United States of America v. Brett M. Brimberry

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 4, 2025
Decided February 27, 2025
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 24-1105
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRETT M. BRIMBERRY,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 20-CR-30107-NJR-01
Nancy J. Rosenstengel,
Chief Judge.
O R D E R
After exchanging more than 80 text messages with someone he met through an
online dating application, Brett Brimberry drove to a house to engage in a sexual
encounter with that person, whom Brimberry believed to be a 15-year-old boy but who
actually was an undercover FBI agent. Brimberry was charged with attempted
enticement of a minor under 18 U.S.C. § 2422(b). He proceeded to trial, and a jury found
him guilty.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-1105 Page 2
The sole issue on appeal is whether the district judge erred by refusing to instruct
the jury on entrapment. Seventh Circuit precedent explains what constitutes
entrapment and what does not on a spectrum. At one end of the spectrum are cases
involving mere solicitation -- law enforcement officers can legally solicit or offer
someone an opportunity to commit a crime. At the other end of the spectrum are cases
that define inducement: officers may not take measures to persuade someone who
otherwise would not commit the crime absent those measures. When an officer’s actions
rises to the level of inducement, the judge may provide an entrapment instruction.
Because the facts in this case fail to demonstrate anything more than an opportunity for
Brimberry to engage in the charged criminal activity, the district judge did not err by
denying Brimberry’s request for an entrapment instruction, and we affirm the
judgment.
I.
The conviction here stems from a sting operation conducted by FBI agents to
identify persons seeking sex from minors. As part of the operation, an undercover FBI
agent created a profile for a fictitious underaged male on a dating app called “Grindr.”
The agent’s screen name was “just looking,” and his age was listed as 18 years old.
(Grindr does not permit people under the age of 18 to create a profile.)
On the day of the incident, Brimberry—who was 28 years old at the time—
initiated a text chat with the undercover agent posing as “just looking.” Within a few
minutes, Brimberry asked “just looking” what he was “into,” to which the agent
replied: “Discreet hookup. Oral maybe more.” Brimberry sent a picture of his genitals.
The agent replied that he was “looking to hookup not trade pics.”
After discussing the possibility of meeting, the agent revealed that the fictional
“just looking” was supposedly 15 years old. Brimberry responded by saying
“[o]hhhhh” and then asked for “just looking’s” “consent.” The agent gave “just
looking’s” consent and in return asked for Brimberry’s consent. After Brimberry
consented, the agent proposed that they “hook up if [Brimberry] wanted.”
Brimberry and the agent then agreed on a place to meet. Brimberry expressed
concern about getting “set up,” and again asked for “just looking” consent—which the
agent gave him. Brimberry explained that he did not want to “become a sex offender.”
In response, the agent stated: “Of course not. If you don’t want to that’s cool. I don’t
want you to be uncomfortable.” Instead of terminating the conversation at this point,
Brimberry responded that he was on his way to the agreed-upon meeting place, even

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No. 24-1105 Page 3
though he continued to express concern about being set up. The agent stated: “Al[l] I
can say is I wouldn’t do that.” Brimberry then arrived at the meeting place, where he
was promptly arrested. The sting operation revealed that Brimberry had exchanged 86
text messages with the agent posing as 15-year-old “just looking.” And the
conversation—from the first to the final text message—lasted about three and a half
hours.
One federal charge ensued, with Brimberry being indicted for attempted
enticement of a minor, in violation of 18 U.S.C. § 2422(b). Before Brimberry’s trial the
government moved to bar an entrapment defense. Brimberry opposed the motion, and
he presented the text exchange between him and the undercover agent as evidence of
entrapment. The district judge granted the government’s motion, concluding that the
undercover agent properly used the sting operation to solicit the crime without
overstepping and inducing Brimberry to commit the crime.
During a two-day trial, the jury heard from FBI agents involved in the sting
operation and Brimberry’s arrest. Brimberry testified on his own behalf, calling one
witness who testified about his reputation for being a law-abiding citizen. At the close
of the parties’ cases-in-chief Brimberry requested that the judge instruct the jury on
entrapment and tendered the pattern instruction; the judge refused for the same reasons
she had given when granting the government’s motion in limine. The jury then found
Brimberry guilty, and he was later sentenced to 120 months’ imprisonment.
II.
The sole issue on appeal is the denial of an entrapment jury instruction. We
review de novo the district judge’s legal conclusions underlying the ruling, while the
judge’s ultimate decision is reviewed for abuse of discretion. United States v. Wade,
962 F.3d 1004, 1011 (7th Cir. 2020). A defendant “is entitled to an entrapment instruction
whenever there is sufficient evidence from which a reasonable jury could find
entrapment,” which is a question of law. Mathews v. United States, 485 U.S. 58, 62 (1988);
Wade, 962 F.3d at 1011 (“The legal sufficiency of a proffered defense is a question of law
and therefore is reviewed de novo.”).
Entrapment involves “the apprehension of an otherwise law-abiding citizen
who, if left to his own devices, likely would have never run afoul of the law.” Jacobson v.
United States, 503 U.S. 540, 553–54 (1992). It is a defense to criminal liability and has two
“distinct” but “conceptually related” elements: (1) “government inducement” of the
crime; and (2) “lack of predisposition” by the defendant to engage in the criminal

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conduct. United States v. Mayfield, 771 F.3d 417, 420 (7th Cir. 2014) (en banc);
see Mathews, 485 U.S. at 62–63. The defense involves a burden-shifting framework. Once
a defendant proffers “some evidence” of each element, he is entitled to a jury
instruction on entrapment, and the government must prove beyond a reasonable doubt
that there was no government inducement or that the defendant was predisposed to
commit the charged crime. Mayfield, 771 F.3d at 443. The defendant’s initial burden of
production is slight. See id. at 440.
The district judge focused on the inducement element, and we will do the same.
See United States v. Plowman, 700 F.3d 1052, 1057 (7th Cir. 2012) (explaining that there is
no need to consider predisposition when evidence of inducement is lacking). Evidence
that the government “initiated contact with the defendant, suggested the crime, or
furnished the ordinary opportunity to commit it” does not demonstrate inducement.
Mayfield, 771 F.3d at 434. Nor is it sufficient to show only that the government solicited
the crime. See Jacobson, 503 U.S. at 548. Rather, inducement entails government
solicitation “plus some other government conduct” that risks causing someone to
commit the crime who would not have done so “if left to his own devices,” but “will do
so in response to the government’s efforts.” Mayfield, 771 F.3d at 434–35. We have
recognized various circumstances that may present such “plus” conduct, including, but
not limited to, “repeated attempts at persuasion, fraudulent representations, threats,
coercive tactics, harassment, promises of reward beyond that inherent in the customary
execution of the crime, [and] pleas based on need, sympathy, or friendship.” Id. at 435.
In more recent cases, we have clarified the line between solicitation and
inducement. On the “solicitation” end of the spectrum, we look to United States v. Sewell,
103 F.4th 1292 (7th Cir. 2024), and United States v. Mercado, 53 F.4th 1071 (7th Cir. 2022).
In both cases, the defendants had initiated conversation with the undercover FBI agents
posing as minors. Sewell, 103 F.4th at 1294; Mercado, 53 F.4th at 1075. And the
defendants did not show reluctance or a need for persistence by the government. Sewell,
103 F.4th at 1297; Mercado, 53 F.4th at 1082. In Sewell, the defendant, after knowing the
purported girl’s age, took an active role in arranging the encounter, made plain that he
wanted to meet for sex, and kept the discussion focused on sexually explicit activity.
103 F.4th at 1296. Similarly, in Mercado, the defendant injected sexually explicit content
into the conversation after knowing that the purported girl was 15 years old. 53 F.4th at
1081. Unaccompanied by any Mayfield plus factors, we found the agent’s scant
reassurances and “opportunity” text messages insufficient to warrant an entrapment
instruction. Sewell, 103 F.4th at 1298; Mercado, 53 F.4th at 1085-86.

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No. 24-1105 Page 5
On the “inducement” end of the spectrum, we look to United States v. Anderson,
55 F.4th 545 (7th Cir. 2022). There, an undercover FBI agent posed as a 15-year-old girl,
and after revealing the girl’s purported age, proposed a sexual encounter with the
defendant. Id. at 550. The defendant repeatedly expressed reluctance, a desire not to go
to jail, and fear for the welfare of his daughter if he was sent to prison. Id. at 554. But the
undercover agent did not relent; he repeatedly promised and then reassured the
defendant that their relationship would remain secret. See id. In addition, the agent
invited the defendant 11 times to meet for sex. Id. at 555. As the time of their planned
meeting approached, the defendant again hesitated, but the agent pressed for the sexual
rendezvous to occur by “employ[ing] guilt” and stating, “just wish you would have
told me earlier. I was excited. but I get it. good luck.” Id. at 554. After this comment, the
defendant caved and agreed to meet with the “girl.” Id. at 555. We concluded that the
defendant presented evidence of inducement in the form of “repeated attempts at
persuasion.” Id. at 555 (quoting Mayfield, 771 F.3d at 435).
Relying on Anderson, Brimberry maintains that he was induced. Focusing on the
part of the conversation where he asked for “consent” and expressed concern about
becoming a sex offender, Brimberry argues that the undercover agent here, like the one
in Anderson, coerced him to commit the crime. Although Brimberry correctly relies only
on the agent’s actions after the age of the purported minor became known, see Sewell,
103 F.4th at 1296, his argument fails.
Unlike the law enforcement activity in Anderson, here, the agent did not
repeatedly attempt to persuade Brimberry or employ any other form of unlawful
coaxing. The fact pattern here instead resembles Sewell, where the conversation lasted
just under six hours and quickly turned sexual, with the defendant planning to meet the
minor later the same day. 103 F.4th at 1294. They exchanged photos, discussed their age
difference, and conveyed their respective sexual interests. Id. The agent did not ratchet
up the pressure, but instead, gave the defendant time to consider his actions. Id. at 1297.
So too here. Brimberry—after securing the purported minor’s consent, signifying his
intent to proceed—drove to the meeting place where he was arrested. Whether the
purported minor consented is irrelevant; a minor’s “consent” is no defense to
enticement under 18 U.S.C. § 2422(b). See United States v. York, 48 F.4th 494, 500 (7th Cir.
2022).
Moreover, rather than pressuring Brimberry and repeatedly asking him to meet
for sex—as the undercover agent did in Anderson—the agent here gave Brimberry a
chance to consider his actions, stating: “If you don’t want to [come over] that’s cool. I

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don’t want you to be uncomfortable.” Cf. Anderson, 55 F.4th at 554 (concluding that the
agent employed guilt by stating “just wish you would have told me earlier. I was
excited. but I get it. good luck.”). Thus, the agent did not amplify the pressure or
employ guilt to overcome Brimberry’s reluctance.
To be sure, Brimberry expressed concern about becoming a “sex offender” before
the agent continued interacting with him. As Brimberry sees things, the agent induced
him to commit the crime by repeatedly reassuring him that it was not a set up. But this
is not an example of the agent persisting with efforts to persuade after the defendant
disclaims a desire to engage in the proposed conduct. The concern Brimberry
articulated was about getting caught—not about engaging in unlawful conduct.
Contrast this situation with Mayfield, in which there was evidence of inducement when
an informant offered multiple opportunities to engage in a robbery and the defendant,
who initially rejected the invitations, agreed to commit the crime only after the
informant implicitly threatened him. 771 F.3d at 421, 441. Here, the undercover agent
gave Brimberry the opportunity to commit the charged crime, and Brimberry readily
took it. This is not inducement. See Jacobson, 503 U.S. at 549–50.
Because there is no evidence in the record of government inducement, the district
judge properly denied Brimberry’s request for an entrapment instruction.
AFFIRMED

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