Petition for Writ of Certiorari — Alvin Celius Andre, Petitioner v. United States
Supreme Court briefOct 5, 2020
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NO:
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2020
ALVIN CELIUS ANDRE,
v.
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
PETITION FOR WRIT OF CERTIORARI
MICHAEL CARUSO
Federal Public Defender
Margaret Y. Foldes
Assistant Federal Public Defender
Counsel for Petitioner
1 East Broward Boulevard, Suite 1100
Fort Lauderdale, Florida 33301-1100
Telephone No. (954) 356-7436
QUESTIONS PRESENTED FOR REVIEW
I.
Whether the Eleventh Circuit’s Entrapment Jury Instruction is in
Conflict With Jacobson v. United States, 503 U.S. 540 (1992) and the Majority
of the Federal Circuits.
II.
Whether the Eleventh Circuit Misapplies Jacobson’s Predisposition
Element by Permitting a Showing of a Defendant’s “Ready Willingness” to
Commit a Crime Instead of Jacobson’s Requirement that Predisposition
Focus on the Defendant Before Government Intervention.
i
INTERESTED PARTIES
There are no parties to the proceeding other than those named in the caption
of the case.
ii
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW .................................................................... i
INTERESTED PARTIES .............................................................................................. ii
TABLE OF AUTHORITIES .......................................................................................... v
PETITION ...................................................................................................................... 1
OPINION BELOW......................................................................................................... 2
STATEMENT OF JURISDICTION .............................................................................. 2
STATUTORY AND OTHER PROVISIONS INVOLVED ............................................ 3
STATEMENT OF THE CASE....................................................................................... 4
STATEMENT OF THE FACTS .................................................................................... 4
REASONS FOR GRANTING THE WRIT .................................................................. 11
I.
The Eleventh Circuit’s Entrapment Jury Instruction is in Conflict With
Jacobson v. United States, 503 U.S. 540 (1992) and the Majority of the
Federal Circuits .................................................................................................... 11
II. The Eleventh Circuit Misapplies Jacobson’s Predisposition Element by
Permitting a Showing of a Defendant’s “Ready Willingness” to Commit a
Crime Instead of Jacobson’s Requirement That Predisposition Focus on
the Defendant Before Government Intervention ................................................. 21
CONCLUSION............................................................................................................. 26
APPENDIX
Decision of the Court of Appeals for the Eleventh Circuit
United States v. Alvin Andre,
11th Cir. No. 19-11486 (May 8, 2020) ............................................................ A-1
Judgment Imposing Sentence
United States v. Alvin Andre,
D.Ct. No. 18-60271-Cr-Scola (April 11, 2019) .............................................. A-2
iii
Defendant’s Notice of Proposed Jury Instructions – Entrapment (DE 39)
United States v. Alvin Andre, No. 18-60271-Cr-Scola ..................................... A-3
First Circuit Pattern Crim. Jury Instruction 5.05 (2019) ........................................ A-4
Third Circuit Pattern Crim. Jury Instruction 8.05 (2018) ....................................... A-5
Fifth Circuit Pattern Crim. Jury Instruction 1.30 (2019) ........................................ A-6
Sixth Circuit Pattern Crim. Jury Instruction 6.03 (2019) ........................................ A-7
Seventh Circuit Pattern Crim. Jury Instruction 6.04 (2020) ................................... A-8
Eighth Circuit Pattern Crim. Jury Instruction 9.01 (2017) ..................................... A-9
Ninth Circuit Pattern Crim. Jury Instruction 6.2 (2020) ....................................... A-10
Tenth Circuit Pattern Crim. Jury Instr. 1.27 (2018) .............................................. A-11
Eleventh Circuit Criminal Pattern Instruction, No. S13.1 (2020) ......................... A-12
iv
TABLE OF AUTHORITIES
CASES:
Arthur Andersen LLP v. United States,
544 U.S. 696 (2005) ............................................................................................. 14
Hampton v. United States,
425 U.S. 484 (1976) ............................................................................................. 12
Jacobson v. United States,
503 U.S. 540 (1992) .......................................................... i, 8, 10-12, 16, 21-23, 25
Mathews v. United States,
485 U.S. 58 (1988) .......................................................................................... 11-12
McDonnel v. United States,
___ U.S. ___, 136 S.Ct. 2355 (2016) .................................................................... 13
United States v. Brown,
43 F.3d 618 (11th Cir. 1995) ............................................................................... 22
United States v. Burt,
143 F.3d 1215 (9th Cir. 1998) ....................................................................... 13, 20
United States v. El-Gawli,
837 F.2d 142 (3d Cir. 1988) ................................................................................ 11
United States v. Evans,
924 F.2d 714 (7th Cir. 1991) ............................................................................... 11
v
United States v. Hollingsworth,
27 F.3d 1196 (7th Cir. 1994) ......................................................................... 22, 25
United States v. Kim,
176 F.3d 1126 (9th Cir. 1999) ........................................................... 13, 20, 23, 25
United States v. Knowles,
319 Fed. Appx. 547 (9th Cir. 2009) .................................................................... 24
United States v. Lopeztegui,
230 F.3d 1000 (7th Cir. 2000) ....................................................................... 22, 25
United States v. Mayfield,
771 F.3d 417 (7th Cir. 2014) ............................................................................... 11
United States v. Montanez,
105 F.3d 36 (1st Cir. 1997) ................................................................................. 13
United States v. Poehlman,
217 F.3d 692 (9th Cir. 2000) ................................................................... 12, 23, 25
United States v. Russell,
411 U.S. 423 (1973) ............................................................................................. 12
United States v. Rutgerson,
822 F.3d 1223 (11th Cir. 2016) ..................................................................... 22, 24
vi
STATUTORY AND OTHER AUTHORITY:
Sup.Ct.R. 13.1 ................................................................................................................ 2
Part III of the Rules of the Supreme Court of the United States ................................ 2
18 U.S.C. § 1591(a) ........................................................................................................ 4
18 U.S.C. § 1591(b) ........................................................................................................ 4
18 U.S.C. § 1594 ............................................................................................................. 4
18 U.S.C. § 2242(b) ........................................................................................................ 4
18 U.S.C. § 3742 ............................................................................................................. 2
28 U.S.C. § 1254(1) ........................................................................................................ 2
28 U.S.C. § 1291 ............................................................................................................. 2
First Circuit Pattern Crim. Jury Instruction 5.05 (2019)
(https://www.med. uscourts.gov/pdf/crpjilinks.pdf) ....................................... 2, 16
Third Circuit Pattern Crim. Jury Instruction 8.05 (2018)
(https://www.ca3.uscourts.gov/sites/ca3/files/Chapter%208%202018%20
Rev%20final%20for%20posting.pdf) ........................................................ 2, 17, 19
Fifth Circuit Pattern Crim. Jury Instruction 1.30 (2019)
(http://www.lb5.uscourts.gov/viewer/?/juryinstructions
/Fifth/crim2019.pdf) ........................................................................................ 2, 19
Sixth Circuit Pattern Crim. Jury Instruction 6.03 (2019)
(https://www.ca6.uscourts.gov/sites/ca6/files
/documents/pattern_jury/pdf/Chapter%206_0.pdf) ................................. 2, 17, 19
vii
Seventh Circuit Pattern Crim. Jury Instruction 6.04 (2020)
(http://www.ca7.uscourts.gov/pattern-jury-instructions
/pattern_criminal_jury_instructions_2020edition.pdf) ............................ 2, 18-19
Eighth Circuit Pattern Crim. Jury Instruction 9.01 (2017)
(http://juryinstructions.ca8.uscourts.gov/Criminal-JuryInstructions-2017.pdf) .................................................................................... 2, 19
Ninth Circuit Pattern Crim. Jury Instruction 6.2 (2020)
(http:// www3.ce9.uscourts.gov/jury-instructions/node/379) .................... 2, 18-19
Tenth Circuit Pattern Crim. Jury Instr. 1.27 (2018)
(https://www.ca10.uscourts.gov/sites/default/files/clerk/
Jury%20Instructions%20Update%202018.pdf) ............................................. 2, 20
Eleventh Circuit Criminal Pattern Instruction, No. S13.1 (2020) .. i, 4, 8-11, 14-15, 20
viii
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2020
No:
ALVIN CELIUS ANDRE,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
PETITION FOR WRIT OF CERTIORARI
Alvin Celius Andre respectfully petitions the Supreme Court of the United
States for a writ of certiorari to review the judgment of the United States Court of
Appeals for the Eleventh Circuit, rendered and entered in case number 19-11486 in
that court on May 8, 2020, which affirmed the judgment and commitment of the
United States District Court for the Southern District of Florida.
1
OPINION BELOW
A copy of the decision of the United States Court of Appeals for the Eleventh
Circuit, which affirmed the judgment and commitment of the United States District
Court for the Southern District of Florida, is contained in the Appendix (A-1).
judgment of the district court is contained in the Appendix (A-2).
The
The proposed jury
instruction submitted by the defendant to the district court is contained in the
Appendix A-3.
The pattern entrapment jury instructions of the First, Third, Fifth,
Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits are also contained in
the Appendix A-4 through A-12, respectively.
STATEMENT OF JURISDICTION
Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1) and PART III of
the RULES OF THE SUPREME COURT OF THE UNITED STATES.
The decision of the court
of appeals was entered on May 8, 2020. This petition is timely filed pursuant to
SUP. CT. R. 13.1 and Clerk’s Office COVID-19 Guidance (April 17, 2020).
The
district court had jurisdiction because petitioner was charged with violating federal
criminal laws. The court of appeals had jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742, which provide that courts of appeals shall have jurisdiction for
all final decisions of United States district courts.
2
STATUTORY AND OTHER PROVISIONS INVOLVED
Petitioner intends to rely on the following constitutional provisions:
Fifth Amendment to the United States Constitution:
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just compensation.
Sixth Amendment to the United States Constitution:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall
have been committed, which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defense.
3
STATEMENT OF THE CASE
Mr. Alvin Andre (“Mr. Andre” or “petitioner”) was charged through a
superseding indictment with the following offenses allegedly occurring during the
time period of January 10, 2018 – September 19, 2018:
(1) attempted enticement of
a minor to engage in illicit sexual activity in violation of 18 U.S.C. § 2242(b); and (2)
attempted sex trafficking of a minor who was under the age of 14 in violation of 18
U.S.C. §§ 1591(a) and (b), 1594(a).
Trial was held on January 29-30, 2019. The government presented two FBI
witnesses.
One agent had posed as the father of a fictitious 10-year old girl in a
government internet sting operation to apprehend child abusers.
During trial, Mr.
Andre had moved for a judgment of acquittal as to both counts of the indictment, and
he had submitted a theory of defense jury instruction regarding entrapment.
The
court denied Mr. Andre’s Rule 29 motions and utilized the Eleventh Circuit Criminal
Pattern Instruction concerning entrapment, rather than Mr. Andre’s proffered jury
instruction. After deliberations, the jury found Mr. Andre guilty of the charges.
Subsequently, the district court sentenced Mr. Andre to 40 years’ imprisonment,
consisting of 10 years on count I and 30 years on count II, to run consecutive to each
other.
STATEMENT OF THE FACTS
I.
Trial Testimony
At trial, the FBI presented testimony about a government internet sting
4
operation.
As part of that operation, the lead agent, Matthew Fowler, placed an ad
on Craigslist in the adult “Causal Encounters” section of the website.
titled, “younger dad.
woman for man.”
like-minded.
MW4M.”
His ad was
The “MW4M” was an abbreviation for “man
The body of the ad further stated, “Younger dad looking for other
Daughter here.
Kik me. [kik user name redacted].
Love to meet
others with similar interests.”
The day after agent Fowler posted the ad he received a response from “Ride or
Die” on kik.
Ride or Die stated, “Hey, how are you doing. I have read your ad, so I
wanted to see what up.”
Agent Fowler stated that he was looking for “others into
younggggg.” The exaggerated term “youngggg” was to indicate an interest in minors.
When Ride or Die followed up with another question regarding how young, Agent
Fowler explained that he had a daughter who was 9 years old. When Ride or Die
tried to clarify if Agent Fowler was looking for someone, “to be a father to her?”
Agent Fowler further elaborated that his daughter was available for sex, and he was
“looking for other dads to share with.”
In further text chats, the FBI agent and Ride or Die (later identified as Mr.
Andre) engaged in text conversations that involved sexual banter.
exchanged sexual pictures.
The parties also
The FBI agent sent the first picture and continued to
send the vast majority of the sexually explicit pictures to Mr. Andre.
Initially, Andre engaged in text chats responding to texts that the FBI had
sent regarding swapping children for sexual purposes.
5
The agent attempted to set
up a meeting with Andre for January 2018 based on those conversations, but Andre
never went to that meeting.
Agent Fowler suspected that Andre was merely role-playing, but he
reinitiated the conversation and attempted to reschedule the meeting for later in
January.
To make the meeting easier, Fowler told Andre to forget trying to include
another minor to swap, but instead, to just bring $100 to pay for the encounter with
Fowler’s fictitious daughter.
Even though the plan was made easier by Fowler,
Andre did not come to the agent’s second meeting.
Undeterred, Fowler tried a third time, with significant incentives to induce
Andre to meet.
Specifically, Fowler stated that he was organizing a group of dads
that would be swapping children on February 12, 2018, and that Andre was invited.
He further told Andre to bring the $100 and he could have a sexual encounter with
three underage girls. Although Andre expressed an interest, he again, failed to
make himself available for any third meeting that Fowler tried to arrange.
Thereafter, Andre stopped communications for approximately one month; a few texts
were exchanged in March, but then the conversations ceased entirely for three
months.
This fading of the conversation confirmed to Agent Fowler that Andre was
merely role-playing, and that he was not serious about having a sexual encounter
with a minor.
June 21, 2018, was the next time that Andre and Fowler communicated.
Andre texted Agent Fowler asking, “hey, how's it going?”
6
After that,
communications between Fowler and Andre remained sporadic, but Fowler
continued trying to set up a meeting with Andre anyway.
Fowler initiated a
conversation on September 10, 2018, for setting a new date for a meeting.
Fowler
indicated that he wanted to meet with Andre first, and possibly after, Andre could
meet the fictional daughter.
Fowler also confirmed that he was still willing to take
the $100 for the encounter.
Fowler continued to contact Andre and send him
sexually explicit pictures up through the date of the meeting, which they had set for
September 19, 2018.
On September 19, 2018, Fowler assembled a law enforcement team to conduct
surveillance at the McDonalds that had been set as the meeting place with Andre.
Fowler was equipped with a hidden camera to video tape his meeting at the
McDonalds.
Andre came to the McDonalds.
After meeting with Fowler for a few
minutes, Andre gave him $50, and Fowler suggested they leave.
As they were
exiting the McDonalds, other law enforcement officers arrested Andre.
At the arrest, police seized Mr. Andre’s telephone and laptop computer.
Although having seized these items, the government entered no evidence that would
have indicated that Mr. Andre had an interest in or history of child pornography or
indicia of child molestation on his phone or computer except for the texts with Agent
Fowler.
Such information on a phone was glaringly missing from the government’s
evidence because, as admitted by Fowler, a person’s “whole life” is on the phone, and
a phone is a “reflection of you.”
7
II.
Jury Charge Conference
The court discussed jury instructions with the parties.
Specifically, the
defense had submitted an entrapment instruction based on the Eleventh Circuit
pattern instruction and Jacobson v. United States, 503 U.S. 540, 549 (1992).
The
defense instruction read as follows:
“Entrapment” occurs when a government agent induces a
Defendant to commit a crime that the Defendant was not already
willing to commit.
The Defendant has claimed to be a victim of entrapment
regarding the offenses charged in the indictment.
The law forbids convicting an entrapped Defendant.
The Government must prove beyond a reasonable doubt that the
Defendant was willing to commit the crimes charged in the indictment
before this contact with the government agent and without the
inducement of the government agent.
If you have a reasonable doubt about whether the Defendant was
willing to commit the crimes charged in the indictment before his
contact with the government agent and without the inducement of the
government agent then you must find the Defendant not guilty.
Andre, D.Ct. No. 18-60271-Cr-Scola (Defendant’s Proposed Jury
Instruction).
The court denied defendant’s proffered jury instruction on entrapment, but
instead used the Eleventh Circuit pattern instruction without any modification.
The Eleventh Circuit pattern instruction stated:
“Entrapment” occurs when law-enforcement officers or others
under their direction persuade a defendant to commit a crime that the
Defendant had no previous intent to commit.
The Defendant has claimed to be a victim of entrapment
8
regarding the charged offense.
The law forbids convicting an entrapped Defendant.
But there is no entrapment when a defendant is willing to break
the law and the Government merely provides what appears to be a
favorable opportunity for the Defendant to commit a crime.
For example, it’s not entrapment for a Government agent to
pretend to be someone else and offer – directly or through another
person – to engage in an unlawful transaction.
So a defendant isn’t a victim of entrapment if you find beyond a
reasonable doubt that the Government only offered the Defendant an
opportunity to commit a crime the Defendant was already willing to
commit.
But if there is a reasonable doubt about whether the Defendant was
willing to commit the crime without the persuasion of a Government
officer or a person under the Government’s direction, then you must
find the Defendant not guilty.
Eleventh Circuit Criminal Pattern Instruction, No. S13.1 (2016).
After the jury deliberated, it found Mr. Andre guilty of the charges in the
indictment.
Subsequently, Mr. Andre was sentenced to 40 years’ imprisonment.
Mr. Andre filed a timely notice of appeal.
On appeal, Mr. Andre argued that his convictions were improper because they
were not supported by sufficient evidence.
In relevant part, Mr. Andre raised the
defense of entrapment and argued that the government failed to prove beyond a
reasonable doubt that he had a predisposition to commit the crimes charged.
He
noted that all the evidence was based on the contemporaneous text chats that
comprised the sting operation.
Mr. Andre also argued that no evidence had been
presented showing that he had a predisposition to commit the crimes charged before
9
he had contact with the government through its sting operation.
And he further
argued that the government completely failed to prove predisposition even though it
had seized his electronic devices.
Mr. Andre also argued that it was reversible error
to deny his entrapment jury instruction which accurately set out the law.
He
argued that the Eleventh Circuit pattern instruction did not properly set out the
elements of an entrapment defense under Jacobson.
The Eleventh Circuit affirmed Mr. Andre’s convictions, finding that there was
sufficient evidence of the crimes and that Mr. Andre had not been entrapped.
United States v. Andre, 11th Cir. No. 19-11486 (May 8, 2020) at pp. 10-11.
It found
that predisposition was proven by Andre’s ready willingness to commit the crimes.
Id. at p. 11.
The court also found that the Eleventh Circuit pattern instruction
accurately and adequately set out the elements of Andres’ entrapment defense.
at 7.
Accordingly, the Eleventh Circuit affirmed Mr. Andre’s convictions.
12.
10
Id.
Id. at p.
REASONS FOR GRANTING THE WRIT
I.
The Eleventh Circuit’s Entrapment Jury Instruction is in Conflict With
Jacobson v. United States, 503 U.S. 540 (1992) and the Majority of the
Federal Circuits.
“[A] valid entrapment defense has two related elements: government
inducement of the crime, and a lack of predisposition on the part of the defendant to
engage in the criminal conduct.”
(1988).
Mathews v. United States, 485 U.S. 58, 62-63
These two elements have proven to be difficult to define.
v. Evans, 924 F.2d 714, 717 (7th Cir. 1991).
See United States
However, a consensus of courts has
slowly developed common legal principles and concrete factors which help to define
the elements of inducement and predisposition.
The element of inducement has
been defined as including “persuasion, fraudulent representations, threats, coercive
tactics, harassment, promises of reward, or pleas based on need, sympathy, or
friendship.”
See, e.g., United States v. El-Gawli, 837 F.2d 142 (3d Cir. 1988).
Likewise, the element of predisposition has been clarified; it focuses on the
defendant’s disposition before governmental contact and includes the following
factors: the defendant’s character, reputation or criminal history; whether the
government initially suggested the criminal activity; whether the defendant engaged
in the criminal activity for profit; whether the defendant showed a reluctance to
commit the crime that was overcome by persuasion by the government; and the
nature of the inducement or persuasion that was used.
Mayfield, 771 F.3d 417, 434-36 (7th Cir. 2014) (en banc).
11
See e.g., United States v.
The primary element of an entrapment defense is “the intent or predisposition
of the defendant to commit the crime, rather than [] the conduct of the Government’s
agents.” Hampton v. United States, 425 U.S. 484, 488 (1976) (internal quotation
marks and alterations omitted); Mathews, 485 U.S. at 63 (citing United States v.
Russell, 411 U.S. 423, 433 (1973)) (The defendants’ “lack of predisposition” is the
“principal element in the defense.”).
Thus, “Where the Government has induced an
individual to break the law and the defense of entrapment is at issue, . . . the
prosecution must prove beyond a reasonable doubt that the defendant was disposed
to commit the criminal act prior to first being approached by Government agents.”
Jacobson v. United States, 503 U.S. 540, 548-49 (1992); see also Jacobson at 549 n.2
(“‘The sole issue is whether the Government carried its burden of proving that the
defendant was predisposed to violate the law before the Government intervened.’”);
see also United States v. Poehlman, 217 F.3d 692, 703 (9th Cir. 2000) (“[T]he 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.”)
(emphasis in original).
A defendant is “entitled to an entrapment instruction whenever there is
sufficient evidence from which a reasonable jury could find entrapment.”
485 U.S. at 62.
Mathews,
In petitioner’s case there was no dispute that based on the
government’s case-in-chief there was sufficient evidence for the issue of entrapment
to go to the jury.
(Andre, 11th Cir. No. 19-11486 at p. 11).
12
Further, the parties did
not dispute that there had been governmental inducement, rather, the dispute in
petitioner’s case focused on the element of predisposition. Id. (“the question before us
is whether Andre was predisposed to commit his crimes before he was contacted by
the government”).
Having presented a valid entrapment defense, Andre was entitled to a jury
instruction
that
accurately
explained
this
defense
and
what
constituted
predisposition. See United States v. Montanez, 105 F.3d 36, 39 (1st Cir. 1997)
(overturning conviction because entrapment instruction was misleading due to
partial list of examples that were inapplicable to defendant’s case and omitted
examples that were pertinent to defendant’s case, which created risk that types of
examples limited the essential elements and applicability of the entrapment defense
in defendant’s case); United States v. Kim, 176 F.3d 1126 (9th Cir. 1999) (noting that
language in jury instructions stating that defendant was “already willing to commit
a crime,” was frequent cause for invalidation of instructions because “already” is
ambiguous, and standing alone, did not inform jury that it must examine the
defendant’s disposition before any contact with the government); United States v.
Burt, 143 F.3d 1215, 1218 (9th Cir. 1998) (jury instruction defective under plain error
standard because did not explicitly state that disposition had to be found before
government contact); cf. McDonnel v. United States __ U.S. __, 136 S.Ct. 2355,
2373-75 (2016) (vacating conviction where jury instruction may have penalized
innocent conduct where definition of “official act” was overinclusive); Arthur
13
Andersen LLP v. United States, 544 U.S. 696, 706 (2005) (overturning conviction
where jury instructions “failed to convey the requisite consciousness of wrongdoing”).
Although Andre offered a theory of defense instruction that clearly set out the
black letter law as clarified in Jacobson, the district court refused that instruction,
and instead, utilized the Eleventh Circuit’s pattern instruction.
The Eleventh
Circuit’s pattern instruction has failed to evolve with the clarifying principles of
entrapment.
It obscures Jacobson’s requirements by defining entrapment in the
negative, i.e. – three out of five paragraphs state what entrapment is not, rather
than setting out a clear definition of what entrapment is -- and in doing so, it uses
only one example of what entrapment “is not” that pertains to inducement and
governmental conduct.
Eleventh Circuit Criminal Pattern Instruction S13.1 (“For
example, it’s not entrapment for a Government agent to pretend to be someone else
and offer – directly or through another person – to engage in an unlawful
transaction.”).
The pattern also obscures the government’s burden of proof by
utilizing the passive voice and burying the burden of proof within the confusing
explanation of what entrapment “is not.”
Two critical points get lost in the
Eleventh Circuit’s pattern instruction: (1) a clear statement that predisposition must
exist before the government contacts the defendant concerning the crime to be
committed; and (2) the government’s burden of proof beyond a reasonable doubt to
prove predisposition. The Eleventh Circuit pattern instruction given by the district
court stated:
14
“Entrapment” occurs when law-enforcement officers or others
under their direction persuade a defendant to commit a crime that the
Defendant had no previous intent to commit.
The Defendant has claimed to be a victim of entrapment
regarding the charged offense.
The law forbids convicting an entrapped Defendant.
But there is no entrapment when a defendant is willing to break
the law and the Government merely provides what appears to be a
favorable opportunity for the Defendant to commit a crime.
For example, it’s not entrapment for a Government agent to
pretend to be someone else and offer – directly or through another
person – to engage in an unlawful transaction.
So a defendant isn’t a victim of entrapment if you find beyond a
reasonable doubt that the Government only offered the Defendant an
opportunity to commit a crime the Defendant was already willing to
commit.
But if there is a reasonable doubt about whether the Defendant was
willing to commit the crime without the persuasion of a Government
officer or a person under the Government’s direction, then you must
find the Defendant not guilty.
Eleventh Circuit Criminal Pattern Instruction, No. S13.1 (2016).
In contrast, Andre’s jury instruction proffered to the court stated:
“Entrapment” occurs when a government agent induces a
Defendant to commit a crime that the Defendant was not already
willing to commit.
The Defendant has claimed to be a victim of entrapment
regarding the offenses charged in the indictment.
The law forbids convicting an entrapped Defendant.
The Government must prove beyond a reasonable doubt that the
Defendant was willing to commit the crimes charged in the indictment
before his contact with the government agent and without the
inducement of the government agent.
15
If you have a reasonable doubt about whether the Defendant was
willing to commit the crimes charged in the indictment before his
contact with the government agent and without the inducement of the
government agent then you must find the Defendant not guilty.
Andre’s proffered instruction set out Jacobson’s requirements clearly and
concisely, it did not require the jury to think in the negative and try to apply a
difficult legal concept based on what the legal concept “is not.” It also avoided the
skewing of legal concepts through overemphasis on one principle, example, or factor,
and it made plain the government’s burden of proof beyond a reasonable doubt.
The other circuits have used two main approaches for defining entrapment in
compliance with this Court’s Jacobson case.
Some have set out this Court’s law
with clarifying factors and examples, while others have set out a basic statement of
entrapment elements without much elaboration.
Either approach is sufficient as
long as it is accurate and not misleading.
The majority of circuits have found it useful to set out a set of factors from the
case law that juries can consider in determining predisposition.
Pattern
Crim.
Jury
Instruction
5.05
(2019)
First Circuit
(https://www.med.
uscourts.gov/pdf/crpjilinks.pdf) (“You may consider such factors as: (a) the character
or reputation of the defendant; (b) whether the initial suggestion of criminal activity
was made by the government; (c) whether the defendant was engaged in the criminal
activity for profit; (d) whether the defendant showed reluctance to commit the
offense, and whether that reluctance reflects the conscience of an innocent person or
16
merely the caution of a criminal; (e) the nature of the persuasion offered by the
government; and (f) how long the government persuasion lasted.”); Third Circuit
Pattern Crim. Jury Instruction 8.05 (2018) (https://www.ca3.uscourts.gov/sites/
ca3/files/Chapter%208%202018%20Rev%20final%20for%20posting.pdf)
(“[You]
should consider all the evidence, including any evidence about whether the
government initially suggested the criminal activity; the nature of the government’s
inducement or persuasion; whether (name) was engaged in an existing course of
criminal conduct similar to the offense charged; whether (name) was engaged in
criminal activity for profit; and whether (name) showed a willingness to commit the
offense or showed any reluctance that was overcome by repeated government
inducement or persuasion [and evidence of (name’s) character or reputation,
including a prior record of criminal convictions].”); Sixth Circuit Pattern Crim.
Jury
Instruction
6.03
(2019)
(https://www.ca6.uscourts.gov/sites/ca6/files
/documents/pattern_jury/pdf/Chapter%206_0.pdf) (“[S]ome things that you may
consider in deciding whether the government has proved [predisposition]: (A) Ask
yourself what the evidence shows about the defendant’s character and reputation.
(B) Ask yourself if the idea for committing the crime originated with or came from
the government. (C) Ask yourself if the defendant took part in the crime for profit.
(D) Ask yourself if the defendant took part in any similar criminal activity with
anyone else before or afterwards. (E) Ask yourself if the defendant showed any
reluctance to commit the crime and, if he did, whether he was overcome by
17
government persuasion. (F) And ask yourself what kind of persuasion and how much
persuasion the government used.”); Seventh Circuit Pattern Crim. Jury
Instruction
6.04
(2020)
(http://www.ca7.uscourts.gov/pattern-jury-instructions
/pattern_criminal_jury_instructions_2020edition.pdf) (In deciding whether the
government has met its burden of proving that the defendant was predisposed to
commit the crime, you may consider the defendant’s character [, or] reputation [, or]
criminal history; whether the government initially suggested the criminal activity;
whether the defendant engaged in the criminal activity for profit; whether the
defendant showed a reluctance to commit the crime that was overcome by
persuasion by the [agent[s]; informant[s]; officer[s]]; and the nature of the
inducement or persuasion that was used.”); Ninth Circuit Pattern Crim. Jury
Instruction 6.2 (2020) (http:// www3.ce9.uscourts.gov/jury-instructions/node/379)
(“In determining whether the defendant was predisposed to commit the crime before
being approached by government agents, you may consider the following: 1. Whether
the defendant demonstrated reluctance to commit the offense; 2. The defendant’s
character and reputation; 3. Whether governments agents initially suggested the
criminal activity; 4. Whether the defendant engaged in the criminal activity for
profit; and 5. The nature of the government’s inducement or persuasion.”).
Alternatively, other courts do not set out such lists of factors, but they set out
basic legal concepts without much elaboration.
Most of these circuits set out the
salient legal principles in a concise and straightforward manner, explicitly
18
establishing the timing issue in Jacobson and the government’s burden of proof.
Fifth
Circuit
Pattern
Crim.
Jury
Instruction
1.30
(2019)
(http://www.lb5.uscourts. gov/viewer/?/juryinstructions /Fifth/crim2019.pdf) (“The
burden is on the government to prove beyond a reasonable doubt that the defendant:
. . . . 2. Had a predisposition or intention to commit that offense prior to being
approached by a government agent.”); Eighth Circuit Pattern Crim. Jury
Instruction
9.01
(2017)
Jury-Instructions-2017.pdf)
(http://juryinstructions.ca8.uscourts.gov/Criminal-
(“The [government] [prosecution] has the burden of
proving beyond a reasonable doubt that . . . . (1) the defendant was willing to commit
. . . crime charged before [he] [she] was approached or contacted by law enforcement
agents . . . .”).
Cf., Third Circuit Pattern Crim. Jury Instruction 8.05 (“It is
the government’s burden to prove beyond a reasonable doubt that . . . . (name) was
predisposed, meaning that (name) was ready and willing to commit the offense
before the government [agents] first [approached] spoke to (him) (her) about the
crime. . . . .”); Sixth Circuit Pattern Crim. Jury Instruction 6.03
(“[]The
government has the burden of proving beyond a reasonable doubt that the defendant
was already willing to commit the crime prior to first being approached by
government agents . . . . .”); Seventh Circuit Pattern Crim. Jury Instruction
6.04 (“. . . . The government must prove beyond a reasonable doubt []: . . . . 2. The
defendant was predisposed to commit the offense before he had contact with
[government agent[s] . . . ”); Ninth Circuit Pattern Crim. Jury Instruction 6.2
19
(“The government has the burden of proving beyond a reasonable doubt that . . . .
[t]he defendant was predisposed to commit the crime before being contacted by
government agents, . . . .”); see also United States v. Kim, 176 F.3d 1126 (9th Cir.
1999) (noting that language in jury instructions stating that defendant was “already
willing to commit a crime,” was frequent cause for invalidation of instructions
because “already” is ambiguous, and standing alone, did not inform jury that it must
examine the defendant’s disposition before any contact with the government); United
States v. Burt, 143 F.3d 1215, 1218 (9th Cir. 1998) (jury instruction defective under
plain error standard because did not explicitly state that disposition had to be found
before government contact).
The Tenth and Eleventh Circuits which tend towards a basic statement of
legal principles without much elaboration differ from the rest of the circuit court
instructions due to their failure to make clear Jacobson’s timing issue or the
government’s burden of proof.
Rather the Tenth and Eleventh Circuits describe
predisposition by reference to a defendant who is “already willing” to commit the
crimes charged.
Moreover, both the Tenth and Eleventh Circuits obscure the
government’s burden of proof through use of the passive voice.
The Eleventh
Circuit goes one step further by defining entrapment in the negative and focusing on
what “entrapment is not.” Eleventh Circuit Pattern Crim. Jury Instr. S13.1
(2020) (https://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/FormCriminal
PatternJuryInstructionsCurrentComplete.pdf?rev Date=20200227); see also Tenth
20
Circuit Pattern Crim. Jury Instr. 1.27 (2018) (https://www.ca10.uscourts.gov/
sites/default/files/clerk/Jury%20Instructions%20Update%202018.pdf).
The Tenth
and Eleventh Circuits are not in step with Jacobson or the majority of the federal
circuits.
Petitioner’s proffered instruction would have remedied that problem.
A proper instruction on entrapment is an important federal issue that
implicates the Fifth and Sixth Amendments to the U.S. Constitution which
encompass a defendant’s right to present a defense.
The doctrine of entrapment is
a critical counterbalance for reconciling police action and the rule of law with our
Constitutional rights. This court should grant the petition to correct the Tenth and
Eleventh Circuit’s approach and bring them into compliance with Jacobson, and to
resolve the inter-circuit conflict.
II.
The Eleventh Circuit Misapplies Jacobson’s Predisposition Element
by Permitting a Showing of a Defendant’s “Ready Willingness” to
Commit a Crime Instead of Jacobson’s Requirement That
Predisposition Focus on the Defendant Before Government
Intervention.
The Court should also grant the petition for writ of certiorari to correct the
Eleventh Circuit’s misapplication of the predisposition doctrine. The Eleventh
Circuit permits predisposition to be proven through evidence of a defendant’s “ready
commission” to commit a crime after the government has already made contact.
This is legally erroneous under Jacobson and creates a circuit split on the issue.
As noted above, this Court’s seminal case Jacobson v. United States, 503 U.S.
at 548-49, changed the entrapment legal landscape and made explicit that “the
21
prosecution must prove beyond a reasonable doubt that the defendant was disposed
to commit the critical act prior to first being approached by Government agents.”
Jacobson further stated that a defendant’s “ready response to [governmental]
solicitations cannot be enough to establish beyond reasonable doubt that [the
defendant] was predisposed, prior to the Government acts intended to create
predisposition, to commit the crime. . . .”
Jacobson, 503 U.S. at 553.
Thus,
Jacobson establishes the exact opposite principle to determine predisposition in an
entrapment defense than the one that the Eleventh Circuit utilized in Mr. Andre’s
case to uphold his convictions. Compare Jacobson, 503 U.S. at 553, with Andre, 11th
Cir. Case No. 19-11486 at p. 11 (“Predisposition can be proven by the defendant’s
‘ready commission’ of the charged crime” after contract with the government); see
also United States v. Rutgerson, 822 F.3d 1223 (11th Cir. 2016), citing United States
v. Brown, 43 F.3d 618, 625 (11th Cir. 1995) (The Eleventh Circuit’s “guiding
principles” for evaluating an entrapment defense included: “Predisposition may be
demonstrated simply by a defendant’s ready commission of the charged crime.”).
The Eleventh Circuit’s reliance on a Andre’s “ready commission” of a crime
puts it in direct conflict with this Court’s express legal principles set out in Jacobson,
as well as other circuits.
See, Jacobson, 503 U.S. at 553; see also e.g., United States
v. Lopeztegui, 230 F.3d 1000, 1003 (7th Cir. 2000) (“predisposition goes beyond the
mere willingness to commit the crime, and also includes some consideration of the
defendant’s ability to carry it out.”); United States v. Hollingsworth, 27 F.3d 1196,
22
1199-1200 (7th Cir. 1994) (“The willingness to commit the crimes to which the
government invited them cannot be decisive.
Predisposition requires more; . . .
Predisposition is not a purely mental state, . . . the dictionary definitions of the word
include “tendency” as well as “inclination,” meaning that something in the prior
experience of the defendant would make it likely that he would commit the crime
without any government inducement); United States v. Poehlman, 217 F.3d 692, 700
(9th Cir. 2000) (noting that willingness to commit crime after contact with
government was not evidence of predisposition; relevant inquiry was defendant’s
disposition “before he has any contact with government agents, which is doubtless
why it’s called predisposition.”) (emphasis in original); United States v. Kim, 176
F.3d 1126, 1128 (9th Cir. 1999) (noting that language in jury instructions stating that
defendant was “already willing to commit a crime,” was frequent cause for
invalidation of instructions because “already willing” is an ambiguous term, and
standing alone, it did not inform jury that it must examine the defendant’s
disposition before any contact with the government). The Eleventh Circuit’s
erroneous application of Jacobson led to unlawful convictions of Mr. Andre in this
case.
While relevant evidence of predisposition may include the defendant’s
conduct both prior to and after contact with the government, it must be clear that
the defendant’s disposition to commit the crime was present before the contact.
Jacobson, 503 U.S. at 553.
There was no evidence of predisposition in Mr. Andre’s case.
23
The instant
case was a government sting and the government relied only on the
contemporaneous text chats between the agent conducting the sting and Mr. Andre.
These text chats did not produce evidence that Mr. Andre had a predisposition to
commit this crime before the government intervened with its sting operation.
It
was undisputed that it was the government that posted the ad; the agent who
proposed the idea of sharing his daughter in sexual encounters; the agent who
proposed meetings after engaging in role playing and fantasy texts about sex; it was
the agent who peppered the texts with most of the sexually explicit pictures; it was
the agent who injected the element of money into the transaction; and it was the
agent who repeatedly suggested new times to meet, even after his efforts produced
three failed attempts to meet with Mr. Andre over a nine-month period of time, and
even though the text chats were sporadic with gaps of weeks and months, signaling a
person who was not really interested, and who did not have intentions of going
beyond internet fantasy dialogue.
In the typical case of this nature, the government proves predisposition by
presenting
evidence
found
on
a
defendant’s
electronic
devices
showing
conversations, pictures, or websites that indicate a sexual interest in minors.
See
e.g., Rutgerson, 822 F.3d at 1235-36 (government produced evidence that defendant
had accessed numerous ads for “young” prostitutes online before pursuing meeting
with 15-year old fictitious prostitute); United States v. Knowles, 319 Fed. Appx. 547,
549 (9th Cir. 2009) (child pornography picture found on defendant’s computer
24
constituted admissible evidence of predisposition of sex with underage girls in
prosecution for enticement of a minor); cf. Poehlman, 217 F.3d 692 (lack of
predisposition when government failed to produce evidence beyond emails produced
during sting disclosing the defendant’s independent interest in sex with children
despite search of defendant’s home).
Mr. Andre’s case is incredibly unique because
the government actually seized Mr. Andre’s phone and laptop computer at the time
of his arrest.
Had there been any texts or internet searches referencing minors on
either of these devices, the government surely would have presented it.
evidence of this kind was offered.
But no
The Eleventh Circuit’s reliance on its
misapplication of Jacobson resulted in the Eleventh Circuit’s glossing over those
exact points that established that Mr. Andre was wrongfully convicted because the
evidence showing a predisposition to commit the crime before government contact
was absent and insufficient.
Because the Eleventh Circuit misapplied the standard
for predisposition as articulated by this Court in Jacobson, and because this
misapplication is also in conflict with other courts of appeals, see e.g., Lopeztegui,
230 F.3d 1000; Hollingsworth, 27 F.3d 1196; Poehlman, 217 F.3d 692; Kim, 176 F.3d
1126, this Court should grant Mr. Andre’s petition for writ of certiorari on this issue.
25
CONCLUSION
Based upon the foregoing, this Honorable Court should grant the petition for a
writ of certiorari.
Respectfully submitted,
MICHAEL CARUSO
FEDERAL PUBLIC DEFENDER
By:___s/Margaret Foldes___________
Margaret Foldes
Assistant Federal Public Defender
Counsel for Petitioner
Fort Lauderdale, Florida
October 5, 2020
26
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.