                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0139n.06

                                           No. 16-5139

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                )                       FILED
                                                         )                 Mar 03, 2017
      Plaintiff-Appellee,                                )             DEBORAH S. HUNT, Clerk
                                                         )
v.                                                       )
                                                               ON APPEAL FROM THE
                                                         )
                                                               UNITED STATES DISTRICT
JUAN ALBERTO ROBLES ZAVALA,                              )
                                                               COURT FOR THE EASTERN
                                                         )
                                                               DISTRICT OF TENNESSEE
      Defendant-Appellant.                               )
                                                         )
                                                         )
                                                         )
                                                         )


BEFORE: KEITH, ROGERS, and KETHLEDGE, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. Juan Alberto Robles Zavala (“Zavala”) appeals his

conviction for attempting to induce a minor to engage in sexual activity in violation of 18 U.S.C.

§ 2422(b). Zavala argues that: (1) the evidence was insufficient to support his conviction; (2) the

district court improperly instructed the jury; and (3) the district court abused its discretion by

allowing testimony concerning unrelated undercover investigations. We AFFIRM.

                                    I.     BACKGROUND

       Zavala was a paid subscriber of GetItOn.com, an adult sexual website. On October 13,

2014, Zavala sent a message to KelliWilliams (“Kelli”), another profile on the website

KelliWilliams’ profile stated that Kelli needed “a teacher for taboo” and was “[l]ooking for an

experienced dom wanting to train.” The profile stated, “I have myself and a younger version of

me.” Kelli responded to Zavala by providing her e-mail address, which he contacted on October

                                                  
 
No. 16-5139, United States v. Robles Zavala


18, 2014. Zavala asked Kelli whether she thought the relationship would work, to which she

replied, “If you are wanting to train my little me.” Kelli explained that her “little me” is

“younger and curious” and “almost a mirror image of [Kelli] at her age.” On November 21,

2014, Kelli explained that she was “looking discreetly for someone for [her] daughter . . . she has

become interested in sex . . . .” On November 13, 2014, Kelli asked Zavala “how low” he goes,

and on November 23, 2014, Zavala replied, “age is not [a] problem if > 12 and you are present

and support the situation.” In another e-mail, Zavala stated that he “also know[s] about legal

risks” but that he was “building trust.” Kelli sent Zavala a picture of her daughter, “Amy,” to

which Zavala replied, “[s]he is really beautiful, her eyes and smile are capturing my mind!”

Zavala also began sending messages for Amy to Kelli, and explained what he wanted to do with

Amy, sexually. Zavala scheduled a date and time to meet Kelli and her daughter at a hotel, and

to engage in sexual activity with Amy. Unbeknownst to Zavala, undercover law enforcement

agents maintained the KelliWilliams profile. Thus, when Zavala went to the hotel to meet with

Kelli and Amy, agents promptly arrested him for attempting to induce a minor to engage in

sexual activity. Zavala waived his Miranda rights and told agents that he knew “that it’s not

right . . . to have sex with a child.”

        At trial, the government asked the undercover officers questions concerning other

investigations they conducted on GetItOn.com. Over defense counsel’s objection, the jury heard

that at least fifteen individuals had contacted the KelliWilliams profile on GetItOn.com since it

was posted. An officer testified that once Kelli disclosed that her “little me” was twelve years

old, some would say “that’s too young. That’s illegal, and I want nothing to do with it.” The

officer testified that she would then cease communication. Over defense counsel’s objection,

another officer testified that once an individual has communicated with a minor about sex,



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investigators want to get him or her to “a particular location . . . [because] you can certainly

determine if that individual had the intent to have sex with that child, if they show up at the

appointed place with condoms in their pocket, et cetera.”

       Zavala testified on his own behalf. Zavala told the jury that he believed Amy was a real

twelve-year-old girl until November 30, 2014, when he started to believe that Kelli was role-

playing the part of the minor child.

       The district court instructed the jury that it was to find whether the government proved

beyond a reasonable doubt the following:

               First, that the defendant knowingly used a means or facility of interstate or
       foreign commerce; that is, the Internet, [facsimile] or telephone, a computer, or e-
       mail to attempt to persuade, induce, or entice an individual under the age of 18
       years to engage in unlawful sexual activity.
               Second, that the defendant believed the individual was under – under the
       age of 18.
               Third, that if sexual activity had occurred the defendant could have been
       charged with a criminal offense under state law.
               Fourth. That the defendant did some overt act that was a substantial step
       towards committing the crime of using interstate commerce to entice the minor to
       engage in unlawful sexual activity.

       The jury convicted Zavala as charged, and he was sentenced to 120 months’

imprisonment. Zavala timely appealed. Zavala argues that the evidence was insufficient to

convict him, that the district court’s jury instruction was erroneous, and that the district court

abused its discretion when it allowed the officers’ testimony regarding other investigations.

                                  II.    DISCUSSION

                           A.      Sufficiency of the Evidence

       We review a challenge to the sufficiency of evidence de novo. United States v. Owens,

426 F.3d 800, 808 (6th Cir. 2005) (citation omitted). However, we view “the evidence in the

light most favorable to the prosecution.” Id. “Indeed, a defendant bears a very heavy burden


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when he challenges the sufficiency of the evidence, lest the matter of his guilt be re-litigated.”

Id. (internal marks and citation omitted).

       1. Adult intermediary

       Zavala argues that to be convicted under § 2422(b), he must have enticed an actual

minor. Zavala argues that, because he engaged in conversation with adults pretending to be a

minor, and not an actual minor, his conviction cannot stand. Our precedent forecloses this

argument. In United States v. Roman, 795 F.3d 511, 516 (6th Cir. 2015), we held that “a

defendant violates § 2422(b) by communicating only with an adult intermediary if the

defendant’s communications with that intermediary are intended to persuade, induce, entice, or

coerce the minor child’s assent to engage in prohibited sexual activity.” Id. (emphasis added)

(citations omitted).   Further, “[t]he crime is complete when the defendant both intends to

persuade the minor child to assent to sexual activity and the defendant takes a substantial step

toward completing the crime—for example, by engaging in communications with an adult

intermediary who can exert influence to help achieve the child’s assent.” Id. As we have stated,

“Congress has made a clear choice to criminalize persuasion and the attempt to persuade.” Id.

(citation omitted). The record establishes that Zavala intended to communicate with an adult

intermediary who disclosed that she would influence a minor child to have sexual relations with

him. The record establishes that Zavala sent communications of a sexual nature to the person he

believed to be the minor child, establishing his intent when he used the adult intermediary. Thus,

there was sufficient evidence to determine that Zavala’s communications to the intermediary

were intended to induce and entice a minor to engage in prohibited conduct. Accordingly, the

evidence was sufficient to support Zavala’s conviction.




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No. 16-5139, United States v. Robles Zavala


       2. Entrapment

       Zavala argues that the undercover officers entrapped him and the evidence was

insufficient to show otherwise. “The defense of entrapment has two elements: (1) government

inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal

activity.” United States v. Poulsen, 655 F.3d 492, 502 (6th Cir. 2011) (citation omitted). When

a defendant is predisposed to commit an offense, he is not entitled to argue the defense of

entrapment.    See United States v. Al-Cholan, 610 F.3d 945, 950-51 (6th Cir. 2010)

(“[Defendant’s] entrapment defense fails because the evidence incontrovertibly establishes that

he was predisposed to commit the offense.”).        Zavala fails to argue how he lacked the

predisposition to commit the offense, resting on an argument that the government induced the

crime, and thus failing to make a showing of the second requisite element of entrapment.

       The evidence is sufficient to prove that Zavala was predisposed to commit the offense.

Zavala’s messages to the adult intermediary illustrate that he was ready and willing to commit

the offense. Further, Zavala first initiated contact with the adult intermediary after reading her

posting that she wanted someone to “help train [her] ‘little me.’” Zavala specifically stated that

“age is not [a] problem if >12 and you are present,” and he did so prior to believing Kelli was

engaging in role-play. Additionally, when Kelli sent Zavala a photograph of the young girl, he

continued to discuss having sexual relations with her. Viewing the evidence in a light most

favorable to the government, the evidence was more than sufficient to prove that Zavala was

predisposed to commit the crime, and the government had not entrapped him. The evidence was

sufficient to support Zavala’s conviction.




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No. 16-5139, United States v. Robles Zavala


                                     B.      Jury Instruction

       Zavala argues that the district court erred by instructing the jury that a conviction was

warranted if they were to find that he “believed” the individual was under the age of eighteen,

rather than requiring them to find that the individual was in fact under the age of eighteen.

Zavala argues that the statute does not include the word “believed” and thus the jury instruction

was erroneous. “This Court reviews challenges to jury instructions for abuse of discretion.”

United States v. Kuehne, 547 F.3d 667, 679 (6th Cir. 2008) (citation omitted). “When jury

instructions are claimed to be erroneous, we review the instructions as a whole, in order to

determine whether they adequately informed the jury of the relevant considerations and provided

a basis in law for aiding the jury in reaching its decision.” Id. (citation omitted). As this court

explained in Roman, “the focus [under § 2422(b)] always remains on the defendant’s subjective

intent because the statute is ‘designed to protect children from the act of solicitation itself.’”

Roman, 795 F.3d at 516 (citation omitted). Further, “[w]e have held that the statute is violated

even if the targeted minor is not a real person as long as the defendant demonstrates that he is, or

is attempting to, persuade, induce, entice, or coerce the minor to engage in sexual activity.” Id.

Because the instructions adequately informed the jury of the relevant considerations, the district

court did not abuse its discretion when it provided those instructions.

                         C.      Prior Investigation Testimony

       Lastly, Zavala argues that the district court erred in allowing police testimony regarding

interactions with other suspects in unrelated cases. Zavala states that the evidence was more

prejudicial than probative and was irrelevant testimony that should have been excluded. “We

review for abuse of discretion the district court’s evidentiary rulings.” United States v. Wagner,

382 F.3d 598, 616 (6th Cir. 2004). “[R]eversal is appropriate only if the abuse of discretion was



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not harmless error, that is, only if the erroneous evidentiary ruling affected the outcome of the

trial.” United States v. Marrero, 651 F.3d 453, 471 (6th Cir. 2011) (internal marks and citation

omitted). Zavala does not argue on appeal how the evidence prejudiced him. Even assuming the

district court abused its discretion in admitting this testimony, the testimony did not affect the

outcome at trial. Zavala testified that, until November 30, 2014, he believed that Amy was a

twelve-year-old girl. Further, Zavala testified that he knew that he “did wrong at following this

communication” when he knew it “involve[d] a child.” Thus, given Zavala’s own admissions to

the jury, any alleged error was harmless.

                                    III.    CONCLUSION

       For the foregoing reasons, the evidence was sufficient to support Zavala’s conviction, the

jury instructions were not erroneous, and any officer testimony at trial did not prejudice the

outcome at trial. Accordingly, we AFFIRM.




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