           Case: 18-10153   Date Filed: 02/08/2019   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-10153
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:17-cr-00024-MW-CAS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

MICHAEL A. CHMIELEWSKI,

                                                          Defendant-Appellant.

                       ________________________

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

                            (February 8, 2019)

Before MARTIN, NEWSOM and HULL, Circuit Judges.

PER CURIAM:
              Case: 18-10153    Date Filed: 02/08/2019    Page: 2 of 10


      After a jury trial, Michael Chmielewski appeals his conviction for attempted

enticement of a minor to engage in sexual activity, in violation of 18 U.S.C.

§ 2422(b). Chmielewski argues that the district court erred in denying his motion

for a judgment of acquittal and that the government failed to present sufficient

evidence of his guilt. After review, we affirm Chmielewski’s conviction.

                         I.     BACKGROUND FACTS

      According to the trial evidence, on February 11, 2017, Chmielewski

responded to an advertisement placed in the “casual encounters” section of

Craigslist. The ad stated that the poster was looking for a “mature man” who

would “[l]et me be your little girl.” Chmielewski began communicating with the

poster, who said her name was Sara and repeatedly told Chmielewski that she was

a 14-year-old girl. In reality, Sara was a police detective trained to impersonate

minor children on the Internet. The police detective had posted the Craigslist ad as

part of an undercover investigation focused on protecting children from enticement

and other sex crimes by predators on the Internet.

      When Sara said she was 14 years old, Chmielewski responded, “Ok, bye,”

but then continued to send messages to Sara. Within an hour, Chmielewski had

asked Sara “What are you looking to do?” and had confirmed that Sara was 14

years old and not just roleplaying and that she wanted to have sex with older men.

Over the next ten hours, Chmielewski and Sara exchanged messages. In the


                                          2
             Case: 18-10153     Date Filed: 02/08/2019   Page: 3 of 10


exchanges, Chmielewski discussed sex, asked Sara for pictures (which she sent),

told Sara he was going to masturbate and that he wanted her to masturbate, and

suggested meeting Sara and taking her somewhere secluded. When Sara asked

Chmielewski what he wanted to do first, the conversation lapsed.

      In the early morning hours of February 12, 2017, Chmielewski messaged

Sara asking if she was still up. When Sara asked why he had stopped talking,

Chmielewski explained that he had become nervous because she was young, and

he did not want to get in trouble. Chmielewski proposed driving to Sara’s house to

meet her, but Sara said that she could not meet up that night and that tomorrow

would be better. Chmielewski then described sexual acts he wanted to perform on

Sara and that he wanted Sara to perform on him.

      The next day, the police detective posing as Sara tried several times to

initiate a conversation with Chmielewski. Chmielewski finally responded at 10:31

p.m., explaining that he had just got home. Although Chmielewski initially said he

was too tired and could not meet, he began asking Sara questions about how and

where they could meet. Sara suggested they meet at a store or gas station.

Chmielewski agreed to meet Sara at a certain Walgreens and said that he was

“leaving now.” Sara said she was not “on the pill,” and asked if Chmielewski had

condoms, and he responded, “Yes.” As Chmielewski drove to the store, Sara told

Chmielewski to meet her at the ice machine in front of the store.


                                         3
              Case: 18-10153    Date Filed: 02/08/2019    Page: 4 of 10


      At various times throughout Chmielewski’s communications with Sara, he

asked Sara if she really was 14 years old, expressed disbelief that she would want

to have sex with older men, explained to her that because she was underage, he

could get in trouble or “go to jail,” asked Sara if she was a “cop,” and suggested to

her that “[t]his could be a set up.” Despite his concerns, Chmielewski got in his

car and drove to the Walgreens. When Chmielewski arrived at the Walgreens and

pulled his car in front of the ice machine, he was arrested. In a subsequent search

of Chmielewski’s car, officers found a condom in the center console.

      At trial, Chmielewski testified that when he responded to the Craigslist ad,

he was looking for a possible sexual companion and that he believed Sara was an

adult who was roleplaying. Chmielewski admitted receiving the first photograph

sent by Sara, which showed the torso and legs of a female police officer dressed in

athletic clothing, but he said he could not tell how old Sara was simply by looking

at the photograph. Chmielewski denied looking at the second photograph, which

was of an actual 14-year-old girl who was a police department intern. According

to Chmielewski, on the night he sent Sara explicit messages, he had been drinking,

which made him bolder, but he always believed he was communicating with an

adult. Chmielewski said he felt Sara pressured him into meeting her because of her

“relentless contact” and that he began to think something was wrong as he drove to

Walgreens.


                                          4
             Case: 18-10153     Date Filed: 02/08/2019   Page: 5 of 10


      At trial, at Chmielewski’s request, and over the government’s objection, the

district court instructed the jury as to Chmielewski’s entrapment defense.

                                II. DISCUSSION

A.    Standard of Review

      On appeal, Chmielewski’s sufficiency-of-the-evidence argument is two-fold.

Chmielewski contends that at trial: (1) the government failed to present sufficient

evidence of his intent to commit the crime; and (2) alternatively, the government

failed to prove his predisposition to commit the crime for purposes of defeating his

entrapment defense.

      Chmielewski’s motion for a judgment of acquittal in the district court raised

only the first argument and not the second argument. Accordingly, we review the

sufficiency of the evidence of Chmielewski’s intent de novo, viewing the evidence

in the light most favorable to the government. See United States v. Rutgerson, 822

F.3d 1223, 1231-32 (11th Cir. 2016). Under this standard, we will affirm a

defendant’s conviction if any reasonable fact finder could conclude that the

evidence established his guilt beyond a reasonable doubt. Id. As to the second

argument, however, we review only for plain error whether the government

presented sufficient evidence that Chmielewski was predisposed to commit the

crime. See United States v. Thompson, 422 F.3d 1285, 1300 (11th Cir. 2005). To

demonstrate plain error, the defendant must show that: (1) there was error, (2) that


                                          5
                Case: 18-10153    Date Filed: 02/08/2019    Page: 6 of 10


was plain, and (3) that affected his substantial rights. Id. If all three conditions are

met, this Court may exercise its discretion to correct the error, but only if the error

seriously affects the fairness, integrity, or public reputation of the judicial

proceedings. Id.

B.    Sufficiency of the Evidence of Intent

      Chmielewski was convicted of attempting to violate 18 U.S.C. § 2422(b).

Section 2422(b) provides:

      Whoever, using the mail or any facility or means of interstate or foreign
      commerce, or within the special maritime and territorial jurisdiction of
      the United States knowingly persuades, induces, entices, or coerces any
      individual who has not attained the age of 18 years, to engage in
      prostitution or any sexual activity for which any person can be charged
      with a criminal offense, or attempts to do so, shall be fined under this
      title and imprisoned not less than 10 years or for life.

18 U.S.C. § 2422(b). Because Chmielewski was charged with attempt, the

government had to prove that: (1) he acted with the specific intent to persuade,

induce, entice, or coerce the minor to engage in criminal sexual activity, and (2) he

took a substantial step toward the commission of the crime. See Rutgerson, 822

F.3d at 1232.

      As to § 2422(b)’s intent element, the government must prove that the

defendant intended to cause the minor to assent to engage in the sexual activity, not

that the defendant intended to engage in the sexual activity itself. United States v.

Lee, 603 F.3d 904, 914 (11th Cir. 2010) (“The statute criminalizes an intentional


                                            6
              Case: 18-10153     Date Filed: 02/08/2019   Page: 7 of 10


attempt to achieve a mental state—a minor’s assent.” (quotation marks omitted)).

Further, a defendant’s concern that the person he intends to have sex with is part of

a sting operation supports a relevant inference of guilt because “a relationship with

. . . an adult[ ] would not have concerned law enforcement.” See id. at 915.

      Moreover, when a defendant takes the stand and testifies in his own defense,

the jury may disbelieve the testimony, and the defendant’s own statements “may be

considered as substantive evidence of the defendant’s guilt.” United States v.

Brown, 53 F.3d 312, 314 (11th Cir. 1995). In other words, “when a defendant

chooses to testify, he runs the risk that if disbelieved the jury might conclude the

opposite of his testimony is true.” Id. (quotation marks omitted).

      Here, viewing the evidence in the light most favorable to the government, a

reasonable jury could find beyond a reasonable doubt that Chmielewski intended to

cause a minor to assent to engaging in sexual activity with him. The evidence

showed, among other things, that (1) Chmielewski initiated contact with Sara after

seeing her ad on Craigslist; (2) continued conversation with her even after she

repeatedly told him that she was only 14 years old; (3) asked her questions about

sex within one hour of learning her age; (4) engaged in explicit dialogue with her,

including describing sexual acts he wanted to perform on her and sexual acts he

wanted her to perform on him; and (5) attempted to meet with her for the purpose

of having sex with her after acknowledging that he could go to jail for it. A


                                          7
                Case: 18-10153    Date Filed: 02/08/2019   Page: 8 of 10


reasonable juror could therefore conclude that Chmielewski had the specific intent

to entice a minor.

         Although Chmielewski testified that he did not believe Sara actually was a

minor and that he thought he was communicating with an adult who was merely

engaged in roleplaying, the jury obviously did not believe him. Chmielewski’s

discredited testimony is substantive evidence that Chmielewski believed Sara was

a minor and that he communicated with her to get her to agree to engage in sexual

activity with him. See id. In addition, Chmielewski’s concerns that he could go to

jail because Sara was a minor, that Sara might be a cop, and that her offer to have

sex with him might be a “set up” are further evidence of his guilt. See Lee, 603

F.3d at 915.

C.       Sufficiency of the Evidence of Predisposition

         At trial, Chmielewski raised an entrapment defense, and Chmielewski does

not challenge the language of the entrapment jury charge. Rather, he contends the

government failed to submit sufficient evidence of his predisposition to commit the

crime.

         “Entrapment is an affirmative defense that requires (1) government

inducement of the crime, and (2) lack of predisposition on the part of the defendant

to commit the crime before the inducement.” Rutgerson, 822 F.3d at 1234. The

defendant bears the initial burden of production as to the first element, and


                                           8
              Case: 18-10153     Date Filed: 02/08/2019    Page: 9 of 10


assuming the defendant meets his burden, the burden shifts to the government to

prove beyond a reasonable doubt that the defendant was predisposed to commit the

crime. See id. at 1234-35.

      “Predisposition is a fact-intensive and subjective inquiry, requiring the jury

to consider the defendant’s readiness and willingness to engage in the charged

crime absent any contact with the government’s agents.” Id. at 1235. Rather than

create a “fixed list of factors,” this Court has “posited several guiding principles”

for evaluating an entrapment defense, including, among others things:

(1) predisposition may be demonstrated simply by the defendant’s readiness to

commit the charged crime, (2) a finding of predisposition may be supported by

evidence that the defendant had the opportunity to back out of the illegal activity

and failed to do so, and (3) the jury’s consideration of the defendant’s demeanor

and credibility is often “a pivotal factor.” Id. (quoting United States v. Brown, 43

F.3d 618, 625 (11th Cir. 1995)).

      As to Chmielewski’s argument that the evidence was insufficient to prove

that he was predisposed to commit the crime, we discern no error, plain or

otherwise. This is so because a reasonable jury could find beyond a reasonable

doubt that Chmielewski was predisposed to commit the crime prior to any

government inducement. As previously discussed, Chmielewski made the initial

contact with Sara and continued to engage her in conversation after she told him


                                           9
             Case: 18-10153    Date Filed: 02/08/2019   Page: 10 of 10


she was 14 years old. Chmielewski also quickly turned the conversation to sex and

was the first person to propose meeting to have sex. Even after expressing his

suspicion that Sara was law enforcement, he did not stop communicating with her

or back out, supporting an inference of predisposition. See Rutgerson, 822 F.3d at

1235; Lee, 603 F.3d at 915. Finally, Chmielewski chose to testify, and the jury

considered his demeanor and his claim that he felt pressured by Sara’s relentless

messages and clearly rejected it. See Rutgerson, 822 F.3d at 1235; Brown, 53 F.3d

at 314.

      In sum, there was sufficient evidence from which a reasonable jury could

find that Chmielewski was ready and willing to entice a minor before his contact

with Sara and was not entrapped.

      AFFIRMED.




                                         10
