                                                                              FILED
                           NOT FOR PUBLICATION                                APR 27 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-10023

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00321-FJM-1

  v.
                                                 MEMORANDUM*
CHARLES SODERMAN,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                  Frederick J. Martone, District Judge, Presiding

                       Argued and Submitted March 1, 2011
                                Tempe, Arizona


Before: CANBY, HAWKINS, and CLIFTON, Circuit Judges.

       Charles Soderman appeals his conviction. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I.    Entrapment

      Soderman’s first argument is that the court erred in not dismissing the

indictment or granting his motion for a judgment of acquittal because he was

entrapped as a matter of law. Acquittal based on entrapment requires finding that

(1) the government induced him to commit the crime, and (2) he was not

predisposed to commit the crime prior to his interactions with law enforcement.

United States v. Thickstun, 110 F.3d 1394, 1396 (9th Cir. 1997). Soderman did not

object to the instructions given to the jury on the subject of entrapment, and he was

found guilty by the jury. When a defendant argues on appeal that a conviction

should be overturned because he was entrapped as a matter of law, the court must

determine whether “viewing the evidence in the light most favorable to the

government, no reasonable jury could have found in favor of the government as to

inducement or lack of predisposition.” United States v. Poehlman, 217 F.3d 692,

698 (9th Cir. 2000).

      Soderman has met his burden of showing that no reasonable jury could have

found in favor of the government on the question of inducement. Undercover

agents suggested to Soderman the idea of engaging in criminal conduct. Merely

introducing the idea of a crime does not constitute inducement. See Sherman v.

United States, 356 U.S. 369, 372 (1958) (“[T]he fact that government agents


                                          2
‘merely afford opportunities or facilities for the commission of the offense does

not’ constitute entrapment.” (quoting Sorrells v. United States, 287 U.S. 435, 441

(1932)). However, here the government went much farther.

      “[A]t bottom the government induces a crime when it creates a special

incentive for the defendant to commit the crime.” Poehlman, 217 F.3d at 698. It

can create that special incentive through “government conduct creating a

substantial risk that an otherwise law-abiding citizen would commit an offense,

including persuasion, fraudulent representations, threats, coercive tactics,

harassment, promises of reward, or pleas based on need, sympathy or friendship.”

United States v. Davis, 36 F.3d 1424, 1430 (9th Cir. 1994); see also Poehlman,

217 F.3d at 701 (inducement consists of “opportunity plus something else-

typically, excessive pressure by the government upon the defendant or the

government’s taking advantage of an alternative, non-criminal type of motive.”

(internal quotation marks omitted)). The conversations between Soderman and the

agent show the government used several of these tactics. Over thirteen months of

online conversations with Soderman, government agents encouraged him to engage

in criminal activity. The agent played on their supposed friendship, suggested that

Soderman would become “part of our family” if he engaged in the criminal

activity, and told him that he would also get to meet others to whom he could


                                          3
relate. The agent also tried to make Soderman feel guilty for not engaging in the

criminal conduct. As we have noted, “even very subtle governmental pressure, if

skillfully applied, can amount to inducement.” Poehlman, 217 F.3d at 701. Given

the evidence before them, no reasonable jury could have concluded that Soderman

was not induced.

      Even though Soderman was induced, he has failed to establish entrapment as

a matter of law because, taking the evidence in the light most favorable to the

government, a reasonable jury could have concluded that he was predisposed to

commit this crime. We have identified five factors for evaluating predisposition:

“(1) the defendant’s character and reputation; (2) whether the government initially

suggested the criminal activity; (3) whether the defendant engaged in the activity

for profit; (4) whether the defendant showed any reluctance; and (5) the nature of

the government’s inducement.” Thickstun, 110 F.3d at 1396. No one factor is

conclusive, but “the defendant’s reluctance is the most important.” Id. at 1397.

Also, while the court’s focus is on whether there was predisposition prior to

engagement with the government, we can look at post-engagement statements of

the defendant to the extent they demonstrate his pre-engagement disposition. Id.

(“Evidence of predisposition may arise both before the government’s initial contact

and during the course of dealings.”).


                                         4
      Three of the factors favor Soderman. There was significant inducement by

the government, the initial suggestion for the criminal activity came from the

government, and Soderman did not engage in the activity for profit. However,

none of these factors is a particularly strong consideration here. While the

government initially suggested the criminal activity, Soderman quickly expressed

interest in engaging in it. Furthermore, the inducement by the government

occurred only after Soderman expressed his interest in engaging in the crime.

Finally, Soderman had non-monetary reasons for engaging in the criminal activity.

      But there was more than sufficient evidence of the first and fourth factors

that a reasonable jury could have found Soderman predisposed. The jury heard and

saw substantial evidence of Soderman’s previously expressed views not only

condoning this type of criminal activity, but moreover implying, if not outright

admitting, he had previously engaged in such illicit conduct himself. While

evidence was also presented at trial suggesting these past statements were mere

bragging, it was up to the jury to decide whether to believe that. Soderman’s

previous statements provided ample evidence of predisposition. Cf. Poehlman,

217 F.3d at 703. We cannot say as a matter of law that a reasonable jury could not

have relied on that evidence to conclude that there was predisposition.




                                          5
      There was also ample evidence of a lack of reluctance by Soderman. After

the agent first mentioned the possibility of committing the crime, Soderman

pursued the topic and shortly thereafter expressed his interest in pursuing the

criminal activity. See United States v. Mendoza-Prado, 314 F.3d 1099, 1102 (9th

Cir. 2002) (no entrapment where “Defendant showed no reluctance to commit the

crimes” and “[w]ith very little inducement, he readily agreed to look for the

cocaine”). While it took thirteen months from the initial government contact

before he engaged in the crime, delay does not have to mean reluctance. The

online chats between Soderman and the agent reveal that the delay was not

necessarily caused by Soderman’s reluctance to commit the crime, but could rather

have been caused by a series of unrelated issues which, Soderman wrote at the

time, made committing the crime impossible. Again, we cannot conclude that a

reasonable jury could not take those statements at face value. Throughout the

thirteen months Soderman repeatedly and consistently expressed his desire to

commit the crime. At no time in the online chats did he express disgust or

disinterest in the criminal activity. Cf. Poehlman, 217 F.3d at 704 (lack of

predisposition where defendant “pushed the conversation in the opposite

direction”).




                                          6
      Soderman relies on Jacobson v. United States, 503 U.S. 540 (1992), but that

case is distinguishable. In Jacobson the predisposition evidence consisted of an

action taken before it was made illegal and statements he made to undercover

agents. In regard to the first, the Court noted that “evidence of predisposition to do

what once was lawful is not, by itself, sufficient to show predisposition to do what

is now illegal.” Id. at 551. Here, by contrast, there was evidence that suggested

Soderman had engaged in conduct which was illegal at the time. In regard to the

statements Jacobson made during the investigation, the Court described these as

“fantasies.” Id. Soderman’s comments to the undercover agent include bragging

about actual prior illegal conduct and numerous statements indicating his strong

desire to engage in the future illegal conduct proposed by the agent. As noted

above, we cannot say that a reasonable jury could not conclude that those

statements reflected actual conduct, rather than mere braggadocio.

      The jury in this case appeared to have approached its task carefully, and it

found Soderman guilty. We cannot say that its conclusion was unreasonable. On

the basis of the evidence presented to it, a reasonable jury could have found

Soderman predisposed to commit the crime in question. There was no entrapment

as a matter of law.




                                          7
II.    Outrageous Government Conduct

       Soderman also argues, for the first time on appeal, that the government’s

conduct in exhorting him to engage in the criminal conduct was so outrageous that

it violated due process. A claim of outrageous government conduct is treated as a

motion alleging a defect in instituting the prosecution under Fed. R. Crim. P. 12(b).

United States v. Mausali, 590 F.3d 1077, 1080 (9th Cir. 2010). Under Rule 12,

failure to raise the claim before trial results in its being waived. Id. Soderman has

offered no legitimate explanation for his failure to raise the claim that would

warrant us granting relief from the waiver. Even if the claim were not waived,

while the government’s conduct here was questionable, it was not so outrageous

that it violated due process.

III.   Testimony of Weller

       Soderman next argues that the court erred by allowing the testimony of

Weller linking him to posts made on websites, which he claims was improper

expert testimony. Weller never gave an opinion that would require “scientific,

technical, or other specialized knowledge.” Fed. R. Evid. 702. Rather, her

testimony consisted of describing online posts written by an individual using

specific pseudonyms and describing how she used personal information given in

those posts to connect Soderman to the pseudonyms by using Internet searches.


                                          8
      At most Weller’s “expertise” was in knowing where to find identifying

information online and which search engines to use to connect that information to

an actual person. While this might not be something everyone knows how to do,

Weller’s “observations [were] common enough and require[d] such a limited

amount of expertise, if any, that they can, indeed, be deemed lay witness opinions.”

See United States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995). The only opinion

she gave was her belief that Soderman was the author of the posts. This opinion,

which was based on comparing the information in the posts to information she

gathered on Soderman, was “rationally based on the perception of the witness.”

Fed. R. Evid. 701.

      Soderman also raises objections to Weller’s testimony on the grounds of

lack of foundation and hearsay. These objections are also unfounded. The district

court policed Weller’s testimony and sustained objections when her testimony did

in fact lack foundation or was based on hearsay. The testimony Weller was allowed

to give consisted of her observations about the posts and explaining how she linked

those to Soderman. None of this testimony was hearsay or lacked foundation. The

court did not abuse its discretion by allowing her testimony.




                                         9
IV.   Voir Dire

      Finally, Soderman argues the district court abused its discretion by rejecting

a proposed jury questionnaire that inquired about prospective jurors’ views on one

subject and also refusing to ask about their views on that subject during the oral

voir dire. The district court is required to conduct voir dire “in a manner that

permits the informed exercise of both the peremptory challenge and the challenge

for cause.” Darbin v. Nourse, 664 F.2d 1109, 1113 (9th Cir. 1981). We have held

that “[i]f an inquiry requested by counsel is directed toward an important aspect of

the litigation about which members of the public may be expected to have strong

feelings or prejudices, the court should adequately inquire into the subject on voir

dire.” Id. While it may be the case that members of the public have strong

feelings or prejudices about the subject at issue, it was not an important aspect of

the litigation, which was focused on the entrapment question. Therefore, the

failure to inquire specifically into that subject did not amount to an abuse of

discretion by the district court.

      AFFIRMED.




                                          10
