                                                                            FILED
                            NOT FOR PUBLICATION                             MAY 20 2010

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                          No. 09-10010

               Plaintiff - Appellee,               D.C. No. 4:06-cr-00637-SBA-1

  v.
                                                   MEMORANDUM *
GARY WAYNE ROSS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Northern District of California
            Saundra B. Armstrong, United States District Judge, Presiding

                        Argued and Submitted May 11, 2010
                             San Francisco, California

Before: REINHARDT, W. FLETCHER and N.R. SMITH, Circuit Judges.




       Gary Wayne Ross appeals his conviction by a jury for attempted online

solicitation of a minor in violation of 18 U.S.C. § 2422(b). He makes four

arguments, none of which entitles him to relief.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      First, Ross contends that there was insufficient evidence that he took a

“substantial step” towards attempting to persuade, induce, entice or coerce a person

under 18 years of age to engage in sexual activity that would constitute a criminal

offense. See United States v. Goetzke, 494 F.3d 1231, 1234-35 (9th Cir. 2007); 18

U.S.C. § 2422(b). To prevail on this claim, Ross must demonstrate that “after

viewing the evidence in the light most favorable to the prosecution, [no] rational

trier of fact could have found [such a substantial step] beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979). To constitute a substantial step,

“the defendant’s actions must go beyond mere preparation, and must corroborate

strongly the firmness of the defendant’s criminal intent.” United States v. Hofus,

598 F.3d 1171, 1174 (9th Cir. 2010) (quoting United States v. Nelson, 66 F.3d

1036, 1042 (9th Cir. 1995)). The internet chats, emails exchanges and phone calls

between Ross and his alleged victim, not to mention his travel to a location that he

thought was her home, provided the jury with ample evidence from which to

conclude that he took such a step. See Goetzke, 494 F.3d at 1237.

      Ross’s other three arguments concern the defense of entrapment. To prevail

on an entrapment defense, a defendant must both have been induced by the

government to commit the crime and have lacked the predisposition to do so. See

United States v. Poehlman, 217 F.3d 692, 698 (9th Cir. 2000). “An improper


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inducement goes beyond providing an ordinary opportunity to commit a crime. An

inducement consists of an 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.” Id. at 701 (citations,

alterations, and internal quotation marks omitted). Government agents simply

presented Ross with an opportunity—a curious thirteen year old girl repulsed by

neither Ross’s age nor his taste in graphic pornography. They did nothing that

could be categorized as pressure, solicitation, or altering “the normal balance

between risks and rewards from commission of the crime.” Id. at 702-03.

Accordingly, there was no inducement.

      Ross’s second, third and fourth contentions all fail because of the absence of

inducement. Ross’s second contention is that he was entrapped as a matter of law,

but without inducement there can be no entrapment. His third contention is that

the district court gave an erroneous jury instruction as to the factors to be used to

determine predisposition. Because there was no inducement, Ross’s predisposition

was of no moment and the instruction, erroneous or not, did not prejudice him.

Finally, Ross contends that the district court erred by failing to give a limiting

instruction barring the jury from considering stories downloaded by Ross some

months after his arrest when determining his predisposition. Again there was no


                                          -3-
prejudice because there was no inducement and hence no entrapment, regardless of

Ross’s predisposition.




AFFIRMED.




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