United States of America v. Gerald S. Sewell

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2844
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
GERALD S. S EWELL,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:20-cr-30098-NJR-1 — Nancy J. Rosenstengel, Chief Judge.
____________________
A RGUED A PRIL 2, 2024 — DECIDED J UNE 10, 2024
____________________
Before R OVNER , HAMILTON , and S CUDDER , Circuit Judges.
S CUDDER , Circuit Judge. We face another appeal question-
ing the need to give the jury an entrapment instruction where
a law enforcement sting operation results in federal charges
for attempted enticement of a minor. Line drawing in this area
is difficult, for the law permits the use of sting operations to
solicit the crime but not to entrap—in short, not to induce
someone who is otherwise not predisposed to commit the
crime. This case falls on the easier side of the divide, as the

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2 No. 23-2844
undercover FBI agent who posed as a 15-year-old girl on
Craigslist did no more than solicit Gerald Sewell’s participa-
tion in sexual activity, while Sewell pressed for the encounter
to occur. On these facts, the district court committed no error
in denying Sewell’s request for a jury instruction on entrap-
ment. So we affirm.
I
A
On June 27, 2020, Gerald Sewell took to Craigslist seeking
a sexual encounter. He responded to a post on the “Missed
Connections” page and in short order found himself in a con-
versation with someone he believed was a 15-year-old girl
named Brionica but who turned out to be an undercover FBI
agent. The conversation, which lasted just under six hours,
quickly turned sexual, with the two planning to meet later the
same day. They exchanged photos, discussed their age differ-
ence, and in no uncertain terms conveyed their respective sex-
ual interests. That same afternoon Sewell drove across state
lines from Missouri to Illinois to what he believed was Bri-
onica’s home where he promptly found himself under arrest.
B
Federal charges followed, with Sewell being indicted both
for attempted enticement of a minor (18 U.S.C. § 2422(b)) and
for traveling across state lines with intent to engage in illicit
sexual conduct (18 U.S.C. § 2423(b)). He pleaded not guilty,
chose to go to trial, and asked the district court for a jury in-
struction on entrapment. The district court deferred ruling on
the motion until the close of evidence and then denied Sew-
ell’s request. The district court saw no evidence of persistent
persuasion by the undercover agent and no reluctance by

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No. 23-2844 3
Sewell. To the contrary, the court found the government
properly used the sting operation to solicit the crime without
overstepping and inducing Sewell.
The jury convicted Sewell on both counts. Section 2422(b)
carries a mandatory minimum of ten years’ imprisonment, so
the district court imposed concurrent ten-year sentences on
both counts.
Sewell now appeals, challenging the district court’s denial
of an entrapment instruction.
II
Our role as a court of review is to take a fresh and inde-
pendent look at Sewell’s challenge to the district court’s deci-
sion not to provide an entrapment instruction. See United
States v. Mercado, 53 F.4th 1071, 1079 (7th Cir. 2022).
A
Our en banc decision ten years ago in United States v. May-
field established a careful and durable framework for evaluat-
ing claims of government entrapment. 771 F.3d 417 (7th Cir.
2014). We explained that “[e]ntrapment is a defense to crimi-
nal liability when the defendant was not predisposed to com-
mit the charged crime before the intervention of the govern-
ment’s agents and the government’s conduct induced him to
commit it.” Id. at 420. The defense “has two distinct” but “con-
ceptually related” elements: (1) “government inducement”
and (2) “lack of predisposition.” Id. at 430. And the law enti-
tles a defendant to an entrapment instruction “whenever
there is sufficient evidence from which a reasonable jury
could find entrapment.” Id. at 429 (quoting Mathews v. United
States, 485 U.S. 58, 62 (1988)). In making that determination,
the district court must avoid “weigh[ing] the evidence or

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4 No. 23-2844
decid[ing] whether the defense is believable” and instead de-
termine if there is “more than a scintilla of evidence of entrap-
ment.” Mercado, 53 F.4th at 1079–80 (explaining that once the
defendant proffers some evidence on both prongs of the de-
fense, the burden of disproving entrapment shifts to the gov-
ernment).
Inducement, we have explained, “requires more than gov-
ernment solicitation of the crime,” as “the fact that the gov-
ernment’s agents initiated contact with the defendant and of-
fered an ordinary opportunity to commit the charged crime is
insufficient to raise an entrapment defense.” Mayfield, 771
F.3d at 433. We have described the “something more” that is
required as “plus factors,” Mercado, 53 F.4th at 1083, meaning
“some other government conduct that creates a risk that a per-
son who would not commit the crime if left to his own devices
will do so in response to the government’s efforts.” Mayfield,
771 F.3d at 434–35. Those factors, we elaborated in Mayfield,
might take many forms, including but not limited to:
repeated attempts at persuasion, fraudulent
representations, threats, coercive tactics, harass-
ment, promises of reward beyond that inherent
in the customary execution of the crime, pleas
based on need, sympathy, or friendship, or any
other conduct by government agents that cre-
ates a risk that a person who otherwise would
not commit the crime if left alone will do so in
response to the government’s efforts.
Id. at 435.
When it comes to the predisposition prong, the focus shifts
from the government to the defendant. Predisposition “refers

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No. 23-2844 5
to the likelihood that the defendant would have committed
the crime without the government’s intervention, or actively
wanted to but hadn’t yet found the means.” Id. at 436. The
necessary assessment is “chiefly probabilistic, not psycholog-
ical.” Id. at 428. As we explained in United States v. Anderson,
“Mayfield measures predisposition based not on why the de-
fendant might or might not commit the crime but on whether
the defendant would have committed the crime, more likely
than not, without the government’s inducement.” 55 F.4th
545, 553 (7th Cir. 2022) (emphasis in original).
B
District courts regularly encounter claims of entrapment
made by defendants charged with attempted enticement of a
minor as a result of a sting operation. Indeed, we see many
similar appeals, and two recent decisions help inform our ap-
plication of Mayfield’s framework to Sewell’s case.
In United States v. Anderson, we considered a challenge to
the district court’s denial of a requested entrapment instruc-
tion in circumstances where an undercover agent, posing as a
15-year-old, made at least eleven direct requests for a sexual
encounter over a two-day period. See id. at 550. Anderson re-
peatedly expressed reluctance, a desire not to go to jail, and
fear for the welfare of his daughter if he were to be convicted
and have to serve time. See id. at 554. But the undercover
agent did not relent, promising and then reassuring Anderson
that their relationship would remain secret. See id. As the time
of their planned meeting approached, Anderson again hesi-
tated but the agent pressed for the sexual rendezvous to occur
by “employ[ing] guilt” and remarking, I “just wish you
would have told me earlier. I was excited.” Id.

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6 No. 23-2844
Although observing that there was “no minimum number
of times the government must invite the defendant to commit
the crime” to constitute inducement, we concluded that Rob-
ert Anderson’s jury should have received an entrapment in-
struction. Id. at 555. We emphasized that the agent not only
was the first to “propose[] sex with an underage partner,” but
also then engaged in a two-day campaign of persistent “coax-
ing and persuad[ing]” despite Anderson’s reluctance
throughout the chat communications. Id. at 549–50. (While
that evidence sufficed to warrant an entrapment instruction,
the jury at Anderson’s second trial still convicted him, finding
the government disproved entrapment beyond a reasonable
doubt.)
We reached a contrary conclusion in United States v. Mer-
cado, where we affirmed the district court’s denial of an en-
trapment instruction because the government’s conduct did
not entail any Mayfield plus factors. See 53 F.4th at 1084. Rafael
Mercado exchanged numerous messages over the course of
five days with an undercover agent posing as a 15-year-old
girl named Alexis. See id. at 1074. Although the agent was the
first to allude to a sexual encounter, the record showed that
the sexual overture was nothing more than a “solicitation[] or
invitation[]”—not inducement. Id. at 1082. Rather than “re-
peatedly declin[ing] persistent government pressure,” Mer-
cado was the one who injected sexual content into the conver-
sation, including by asking for revealing photographs of
Alexis. Id. at 1081–82. Like the district court, we saw no error
in denying an entrapment instruction because the govern-
ment merely “furnished Mercado the chance to commit th[e]
crime on customary terms—a text conversation on a hook-up
website followed by a meeting.” Id. at 1085.

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No. 23-2844 7
III
Turning to Sewell’s case, the district court chose to focus
on the inducement prong, and we follow suit. See United
States v. Plowman, 700 F.3d 1052, 1057 (7th Cir. 2012) (explain-
ing that when evidence of inducement is lacking “there is no
need to consider predisposition” (quoting United States v. Pil-
lado, 656 F.3d 754, 764 (7th Cir. 2012)). Viewing the evidence
in the light most favorable to Sewell, we see no evidence of
inducement, only solicitation of the crime, which is insuffi-
cient to put the entrapment defense before the jury. See An-
derson, 55 F.4th at 555; Mercado, 53 F.4th at 1082.
A
Sewell urges us to focus our analysis on how the conver-
sation started, with the undercover agent (posing as Brionica)
introducing the prospect of sexual activity by expressing in-
terest in “a fun discreet time.” That conduct, Sewell insists,
constitutes inducement that permeated the ensuing discus-
sion. We are not persuaded.
Sewell’s general observation is accurate—yes, it was the
agent who first raised the prospect of a sexual encounter. But
that happened at the outset of a discussion that continued for
another four and a half hours and before the agent revealed
Brionica’s age—15. Put another way, the undercover agent
began the discussion with Sewell by, at most, soliciting his in-
terest in connecting to engage in sexual activity. The relevant
focus, however, is on what the agent said (and did not say)
and how Sewell reacted once Brionica’s age became known.
It is on that score that Sewell’s argument falters.
Focusing on the conversation that transpired after Bri-
onica revealed her age, Sewell took an active role in arranging

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8 No. 23-2844
their encounter. And he made plain that he wanted to meet to
engage in sexual activity: He kept the discussion focused on
sexually explicit activity, even offering and requesting ideas
for specific sex acts the two could engage in together.
An important detail also stands out from our review of the
chat transcript. At several points Brionica delayed responding
to Sewell—for example, after he asked a question or sought a
reaction to a suggestion. During many of these pauses, Sewell
did not wait for a response, but instead continued to send
messages asking where he and Brionica should meet, the time
he should arrive, and suggesting specific sexual activities the
two should engage in. One of the pauses lasted thirty-eight
minutes and ended when Sewell reinitiated the conversation
by asking for Brionica’s address for the seventh time.
The transcript leaves us of the clear view that it was Sewell
who encouraged someone he believed to be a 15-year-old girl
to meet for a sexual rendezvous. Rather than ratcheting up the
pressure, the agent posing as Brionica gave Sewell time to
consider his actions by responding slowly, frequently letting
ten or more minutes pass between messages. And time and
again Sewell, not Brionica, pressed to solidify plans for their
sexual encounter, ultimately leading to Sewell driving from
his home in Missouri to Illinois to meet her.
B
Sewell urges a different perspective, seeing his case as
analogous to the circumstances we considered in Anderson.
He identifies three points in the chat where, on his reading,
he hesitated and Brionica responded inducing him to commit
the crime. The problem with Sewell’s argument is not just that
three overtures on the part of the agent pales in comparison

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No. 23-2844 9
to the eleven in Anderson. See 55 F.4th at 555 (explaining there
is “no minimum number of times the government must invite
the defendant to commit the crime”). The more significant
problem is that in Anderson the agent employed other induc-
ing tactics that are absent from Sewell’s case here. Those tac-
tics included the agent’s repeated reassurances to keep the
sexual encounter a secret and use of guilt to quell Anderson’s
apprehension. See id. at 554–55.
We see nothing analogous here. Brionica did little to noth-
ing to reassure Sewell. Indeed, the transcript shows Sewell
needed no reassurance. For example, when Sewell was pre-
paring to drive to Illinois he hesitated, explaining: “I really
want to do this but you are under age for me. I wish you are
18.” After Brionica replied, “So I don’t get a choice??? I don’t
need to know ur real name,” Sewell pressed, “What about the
police, I want you for sure.” But after four minutes passed
without a response, Sewell chimed in by affirmatively saying,
“I’m on my way.” Rather than “repeatedly declining escalat-
ing government pressure,” Mercado, 53 F.4th at 1082, Sewell
set aside whatever misgivings may have crossed his mind, got
in his car, and drove across state lines to meet someone he
believed was 15 years old. Even if Brionica’s response could
be interpreted as guilt or a reassurance, it does not rise to the
level we found necessitated an entrapment instruction in An-
derson. See 55 F.4th at 555.
In the final analysis, the better comparison is between this
case and Mercado. Rafael Mercado, like Gerald Sewell,
“rais[ed] sexual topics,” solicited photographs, and repeat-
edly initiated contact with the agent. Mercado, 53 F.4th at
1081–82. Both seemed to, at some points, relish the idea of be-
ing with a 15-year-old child, id. at 1075, 1077, with Sewell

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10 No. 23-2844
remarking how he enjoyed “younger women.” Sewell, also
like Mercado, took the lead in arranging the meet-up in ex-
treme and graphic detail. See id. at 1075–77. In both cases, the
chat transcript reveals the defendant actively pursuing the
opportunity to commit the crime with minimal encourage-
ment on the part of the agent. See id. at 1081. While in Mercado
the agent was the first to express interest in “more than Net-
flix and chill,” we saw that comment as reflecting nothing
more than solicitation of the crime. Id. at 1076, 1081–82. The
same goes for Brionica’s remark that she was looking for “a
fun discreet time.”
Evaluating Sewell and Brionica’s conversation as a whole,
id. at 1081, the agent’s scant reassurances were unaccompa-
nied by any Mayfield plus factors. The “sting operation” that
culminated in Sewell’s arrest “mirror[ed] the customary exe-
cution of the crime charged” and the government’s efforts did
not amount to anything “more … either in terms of the char-
acter and degree of the government’s persistence or persua-
sion, or the nature of the enticement or reward.” Mayfield, 771
F.3d at 433. Unlike Anderson where the government’s frequent
requests were coupled with other plus factors including guilt,
55 F.4th at 555, the government’s conduct here posed no risk
of inducing Sewell’s criminality “rather than ca[tching]” it.
United States v. Barta, 776 F.3d 931, 939 (7th Cir. 2015). The
government furnished Sewell the “ordinary opportunity to
commit the charged crime” and he eagerly took it. Mayfield,
771 F.3d at 433. Because the district court properly denied his
requested entrapment instruction, we AFFIRM.

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