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United States v. Hinkel

United States Court of Appeals, First Circuit

September 20, 2016

UNITED STATES OF AMERICA, Appellee,
v.
PAUL R. HINKEL, Defendant, Appellee.

         APPEAL 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 appellant.

          Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

          Before Thompson, Selya, and Kayatta, Circuit Judges.

          KAYATTA, Circuit Judge.

         After 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 supervised release.

         I. Background

         At 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.

         On 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)."[1] 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 CL."[2]

         At 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."

         Seven 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."[3] 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!!!!"

         Over 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.

         On 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 together."

         Hinkel 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."

         On the 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 opinion.

         II. Analysis

         A. Entrapment

         Hinkel 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.

         The 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).

         The 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 appeal.

         1. Sufficiency of the Evidence

         Hinkel 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 underage victims.

         The 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 ...


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