United States Court of Appeals
`For the First Circuit
`
`
`
`
`No. 19-1538
`
`UNITED STATES OF AMERICA,
`
`Appellee,
`
`v.
`
`RAFAEL PÉREZ-RODRÍGUEZ,
`
`Defendant, Appellant.
`
`
`
`
`
`
`
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF PUERTO RICO
`
`[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
`
`
`
`Before
`
`Kayatta, Lipez, and Barron, Circuit Judges.
`
`
`Linda A. Backiel for appellant.
`Julia Meconiates, Assistant United States Attorney, with whom
`W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-
`Almonte, Assistant United States Attorney, were on brief, for
`appellee.
`
`
`
`September 2, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`For the First Circuit
`
`
`
`
`No. 19-1538
`
`UNITED STATES OF AMERICA,
`
`Appellee,
`
`v.
`
`RAFAEL PÉREZ-RODRÍGUEZ,
`
`Defendant, Appellant.
`
`
`
`
`
`
`
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF PUERTO RICO
`
`[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
`
`
`
`Before
`
`Kayatta, Lipez, and Barron, Circuit Judges.
`
`
`Linda A. Backiel for appellant.
`Julia Meconiates, Assistant United States Attorney, with whom
`W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-
`Almonte, Assistant United States Attorney, were on brief, for
`appellee.
`
`
`
`September 2, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`LIPEZ, Circuit Judge. Rafael Pérez-Rodríguez was
`
`convicted by a jury of attempted enticement of a minor for unlawful
`
`sexual activity in violation of 18 U.S.C. § 2422(b). He was
`
`apprehended through a sting operation in which a government agent
`
`created a profile on an adults-only dating application posing as
`
`a gay adult man, and, after being contacted by Pérez, then offered
`
`to arrange a sexual encounter with his minor "boyfriend." Pérez
`
`appeals on several grounds, including insufficiency of the
`
`evidence and the denial of a jury instruction on the entrapment
`
`defense. While we find Pérez's challenge to the sufficiency of
`
`the evidence meritless, we conclude that the district court
`
`committed plain error in failing to give the entrapment
`
`instruction. We therefore vacate the conviction and remand for a
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`new trial.
`
`I.
`
`In 2015, Ryan Seig, a special agent with the child
`
`exploitation unit of Homeland Security Investigations ("HSI"),
`
`conducted a sting operation using the geosocial networking
`
`application Grindr. Agent Seig testified that the purpose of the
`
`application is "to talk and usually meet with someone else who
`
`shares your interests." On cross-examination, he added "it's
`
`social networking among homosexuals." Grindr describes itself as
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`"the largest social networking app for gay, bi, trans, and queer
`
`people." About, Grindr, https://www.grindr.com/about/ (last
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`- 2 -
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`
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`visited August 25, 2021). Grindr allows users to create profiles
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`and to exchange messages with other users with profiles in their
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`geographic area. Per Agent Seig's testimony, "[a] profile is a
`
`small blurb about what you are looking for, possibly what you look
`
`like, and sort of a general description of who you are and what
`
`you want." Grindr requires users to be eighteen years of age or
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`older and does not allow individuals to use the platform to seek
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`sexual encounters with minors.
`
`Agent Seig created a Grindr profile under the name "Dave
`
`W." He wrote in his profile, "Looking for young fun or to share
`
`my young fun." He testified that he chose this text as a "veiled"
`
`reference to a sexual encounter with a minor, explaining that
`
`"someone who was familiar with the way pedophiles communicate on
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`the internet could read this and know what it meant." The profile
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`also described "Dave W." as "Muscular, White, Single."
`
`
`
`
`
`On December 30, 2015, the Dave undercover profile
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`received a message from a profile with the name "Mirando," a
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`profile created by Pérez. Dave and "Mirando" exchanged messages
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`on Grindr, and then moved to text messaging. The precise language
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`of the messages is crucial to this case.1 Thus, we reproduce key
`
`parts of the exchange in full. The conversation began as follows:
`
`
`
`
`1 The messages were primarily in Spanish. We draw from the
`certified English translations that were admitted into evidence.
`
`- 3 -
`
`
`
`Pérez: Hello what are you doing?
`
`Dave: Hey what's up
`
`Pérez: Let's see you
`
`Dave: Cool, do you like really young guys?
`
`Pérez: Yes
` Age?
` I started at 8
`
`
`Dave: Me? 35, but my boyfriend is young
`
`
`Pérez: Hahhaha Okk
`
` How old is he?
`
` What does your boyfriend like?
`
`Dave: He likes everything :)
`
` He is very young, what age do you like?
`
`Pérez: The younger the better
`
` I don't discriminate
`
` I started at 8 hehehhe
`
` So you tell me
`
` What does he like to do?
`
` We are close, we can come up with some fun
`
` From there up I do it all
`
`Dave: Do you understand English? I speak only a little
` Spanish
` My boyfriend is 11 years old. Do you want to play
` with him?
`
`
`Pérez: Mmmm yessss
`
` Where is he?
`
` I speak little only a little English?
`
` Share pics??
`
` You tell me when and where???
`
` Do you prefer to call?
`
` Yes, I want to play
`
`Dave: We live in[] San Juan.
`
` We're free next week.
`
`
`
`
`- 4 -
`
`
`
`Pérez: Ok
`
` Have whatsapp?
`
` Send me pics?
`
` Can you now?
`
`Dave: Yes I'm busy with a party
`
`Pérez: Ok, but you are close
`
` Can you get away?
`
` Can you*
`
`Dave: Last night, no haha :)
`
` Do you want anal with him or oral?
`
`Pérez: Everything
`
` I want the 3 of us to play
`
` You for a while and me for a while. You like?
`
`Dave: Me too
`
` Yes
`
`Pérez: Send me something to see you playing with him
`
` I like taboo
`
`Dave: Me too :)
`
`Pérez: Have a pic?
`
` Are you with him at the party
`
`Dave: I don't want to send a pic because I won't know
` who you are until we meet
` Yes, he is here
` You can take pics if this happens. Just no faces
` I don't have whatsapp
` But I can text
`
`
`
`
`
`
`Pérez: Text is better
`
`
`Pérez then sent two photos of himself to "Dave," and Dave provided
`
`Pérez with a telephone number.
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`The next day, December 31, Pérez sent Dave a text message
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`to continue the conversation. He again expressed sexual interest
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`in "Dave's" minor "boyfriend." Dave messaged, "we're going to
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`- 5 -
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`
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`have a lot of fun, friend. :) . . . Him you and I[.]" Pérez
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`requested pictures of "Dave." Pérez asked Dave questions about
`
`his relationship with the minor. ("How did you get him?" and "How
`
`long have you had him?").
`
`On January 1, Pérez messaged Dave and said, "Happy New
`
`Year." He again said, "I want your boyfriend." Pérez and Dave
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`discussed their availability for a meeting that week. They
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`exchanged messages about what Pérez wants to do during the sexual
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`encounter. Pérez asked several questions about how Dave met the
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`minor, what the minor's parents think, and whether "Dave's" family
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`knows about the minor. "Dave's" answers included "He's my friend"
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`and "I am a 'good influence.'"
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`On January 2, Dave initiated the conversation. He
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`writes, "Just saying hi. Very busy with family! Happy new
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`year ;)[.]" The following day, Dave and Pérez discussed meeting.
`
`Pérez: Let's see each other tomorrow to get to know you
`
`Dave: Ok, what time can you do it?
`
`Pérez: Write me when you wake up
`
` I get up early
`
` Where should we meet?
`
`Dave: Are we using your house or mine for the threesome?
`
`Pérez: Yes. I live alone. But if it's at home, then it
` should be in the afternoon
` But I want to see you before to get to know you
` and see what you want to do so that I'm
` comfortable
`
`Dave: I understand. Me too.
`
`- 6 -
`
`
`
`Pérez: Ok
`
`Dave: Where is a good place for us all to meet?
`
`Pérez: Where should we meet
`
`Dave: We can meet and then go to your house for sex with
` all of us?
` I can meet anywhere. It doesn't matter. We'll
` talk in the morning when you know more concerning
` your schedule
`
`Pérez: Yes
`
` Depends on what we talk about and we'll go
`
` I am free. Write to me tomorrow.
`
`Pérez then requested a picture of Dave again. He asked Dave
`
`several more questions about his relationship with the minor. Dave
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`said that the minor is "excited, happy" about the planned sexual
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`encounter. They agreed to meet at Guaynabo Plaza. Pérez stated
`
`"first I see you" and asked "Can you come alone?" Dave replied,
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`"I can leave him at my place and you can follow me there, ok?"
`
`Pérez responded, "Yes."
`
`The following morning, Monday, January 4, Dave started
`
`the conversation again, initiating this exchange:
`
`Dave: Can you meet at 3?
`
`Pérez: Ok
`
`Dave: Cool
`
`Pérez: Ok
`
`Dave: I spoke with him and he's excited :)
`
` He's worrie[d] about what clothes to bring
`
` LOL
`
` What parking do you want to meet in?
`
` Are you busy?
`
`- 7 -
`
`
`
`
`Pérez: Hahahhahha
`Go to Guaynabo Plaza and I'll tell you where
`we'll meet
`Remember that I want to talk to you first. I
`need to feel safe.
`
`
`Dave: Yes, me too, it's a good idea.
`
` I am also scared.
`
`Pérez: That's why I want to see you by yourself.
`
` I would like to know you first.
`
`Dave: Yes, he will be at my house
`
`Pérez: Ok
`
`Dave: Waiting with the XBOX and beers LOL
`
`Pérez: What are you like, physically?
`
` Mmmmm
`
` I like beer
`
` He doesn't get in trouble for drinking?
`
`Dave: Like in my profile.
`
` 5'9" or 5'10". Brown hair.
`
`Pérez: Gym body?
`
`Dave: Yes, I lift weights 4-5 days a week
`
` I am not fat
`
`Pérez: And what's he like?
`
`Dave: Skinny, like a young guy. He is Boricua, with
` short hair.
`
`
`Pérez: Ok
`
`Dave: He likes soccer jerseys?
`
` He's very intelligent and friendly
`
`Pérez: Let's see one another now to talk and be horny
` about what we're going to do.
`
`
`
`- 8 -
`
`
`
`The two men eventually agreed to meet at the Martinez Nadal train
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`station at 4 p.m.
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`At the appointed time, Agent Seig drove to the station
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`and parked his vehicle in the parking lot. Seig had informed other
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`members of his unit about the meeting, and several additional HSI
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`agents were also waiting in the parking lot. Pérez drove into the
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`parking lot, pulled up alongside Agent Seig's vehicle, and got out
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`of his car. HSI agents immediately arrested him.
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`On January 27, 2016, a grand jury returned an indictment
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`charging Pérez with one count of attempted enticement of a minor
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`in violation of 18 U.S.C. § 2422(b). Prior to commencement of the
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`jury trial, the parties submitted proposed jury instructions.
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`Pérez filed a separate ex parte request for an entrapment jury
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`instruction.
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`A two-day jury trial was held beginning on May 15, 2017.
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`The government's case primarily consisted of Agent Seig's
`
`testimony and the transcripts of the Grindr and text messages.2
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`Pérez did not present any witnesses.3 At the close of the evidence,
`
`
`2 The government also presented testimony from two other HSI
`agents present at the arrest. An AT&T security manager also
`explained how he confirmed that the phone which sent the messages
`belonged to Pérez.
`
` 3
`
` Pérez attempted to present character witnesses, but the
`court excluded the testimony as impermissible under the Federal
`Rules of Evidence because there was no pertinent character trait
`associated with the crime charged.
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`- 9 -
`
`
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`Pérez moved for acquittal under Rule 29. The district court denied
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`the motion. The parties participated in a charging conference,
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`which was not recorded. Nevertheless, the record indicates that
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`Pérez renewed his request for an entrapment jury instruction at
`
`that conference because the district court denied the entrapment
`
`instruction in a docket entry, stating, "The ruling is based on
`
`the arguments presented by the government and defendant's response
`
`during the charging conference in connection with predisposition.
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`In the end, the evidence presented at trial did not justify an
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`entrapment instruction." Before instructing the jury, the court
`
`asked the parties if there were "any objections to the
`
`instructions." Pérez did not raise any objections at that time.
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`After charging the jury, the district court did not invite
`
`objections from the parties. Pérez did not raise any objection.
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`The jury deliberated for less than one hour and returned a guilty
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`verdict. On May 14, 2019, Pérez was sentenced to 151 months of
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`incarceration.
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`Pérez timely filed this appeal. In addition to
`
`challenging the sufficiency of the evidence, he asserts that the
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`district court erred in rejecting his request for an entrapment
`
`instruction.4
`
`
`4 Pérez raises four additional claims of error: (1) inadequate
`questioning during voir dire, (2) violations of the Jones Act, see
`48 U.S.C. § 864 (requiring that all trial proceedings in the
`
`
`- 10 -
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`
`
`II.
`
`We review de novo the district court's denial of Pérez's
`
`properly preserved claim that the evidence presented at trial was
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`insufficient to support the jury's verdict. See United States v.
`
`Tanco-Baez, 942 F.3d 7, 15 (1st Cir. 2019). In evaluating a
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`sufficiency of the evidence claim, "we examine the evidence, both
`
`direct and circumstantial, in the light most favorable to the
`
`prosecution and decide whether that evidence, including all
`
`plausible inferences drawn therefrom, would allow a rational
`
`factfinder to conclude beyond a reasonable doubt that the defendant
`
`committed the charged count or crime." United States v. Velázquez-
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`Aponte, 940 F.3d 785, 798 (1st Cir. 2019) (quoting United States
`
`v. Díaz-Rosado, 857 F.3d 116, 120–21 (1st Cir. 2017)).
`
`A. The Elements of the Offense
`
`Pérez was found guilty of violating 18 U.S.C. § 2422(b),
`
`which provides:
`
`Whoever, using the mail or any facility or
`means of interstate or foreign commerce, or
`within the special maritime and territorial
`jurisdiction of the United States knowingly
`persuades, induces, entices, or coerces any
`individual who has not attained the age of 18
`
`
`District of Puerto Rico be conducted in English), and the Court
`Reporter Act, see 28 U.S.C. § 753(b) (requiring federal court
`proceedings to be recorded verbatim), (3) improper opinion
`testimony, and (4) improper exclusion of a character witness.
`Except for some observations on the voir dire process, we do not
`address the other issues raised given our conclusion that Pérez's
`conviction must be vacated on the basis of the court's failure to
`give an entrapment instruction.
`
`- 11 -
`
`
`
`years, to engage in prostitution or any sexual
`activity for which any person can be charged
`with a criminal offense, or attempts to do so,
`shall be fined under this title and imprisoned
`not less than 10 years or for life.
`
`To support a conviction under the attempt portion of the statute,
`
`the government must show that the defendant attempted to "(1) use
`
`a facility of interstate commerce (2) to knowingly persuade,
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`induce, entice, or coerce (3) an individual under the age of 18
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`(4) to engage in illegal sexual activity."5 United States v. Berk,
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`652 F.3d 132, 138 (1st Cir. 2011) (quoting United States v.
`
`Gravenhorst, 190 F. App'x 1, 3 (1st Cir. 2006) (per curiam)).
`
`To prove an attempt, the government must establish both
`
`a specific intent to commit the substantive offense and a
`
`substantial step toward its commission. Id. at 140. Hence, for
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`conviction under § 2422, the specific intent required is the intent
`
`to persuade, induce, entice, or coerce a minor into engaging in
`
`illegal sexual activity. We have interpreted this requirement as
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`broadly requiring an intent "to achieve a mental state -- a minor's
`
`assent -- regardless of the accused's intentions vis-à-vis the
`
`actual consummation of sexual activities with the minor." United
`
`States v. Dwinells, 508 F.3d 63, 71 (1st Cir. 2007) (emphasis
`
`omitted).
`
`
`5 Here, the government argued, the illegal sexual activity
`was sexual assault under Puerto Rico law. See P.R. Laws Ann. tit.
`33, § 5191(a) (defining sexual assault to include sex with someone
`under age sixteen).
`
`- 12 -
`
`
`
`A substantial step toward commission of an offense is
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`"less than what is necessary to complete the substantive crime,
`
`but more than 'mere preparation.'" Berk, 652 F.3d at 140 (quoting
`
`United States v. Piesak, 521 F.3d 41, 44 (1st Cir. 2008)). This
`
`requirement serves to "distinguish between those who express
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`criminal aims without doing much to act on them and others who
`
`have proved themselves dangerous by taking a substantial step down
`
`a path of conduct reasonably calculated to end in the substantive
`
`offense." United States v. Doyon, 194 F.3d 207, 211 (1st Cir.
`
`1999). We have found that a variety of actions, including actions
`
`short of meeting the minor in person, can constitute a substantial
`
`step toward a § 2422(b) offense. See United States v. Rang, 919
`
`F.3d 113, 121 (1st Cir. 2019) (defendant reserved hotel room and
`
`sought consent from the minor's mother for a "sleepover" with the
`
`minor); Berk, 652 F.3d at 140 (defendant offered to help a woman
`
`find housing in exchange for sex with her daughter and sent the
`
`woman leads about homes for rent); Gravenhorst, 190 F. App'x at 4
`
`(defendant sent minors sexually explicit messages and proposed
`
`meeting in person). But see Berk, 652 F.3d at 140-41 (noting that
`
`"explicit sexual talk alone" does not constitute a substantial
`
`step toward a § 2422(b) offense (citing United States v. Gladish,
`
`536 F.3d 646, 652 (7th Cir. 2008))). Direct communication with a
`
`minor, real or fictitious, is not required. A person can commit
`
`a § 2422(b) offense by communicating with an adult who acts as an
`
`- 13 -
`
`
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`"intermediary" between the defendant and a minor. See Berk, 652
`
`F.3d at 140.
`
`B. The Sufficiency of the Evidence Against Pérez
`
`On the first element, intent, Pérez argues that the
`
`government failed to provide enough evidence to allow a jury to
`
`conclude that he intended to persuade, induce, entice, or coerce
`
`a minor. He asserts: "There was no reason to do that [i.e.,
`
`persuade, induce, entice, or coerce] here because the agent offered
`
`[a minor] he presented as already ready, willing, and experienced,
`
`'lik[ing] everything.'" In his view, the evidence, at most, could
`
`allow the jury to conclude that Pérez communicated with an adult
`
`with the intention of "bringing about a meeting at which prohibited
`
`conduct was supposed to, or likely to occur."
`
`
`
`
`
`Pérez's focus on the fictitious minor's supposed sexual
`
`experience and willing participation is seriously misplaced. A
`
`child who has previously been sexually abused or is otherwise
`
`depicted as "experienced" can still be a victim of persuasion,
`
`inducement, enticement, or coercion. See United States v. Hinkel,
`
`837 F.3d 111, 116 (1st Cir. 2016) (upholding a § 2422(b) conviction
`
`where the minor was described as "15 but experienced"). And a
`
`child's expression that he "like[s] it" and wants to engage in
`
`illegal sexual activity does not mean that persuasion, inducement,
`
`enticement, or coercion could not possibly play a role. See
`
`Dwinells, 508 F.3d at 67 (upholding a § 2422(b) conviction where
`
`- 14 -
`
`
`
`law enforcement agents posing as minors responded positively to
`
`the defendant's sexual advances, including one fictitious minor
`
`who "assured him that she would consent" to sexual activity in
`
`person). To suggest otherwise is to misunderstand the nature of
`
`child sexual abuse. See United States v. Gonyer, 761 F.3d 157,
`
`167 (1st Cir. 2014) (describing the process of a sexual predator
`
`"grooming" a child to form an emotional connection which would
`
`lead the child to be persuaded to engage in sexual activity);
`
`United States v. Brand, 467 F.3d 179, 203 (2d Cir. 2006) ("Child
`
`sexual abuse is often effectuated following a period of 'grooming'
`
`and the sexualization of the relationship." (quoting Sana Loue,
`
`Legal and Epidemiological Aspects of Child Maltreatment, 19 J.
`
`Legal Med. 471, 479 (1998))).
`
`It was reasonable for the jury to believe that the
`
`fictitious eleven-year-old boy Dave "offered" to Pérez would not
`
`participate in the planned sexual encounter absent persuasion,
`
`inducement, coercion, or enticement -- at a minimum, "implicit
`
`coaxing or encouragement." See United States v. Montijo-Maysonet,
`
`974 F.3d 34, 42 (1st Cir. 2020) ("[T]he four verbs Congress
`
`used -- including 'entice' and 'induce' -- plainly reach implicit
`
`coaxing or encouragement designed to 'achieve . . . the minor's
`
`assent' to unlawful sex[.]" (second omission in original) (quoting
`
`Dwinells, 508 F.3d at 71)). And it was reasonable for the jury to
`
`conclude that Pérez must have been cognizant of that reality and
`
`- 15 -
`
`
`
`was relying on Dave to affect his "boyfriend's" mental state such
`
`that the minor would participate. Although Agent Seig's text
`
`messages can be read to imply that Dave had already groomed the
`
`minor for the sexual activity, the jury could reasonably infer
`
`that Pérez intended to use Dave as an intermediary to "entice"
`
`(meaning "to draw on by arousing hope or desire: allure, attract,"
`
`id.) the minor into participating in illegal sexual activity with
`
`Pérez on January 4, 2016.
`
`On the second element, substantial step, Pérez
`
`emphasizes that he never communicated directly with a minor. Such
`
`communication is not required to establish a substantial step
`
`towards commission of a § 2422(b) offense. In Berk, we recognized
`
`that "a defendant can be convicted [of a § 2422(b) offense] even
`
`if the relevant communications are with an intermediary." 652
`
`F.3d at 140. Berk involved communications between the defendant
`
`and parents of minor children, but we did not state that only
`
`parents could serve as intermediaries in the commission of a
`
`§ 2422(b) offense. See id. Indeed, the rationale for relying on
`
`a sexual predator's use of intermediaries extends to any adult
`
`with sufficient influence or control over a minor. As explained
`
`by the Third Circuit, in an opinion cited in Berk, § 2422(b) is
`
`"part of an overall policy to aggressively combat computer-related
`
`sex crimes against children[] [and] [i]t would be wholly
`
`inconsistent with the purpose and policy of the statute to allow
`
`- 16 -
`
`
`
`sexual predators to use adult intermediaries to shield themselves
`
`from prosecution." United States v. Nestor, 574 F.3d 159, 162 (3d
`
`Cir. 2009); see also Montijo-Maysonet, 974 F.3d at 42 ("Congress
`
`. . . meant to cast a broad net (consistent with the Constitution)
`
`to catch predators who use the Internet to lure children into
`
`sexual encounters." (citing H.R. Rep. 105-557, at 21 (1998), as
`
`reprinted in 1998 U.S.C.C.A.N. 678, 678–79)).
`
`The "broad net" plainly must cover a defendant who
`
`attempted to use any intermediary adult perceived to have
`
`sufficient sway to "lead a child to participate in sexual
`
`activity." See United States v. Douglas, 626 F.3d 161, 164 (2d
`
`Cir. 2010). The defendant's understanding of the nature and degree
`
`of the adult's control over the minor is a question of fact for
`
`the jury. Here, the jury could reasonably infer that an adult man
`
`whose "boyfriend" is a minor, and who confidently invites another
`
`man to have sex with the child, would have been viewed by the
`
`defendant as someone with the power to elicit the minor's assent
`
`to illegal sexual activity.6
`
`Pérez similarly argues a lack of evidence of a
`
`substantial step because the evidence showed he arrived at the
`
`
`6 Pérez mischaracterizes the evidence by describing Dave as
`"a part-time tutor" to the minor. While Dave did mention that the
`minor was his student, he more importantly described him as his
`"boyfriend" and a person with whom he had an ongoing sexual
`relationship for six months.
`
`- 17 -
`
`
`
`parking lot to meet Dave, not the minor. We agree with the district
`
`court that "the act of traveling to meet an intermediary . . . has
`
`been held sufficient to establish a 'substantial step.'" United
`
`States v. Pérez-Rodríguez, No. 16-041 2016, WL 7442650, at *2
`
`(D.P.R. Dec. 27, 2016) (citing Berk, 652 F.3d at 140). Drawing
`
`all inferences in favor of the government, a rational jury could
`
`find that Pérez's communications with Dave and his subsequent
`
`arrival at the meeting he arranged with Dave constituted a
`
`substantial step to persuade, induce, entice, or coerce a minor.
`
`Thus, there was sufficient evidence to convict and the motion for
`
`acquittal was properly denied.
`
`III.
`
`The district court declined to instruct the jury as to
`
`the elements of Pérez's primary defense, entrapment, because, in
`
`its view, the record did not contain sufficient evidence to warrant
`
`the instruction. Pérez argues that this omission denied him a
`
`fair trial.
`
`A. Standard of Review
`
`Preserved objections to the denial of a requested jury
`
`instruction are subject to plenary review. United States v. Joost,
`
`92 F.3d 7, 12 (1st Cir. 1996). If, however, the defendant fails
`
`to preserve his claim of entitlement to a jury instruction, the
`
`claim is forfeited, and we review the district court's decision
`
`under the plain error standard of Rule 52(b) of the Federal Rules
`
`- 18 -
`
`
`
`of Criminal Procedure. United States v. Baltas, 236 F.3d 27, 36
`
`(1st Cir. 2001). It has been the longstanding rule of this circuit
`
`to treat a challenge to jury instructions as forfeited if the
`
`defendant fails to object to the instructions after the judge has
`
`charged the jury, regardless of whether he previously brought the
`
`matter to the judge's attention. United States v. Wilkinson, 926
`
`F.2d 22, 26 (1st Cir. 1991) ("As we have repeatedly held, . . .
`
`[a] party may not claim error in the judge's charge to the jury
`
`unless that party 'objects' after the judge gives the charge but
`
`before the 'jury retires . . . .'" (quoting Fed. R. Crim. P. 30)),
`
`overruled on other grounds by Bailey v. United States, 516 U.S.
`
`137, 149 (1995). Though Pérez requested an entrapment instruction
`
`before the trial and argued for it at a charging conference, he
`
`did not lodge a post-charge objection to the denial of the
`
`instruction.7 Thus, Pérez's claim is subject to plain error
`
`review.
`
`To meet the heavy burden of establishing plain error, an
`
`appellant must show "(1) that an error occurred (2) which was clear
`
`or obvious and which not only (3) affected the defendant's
`
`substantial rights, but also (4) seriously impaired the fairness,
`
`
`7 Pérez also failed to make an objection when the judge invited
`objections on the record directly before instructing the jury.
`Even if Pérez had made such an objection, his claim would still be
`subject to plain error review under our precedent because he did
`not renew it after the instruction, and we hold parties strictly
`to that timing. See Wilkinson, 926 F.2d at 26.
`
`- 19 -
`
`
`
`integrity, or public reputation of judicial proceedings." United
`
`States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). The first
`
`prong, "error," consists of "[d]eviation from a legal rule."
`
`United States v. Olano, 507 U.S. 725, 732-33 (1993). The second
`
`prong requires that the error identified in the first prong is not
`
`"open to doubt or question," though an appellant can meet this
`
`requirement even in the "absence of a decision directly on point."
`
`United States v. Morales, 801 F.3d 1, 10 (1st Cir. 2015).8 To
`
`establish the third prong, the appellant must show that "it is
`
`reasonably probable that the . . . error affected the result of
`
`the proceedings." United States v. Latorre-Cacho, 874 F.3d 299,
`
`303 (1st Cir. 2017). Our analysis under the fourth prong is
`
`guided by our fundamental concern with "the public legitimacy of
`
`our justice system[,] [which] relies on procedures that are
`
`'neutral, accurate, consistent, trustworthy, and fair.'" Rosales-
`
`Mireles v. United States, 138 S. Ct. 1897, 1908 (2018) (quoting
`
`Josh Bowers & Paul H. Robinson, Perceptions of Fairness and
`
`
`8 We note that, in our circuit, the second prong is sometimes
`described as "clear and obvious error," e.g., United States v.
`Scott, 877 F.3d 42, 49 (1st Cir. 2017), while in other opinions it
`is phrased as "clear or obvious error," e.g., United States v.
`Aquino-Florenciani, 894 F.3d 4, 7 (1st Cir. 2018). As far as we
`can tell, there is no substantive difference between the two
`usages. In fact, we are unaware of any decision suggesting that
`the words "clear" and "obvious" have different meanings. We will
`use the "clear or obvious" formulation here, which appears to be
`the more frequent usage.
`
`- 20 -
`
`
`
`Justice: The Shared Aims and Occasional Conflicts of Legitimacy
`
`and Moral Credibility, 47 Wake Forest L. Rev. 211, 215–16 (2012)).
`
`The plain error standard is a difficult burden for any
`
`appellant to meet. See United States v. Gelin, 712 F.3d 612, 620
`
`(1st Cir. 2013) ("This multi-factor analysis makes the road to
`
`success under the plain error standard rather steep; hence,
`
`reversal constitutes a remedy that is granted sparingly."). It is
`
`a particularly challenging standard to meet in the context of an
`
`unpreserved objection to jury instructions. See United States v.
`
`Paniagua–Ramos, 251 F.3d 242, 246 (1st Cir. 2001) ("[T]he plain
`
`error hurdle, high in all events, nowhere looms larger than in the
`
`context of alleged instructional errors."). Nonetheless, on rare
`
`occasions, the severity of an error in instructing the jury does
`
`rise to the level of plain error and requires vacatur of the
`
`conviction. See, e.g., Latorre-Cacho, 874 F.3d at 310; United
`
`States v. Delgado-Marrero, 744 F.3d 167, 189 (1st Cir. 2014).
`
`B. The Entrapment Defense
`
`Entrapment provides a defense if law enforcement
`
`officers "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." Jacobson v. United States, 503 U.S. 540, 548 (1992);
`
`see United States v. Teleguz, 492 F.3d 80, 84 (1st Cir. 2007)
`
`("Congress could not have intended that its statutes were to be
`
`- 21 -
`
`
`
`enforced by tempting innocent persons into violations." (quoting
`
`Sherman v. United States, 356 U.S. 369, 372 (1958)). The defense
`
`has two prongs: (1) improper government inducement and (2) the
`
`defendant's lack of predisposition to commit the offense charged.
`
`Id.
`
`1. Improper Inducement
`
`Improper inducement, also referred to as "government
`
`overreaching," occurs when law enforcement agents engage in
`
`conduct "of the type that would cause a person not otherwise
`
`predisposed to commit a crime to do so." Hinkel, 837 F.3d at 117.
`
`The mere creation of an "opportunity to commit a crime" through a
`
`"sting" operation does not, in and of itself, constitute improper
`
`inducement. United States v. Gendron, 18 F.3d 955, 961 (1st Cir.
`
`1994) (quoting Jacobson, 503 U.S. at 550). Rather, "[a]n
`
`'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. "Plus" factors that may tip a
`
`government operation from a permissible sting operation to
`
`improper inducement include, for example, intimidation and
`
`threats, "dogged insistence," playing on the defendant's
`
`sympathies, and "repeated suggestions." Id. (collecting cases).
`
`"[E]ven very subtle governmental pressure, if skillfully applied,
`
`can amount to inducement." United States v. Poehlman, 217 F.3d
`
`- 22 -
`
`
`
`692, 701 (9th Cir. 2000). The judgment of whether government
`
`conduct has crossed the line from valid law enforcement tactic to
`
`improper inducement is often a difficult factfinding question for
`
`the jury because "the facts [may] fall somewhere in a middle ground
`
`between what is plainly proper and what is plainly improper."
`
`United States v. Acosta, 67 F.3d 334, 338 (1st Cir. 1995); see
`
`also id. ("To assume that we are dealing with a sharp boundary
`
`rather than a spectrum is an illusion.").
`
`2. Lack of Predisposition
`
`The second element of the entrapment defense turns on
`
`whether the "defendant was disposed to commit the criminal act
`
`prior to first being approached by Government agents." Jacobson,
`
`503 U.S. at 549. Our decision in Gendron sets forth our
`
`understanding of this element as follows:
`
`The right way to ask the question, it seems to
`us, is to abstract from -- to assume away --
`the present circumstances insofar as they
`reveal government overreaching. That is to
`say, we should ask how the defendant likely
`would have reacted to an ordinary opportunity
`to commit the crime. By using the word
`"ordinary," we mean an opportunity that lacked
`those special features of the government's
`conduct that made of it an "inducement," or an
`"overreaching."
`Was
`the
`defendant
`"predisposed" to respond affirmatively to a
`proper, not to an improper, lure?
`
`Gendron, 18 F.3d at 962 (citation omitted). The purpose of this
`
`predisposition inquiry is to determine whether the defendant is
`
`"someone who would likely commit the crime under the circumstances
`
`- 23 -
`
`
`
`and for the reasons normally associated with that crime, and who
`
`therefore p
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