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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11333
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 9:13-cr-80151-DTKH-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

STEPHEN ANTHONY PAULSEN,

                                                          Defendant-Appellant.

                       ________________________

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

                            (January 26, 2015)

Before TJOFLAT, WILSON, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Stephen Paulsen (“Defendant”) appeals his conviction for using a means of

interstate commerce to attempt to persuade, induce, entice, and coerce a minor to

engage in sexual activity, in violation of 18 U.S.C. § 2422(b). Defendant argues

that the district court, when instructing the jury, erroneously defined “sexual

activity.” He further argues that this erroneous definition served to constructively

amend his indictment. He finally argues that the district court erred when it

refused to instruct the jury on his entrapment defense. Defendant contends that the

above errors require reversal of his conviction. After careful review, we affirm

Defendant’s conviction.

                                   I. Background

      In July 2013, a detective with the Boynton Beach Police Department’s

Special Victims Unit set up a profile for a fictitious teenager on Grindr, a social

media application for smart phones and iPads. In this profile, the teenager

indicated that his name was “Paul” and that he was young.

      Shortly thereafter, Defendant initiated a conversation with “Paul” by

messaging him through Grindr. That same day, Defendant inquired how old

“Paul” was, and the latter indicated that he was 15. Over the next five-day period,

July 12 through 16, Defendant and “Paul” communicated via messages on the

Grindr site and engaged in sexually explicit conversations, including discussing

oral sex, grooming habits, and the size of their genitalia. Defendant sent “Paul”


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hand-drawn images of men engaged in sexual acts. Defendant expressed his

interest in having oral sex with “Paul” and instructed “Paul” on having phone sex.

Ultimately, on July 16, Defendant and “Paul” arranged to meet, and when

Defendant showed up at “Paul’s” apartment, he was arrested.

       Defendant was indicted for using a means of interstate commerce to attempt

to persuade, induce, entice, or coerce a minor to engage in sexual activity. He pled

not guilty and proceeded to a jury trial. At trial, two detectives testified on the

government’s behalf. Defendant did not present any witnesses nor did he testify.

       Defendant raised two objections to the district court’s jury instructions.

First, he objected to the jury instruction that defined “sexual activity” as including

“the intentional touching in a lewd and lascivious manner of the genitals, the

genital area, or buttocks, or clothing covering those areas of a person” under 16. 1

Second, he objected to the district court’s refusal to instruct the jury on his

entrapment defense. The district court overruled both objections. The jury found

Defendant guilty.

                                          II. Discussion

       A.      Jury Instruction Defining “Sexual Activity”

       Defendant argues on appeal that the district court erred when it instructed

the jury that the definition of “sexual activity” included lewd and lascivious

       1
         The district court arrived at this definition of “sexual activity” by incorporating the
definition of lewd and lascivious molestation found in Florida Statute § 800.04(5).
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touching over clothing. 2 He contends that this definition of “sexual activity” was

broader than the applicable definition of “sexual act” found in 18 U.S.C. § 2246(2),

which expressly excludes touching through clothing.

        We review de novo the question of whether a jury instruction misstated the

law or misled the jury to the prejudice of the objecting party. United States v.

House, 684 F.3d 1173, 1196 (11th Cir. 2012). Nevertheless, even if erroneous, a

jury instruction is subject to harmless error review. Id. “An error is harmless if the

reviewing court is satisfied beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained.” Id. at 1197 (internal quotation marks

omitted).

       As noted, Defendant was charged with attempting to violate 18 U.S.C.

§ 2422(b). A person violates this statute when, by using a means of interstate
       2
         The district court’s complete instruction concerning the definition of “sexual activity” is
as follows.

               The term sexual activity, as used in these instructions, means the oral or
       anal penetration by, or union with, the sexual organ of another, or anal penetration
       of another by another object. So the first definition is the oral or anal penetration
       by, or union with, the sexual organ of another, or anal penetration of another by
       another object.

               In addition to that, the term sexual activity includes the intentional
       touching in a lewd and lascivious manner of the genitals, the genital area, or
       buttocks, or clothing covering those areas of a person less than 16 years of age, or
       enticing a person under the age of 16 to so touch the perpetrator.

              The words lewd and lascivious mean the same thing and they mean a
       wicked, lustful, unchaste, licentious, or sensual intent on the part of the person
       doing the act.



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commerce, he “knowingly persuades, induces, entices, or coerces any individual”

under the age of 18 “to engage in . . . any sexual activity for which any person can

be charged with a criminal offense, or attempts to do so.” 18 U.S.C. § 2422(b).

This statute, which is found in Chapter 117 of Title 18 of the United States Code,

does not define “sexual activity.”

      In another chapter of Title 18 of the Code, Chapter 109A, the latter defines

“sexual act” to mean:

      (A) contact between the penis and the vulva or the penis and the anus,
          and for purposes of this subparagraph contact involving the penis
          occurs upon penetration, however, slight;

      (B) contact between the mouth and the penis, the mouth and the vulva,
          or the mouth and the anus;

      (C) the penetration, however slight, of the anal or genital opening of
          another by a hand or finger or by any object, with an intent to
          abuse, humiliate, harass, degrade, or arouse or gratify the sexual
          desire of any person; or

      (D) the intentional touching, not through the clothing, of the genitalia
          of another person who has not attained the age of 16 years with an
          intent to abuse, humiliate, harass, degrade, or arouse or gratify the
          sexual desire of any person.

Id. § 2246(2) (emphasis added). In short, the federal statute under which

Defendant was convicted (§ 2422(b)) does not define the “sexual activity” that is

prohibited by that statute other than to say that it includes any attempted sexual

activity for which one could be charged with a criminal offense. A statute in

another chapter of Title 18, § 2246(2), defines a “sexual act,” but that definition
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explicitly excludes touching made through the clothing of the genitalia of a person

under the age of 16.

      We have yet to consider whether § 2246(2)’s definition of “sexual act” also

defines “sexual activity” under § 2422(b). We note that our sister circuits that have

considered this issue are split. The Seventh Circuit has determined that “sexual

activity” under § 2422(b) is synonymous with “sexual act” as defined in § 2246(2).

United States v. Taylor, 640 F.3d 255, 257-60 (7th Cir. 2011). On the other hand,

the Fourth and Ninth Circuits have explicitly rejected Taylor’s holding and have

concluded that the definition of “sexual activity” in § 2422(b) is not limited to the

definition of “sexual act” found in § 2246(2). United States v. Shill, 740 F.3d

1347, 1351-52 (9th Cir. 2014), cert. denied, 135 S. Ct. 147 (2014); United States v.

Fugit, 703 F.3d 248, 254-56 (4th Cir. 2012), cert. denied, 134 S. Ct. 999 (2014)

(concluding that “sexual activity” is defined as the “active pursuit of libidinal

gratification”).

      We decline to resolve the issue here. Even assuming that Defendant is

correct that the jury instruction should have used the § 2246(2) definition of

“sexual act” to define “sexual activity”—and that it therefore should not have

included, as a prohibited act, touching over clothing—the error is harmless. This is

so because the evidence at trial did not indicate that Defendant had attempted to

persuade “Paul” to engage in touching through clothing. Instead, the evidence


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overwhelmingly reflects that Defendant had attempted to persuade “Paul” to

engage in “sexual activity” that clearly fits within the definition of “sexual act”

found in § 2246(2).

      Specifically, after learning that “Paul” was 15 years old, Defendant

continued to message him. In these communications, Defendant assured “Paul”

that the two-hour lull in conversation did not mean that he was concerned about

“Paul’s” age, discussed “Paul’s” sexual orientation and “Paul’s” experience with

receiving oral sex, and sent “Paul” two pencil drawings of men engaged in sexual

acts. Defendant initially expressed his regret that “Paul” was not 18 years old so

that he could perform sex acts, including oral sex, on “Paul.” But Defendant also

sent “Paul” a pencil drawing of men engaging in anal sex, and asked “Paul” if that

was his “next big sexual step.”

      On July 14, Defendant and “Paul” continued to chat and Defendant stated

that he wished “Paul” was 17 years old. Defendant told “Paul” that he wished he

could teach “Paul” about “intense passionate man love” and stated that he was an

excellent teacher. Defendant also questioned “Paul” about his preferred sexual

position, the size and appearance of his penis, and his grooming habits. Defendant

stated to “Paul” that because “Paul” shaved his pubic hair, it meant that Defendant

would not get hair in his mouth.




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      The following day, July 15, Defendant became very direct about the sexual

act he wanted to perform with “Paul.” He discussed his ability to perform oral sex

and indicated that “Paul” would soon know about Defendant’s ability. On July 16,

Defendant asked “Paul” whether it was a good day for him to lose his virginity.

Defendant described what he wanted to do to “Paul,” including “kiss, lick, and

suck” his genitalia, and he went on to instruct “Paul” to have phone sex.

      About 30 minutes later, Defendant began making plans to meet with “Paul.”

Defendant said that he wished “Paul” was 16 years old so Defendant could be with

him, but stated that he was tempted to come by “to hug and kiss” “Paul.” “Paul”

responded that Defendant stopping by “would be really sweet.” An hour and a half

later, “Paul” and Defendant discussed which window Defendant should use to

sneak into “Paul’s” room and that “Paul” would be home alone until 7 p.m.

Another hour later, Defendant stated that he was free and asked whether “Paul”

wanted him to visit. “Paul” replied “sure” and told Defendant where he lived.

Despite his prior statement that he wanted to come by to “hug and kiss” “Paul,”

Defendant affirmatively responded to “Paul’s” question about whether he was

bringing his tongue when he came over. Defendant was arrested when he showed

up at “Paul’s” apartment. When arrested, Defendant had two condoms in his

pocket.




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      As noted, Defendant has argued that 18 U.S.C. § 2246(2) sets the parameters

of any prohibited sexual act and that, because it excludes intentional touching

through clothing as a prohibited act, the trial court’s inclusion of that conduct in

the list of prohibited acts rendered erroneous its instruction. Yet, even assuming

that § 2246(2) provides the definition of “sexual activity” at issue in this case, we

conclude that the trial court’s mention of the above act had no impact on the jury’s

deliberations and was harmless. We reach this conclusion because any fair reading

of the evidence indicates that the acts that Defendant indicated he wanted to

engage in with “Paul” fit the definition of “sexual act” set out in the statute that

Defendant argues should have supplied the definition for “sexual activity” in this

case: 18 U.S.C. § 2246(2). The evidence indicated that Defendant had expressed

his intent, upon meeting “Paul,” to perform oral sex on the latter. Oral sex would

constitute a “sexual act” under § 2246(2)(B). Defendant had also expressed

interest in anal sex, which if consummated, would constitute a violation of §

2246(2)(A). He had also indicated that he wanted to “kiss, lick, and suck”

“Paul’s” genitalia: an act that would violate § 2246(2)(D)’s prohibition on the

intentional touching, not through clothing, of the genitalia of a person under the

age of 16.




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       Stated another way, Defendant’s stated intentions toward “Paul” did not

indicate the desire to touch the latter through his clothing. 3 To the contrary, a

clothed “Paul” did not form a part of Defendant’s articulation of his anatomically

graphic and vivid erotic intentions towards the young man. Further, in his closing

argument, the prosecutor never even hinted that the jury should convict the

Defendant if it merely found that he had attempted to encourage “Paul” to allow

himself to be touched through his clothing. Indeed, that would have been an odd

argument to make as the evidence never indicated that Defendant had expressed

such an intention. Rather, the prosecutor focused on the very serious sexual acts

that Defendant was, in fact, proposing: acts that would clearly fit within any

definition of sexual activity.

       In light of the above evidence, we are satisfied beyond a reasonable doubt

that any error in instructing the jury that “sexual activity” included intentional

touching over clothing did not contribute to the jury’s guilty verdict. Accordingly,

even if the giving of that instruction was error, it was harmless error.




       3
         Nor is our analysis altered by the fact that, during one of his four conversations with
“Paul” on the day of the planned assignation, Defendant mentioned that he would like “to hug
and kiss” “Paul.” In contrast to his repeated discussion of oral sex and other sex acts, Defendant
made one isolated reference to this desire “to hug and kiss” “Paul.” At any rate, the jury would
have understood that it could not convict Defendant had it concluded that hugging and kissing
was his sole goal because hugging and kissing is not a prohibited sex act or sexual activity under
any definition of the latter terms at issue here.
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      B.     Constructive Amendment of Indictment

      Defendant argues for the first time on appeal that the district court’s

erroneous definition of “sexual activity” in its instructions served to constructively

amend the indictment by broadening the basis for conviction and making it

possible that the jury convicted him of touching through clothing.

      We generally review de novo whether a district court’s jury instruction

constructively amended the indictment. United States v. Gutierrez, 745 F.3d 463,

473 (11th Cir. 2014). However, because Defendant did not raise this argument

below, we review this issue for plain error. See United States v. Madden, 733 F.3d

1314, 1322 & n.6 (11th Cir. 2013). Under plain error review, we will reverse

where there is “(1) an error (2) that is plain and (3) that has affected the

defendant’s substantial rights; and . . . (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. at 1322.

      A constructive amendment to the indictment occurs “when the essential

elements of the offense contained in the indictment are altered to broaden the

possible bases for conviction beyond what is contained in the indictment.” United

States v. Mozie, 752 F.3d 1271, 1283 (11th Cir. 2014), cert. denied, 135 S. Ct. 422

(2014).

      For Defendant to prevail on this argument, he would have to be right that

“sexual activity” under § 2422(b) has to be defined the same as “sexual act” under


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§ 2246(2). Yet, as discussed above, neither the Supreme Court nor this Court has

ever addressed this issue, and the other circuits that have considered it are split.

Accordingly, any alleged error cannot be “plain.” See United States v. Moriarty,

429 F.3d 1012, 1019 (11th Cir. 2005) (“When neither the Supreme Court nor this

Court has resolved an issue, and other circuits are split on it, there can be no plain

error in regard to that issue.”).

       C.     Entrapment Jury Instruction

       Lastly, Defendant argues that the district court erred in denying his request

for an instruction on the entrapment defense. He asserts that, contrary to the

district court’s determination, he presented sufficient evidence of governmental

inducement to warrant the entrapment instruction. We disagree with Defendant

and conclude that the district court did not err in disallowing Defendant’s proposed

entrapment defense.

       The failure to give a particular “instruction is reversible error where the

requested instruction (1) was correct, (2) was not substantially covered by the

charge actually given, and (3) dealt with some point in the trial so important that

the failure to give the requested instruction seriously impaired the defendant’s

ability to conduct his defense.” United States v. Eckhardt, 466 F.3d 938, 947-48

(11th Cir. 2006). There are two elements to an entrapment claim: (1)

governmental inducement of the crime and (2) the defendant’s lack of


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predisposition to commit the crime before the inducement. United States v.

Orisnord, 483 F.3d 1169, 1178 (11th Cir. 2007). In order to be allowed to present

an entrapment defense, a defendant bears the initial burden of production as to the

element of governmental inducement. United States v. Sistrunk, 622 F.3d 1328,

1333 (11th Cir. 2010). The sufficiency of the defendant’s evidence of

governmental inducement is a legal issue to be decided by the trial court. Id. at

1332. Once the defendant has met his burden of production as to governmental

inducement, the burden then shifts to the government to prove beyond a reasonable

doubt that the defendant was predisposed to commit the crime. Id.

      Here, the district court decided that Defendant had produced insufficient

evidence to support an entrapment defense and the court therefore declined to give

an entrapment instruction. Accordingly, we focus on whether the Defendant met

his burden of producing evidence that the government had induced him to commit

the crime. A defendant can show inducement by the production of evidence

sufficient to create a jury issue that the government “created a substantial risk that

the offense would be committed by a person other than one ready to commit it.”

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

this burden if he produces evidence that the government’s conduct included some

form of persuasion or mild coercion. Id. Such persuasion may be shown by

evidence that the defendant “had not favorably received the government plan, and


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the government 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. Ryan, 289 F.3d 1339, 1344 (11th Cir. 2002). But the

government’s mere suggestion of a crime or initiation of contact is insufficient to

demonstrate inducement. Brown, 43 F.3d at 623.

      We typically review a district court’s refusal to give a requested jury

instruction for an abuse of discretion. Eckhardt, 466 F.3d at 947. But when it

comes to reviewing a district court’s decision not to give an entrapment instruction,

based on the defendant’s failure to produce sufficient evidence of governmental

inducement, this Circuit’s caselaw is unclear. Some of our cases have applied a de

novo standard of review to this question, while others have reviewed the trial

court’s decision under an abuse of discretion standard. See Sistrunk, 622 F.3d at

1333 (collecting cases). In Sistrunk, we found no need to decide which standard is

applicable because under either a de novo or an abuse of discretion standard, the

defendant’s evidence was insufficient to support a conclusion that the government

had induced him to commit the present crime. Likewise, we also conclude here

that, under either standard, Defendant failed to show governmental inducement.

      In this case, the evidence shows that the detective did little more than

provide Defendant with an opportunity to make contact with a teenaged boy. The

Defendant took it from there. Thus, while the detective set up “Paul’s” profile, it


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was Defendant who initiated the conversation between himself and “Paul” by

sending the latter three messages in which he expressed his interest in “Paul.”

Even after learning that “Paul” was only 15, Defendant continued the

conversations by sending unsolicited sexually explicit images and engaging in

progressively more sexually explicit conversations, such as discussing oral sex,

genitalia size, grooming habits, and instructing “Paul” to have phone sex.

Additionally, Defendant was the one who suggested that he and “Paul” meet and

he asked if “Paul” wanted him to visit. “Paul” merely agreed to the idea after

Defendant had brought it up.

      Contrary to Defendant’s argument, the fact that “Paul” sent the first message

of the day on three of the five days does not establish that the detective repeatedly

initiated conversations with Defendant. As the detective’s trial testimony and the

messages show, the detective was simply continuing the conversations from the

prior night, not initiating new conversations. In his final message on July 12,

Defendant sent “Paul” a hand-drawn picture of men engaging in anal sex. “Paul”

responded to that message on the following day, July 13. Defendant then

responded to “Paul’s” message, but “Paul” did not respond to Defendant until July

14. On July 15, Defendant responded to “Paul’s” prior message at 11 p.m., and

“Paul” did not respond until the next morning. In any event, even if some of




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“Paul’s” messages were viewed as restarting conversations, this is not enough to

meet Defendant’s burden to show inducement. See Brown, 43 F.3d at 623.

      Finally, Defendant’s comments expressing his wish that “Paul” was older or

that Defendant was younger do not demonstrate that Defendant “had not favorably

received the government plan, and the government 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.” Ryan, 289 F.3d at 1344. Notwithstanding

these occasional protestations, Defendant enthusiastically courted “Paul.”

      In short, it was Defendant who, with great gusto, escalated the sexual nature

of the conversations and ultimately made arrangements to meet with “Paul.”

Because Defendant failed to produce evidence that the government had induced his

conduct, the district court did not err in refusing to instruct the jury on entrapment.

                                   III. Conclusion

      For the reasons stated above, Defendant’s conviction is AFFIRMED.




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