FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]
Christine DeMaso, Assistant Federal Public Defender, Federal
Public Defender Office, District of Massachusetts, for
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
Thompson, Selya, and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
being ensnared by a law enforcement sting operation, Paul
Hinkel was charged with using a means of interstate commerce
(the internet) to entice a minor to engage in illegal sexual
activity in violation of 18 U.S.C. § 2422(b). He was
convicted following a jury trial and sentenced to ten
years' imprisonment, to be followed by five years'
supervised release. On appeal, he claims that a variety of
alleged errors undermined the integrity of the jury's
verdict and the appropriateness of his sentence. After
careful review, we affirm both Hinkel's conviction and
the bulk of the sentence imposed by the district court,
finding cause to alter only two conditions of Hinkel's
trial, the government relied chiefly on evidence of
electronic messages exchanged between Hinkel and government
agents posing as a fifteen-year-old girl and her mother.
Because Hinkel's challenge trains partly on the
sufficiency of the government's evidence, we summarize
this back-and-forth in considerable detail, vulgar and lewd
as it is.
February 14, 2014, an agent with the Department of Homeland
Security placed a personal advertisement on the "Casual
Encounters" online message board, a subsection of the
website Craigslist frequented by those seeking adult sex
partners. Using the name "Lisa Richards, " the
agent published a post entitled "mom with daughter
looking--w4m--38 (Boston)." In its entirety, the post
stated: "open minded mom DDF with daughter looking for
male that might be interested in taboo relationship, some dom
......... needs to be discreete though. if you have an
interest in a interesting relationship contact me, use
intersting in subject line. we will chat off
12:54 pm that day, Craigslist user "ctautumn, "
later identified as Hinkel, responded to the advertisement
via email using the subject line "VERY INTERESTING AND
INTRIGUING." Hinkel told "Lisa" that he was
"an experienced Daddy/Dom and [he] ha[d] been looking
for this type of scenario." He then listed some of his
"taste[s]" and provided graphic descriptions of
sexual acts that he imagined engaging in with
"Lisa" and her daughter. Forty-five minutes later,
the agent responded, writing that "she" was
"trying to introduce [her] daughter to sex" and
asking if Hinkel "mind[ed] if shes young?" Prompted
by Hinkel's responsive request for her daughter's
age, "Lisa" informed Hinkel that her daughter
"Samantha" was "15 but experienced."
minutes later, at 2:05 pm, Hinkel responded: "Sounds
very naughty! I am concerned about her age since legally she
should be 16 or older." He asked whether
"Lisa's" daughter had "played in this type
of scene before" and whether "Mommy and daughter
play together as well, " stating that he found
"that kind of play so very erotic, " and that it
was a "big turn on for [him]." In response, at 2:10
pm, "Lisa" wrote, "shes not [16 or older] so i
guess this conversation is over." But Hinkel insisted
otherwise, replying, one minute later, to say, "Nope
..... It is not over! I want to talk more! I'm very
intrigued by it all. Such taboo and naughty play!!!!"
the course of roughly the next month, Hinkel corresponded
frequently and in lurid detail with "Lisa" and her
fictitious daughter "Samantha." In subsequent
emails, "Lisa" told Hinkel that she was looking for
a man to "teach her [daughter]" and that she
wanted "Samantha" "to experience sex with a
man the right way." Hinkel frequently expressed
eagerness to perform this role, describing his own sexual
desires in detail. From time to time, though, he also
expressed what he called "conflicting feelings"
regarding the criminal conduct he was preparing to engage in.
At one point Hinkel told "Lisa":
I once placed an ad looking for this very type of scenario,
but to be honest the ad stated that the daughter was to be of
legal age. I was taken back a bit when you said she
wasn't. The last thing I want to do to any girl is damage
her emotionally. I'm very caring. As long as she is
desires this, I am game.
another occasion, Hinkel wrote "Lisa" that when he
arrived to meet "Samantha" he would "play it
by ear and gauge it based on Samantha's feelings and
comfort level, " saying that he was "nervous . . .
[to] be with such a young girl" and "sooooooooo
very concerned about her and how she will feel."
"Lisa" reassured Hinkel, saying "i think you
will love her...and i appreciate the way you describe our
situation:), " telling him that the planned encounter
would be "such an amazing experience for us to have
and "Lisa" formed plans to stage their encounter
with "Samantha" at "Lisa's home" in
Watertown, Massachusetts, on March 19, 2014. A week before,
Hinkel exchanged emails directly with "Samantha."
Referring to her as "sweetheart, " Hinkel promised
to make the experience "fun and enjoyable" for this
fifteen-year-old girl. When "Samantha" said that
she liked it when she "rub[bed] herself, " Hinkel
asked if she would like him to "touch [her] there as
well." In one of his final messages to "Lisa,
" Hinkel asked whether "Samantha" knew she
could never tell anyone about their planned encounter
because, in his words, "you and I can get into a lot of
trouble. Even years later."
appointed day, Hinkel arrived at the Watertown residence
where he was greeted by arresting officers. He consented to a
search of the bag he was carrying and of a lockbox in his
vehicle. These searches--and later searches of his home and
work computers--yielded evidence, ultimately introduced at
trial, that we will discuss in greater detail later in this
does not contest that he was the author of the
"ctautumn" emails and text messages sent to the
government agents. His chief defense at trial was entrapment.
defense of entrapment "exists to prevent
'abuse' of the 'processes of detection and
enforcement . . . by government officials' who might
instigate an illegal 'act on the part of persons
otherwise innocent in order to lure them to its commission
and to punish them.'" United States
v. Díaz-Maldonado, 727 F.3d 130, 137
(1st Cir. 2013) (alterations in original) (quoting
Sorrells v. United States, 287
U.S. 435, 448 (1932)). When the defense is properly raised,
we apply a two-part test. First, we look at the
government's conduct to see if it is of the type that
would cause a person not otherwise predisposed to commit a
crime to do so. See id. Examples of such
"government overreaching" include "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. Gendron, 18 F.3d 955, 961-62 (1st Cir.
1994). If the government does employ "methods of
persuasion or inducement that create a substantial risk that
. . . an offense will be committed by persons other than
those who are ready to commit it, " Model Penal Code
§ 2.13(1)(b), "we proceed to a second step and look
at the particular person to see if that person was in any
event predisposed to commit the crime, "
Díaz-Maldonado, 727 F.3d at 137; accord
Gendron, 18 F.3d at 962-63. In seeking an entrapment
jury instruction, a defendant must first shoulder the
"modest" burden of making a prima facie showing
that there is some evidence both elements are satisfied in
his or her case. United States v.
Vasco, 564 F.3d 12, 18 (1st Cir. 2009). If this
"'entry-level burden' of production, "
Díaz-Maldonado, 727 F.3d at 139 (quoting
United States v. Coady, 809 F.2d
119, 122 (1st Cir. 1987)), is satisfied--as it clearly was in
this case, see, e.g., United States
v. Gamache, 156 F.3d 1, 9-11 (1st Cir.
1998)--then the defendant is entitled to a jury instruction
explaining the defense. In addition,
the burden shifts to the government to prove beyond a
reasonable doubt one of two things, either of which
defeats the defense: that the government did not wrongfully
induce the accused to engage in criminal conduct or
that the accused had a predisposition to engage in such
conduct absent the inducement.
United States v. DePierre, 599
F.3d 25, 27 (1st Cir. 2010).
district court instructed the jury on the parameters of the
entrapment defense using the pattern jury instructions
commonly used by district courts in this circuit, declining
to give a lengthier instruction requested by Hinkel. The
court also denied Hinkel's motion for judgment of
acquittal premised on the government's failure to offer
evidence sufficient to remove the inference of entrapment
from the proceedings. See Fed. R. Crim. P. 29.
Hinkel challenges both of these unfavorable decisions on
Sufficiency of the Evidence
put a credible entrapment case to the jury by arguing that
the government's bundling of licit and illicit sex into a
package deal led him to go where he never would have gone but
for the government's clever and sophisticated inducement.
The government went to lengths to create a dressed-up window
of opportunity for the crime to be committed and, on numerous
occasions, downplayed the harm that could be expected to flow
from the commission of the crime by describing how
"amazing" the encounter would be, how
"excited" "Samantha" was, and how
"Lisa" "appreciate[d]" how "honest
and caring" Hinkel had been in his messages. As in
virtually any sting operation, the fictitious co-conspirator
here also sought to allay concerns about detection by the
authorities and to build credibility with the target of the
investigation through frequent, familiar communication that
undoubtedly took the "edge" off of the
reprehensible conduct under contemplation. As for
predisposition, Hinkel points out that he had never
previously been convicted of a crime, had raised two adult
children and had not been accused of having an inappropriate
relationship with either of them, and that the government had
not uncovered any evidence suggesting that he had other
jury, though, was not buying Hinkel's view of the
evidence. So the question for the district court, and now us,
is whether the evidence of both wrongful inducement and lack
of predisposition was so one-sided that a reasonable jury
could not have found beyond a reasonable doubt that the
government carried its burden of negating the entrapment
defense. This question of evidentiary sufficiency ...