. Simply put, the party presentation principle is not

even implicated.

10 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 41 No. 23-3222, United States v. Spradley

Instead, my position—even ignoring the fact that the government did advance

it—would conform with the longstanding principle that “we may affirm on any basis

supported by the record, even if it requires ruling on arguments not reached by the

district court or even presented to us on appeal.” Richison v. Ernest Grp., Inc., 634

F.3d 1123, 1130 (10th Cir. 2011) (Gorsuch, J.). As we have cogently explained, the

power to affirm on alternate grounds is not just a power but a duty:

This broad power to affirm extends beyond the counter-arguments raised by the appellee; it includes any ground for which there is record to support conclusions of law. Once the appellant alleges the district court erred, we have a duty to assess the validity of the appellant’s allegations. This duty arises in part out of our relationship with the district court, and we may not neglect it simply because an appellee fails to defend adequately the district court’s decision. To do so would open the door to a perverse jurisprudence by which properly decided district court decisions could be reversed.

Hernandez v. Starbuck, 69 F.3d 1089, 1093–94 (10th Cir. 1995). Therefore, contrary

to the majority’s view, a party’s argument—or lack thereof—does not require our

Court to “sacrifice the integrity of our jurisprudence” at the expense of adhering to

the “party presentation principle.” Short v. Hartman, 87 F.4th 593, 604 (4th Cir.

2023).

The majority brushes all this aside, suggesting that I am making a factual

argument—one inappropriate for us to consider sua sponte. But that entirely

misstates my position. I am not embroiling the Court in a factual dispute about

whether the government provided Spradley with an “out”; to the contrary, I am

merely concluding—based on the undisputed facts in the record—that the

government’s conduct does not amount to inducement as a matter of law. We have

11 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 42 No. 23-3222, United States v. Spradley

routinely concluded that whether the government’s conduct amounted to inducement

is a question of law, not one of fact. See, e.g., United Sates v. Vincent, 611 F.3d

1246, 1249–50 (10th Cir. 2010) (“Whether there is evidence sufficient to constitute a

triable issue of entrapment is a question of law.” (cleaned up)); see also Sherman v.

United States, 356 U.S. 369, 372 (1958) (concluding that “entrapment was

established as a matter of law” based on the record).

In this case, it is uncontroverted that the government provided an out which

Spradley refused to take. In fact, Spradley, in his opening brief, admits that Ashlee

sent him a message saying, “Im 17 is that a problem?” Aplt. Br. at 6. He further

admits that, notwithstanding Ashlee’s disclosure, he did not end the conversation or

withdraw his offer to have sex in exchange for money. Id. at 7. Consequently, there

is no dispute that the undercover agent disclosed Ashlee’s age, asked if her age posed

a problem, and with that information in mind, Spradley did not end the conversation.

Based on those facts alone, I would conclude that Spradley is not entitled to an

entrapment decision as a matter of law. That is not a factual conclusion—it is a legal

one based on the evidence in the fully developed record. The majority’s reliance on

the party presentation principle is thus unavailing.

2.

After erroneously suggesting that my position is barred by the party

presentation principle, the majority attempts to distinguish this case from our line of

cases refusing to require an entrapment instruction when the government provided a

chance to “back out.” Maj. Op. at 18–20. Relying primarily on Spradley’s own

12 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 43 No. 23-3222, United States v. Spradley

testimony that he did not believe the person he was communicating with was under

eighteen, the majority claims that Spradley had no reason to “back out.” Thus, as the

majority sees things, the government did not give Spradley a legitimate opportunity

to back out of committing the crime because Spradley refused to believe Ashlee’s

warning that she was seventeen.

There are two critical problems with this argument. First, the majority

misunderstands the inducement analysis, focusing not on the government’s conduct

but rather on the defendant’s subjective state of mind. As the name suggests, the

proper focus of government inducement is on the government’s conduct. Young, 954

F.2d at 616. Correctly understood, the inducement inquiry assesses whether the

government’s conduct was so coercive or overly persuasive that it “creates a

substantial risk that an undisposed person or otherwise law-abiding citizen would

commit the offense.” Ortiz, 804 F.2d at 1165; see also Paul Marcus, The Entrapment

Defense § 5.09 (5th ed. 2016) (“The crucial proof question can be stated succinctly:

When does the government involvement constitute such overreaching that the

defendant should be freed from criminal responsibility?”). That inquiry, as noted

above, is an “objective” one, looking at the government’s behavior in relation to a

hypothetical reasonable, law-abiding citizen. See United States v. Sanchez, 88 F.3d

1243, 1249 (D.C. Cir. 1996). The defendant’s subjective state of mind, therefore, is

irrelevant in determining whether the government’s conduct amounted to

13 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 44 No. 23-3222, United States v. Spradley

inducement. 5 How a particular defendant responded, or what the defendant believed

to be true, cannot factor into whether the government’s conduct was overreaching in

the first place.

True, a defendant needs to have notice of the government-provided “out” in

order to negate inducement, but that does not change the nature of the inquiry—it

remains an objective one. Here, the undercover agent, upon receiving Spradley’s

offer to have sex in exchange for money, warned Spradley that “Ashlee” was

seventeen and asked if Spradley was fine with having sex with a minor. Any

reasonable, law-abiding citizen would be on notice that the transaction was illicit and

would know that there was an easy way to back out by simply saying no. Thus, even

5 While the majority rightly notes that assessing inducement can sometimes involve considering the defendant’s characteristics or susceptibilities, it overlooks that such characteristics and susceptibilities are relevant to inducement only if the government knows and takes advantage of those attributes to cause a defendant to commit a crime. Without such knowledge, it would be illogical to conclude that the government’s conduct was overreaching because of a defendant’s particular susceptibility. Consequently, even when the defendant’s individual characteristics are relevant, the inducement analysis remains focused on the government’s conduct with respect to what the government knew or should have known about the defendant—not on the defendant’s subjective beliefs. See United States v. Montoya, 844 F.3d 63, 67–68 (1st Cir. 2016) (explaining that the government’s knowledge of the defendant’s characteristics, such as the defendant’s drug addition, can factor into the inducement inquiry if “the government cooperator used [the defendant’s] addiction either to engender sympathy or to create a sense of urgency”). Here, the record does not show that the government knew about some susceptibility or characteristic and took advantage of it. Rather, the undercover agent had no reason to know Spradley was skeptical that Ashlee was underage. In that way, Spradley’s belief about Ashlee’s age is irrelevant in determining whether the government’s conduct was overreaching. 14 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 45 No. 23-3222, United States v. Spradley

if Spradley himself failed to appreciate the opportunity to back out of the crime, that

subjective belief does not matter.

The second flaw with the majority’s argument is that it conflicts with the

jury’s explicit findings. The majority concludes that, based on Spradley’s “testimony

and [ ] actions, a reasonable jury could find that Mr. Spradley hadn’t believed that the

fictional girl was under 18.” Maj. Op. at 17. But this jury found the exact opposite.

To find Spradley guilty of violating 18 U.S.C. § 2423(b), the jury had to find

“beyond a reasonable doubt that Mr. Spradley believed the victim to be an actual

minor person.” R. Vol. I at 330. Therefore, by convicting Spradley, the jury

necessarily rejected the contention that Spradley believed Ashlee was over eighteen.

And nothing in the record—beyond Spradley’s self-serving testimony 6—

suggests that Spradley believed Ashlee was lying about her age when she offered him

an out. The majority points to the fact that the undercover agent sent “multiple

messages” to Spradley following their initial interaction, “loosen[ing] his resistance”

and leading him to believe she was telling the truth about being underage. Maj. Op.

at 18. But these subsequent messages had the opposite effect—as Spradley himself

argued. Reply Br. at 3 (arguing that Spradley did not believe Ashlee was seventeen

in part because of the “obviously highly filtered photo that Ashlee sent to Spradley”).

In other words, when the undercover agent sent a photo of a thirty-year-old woman

6 As we have made clear, “conclusory and self-serving statements” by themselves are not enough “to establish a triable issue” for an entrapment defense. Ortiz, 804 F.2d at 1165–66. 15 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 46 No. 23-3222, United States v. Spradley

and demonstrated detailed knowledge of sexual concepts, it made it more likely—not

less—that Spradley would have believed Ashlee was lying about being seventeen.

Thus, if anything, Spradley would only have had reason to doubt Ashlee’s age after

their conversations progressed. But, as explained, the jury explicitly rejected that

conclusion, too. It naturally follows that, by concluding Spradley did not doubt

Ashlee’s age even after he had reason to do so, the jury likewise would have

concluded that Spradley did not doubt Ashlee’s age when she first disclosed it—

before his suspicion allegedly formed.

Therefore, even if the evidence created a triable issue on inducement under the

majority’s theory, the district court’s refusal to give an entrapment instruction was

harmless. The jury determined that Spradley believed Ashlee was seventeen when he

traveled to Kansas and nothing in the record indicates that the jury would come to the

opposite conclusion when Ashlee initially disclosed that she was seventeen. In fact,

the record demonstrates that by the time Spradley traveled to Kansas he had more

reason to question Ashlee’s statement that she was underage than during their initial

conversation. I therefore fail to see how the error identified by the majority—to the

extent it is an error at all—warrants reversal.

D.

The majority’s response does not change what has always been the law in our

Circuit: when the government attempts to dissuade the defendant from committing a

crime by providing him with an opportunity to withdraw, it is not the government’s

conduct that caused the commission of the offense. Instead, the defendant only has

16 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 47 No. 23-3222, United States v. Spradley

his own choices to blame for his criminal acts. The majority fails to apply this well-

established concept to Spradley’s case and, consequently, reaches the wrong result. 7

In the end, I worry that today’s decision spells the end of undercover

operations targeting child predators in the Tenth Circuit. The majority holds that the

government’s conduct—which included posting a lawful advertisement, accepting the

defendant’s sexual offer, discussing supposed intimate details such as food, movies,

and their middle names, and asking Spradley to “swing by”—went too far. That is

so, the majority concludes, even though the government offered the defendant an

opportunity to back out of the crime and indicated to the defendant that his conduct

was wrongful.

If that can constitute entrapment, I do not know how an undercover operation

targeting sexual predators online could ever avoid an entrapment instruction. With

such an expansive definition of entrapment, law enforcement might well choose to

refrain from these undercover operations out of fear of losing a conviction to

entrapment and thereby wasting their limited resources. As a result, there might now

be more child predators on our streets (and on our websites) able to harm children

before getting caught. Today’s decision, however, does not change the fact that the

government is entitled to “use [ ] deceit,” particularly when it “is the only practicable

7 Because the majority reverses Spradley’s conviction for failing to instruct the jury on entrapment, it does not address Spradley’s other grounds for reversal. I would instead address Spradley’s remaining arguments concerning (1) the Allen instruction, (2) the admission of certain testimony, and (3) the existence of cumulative error, and I would ultimately affirm Spradley’s conviction.

17 Appellate Case: 23-3222 Document: 60-1 Date Filed: 07/29/2025 Page: 48 No. 23-3222, United States v. Spradley

law enforcement technique available.” United States v. Russell, 411 U.S. 423, 432

(1973). Catching sexual predators before they harm children, I believe, is one of

those circumstances.

II.

For these reasons, I respectfully dissent.