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United States v. Senke

United States District Court, M.D. Pennsylvania

September 19, 2017



          JAMES M. MUNLEY, JUDGE United States District Court.

         Before the court for disposition is the government's motion in limine to preclude the defendant from using “entrapment” as a defense. Defendant has raised his intention to use the defense in his omnibus pretrial motion. The parties have set forth their respective positions, and the issue is ripe for disposition.


         On December 20, 2016, the grand jury indicted the defendant on charges of travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b) and online enticement in violation of 18 U.S.C. § 2422(b).[1] (Doc. 1).

         The Pennsylvania Attorney General's Office performed an online undercover sting operation attempting to find adults seeking unlawful contact with minors. No minors were involved in the investigation. Instead, an agent masqueraded as a minor on the LGBT dating website, After chatting for a time on the website and through text messages, the defendant and the investigator decided to meet.[2] Authorities arrested defendant when he arrived for the meeting.

         Originally, charges were brought in Pennsylvania state court. Almost two years later, however, the federal government brought the instant charges against the defendant in this court. The state court charges were dismissed.

         On December 20, 2016, the court appointed an assistant federal public defender to represent the defendant. In February 2017, the court granted defendant's counsel leave to withdraw and allowed the defendant to proceed pro se.[3] Defendant has indicated that he intends to use “entrapment” as a defense in this action. His argument is that the undercover agent convinced him to engage in activity that he would not otherwise have done. The government argues that the entrapment defense is inapplicable to this case and has filed a motion in limine to preclude the defense. After a careful review, we find that the defendant should be allowed to present the entrapment defense to the jury.


         No reasonable people can dispute the evils of adult coercion and enticement of minors over the Internet for purposes of sexual activity. See Jacobsen v. US, 503 U.S. 540, 548 (1992) (discussing the evils of child pornography). Further, it cannot be disputed that the government may use undercover agents posing as minors to enforce the laws against such actions. United States v. Tykarsky, 446 F.3d 458, 464-69 (3d Cir. 2006) (holding that involvement of an actual minor is not a prerequisite to conviction for actual or attempted persuasion of a minor to engage in illicit sexual activity or for traveling for purposes of engaging in illicit sexual activity).

         “In their zeal to enforce the law, however, Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.” Jacobsen, 503 U.S. at 548. When the government does so, “entrapment” may be a defense and “the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” Id. at 549. The Supreme Court has explained the elements of “entrapment” as follows:

[A] valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct. See Sherman v. United States, 356 U.S. 369, 376-378, 78 S.Ct. 819, 822-823, 2 L.Ed.2d 848 (1958); United States v. Russell, 411 U.S. 423, 435-436, 93 S.Ct. 1637, 1644-1645, 36 L.Ed.2d 366 (1973); Hampton v. United States, 425 U.S. 484, 489, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). Predisposition, “the principal element in the defense of entrapment, ” Russell, supra, 411 U.S., at 433, 93 S.Ct., at 1643, 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. Sherman, supra, 356 U.S., at 372, 78 S.Ct., at 820; Russell, supra, 411 U.S., at 436, 93 S.Ct., at 1645. The question of entrapment is generally one for the jury, rather than for the court. Sherman, supra, 356 U.S., at 377, 78 S.Ct. at 823.

Matthews v. United States, 485 U.S. 58, 62-63 (1988).

         The government ultimately bears the burden of persuasion with regard to entrapment. The defendant, however, has the burden of production. Therefore, the defendant must present sufficient proof of inducement and lack of predisposition on his part for the government to disprove beyond a reasonable doubt. United States v. Lakhani, 480 F.3d 171, 179 (3d Cir. 2007). Although the issues of “inducement” and “predisposition” are interrelated, we will discuss them separately as much as we can.

         The Ninth Circuit Court of Appeals has discussed the defendant's burden as follows:

To raise entrapment, defendant need only point to evidence from which a rational jury could find that he was induced to commit the crime but was not otherwise predisposed to do so. See United States v. Staufer, 38 F.3d 1103, 1108 (9th Cir.1994). Defendant need not present the evidence himself; he can point to such evidence in the government's case-in-chief, or extract it from cross-examination of the government's witnesses. The burden then shifts to the government to prove beyond a reasonable doubt that defendant was not entrapped. See Jacobson, 503 U.S. at 549, 112 S.Ct. 1535.

United States v. Poehlman, 217 F.3d 692, 698 (9th 2015).

         To analyze these factors, we must examine the government's actions and the defendant's response to them.

         The investigating agent from the Pennsylvania Attorney General's office, Justin M. Leri (hereinafter “investigator” or “agent”) placed a profile on what the government describes as a “social networking website”.[4] This website, however, was not merely a place for people to make and post messages for family and friends such as Facebook, Instagram, Snapchat, Twitter or a website for professional networking such as Linked In. It evidently more of an adult/sexually oriented website for men looking to meet with other men. The site was restricted to only people certifying that they are eighteen years of age.

         Thus, to execute their sting, the government did not choose a family friendly all-ages website, but rather an adults-only website evidently aimed at gay men. Then the government created a profile and certified that the investigator was eighteen years old. The government did not submit a copy of the profile so we do not know what else, if anything, it contained.

         The defendant contacted the investigator through the website. At that point, the investigator presented himself as an eighteen-year-old man. Defendant's first message indicated that he sought a younger man who was looking for an older wealthier man. “U into generous older men” he asked. The undercover agent said “how old r u I prob to young:(((”.[5]

         Defendant then again indicated he could be “generous” and the undercover agent presented himself as “I 14 but almost 15 is that ok I j don't want to lie to me n hurt my feeling s”. Defendant did not answer the “is that ok” query. Instead he asked for naked pictures and asked about the undercover agent's sexual experience, to which the undercover agent cryptically replied “Ya prob”. The defendant sent his photo and requested naked pictures from the undercover agent. He asked the investigator ...

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