The opinion
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NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-12336
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAMIEN JESSE SUHR,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:23-cr-00121-PGB-EJK-1
____________________
Before JILL PRYOR, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
“Hi, cutie.” So read Damien Suhr’s very first text message
to “Jack,” whom he had originally connected with on the dating
app Badoo. Jack’s Badoo profile said that he was 23, and after a bit
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2 Opinion of the Court 24-12336
of initial chit-chat through the platform, Jack had given Suhr a
phone number so they could text. Suhr immediately switched to
texting and soon asked Jack for a photo. Jack obliged and Suhr
responded with a heart emoji. Then Suhr—who had actually been
married to a man for over a decade—asked if Jack minded that he
was married to a woman. Jack said he didn’t judge and then asked,
“Do u like younger boys?” When Suhr expressed surprise, Jack
explained that he was only 14 years old. “I’m just trying to be
honest,” he insisted. “Sometimes when I tell people my age, they
stop talking to me and yell.”
But Suhr didn’t want to stop talking to Jack even though he
knew exactly why other adult men would: “You’re a cutie for sure,
but this could be problematic.” Even so, he soon turned the topic
to sex. And despite daily reiterations of Jack’s age, Suhr
consistently turned the topic to sex and soon began describing in
vulgar and graphic detail the kinds of sexual acts he wanted to
engage in with Jack. Suhr thought it was “exciting” that Jack had
no sexual experience and told Jack he loved “first-time
experiences.” Eventually Suhr arranged to meet Jack in person for
sex; he even told Jack what kind of underwear to wear for their
encounter.
“Jack,” however, was an undercover agent rather than a 14-
year-old boy. So when Suhr arrived at the meeting point, he was
arrested. He was indicted on one count of attempted sexual
enticement of a minor in violation of 18 U.S.C. § 2422(b) and
convicted at trial. On appeal he argues that the district court erred
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24-12336 Opinion of the Court 3
both in overruling his objection to the admission of overly
prejudicial “other act” evidence and in denying his request for a
jury instruction on entrapment. Because the district court did not
abuse its discretion in admitting the evidence and because Suhr did
not present sufficient evidence to warrant an entrapment defense,
we affirm his conviction.
I.
By entering a plea of not guilty to the charge of attempting
to entice a minor to engage in illegal sexual activity, Suhr made
intent “a material issue which imposes a substantial burden on the
government to prove intent, which it may prove by qualifying Rule
404(b) evidence.” United States v. Zapata, 139 F.3d 1355, 1358 (11th
Cir. 1998). So before trial, the government provided notice of its
intent to introduce various pieces of “other act” evidence. Suhr
moved to exclude this evidence, arguing that it was open to
multiple interpretations and would be more prejudicial than
probative. The district court granted the motion in part and denied
it in part, excluding those portions of the evidence that merely
demonstrated Suhr’s sexual interest in adults, while admitting
those that showed his sexual interest in children.
At trial, Suhr requested a jury instruction on entrapment,
but the court denied it, finding that he had not presented sufficient
evidence to warrant an entrapment defense. The jury found Suhr
guilty, and he now appeals.
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4 Opinion of the Court 24-12336
II.
We review evidentiary rulings for abuse of discretion.
United States v. Bell, 112 F.4th 1318, 1331 (11th Cir. 2024).
But we review de novo a district court’s ruling on whether
the defendant produced sufficient evidence to warrant a jury
instruction on entrapment. United States v. Davis, 902 F.2d 860, 866
(11th Cir. 1990).
III.
Suhr challenges his conviction on two grounds: the
admission of “other act” evidence over his objection and the denial
of his request for a jury instruction on entrapment.
A.
Suhr limits his objection to the admission of “other act”
evidence to a single video that showed him engaged in a consensual
sexual encounter with another male. Although he testified at trial
that the other person in the video was “an adult who is in college,”
the government produced evidence that Suhr had previously
claimed that the other person was only 15 at the time. Suhr argues
that the video was inadmissible for two reasons: (1) the
government did not prove that it depicted a criminal act, and (2) it
was overly prejudicial because homosexual acts are “considered
repulsive.”
In criminal trials, the Federal Rules of Evidence prohibit the
admission of propensity evidence, meaning evidence “of any other
crime, wrong, or act” introduced for the purpose of showing “that
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on a particular occasion the person acted in accordance with the
character” demonstrated by that other act. Fed. R. Evid. 404(b)(1).
Such propensity evidence is excluded whether the acts are criminal
or not.
But Rule 404(b) permits the admission of such “other act”
evidence “for another purpose, such as proving motive,
opportunity, intent,” and so on. And because “Rule 404(b) is a rule
of inclusion,” the evidence it allows, “like other relevant evidence,
should not lightly be excluded when it is central to the
prosecution’s case.” United States v. Jernigan, 341 F.3d 1273, 1280
(11th Cir. 2003) (quotation omitted).
This Court employs a three-part test for the admissibility of
“other act” evidence: “First, the evidence must be relevant to an
issue other than the defendant’s character; second, the act must be
established by sufficient proof to permit a jury finding that the
defendant committed the extrinsic act; and finally, the probative
value of the evidence must not be substantially outweighed by its
undue prejudice.” United States v. Perry, 14 F.4th 1253, 1275 (11th
Cir. 2021) (quotations omitted).
All three prongs are met here. First, the government
explained that it was introducing the video to show Suhr’s “intent,
motive, knowledge, absence of mistake, and sexual interest in
minor children, as well as to show his predisposition to commit the
charged offense to rebut any entrapment defense.” Because Suhr
had made his intent a material issue in the case by pleading not
guilty and denying that he had the requisite intent to sexually solicit
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a minor, the video was relevant to an issue other than Suhr’s
character.
Second, the video clearly depicted Suhr, and the government
introduced evidence—in the form of statements by Suhr—that the
other person in the video was a minor, so there was enough
evidence for the jury to conclude that Suhr had in fact engaged in
a sexual act with a minor.
Third, the probative value of the video in demonstrating
Suhr’s sexual interest in minor children was not outweighed by the
danger of unfair prejudice, a balance this Court evaluates by
considering “the evidence in a light most favorable to its admission,
maximizing its probative value and minimizing its undue
prejudicial impact.” United States v. Brown, 441 F.3d 1330, 1362
(11th Cir. 2006). On the one hand, the video had substantial
probative value regarding Suhr’s intent. And on the other, its
possible prejudicial impact in terms of drawing attention to Suhr’s
homosexuality was minimal, being both limited by all the other
evidence at trial that amply demonstrated his homosexuality
(including the live testimony of his husband) and mitigated by the
district court’s limiting instructions. Cf. United States v. Edouard, 485
F.3d 1324, 1346 (11th Cir. 2007).
Because all three prongs for the admission of “other act”
evidence were satisfied, we cannot say that the district court
abused its discretion in admitting the video. But even if it had, that
error would have been harmless because the evidence against Suhr
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was overwhelming. Cf. United States v. Frediani, 790 F.3d 1196, 1202
(11th Cir. 2015).
B.
Suhr also objects to the district court’s denial of his request
for a jury instruction on entrapment. “Entrapment is an
affirmative defense which requires the defendant to present some
evidence of government misconduct or improper inducement
before the issue is properly raised.” Davis, 902 F.2d at 866. “The
defendant has the initial burden of producing evidence to establish
government misconduct,” and the “sufficiency of the defendant’s
evidence is a question of law.” Id.
In reviewing a district court’s denial of an entrapment
instruction, this Court looks only at “whether there was sufficient
evidence produced to raise the issue of government inducement.”
United States v. Mayweather, 991 F.3d 1163, 1176 (11th Cir. 2021).
The defendant must produce “some evidence, more than a
scintilla, that government agents induced him to commit the
offense.” Id. (quoting United States v. Timberlake, 559 F.2d 1375,
1379 (5th Cir. 1977)). But “a defendant cannot show inducement
merely by showing that the government provided an attractive
opportunity to commit a crime.” Id. at 1177 (quotation omitted).
Rather, inducement requires “an opportunity plus some added
government behavior that aims to pressure, manipulate, or coerce
the defendant into criminal activity.” Id.
Here, Suhr never produced evidence that the government
presented him with anything more than an “attractive
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opportunity.” On the contrary, it was Suhr who first turned the
conversation with Jack to sex, Suhr who always initiated
conversation with Jack about sex, and Suhr who first suggested
meeting up with Jack for sex. And far from pressuring Suhr into
committing a crime, Jack repeatedly encouraged Suhr to make his
own decisions and repeatedly offered Suhr opportunities to back
out. But Suhr “indicated no reluctance whatsoever” to engage in
sexual activity with Jack, so he was not entitled to an entrapment
defense. United States v. Ventura, 936 F.2d 1228, 1233 (11th Cir.
1991).
* * *
The district court’s judgment is AFFIRMED.