Opinion
No. 09-10010.
Argued and Submitted May 11, 2010.
Filed May 20, 2010.
Andrew Huang, Keslie Stewart, Office of the U.S. Attorney, Oakland, CA, for Plaintiff-Appellee.
Gary Wayne Ross, California City, CA, pro se.
Richard Alan Tamor, Tamor Tamor, Oakland, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, United States District Judge, Presiding. D.C. No. 4:06-cr-00637-SBA-l.
Before: REINHARDT, W. FLETCHER and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Gary Wayne Ross appeals his conviction by a jury for attempted online solicitation of a minor in violation of 18 U.S.C. § 2422(b). He makes four arguments, none of which entitles him to relief.
First, Ross contends that there was insufficient evidence that he took a "substantial step" towards attempting to persuade, induce, entice or coerce a person under 18 years of age to engage in sexual activity that would constitute a criminal offense. See United States v. Goetzke, 494 F.3d 1231, 1234-35 (9th Cir. 2007); 18 U.S.C. § 2422(b). To prevail on this claim, Ross must demonstrate that "after viewing the evidence in the light most favorable to 1 the prosecution, [no] rational trier of fact 3 could have found [such a substantial step] beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). To constitute a substantial step, "the defendant's actions must go beyond mere preparation, and must corroborate strongly the firmness of the defendant's criminal intent." United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)). The internet chats, emails exchanges and phone calls between Ross and his alleged victim, not to mention his travel to a location that he thought was her home, provided the jury with ample evidence from which to conclude that he took such a step. See Goetzke, 494 F.3d at 1237.
Ross's other three arguments concern the defense of entrapment. To prevail on an entrapment defense, a defendant must both have been induced by the government to commit the crime and have lacked the predisposition to do so. See United States v. Poehlman, 217 F.3d 692, 698 (9th Cir. 2000). "An improper inducement goes beyond providing an ordinary opportunity to commit a crime. An inducement consists of an opportunity plus something else — typically, excessive pressure by the government upon the defendant or the government's taking advantage of an alternative, non-criminal type of motive." Id. at 701 (citations, alterations, and internal quotation marks omitted). Government agents simply presented Ross with an opportunity — a curious thirteen year old girl repulsed by neither Ross's age nor his taste in graphic pornography. They did nothing that could be categorized as pressure, solicitation, or altering "the normal balance between risks and rewards from commission of the crime." Id. at 702-03. Accordingly, there was no inducement.
Ross's second, third and fourth contentions all fail because of the absence of inducement. Ross's second contention is that he was entrapped as a matter of law, but without inducement there can be no entrapment. His third contention is that the district court gave an erroneous jury instruction as to the factors to be used to determine predisposition. Because there was no inducement, Ross's predisposition was of no moment and the instruction, erroneous or not, did not prejudice him. Finally, Ross contends that the district court erred by failing to give a limiting instruction barring the jury from considering stories downloaded by Ross some months after his arrest when determining his predisposition. Again there was no prejudice because there was no inducement and hence no entrapment, regardless of Ross's predisposition.