Petition for Writ of Certiorari — Jalil Lemason Robinson, Petitioner v. United States

No. __________

In the Supreme Court of the United States

JALIL LEMASON ROBINSON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI TO

THE TENTH CIRCUIT COURT OF APPEALS

Ryan A. Ray, OBA # 22281*

NORMAN WOHLGEMUTH, LLP

3200 Mid-Continent Tower

401 South Boston Avenue

Tulsa, OK 74103

Telephone: 918-583-7571

Facsimile: 918-584-7846

RRay@nwlawok.com

*Counsel of Record

Dated: July 1, 2021

QUESTION PRESENTED:

An undercover officer created a fake social media profile for a fictitious 18-yearold woman on a website where a user must expressly represent her age as

being over 18. Mr. Robinson initiated contact with the fictitious profile and

began a friendly relationship with the “18-year-old woman” and expressed

interest in being the woman’s pimp. Only after this relationship had been

cultivated by the officer through months of communications, did the officer

change the age of the fictitious woman to 17 and a half years of age. The

undercover officers then continued communicating with Mr. Robinson and

cultivating the relationship between the (now) 17-and-a-half-year-old fictitious

woman and Mr. Robinson. During the communications, Mr. Robinson

frequently made clear that he did not wish for commercial sex activities to

begin until the “woman” attained majority. On that understanding, Mr.

Robinson arranged for the “woman” to travel to California. When Mr. Robinson

arranged to pick up the fictitious woman from a bus station, Mr. Robinson was

arrested and subsequently charged with “Attempted Sex Trafficking of a

Child” and “Transporting an Individual to Engage in Prostitution.”

Under these facts, did the Tenth Circuit Court of Appeals err in determining

that Mr. Robinson was not entitled to a jury instruction regarding the

affirmative defense of entrapment as to the Attempted Sex Trafficking of a

Child count because the Government “offered a chance to back out” of the

potential crime—an exception absent from this Court’s decisions on

entrapment?

i

TABLE OF CONTENTS

Page

QUESTION PRESENTED .................................................................................... i

TABLE OF CONTENTS ....................................................................................... ii

INDEX OF APPENDICES .................................................................................. iii

TABLE OF AUTHORITIES ................................................................................ iii

PETITION FOR WRIT OF CERTIORARI ...........................................................1

OPINIONS BELOW ...............................................................................................1

JURISDICTION .....................................................................................................1

STATUTORY PROVISIONS INVOLVED ............................................................1

STATEMENT OF THE CASE ...............................................................................1

I.

Facts Relevant to the Entrapment Defense ............................2

II.

Mr. Robinson’s subsequent appeal. ..........................................6

REASONS FOR GRANTING THE WRIT ...........................................................7

I.

Mr. Robinson met his modest burden of production

regarding evidence of inducement. ...........................................8

i.

Mr. Robinson presented evidence of inducement. .......................9

ii. The element of predisposition. .................................................. 11

II.

The Tenth Circuit, contrary to the decisions of this Court, .

has erected an entirely new evidentiary hurdle for

defendants seeking to invoke the defense of

entrapment.................................................................................... 12

CONCLUSION ............................................................................................... 16

ii

INDEX OF APPENDICES

APPENDIX A:

United States v. Robinson, 993 F.3d 839 (10th Cir.

2021)

TABLE OF AUTHORITIES

Page(s)

SUPREME COURT CASES

Jacobson v. United States, 503 U.S. 540 (1992) ........................................ 2, 8, 11

Mathews v. United States, 485 U.S. 58 (1988)......................................... 2, 6, 8, 9

Sherman v. United States, 356 U.S. 369 (1958) ................................ 1, 2, 6, 9, 14

Sorrells v. United States, 287 U.S. 435 (1932) ................................ 1, 6, 9, 13, 14

Stevenson v. United States, 162 U.S. 313 (1896) ..................................................2

United States v. Russell, 411 U.S. 423 (1973) ................................................. 6, 9

FEDERAL CIRCUIT COURT CASES

United States v. Kelly, 748 F.2d 691 (D.C Cir. 1984) ...........................................9

United States v. Mayweather, 991 F.3d 1163 (11th Cir. 2021) ................... 13, 15

United States v. McLean, 702 Fed. Appx. 81 (3rd Cir. 2017) ..................... 13, 15

United States v. Munro, 394 F.3d 865 (10th Cir. 2005) ........ 7, 10, 11, 12, 13, 15

United States v. Ortiz, 804 F.2d 1161 (10th Cir. 1986) ........................................9

United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000)............................. 9, 11

United States v. Robinson, 993 F.3d 839 (10th Cir. 2021) ...... 1, 7, 11, 12, 13, 14

iii

United States v. Schuttpelz, 467 Fed. Appx. 349 (6th Cir. 2021) ............... 13, 15

FEDERAL STATUTES

18 U.S.C. § 1591 .....................................................................................................1

28 U.S.C. § 1254 .....................................................................................................1

OTHER AUTHORITIES

Michael Winerip, Convicted of Sex Crimes, but With No Victims, NY Times

(Aug. 30, 2020)........................................................................................................2

iv

PETITION FOR WRIT OF CERTIORARI

Petitioner, Jalil Lemason Robinson, respectfully petitions this Court to

issue a Writ of Certiorari to review the opinion rendered by the United States

Court of Appeals for the Tenth Circuit in United States v. Robinson, 993 F.3d

839 (10th Cir. 2021).

OPINIONS BELOW

The decision of the United States Court of Appeals for the Tenth Circuit

denying relief is found at United States v. Robinson, 993 F.3d 839 (10th Cir.

2021). See Appendix A.

JURISDICTION

The Tenth Circuit issued its opinion denying relief on April 2, 2021. 28

U.S.C. § 1254(1) gives this Court jurisdiction to decide this Petition.

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 1591, which, like all other federal criminal statutes, is subject

to an implied defense of entrapment, as explained in Sorrells v. United States,

287 U.S. 435, 448 (1932).

STATEMENT OF THE CASE

Since this Court’s decision in Sorrells v. United States, 287 U.S. 435

(1932), this Court has frequently been called upon to reaffirm the doctrine of

entrapment, and the principles upon which it is based. See Sherman v. United

1

States, 356 U.S. 369 (1958); Mathews v. United States, 485 U.S. 58 (1988);

Jacobson v. United States, 503 U.S. 540 (1992). This Court has consistently

held that, so long as there is “sufficient evidence for a reasonable jury to find

in his favor,” an accused is entitled to a jury instruction on entrapment and

that entrapment is an issue for the jury. Mathews, 485 U.S. at 63 (citing

Stevenson v. United States, 162 U. S. 313 (1896)); Sherman, 356 U.S at 377.

This case asks this Court to reaffirm these principles in the face of disturbing

and novel circuit court case law inroads, namely that when an accused has any

post-inducement “opportunity to back out”, the defense is invalid as a matter

of law.

This exception—wholly of certain courts of appeals’ creation—

threatens to fundamentally weaken criminal defendants’ rights in the face of

new and evolving law enforcement methods of governmental inducement.1

I.

Facts Relevant to the Entrapment Defense

Evidence at the trial of Jalil Robinson established that a Government

agent created a fictional account on a social-media platform called “hi5” using

a paid female Confidential Human Source’s photographs. (R. Vol. I, at 26-27).

1 The issue is not hypothetical, and it is not confined to this case.

In fact, it

has broad applicability. “Jurors who serve in . . . cases [like this one] often

express surprise that the defense doesn’t argue entrapment.” Michael

Winerip, Convicted of Sex Crimes, but With No Victims, NY Times (Aug. 30,

2020), available at https://www.nytimes.com/2020/08/26/magazine/sexoffender-operation-net-nanny.html (last visited June 29, 2021). The scarcity

of entrapment instructions in such cases is likely because of insurmountable

barriers being applied, as here.

2

The officer’s fictional undercover persona was initially named “Brooke.” (Id.).

To create an account on “hi5,” an individual must certify that they are over 18.

(Id.).

Jalil Robinson created an account with the site in September 2017 (R.

Vol. VI, at 194), and, on December 13, 2017, Mr. Robinson first reached out to

“Brooke,” the Government’s fictitious profile. Brooke’s profile showed that she

was 18 years old and from Aurora, Colorado. (R. Vol. VI, at 190, 375). The

Government’s undercover officer, Agent Tangeman, testified that Mr.

Robinson would have had to manually search the Aurora, Colorado or Denver,

Colorado area for women age 18 or older for Mr. Robinson to be connected with

Agent Tangeman’s fictitious account. (R. Vol. VI, at 195). Mr. Robinson

testified that his search parameters on the social-media application were

women, ages 18-35. (R. Vol. VI, at 517).

The Government’s profile responded to Mr. Robinson. (R. Vol. VI, at 205).

On February 2, 2018, Mr. Robinson made the first statement to “Brooke” that

could possibly be interpreted as expressing a desire to work in the prostitution

industry. (R. Vol. VI, at 210, 375). “Brooke” responded to Mr. Robinson on

February 17, 2018, to tell him that she wanted to leave Denver, was interested

in his work proposition and to ask how much money they could make, “Brooke”

still did not tell Mr. Robinson she was under 18. (R. Vol. VI, at 211, 373).

3

The next day, more than two months after Mr. Robinson’s initial

message and after Mr. Robinson and “Brooke” exchanged approximately 90

text messages, “Brooke” told Mr. Robinson that she was a 17½-year-old named

“Nikki.” (R. Vol. II, at 289, R. Vol. VI, at 373-74). In exchanging subsequent

messages, Mr. Robinson indicated that he was hesitant to enter into a pimpprostitute relationship with “Nikki” until she was 18:

On February 18, 2018, Mr. Robinson stated: “But on your birthday we

will be doing things bigger and better.” (R. Vol. II, at 300, emphasis added).

On February 19, 2018, Mr. Robinson had a telephone call with “Nikki,”

in which he stated: “It’s just, it’s just, my only concern is, is because you are

17.” (R. Vol. II, at 311; emphasis added).

In the February 19, 2018 telephone call, Mr. Robinson stated: “I’m trying

to . . . establish with you causes for you to be 18 and over, but I still might if

I could use a little bit of time that you got until your 18th birthday and

stalling, and you know teaching you how things go then by the time you do

reach the age then you’ll be perfection” (Id., emphasis added).

On February, 20, 2018, Mr. Robinson stated “Yes, there’s a lot for you to

learn so we’re not gonna rush into everything.” (R. Supp. Vol. I, at 76, emphasis

added).

4

On February 27, 2018, Mr. Robinson stated that he wanted to have all

documents, including “Nikki’s” birth certificate and Social Security card, by

the time she turned 18 on August 1, 2018 (Id. at 118).

Mr. Robinson testified at trial that he did not intend to have “Nikki”

engage in prostitution as a minor. (R. Vol. VI, at 537).

Mr. Robinson submitted proposed jury instructions on the issue of

entrapment. (R. Vol. I, at 139-40, 178; R. Vol. II, at 48-49). At trial, Mr.

Robinson requested an entrapment instruction as to Count 1. (R. Vol. VI, at

660). Mr. Robinson’s counsel also argued on the record why Mr. Robinson was

entitled to an entrapment instruction. (Id. at 660-61, 663-64).

The District Court declined to give a jury instruction on entrapment,

concluding that:

 “A valid entrapment defense requires proof of” Governmental

inducement and lack of predisposition.

 Mr. Robinson had not made a sufficient showing on inducement.

 The District Court did, however, find that the evidence on lack of

predisposition was “equivocal.”

(Id. at 664-66, emphasis added).

The effect of the agent’s efforts on Mr. Robinson’s sentence was massive.

Evidence was presented in the lower court that another target of the same

agent’s efforts (using the same name and the same photographs)—but one as

5

to whom the agent did not bait-and-switch the age—received a sentence of

twelve (12) months’ imprisonment in the same court at close to the same time.

Mr. Robinson was sentenced to 188 months’ imprisonment.

II.

Mr. Robinson’s subsequent appeal

On appeal to the Tenth Circuit, Mr. Robinson renewed his argument that

he was entitled to a jury instruction on the issue of entrapment as to Count I.

Mr. Robinson argued that the District Court failed to view the evidence in the

light most favorable to him and, further, erred in refusing to submit the factual

issue of entrapment to the jury. See Mathews, 485 U.S. at 63; Sherman, 356

U.S. at 377; Sorrells, 287 U.S. at 452; United States v. Russell, 411 U.S. 423,

433-36 (1973).

Mr. Robinson further argued that the District Court failed apply the

correct standard for Governmental inducement and failed to recognize that

inducement may be subtle and need not take the form of outright pressure or

coercion. See, Russell, 411 U.S. at 428 (explaining that, in Sorrells, “a federal

prohibition agent visited the defendant while posing as a tourist and engaged

him in conversation about their common war experiences,” and that, “[a]fter

gaining the defendant's confidence, the agent asked for some liquor, was twice

refused, but upon asking a third time the defendant finally capitulated”).

The Tenth Circuit Court of Appeals, in a published opinion, upheld the

District Court’s denial of Mr. Robinson’s request for an entrapment jury

6

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

Principally, the Tenth Circuit relied upon its prior decision in United States v.

Munro, 394 F.3d 865, 871-72, n.2 (10th Cir. 2005), for the proposition that, “no

entrapment jury instruction was warranted where the government offered a

chance to back out of the potential crime.” Robinson, 993 F.3d at 847. The

Court went on to explain that, “[w]hen the government disclosed Nikki was

underage, it provided Defendant with an out he refused to take.” Id. The Court

further reasoned that, because Mr. Robinson continued to communicate with

“Nikki,” rather than withdrawing, there was no “inducement,” and Mr.

Robinson was not entitled to an entrapment instruction, thereby deciding the

defense as a matter of law. Id.

REASONS FOR GRANTING THE WRIT

The Tenth Circuit Court of Appeals decided that Mr. Robinson was not

entitled to a jury instruction on entrapment on the basis of its decision in

United States v. Munro, which the Tenth Circuit described here as: “no

entrapment jury instruction was warranted where the government offered a

chance to back out of the potential crime.” 993 F.3d at 847. This “chance to

back out” standard constitutes a novel and insurmountable evidentiary barrier

to the entrapment defense, is absent from this Court’s authority, and bears no

resemblance to the standards set forth by this Court in previous cases

regarding the parameters of the entrapment defense. While the “chance to back

7

out” standard has been held to be a relevant factor to the question of

entrapment in other circuits, only the Tenth Circuit, to Mr. Robinson’s

knowledge, has elevated this issue to dispositive status—eliminating the

possibility of the defense whatever other evidence the accused has presented.

The Tenth Circuit’s view of entrapment in Mr. Robinson’s case is plainly

inconsistent with this Court’s precedent and would essentially eliminate the

defense. A writ from this Court is warranted in order to re-establish the

appropriate standards for entrapment in the lower courts throughout the

country and the Tenth Circuit in particular.

I.

Mr. Robinson met his modest burden of production regarding

evidence of inducement.

Properly applied, the question of entrapment here was one of fact that

could only be resolved by the jury, not the Court as a matter of law. Mr.

Robinson introduced evidence that satisfied the proper standards.

There are “two related elements” of entrapment: “Government

inducement of the crime, and a lack of predisposition on the defendant's part

to engage in the criminal conduct.” Mathews, 485 U.S. at 59. “Government

agents may not originate a criminal design, implant in an innocent person’s

mind the disposition to commit a criminal act, and then induce commission of

the crime so that the Government may prosecute.” Jacobson v. United States,

503 U.S. 540, 549 (1992).

8

This Court’s precedent has been consistent and clear: “[t]he question of

entrapment is generally one for the jury, rather than for the court.” Mathews

v. United States, 485 U.S. 58, 63 (1988); Sherman v. United States, 356 U.S.

369, 377 (1958); Sorrells, 287 U.S. at 452; United States v. Russell, 411 U.S.

423, 433-36 (1973). In order to reach a jury, the defendant need only present

“some evidence” that he was: (1) induced to commit the crime by a government

agent; and (2) not otherwise predisposed to commit the crime. Matthews, 485

U.S. at 62-63; see also, United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir.

1986).

i.

Mr. Robinson presented evidence of inducement.

The element of inducement requires an “objective inquiry” that “focuses

on whether the government's conduct could have caused an undisposed person

to commit a crime.” United States v. Kelly, 748 F.2d 691, 697-98 (D.C. Cir.

1984). Established authority makes clear that “even very subtle governmental

pressure, if skillfully applied, can amount to inducement.” United States v.

Poehlman, 217 F.3d 692, 701 (9th Cir. 2000); see also Russell, 411 U.S. at 428

(explaining that, in Sorrells, “a federal prohibition agent visited the defendant

while posing as a tourist and engaged him in conversation about their common

war experiences,” and that, “[a]fter gaining the defendant's confidence, the

agent asked for some liquor, was twice refused, but upon asking a third time

the defendant finally capitulated”).

9

The Government accessed a dating website, which by its terms is limited

to persons over eighteen (18) years of age, and created a fake profile of

“Brooke,” an 18-year-old woman.

Mr. Robinson reached out to “Brooke,”

reasonably believing that he was communicating with an adult. The agent

communicated over 90 messages over a two-month time period to Mr. Robinson

as an 18-year-old woman, carefully cultivating a relationship between two

adults; in this relationship, the 18-year-old “Brooke” showed a willingness to

enter into a commercial sex relationship with Mr. Robinson. Only after this

relationship had been established, and after the illicit nature of the

relationship had become firmly rooted, did agents fabricate that “Brooke” was

supposedly still five months from her 18th birthday and was actually known

as “Nikki.” This bait-and-switch induced Mr. Robinson, who was not looking to

be involved in criminal activity with a minor, to have unwittingly cultivated a

commercial sex relationship with a “minor.”

There is clearly some evidence that the Government induced Mr.

Robinson into the “child” element of the charged offense, and there was

certainly sufficient evidence to create a debatable fact question that only a jury

could resolve. But the Tenth Circuit, relying on Munro, simply noted that Mr.

Robinson was “provided…an out he refused to take.” Under the license allowed

by Munro and applied here, the Tenth Circuit ignored the evidence of

inducement introduced by Mr. Robinson, and, instead, the Court simply

10

discussed evidence of conduct after the “out” that the Government offered Mr.

Robinson. Respectfully, there is always some “opportunity” to back out—and

was in every one of this Court’s entrapment decisions where the defense was

required to be submitted to the jury.

If the identification of such an

“opportunity” were enough, the defense would be a nullity—in contravention

of this Court’s authority and that of other courts of appeals.

ii.

The element of predisposition.

The District Court found that evidence of Mr. Robinson’s predisposition

was “equivocal” and based its decision entirely on its finding of a lack of

inducement. The Tenth Circuit did not opine on the element of predisposition,

since it found that there was no evidence of inducement under Munro.

Robinson, 993 F.3d at 847.2

this Court has held that the critical question is

whether the defendant was disposed to commit the offense in question before

he was induced to do so by the Government. See Jacobson, 503 U.S. at 549; see

also Poehlman, 217 F.3d at 703. In other words, the Government must prove

that, if the defendant had been “left to his own devices,” it is likely that he

nevertheless would have committed the offense in question. Jacobson, 503 U.S.

at 554. There was no evidence that Mr. Robinson had a predisposition to

commit a prostitution-related crime with a minor. There was no such

evidence presented at trial, and Mr. Robinson’s past conduct—prior to the

events at issue—indicated no intention to commit this offense with a minor.

11

2 As to lack of predisposition,

II.

The Tenth Circuit, contrary to the decisions of this Court, has

erected an entirely new evidentiary hurdle for defendants

seeking to invoke the defense of entrapment.

The Tenth Circuit Court of Appeals upheld the District Court’s refusal

to give an entrapment jury instruction on the basis that there had been no

evidence of inducement because the government, “provided Defendant with an

out he refused to take.” Robinson, 993 F.3d at 847 (citing United States v.

Munro, 394 F.3d 865, 871-72, n.2 (10th Cir. 2005)).

In Munro, the defendant, through internet messaging, arranged to meet

an undercover agent—posing as a 13-year-old girl named Chantelle—for sex

at a nearby elementary school. Id. at 868. Defendant was arrested at the

elementary school with a loaded hand gun. Id. Defendant was convicted of

using a computer to attempt to persuade a minor to engage in illegal sexual

acts and carrying a firearm during the commission of a crime of violence. Id.

Defendant appealed to the Tenth Circuit, with one of his contentions being that

he was entitled to an entrapment instruction. Id. at 871. The Tenth Circuit

Court of Appeals primarily held that Defendant had simply failed to produce

sufficient evidence, but the Court also noted that, “the officer who posed as

Chantelle testified that he gave Munro more than one opportunity to back out

of the meeting, thus vitiating the need for an entrapment instruction.” Id. at

871-872. The Tenth Circuit cites no authority for the proposition that an

12

“opportunity to back out” vitiates the need to submit a raised entrapment

defense to a jury.

With Mr. Robinson’s appeal, the Tenth Circuit has elevated this dicta

from Munro into a rule of law, and has legally erected an entirely novel and

insurmountable barrier for defendants seeking an entrapment jury

instruction. Such a holding is in conflict with other courts of appeals. See, e.g.,

United States v. Mayweather, 991 F.3d 1163, 1181, fn.20 (11th Cir. 2021)

(declining to follow government’s argument that evidence of a “chance to back

out” was conclusive of entrapment issue); United States v. McLean, 702 Fed.

Appx. 81, 86 (3rd Cir. 2017) (evidence of opportunity to back out is relevant to

predisposition, but not dispositive); United States v. Schuttpelz, 467 Fed. Appx.

349, 354 (6th Cir. 2021) (opportunities to back out are relevant evidence of

predisposition).

Defendants in the Tenth Circuit must not only show “sufficient evidence”

of inducement and lack of predisposition, under Munro (and now Robinson)

they must also show that there was no “opportunity to back out”. Respectfully,

this makes little sense as a workable legal standard and it is in plain and direct

conflict with this Court’s prior case law.

As a practical matter, it is difficult to imagine a circumstance in which a

defendant hoping to plead entrapment would not have had an “opportunity to

back out.” In Sorrells, for example, the foundational example of entrapment, a

13

prohibition agent visited the home of the Defendant and, through cultivation

of the defendant’s friendship and “by taking advantage of the sentiment

aroused by reminiscences of their experiences as companions in arms” induced

defendant into selling liquor to him. Sorrells, 287 U.S. at 439. It is also noted,

however, that, in the course of the crime, “defendant left his home and after a

few minutes came back with a half gallon of liquor for which the witness paid

defendant five dollars.” Id. Surely in the course of Mr. Sorrells’ few minutes

sojourn to obtain the liquor, he could be said to have had an opportunity to

“back out” of the transaction; perhaps, in coming to the point of making the

illicit transaction, Mr. Sorrells should have been struck by a sudden

compunction of guilt and withdrawn from his wrongdoing. But this Court held

has was entitled to the defense. Hypothetically, if, at the point of the

transaction, the undercover prohibition agent had said, “Mr. Sorrells, are you

sure you want to sell me this liquor?” would this chance to “back out” have

legally undone all of the agent’s prior efforts to induce Mr. Sorrells? Sorrells,

with its exclusive focus on the officer’s efforts to induce the defendant, suggests

precisely the opposite. Id. at 444-45.

So too in Sherman, 356 U.S. at 371, another case in which this Court

found there to be entrapment as a matter of law. After the initial acts of

inducement, the defendant engaged in several illegal drug transactions; surely

Mr. Sherman had an “opportunity to back out” over this period of time. The

14

“opportunity to back out” standard is so broad and undefined as to justify the

denial of nearly any imaginable claim of entrapment, and it is clearly counter

to the previous decisions of this Court regarding entrapment.

Moreover, as is evident in the Tenth Circuit’s decision in Mr. Robinson’s

appeal, the “opportunity to back out” standard inappropriately focuses a

Court’s attention not on the evidence supporting an entrapment instruction,

but on evidence adduced by the Government of a “chance to back out.”

Robinson, 993 F.3d at 847. Thus, the Tenth Circuit, under the reasoning of

Munro, conducted its review of Mr. Robinson’s entitlement to an entrapment

jury instruction without once discussing Mr. Robinson’s allegations of

inducement. Instead, the Tenth Circuit merely noted that there had been a

“chance to back out” and discussed Mr. Robinson’s conduct subsequent to this

“chance to back out”.3 Munro, and the inappropriate prominence it bestows

upon the “chance to back out,” eliminates any possibility of a defendant

receiving an entrapment instruction, no matter the evidence of inducement

that the defendant might adduce.

3 It should be noted that, to the extent that evidence of a “chance to back out”

and subsequent conduct is relevant, it is most logically relevant to a

defendant’s predisposition and is not relevant to inducement, which concerns

Government conduct. See Mayweather, 991 F.3d at 1181; McLean, 702 Fed.

Appx. at 86; Schuttpelz, 467 Fed. Appx. at 354.

15

CONCLUSION

For the reasons detailed in this Petition, this Court should grant a Writ

of Certiorari to review the judgment of the Tenth Circuit Court of Appeals.

Respectfully submitted,

/s/ Ryan A. Ray

Ryan A. Ray, OBA # 22281*

NORMAN WOHLGEMUTH, LLP

3200 Mid-Continent Tower

401 South Boston Avenue

Tulsa, OK 74103

Telephone: 918-583-7571

Facsimile: 918-584-7846

RRay@NWLawOK.com

*Counsel of Record

Dated: July 1, 2021

ATTORNEY FOR PETITIONER,

JALIL LEMASON ROBINSON

16

Appendix A

Appellate Case: 19-1256

Document: 010110502644

Date Filed: 04/02/2021

Page: 1

PUBLISH

FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

April 2, 2021

FOR THE TENTH CIRCUIT

_________________________________

Christopher M. Wolpert

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

No. 19-1256

JALIL LEMASON ROBINSON, a/k/a

Talk Big,

Defendant - Appellant.

_________________________________

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:18-CR-00144-PAB-1)

_________________________________

Ryan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, P.C., Tulsa,

Oklahoma, for Defendant-Appellant.

J. Bishop Grewell, Assistant United States Attorney (Jason R. Dunn, United States

Attorney with him on the briefs), Denver, Colorado for Plaintiff-Appellee.

_________________________________

Before HARTZ, MATHESON, and CARSON, Circuit Judges.

_________________________________

CARSON, Circuit Judge.

_________________________________

“Talk Big” doubled as Defendant Jalil Lemason Robinson’s handle on a dating

website and his strategy for recruiting seventeen-year-old Nikki from Colorado to work

for him as a prostitute on that same site. Promising a life of luxury, Defendant convinced

Appellate Case: 19-1256

Document: 010110502644

Date Filed: 04/02/2021

Page: 2

Nikki, who originally represented herself as eighteen-year-old Brooke, to come join him

as his “business partner” in California. Little did he know he was communicating with an

undercover officer posing as Nikki.

Defendant’s actions led to a jury convicting him of attempted sex trafficking of a

minor under 18 U.S.C. § 1591(a)—Congress’ response to the growing problem of

domestic sex trafficking. Defendant claims the government produced insufficient

evidence to find him guilty of attempted sex trafficking of a minor. The record

establishes the contrary. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm

Defendant’s conviction and sentence of 188 months’ imprisonment.

I.

FBI task force officer, Agent Tangeman, created a fictional social media profile on

a dating website. Tangeman’s character—Brooke—claimed to be an eighteen-year-old

from Aurora, Colorado.1 Although Brooke had a profile on the adult dating site, the

website could not guarantee her age because it relied on self-verification to confirm its

users’ ages. Defendant maintained a profile on the same website going by “Talk Big.”

Defendant promoted: “40 hours for 350 a week or 1500 a night, choose wisely.”

Through his profile, Defendant sought a business partner—meaning a prostitute—ideally

1

We refer to Brooke/Nikki by these names at the appropriate times throughout

the opinion even though she is not a real person. Agent Tangeman crafted Nikki’s

messages and he used a confidential source for the phone call.

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age eighteen to thirty-five. Defendant contacted Brooke, but several weeks passed before

she responded. Once in contact, their conversations quickly progressed.

Defendant offered Brooke a life of luxury as his “business partner” and offered

to “show her the way” by taking her to a few strip clubs and sharing other resources.

Intrigued, Brooke asked how much money she could make. His response, “Baby we

can make hella money” and left her his number.

Brooke texted him the next day and broke the news that she was only

seventeen years old and that her real name was Nikki. Despite learning Nikki’s age,

Defendant continued the conversation and his plans. When Nikki showed hesitation

and fear, Defendant reassured her and promised a life of luxury. The next day, they

talked on the phone to shore up plans for Nikki’s eventual prostitution. Defendant

said Nikki would need a fake ID for “safety” until she turned eighteen. Defendant

said he was eager to teach Nikki to become “perfection” by the time she turned

eighteen, and seduced her with promises of earning big money in a short amount of

time. Portraying herself as vulnerable and eager to leave Colorado and make money,

Nikki succumbed to Defendant’s promise of a lavish life and agreed to travel to

Defendant in California. As promised, Defendant showed up at a California bus

terminal to meet Nikki. There, federal law enforcement agents confronted and

arrested him. Authorities charged Defendant with attempted sex trafficking of a

child and transporting an individual to engage in prostitution.

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Defendant asserted at trial that he planned to keep things strictly platonic until

Nikki’s eighteenth birthday. But the jury did not buy it and found Defendant guilty

on both counts.

II.

Defendant claims prosecutors presented insufficient evidence to support his

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

§ 1591(a). He also claims the district court erred by (1) denying his request for an

entrapment jury instruction; (2) denying his request to compel the government to

disclose its confidential source; (3) admitting Agent Tangeman’s lay and expert

testimony at trial; and (4) by failing to admit a trial exhibit in its entirety. Defendant

finally contends he was prejudiced by cumulative error and received a substantively

unreasonable sentence.

A.

Defendant claims the government presented insufficient evidence to convict

him. We review de novo whether there was sufficient evidence to support a

defendant’s convictions. United States v. Isabella, 918 F.3d 816, 830 (10th Cir.

2019). In doing so, we view the evidence and any reasonable inferences drawn from

it in the light most favorable to the government. Id. “We consider all evidence,

circumstantial and direct, but we do not weigh the evidence or consider credibility of

the witnesses.” Id. (citing United States v. Rufai, 732 F.3d 1175, 1188 (10th Cir.

2013)). “We will reverse a conviction for insufficient evidence only when no

reasonable jury could find the defendant guilty beyond a reasonable doubt.” Id.

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(citing United States v. Anaya, 727 F.3d 1043, 1050 (10th Cir. 2013)). “We will not

uphold a conviction, however, that was obtained by nothing more than piling inference

upon inference, or where the evidence raises no more than a mere suspicion of

guilt.” United States v. Rahseparian, 231 F.3d 1257, 1262 (10th Cir. 2000) (internal

citations and quotation marks omitted) (first citing United States v. Fox, 902 F.2d 1508,

1513 (10th Cir. 1990); then citing United States v. Smith, 133 F.3d 737, 742 (10th Cir.

1997)).

To convict Defendant under 18 U.S.C. § 1591(a), the government had to prove

beyond a reasonable doubt that: (1) Defendant knowingly attempted to recruit, entice,

harbor, transport, provide, obtain, maintain, patronize, or solicit Nikki; (2) Defendant

knew or recklessly disregarded that Nikki was under the age of 18 and would be caused

to engage in a commercial sex act; and (3) the offense was in or affecting interstate

commerce. Defendant admitted at trial that he knowingly recruited seventeen-year-old

Nikki to engage in commercial sex acts. He contends, however, that the trial evidence

did not demonstrate that he intended for her to engage in those commercial sex acts while

still a minor. In considering his sufficiency claim, we first discuss the text message and

phone call evidence from trial. Then we review Agent Tangeman’s testimony.

1.

Although a short-lived digital connection, Defendant eagerly laid the foundation to

gain Nikki’s trust and helped plan her move. Defendant eased Nikki’s apprehension

about joining the “business” by telling her he would take care of her as he worked to

develop a bond through their interactions on the dating app. He filled her mind with

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dreams of making big money in a short amount of time. Defendant’s messages and

phone calls support the inference that he intended for Nikki to engage in commercial sex

acts before she turned eighteen.

In their first substantial text message conversation, Nikki told Defendant that she

was only seventeen years old. Even though he testified at trial that this disclosure made

him hesitant to proceed, Defendant did not withdraw from the conversation. Instead,

Defendant immediately responded, “We will talk more on us when I get there, just need

you to hang tight until I get there, okay?”

To address this new-found information, Defendant suggested Nikki obtain a fake

ID to use until her birthday for “safety.” He said they should take the Greyhound bus

from Colorado to California because she did not have an ID. Defendant then asked Nikki

if her aunt would react negatively to her leaving the state because he did not want any

problems. Nikki said there would be no problems if she checked in. Defendant

responded: “I mean until your 18 then they can’t say shit about where or how you do

your Life”; “I just don’t want any issues ya know”; and “We would have to keep things

hella discreet.” He later said: “But on your birthday we will be doing things bigger and

better.” At no point did Defendant withdraw his plans to bring Nikki to California.

Rather, he dove deeper into the plan by suggesting Nikki needed a fake ID, ensuring her

family would not miss her, and insisting things remain “hella discreet.” From these

statements, the jury could reasonably infer Defendant intended for Nikki to engage in

commercial sex acts before she turned eighteen.

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Defendant also insisted on talking to Nikki over the phone. To oblige, she called

him the next day. Nikki disclosed she had a rough home life and that she could leave her

aunt and uncle without issue. Defendant seemed concerned about her age, but said: “I

still might if I could use a little bit of time that you got until your 18th birthday and

stalling, and you know teaching you how things go then by the time you do reach the age

then you’ll be perfection.” Defendant again brought up the need for a fake ID “for

safety.” He then described the rates for various types of “dates.” Defendant offered to

teach Nikki “what to do, when to do it, and how to do it.” Within two weeks of their

initial conversation and five to six months before her eighteenth birthday, Defendant

bought Nikki a $224 one-way bus ticket so she could join him in California.

Throughout their correspondence, Defendant repeatedly asked Nikki to send him

nude photos. When she refused, he said: “Guess you not gonna let me see what belongs

to me.” Defendant tried to convince the court that he requested the nude photos to

establish Nikki was a real person. But the records showed that when Nikki remained

reluctant to send nude photos, Defendant said, “Once we’re together there’s gonna be

more than just taking pics.”

Defendant’s request for discretion, insistence she obtain a fake ID for “safety” and

generally cautious approach support the inference that he intended for Nikki to engage in

commercial sex acts as a minor. At trial, Defendant tried to explain Nikki needed the

fake ID for use in legal activities—but fake ID use inherently leads to participation in

illegal activity. Finally, he promised to make her perfection and commented that “more

than just taking pics” would happen once they were together. Armed with this evidence,

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a jury could reasonably infer Defendant intended for Nikki to engage in commercial sex

acts before she turned eighteen.

2.

Besides Defendant’s texts, phone conversations, and testimony, Agent

Tangeman’s expert testimony also supports the jury’s conclusion that Defendant intended

for Nikki to engage in commercial sex acts as a minor. Agent Tangeman is an

investigator with the Arapahoe County Sheriff’s Office, which assigned him to work with

the FBI Innocence Lost Task Force (“Task Force”). In that role, he investigates crimes

involving the sexual exploitation of children and human trafficking. Agent Tangeman

explained on direct examination how pimps recruit trafficking victims, the types of

individuals pimps seek, and the relationship that develops between pimps and victims.

He emphasized how a pimp tells his victim that he will provide emotional support,

material things, travel, and generally promise a lavish lifestyle. Defendant did just this

throughout his communications with Nikki. In their extended messaging, Defendant told

her “I promise if you stick around and really go hard for me I will bless you with

everything I can possibly give you[.]” Defendant made most of these promises after he

learned Nikki was a minor.

Agent Tangeman also discussed how pimps protect themselves when they know

their recruit is a minor. For example, he discussed that pimps generally obtain a fake ID

for the underage child to alleviate culpability. As an expert, Agent Tangeman opined that

a pimp’s request to delete messages and insistence on discretion are designed to protect

themselves when pimping a minor. Defendant told Nikki she needed a fake ID, regularly

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requested she delete messages, and had Nikki ensure her departure would not raise issues

with her family. Agent Tangeman’s testimony about how pimps treat underage recruits

and Defendant’s behavior support the reasonable inference that Defendant intended to

have Nikki engage in commercial sex acts while still a minor. In addition, a different FBI

special agent also testified that, in his experience, pimps did not wait to have their victim

engage in commercial sex acts until they reached the age of majority. In reviewing all

the evidence in a light most favorable to the government, we conclude evidence exists in

the record sufficient to support the jury’s determination that Defendant intended for Nikki

to engage in commercial sex acts while still a minor.

B.

Defendant next appeals the district court’s denial of his request for an entrapment

jury instruction. We review the court’s refusal to provide the entrapment defense jury

instruction de novo. United States v. Scull, 321 F.3d 1270, 1274 (10th Cir. 2003) (citing

United States v. Ortiz, 804 F.2d 1161, 1164 (10th Cir. 1989)). Because “‘[t]he question

of entrapment is generally one for the jury, rather than for the court,’” an entrapment jury

instruction is appropriate only when a defendant produces “‘sufficient evidence from

which a reasonable jury could find entrapment.’” United States v. Vincent, 611 F.3d

1246, 1250 (10th Cir. 2010) (first quoting Mathews v. United States, 485 U.S. 58, 63

(1988); then quoting Scull, 321 F.3d at 1275). “For the purposes of determining the

sufficiency of the evidence to raise the jury [instruction] issue, the testimony most

favorable to the defendant should be accepted.” Scull, 321 F.3d at 1275 (quoting United

States v. Reyes, 645 F.2d 285, 287 (5th Cir. 1981)) (quotation marks omitted).

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To prevail, Defendant must show that: (1) the government agents induced him to

commit the offense; and (2) that he was not otherwise predisposed to commit the offense,

if given the opportunity. See United States v. Ngyuen, 413 F.3d 1170, 1178 (10th Cir.

2005) (quoting United States v. Young, 954 F.2d 614, 616 (10th Cir. 1992)).

“‘[G]overnment conduct which creates a substantial risk that an undisposed person or

otherwise law-abiding citizen would commit the offense’” constitutes inducement. Scull,

321 F.3d at 1275 (quoting Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986)). “Evidence that a

government agent solicited, requested or approached the defendant to engage in criminal

conduct, standing alone, is insufficient to constitute inducement.” Ortiz, 804 F.2d at

1165. Evidence that the government initiated contact with the defendant or proposed the

crime does not rise to inducement. Id.

Defendant contends that the government’s use of a dating website limited to

persons over eighteen years old led him to reasonably believe he was talking with an

adult when he started his conversation with Brooke/Nikki. Thus, he argues, the

government’s conduct (delay in disclosing Nikki was underage) shows agents induced

him to engage in illegal conduct with a minor. We disagree.

When the government disclosed Nikki was underage, it provided Defendant with

an out he refused to take. See United States v. Munro, 394 F.3d 865, 871–72, n.2 (10th

Cir. 2005) (finding no entrapment jury instruction was warranted where the government

offered a chance to back out of the potential crime). Despite learning Nikki’s age,

Defendant caused the relationship to progress. Far from ending things, Defendant kept

communicating with Nikki, made plans to obtain her fake ID, and asked her to delete

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messages and keep things discrete. He even bought her a bus ticket so she could move to

California and live with him prior to her eighteenth birthday. He told her they could use

the time awaiting her birthday to make her “perfection.” He asked Nikki to send nude

photos, and chastised her for her reluctance to send them. The government did not start

these advancements and therefore, did not induce Defendant to engage in conduct with a

minor. When the government does not induce the conduct, there can be no entrapment.2

Sufficient evidence does not support the conclusion that a reasonable jury could

find entrapment. The evidence instead shows Defendant continued to engage in

recruitment activity after he learned Nikki’s real age. For this reason, the district court

did not err in denying Defendant’s request for an entrapment jury instruction.

C.

Defendant also appeals the denial of his request that the government disclose its

confidential source’s identity. “We review the denial of a defendant’s motion for

disclosure of an informant’s identity for abuse of discretion.” Vincent, 611 F.3d at 1251

(citing United States v. Martinez, 979 F.2d 1424, 1426 (10th Cir. 1992)). The

government enjoys a privilege to withhold disclosure of a confidential source’s identity

due to a strong public interest in furthering effective law enforcement. Id. (citing United

States v. Mendoza-Salgado, 964 F.2d 993, 1000 (10th Cir. 1992)). Disclosure is proper

when the “‘informer’s identity . . . is relevant and helpful to the defense of an accused, or

is essential to a fair determination of a cause.’” Id. (quoting Roviaro v. United States,

2

Because Defendant’s entrapment argument fails on the inducement prong, we

need not consider the predisposition prong.

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353 U.S. 53, 60–61 (1957)). But when the identity is not relevant, helpful, or serves

merely a cumulative purpose, we have not required disclosure. See Mendoza-Salgado,

964 F.2d at 1000–01.

Defendant claims his entrapment defense requires the government’s disclosure of

the confidential source’s identity. Relying on Roviaro, Defendant asserts that because he

raised a plausible entrapment defense, he may confront the confidential source to obtain

information about his entrapment defense. Defendant, however, misreads Roviaro. In

Roviaro, the confidential informant played an active role in the charged illegal activity.

353 U.S. at 58–59. There, the government sought to keep the informant’s identity

privileged, even though the informant could provide information about certain parts of

the transaction not otherwise available to the defendant. Id. The court permitted

disclosure of the confidential informant because the confidential informant’s identity and

testimony were highly relevant and material to the defense. Id. at 62–64.

Unlike Roviaro, the district court admitted transcripts of all conversations between

the confidential source and Defendant into evidence. They had no other contact. Thus,

the confidential source would have added nothing new and her testimony would have

been unnecessarily cumulative. Even so, Defendant contends the confidential source

could help him prove inducement. Defendant’s continued contact and communication

with Nikki after she disclosed her age shows the government did not induce Defendant.

In fact, as discussed above, the opposite remains true. Moreover, disclosure and

testimony from the confidential source would not add to the entrapment defense. Unlike

in Roviaro, Defendant participated in all the conversations that included the confidential

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source and never disputed that the transcripts the government provided to him accurately

captured the words spoken between Defendant and the informant. Thus, unlike Roviaro,

Defendant could not obtain any non-cumulative evidence from the confidential source.

Thus, Defendant cannot show the district court abused its discretion in denying the

motion to disclose the confidential source.

D.

Next, Defendant argues the district court erred in admitting Agent Tangeman’s

expert testimony. We review the decision to admit or exclude expert testimony for an

abuse of discretion. United States v. Abdush-Shakur, 465 F.3d 458, 466 (10th Cir. 2006).

1.

Defendant contends the district court erred by allowing Agent Tangeman to

provide expert testimony at trial about the pimping and prostitution culture. Defendant

claims that because some of this testimony bore no relevance to the elements of the

charged offense, the district court inappropriately admitted it under Federal Rules of

Evidence 401, 403, and 702.3 We disagree.

In urging reversal, Defendant relies on our decision in Abdush-Shakur where we

held the district court did not abuse its discretion by excluding expert culture testimony

3

Defendant briefly asserts that the generalities about pimps and pimping

culture should have been excluded under these evidentiary rules. Because Defendant

does not develop any argument in his opening brief specific to these rules, he

effectively waives this argument. See United States v. Cooper, 654 F.3d 1104, 1128

(10th Cir. 2011) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th

Cir. 1998) (“It is well settled that [a]rguments inadequately briefed in the opening

brief are waived.”) (internal quotation marks omitted)).

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because it lacked relevancy to an element of the charged offense. Id. at 466–67. In that

case, the government charged the defendant with attempted murder and possession of a

prohibited object in violation of 18 U.S.C. §§ 113 and 1791(a)(2). Id. at 460. At trial,

the defendant offered expert testimony about the “culture of violence” in federal

penitentiaries to explain his violent retaliation toward a disrespectful officer. Id. at 466.

The defendant claimed he intended only to wound the officer and not kill him and that the

expert testimony explained his motive. Id. The court found the expert’s testimony was

not relevant to the defendant’s case. Id. The court reasoned that while the defendant’s

proffered expert testimony might show a generic culture of violence in prisons and

establish the defendant did not respond unusually for a prisoner, the testimony did not

legally excuse his attack on the corrections officer by negating an element of the crime.

Id. at 466–67. Because the expert testimony did not negate the mens rea, the district

court properly excluded it because the testimony was not relevant. Id. at 467.

The government’s use of cultural testimony differs here. Agent Tangeman’s

testimony provided a basis on which the jury could infer that Defendant recruited a

vulnerable girl seeking structure and stability in her life. Unlike Abdush-Shakur, the

government here used expert cultural testimony along with the communications between

Defendant and Nikki to show that Defendant intended to have Nikki engage in

commercial sex acts while still a minor. So, the expert testimony related to an element of

the crime. For this reason, the district court did not abuse its discretion by allowing

Tangeman to provide expert testimony on pimping and prostitution culture.

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2.

Defendant next complains the district court improperly allowed Tangeman to

testify as both a fact and expert witness without providing his requested jury instructions.

We review the jury instructions given by the court, de novo “to determine whether, taken

in their entirety, they correctly informed the jury of the governing law.” Gust v. Jones,

162 F.3d 587, 596 (10th Cir. 1998) (citing Summers v. Mo. Pac. R.R. Sys., 132 F.3d

599, 606 (10th Cir. 1997)). Waiver occurs, however, when a party invites the error

below. See United States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th Cir. 2008).

Although Defendant now complains about the lack of a jury instruction on

Agent Tangeman’s expert and fact testimony, he did not object (and in fact agreed) to

the jury instruction about Tangeman’s testimony before the district court. He has

therefore invited any error caused by the lack of instructions and has waived his right

to challenge them. United States v. Cornelius, 696 F.3d 1307, 1319 (10th Cir. 2012)

(“Under the invited error doctrine, this Court will not engage in appellate review

when a defendant has waived his right to challenge a jury instruction by affirmatively

approving it at trial.”).

E.

At trial the government sought to enter its Exhibit 47, a 207-page document of

comments, including comments from Defendant, from the online dating site, into

evidence. Defendant objected, arguing that many pages of Exhibit 47 were not relevant

and should be excluded. The court sustained the objection and, without further objection

from defense counsel, required the government to admit only the relevant pages one at a

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time. Ironically, Defendant now claims that the government’s 207-page Exhibit 47

contained exculpatory statements and that the district court erred by not admitting those

statements under Federal Rule of Evidence 106.

Defendant acknowledges his failure to present this argument to the district court

and, requests that we review the district court’s failure to admit (presumably sua sponte)

these purportedly exculpatory statements for plain error. But plain error review is

reserved for forfeited arguments, not arguments occasioned by the district court’s

adoption of a defendant’s own erroneous suggestion. United States v. Carrasco-Salazar,

494 F.3d 1270, 1272 (10th Cir. 2007); see also United States v. Hardwell, 80 F.3d 1471,

1487 (10th Cir. 1996) (“A defendant cannot invite a ruling and then have it set aside on

appeal.”). Here, the government’s proposed exhibit contained the exculpatory statements

Defendant now says the district court should have admitted. But Defendant caused their

exclusion through his own relevance objection to the district court. As a result, if the

district court erred by not admitting evidence it did not know Defendant believed was

exculpatory, the error was invited. And unlike forfeited arguments, which we review for

plain error, invited errors are waived and we do not review them at all. See United States

v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir. 2009).

F.

Defendant next argues that even if we determine the district court’s errors were

harmless, the aggregation of those errors leads to cumulative error. “Cumulative error

cannot be predicated on non-errors.” United States v. Oldbear, 568 F.3d 814, 825 (10th

Cir. 2009). Nor can it be predicated on invited error. United States v. Lopez-Medina, 596

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F.3d 716, 733 n.10, 741 (10th Cir. 2010). Because Defendant identifies, at most, invited

error, we reject his cumulative error argument.

G.

Defendant lastly argues his sentence was substantively unreasonable. We

review a sentence for reasonableness. United States v. Kristl, 437 F.3d 1050, 1053

(10th Cir. 2006). A sentence within the Guidelines range is presumed reasonable.

Id. at 1054. On reasonableness review, we ask whether the district court abused its

discretion. United States v. Smart, 518 F.3d 800, 805–06 (10th Cir. 2008).

Defendant contends his 188-month sentence is substantively unreasonable for

two reasons. First, he argues his sentence resulted from Tangeman’s alleged

outrageous government conduct. Defendant asserts that decreasing Nikki’s age to

seventeen years old amounts to outrageous government conduct. It does not. “The

outrageous conduct defense . . . is an extraordinary defense that will only be applied

in the most egregious circumstances.” United States v. Pedraza, 27 F.3d 1515, 1521

(10th Cir. 1994). “To succeed on an outrageous conduct defense, the defendant must

show either: (1) excessive government involvement in the creation of the crime, or

(2) significant governmental coercion to induce the crime.” Id. (citing United States

v. Mosley, 965 F.2d 906, 908 (10th Cir. 1992)).

Defendant’s claim that the government created the crime by misrepresenting

Nikki’s age lacks merit. The dating website only requires the participant to click and

verify his or her age. This simple verification process allows minors to easily join the

site. Defendant unreasonably assumes all users are at least eighteen years old. So the

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government’s decision to make Nikki a minor on a website that requires minimal ageverification does not amount to outrageous government conduct.

More importantly, Defendant reached out to Brooke/Nikki and put in motion the

plan to pursue a “business partnership.” And despite Defendant’s claim that the

government coerced him into the crime through Nikki’s continued conversations and

plans to meet, a review of the conversations in the appellate record shows the contrary to

be true. The conversations continued long after Nikki revealed her true age. Defendant

maintained contact, pressed to meet her, and bought her a bus ticket to California from

Denver. Defendant claims Tangeman “induced” him to commit a different crime solely

so the government could unfairly seek an enhanced sentence. But his claim is without

merit. The government offered Defendant several opportunities to call off his plans with

Nikki. Her admission to being seventeen years old was the most obvious one. Even so,

Defendant continued communicating with her after the age revelation and cultivated their

relationship for the future. Defendant provides no evidence that excessive government

involvement existed in the creation of the crime nor does evidence support significant

governmental coercion to induce the crime.

Defendant next argues his sentence is unreasonable because he accepted

responsibility. Defendant believes he should get credit for admitting to his intent to

prostitute Nikki when he believed her to be eighteen. Such an admission does not

constitute acceptance of responsibility. Rather, as the district court properly found,

Defendant’s request for acquittal on both charged offenses shows he did not accept

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responsibility. For these reasons, we conclude Defendant’s sentence was not

substantively unreasonable.

AFFIRMED.

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