                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0224n.06

                                           No. 19-5361


                          UNITED STATES COURT OF APPEALS                               FILED
                               FOR THE SIXTH CIRCUIT                               Apr 23, 2020
                                                                              DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA,                               )
                                                         )
        Plaintiff-Appellee,
                                                         )
                                                         )      ON APPEAL FROM THE
 v.
                                                         )      UNITED STATES DISTRICT
 JAMES MICHAEL HOOD,                                     )      COURT FOR THE EASTERN
                                                         )      DISTRICT OF TENNESSEE
        Defendant-Appellant.
                                                         )



BEFORE:        CLAY, ROGERS, and GRIFFIN, Circuit Judges.

       ROGERS, Circuit Judge. James Hood was convicted by a jury of attempting to entice a

minor to engage in criminal sexual activity and sentenced to 121 months’ imprisonment. Before

trial, Hood moved for a judgment of acquittal, arguing that he was entrapped by the law

enforcement agent who posed as his 17-year-old victim. The district court denied the motion but

agreed to submit the entrapment question to the jury. Hood now appeals the denial of his motion

for judgment of acquittal. The motion was properly denied, however, because a rational jury could

have found beyond a reasonable doubt that Hood was predisposed to commit the offense.

       On June 28, 2017, James Hood sent a “friend request” on Facebook to J.H., a 17-year-old

teen pageant contestant in Tennessee. At the time, Hood was a 53-year-old divorced male who

lived alone. J.H. accepted the friend request, thinking that Hood might be a judge for the pageant.

J.H. had been soliciting votes for her pageant activities on her Facebook page. Hood almost

immediately began sending J.H. private messages through Facebook. The first few messages were
No. 19-5361, United States v. Hood


about the pageant. Hood asked, “did u make it[?]” and promised, “I’ll vote for u.” J.H. responded

appreciatively: “Thank you so very much!!!” Hood then said, “[y]ou are really beautiful and

deserve to win,” to which J.H. replied, “[y]ou are very sweet!”

       Hood then asked a series of introductory questions a judge would normally ask a pageant

contestant, such as whether J.H. was a junior or senior, what she did for fun, whether she had a

boyfriend, whether she liked to read or watch movies, what her favorite food was, and whether she

expected to win the pageant. When J.H. told Hood that she was 17 years of age, he responded,

“[s]o young!!” Hood assured J.H. that he was “not trying to flirt” and said, “I promise I’m just

interested in talking to u that’s all I swear.” Hood also sent messages that would not ordinarily

come from a pageant judge. He asked, “can we really be friends[?] I like chatting with u,” and

inquired whether J.H. was a Christian. Hood showered J.H. with compliments, telling her that she

was “a really beautiful young woman,” and when J.H. told him that she was going dress shopping,

commented, “I’m sure you look good in everything.” Less than 24 hours after first contacting

J.H., Hood asked J.H. if they could move their conversation to text messaging. J.H. declined and

stopped messaging Hood. This caused Hood to worry that he had upset J.H., and he sent numerous

messages apologizing and trying to assure her that he had good intentions. Hood’s messages

continued until 2:41 a.m. the next day. This caused J.H. to block Hood on Facebook and Instagram

and report the conversation to her mother.

       J.H.’s mother in turn reported the Facebook activity to the Knoxville Police Department.

With J.H.’s mother’s permission, Knoxville investigator Thomas Evans impersonated J.H. and

renewed the conversation with Hood twelve days later on July 11, 2017. Evans instructed J.H.’s

mother to temporarily unblock Hood on Facebook in order to reinitiate contact with him. Evans

provided J.H.’s mother with a message to send to Hood, which read as follows:



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No. 19-5361, United States v. Hood


       Sorry my parents r constantly gettin in my biz. I got my fone long enough to FB u.
       U can text me I guess on a textn app I got if you want. They don’t know about it.
       [Redacted phone number] just make sure I know its u kk? I am goin to block u
       again so they won’t know bye.

Hood responded to “J.H.’s” Facebook message almost immediately by texting the number “J.H.”

provided him. Right off the bat, Hood expressed a strong interest in becoming friends with “J.H.”

Hood quickly asked again if “J.H.” had a boyfriend. Within hours, Hood asked “J.H.” for a “clean”

picture of “herself” and inquired if “she” would be able to video chat. Hood asked again when

“J.H.” turned 18. When “J.H.” answered that “she” did not turn 18 until the following year, Hood

replied, “[o]h geez lol” and two texts later said, “[y]ou are so beautiful.”

       As he did previously with the real J.H., Hood showered “J.H.” with compliments and

repeatedly told “her” that “she” was beautiful. Hood said to “J.H.,” “I [] care about you,” “I wanna

make you feel good and happy,” and “I want you to feel [comfortable] with me.” “J.H” came back

with responses such as, “[a]we, thank you soo much. Your sweet,” and “[y]our kinda neat

yourself.”   About twenty-four hours after first texting “J.H.,” Hood began using terms of

endearment such as “sweetie” and started reciting romantic poetry. “J.H.” reciprocated to a certain

extent, stating, for example, “I am liking you a lot your very sweet,” and “I love the poetry and

words you use.” The text conversations went well into the night and resumed in the mornings,

usually with Hood continuing the conversation.

       Hood exhibited signs of fear that his relationship with “J.H.” was inappropriate or violated

the law. He inquired about “J.H.’s” parents, asking if they were “afraid u will do something or get

together with a bad guy.” Hood later asked if “J.H.’s” mom checked “J.H.’s” texts and if “her”

mother was “mad at [him].” When “J.H.” asked, “[w]hat do you think of when you think of me,”

Hood answered, “I have to be careful. You are 17. I know what I want to say. I think I’ve said a

lot of what I think. I think you are a beautiful princess. I think of awesomeness, of a beautiful

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No. 19-5361, United States v. Hood


painting, someone who I really want to get to know[.] I wish I could tell you everything[.] . . . I

want to tell you what I’m feeling just afraid.” The following morning, on July 13, 2017, Hood

texted, “[u] swear u are not setting me up?” and added, “I’m just a little scared ok.” “J.H.” feigned

indignation at Hood’s suspicion and threatened to stop communicating. Hood sent a torrent of text

messages in response, begging “J.H.” to forgive him and professing his love for “her.” Despite

the agent’s telling Hood multiple times to “[l]eave me alone for a while,” Hood did not relent.

        On the third day of texting, Hood invited “J.H.” to his apartment. When asked what they

would do at his apartment, Hood responded, “[j]ust talk lol . . . get to know each other.” It is at

this point that “J.H.” first suggested the possibility of a sexual relationship, responding that “I think

if we care about each other intimacy is part of it.” Hood was hesitant at first to admit to wanting

an “intimate” relationship, stating, “[c]an we just not see how things go. I mean I want to get to

know you.” “J.H.” pretended to be affronted by Hood’s refusal to express his sexual desires: “I

see. You want me to be honest and then when I ask you somethin direct you don’t answer. It gets

tiring[.]” Hood responded by saying, “I mean I want to see where things go. If it happens it

happens.” “J.H.” continued to pester Hood to be upfront about his feelings. The agent responded,

“[t]hat’s just it. I want to know what your thinking and feeling when you say ‘if it happens[.]’

What is ‘it[?]’” Hood revealed that his reluctance to be forthright had to do with “J.H.’s” age,

exclaiming, “[w]hy are u doing this to me? You are 17. I’m trying to be careful[.]” Hood’s

evasiveness lasted for about one hour, after which he asked whether “J.H.” was a virgin, whether

“she” had had experience with sex, and if “she” looked “hot naked.” From there, the conversation

became progressively more sexual in nature, with Hood graphically describing various sex acts

and positions over the course of several hours. Hood continued to send “J.H.” sexually explicit

text messages over the next few days.



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No. 19-5361, United States v. Hood


       As Hood and “J.H.” got closer to arranging a meeting, Hood became increasingly afraid

that he was the target of a sting operation. He repeatedly asked “J.H.” for pictures of “herself” and

phone calls to prove that “she” was real. Hood said, “I need to know you are not someone else

doing this,” and “[b]aby I could go to jail. I gotta make sure. . . . I need to know you ain’t your

mother or a cop.” Several times in response, the agent gave Hood the opportunity to end the

encounter. For instance, “J.H.” said, “I don’t see the point honestly [if] you don’t believe it’s me.

I’m going to go for a while. I [have other] people I have been ignoring.” In another text shortly

thereafter, “J.H.” told Hood that “[i]f I decide to continue our relationship so it can move forward

[I] will let you know and probably call u or let you call me. My feelings are hurt and I’m exhausted

from this[.] . . . I learned early that things don’t always work out the way we want them too. This

[relationship] may not work.” Hood refused to give up on his relationship with “J.H.,” however,

telling “J.H.” that “I want this [relationship] to work. . . . I can make u happy. U gotta trust me,”

and sent seven text messages during the next ninety minutes without receiving a response.

       The next day, Agent Evans arranged a phone call with Hood using the real J.H. in the hope

of allaying Hood’s fears. After the call, Evans and Hood arranged to meet at a coffee shop in

Knoxville. When Hood arrived at the coffee shop, he was arrested and taken into custody. After

the arrest, police searched Hood’s cell phone and found a “bookmark” that Hood had saved on his

Google Chrome browser in 2016 entitled “Jr. Young Miss Nudist Pageant Pics.” Hood had also

searched Google for “teen nudist pageant” the day before he was arrested. The search of Hood’s

phone also turned up screen shots of two news articles that Hood had accessed in June 2017. The

first related to a sheriff’s deputy in Blount County, Tennessee who had been arrested on a child

solicitation charge. Hood’s son-in-law worked for the Blount County Sheriff’s office at the time.

The second article reported on a sheriff’s deputy in Hamilton County, Tennessee, who was indicted



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No. 19-5361, United States v. Hood


for having child pornography on his cell phone. Hood himself used to work at the Hamilton

County Sheriff’s office and had sent the article to a friend still employed there.

       Hood was indicted in the Eastern District of Tennessee on one count of using “a facility or

means of interstate and foreign commerce” to attempt to persuade, induce, and entice a minor to

engage in sexual activity “for which any person can be charged with a criminal offense.” See 18

U.S.C. § 2422(b). The underlying criminal offense was aggravated statutory rape under Tennessee

law. See Tenn. Code Ann. § 39-13-506(c).

       In advance of trial, Hood alerted the Government that he would be invoking an entrapment

defense, and the Government tailored its proof accordingly. At the close of the Government’s

case, Hood moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, which

the district court denied. Over the Government’s objection, however, the district court agreed to

put the entrapment question before the jury.

       The jury rejected the entrapment defense and found Hood guilty. The district court

imposed a sentence of 121 months’ imprisonment, to be followed by a lifetime of supervised

release. On appeal, Hood does not challenge the district court’s entrapment jury instruction and

instead appeals only the denial of his Rule 29 motion.

       The district court properly denied Hood’s motion for judgment of acquittal because the

evidence of Hood’s predisposition to commit the offense was sufficient to create a fact issue for

the jury. See United States v. Nelson, 847 F.2d 285, 287-88 (6th Cir. 1988) (stating the standard).

An entrapment defense requires proof of two interrelated elements: (1) government inducement of

the crime, and (2) lack of predisposition on the part of the defendant to engage in the criminal

activity. Mathews v. United States, 485 U.S. 58, 63 (1988); United States v. Khalil, 279 F.3d 358,

364 (6th Cir. 2002). “The key question in determining predisposition is whether law enforcement



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No. 19-5361, United States v. Hood


planted a ‘criminal design in the mind of an otherwise law-abiding citizen or whether the

government merely provided an opportunity to commit a crime to one who was already

predisposed to do so.’” United States v. Demmler, 655 F.3d 451, 457 (6th Cir. 2011) (quoting

United States v. Al-Cholan, 610 F.3d 945, 950 (6th Cir. 2010)). In answering this question, courts

examine the following factors:

       [1] the character or reputation of the defendant, including any prior criminal record;
       [2] whether the suggestion of the criminal activity was initially made by the
       Government; [3] whether the defendant was engaged in criminal activity for profit;
       [4] whether the defendant evidenced reluctance to commit the offense, overcome
       only by repeated Government inducements or persuasion; and [5] the nature of the
       inducement or persuasion supplied by the Government.

Al-Cholan, 610 F.3d at 950 (internal brackets omitted) (quoting United States v. Moore, 916 F.2d

1131, 1137 (6th Cir. 1990)). Although the first and second factors weigh in Hood’s favor, and the

third factor is neutral, the evidence otherwise strongly indicates predisposition.

       With respect to the first factor, the Government argues that Hood’s internet search history,

in particular a saved bookmark of “Jr. Young Miss Nudist Pageant Pics,” supports the inference

that he was predisposed to targeting underage pageant contestants such as J.H. However, the

Supreme Court’s decision in Jacobson v. United States, 503 U.S. 540 (1992), compels a different

conclusion. The defendant in Jacobson was charged with receipt of child pornography through

the mails after a twenty-six-month-long campaign by government agents. Id. at 550. Before his

contact with the government, the defendant had purchased a book containing child pornography,

which at the time was legal. Id. at 551. Although this was an indication of Jacobson’s “certain

personal inclinations, including a predisposition to view photographs of preteen sex,” it “hardly

support[ed] an inference that he would commit the crime of receiving child pornography through

the mails.” Id. As the Court explained, “evidence that merely indicates a generic inclination to

act within a broad range, not all of which is criminal, is of little probative value in establishing

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No. 19-5361, United States v. Hood


predisposition.” Id. at 550. Stated differently, “a person who resists his baser urges is not

‘predisposed’ simply because he experiences them.” United States v. Mayfield, 771 F.3d 417, 436

(7th Cir. 2014) (en banc) (citing Jacobson, 503 U.S. at 551-52). Although Hood’s internet search

history may demonstrate an inclination to view lewd images of teenage girls—pageant contestants

no less—it hardly demonstrates a predisposition to violate the law by having sexual relations with

minors.1 This is particularly true given that Hood had no criminal history and it is unclear from

the record whether Hood ever violated any laws by having the bookmark on his phone.

         The Government argues that Jacobson is not controlling because the bookmark on Hood’s

phone is more directly relevant to the crime at issue. But Jacobson makes clear that what matters

is the severity of the pre-inducement conduct in relation to the crime attempted. Jacobson, 503

U.S. at 551. Jacobson’s lawful purchase of child pornography did not suffice to demonstrate a

predisposition to purchase unlawful child pornography. Id. Contrary to the Government’s

contention, Jacobson says nothing about the relatedness of the pre-inducement conduct to the

crime. If anything, the crime in Jacobson (receipt of child pornography through the mails) was

more closely related to the pre-inducement evidence (in-person purchase of child pornography)

when compared to the present case. Consistent with this interpretation of Jacobson, the Seventh

Circuit has rejected the idea that a defendant’s possession of child pornography evidenced a

predisposition to distribute it, observing that “[t]he government is not free to induce more-serious

crimes simply because the target already committed a lesser crime.” United States v. McGill, 754

F.3d 452, 458 (7th Cir. 2014). Accordingly, this first factor weighs in Hood’s favor.




1
 Even less convincing is the Government’s argument that the news articles about child pornography and solicitation
of a minor found on Hood’s phone are indicative of predisposition. As with the bookmark, Hood’s viewing of these
articles does little to suggest that he is prone to having sex with underage girls. Moreover, as Hood points out, these
articles had a direct connection to people and places in Hood’s life—making his viewing of them all the more benign.

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No. 19-5361, United States v. Hood


        The second factor—whether the Government first suggested the criminal activity—also

favors Hood. It was Agent Evans who told Hood that “I would think if we care about each other

intimacy is part of it.” Although Hood at that point had already made clear his romantic feelings

for “J.H.,” this was the first time that either Hood or the agent had raised the topic of sex. The

Government tries to argue that the term “intimacy” is ambiguous. Although it may be ambiguous

in certain contexts, it was not in this one.

        However, “the fact a government agent proposed an illicit transaction . . . is insufficient to

establish entrapment.” United States v. Barger, 931 F.2d 359, 367 (6th Cir. 1991); accord

Jacobson, 503 U.S. at 549-50; United States v. Harris, 9 F.3d 493, 498 (6th Cir. 1993). Rather,

the “most important factor” in determining predisposition is “whether the defendant evidenced

reluctance to engage in criminal activity which was overcome by repeated Government

inducements.” United States v. McLernon, 746 F.2d 1098, 1113 (6th Cir. 1984) (quoting United

States v. Kaminksi, 703 F.2d 1004, 1008 (7th Cir. 1983)). Here, the defendant exhibited little

reluctance to engage in a sexual discussion with Agent Evans. It was less than one hour from

when Evans first used the word “intimacy” that Hood began sending graphic sexual messages to

“J.H.” Moreover, the jury could reasonably infer that Hood’s initial hesitance to mention sex

flowed solely from the fear that he might be detected by law enforcement. Hood asked “J.H.” if

“she” was “setting [him] up” and told “J.H.,” “I have to be careful. You are 17. . . . I want to tell

u what I’m feeling just afraid.” We have previously affirmed the denial of a motion for judgment

of acquittal on the basis of entrapment when the defendant’s “only reluctance appear[ed] to stem

from a fear of getting caught.” United States v. Johnson, 230 F.3d 1360, 2000 WL 1290317, at *5

(6th Cir. 2000) (unpublished table decision); see also United States v. Unrein, 688 F. App’x 602,




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No. 19-5361, United States v. Hood


609-10 (11th Cir. 2017) (affirming denial of entrapment jury instruction); United States v. Shinn,

681 F.3d 924, 930 (8th Cir. 2012) (same).

       The demonstrated reluctance to commit the crime in this case is on par with that in United

States v. Hackworth, 483 F. App’x 972 (6th Cir. 2012). In Hackworth, the defendant told the

undercover agent multiple times over the course of three days that he would not have sex with her

due to her age. Id. at 974. During their conversations, the agent repeatedly taunted Hackworth,

calling him “boring” for suggesting only that they meet and talk. Id. at 975-76. Further, the agent

“pressed him to know ‘what [was] on the table.’” Id. at 976 (alteration in original). We noted that

these passages in the chat logs “viewed in isolation” supported the argument that Hackworth did

not want to meet the underage girl for sex. Id. “Hackworth’s explicit responses to [the agent’s]

prompting, however, cast sufficient doubt on his contention that he only wanted to meet this

fourteen-year-old girl to talk.” Id.

       Hood asserts that he exhibited considerable reluctance in light of the Government’s

substantial inducement. Any inducement in this case, however, was minimal. “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.” United States v. Dixon, 396 F. App’x 183, 186 (6th Cir. 2010) (quoting United States v.

Gendron, 18 F.3d 955, 961 (1st Cir. 1994)). The pressure exerted by Agent Evans was hardly

excessive. Hood, after all, was the first to reach out to J.H. Once the government got involved, it

took a mere three days for Hood to request sex with “J.H.” and less than a week before he agreed

to meet “her” for sex. In contrast, courts have found improper “inducement” where government

agents or informants spent months or in some cases years attempting to facilitate the defendant’s




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No. 19-5361, United States v. Hood


commission of a crime.2 See, e.g., Jacobson, 503 U.S. at 550 (over two years); Sherman v. United

States, 356 U.S. 369, 371 (1958) (three months); United States v. Barta, 776 F.3d 931, 934-37 (7th

Cir. 2015) (three months); United States v. Poehlman, 217 F.3d 692, 700 (9th Cir. 2000) (six

months); McLernon, 746 F.2d at 1103, 1113 (eight years). Nor did Agent Evans employ tactics

typically found by courts to be excessive, including threats, United States v. Becerra, 992 F.2d

960, 963-64 (9th Cir. 1993), “dogged insistence,” United States v. Rodriguez, 858 F.2d 809, 815

(1st Cir. 1988), appeals to sympathy, Sherman, 356 U.S. at 373, or “preying upon the love and

loyalty of [a] special relationship.” McLernon, 746 F.2d at 1114.

         The defendant relies upon United States v. Poehlman, 217 F.3d 692, 701 (9th Cir. 2000),

to argue that “even very subtle governmental pressure, if skillfully applied, can amount to

inducement.” He claims that “his reluctance was overcome only by ‘J.H.’s’ sustained campaign

of emotional manipulation.” But the jury could have seen things differently. As the Government

points out, “[w]hen Hood started sending graphic sexual messages, his ‘relationship’ with J.H. was

only a few days old and consisted entirely of Facebook and text messages. They had never met or

even talked on the phone.” Further, “[a]lthough Hood showered J.H. with compliments, a

reasonable jury could find that they had not engaged in meaningful conversations or shared basic

details about their lives.” Thus, this case is hardly like Poehlman, where an undercover agent

engaged in a protracted six-month correspondence with the defendant that included sending

emails, handwritten letters, and photographs, and strategically addressing the defendant by



2
  At oral argument, defendant’s attorney pointed to Sorrells v. United States, 287 U.S. 435, 440 (1932), as an example
of inducement where it took only ninety minutes for the undercover officers to convince the defendant to violate the
law. But the Court in Sorrells did not actually conclude that the defendant had been entrapped as a matter of law.
Rather, the Court ruled “that upon the evidence produced . . . the defense of entrapment was available and that the
trial court was in error in holding that as a matter of law there was no entrapment and in refusing to submit the issue
to the jury.” Id. at 452. Moreover, the government agent in Sorrells succeeded by taking advantage of the defendant’s
sympathy for a fellow war veteran. Id. at 440. As explained below, a reasonable jury could conclude that Hood was
not similarly motivated by such a lawful purpose.

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No. 19-5361, United States v. Hood


intimate names, in order to convince the defendant to have sex with the agent’s fictitious minor

children. 217 F.3d at 704.

       The jury was also entitled to find that Agent Evans did not induce the defendant by “taking

advantage of an alternative, non-criminal type of motive,” in the words of Dixon, 396 F. App’x at

186 (citation omitted). Hood argues that Agent Evans exploited Hood’s desire for friendship and

a romantic—yet non-sexual—relationship by “pushing Mr. Hood with ultimatums and demands.”

Similarly, he asserts that Agent Evans “cultivated Mr. Hood’s hopes for a romantic relationship

by admiring his poetry and pretending to be flattered by his interest.” But any reasonable juror

could have come to the commonsense conclusion that Hood’s intention all along was to have sex

with J.H. Hood’s relationship with J.H escalated quickly; after contacting her out of nowhere, he

immediately asked her if she had a boyfriend and attempted to charm her with compliments.

Within hours, he had asked for J.H.’s phone number and began messaging her relentlessly when

she failed to respond. By the second day of communication with Agent Evans, Hood had told

“J.H.” that he loved “her” and began reciting romantic poetry. Tellingly, when “J.H.” asked Hood

“what caught your eye about me if you don’t mind me asking?” Hood answered, “your beauty.”

       Agent Evans testified that in his experience, Hood’s correspondence with J.H. raised red

flags. For instance, messages such as “I’m not trying to flirt” and “I’m just interested in talking to

u” can be part of a strategy that older adults use to disarm underage children. Courts in the

entrapment context have recognized the concept of “grooming” a minor for sex, which involves

talking about subjects that the underage person would be interested in for the purpose of building

a trusting relationship. See United States v. Young, 613 F.3d 735, 739 & n.3 (8th Cir. 2010); United

States v. Brand, 467 F.3d 179, 203 (2d Cir. 2006). In addition, Hood’s demonstrated concern

about being detected by law enforcement supports the reasonable inference that he was not seeking



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No. 19-5361, United States v. Hood


a strictly platonic relationship with J.H. See United States v. Lee, 603 F.3d 904, 915 (11th Cir.

2010); United States v. Hensley, 574 F.3d 384, 391 (7th Cir. 2009); cf. United States v. Wyatt, 713

F. App’x 467, 471 (6th Cir. 2017).

       The absence of any appeal to non-criminal motivations distinguishes this case from the

ones cited by the defendant. United States v. Poehlman dealt with a defendant who reached out to

an undercover agent expressly seeking a long-term relationship with an adult who accepted his

foot fetish and his interest in cross-dressing. 217 F.3d at 695. The agent leveraged the defendant’s

desire for a legal adult relationship by conditioning any further communication on his agreement

to have sex with the agent’s fictitious daughters. Id. at 698-700. In United States v. McLernon,

the defendant became convinced that his close friend, an undercover agent, would be killed if he

did not negotiate a cocaine deal on his friend’s behalf. 746 F.2d at 1113. The government

informant in Sherman v. United States exploited the defendant’s sympathy to persuade the

defendant to purchase narcotics. 356 U.S. at 373. The informant, who (like the defendant) was a

recovering drug addict, asked the defendant to supply him with drugs because he was not

responding to treatment. Id. at 371. “Not until after a number of repetitions of the request,

predicated on [the informant’s] presumed suffering, did petitioner finally acquiesce.” Id. The

court in United States v. Brooks, 215 F.3d 842, 846 (8th Cir. 2000), determined that the defendant,

a heroin addict, was entrapped as a matter of law because he began selling heroin only in response

to a government informant’s threat to cut off his drug supply. Thus, although the government

informant had appealed to the defendant’s criminal motive (heroin possession), that motive was

distinct from the crime committed (heroin distribution).

       In sum, although the Government encouraged Hood to commit the offense in question,

“[g]overnment agents do not entrap by merely presenting the opportunity to engage in criminal



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No. 19-5361, United States v. Hood


activity.” United States v. Summers, 238 F. App’x 74, 76 (6th Cir. 2007). Nor is the government

prohibited from using “stealth and strategy” to catch unwary criminals. Sherman, 356 U.S. at 372.

Hood seized the opportunity to engage in a romantic relationship with “J.H.” and agreed to have

sex within one hour of the agent’s suggestion. Even accepting the premise that the Government

induced Hood by capitalizing on his need for companionship, Hood’s conduct, including his

incessant flattery of “J.H.” and outward display of fear that he would be detected by law

enforcement, provided sufficient evidence from which a reasonable jury could conclude that he

was predisposed to commit the instant offense. This is especially so given the defendant’s burden

to demonstrate a “‘patently clear’ absence of predisposition,” Nelson, 847 F.2d at 287, as well as

the “strong presumption in favor of sustaining a jury conviction,” United States v. Charles,

138 F.3d 257, 265 (6th Cir. 1998) (quoting United States v. Peters, 15 F.3d 540, 544 (6th Cir.

1994)).

          The judgment of the district court is affirmed.




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