     Case: 14-51090      Document: 00513366462         Page: 1    Date Filed: 02/02/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                      No. 14-51090                                FILED
                                                                            February 2, 2016
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

                                                 Plaintiff–Appellee,

v.

ERIC WARNER CAWTHON,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 7:14-CR-93


Before OWEN, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Eric Warner Cawthon appeals his conviction following a jury trial of
attempted coercion and enticement of a minor to engage in sexual activity in
violation of 18 U.S.C. § 2422(b). His sole basis for appeal is that the district
court erred in denying his request for an entrapment instruction. Because we
agree with the district court that Cawthon did not make a showing sufficient
to entitle him to such an instruction, we affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-51090      Document: 00513366462     Page: 2   Date Filed: 02/02/2016


                                   No. 14-51090

                                         I
        A multi-agency task force conducted an undercover operation designed
to identify adults in the Midland and Odessa, Texas area with a sexual interest
in children. Members of the task force posted advertisements on a section of
the website Craigslist that was restricted to adults. The ads were generic and
expressed an interest in meeting other adults, but when subjects responded,
undercover members of the task force posed as children in communications
that ensued. Because the goal of the operation was to identify individuals with
a sexual interest in children, an agent would, as soon as practicable after initial
contact, falsely represent that he or she was a minor, providing a specific age.
        Cawthon replied to one of the task force’s ads, titled “Home Alone,” which
requested that viewers “HMU [hit me up] if you’re not scared.” The ad was
posted by an officer posing as a minor named Ashley. “Ashley” told Cawthon
that she was fourteen years old early in the course of their first communication,
when Cawthon asked about her age.            Her apparent youth did not deter
Cawthon. An innuendo-laden conversation transpired, mostly through text
messaging, for about 90 minutes, and the two made a plan to meet at a truck
stop.    When Cawthon arrived at the agreed-upon location, instead of the
fourteen-year-old girl he was expecting, Cawthon was met by police officers
and arrested. In a post-arrest interview, after receiving a Miranda warning,
Cawthon admitted that he believed that the girl with whom he had been
conversing was fourteen years old and that he had planned to have sex with
her. At no point during the interview did Cawthon reverse course and profess
to believe that “Ashley” was anything but a fourteen-year-old girl.
        At trial, however, Cawthon testified that he had not believed that
“Ashley” was actually fourteen years old, and that instead he had believed she
was an adult playing a “game.”        At the conclusion of the trial, Cawthon



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                                           No. 14-51090

requested that the district court charge the jury on entrapment. The district
court denied the request, noting that Cawthon was the first to propose a sexual
rendezvous and that Cawthon offered to pay money for someone to bring
“Ashley” to him, suggesting he was predisposed to commit the offense and not
induced by the Government. The district court further found that Cawthon’s
request for a picture only minutes after learning of “Ashley’s” age, and his
subsequent comments about her looks, also demonstrated his active,
enthusiastic participation in the offense.
      The jury found Cawthon guilty. Cawthon now appeals the denial of the
entrapment instruction.
                                                II
      We review a district court’s refusal to provide the jury with an
entrapment instruction de novo. 1 “To be entitled to an entrapment instruction,
a defendant must make a prima facie showing of (1) his lack of predisposition
to commit the offense and (2) some governmental involvement and inducement
more substantial than simply providing an opportunity or facilities to commit
the offense.” 2      The “measure of sufficiency” of a defendant’s prima facie
showing is “whether the evidence of inducement and lack of predisposition,
considered together” and viewed in the light most favorable to the defendant,
“is sufficient to permit a reasonable jury to find entrapment.” 3 Although
“consideration of [the lack of predisposition and of government inducement]
often overlaps,” a defendant seeking an entrapment instruction must make
“some showing” as to each, so we consider the two factors separately. 4


      1   United States v. Stephens, 717 F.3d 440, 444 (5th Cir. 2013).
      2   Id. (citation omitted).
      3   United States v. Theagene, 565 F.3d 911, 918 (5th Cir. 2009).
      4   Id. at 919 (citation omitted).


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       “Predisposition . . . focuses upon whether the defendant was an unwary
innocent or, instead, an unwary criminal who readily availed himself of the
opportunity to perpetrate the crime.” 5 Specifically, we consider “whether the
defendant intended, was predisposed, or was willing to commit the offense
before first being approached by government agents.” 6                     “[I]ndependently
motivated behavior that occurs after government solicitation begins may
constitute evidence of predisposition.” 7 “A lack of predisposition can appear
from, for example, lack of prior interest or experience related to the crime,
significant hesitation or unwillingness, or attempts to return discussion to
lawful conduct.” 8        On the other hand, evidence of “active, enthusiastic”
participation or “demonstrated expertise in the criminal endeavor” will prove
predisposition. 9        “[A] defendant’s ready and willing participation in
government-solicited criminal activity, standing alone, is sufficient to prove
predisposition.” 10 Thus, “[w]here a defendant promptly avails himself of a
criminal opportunity, it is unlikely that his entrapment defense warrants a
jury instruction.” 11
       “Government inducement consists of the creative activity of law
enforcement officials in spurring an individual to crime” and includes “either



       5   Stephens, 717 F.3d at 445 (citation omitted).
       6   Theagene, 565 F.3d at 919 (emphasis and citations omitted).
       United States v. Nelson, 732 F.3d 504, 515 (5th Cir. 2013) (alteration in original;
       7

emphasis and citation omitted).
       8   Theagene, 565 F.3d at 920.
       9   Nelson, 732 F.3d at 514 (citation omitted).
       10 Id. at 515 (quoting United States v. Reyes, 239 F.3d 722, 739 (5th Cir. 2001)); see
also id. at 514 (“If a defendant displays such expertise or enthusiasm yet fails to show any
hint of hesitation or unwillingness, we will find predisposition.” (citation omitted)).
       11   United States v. Stephens, 717 F.3d 440, 445 (5th Cir. 2013) (citation and brackets
omitted).


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                                           No. 14-51090

threatening or harassing conduct or actions designed specifically to take
advantage of the defendant’s weaknesses.” 12 “Artifice and stratagem may be
employed” without crossing into inducement, however, “to catch those engaged
in criminal enterprises.” 13
         Cawthon argues on appeal that he carried his burden with respect to
both factors. He asserts that he sought only to engage in legal adult activity
by responding to an ad placed on an adult section of Craigslist and that the
Government induced him to commit the crime of conviction by posing as a
precocious fourteen-year-old and “appealing to his fantasies.”                       He further
asserts that he was entitled to the entrapment instruction because he gave a
plausible innocent explanation for his behavior that would allow a reasonable
jury to find that he lacked a predisposition for the crime, explaining that he
believed the person with whom he was conversing was actually an adult
pretending to be a child.
                                                  A
         As to lack of predisposition, the record demonstrates that Cawthon
exhibited no significant hesitation or unwillingness to commit the crime at
issue.        To the contrary, it shows that Cawthon was a “keen” and “eager”
participant. 14 He was told within ten minutes of beginning the conversation
with “Ashley” that she was fourteen years old, and immediately thereafter
asked her to send a picture of herself. Then, after receiving a picture of an


         12   United States v. Gutierrez, 343 F.3d 415, 420 (5th Cir. 2003) (citation omitted).
          Jacobson v. United States, 503 U.S. 540, 548 (1992) (citations omitted); see also
         13

Gutierrez, 343 F.3d at 420 (“Simply because the chain of events leading to the defendant’s
arrest originated with the government does not entitle a defendant to an entrapment
instruction. It is proper (i.e., not an ‘inducement’) for the government to use a ‘sting,’ at least
where it amounts to providing a defendant with an ‘opportunity’ to commit a crime.” (citation
omitted)).
         14   United States v. Ogle, 328 F.3d 182, 185-86 (5th Cir. 2003).


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adult age-regressed to appear to be a fourteen-year-old girl, Cawthon
complimented “Ashley’s” looks. Within forty-five minutes of first contact, after
“Ashley” observed that it looked like they would be unable to meet due to her
inability to drive, Cawthon attempted to facilitate a meeting by asking
“Ashley” if she could obtain a ride from someone and suggesting that if a truck
stop was nearby, then he could drive his bus to it and she could meet him there.
When “Ashley” indicated she might be able to ask a friend to drive her,
Cawthon immediately responded “Please do.”                    After “Ashley” proposed a
specific truck stop as a meeting point, Cawthon countered by asking if
“Ashley’s” friend would be willing to drive instead to a different truck stop near
where he was located, offering to pay the friend ten dollars in exchange for the
accommodation.
      Additionally, after Cawthon asked “Ashley” to call him on the phone and
a female officer using a voice changer that made her voice sound younger
called, Cawthon told “Ashley” over the phone that he would “show [her] how to
make a man happy.” He then further escalated the conversation, telling her
that men liked a girl to “do what she’s told,” directing her to call him “Daddy”
because it would be “hot,” instructing her what to wear when they met, and
saying that they would go back to his hotel and she would “strip down.”
Ultimately, within two hours of the interaction’s inception, Cawthon drove to
a truck stop in the middle of the night to meet a girl he believed to be fourteen,
later telling officers in an interview that he thought “Ashley” was fourteen and
planned to have sex with her.              In sum, the evidence demonstrates that
Cawthon was an enthusiastic participant who “promptly avail[ed] himself of
[the] criminal opportunity,” precluding an entrapment instruction. 15



      15   Stephens, 717 F.3d at 445 (citation omitted).


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                                        No. 14-51090

      Furthermore, Cawthon’s assertion that there is an innocent explanation
for his behavior which undermines predisposition—specifically, that he
believed “Ashley” was actually an adult playing a “game”—is unpersuasive.
First, in requesting an entrapment instruction in the district court, Cawthon
did not mention his supposedly mistaken belief as to “Ashley’s” age in support
of the request, precluding him from raising this new argument on appeal. 16
Second, as noted above, “Ashley” said that she was fourteen years old almost
immediately during the conversation, the Government sent Cawthon a
photograph altered to depict a fourteen-year-old girl, and Cawthon told officers
following his arrest that he knew “Ashley’s” age.                      Cawthon’s “game”
explanation was not sufficiently plausible to warrant submitting to the jury
whether he was predisposed to commit the crime. 17
                                               B
      Cawthon has failed to show government inducement. While “Ashley”
may have first brought up the possibility of meeting (though only after
Cawthon asked her if she had a car) and made certain statements throughout
the conversation that alluded to sex, it was Cawthon who first introduced and
then consistently escalated the sexual nature of the dialogue.                     Without
significant prodding from the Government, Cawthon arranged to meet
“Ashley” within two hours of their first communication. Because nothing in
the record approaches “threatening or harassing conduct or actions designed




      16  See, e.g., Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 877 (5th Cir. 2009)
(“[A]rguments not raised before the district court are waived and cannot be raised for the
first time on appeal.”).
      17   See United States v. Theagene, 565 F.3d 911, 922 (5th Cir. 2009).


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                                    No. 14-51090

specifically to take advantage of the defendant’s weaknesses,” 18 there is no
evidence of government inducement here.
                                   *       *       *
      For the reasons set forth above, the district court’s judgment is
AFFIRMED.




      18United States v. Gutierrez, 343 F.3d 415, 420 (5th Cir. 2003) (internal quotation
marks and citation omitted).


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