[00:00:01] Speaker 01:
Thank you, your honor.

[00:00:03] Speaker 01:
I may please the court, Craig Webster of the Federal Defenders, on behalf of David Curry, also president at council table, his co-counsel, Julianna Van Wingerden, who assisted in trying this case.

[00:00:13] Speaker 01:
I would request two minutes for rebuttal.

[00:00:19] Speaker 01:
As your honors know from the briefing, there are two issues that I am raising on Mr. Curry's behalf.

[00:00:24] Speaker 01:
The first issue is whether or not there was sufficient evidence for a conviction to sustain a conviction on count one.

[00:00:31] Speaker 01:
In our opinion, the record does not support such evidence.

[00:00:35] Speaker 01:
The second issue is whether Mr. Curry presented some evidence of entrapment on both counts one and two, entitling him to a jury instruction for both counts and the willingness or the ability to argue entrapment to the jury as well as holding the prosecution to higher burden of proof beyond a reasonable doubt.

[00:00:57] Speaker 01:
Your Honor, turning to count one,

[00:00:59] Speaker 01:
It's a highly emotional type of charge, and the evidence in this case was highly emotional, and it's not unexpected that a juror would struggle with what the actual crime is and what they are convicting on.

[00:01:14] Speaker 01:
The crime is the use of a means of interstate commerce to knowingly persuade, induce, entice, or coerce a minor to engage in unlawful sexual activity.

[00:01:25] Speaker 01:
Or attempt to do so.

[00:01:26] Speaker 01:
Yes, Your Honor, or attempt to do so.

[00:01:29] Speaker 01:
The criminal intent of this case is you look to the subjective intent of the defendant.

[00:01:35] Speaker 01:
The statute protects from solicitation.

[00:01:38] Speaker 01:
The crime itself is not the willingness to engage in unlawful sexual activity with the minor.

[00:01:44] Speaker 01:
If that were the crime, Mr. Curry would be guilty of that crime.

[00:01:49] Speaker 01:
Instead, the actual statute protects from solicitation.

[00:01:54] Speaker 01:
The criminal purpose is the attempt to achieve the mental act of assent of the minor to engage in that sexual activity.

[00:02:02] Speaker 01:
What's unusual about Mr. Curry's case compared to the other Ninth Circuit case law is that first, there's no direct contact with the minors whatsoever in Count One.

[00:02:12] Speaker 03:
Well, there are no minors to begin with.

[00:02:14] Speaker 03:
He was never going to be in contact with any minor because they were all fictitious.

[00:02:18] Speaker 01:
Correct, Your Honor.

[00:02:19] Speaker 01:
I should say there are no imaginary minors.

[00:02:21] Speaker 01:
There was no contact with

[00:02:23] Speaker 01:
It's not unusual, obviously.

[00:02:26] Speaker 01:
Typically, it's a sting operation.

[00:02:28] Speaker 01:
An officer is portraying himself as either a minor or sometimes as an intermediary.

[00:02:34] Speaker 01:
But here, there was no direct contact with a minor of any type, whether real or imaginary.

[00:02:44] Speaker 01:
That's not necessarily unusual.

[00:02:47] Speaker 01:
Often, you will see an officer portraying as an intermediary.

[00:02:53] Speaker 01:
But here there was no indirect contact either with the minors.

[00:02:56] Speaker 01:
And that's what sets this case apart in count one.

[00:02:59] Speaker 01:
I think if you look at count two versus count one, you see more traditionally what you would find in committing this crime.

[00:03:08] Speaker 01:
Whereas in count one,

[00:03:09] Speaker 03:
there was never any sort of... I think you've got some case law that you need to get passed.

[00:03:15] Speaker 03:
That is to say, I think we have some cases where there has been communication with the adult and nonetheless we've convicted under this statute.

[00:03:23] Speaker 01:
Yes, Your Honor, there are quite a few cases where we have that, but there's always something in additional.

[00:03:29] Speaker 01:
For example, USB Macapagel, I'm not sure if I'm pronouncing that right.

[00:03:33] Speaker 01:
It's a Ninth Circuit case, I believe, out of 2022.

[00:03:36] Speaker 01:
In that case, you have the mother acting, very similar set of facts.

[00:03:42] Speaker 01:
I think it's 11 and 13-year-old daughter.

[00:03:44] Speaker 01:
and eventually have travel.

[00:03:47] Speaker 01:
But with that, the defendant in that case is sending photos of himself, sexual type photos, and asking the mother to show those to the daughters.

[00:03:58] Speaker 01:
In all of those, you also have the person shows up with gifts and is presenting gifts to

[00:04:05] Speaker 01:
to the actual child, you don't have that here with Mr. Curry.

[00:04:10] Speaker 01:
There has to be some form of effect on the minor for that persuasion, even if it's just through indirect contact.

[00:04:20] Speaker 01:
In some way, he has to be trying to persuade, induce, entice, or coerce a minor.

[00:04:26] Speaker 01:
There must be some sort of effect based on that communication.

[00:04:30] Speaker 01:
And in count one, there is none.

[00:04:32] Speaker 01:
at all times the undercover officer steers the ship, she directs the actions, and everything he does is in response to what the officer is requesting.

[00:04:43] Speaker 01:
And he never in any way tries to communicate with the miners through that officer.

[00:04:51] Speaker 00:
But counsel, what do I make then of the fact that he drove 80 miles to see them?

[00:04:56] Speaker 00:
He bought lube in the flavors that the mother told him the kids liked.

[00:05:01] Speaker 00:
What are we to do with that?

[00:05:03] Speaker 01:
Two separate issues there, Your Honor.

[00:05:06] Speaker 01:
I think first, as far as the travel goes, I think in many ways the crime has been committed before you actually have the travel, because the crime is not the willingness to engage in the sexual activity.

[00:05:17] Speaker 01:
It is actually the persuasion using the means of internet.

[00:05:21] Speaker 01:
So I think that's already occurred beforehand.

[00:05:23] Speaker 01:
Your Honor, as far as the flavored lube, I think that is the closest Mr. Curry gets here.

[00:05:30] Speaker 01:
And obviously that is sort of our biggest problem.

[00:05:33] Speaker 01:
But I think it's different.

[00:05:35] Speaker 01:
I think it's different from the other cases.

[00:05:38] Speaker 01:
Because he is responding to the officer.

[00:05:42] Speaker 01:
The officer brings up condoms.

[00:05:44] Speaker 01:
Condoms are a must, she says.

[00:05:46] Speaker 01:
And she says, oh, yeah, I forgot to grab Lou before.

[00:05:51] Speaker 01:
And so he's responding to that.

[00:05:53] Speaker 01:
He's not using that in a means to persuade or induce the minor to engage in sexual activity.

[00:06:00] Speaker 01:
He's simply responding to the direction

[00:06:03] Speaker 01:
of the officer.

[00:06:04] Speaker 01:
And I think that's what's different.

[00:06:06] Speaker 01:
I think it walks right up to the line, but I don't think it crosses it.

[00:06:10] Speaker 01:
I think that's more in line with mere preparation as opposed to actually taking the substantial step.

[00:06:22] Speaker 01:
Your Honor, and just kind of, Your Honor, just going back to that there is no sort of indirect contact here.

[00:06:30] Speaker 01:
The officer is in control.

[00:06:32] Speaker 01:
The officer is directing the action at all times in count one.

[00:06:36] Speaker 01:
He is responding to her request.

[00:06:40] Speaker 01:
And you have to look at what does he not do.

[00:06:42] Speaker 01:
A good case is United States v. Eller.

[00:06:47] Speaker 01:
where, once again, there's an intermediary.

[00:06:49] Speaker 01:
It's not a mother, but it's an adult intermediary.

[00:06:53] Speaker 01:
And he is haggling over price.

[00:06:54] Speaker 01:
He's telling him, I want the minors to appear in this.

[00:06:57] Speaker 01:
He asks to switch up a minor instead of an adult.

[00:07:01] Speaker 01:
And he's negotiating what he wants done.

[00:07:04] Speaker 01:
And so once again, there's the persuasion through the intermediary.

[00:07:11] Speaker 01:
As far as the travel, as I said before, I guess also there's

[00:07:16] Speaker 01:
At no point does he request anything to be done.

[00:07:19] Speaker 01:
Mr. Currier, even when he... He couldn't wait.

[00:07:22] Speaker 02:
It took him 90 minutes to get in the car and start driving, having gotten the lube.

[00:07:32] Speaker 01:
Yes, sir.

[00:07:33] Speaker 01:
I wish you wouldn't have done that.

[00:07:37] Speaker 01:
Your Honor, I think what that shows is a willingness

[00:07:42] Speaker 01:
to engage in the sexual activity, but it doesn't show him committing this crime.

[00:07:47] Speaker 01:
The crime here is the use of the means of interstate commerce to persuade the minor.

[00:07:53] Speaker 01:
It's to try to induce them in some way.

[00:07:56] Speaker 01:
And what you have is even when he's arrested, he gives his interview, he acknowledges that he's had fantasies of this type.

[00:08:03] Speaker 01:
But he also says that he had hoped to persuade the mother to engage in sexual activity.

[00:08:10] Speaker 01:
That's what he was seeking originally when he responded to the Craigslist ad.

[00:08:15] Speaker 01:
And even when Mr. Curry arrives at the trap house,

[00:08:23] Speaker 01:
he's still following directions.

[00:08:24] Speaker 01:
He's told to sit down, he sits down, he's told to take his shoes off, he takes his shoes off.

[00:08:29] Speaker 01:
At no point does he in any way engage in trying to persuade the minors.

[00:08:35] Speaker 01:
He is a willing participant, but that's not the crime, Your Honor.

[00:08:41] Speaker 01:
And so, as I said, I do think

[00:08:45] Speaker 01:
To me, the reading of the statute, it makes more sense that the crime would have actually been committed prior to the travel itself because of that.

[00:08:54] Speaker 01:
I think that the crime is the intent to persuade using that means of interstate commerce.

[00:09:01] Speaker 00:
So let me just clarify then in that sort of situation, if the accused never speaks to the minor, whether it's a real minor or someone pretending to be a minor, are they never going to be guilty?

[00:09:18] Speaker 01:
No, not necessarily, your honor.

[00:09:21] Speaker 01:
If they are using the third party, the intermediary, to try to persuade or try to induce, if there's some way that that third party is, the minor has to be indirectly affected by that persuasion.

[00:09:36] Speaker 01:
So in some way, they have to, he needs to be communicating in some way to try to convince them to have the minor to have sex.

[00:09:45] Speaker 01:
And so that,

[00:09:47] Speaker 01:
If that doesn't occur, then I don't see where the crime is.

[00:09:53] Speaker 03:
Your argument basically is the mother, supposed mother, represents that the children, the supposed children, are already willing.

[00:10:00] Speaker 03:
There's no persuasion necessary.

[00:10:02] Speaker 01:
Yes, Your Honor, yes.

[00:10:04] Speaker 01:
And I think that is also unique in this set of... I'm sure I agree with that argument gets you where you want to get, but I think that's your argument.

[00:10:10] Speaker 01:
It is, Your Honor, and thank you for leading me down that direction.

[00:10:14] Speaker 01:
Yes, Your Honor, I believe that that is the case.

[00:10:19] Speaker 03:
Could you address your second argument, and that is the entrapment?

[00:10:24] Speaker 03:
I think there's at least a plausible argument as to entrapment as to count two, not as to count one, but as to count two.

[00:10:30] Speaker 02:
And to follow on on that, if there is predisposition shown by the first event, the Kelly event, is that enough or do you need to look at the Cortez factors independently for the second crime?

[00:10:51] Speaker 01:
That's a good question.

[00:10:54] Speaker 01:
I believe that here you do have the initial contact is with

[00:11:00] Speaker 01:
is with the November 16, 2019 incident.

[00:11:02] Speaker 01:
I think that is what triggers the entire

[00:11:06] Speaker 01:
the entire chain of events.

[00:11:09] Speaker 01:
It's a three-week period in between the two violations and I really do think it's sort of a chain of events that are all occurring from that initial contact.

[00:11:20] Speaker 01:
I think there still is a lack of predisposition.

[00:11:23] Speaker 01:
I think you can still go through the factors on Mr. Curry's case for count two alone and find that he did not have the predisposition to commit the crime because I think

[00:11:33] Speaker 01:
As we've argued, I don't think he actually committed the crime before that.

[00:11:39] Speaker 01:
But if you look at it, count one, you have a lonely, desperate, sort of sad man looking to engage in sexual activity.

[00:11:48] Speaker 01:
He responds.

[00:11:49] Speaker 01:
He's seeking sexual relations with an adult mom or an adult woman.

[00:11:56] Speaker 01:
Three weeks later, they come back at him again.

[00:11:59] Speaker 01:
Once again, so now he's been sort of publicly shamed, humiliated.

[00:12:02] Speaker 01:
He's even more depressed than he already was.

[00:12:06] Speaker 01:
He goes on an adult website.

[00:12:08] Speaker 01:
He posts to have a sexual relationship with an adult woman.

[00:12:13] Speaker 01:
And once again, the government comes at him, and they once again kind of pull him into this thing.

[00:12:22] Speaker 03:
Is there anything in the record that tells us that the second time around,

[00:12:26] Speaker 03:
the government knew that they were dealing with someone who'd been involved the first time around?

[00:12:30] Speaker 03:
Or is this just, are these two independent sting operations?

[00:12:33] Speaker 01:
Your Honor, that's a great question.

[00:12:35] Speaker 01:
So, this is something

[00:12:38] Speaker 01:
It originates as two, testimony at trial by the officer was that it originates as two separate sting operations.

[00:12:47] Speaker 01:
And then during that process, they do, which is in the record, during that process, they recognize Mr. Curry from the November 16th, 2019.

[00:12:57] Speaker 03:
But when, in the second case, the second sting operation, when the officer immediately responds, I got an underage person for you,

[00:13:07] Speaker 01:
The officer at that point did not know that Mr. Curry was already in trouble with respect to the first underage So that's what the officer testifies to but something that we struggled with at the defense as the defensive trial was

[00:13:22] Speaker 01:
In his post arrest interview, they ask him about his sexual preferences, and he goes through something, talks about how he, pardon my language, he reviews porn, he masturbates, but he in particular likes redheaded females, redheaded adult females, which is a little unusual.

[00:13:45] Speaker 01:
And very quickly, a photo within that first day on the second count is a photo of a redheaded detective.

[00:13:53] Speaker 01:
Now, they say there's no link there, but we always found that suspect, and that's something we would have argued to the jury with the entrapment.

[00:14:02] Speaker 03:
And the question, the legal question we got in front of us with respect to count two is whether he's entitled to the instruction.

[00:14:09] Speaker 03:
It strikes me, as I've been the district judge, I would have given the instruction.

[00:14:12] Speaker 03:
The question is whether it's air or not to have given it.

[00:14:15] Speaker 03:
Warned of the government, I'm pretty close on that question.

[00:14:21] Speaker 01:
Your honor and I do think it should have been given there was some evidence provided it can be weak and be doubtful credibility but in many ways that shaped our entire argument of how we were arguing the case and when we weren't allowed to argue the entrapment offense it changed the way we had to address both count one and count two and so that changed the entire nature of how it would have been argued.

[00:14:45] Speaker 03:
At what point do you know you're not allowed to do what what point did the district judge tell you we weren't gonna get the entrapment instruction?

[00:14:52] Speaker 01:
Your Honor, I apologize.

[00:14:54] Speaker 01:
I'm trying to remember.

[00:14:55] Speaker 01:
I believe it was, I believe it was after the presentation of, I believe it as we were going to jury instruction.

[00:15:06] Speaker 03:
So I believe... Oh, so that did not affect your argument and your evidence of trial then?

[00:15:12] Speaker 03:
That's my recollection, Your Honor, but it affected the way we... Now the reason I ask it that way is you always, you maybe inadvertently suggested that it affected your trial strategy.

[00:15:22] Speaker 03:
But it sounds as though you didn't know, but you weren't going to get the instruction until the end, which of course is pretty typical of where the trial goes.

[00:15:29] Speaker 03:
You don't do the instructions until you're pretty close to the end.

[00:15:31] Speaker 03:
Yeah.

[00:15:31] Speaker 03:
Okay.

[00:15:32] Speaker 03:
I get it.

[00:15:32] Speaker 03:
Thank you.

[00:15:33] Speaker 03:
Thank you.

[00:15:33] Speaker 03:
Thank you, Your Honor.

[00:15:34] Speaker 00:
Council, since you were answering our questions, I'm going to put a minute and a half back on for you for rebuttal.

[00:15:39] Speaker 01:
Thank you, Your Honor.

[00:15:44] Speaker 00:
Mr. Herzog.

[00:16:03] Speaker 04:
Good morning your honors may please the court David Herzog for the United States.

[00:16:07] Speaker 04:
I was not trial counsel below I don't just first turn to your honors questions about the entrapment instruction on count to First under Spence this court's case on whether or not the entrapment instruction should be given the defendant has to show some evidence of both Inducement and lack of predisposition and just chronologically here

[00:16:28] Speaker 04:
The defendant's post arrest statement was after the first arrest.

[00:16:33] Speaker 04:
So by the time the second contact even had happened, he had already admitted that for years he had had a prior.

[00:16:40] Speaker 04:
sexual interest in children, which is the thing he would, to show predisposition.

[00:16:44] Speaker 03:
But that doesn't mean there was no inducement.

[00:16:46] Speaker 03:
That is to say, on count two, he sets out on an adult website and immediately the sting operation comes back with a minor.

[00:16:55] Speaker 03:
That's correct, Your Honor.

[00:16:56] Speaker 03:
He didn't set out that second time around looking for a minor.

[00:16:59] Speaker 03:
So it sounds as though... For me, that's already enough evidence of inducement.

[00:17:04] Speaker 03:
I understand all the other things, but it sounds as though he's being induced.

[00:17:09] Speaker 03:
It wasn't very hard to get him there.

[00:17:10] Speaker 03:
I get that.

[00:17:11] Speaker 03:
But it sounds like he was induced.

[00:17:12] Speaker 03:
That's not what he was looking for when he went onto the website.

[00:17:15] Speaker 04:
And if the test, Your Honor, were mere opportunity, is enough for inducement, then I think the court might have a better plan.

[00:17:21] Speaker 03:
Opportunity.

[00:17:21] Speaker 03:
I didn't say opportunity.

[00:17:22] Speaker 03:
I said inducement.

[00:17:23] Speaker 03:
He was induced.

[00:17:24] Speaker 03:
He says, I'm looking for an adult.

[00:17:26] Speaker 03:
The sting operation says, hey, I got a minor for you.

[00:17:29] Speaker 03:
And then, of course, he takes the bait.

[00:17:32] Speaker 03:
And he does it immediately.

[00:17:33] Speaker 03:
I get that.

[00:17:34] Speaker 04:
I hear you, Your Honor.

[00:17:35] Speaker 04:
My point on inducement is that inducement is opportunity plus.

[00:17:39] Speaker 04:
plus something else.

[00:17:40] Speaker 04:
That's Jacobson and Pullman.

[00:17:43] Speaker 03:
Plus inducement.

[00:17:44] Speaker 03:
That is to say, it was the government that starts out with, I got a minor for you.

[00:17:50] Speaker 03:
He did not start out saying, I want a minor.

[00:17:52] Speaker 03:
He starts out, I want an adult.

[00:17:54] Speaker 04:
Yes, Your Honor.

[00:17:55] Speaker 04:
The case law on what constitutes inducement is not what Your Honor is talking about, which is mere opportunity.

[00:18:01] Speaker 04:
It is opportunity plus pressure.

[00:18:03] Speaker 04:
I'm not talking about opportunity.

[00:18:05] Speaker 04:
What do you mean opportunity?

[00:18:06] Speaker 04:
If I understand the court correctly, what the court's saying is on the second operation, when the defendant said, I'm looking for an adult, and the agent, the undercover federal agent, said, I'm actually a minor, I'm 13, but I'm very mature, at that point, the government had made an opportunity.

[00:18:23] Speaker 03:
I see what you're saying.

[00:18:24] Speaker 04:
The court's case law is that to meet the inducement standard, it's higher than mere opportunity, it's inducement plus pressure.

[00:18:30] Speaker 03:
I would say opportunity, but I might say something stronger, had made an offer.

[00:18:35] Speaker 03:
That is to say, I am a minor.

[00:18:37] Speaker 03:
Hey, let's go.

[00:18:38] Speaker 03:
It wasn't just minors out there in the world in some abstract fashion.

[00:18:42] Speaker 03:
It was, here is a minor.

[00:18:45] Speaker 03:
I am offering you a minor.

[00:18:46] Speaker 04:
Yes, and I would submit to the court under Pullman and the Supreme Court's case in Jacobson, that is opportunity.

[00:18:52] Speaker 04:
It is not inducement, because inducement requires opportunity plus something else, which is typically excessive pressure.

[00:19:00] Speaker 04:
So when the officer says, I'm 13 but very mature, is that a problem for you?

[00:19:04] Speaker 04:
and the defendant continues to engage, I don't think this legal standard has been met of opportunity plus something else.

[00:19:12] Speaker 02:
What if you added to that that the officer pursues him for three months, or however long it was, with texts, with photos, and that he ultimately never shows up having the opportunity to do that on three separate occasions?

[00:19:33] Speaker 02:
Isn't that some evidence that would allow the jury instruction?

[00:19:40] Speaker 04:
I would submit to the court respectfully, no, for two reasons.

[00:19:42] Speaker 04:
The first is that I continue to think that what happened in the entire course of the second operation with Officer Dramis Sunny, all of that was, as the district court found,

[00:19:52] Speaker 04:
putting a bait on a hook in the water.

[00:19:55] Speaker 04:
There was no excessive pressure, offers of money, something else in addition to opportunity.

[00:20:01] Speaker 04:
And that's what this court and the Supreme Court require for inducement.

[00:20:04] Speaker 04:
So on the two prongs, inducement, lack of predisposition, even on inducement for Sonny, I would submit to the court that the facts do not show anything beyond putting the bait in the water, which is what the district court found.

[00:20:16] Speaker 04:
So I would submit to the court respectfully, no, that the defendant failed to establish that he was induced.

[00:20:23] Speaker 04:
We all agree the opportunity was put forth when the officer responded, I'm 13, but I'm mature.

[00:20:30] Speaker 04:
And the defendant continued to engage, continued to engage.

[00:20:32] Speaker 00:
Counsel, let's talk about US versus Cortez, our case here in the Ninth Circuit, where we consider five factors.

[00:20:38] Speaker 00:
Let's go through those factors.

[00:20:39] Speaker 00:
OK, first one, the character reputation of the defendant, including any prior criminal record.

[00:20:45] Speaker 04:
Well, it's meant to the court that for the second one what the what the district court was relying on was that Less than a month earlier the defendant had showed up in in Yakima to have sex with two minors So although he did not have a prior conviction his conduct under the first court test factor is I think favoring the government because he had just done it He had just showed up to have sex with an 11 year old a 13 year old Well, you know that doesn't say conduct is his character or reputation

[00:21:11] Speaker 04:
Including prior criminal record so what you can't quite get to record you got to charge And it doesn't say conduct you said conduct, but that does not what the factor said your honor I would submit to the court that he's a person who has the character of a sexual interest in children that he had acted on Okay, number two whether the suggestion of the criminal activity was initially made by the government on the second set

[00:21:36] Speaker 04:
What the officer said was, I am 13.

[00:21:41] Speaker 04:
Is that going to be a problem for you?

[00:21:45] Speaker 00:
But wasn't Sonny responding to an ad that he placed for people 21 or older?

[00:21:49] Speaker 04:
I think it was 21 to 99 or 21 to 77.

[00:21:51] Speaker 04:
Yes, Your Honor.

[00:21:53] Speaker 04:
And that's how this works, right?

[00:21:54] Speaker 04:
A defendant can't go on and say, I'm looking for sex with a 13-year-old.

[00:21:57] Speaker 04:
He has to say, I'm looking for sex with an adult.

[00:22:01] Speaker 04:
whoever responds indicates what they are.

[00:22:04] Speaker 04:
Listen, you lose on number two.

[00:22:05] Speaker 04:
Okay, move on.

[00:22:07] Speaker 00:
Yeah.

[00:22:08] Speaker 00:
Whether the defendant was engaged in the criminal activity for profit.

[00:22:12] Speaker 04:
I don't think that cuts one way or the other in this one.

[00:22:15] Speaker 00:
Okay.

[00:22:17] Speaker 00:
Evidence reluctance to commit the offense, only overcome by the repeated government inducement or persuasion.

[00:22:23] Speaker 00:
I'm not with you on that because I feel like from what I've read,

[00:22:28] Speaker 00:
He kept saying, oh, I really hope this isn't a sting operation.

[00:22:30] Speaker 00:
I'm not really sure I want to do this.

[00:22:32] Speaker 00:
And then he didn't even show up.

[00:22:33] Speaker 00:
How many times was it that they tried to set an appointment?

[00:22:37] Speaker 04:
The reason he didn't show up is that his mother got sick and he went to the hospital.

[00:22:39] Speaker 04:
It was not that he said, ah, I could never.

[00:22:42] Speaker 04:
He had a factual predicate for not showing up, which was that he was busy.

[00:22:47] Speaker 04:
So to the extent that you're looking at intent of mind for not showing up, he was very clear that the reason he did not show up is that he was at the hospital with his mother.

[00:22:55] Speaker 00:
And the second time?

[00:22:57] Speaker 00:
Wasn't there the second time he was supposed to show up and he didn't show up?

[00:23:00] Speaker 04:
Yes, and I don't think the record is clear, as clear as to why he did or did not.

[00:23:05] Speaker 00:
OK.

[00:23:07] Speaker 00:
And then the nature of the inducement or persuasion supplied by the government.

[00:23:11] Speaker 00:
So was it just one time?

[00:23:12] Speaker 00:
Hey, I'm 13.

[00:23:12] Speaker 00:
I'm a chore.

[00:23:13] Speaker 00:
I mean, what do I make about the two months worth of texting back and forth?

[00:23:17] Speaker 04:
Well, I think the court can look at those two months of texting back and forth and see that the defendant is sending the person who has said she is 13 years old videos of his penis

[00:23:25] Speaker 04:
Videos of him ejaculating after masturbating, videos of him talking about, asking her about her pubic hair, asking her what kind of sex he's going to have with her.

[00:23:34] Speaker 04:
Under Getski, that is enticing conduct.

[00:23:39] Speaker 04:
So I would submit to the court that the idea that this defendant was overcome by the kind of pressure that constitutes an inducement under Pullman, six months of somebody who wanted to get married,

[00:23:52] Speaker 04:
and was looking for a family, and it was conditioned on, if you want to have sex with me, you have to have sex with my kids, in Pullman.

[00:23:58] Speaker 04:
That just does not exist here.

[00:23:59] Speaker 04:
This defendant is willing and ready.

[00:24:01] Speaker 04:
And I would submit to the court under Jacobson, the Supreme Court's case on entrapment, the leading case on this, what the Supreme Court says is, look, in a sting operation, prompt willingness to engage in the crime is often going to say there was no entrapment.

[00:24:15] Speaker 03:
You know, if this were argument to the jury and the jury had convicted, you totally win.

[00:24:22] Speaker 03:
But the question is whether or not the jury's even asked to decide the question.

[00:24:28] Speaker 04:
That's a much lower threshold.

[00:24:30] Speaker 04:
Your Honor, it is.

[00:24:31] Speaker 04:
And this court has articulated that threshold in Spence when this court said the defendant has to show some evidence on both.

[00:24:38] Speaker 04:
The defendant has to show inducement and

[00:24:40] Speaker 04:
Lack of predisposition.

[00:24:41] Speaker 04:
I would submit to the court, it sounds like I'm not winning this panel over on inducement on the second set.

[00:24:45] Speaker 04:
I submit that I should, but if I am not, I still win on predisposition, because this defendant, by the time he had communicated the first moment with Sonny, he had already admitted, I have had sexual fantasies about minors since my 20s.

[00:25:00] Speaker 04:
Hannah Montana, sex with the younger, is what he said in his post-arrest interview.

[00:25:04] Speaker 04:
That was under Jacobson, prior to his initial contact on the second stank.

[00:25:10] Speaker 04:
By definition, that is predisposition, and that's what Judge Bastion found.

[00:25:15] Speaker 02:
Is your argument that we don't even need to think about the Cortez factors because the predisposition, which I think is what Judge Bastion was thinking about, predisposition, that trumps everything?

[00:25:29] Speaker 04:
I would say the government wins both ways.

[00:25:31] Speaker 04:
Because this court has held, and the Supreme Court has held that, the defendant has to show some evidence, that's Spence, some evidence on both.

[00:25:39] Speaker 04:
Here, as soon as the defendant admitted in his post-arrest statement, I am predisposed, that was it.

[00:25:44] Speaker 02:
And what's your best case for that?

[00:25:46] Speaker 02:
Spence.

[00:25:46] Speaker 02:
Jacobson?

[00:25:47] Speaker 02:
Spence?

[00:25:47] Speaker 02:
Spence.

[00:25:48] Speaker 04:
But I think Jacobson also will get you there.

[00:25:52] Speaker 04:
But then, even if the court then looks to the reluctance factors, reluctance is undermined by predisposition.

[00:25:57] Speaker 04:
If he is predisposed to have sex with a 13-year-old, he is not as reluctant to have sex with a 13-year-old.

[00:26:03] Speaker 04:
So I submit to the court that although this court should not get to it because he loses on predisposition, as Judge Bashin found, and that's a factual determination, abuse of discretion, he also, if the court then does do the court's factors, he still loses on reluctance.

[00:26:20] Speaker 04:
Because he's not reluctant, he's predisposed.

[00:26:22] Speaker 04:
He said since his 20s, he has had a sexual interest in children, and what he said in the first interview was,

[00:26:28] Speaker 04:
that I've never acted on before, indicating that he was acting on it then.

[00:26:32] Speaker 04:
And that's in November.

[00:26:33] Speaker 04:
That's right, I think December 12th for the November conduct, well before the New Year's Eve conduct with Sonny.

[00:26:40] Speaker 04:
So both factually and legally, the court was correct not to give the entrapment instruction.

[00:26:47] Speaker 04:
And I want to say also, I think Judge Bastion evaluated the right law and came to the right facts on an abusive discretion standard.

[00:26:54] Speaker 04:
I don't think based after, look, this would be a different case.

[00:26:58] Speaker 04:
if the defendant's post arrest statement had not included, I've had a sexual interest in minors since my 20s.

[00:27:04] Speaker 04:
If he had not said that, the government would not have evidence of predisposition except in the second sting, the first sting, right?

[00:27:12] Speaker 04:
The evidence that he had a sexual interest in children in the second one is that he showed up to Yakima 80 miles away.

[00:27:19] Speaker 04:
That shows his predisposition to have sex with minors also.

[00:27:22] Speaker 04:
So by the time you get to the Sunny incident, the second one,

[00:27:25] Speaker 04:
Not only had he admitted his prior sexual interest since his 20s, he showed up in Yakima to have sex with an 11 and 13-year-old.

[00:27:32] Speaker 04:
That is also his evidence of predisposition.

[00:27:35] Speaker 04:
But once you have the interview where he admits it from since his 20s, that is it.

[00:27:41] Speaker 04:
At that point, the defendant has not shown some evidence of lack of predisposition.

[00:27:47] Speaker 04:
And for that reason, under Spence, he doesn't get the instruction.

[00:27:50] Speaker 04:
I always want to remind the court that is, of course, on an abuse of discretion standard, whether or not the instruction is proper, if the court gives the entrapment instruction, this court reviews de novo, was the instruction right?

[00:28:01] Speaker 04:
But when it's a factual determination, does the defendant get the instruction?

[00:28:06] Speaker 04:
That's abuse of discretion, because it's Judge Bastian who has listened to the interview, dealt with the briefing, heard trial, and I think we were in Rule 29 context, for your honor, for the timing.

[00:28:17] Speaker 04:
And so Judge Bastian is,

[00:28:19] Speaker 04:
in the best position to determine, as he did several times on the record, decided throughout the briefing, the government put the bait on the hook and Mr. Curry swam up and ate it.

[00:28:32] Speaker 04:
So I submit to the court that even if this court is concerned about inducement on the second sting, the United States would say there was no plus factor.

[00:28:42] Speaker 04:
It was opportunity and no more.

[00:28:44] Speaker 04:
based on the defendant's responses.

[00:28:46] Speaker 04:
But even if the court does find inducement on the second sting, it was proper for the court not to give the instruction because the defendant loses on predisposition.

[00:28:55] Speaker 04:
And under Spence, that is enough.

[00:28:57] Speaker 04:
That is the ball game.

[00:28:58] Speaker 04:
Once he fails, show some evidence on both.

[00:29:01] Speaker 03:
As a practical matter, he was convicted on both, sentenced on both, sentences to run concurrently.

[00:29:09] Speaker 03:
So I'm not sure what the practical difference is if we reverse on count two.

[00:29:16] Speaker 04:
This court has held that any... I mean, obviously we would send it back.

[00:29:20] Speaker 03:
I get that.

[00:29:21] Speaker 04:
Yes, the court would.

[00:29:23] Speaker 04:
But I would submit to the court that I think you're right, as a practical matter, the conviction on what it sounds like the court's fine with would be count one, that would stand.

[00:29:30] Speaker 04:
I see my time is running short.

[00:29:32] Speaker 04:
I do want to address the enticement issues, although it seems the court doesn't have as much trouble with that.

[00:29:37] Speaker 04:
This is Meek Makabagal.

[00:29:39] Speaker 04:
and other right about all it's the exact same fact that the mom says only communication with the mother she says I want the defendant to teach my girls about womanhood almost word for word about what the what said here and that was affirmed.

[00:29:52] Speaker 04:
I think that my friend Mr. Webster just has an awful lot of trouble getting around the precedent of this court.

[00:30:00] Speaker 04:
The other one that I want to just highlight for the court is Getzke, where there's no travel, right?

[00:30:03] Speaker 04:
The kid's in Montana, the defendant's in Louisiana, it's just letters that the kid never sees.

[00:30:08] Speaker 04:
The defendant is, the mom intercepts all those letters in Getzke, and this court says that, and this is the test, when the defendant initiates a conversation about sex, we have that, describes the sex acts, we have that, and proposes a rendezvous, he moved it forward to that night, he has crossed the line from preparation and, as this court said,

[00:30:28] Speaker 04:
nothing more is required.

[00:30:29] Speaker 04:
That's Getzke in 2007, and then McCarran in 2022 reaffirmed.

[00:30:34] Speaker 04:
When the defendant does those things, nothing more is required.

[00:30:36] Speaker 04:
So on the enticement, on the challenge to the enticement sufficiency of the evidence, this court's cases, I think, firmly foreclose that argument.

[00:30:53] Speaker 04:
that's essentially the government's argument.

[00:30:55] Speaker 04:
I would just highlight for the court, and I say this as a former law clerk to appellate judges, that the record that I think the court should review for the enticement is 4ER677 and following, that is the Chats, that is the defendant

[00:31:11] Speaker 04:
talking to the mother, who is the gatekeeper for the child, as the court has said.

[00:31:15] Speaker 04:
That's meek in Macabagal.

[00:31:17] Speaker 04:
What he's trying to do is convince the sex with the child.

[00:31:21] Speaker 04:
That is, I'll use more foreplay with Anna because she's a minor.

[00:31:25] Speaker 04:
May I have both of them at the same time or just one of them?

[00:31:31] Speaker 04:
That's sex with the children, not with the mother.

[00:31:33] Speaker 04:
And at one point, the defendant catches himself up because he says,

[00:31:37] Speaker 04:
kissing something you want to experience and the undercover says this isn't for me this is for my girls and the defendant's next text is yes is it so I'm sorry I meant is it something you want them to experience meaning the children so the argument that he was trying to have sex with the adult and not the children I think it's foreclosed by the defendant's own text messages and communications as this court has found communications are enough you don't need to travel but once you travel

[00:32:02] Speaker 04:
It's over on substantial step for attempt.

[00:32:05] Speaker 04:
Finally, I would just highlight what your honor remarked on, which is the watermelon lubricant, right?

[00:32:10] Speaker 04:
It wasn't the parents desired flavor.

[00:32:12] Speaker 04:
It was the child's desired flavor.

[00:32:14] Speaker 04:
So when the defendant said, do you want me to pick and the defendant initiated this part of the conversation, shall I pick up any particular flavor?

[00:32:21] Speaker 04:
And the mother says, Sam, the 13 year old Sam likes watermelon.

[00:32:25] Speaker 04:
get that if you can, if not anything but strawberry.

[00:32:28] Speaker 04:
And the defendant then goes to his preferred adult megastore castle, purchases watermelon, lubricant, and condoms, and shows up with them.

[00:32:36] Speaker 04:
This is a man who wanted to have sex with a 13-year-old, not with the mother.

[00:32:40] Speaker 04:
The evidence of that is clear.

[00:32:41] Speaker 04:
Certainly a rational jury could so conclude on this record.

[00:32:44] Speaker 00:
Thank you, counsel.

[00:32:45] Speaker 00:
You're well over time.

[00:32:50] Speaker 00:
OK, Mr. Webster, I said I'd give you a minute and a half.

[00:32:55] Speaker 01:
Thank you, Your Honor.

[00:32:56] Speaker 01:
I will just very briefly wrap up.

[00:32:59] Speaker 01:
Your Honor, first, you had suggested about our trial strategy with entrapment.

[00:33:06] Speaker 01:
And Your Honor, we did the questioning that we asked of the officers during the trial.

[00:33:12] Speaker 01:
We were trying to delay the foundation for an entrapment defense and to bring that together at closing argument.

[00:33:19] Speaker 01:
And so we had laid that foundation, but we're prevented from making that argument.

[00:33:24] Speaker 01:
I think through Jacobson and Pullman I disagree with my colleague here.

[00:33:31] Speaker 01:
I think that actually flips the other way.

[00:33:33] Speaker 01:
As far as the meeting

[00:33:37] Speaker 01:
or I guess Mr. Curry having fantasies and acknowledging that in his post-Miranda interview, he also immediately said he always pushed that out of his head.

[00:33:48] Speaker 01:
That was something that he said he never had intended on acting upon, acknowledging that it was wrong and acknowledging that he could get caught up in something of this nature, and then they keep going back after him.

[00:34:01] Speaker 01:
And then finally, just addressing

[00:34:07] Speaker 01:
The issue with the the medical situation with the mother in that particular meeting not taking place there was still another two months of continued conversations with multiple Suggested meetups that he never followed through on if your honors have no further questions.

[00:34:25] Speaker 01:
I'll leave it there All right.

[00:34:26] Speaker 00:
Thank you counsel and thank you to both of you.

[00:34:28] Speaker 00:
This matter is now submitted