           Case: 14-15536    Date Filed: 05/12/2016   Page: 1 of 34


                                                                        [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 14-15536
                         ________________________

                  D.C. Docket No. 0:14-cr-60083-DPG-1



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

versus

RICHARD RUTGERSON,

                                                Defendant – Appellant.

                         ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                               (May 12, 2016)



Before MARCUS, JORDAN and BLACK, Circuit Judges.

MARCUS, Circuit Judge:
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      Defendant Richard Rutgerson, using an internet site frequented by

prostitutes and their clients, responded to a posting by Amberly, who described

herself as a “sweet petite young lady.” Amberly answered Rutgerson’s message,

offering in veiled terms to have sex with him for money and revealing that she was

15 years old. Undeterred as long as they were discreet, Rutgerson proceeded to

arrange a meeting with Amberly where he expected to pay her for sex. Upon

arriving at the hotel designated for their rendezvous, Rutgerson was surprised to

learn that Amberly was not a 15-year-old prostitute, but rather a creation of the

Fort Lauderdale Police Department, whose officers arrested him. Rutgerson was

charged and convicted of attempting to persuade, induce, entice, or coerce a minor

into engaging in prostitution or unlawful sex, in violation of 18 U.S.C. § 2422(b).

      On appeal, Rutgerson challenges the sufficiency of the evidence supporting

his conviction, arguing that he could not have persuaded, induced, enticed, or

coerced a minor into engaging in prostitution when the minor has held herself out

as a prostitute before he made contact with her. We disagree. Where an underage

prostitute holds herself out as willing to engage in sex for money, the offer to pay

that money qualifies as sufficient inducement under § 2422(b). We also conclude

that Rutgerson is not entitled to relief based on the district court’s refusal to deliver

a confusing and erroneous jury instruction requested by Rutgerson or in its

exclusion of particular evidence. Accordingly, we affirm.


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                                         I.

      On April 24, 2014, a grand jury sitting in the United States District Court for

the Southern District of Florida indicted Rutgerson with one count of:

             using any facility and means of interstate commerce, [to]
             knowingly attempt to persuade, induce, entice, and
             coerce an individual who had not attained the age of
             eighteen years, to engage in prostitution or any sexual
             activity for which a person can be charged with a
             criminal offense, in violation of Title 18, United States
             Code, Section 2422(b).

Rutgerson’s case proceeded to a jury trial on August 25, 2014.

      At trial, the government first called Detective Robert Mauro, who was part

of the Fort Lauderdale Internet Crimes Against Children task force. Detective

Mauro testified that Rutgerson replied to an ad that he and Detective Jennifer

Montgomery posted on backpage.com as part of an operation that targeted child

predators on the Internet.

      The ad was posted on January 23, 2014, and was titled:

             ❤❤❤ SwEEt Petite yOung Lady...❤❤❤ Come See
             Me!! ❤AMBERLY❤ Ft Laud❤ - 99.

The ad included photos of a woman’s stomach and legs and read this way:

             Hi, I’m Amberly. . .pics are 100% real ((promise)).....
             New 2 BP and hOping tO like it here ❤

             i’m 5’2, 103 lbs, grEEn EyeS with a swEEt bAby dOLL
             sMile ❤


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             i PreFer mature upScale GENTLEmen who like the
             cOmpany of a petite yOung lady and Enjoy bEing
             paMpered & spOiled. If this sounds like you, hit me Up!

             i'm juSt an email or pHonE cALL aWay!! Come see
             MEEEE! ! ! ❤❤❤

             ❤

             Gmail me @cutieamberly99 for my #

             Poster’s age: 99

      Mauro testified that he had been trained how to sound like a child online,

using typos, spelling errors, slang, and words that adults typically do not use as

much as children. He explained that the heart symbols and the spelling that

alternated between capital and lowercase letters were indicative of how a teenager

texted and communicated on the internet. The words “petite” and “young”

indicated that the poster was under 18. Maura testified that, through his training

and experience, he knew that the number 99, in the underage prostitution world, is

code for a child, so the 99 in the ad was a “big hint” that the person posting the ad

was underage. The woman in the pictures was actually Detective Montgomery,

taken when she was 34 years old.

      On January 22, 2014, Richard Rutgerson responded to the e-mail address

listed in the ad. Mauro, playing the role of Amberly, replied. Their conversation




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continued via email and text message for the next two days, culminating in a

meeting for sex and Rutgerson’s arrest at a La Quinta Inn in Plantation, Florida.

      The government introduced a composite exhibit of the e-mail exchange

between Rutgerson and Amberly. The conversation began:

             Rutgerson: Hi babe.

             Can you tell me more about you?

             Amberly: im available tomorrw... im new on here and
             fyi im young. bp [backpage.com] shut down my ad twice
             thats why I cant put a phone # now cuz they kno its me.
             what are u lookn for

             Rutgerson: I’m looking for a playmate.

             What are you looking for?

             Amberly: im on bp. . . wat do you think lol
             are you good with a young playmate or no

             Rutgerson: How young are you?

             Where will you be available?

             Amberly: im 15 bu ppl say i look older. im clean and
             descreet. im gonna be near ft laud airport

             Rutgerson: Can you send me more pictures?

             Ya. I’m fine. So long as we’re discrete.

             What do you like to do? What are your rules?

      In subsequent emails, Rutgerson again asked Amberly what she liked to do

and what her “rules” were. She responded that her rules were that he could not
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“tattle” about her age, pee on her, or do anything that hurt. Amberly asked what he

wanted to do, and Rutgerson replied that he was looking on Backpage, so “what do

you think[?]” Rutgerson asked how Amberly could get a hotel room and whether

she was working with someone else. She told him that she was working with a 17-

year-old friend named Nicki who was in charge and set the rules.

      Rutgerson asked how much it would cost to meet with her, and she told him

it depended on what he wanted. He asked, whether she was available for GFE,

PFE, or other extras. Mauro testified that, in the prostitution world, “GFE” meant

“girlfriend experience,” meaning that it involved a sexual encounter and included

something more romantic like cuddling or hand holding. “PSE” means “porn star

experience,” which means “straight sex, a little more of the hardcore sex, nothing

like the girlfriend experience.” “Extras” referred to different fetishes. Rutgerson

also asked, “Do you masterbate? Do you cum easy? Do you like to be eaten out?”

      After those e-mail communications, Rutgerson texted Amberly’s phone. The

government then introduced a series of text messages between Rutgerson and

Amberly, which started near midnight on January 22 and continued into the early

morning hours of January 23. Rutgerson asked, “So how much?” and, “How much

to meet?” Amberly responded:

             Amberly: depends wat u want.. i told u. i dont meet to
             hang out n i kno thats not wat ur gonna pay for

             Rutgerson: GFE?
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             Amberly: an hour gfe i can do for $175 extras depends
             wat extras u want

Rutgerson proposed various “extras” in which he was interested. Amberly said she

was fine with whatever he wanted, except for “Greek,” which Mauro explained

meant anal sex. The conversation continued:

             Rutgerson: Ok. $?

             Amberly: i like condoms but maybe i can make
             exception

             for an hour?!?! $200

             ...

             Rutgerson: Ok. Can we do it more than once?

             Amberly: whatevr u wanna squeeze into the hr is fine

             Rutgerson: How about 2 hours for 300

Rutgerson also asked Amberly if she enjoyed receiving oral sex, saying, “I want

you to cum too ;-).”

      During the conversation, Amberly pressed Rutgerson to get out of work and

come see her. She said that she was leaving that night so he had to hurry. He told

her that he would not be able to meet her that night and that she should go ahead

and take another date. Amberly then said that she would be staying in town for a

little while longer. He responded that he wanted the first date she had on Friday or

Saturday night, so he could get her “fresh.” He asked if he could have sex without
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a condom and whether she was on birth control. Amberly responded, “y...u wanna

cum inside me? thats more $ but u kno that.”

      Rutgerson attempted to get Amberly to come from Fort Lauderdale to meet

him in Miami. He offered to pick her up or to get a hotel room in Miami. She

refused, explaining that she was 15 and could not drive. On January 24, 2014,

Rutgerson texted that he had gotten off work early and offered to drive the hour to

Fort Lauderdale if Amberly was still available. She gave him the address of a La

Quinta Inn in Plantation, told him to hurry, and advised him to “bring $ n stop

playin games.” He told her that he was on his way. Rutgerson sent Amberly a

series of text messages from the car as he drove to Fort Lauderdale and showed no

reluctance to have sex with a 15-year-old in those text messages.

      Mauro and other officers arrested Rutgerson when he arrived at the hotel in

Fort Lauderdale. Mauro interviewed Rutgerson after explaining his Miranda

rights. The recording of that interview was introduced and played before the jury.

In the interview, Mauro asked Rutgerson if he thought he was going to have a

sexual encounter with a 15-year-old. Rutgerson replied that he did not know what

was going to happen until he got there and that he “was just coming to hang out,”

but that “nine times out of ten that’s what happens.” Rutgerson further admitted

that he believed Amberly was 15 years old when he was texting and e-mailing her.




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      The interview also contained the following exchange, which was read to the

jury by the prosecutor and Detective Mauro:

             Det. Montgomery: Do you think she was lying about her
             age, did you suspect she was, or did you think she
             sounded like she might be telling the truth?

             Rutgerson: I think it could have gone either way. I think
             I couldn’t honestly believe someone that young was
             doing that, so either there was someone forcing her to do
             that and I thought -- I hope -- I hope I would have seen
             the distress when I . . . met her.

He also said that he had “no bad intentions” and that he would have liked to

believe that he would have done “nothing indecent” if he felt that she was

underage.

      On cross-examination, Mauro testified that he could not remember any time

when he had seen a minor posting with an age other than 99. Rutgerson also

introduced a number of Backpage ads with posters that claimed they were adults

but that contained heart symbols, upper- and lowercase letters, and words like

“petite,” “young,” and “sweet.” Mauro agreed that he had investigated Rutgerson

“very thoroughly” and that he had never learned that Rutgerson had any of the

training that enabled Mauro to identify the number 99, hearts, or capital letters as

being indicia of a minor posting.

      The government next called Detective Nicholas Masters. Masters testified

about the sting operation and Rutgerson’s arrest. He stated that, when Rutgerson


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was arrested, he found $400 and two condoms in Rutgerson’s front pocket, as well

as a large amount of cash in Rutgerson’s wallet and other pockets. He added that

he searched Rutgerson’s car where he discovered an iPhone and more condoms.

The government also called Special Agent Daniel Johns, who worked with the

Federal Bureau of Investigation and was the liaison with the Internet Crimes

Against Children task force at the Broward Sherriff’s Office. Johns testified that

no specific sex acts were mentioned before Rutgerson asked about whether “GFE,”

“PSE,” or “extras” were available. Amberly indicated that she was underage many

times, having made references to her age and to her inability to drive or rent a hotel

room. Rutgerson emailed, called, or text messaged her 114 times in total.

      Johns also testified that he had searched the internet history on Rutgerson’s

phone. His web history contained hundreds of searches on Backpage and other

sites involving escorts or prostitution. Johns said that Rutgerson searched for

pornography on his iPhone, but discovered only commercially available adult

pornography, not child pornography. Indeed, Johns did not find any child

pornography on Rutgerson’s iPhone.

      The government rested at the close of Detective Johns’s testimony.

Rutgerson then moved the court for a judgment of acquittal, pursuant to Federal

Rule of Criminal Procedure 29, on three grounds. First, he argued that the

government had not carried its burden of proof in two ways. He claimed that the


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evidence was insufficient to allow the jury to find beyond a reasonable doubt that

Rutgerson had any “intent to influence the will of” Amberly. The government had

presented only a solicitation case, he argued, and solicitation has not been

criminalized by 18 U.S.C. § 2422(b). Second, Rutgerson insisted that the

government had not presented any evidence to rebut his entrapment defense by

showing that he was predisposed to engage in sex with a minor. He maintained

that “[t]his statute is a child predator statute,” not a soliciting statute. The

government’s broad definition of “persuade, induce, entice or coerce” had

effectively moved a “purely local crime[] . . . into the realm of Federal court,”

rendering it unconstitutional in violation of “principles of federalism.” Finally,

Rutgerson said that, even if his other arguments failed, to the extent that the

statute’s terms were ambiguous, the rule of lenity demanded that the district court

adopt a narrower interpretation of the phrase “persuades, induces, entices, or

coerces.” The district judge denied the Rule 29 motion in its entirety.

      Rutgerson called two witnesses on his behalf. The first, Timothy Jones,

testified that Rutgerson left work at around 5:00 p.m. on January 23. Rutgerson

argued that this established that his work had not prevented him from seeing

Amberly that day, as his text messages to her had indicated. The other witness was

Valerie Rivera, a licensed private investigator. She had Googled the many

websites and names that came up in Rutgerson’s iPhone history. Through her,


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Rutgerson entered into evidence images of the websites that the detectives had

uncovered in his iPhone history.

       After the close of his case, Rutgerson renewed his Rule 29 motion for a

judgment of acquittal. The district court again denied the motion because “there

[was] sufficient evidence to proceed.”

      The court instructed the jury regarding the elements of attempting to entice,

persuade, or induce a minor to engage in prostitution or unlawful sexual activity.

It also provided an entrapment instruction.

      In closing argument, Rutgerson made two basic points. First, he attempted

to convince the jury that the government had not proven beyond a reasonable doubt

that he believed Amberly was a minor. He noted that the pictures on her profile

appeared to be of an older woman, and that he had expressed doubt that a fifteen-

year-old could rent a hotel room. Second, he argued that the evidence all pointed

to Amberly having persuaded him to meet for sex, that she made her agreement to

have sex clear from the outset, and thus that there was no evidence that he intended

to persuade her to have sex.

      On August 28, 2014, the jury found Rutgerson guilty of having violated 18

U.S.C. § 2422(b). And on December 5, 2014, the court sentenced him to the

mandatory minimum prison term of 10 years.

      This timely appeal followed.


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                                          II.

      Rutgerson first argues that the evidence was insufficient to support his

conviction under § 2422(b), or that he was predisposed to violate the statute. We

review the sufficiency of the evidence de novo. United States v. Ramirez,

426 F.3d 1344, 1351 (11th Cir. 2005). We are required to affirm Rutgerson’s

conviction if “any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” United States v. Hunt, 187 F.3d 1269, 1270

(11th Cir. 1999) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Thus,

we view “all the evidence in the light most favorable to the government and draw[]

all reasonable inferences and credibility choices in favor of the jury’s verdict.”

United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th Cir. 2010) (quoting United

States v. Taylor, 480 F.3d 1025, 1026 (11th Cir. 2007)). Because Rutgerson was

charged with attempt, sufficient evidence would support his conviction if a

reasonable jury could have found beyond a reasonable doubt that he “(1) had the

specific intent or mens rea to commit the underlying charged crimes, and (2) took

actions that constituted a substantial step toward the commission of [each] crime.”

United States v. Lee, 603 F.3d 904, 913-14 (11th Cir. 2010) (quoting United States

v. Yost, 479 F.3d 815, 819 (11th Cir. 2007)).

      Based on our review of the evidence adduced at trial, we are satisfied that a

reasonable jury could have found that Rutgerson attempted to induce Amberly to


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have sex with him, as proscribed by § 2422(b). The evidence established that he

energetically pursued Amberly over three days in an attempt to induce her to agree

on a price, terms, time, and location for a sexual encounter. Moreover, a

reasonable jury could also have found (as it obviously did) that Rutgerson was

predisposed to commit the charged crime and thus had not been entrapped. He

readily committed the crime and expressed no hesitation about having sex with

Amberly when she informed him that she was only 15 years old.

                                        A.

      Rutgerson was convicted of attempting to violate 18 U.S.C. § 2422(b). The

statute provides:

             Whoever, using the mail or any facility or means of
             interstate or foreign commerce, or within the special
             maritime and territorial jurisdiction of the United States
             knowingly persuades, induces, entices, or coerces any
             individual who has not attained the age of 18 years, to
             engage in prostitution or any sexual activity for which
             any person can be charged with a criminal offense, or
             attempts to do so, shall be fined under this title and
             imprisoned not less than 10 years or for life.

18 U.S.C. § 2422(b). Thus, the government had to prove that (1) Rutgerson “acted

with the specific intent to persuade, induce, entice or coerce [Amberly] to engage

in criminal sexual activity,” and (2) “took a substantial step toward the commission

of the underlying crime[].” Yost, 479 F.3d at 819. “The underlying criminal

conduct that Congress expressly proscribed in passing § 2422(b) is the persuasion,


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inducement, enticement, or coercion of the minor rather than the sex act itself.”

United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004).

      We have held that the terms persuade, induce, and entice in § 2422(b) should

be given their ordinary meaning. United States v. Panfil, 338 F.3d 1299, 1301

(11th Cir. 2003). That is precisely what the district court did here. The judge

instructed the jury:

             As used in this instruction, persuade means to win over,
             by an appeal to one’s reason and feelings, into doing or
             believing something.

             Induce means to stimulate the occurrence of or to cause.

             Entice means to lure or attract by arousing hope or desire.

These definitions are in line with the ordinary meaning of those terms. Indeed, the

definition of “induce” exactly matches the definition we endorsed in Murrell, 368

F.3d at 1287. Similarly, the definitions of “persuade” and “entice” match their

ordinary meanings. See “Persuade,” Merriam-Webster Unabridged Dictionary (3d

ed. 2015) (“[W]in over by an appeal to one’s reason and feelings (as into doing or

believing something)”); “Entice,” Merriam-Webster Unabridged Dictionary (3d ed.

2015) (“[T]o draw on by arousing hope or desire”). With these definitions in

mind, there was more than enough evidence to support the jury’s finding that

Rutgerson was guilty of attempting to persuade, induce, or entice Amberly to

engage in prostitution with him.


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      First, it is undisputed that Rutgerson initiated contact with Amberly after

seeing her ad and indicated that he was looking for a “playmate.” More

importantly, the jury reasonably could have concluded that Rutgerson offered to

pay a sum of money to Amberly in order to induce her to agree to have sex with

him. By definition, this constitutes a violation of § 2422(b). So far as Rutgerson

knew, Amberly would not agree to have sex with him without receiving payment.

Thus, his offer of money was a clear attempt to persuade, induce, or entice her into

having sex with him. A reasonable jury could easily have found Rutgerson guilty

of violating § 2422(b) based on this fact alone.

      Moreover, contrary to the defendant’s argument, this was not simply a

“market transaction” whereby Rutgerson passively accepted an offer posed by

Amberly. Passing over whether this argument would even constitute a defense, it

is plainly not supported by the facts here. Instead, the evidence showed that

Rutgerson engaged in active negotiations as to price and the particular sexual

activities in which he wished to engage. Amberly told Rutgerson she could do “an

hour gfe [] for $175.” Rutgerson responded by suggesting various extras,

including oral sex, using his fingers to penetrate her, and not wearing a condom.

She replied that the price would be $200 for an hour with his extras. Rutgerson

asked whether it would be possible to do two hours for $300. This continued

negotiation undoubtedly forms part of Rutgerson’s efforts to persuade, induce, or


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entice Amberly to have sex with him. Indeed, there is not the slightest suggestion

in this record that Amberly held herself out as being willing to engage in sex acts

with Rutgerson in the absence of being induced by the offer to pay her a substantial

sum of money.

      Nor was the offer of money the only means by which Rutgerson attempted

to persuade, induce, or entice Amberly. He also engaged in explicit sexual

dialogue, including telling Amberly that he “want[ed] her to cum too,” and

repeatedly asked what sex acts she would assent to and what she enjoyed. A

reasonable jury could interpret this dialogue as suggesting that Rutgerson was

trying to persuade Amberly that she would enjoy having sex with him, thus further

enticing her into agreeing to have sex with him.

      To the extent that Rutgerson suggests that an underage prostitute who holds

herself out for sex cannot be induced within the meaning of § 2422(b) as a matter

of law, he is mistaken. According to Rutgerson, the “question is not whether

Rutgerson believed that Amberly would have had sex with him in the absence of

payment,” but rather whether he believed she “was prepared to have sex with

anybody who paid her price -- i.e., that this was the business she chose -- such that

no external inducement, enticement, or persuasion was necessary.” This flouts the

plain meaning of § 2422(b). The statute criminalizes attempting to induce a minor

to “engage in prostitution or any sexual activity for which any person can be


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charged with a criminal offense.” 18 U.S.C. § 2422(b). Each time Amberly, a

fifteen-year-old, assented to have sex with an adult in exchange for money, she

was engaging in “prostitution” or sexual activity that “can be charged with a

criminal offense.” That many individuals might have sought to induce or entice

the same underage prostitute to engage in sex for money -- even if each one was

successful -- does not immunize Rutgerson from prosecution under § 2422(b). The

essential point is that Rutgerson attempted to persuade or induce Amberly to

engage in sex with him by offering to pay her money (and a substantial amount at

that) for her services. Rutgerson’s claim that he believed Amberly would agree to

have sex with anyone who paid her price essentially gives away the argument. It

(correctly) assumes that her agreement to have sex was dependent on the payment

of money. As we have already observed, offering or agreeing to pay money in

exchange for engaging in various sex acts qualifies as inducement within the

meaning of the statute; it was the necessary element that would cause Amberly to

agree to have sex with Rutgerson.

                                        B.

      Rutgerson also argues that even if the evidence was sufficient to establish a

violation of § 2422(b), he should not have been convicted because he was

entrapped into committing the crime as a matter of law. Entrapment is an

affirmative defense that requires (1) government inducement of the crime, and (2)


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lack of predisposition on the part of the defendant to commit the crime before the

inducement. United States v. Orisnord, 483 F.3d 1169, 1178 (11th Cir. 2007);

United States v. Ryan, 289 F.3d 1339, 1343 (11th Cir. 2002). The defendant bears

the initial burden of production as to the government inducement and he may meet

this burden by producing any evidence that is sufficient to raise a jury question that

the government “created a substantial risk that the offense would be committed by

a person other than one ready to commit it.” Ryan, 289 F.3d at 1343-44 (quoting

United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995)). “The defendant may

make such a showing by demonstrating that he had not favorably received the

government plan, and the government had had to ‘push it’ on him, or that several

attempts at setting up an illicit deal had failed and on at least one occasion he had

directly refused to participate.” United States v. Andrews, 765 F.2d 1491, 1499

(11th Cir. 1985) (citations omitted).

          Since entrapment is generally a jury question,1 entrapment as a matter of law

is a sufficiency-of-the-evidence inquiry that we review de novo, viewing all facts



1
    The district court delivered the following instruction regarding entrapment:

          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.


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and making all inferences in favor of the government. United States v. King, 73

F.3d 1564, 1568 (11th Cir. 1996). Where, as here, the jury has rejected an

entrapment defense and government inducement is not at issue, “our review is

limited to deciding whether the evidence was sufficient for a reasonable jury to

conclude [beyond a reasonable doubt] that the defendant was predisposed to take

part in the illicit transaction.” Brown, 43 F.3d at 622.

      Predisposition is a fact-intensive and subjective inquiry, requiring the jury to

consider the defendant’s readiness and willingness to engage in the charged crime

absent any contact with the government’s agents. Brown, 43 F.3d at 624; Jacobson

v. United States, 503 U.S. 540, 548-49 (1992) (holding that once government

inducement is shown, “the prosecution must prove beyond reasonable doubt that

the defendant was disposed to commit the criminal act prior to first being

approached by Government agents.”). We have rejected creating a “fixed list of


      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 is not entrapment for a Government agent to pretend to be
      someone else and after, directly or through another person, to engage in an
      unlawful transaction.

      So a Defendant is not 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.
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factors” for evaluating an entrapment defense, but we have posited “several

guiding principles”:

             Predisposition may be demonstrated simply by a
             defendant’s ready commission of the charged crime. A
             predisposition finding is also supported by evidence that
             the defendant was given opportunities to back out of
             illegal transactions but failed to do so. Post-crime
             statements will support a jury’s rejection of an
             entrapment defense. Existence of prior related offenses
             is relevant, but not dispositive. Evidence of legal activity
             combined with evidence of certain non-criminal
             tendencies, standing alone, cannot support a conviction.
             Finally, the fact-intensive nature of the entrapment
             defense often makes jury consideration of demeanor and
             credibility evidence a pivotal factor.

Brown, 43 F.3d at 625 (citations omitted).

      Viewing the evidence in the light most favorable to the government, a

variety of factors support a finding that Rutgerson was not entrapped as a matter of

law. In the first place, Rutgerson made the initial contact with Amberly and, after

she said that she was 15, Rutgerson readily proceeded to attempt to arrange a

sexual encounter with her. She repeatedly asked if he was okay with her tender

age, and he replied that he was okay as long as they were discreet. Rutgerson

never once said that he did not want to have sex with a 15-year-old (even as he was

repeatedly advised of Amberly’s age), and, as we have outlined the facts,

persistently pursued Amberly over three days in an attempt to agree on a price,

rules, time, and location for a sexual encounter.


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      Second, Rutgerson did not back out of his meeting with Amberly and never

expressed any hesitation about having sex with a minor, although he repeatedly

had the opportunity. Indeed, he drove from Miami to Fort Lauderdale for the

purpose of paying her for sex. He repeatedly rescheduled his date with her after

his work kept interfering. And in spite of the expressed concerns that Amberly

was not real or was part of a sting operation, Rutgerson continued to pursue a

sexual encounter with her. Cf. Lee, 603 F.3d at 915 (concern that online person

defendant intends to have sex with is part of a sting operation supports a relevant

inference of guilt because “a relationship with . . . an adult[] would not have

concerned law enforcement”). In the third place, his post-arrest statements were

quite damning: he stated that he believed he was texting and e-mailing a 15-year-

old, and that while he was not sure what was going to happen when he got there,

“nine times out of ten” a sexual encounter happens. Fourth, and finally, although

there was no evidence of prior related offenses, the government introduced

evidence that, before reaching out to Amberly, Rutgerson had accessed numerous

ads for “young” prostitutes online. Plainly, Rutgerson was familiar with the

website he used to locate Amberly’s ad. While there was no evidence that the

other prostitutes Rutgerson contacted were under 18, his search history suggests

that he was predisposed to attempt to entice young women into having sex.




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      The long and short of it is that the government agents “simply provided

[Rutgerson] with the opportunity to commit a crime” by posting the backpage ads,

and his “ready commission of the criminal act amply demonstrate[d] [his]

predisposition.” See Jacobson, 503 U.S. at 550. The evidence supports the jury’s

verdict.

                                          III.

      Rutgerson argues next that the district court erred by refusing to give a

proposed theory of the defense instruction to the jury. We review a refusal to give

a requested jury instruction for abuse of discretion. United States v. Duperval, 777

F.3d 1324, 1331 (11th Cir. 2015). A trial court enjoys broad discretion to

formulate jury instructions provided those instructions are correct statements of the

law. United States v. Merrill, 513 F.3d 1293, 1305 (11th Cir. 2008). A refusal to

incorporate a requested instruction will be reversed only if “(1) the requested

instruction was substantively correct, (2) the court’s charge to the jury did not

cover the gist of the instruction, and (3) the failure to give the instruction

substantially impaired the defendant’s ability to present an effective defense.”

United States v. Culver, 598 F.3d 740, 751 (11th Cir. 2010) (quoting United States

v. Klopf, 423 F.3d 1228, 1241 (11th Cir. 2005)). An instruction that tracks the

statute’s text will almost always convey the statute’s requirements. United States

v. Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004). “Under our deferential standard of


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review, we reverse only if ‘we are left with a substantial and [in]eradicable doubt

as to whether the jury was properly guided in its deliberations.’” United States v.

Browne, 505 F.3d 1229, 1276 (11th Cir. 2007) (quoting United States v. Eckhardt,

466 F.3d 938, 948 (11th Cir. 2006)); accord McCormick v. Aderholt, 293 F.3d

1254, 1260 (11th Cir. 2002).

      Rutgerson proposed the following jury instruction:

             It is a theory of defense that Mr. Rutgerson did not
             violate the statute he is charged with because he did not
             persuade, induce, entice, or coerce a person who he
             believed was under 18 to engage in prostitution or
             unlawful sexual activity, or attempt to do so.

             To prove Mr. Rutgerson guilty of Count 1, the
             government must prove beyond a reasonable doubt that
             Mr. Rutgerson intended to persuade, induce, entice, or
             coerce Detective Montgomery and that he believed her to
             be under 18 years old, not that he acted with the intent to
             engage in sexual activity with her.

             If you believe that Detective Montgomery presented as
             [a] 15-year old who was ready and willing to engage in
             sexual activity with Mr. Rutgerson, but that Mr.
             Rutgerson did not persuade, induce, entice, or coerce
             Detective Montgomery to do so, then you must find Mr.
             Rutgerson not guilty. Under these circumstances, you
             must find Mr. Rutgerson not guilty even if you believe
             that he intended to engage in sexual activity with
             Detective Montgomery and that he believed she was
             under 18 years old.

             On the other hand, if you believe that the evidence
             establishes beyond a reasonable doubt that Mr. Rutgerson
             did persuade, induce, entice, or coerce Detective
             Montgomery to engage in unlawful sexual activity, and
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                  that he believed she was under 18 years old, you should
                  find him guilty.

The district court determined that the proposed instruction was a substantive

instruction, not a theory of the defense instruction, and declined to give it. The

court initially agreed, however, to give the first paragraph of the instruction in a

slightly modified form. But in response to a government objection, the court

declined to give even the modified version. The district court observed that, while

Rutgerson had not been charged with statutory rape, a minor could not consent in

any event, so the instruction was not appropriate.

          The district court ultimately gave the jury an instruction that largely tracked

the statutory language of § 2422(b). 2 The court further instructed the jury that

2
    The district court’s instruction to the jury read as follows:

          It is a federal crime for anyone using any facility or means of interstate or foreign
          commerce including transmissions by computer on the internet, to persuade,
          induce, entice, or coerce anyone under 18 years old to engage in prostitution or
          any sexual activity for which any person could be charged with a criminal
          offense.

          The Defendant can be found guilty of this crime only if all of the following facts
          are proved beyond a reasonable doubt:

                  One, the Defendant knowingly persuaded, induced, enticed or coerced
                  Amber Lee to engage in prostitution or unlawful sexual activity, as
                  charged;

                  two, the Defendant used a computer or telephone to do so;

                  Three, when the Defendant did these acts, he believed Amber Lee was less
                  than 18 years old; and

                  four, one or more of the individuals engaging in the sexual activity could
                  have been charged with a criminal offense under the law of Florida.

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Rutgerson could be found guilty of using a computer to entice a minor to engage in

unlawful sexual activity only if the government proved beyond a reasonable doubt,

along with the other elements, that Rutgerson “knowingly persuaded, induced,

enticed or coerced [Amberly] to engage in prostitution or unlawful sexual activity

as charged.” It also explained what it means to attempt to violate the statute.

      As an initial matter, we agree with the district court that Rutgerson’s

proposed instruction was a substantive instruction on the statute, not a theory of the

defense. The proposed instruction did not simply seek to describe what the

defense was arguing, but rather sought to define the law by which the jury was to

decide the case. But the district court already outlined -- and ultimately delivered

to the jury -- a wholly appropriate instruction on the substantive law governing the

case. The instruction actually given to the jury tracked the statutory text,


      So the Government must prove that one or more of the individuals engaging in the
      sexual activity could have been charged with a criminal offense under the laws of
      Florida.

      As a matter of law, the following acts are crimes under Florida law: Sexual
      activity with a person under the age of 18.

      As used in this instruction, persuade means to win over by an appeal to one’s
      reason and feelings, into doing or believing something.

      Induce means to stimulate the occurrence of or to cause.

      Entice means to lure or attract by arousing hope or desire.

      As used in this instruction, the term prostitution means engaging in or agreeing or
      offering to engage in any lewd act, with or for another person, in exchange for
      money or other consideration.

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appropriately and correctly conveying the law to the jury. See Hurn, 368 F.3d at

1362. Because the proposed instruction was actually substantive, the gist of what

Rutgerson proposed had already been covered. Indeed, offering a second

substantive instruction covering the same ground was unnecessary and would

likely have proven confusing.

      That confusion would likely have been compounded because Rutgerson’s

proposed instruction was substantively incorrect. The proposed instruction

informed the jurors that they could find Rutgerson guilty if they believed “that the

evidence establishes beyond a reasonable doubt that Mr. Rutgerson did persuade,

induce, entice, or coerce Detective Montgomery to engage in unlawful sexual

activity, and that he believed she was under 18 years old.” Likewise, the

instruction directed jurors to find Rutgerson not guilty if they concluded that

Amberly “presented as [a] 15-year old who was ready and willing to engage in

sexual activity with Mr. Rutgerson, but that Mr. Rutgerson did not persuade,

induce, entice, or coerce” her to do so. One flaw in these instructions is that they

failed to convey to the jury that Rutgerson was charged with an attempted violation

of § 2422(b). The proposed instructions appear to suggest that Rutgerson must

have actually been successful in persuading Amerbly to have sex with him before

he could be found guilty. Contrary to the language in the proposed instruction,

Rutgerson still could have been found guilty for attempting to violate § 2422(b)


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had he tried unsuccessfully to entice Amberly into engaging in sex. Because the

proposed instruction does not admit of this possibility, it was not substantively

correct. Moreover, whether Amberly was “ready and willing” to engage in sexual

activity with Rutgerson misses the essential statutory requirement -- whether

Rutgerson attempted to induce Amberly by offering her a substantial sum of

money to do so. The district court did not abuse its considerable discretion in

declining to deliver the proposed instruction to the jury.

      In any event, Rutgerson’s ability to present an effective defense was not

impaired by the court’s failure to give the proffered instruction for two other

reasons. First, the instruction given by the trial court accurately conveyed the

substantive law and the core of his defense theory. Moreover, Rutgerson’s counsel

was permitted to argue his theory of defense extensively in closing argument.

Thus, for example, counsel argued:

             This case is not about whether Mr. Rutgerson was going
             to go hire the services of a prostitute. Of course, of
             course he was going up there to have sex with a
             prostitute. He had condoms in his pocket, he had money
             to pay.

             ....

             You are to determine from the evidence in this case
             whether the Defendant is guilty or not guilty of that
             specific crime. Not was he going to engage in
             prostitution; absolutely not, that’s not what you are here
             to determine. You are here to determine who Mr.
             Rutgerson believed, who the Government has proved,
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             beyond a reasonable doubt, and whether they have done
             that, he believed he was going to see, and whether he
             induced, coerced, enticed or persuaded that person to do
             it.

Rutgerson also robustly argued that the evidence established that Detective

Montgomery was posing “as a prostitute, who is ready, willing and able to engage

in sex.” But, he said, there was “no evidence -- nobody came up on the stand and

told you . . . this is where Mr. Rutgerson was really trying to persuade and entice

and coerce this person into performing sexual acts, because they can’t.” His

defense was not impaired because the district court declined to present his

proposed instruction.

                                         IV.

      Finally, Rutgerson claims that the district court abused its discretion by

refusing to let Detective Mauro testify that, after extensive investigation, he had

not found any indication that Rutgerson had ever visited any websites dedicated to

sex with minors. He argues that this evidence would have been significant to show

that Rutgerson lacked knowledge that various traits in Amberly’s initial ad

indicated she was underage and also undermined the argument that he was

predisposed to commit the crime. Although we think that the district court erred in

excluding this evidence, the error was harmless and does not entitle Rutgerson to

relief from his conviction.



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      We review a district court’s evidentiary rulings for abuse of discretion.

United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002). “[E]videntiary and

other nonconstitutional errors do not constitute grounds for reversal unless there is

a reasonable likelihood that they affected the defendant’s substantial rights; where

an error had no substantial influence on the outcome, and sufficient evidence

uninfected by error supports the verdict, reversal is not warranted.” United States

v. Arbolaez, 450 F.3d 1283, 1290 (11th Cir. 2006) (quoting United States v.

Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990)).

      The general rule precluding introduction of character evidence to show a

person’s predisposition to commit (or not commit) a crime is clear. Fed. R. Evid.

404(a)(1) expressly provides that “[e]vidence of a person’s character or character

trait is not admissible to prove that on a particular occasion the person acted in

accordance with the character or trait.” As such, the government generally cannot

introduce evidence attempting to show that a defendant was predisposed to commit

a crime, see United States v. Brannan, 562 F.3d 1300, 1308 (11th Cir. 2009), nor

can a defendant present evidence of generally good conduct in an attempt to negate

the government’s showing of criminal intent, United States v. Ellisor, 522 F.3d

1255, 1270-71 (11th Cir. 2008). But, “[w]hen a person’s character or character

trait is an essential element of a charge, claim, or defense, the character or trait

may . . . be proved by relevant specific instances of the person’s conduct.” See


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Fed. R. Evid. 405(b). Thus, for instance, when a defendant raises an entrapment

defense, the government is permitted to introduce specific instances of conduct

designed to show that the defendant was predisposed to commit the crime of which

he was accused. Brannan, 562 F.3d at 1308.

      We are presented in this case with a slightly different question: whether a

defendant who has raised an entrapment defense may present evidence of specific

conduct to show a lack of predisposition to commit the charged crime. We believe

that the best answer to this question would be to allow a defendant claiming

entrapment to present evidence which meaningfully bears upon his lack of

predisposition to commit the crime with which he is charged. Although we have

not previously had the opportunity to decide this issue, the Ninth Circuit’s decision

in United States v. Thomas, 134 F.3d 975 (9th Cir. 1998), offers some guidance.

There, the defendant sought to present evidence that he had no prior arrests or

criminal record of any kind to show that he was not predisposed to engage in a

large-scale drug trafficking scheme and had fallen victim to government entrapment.

Id. at 979. The Ninth Circuit noted that a defendant’s character is an essential

element of an entrapment defense because the government must prove that he was

predisposed to commit the crime. Id. at 980. Where the defendant’s predisposition

to commit the crime is at issue, the lack of previous related bad acts by the defendant

is relevant. Id. at 979. Moreover, the Ninth Circuit determined that it was important


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to allow the defendant a fair opportunity to present evidence to counter the effect of

the government’s presentation suggesting that he had a predisposition to commit the

crime. Id. at 980.

      Similarly, in this case, Rutgerson sought to present evidence that the police

had not found any evidence that he had visited sites dedicated to sex with minors in

order to show that he was not predisposed to seeking out minors to have sex with

him. This was intended to help rebut any testimony showing that he was

predisposed toward attempting to induce an underage prostitute to have sex with

him. Most notable among that evidence, perhaps, was evidence that he had

searched for and viewed the ads of multiple “young” prostitutes online and had

contacted those prostitutes. Since Rutgerson’s predisposition to commit the

charged crime was an essential element at issue after he raised a claim of

entrapment, the district court should have allowed him to present evidence tending

to rebut the government’s evidential foundation that he was predisposed to violate

§ 2422(b). To that end, highlighting the lack of evidence that Rutgerson had

visited any websites dedicated to sex with minors would have been relevant.

      But the mere citation of error does not entitle Rutgerson to relief because the

error plainly was harmless. We are satisfied after carefully reviewing this record

that the error did not have a substantial effect on the outcome of the case, and more

than sufficient evidence supported the jury’s verdict. See Arbolaez, 450 F.3d at


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1290. First, and most important, essentially the same body of evidence that

Rutgerson sought to adduce through Detective Mauro was elicited from another

witness. Detective Johns testified that he searched the internet history on

Rutgerson’s phone. On cross-examination, Johns admitted that, in filling out a

warrant to search Rutgerson’s phone, he had sworn that if Rutgerson were a child

predator, he would possess child pornography on his phone. However, he stated

that the forensic search of Rutgerson’s phone revealed no child pornography or

access to the kinds of internet sites where people discussed gathering, collecting,

and obtaining child pornography. Rutgerson emphasized this testimony during

closing arguments, observing for the jury that there was no evidence that he had

ever visited a child pornography website or attempted to have sex with an underage

person. Moreover, Detective Mauro testified that he was not suggesting that

Rutgerson had any knowledge that an age listing of 99; the erratic use of capital

and lowercase letters; or, finally, the use of the phrase “sweet, young, and petite”

in Amberly’s ad would signify that she was underage.3 Finally, Rutgerson was



3
    The examination went this way:

         Q:     Just so we are all clear about your testimony, you told this jury that this,
                the 99, the capitals and lowercases, the use of sweet, young, petite, based
                on your training and experience, was to signify a minor. Do you recall
                that testimony?

         A:     Yes, sir.


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permitted to present the testimony of private investigator Valerie Rivera and,

through her, enter into evidence images of the websites that the police had

uncovered in his iPhone history. Those images further bolstered Rutgerson’s claim

that he never accessed child pornography.

      Moreover, whatever benefit Rutgerson may have received from Detective

Mauro’s testimony would have been overwhelmed by the evidential foundation

that Rutgerson was predisposed to commit the crime. In addition to evidence

establishing his many searches for “young” prostitutes, Rutgerson expressed no

hesitation whatsoever upon learning that Amberly was underage. His only concern

on that front appeared to be that they be discreet. Far from hesitating after learning

Amberly’s tender age, Rutgerson actively pursued a sexual encounter with her

across several days, and exhaustively negotiated the price, terms, and conditions

for various sexual activities. The evidence that he was disallowed from eliciting

from Detective Mauro would not have overcome the powerful evidence that he

was, in fact, predisposed to commit the crime with which he was charged. The

district court’s error in prohibiting the evidence was harmless.

      AFFIRMED.




      Q:     You are not suggesting that Mr. Rutgerson had any knowledge that it
             would have signified a minor to him, are you?

      A:     No.
                                            34
