                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0524n.06

                                             No. 10-5888
                                                                                              FILED
                           UNITED STATES COURT OF APPEALS                                May 22, 2012
                                FOR THE SIXTH CIRCUIT
                                                                                    LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                  )         ON APPEAL FROM THE
                                                           )         UNITED STATES DISTRICT
        Plaintiff-Appellee,                                )         COURT FOR THE EASTERN
                                                           )         DISTRICT OF TENNESSEE
                v.                                         )
                                                           )
JAMES W. HELTON,                                           )
                                                           )
      Defendant-Appellant.                                 )         OPINION
___________________________________________                )


Before: DAUGHTREY and ROGERS, Circuit Judges; and ZOUHARY, District Judge.*

        ZOUHARY, District Judge. Defendant-Appellant James Wes Helton was indicted and

tried by a jury on four counts of attempting to entice a minor to engage in criminal sexual activity,

in violation of 18 U.S.C. § 2422(b), and one count of traveling for illicit sexual conduct, in violation

of 18 U.S.C. § 2423(b). At the end of trial, Defendant moved for a judgment of acquittal, arguing

entrapment. The district court denied the motion, and submitted the case to the jury.

        The jury returned a guilty verdict on all counts and Defendant was sentenced to 121 months

imprisonment. Defendant now appeals, arguing the district court erred when it denied his motion.

Because there is record evidence that could have led a reasonable juror to conclude beyond a

reasonable doubt that Defendant was predisposed, we AFFIRM Defendant’s conviction.




       *
         The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.
                                              BACKGROUND

        In July 2008, a task force targeted people attempting to have sex with minors, and posted the

following advertisement on Craigslist1 from a fictitious girl named “Hannah” (App’x I at 11):

        Let’s end summer vacation with a bang!!!/w4m-18 (Chattanooga). Summer vacation
        has been a bust. Hanging with mom is soooo boring. I want to go back to school
        with memories that will last me a year. Cute, lots of fun, and discreet. No drama!

Defendant responded via e-mail on August 26, 2008 (App’x I at 11):

        If you are looking for some NSA [No Strings Attached] fun and want an older man
        to show you around the bedroom then you need to drop me a line. I can provide
        pictures when I know this is more serious until then I can only tell you that I will
        show you things and make you feel in ways you have only dreamed about. I can/will
        give you multiple O’s [likely referring to multiple orgasms] through oral/intercourse
        pleasure and I can last for hours. If you can handle a well endowed swm [Single
        White Male] that is ddf [Drug and Disease Free] and a non smoker then you need to
        reply to this and we can talk further.
        Hope to hear from you soon,
        James

A few hours later, agents, posing as “Hannah,” replied (App’x I at 11):

        WOW James . . . it seems like u read my posting and knew exactly what i was
        searching for . . . just how much older r we talkin about cause actually im a bit
        younger than u have to say when u r to post on craigs . . . I am soooo much more
        mature than all my friends and so tired of dealing with the boys ive dated in school
        . . . im lookin for exactly what u said u could do . . . someone who will take hours
        with me, not five minutes in the back of a car . . . I dont think ive ever really had an
        orgasam . . . The well endowed interest me and scares me a little. the boys ive been
        with werent very big . . . id love to hear more and maybe set something up for the
        long weekend . . . whatta u think.

After nearly a day passed with no response from Defendant, “Hannah” sent a second e-mail (App’x

I at 12):


        1
           Craigslist is a website where users post advertisements online for various items they are selling,
or for things they want. It operates much the same way as the Classifieds section of a newspaper except it
allows users to communicate with each other anonymously. See http://www.craigslist. org. Electronic
exchanges are reproduced exactly as communicated.

                                                     2
       I was really hoping id hear back from u. it sounded soooo promising.

That evening Defendant replied (App’x I at 12):

       Sounded promising here to up to where you said you were under 18 and sent the
       email at 10:30am when you would have been in school!! Only interested in legal fun.
       Thanks anyways

After a few more e-mail exchanges, Defendant asked, “What is your TRUE age?” (App’x I at 12).

“Hannah” told Defendant she would be fifteen in a couple weeks and Defendant responded that “14

is really really to young” (App’x I at 13).

       Nevertheless, over the following two weeks, Defendant chatted with “Hannah” nearly 100

times through e-mail, text messages, and telephone calls. Defendant and “Hannah” exchanged

photos at Defendant’s suggestion and shared personal details about their lives such as thoughts on

dating and life long love. Defendant e-mailed “Hannah” pictures of roses and they exchanged phone

numbers. He also expressed concern on numerous occasions that he would be caught, either by

“Hannah’s” mother or by police. However, once he was satisfied that “Hannah” was real, he began

setting up a date.

       Eventually the e-mails between Defendant and “Hannah” turned sordid. Defendant promised

multiple orgasms, seduction, and fantasy, while at the same time wishing “Hannah” luck on her

Algebra test. He then described, in vivid detail, what their first date would be like.

       Following this series of e-mails, Defendant proposed they meet the following Friday,

September 12, 2008. Defendant drove to “Hannah’s” apartment and, when he pulled into the parking

lot, agents arrested him. Defendant consented to an interview after his arrest, telling agents that he

was “enticed” by the young age of the task force decoy, and admitting he would have had sex with

“Hannah” had she been a real fourteen-year-old girl.


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       At trial, Defendant changed his story and testified he never intended to have sex with a

fourteen-year-old. He stated he went to “Hannah’s” apartment to see if she was actually an adult and

interested in a relationship. He also stated that if “Hannah” was a child “I wouldn’t have had

anything to do with her.” (R. 45 at 205). Defendant contends he always believed “Hannah” was an

adult merely role-playing as a child.

       At the close of the Government’s case, Defendant moved for judgment of acquittal on all

counts under Federal Criminal Rule 29. Defendant argued he had been entrapped as a matter of law

because the Government presented no evidence from which a reasonable juror could find

predisposition. The district court delayed ruling on the motion and directed Defendant to proceed

with his case. At the close of all the evidence, Defendant renewed his motion, which the district

court denied.    The jury was read the Sixth Circuit pattern instruction for entrapment and

subsequently convicted Defendant on all counts.

       On appeal, Defendant argues entrapment occurred and the district court erred by denying his

motion.

                                             ANALYSIS

       Standard of Review

       This Court reviews de novo the denial of a Rule 29 motion for acquittal. United States v.

Coleman, 458 F.3d 453, 456 (6th Cir. 2006). In evaluating such motions, the Court asks “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). The Court does “not reweigh the

evidence, reevaluate the credibility of witnesses, or substitute our judgment for that of the jury,”


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United States v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005), but rather “gives the prosecution the

benefit of all reasonable inferences from the testimony.” United States v. Abboud, 438 F.3d 554, 589

(6th Cir. 2006). There is a “strong presumption in favor of sustaining a jury conviction,” United

States v. Peters, 15 F.3d 540, 544 (6th Cir. 1994), and a defendant seeking judicial reversal of a jury

determination of guilt bears a “very heavy burden.” Abboud, 438 F.3d at 589.

       Entrapment

       “A valid entrapment defense requires proof of two elements: (1) government inducement of

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

activity.” United States v. Khalil, 279 F.3d 358, 364 (6th Cir. 2002). Lack of predisposition is “the

principal element in the defense of entrapment . . . .” United States v. Russell, 411 U.S. 423, 433

(1973). It “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.” Mathews v. United

States, 485 U.S. 58, 63 (1988) (quoting Sherman v. United States, 356 U.S. 369, 372 (1958)). The

central inquiry is “whether law enforcement officials implanted 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. Al-Cholan, 610 F.3d 945,

950 (6th Cir. 2010) (quoting United States v. Pennell, 737 F.2d 521, 534 (6th Cir. 1984)).

       The issue of entrapment “is generally one for the jury, rather than for the court.” Mathews,

485 U.S. at 63. This is because it requires a factual determination to decide “whether the criminal

intent originated with the defendant or with the government’s agents.” United States v. Osborne,

935 F.2d 32, 38 (4th Cir. 1991). Still, entrapment as a matter of law is possible, although a difficult

standard to meet. United States v. Barger, 931 F.2d 359, 366 (6th Cir. 1991). In assessing whether


                                                  5
this difficult standard is met, a court “must view th[e] evidence in the light most favorable to the

prosecution and resolve all reasonable inferences therefrom in its favor.” United States v. McLernon,

746 F.2d 1098, 1111 (6th Cir. 1984). If any evidence is in dispute, “the question must be submitted

to the jury.” United States v. Jones, 575 F.2d 81, 84 (6th Cir. 1978). Undisputed evidence “must

demonstrate a ‘patently clear’ absence of predisposition.” Pennell, 737 F.2d at 534 (quoting United

States v. Henciar, 568 F.2d 489, 491 (6th Cir. 1977)). This Court “may not overturn the jury’s

verdict on this issue absent a determination that no reasonable juror could have concluded beyond

a reasonable doubt that [the defendant] was predisposed to violate the law.” United States v. Roland,

233 Fed. App’x 476, 482 (6th Cir. 2007) (citing United States v. Jennings, 945 F.2d 129, 133 (6th

Cir. 1991)).

       Several factors are relevant to whether a defendant is predisposed: (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

the criminal activity for profit; (4) whether the defendant evidenced reluctance to commit the

offense, overcome only by repeated Government inducement or persuasion; and (5) the nature of the

inducement or persuasion by the Government. Al-Cholan, 610 F.3d at 950 (quoting United States

v. Moore, 916 F.2d 1131, 1137 (6th Cir. 1990)). These factors are discussed more fully below.

       Factors of Predisposition and Evidence Presented at Trial

       First, Defendant’s character and credibility is questionable because of contradictory

statements he made immediately following arrest and then later at trial. For example, during his

post-arrest interview, Defendant told officers he responded to the Craigslist advertisement because

of “Hannah’s” young age and intended to have sex with her even though she was only fourteen. At


                                                 6
trial, Defendant changed his story and testified he suspected “Hannah” was an adult merely posing

as a child and would not sleep with someone that young. Construed in the light most favorable to

the Government, these contradictory statements undermine Defendant’s credibility.

       Second, evidence exists that Defendant first suggested the criminal activity. Defendant

claims the Government first suggested the criminal activity by using sexually charged homonyms

such as “cum” instead of “come.” But the Government disagrees, arguing it merely matched

Defendant’s sexual references without escalating them. The jury, who had access to all the

communications between Defendant and “Hannah” was in the best position to resolve this factual

dispute.

       The third factor, profit, is simply irrelevant. Defendant does not argue he was motivated by

money; indeed, the only motivation appears to be “his own unyielding desire to” have sex with a

minor. See United States v. Johnson, 855 F.2d 299, 304 (6th Cir. 1988) (holding defendant not

motivated by profit was more predisposed “to expand his pedophilic collection.”).

       Fourth, evidence suggests Defendant was not reluctant to commit the crime. For example,

the Government presented evidence that normally, when people who responded to the advertisement

found out “Hannah” was fourteen, they “flagged” the advertisement for deletion, discontinued

communications, or reported the advertisement to law enforcement officers. Defendant, on the other

hand, continued to communicate with “Hannah,” in secret, and quickly attempted to have sex with

her. Defendant asked for “Hannah’s” picture just hours after learning her age and claiming she was

“too young,” and barely two weeks passed from his first communication on Craigslist until his arrest

in “Hannah’s” parking lot.




                                                 7
       Fifth, none of the Government’s inducement was improper. Defendant argues to the contrary

and cites three cases in support: Sherman v. United States, 356 U.S. 369 (1958); Jacobson v. United

States, 503 U.S. 540 (1992); and United States v. McLernon, 746 F.2d 1098 (6th Cir. 1984). Those

cases are inapplicable here for two reasons: first, the Government’s interaction with those defendants

involved a long period of time; and second, inducement in those cases went beyond merely providing

the opportunity to commit the crime.

       For instance, in Sherman, a Government informant met defendant in a doctor’s office where

both were undergoing treatment for drug addition. 356 U.S. at 371. Over a period of many months,

the informant asked defendant several times where he could get access to drugs. Id. Defendant

continually rebuffed the informant’s requests and only capitulated when the informant indicated he

was physically suffering from withdrawal symptoms. Id.

       In Jacobson, defendant ordered child pornography after several targeted mailings over a 26-

month period. 503 U.S. at 550. Additionally, the Government, posing as a political activist group,

enticed defendant to accept the pornographic mailings and to join the “fight against censorship and

the infringement of individual rights.” Id. at 552.

       Finally, in McLernon, a Government agent became friends with defendant over an eight-year

period. 746 F.2d at 1113. After eight years of close friendship, the Government agent pretended his

life was in danger and asked defendant to help him deal drugs to ensure his safety. Id. While

defendant initially reacted with “confusion, reluctance, awkwardness and dilatory tactics,” eventually

he relented saying, “I’ll do anything in the world for you, Carlos, no matter what it is.” Id.

       Unlike the above cases, the Government here did not improperly induce or repeatedly

persuade Defendant to commit the crime. Defendant did not have a lasting relationship with the


                                                  8
Government agent -- it took only two days for Defendant to suggest to “Hannah” that their

relationship might turn sexual. Neither was Defendant subjected to repeated requests to engage in

illegal activity, nor did he repeatedly refuse those requests. “Hannah’s” e-mails did not request sex,

they merely let Defendant know she was open to the possibility of sex, a possibility that Defendant

invited less than twenty-four hours after learning “Hannah” was fourteen. Finally, in each of the

three cited cases, in addition to a desire to engage in illegal activity, there also were extraneous

pressures leading defendants to commit their various crimes. In Sherman, it was to ease the physical

suffering of another. In Jacobson, it was to stand up for a perceived constitutional right. In

McLernon, it was to save a friend’s life. Here, the only thing enticing Defendant to commit the

charged crime was the prospect of having sex with a fourteen-year-old girl.

                                           CONCLUSION

       Ample evidence existed here to allow a reasonable juror to find, beyond a reasonable doubt,

that Defendant was predisposed. Given this record evidence, the district court properly denied

Defendant’s Rule 29 motion. We AFFIRM.




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