United States of America v. Robert Shawn Anderson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1301
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OBERT S HAWN A NDERSON ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:20-cr-20022-MMM-EIL-1 — Michael M. Mihm, Judge.
____________________
A RGUED S EPTEMBER 22, 2022 — DECIDED D ECEMBER 15, 2022
____________________
Before WOOD, HAMILTON , and S T. EVE, Circuit Judges.
HAMILTON , Circuit Judge. After exchanging hundreds of
messages with an FBI agent—who posed first as an 18-year-
old woman and then as a 15-year-old girl—and driving to a
planned rendezvous at a gas station, appellant Robert Ander-
son was charged with and convicted of attempted enticement
of a minor in violation of 18 U.S.C. § 2422(b). Anderson has
appealed on one issue: whether he offered sufficient evidence
of entrapment to have the jury instructed on that defense. In

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2 No. 22-1301
United States v. Mayfield, 771 F.3d 417 (7th Cir. 2014) (en banc),
we clarified that legal standard. We held that a defendant who
offers “some evidence” of both government inducement and
his own lack of predisposition is entitled to have the entrap-
ment defense submitted to the jury. Id. at 443.
As we explain below, the district court here erred by pre-
venting Anderson from presenting his entrapment defense to
the jury. On this record, a jury could find government induce-
ment in the form of what Mayfield called “subtle, persistent,
or persuasive conduct.” As for predisposition, Anderson had
no record of any sexual misconduct or any other offenses
against children. It was the government agent, not Anderson,
who first suggested a criminal liaison. Anderson repeatedly
expressed reluctance, and the agent responded with persis-
tent coaxing and persuasion. In the end, though, Anderson
did agree to meet for sex someone he thought was an under-
age girl. We offer no prediction about whether his defense
should succeed at trial, but under Mayfield, that was an issue
for the jury, not the court.
I. Factual and Legal Background
A. Enticement and Entrapment
It is a federal crime for an adult to use a means of interstate
commerce, such as communications over the internet, to en-
tice a minor to engage in sexual activity. It is also a crime for
an adult to use such means to attempt to entice someone he
believes to be a minor to engage in sexual activity. 18 U.S.C.
§ 2422(b).
Entrapment by the government is a complete defense to
the crime. To establish the defense, the accused must come
forward with evidence that he was not predisposed to commit

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No. 22-1301 3
the crime and that the government induced him to commit it.
Mayfield, 771 F.3d at 442. Predisposition refers to whether the
defendant was likely to commit the crime, even without gov-
ernment intervention. Id. Inducement means government so-
licitation of the crime “plus some other government conduct”
that risks causing someone to commit the crime even if he
would not have done so “if left to his own devices.” Id. at 434–
35 (emphasis in original). If the accused offers some evidence
on both points, the defense should be submitted to the jury
with instructions that the government has the burden of dis-
proving entrapment beyond a reasonable doubt. Id. at 443.
Whether the accused raises the defense before or during
trial, the judge’s role is not to weigh the evidence for and
against the defense. “[A]lthough more than a scintilla of evi-
dence of entrapment is needed … the defendant need only
point to evidence in the record that would allow a rational
jury to conclude that he was entrapped.” Mayfield, 771 F.3d at
440. We turn next to that record evidence.
B. The Text Messages
On Valentine’s Day 2020, the FBI launched “Cupid’s Ar-
row,” a sting operation designed to identify and apprehend
child predators. The FBI used an online dating application
that adults often use to communicate via text to facilitate
meetings for sex. The dating app restricts its users to those
who say they are 18 or older.
The FBI paid an unidentified 30-year-old civilian to con-
tribute a photograph of herself. The FBI edited the photo-
graph to make her look younger and used it to create a profile
for a fictional “Bailey” who claimed she was 18 years old.
Playing the role of “Bailey” was an FBI agent. The agent

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4 No. 22-1301
would later reveal to Anderson that the fictional “Bailey” was
supposedly only 15 years old.
Before that disclosure, Anderson had exchanged messages
with the person claiming to be 18 years old. The sting opera-
tion comprised nearly 300 texts back and forth over two days.
We need not quote them all, but we summarize them with a
focus on those where Anderson showed some evidence of en-
trapment, in terms of both government inducement and his
own lack of predisposition.
The evidence shows that it was the agent who first pro-
posed sex with an underage partner. After the agent claimed
to be only 15, the agent invited Anderson at least eleven times
to meet privately for sex. More often than not, when Ander-
son expressed reluctance about going to prison and fears
about leaving behind his young daughter, the agent persisted
and promised to “keep a secret.”
On the first day, February 14th, Anderson and the agent
tentatively expressed a mutual interest in sex. All this oc-
curred when “Bailey” was presenting herself as 18 years old,
using a photograph of a 30-year-old, and all before “Bailey”
revealed she was supposedly only 15.
The conversation continued on and off over two days dis-
cussing, most often through euphemisms, the topic of sex. In
response to Anderson’s question about a possible pregnancy,
the agent said that “Bailey” was 15. The agent then asked to
meet, the first of at least eleven direct requests for sex. Ander-
son expressed reluctance for fear of going to prison.
The two of them exchanged more pleasantries, and the
agent then suggested for the third and fourth times meeting
at “Bailey’s” home. Anderson then asked for pictures and

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No. 22-1301 5
offered to take “Bailey” on a ride. The agent clarified that
“Bailey” was “Not really looking to just hang out lol.”
To be sure, Anderson did not respond to “Bailey’s” claim
to be only 15 by terminating the conversation immediately, as
he should have. After the agent told Anderson that “Bailey”
was 15, he asked “Bailey” whether she was on “any kinda pro-
tection at all,” asked her to send a photograph of her breast,
promising to delete it, and asked, “How do you like sex,”
among other lewd and disturbing comments.
Yet Anderson also expressed reluctance, repeatedly, ex-
pressing fear of going to prison and thinking of the welfare of
his daughter if he were to follow through to meet “Bailey” for
sex. Whenever he did, the agent continued to press him to
“come over.” After more text messages on a second day, An-
derson finally agreed to meet, provided they met at a public
place, a nearby gas station. The fictional “Bailey” was not
there, but officers arrested Anderson. He was charged with
attempted enticement of a minor under 18 U.S.C. § 2422(b).
The government moved in limine to bar an entrapment de-
fense at trial. The district judge, after explicitly weighing the
evidence for and against the defense, granted the motion. An-
derson took his case to trial without an entrapment jury in-
struction nor any mention of entrapment at trial. The jury
found him guilty as charged. Anderson now appeals the dis-
trict court’s decision to bar his entrapment defense. Because
the district court determined before trial that Anderson
would not be allowed to present an entrapment defense, our
review is de novo, meaning without deference to the district
court’s views. United States v. Garcia, 37 F.4th 1294, 1302 (7th
Cir. 2022). Our role is to view the evidence in the light most
favorable to the accused, i.e., without weighing the evidence

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6 No. 22-1301
or deciding how we think a jury should rule on the entrap-
ment defense. Mayfield, 771 F.3d at 441 (“Accepting the facts
in [the defendant’s] pretrial proffer as true and drawing rea-
sonable inferences in his favor….”).
II. The Law of Entrapment Under Mayfield
Mayfield explained in detail the substance and procedure
of the law of entrapment. We summarize here. “Entrapment
is a defense to criminal liability when the defendant was not
predisposed to commit the charged crime before the interven-
tion of the government’s agents and the government’s con-
duct induced him to commit it.” 771 F.3d at 420. We decided
to rehear Mayfield en banc to clear up “confusion in our en-
trapment jurisprudence,” in terms of both substance and pro-
cedure. Id.
Substantively, we described the doctrine of entrapment as
having two elements—government inducement and a lack of
predisposition—two “conceptually related but formally and
temporally distinct” features. 771 F.3d at 420. Procedurally,
Mayfield held that a defendant who offers “some evidence” of
each element of the defense is entitled to have the defense
submitted to the jury. Id. Both elements are rooted in Supreme
Court decisions dating back nearly a century. See Jacobson v.
United States, 503 U.S. 540 (1992); Sherman v. United States, 356
U.S. 369 (1958); Sorrell v. United States, 287 U.S. 435 (1932).
A. Substantive Law
1. Inducement
Entrapment under Mayfield consists of two substantive el-
ements, inducement by the government and a lack of predis-
position in the defendant. “Conduct by the government’s
agents amounts to inducement if, considering its character

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No. 22-1301 7
and the factual context, it creates a risk that a person who oth-
erwise would not commit the crime if left alone will do so in
response to the government’s persuasion.” Mayfield, 771 F.3d
at 443.
Inducement means more than that the government merely
solicited, suggested, or created the “ordinary” opportunity to
commit the crime. Id. at 434. Inducement requires “the char-
acter and degree of the government’s persistence or persua-
sion, or the nature of the enticement or reward,” to exceed the
typical enticements and temptations the crime or criminal ac-
tors pose to a defendant. Id. at 433. “Ordinary” thus means
“something close to what unfolds when a sting operation mir-
rors the customary execution of the crime charged.” Id. (cita-
tion omitted). To go beyond ordinary, “inducement means
government solicitation of the crime plus some other govern-
ment conduct….” Id. at 434. We explained in Mayfield that the
“other conduct” may be:
• repeated attempts at persuasion,
• fraudulent representations,
• threats, coercive tactics, or harassment,
• promises of reward beyond that inherent in
the customary execution of the crime,
• pleas based on need, sympathy, or friend-
ship, or
• any other conduct by government agents
that creates a risk that a person who other-
wise would not commit the crime if left
alone will do so in response to the govern-
ment’s efforts.

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8 No. 22-1301
Id. at 435. Most relevant in this case are “repeated attempts at
persuasion” in the face of reluctance. Mayfield also noted the
risk that “subtle and persistent artifices and devices” may cre-
ate a risk that an “otherwise law-abiding person would take
the bait.” Id. at 434.
2. Predisposition
Beyond inducement, the accused must also offer evidence
that he was not predisposed. “Predisposition … refers 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.” Mayfield, 771 F.3d
at 436.
Not being predisposed is not the same as not even being
tempted. As we said in Mayfield, “a person who resists his
baser urges is not ‘predisposed’ simply because he experi-
ences them.” 771 F.3d at 436. On this point, Mayfield followed
the Supreme Court in Jacobson v. United States, where the
Court explained that “a person’s inclinations and ‘fantasies …
are his own and beyond the reach of government….’” 503 U.S.
540, 551–52 (1992) (citation omitted). Hence, we explained in
Mayfield, a “mere desire, urge, or inclination” to engage in
criminal conduct generally is not enough: “‘[T]he principal el-
ement in the defense of entrapment [i]s the defendant’s pre-
disposition to commit the crime’—not just any crime.” 771
F.3d at 438, quoting United States v. Russell, 411 U.S. 423, 433
(1973) (emphasis in original). The focus is “on the defendant’s
circumstances before and at the time the government first ap-
proached him with a proposal to commit the crime.” Id. at 442
(emphasis in original).

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No. 22-1301 9
In evaluating the defendant’s past and present conduct for
predisposition, we examine:
• the defendant’s character or reputation;
• whether the government initially suggested
the criminal activity;
• whether the defendant engaged in the crim-
inal activity for profit;
• the nature of the inducement or persuasion
by the government; and
• whether the defendant evidenced a reluc-
tance to commit the offense that was over-
come by government persuasion.
Mayfield, 771 F.3d at 435. The most significant factor is reluc-
tance overcome by government persuasion. Id. at 437, citing,
among others, United States v. Pillado, 656 F.3d 754, 764 (7th
Cir. 2011), and United States v. Theodosopoulos, 48 F.3d 1438,
1444 (7th Cir. 1995). At the risk of emphasizing the obvious,
“reluctance … overcome by government persuasion” shows
that the two elements of an entrapment defense — lack of pre-
disposition and government inducement — are closely re-
lated. Reluctance can prompt further efforts at government
persuasion that can rise to the level of inducement, support-
ing the entrapment defense.
Each factor on lack of predisposition, including reluctance,
helps estimate how likely it was the defendant would have
committed the crime if left to his own devices. Mayfield
measures predisposition based not on why the defendant
might or might not commit the crime but on whether the de-
fendant would have committed the crime, more likely than

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10 No. 22-1301
not, without the government’s inducement. Predisposition is
“not psychological” but “chiefly probabilistic.” Id. at 428, cit-
ing United States v. Hollingsworth, 27 F.3d 1196, 1203 (7th Cir.
1994) (en banc); see also id. at 436 (“The defendant must be so
situated by reason of previous training or experience or occu-
pation or acquaintances that it is likely that if the government
had not induced him to commit the crime” the defendant
would have done so.), quoting Hollingsworth, 27 F.3d at 1200
(emphasis in original).
Predisposition is inseparable from the risk-reward calcu-
lation a person might make. Our criminal-law system as-
sumes that some people choose not to commit crimes not be-
cause they are moral but because the fear of punishment
trumps the hope for reward or pleasure. Jacobson, 503 U.S. at
551 (“[T]hat most people obey the law … may reflect a gener-
alized respect for legality or the fear of prosecution, but for what-
ever reason, the law’s prohibitions are matters of conse-
quence.”) (emphasis added). Whether the defendant is reluc-
tant because of a moral aversion, a fear of publicity, or a fear
of punishment, Mayfield requires reluctance to be about prob-
ability. The specific reason a defendant was reluctant to com-
mit the offense does not matter. The reason need not be noble
or moral. What matters is whether the defendant was reluc-
tant to commit the offense at all.
B. Procedure for the Entrapment Defense
The accused is “entitled to present the defense at trial if he
shows that some evidence supports it. This initial burden is
not great; the defendant must produce some evidence from
which a reasonable jury could find government inducement
and lack of predisposition. If he can make this showing, the
court must instruct the jury on entrapment and the

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No. 22-1301 11
government must prove beyond a reasonable doubt that the
defendant was predisposed to commit the charged crime, or
alternatively (but less commonly), that there was no govern-
ment inducement.” Mayfield, 771 F.3d at 443 (emphasis
added). “[E]ntrapment is an issue of fact for the jury.” Id.; see
generally Mathews v. United States, 485 U.S. 58, 63 (1988) (re-
versing denial of entrapment instruction: “As a general prop-
osition a defendant is entitled to an instruction as to any rec-
ognized defense for which there exists evidence sufficient for
a reasonable jury to find in his favor.”).
III. Analysis
Returning to the detailed evidence in this case, we find
some evidence of the absence of predisposition and the pres-
ence of inducement. The issue is not whether Anderson will
win acquittal with an entrapment defense. Cf. United States v.
York, 48 F.4th 494, 502 (7th Cir. 2022) (affirming conviction af-
ter jury was instructed on entrapment defense in similar case
of attempted enticement of supposed minor in online sting
operation). The issue is whether Anderson showed some evi-
dence of the absence of predisposition and the presence of in-
ducement. He did. The messages show some evidence of his
own reluctance and lack of predisposition and some evidence
of the government’s subtle and persistent persuasion. Under
Mayfield, he was entitled to present his entrapment defense
and to have the jury decide whether the government had dis-
proven entrapment beyond a reasonable doubt.
The text messages comprise the most important facts, to
which we now turn in more detail, again focusing on those
most favorable to the defense and giving Anderson the bene-
fit of reasonable inferences. A holistic assessment of the case
might convince the jury that the government did not entrap

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12 No. 22-1301
Anderson. It also might not. Mayfield requires not a perfect
defense but only “some” evidence to submit the issue to the
jury. These messages were enough. Since a defendant most
likely demonstrates his reluctance when the government so-
licits him, we focus most on those moments when the govern-
ment proposed the offense.
A. Some Evidence of Inducement
After the agent revealed that “Bailey” was supposedly 15,
Anderson expressed reluctance to commit the crime, several
times in fact. Every time he did, the agent persisted, and
nearly every time the agent promised to keep it a secret. Here
is the critical exchange in which “Bailey” no longer claimed
to be 18 but claimed to be only 15:1
Anderson: Can get pregnant
Agent: i could im 15 how old are you
Anderson: 45
Agent: nice
want to meet up
Anderson: I don’t want to go to jail
Agent: me either lol. you would have
to keep a secret
Anderson: So would you
Agent: if you don’t tell anyone
Anderson: Wouldn’t
1 To preserve the original tone of the exchange, the original typos and
slang remain.

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No. 22-1301 13
This was the first time the agent suggested Anderson commit
the crime. Anderson’s first response was to express reluctance
to go to prison.
Later, Anderson expressed reluctance not only about go-
ing to prison. He also suggested fear for the welfare of his
daughter if he did. Again, the agent suggested keeping their
tryst a secret:
Anderson: I have a little girl and don’t
want to go to jail
Agent: Ok. You just wouldn’t be
able to tell anyone
Anderson: I no
A few messages later, Anderson reiterated his fear of get-
ting into trouble and the consequences for his daughter. And
once more, the agent promised secrecy:
Anderson: I can’t get in trouble I have a
little girl
Agent: I would never tell that
would be mean and cruel
Less than an hour before “Bailey” was supposedly set to meet
Anderson, the agent invited Anderson to meet for the ninth
time. Then, the agent appeared to employ guilt after Ander-
son expressed reluctance for a final time:
Agent: well do you want to still?
Anderson: I’m just thinking I’m wor-
ried I don’t want to go to jail
I’m sure you can understand
that

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14 No. 22-1301
Agent: I do. just wish you would
have told me earlier. I was
excited. but I get it. good
luck
Before this penultimate exchange, “Bailey” had repeatedly
invited Anderson to meet at her home: “want to meet up” /
“mom is out of town. you could come here” / “I’ll be home if
your still interested” / “Just let me know if you want to” / “…
you can just come here” / “Want to just come here” / “shes
gone if you want to comeover” / “you coming?” / “you don’t
come over now?”
After “Bailey” said “I … just wish you would have told me
earlier,” Anderson finally agreed to meet her in a public place:
“If you meet me at [the gas station] I will come over. I’ll get
you a drink.” The agent then invited Anderson to meet, pri-
vately, for the eleventh and final time, “ok. then we can come
here. Can yiou get condoms to just to be safe.”
This evidence would allow a jury to find inducement
based on what Mayfield called the government’s “repeated at-
tempts at persuasion.” 771 F.3d at 435. Mayfield prescribes no
minimum number of times the government must invite the
defendant to commit the crime. Accord, United States v. Barta,
776 F.3d 931, 937–38 (7th Cir. 2015) (ordering acquittal based
on entrapment as a matter of law: “[T]here is no per se rule
regarding the number of contacts or length of relationship it
takes to constitute inducement.”). But so many overtures
would not necessarily be ignored. Id. at 938 (“It is not just the
number of contacts … or the length of their relationship that
amounted to inducement here. It was also the frequency of
those contacts.”).

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No. 22-1301 15
Viewing the evidence in the light most favorable to the ac-
cused, i.e., without weighing the evidence, the many times the
agent invited Anderson to a private meeting for sex and the
agent’s repeated promises of secrecy and use of guilt to over-
come Anderson’s reluctance add up to “some evidence” of in-
ducement in the form of subtle and persistent persuasion.2
B. Some Evidence of Lack of Predisposition
Beyond inducement, the accused must offer evidence that
he was not predisposed, for “no level of inducement can over-
come a finding of predisposition.” Mayfield, 771 F.3d at 433
(emphasis in original). Anderson offered some evidence that
he was not predisposed to commit this crime. He had no prior
criminal record of sexual misconduct, let alone sexual miscon-
duct targeting a minor. A jury could reasonably find doubt
about predisposition in the text messages, and Anderson’s
2 The dissenting opinion emphasizes the relatively short time over
which Anderson and “Bailey” exchanged messages to argue there was no
inducement here. Time is certainly a factor, but so too is the sheer number
of text messages exchanged here, with Anderson’s repeated expressions
of reluctance or fear of consequences and the agent’s repeated efforts at
persuasion and promises of secrecy. We rejected per se rules for time or
number in Barta, and it would not be consistent with Mayfield or the Su-
preme Court precedents to impose them. We agree with the dissenting
opinion here and with our recent decision in United States v. Mercado, 53
F.4th 1071 (7th Cir. 2022), that the government’s use of a supposedly
adults-only application and a photograph of an adult did not, by them-
selves, take this attempted sting into the realm of government induce-
ment. See post at [29–31]; Mercado, 53 F.4th at 1082. In other words, the fact
that the government attempted an online sting is not, without more, suf-
ficient to require an entrapment instruction. We also do not rest our deci-
sion on the fact that the agent-Bailey portrayed herself as sexually experi-
enced. We agree with the dissenting opinion and Mercado on that point.

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16 No. 22-1301
conduct cannot as a matter of law be severed from the gov-
ernment’s inducement.
Anderson had no prior criminal record of this kind. No
evidence indicates Anderson has sexually abused his three-
year-old daughter or has had any other interest in underage
girls. His last two encounters with the law were driving-un-
der-the-influence and trespassing charges nearly twenty
years earlier. They did not preclude his entrapment defense.
See Mayfield, 771 F.3d at 438 (“[A] defendant with a criminal
record can be entrapped.”).
C. The Government’s Arguments
We have so far presented the evidence most helpful to An-
derson’s entrapment defense. The government characterizes
the text exchanges, including Anderson’s expressions of re-
luctance and caution, much more harshly. The government
marshals evidence of Anderson’s sexual interest in “Bailey”
from two distinct times: before the agent told Anderson that
Bailey was 15, and after.
We discount the texts exchanged before the agent revealed
“Bailey’s” supposed young age. Before Anderson learned
“Bailey” was 15, his interest in a sexual encounter with an
adult was both legal and irrelevant. Consensual sex appears
to be a primary reason adults use this dating app at all. The
government also suggests Anderson ought to have known
Bailey was a minor from the profile picture alone, after using
a photographic filter “to make the adult source look even
younger.” That is, at best, an argument the government can
make to the jury. The agent also sent Anderson a follow-up
photo of the 30-year-old woman, apparently photograph-
ically unaltered.

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No. 22-1301 17
The government also suggests that when the agent men-
tioned that “mom” was out of town, Anderson should have
known that “Bailey” was a minor. That’s another jury argu-
ment. A mother can live with an adult child, who may prefer
a sexual rendezvous when her mother is not home. The gov-
ernment also argues that asking whether “Bailey” could be-
come pregnant was really a “reference to whether or not she
had reached the age of sexual maturity.” Maybe, but preg-
nancy and birth control are natural topics between adults.
These are matters the government may argue to a jury, but
they do not defeat the entrapment defense as a matter of law.
Evidence after the agent revealed that “Bailey” was under-
age is the proper focus for the entrapment defense, but An-
derson’s messages remain tangled with the government’s
own influence. The government notes that the agent pre-
sented Anderson “with multiple opportunities to withdraw
from the conversation and [he] chose not to do so.” That is
true. Moreover, after text messages concluded the first day
without any agreement to meet for sex, it was Anderson who
started the conversation the next day. These facts might help
to defeat his defense at trial. See Mayfield, 771 F.3d at 437 (be-
cause ‘‘there is little direct evidence of the defendant’s state of
mind prior to interaction with [g]overnment agents[,] … we
must instead rely upon indirect proof available through ex-
amination of the defendant’s conduct after contact with the
agents”) (citation omitted). But these facts do not stand sepa-
rate from the messages “Bailey” contributed. Those include
the eleven times the agent invited Anderson to meet. And
they include the agent’s many other innuendos—“moms out
of town so secret fun lol” / “Not really looking to just hang
out lol” / “that’s why I like you … you get me and your
sweet.”

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18 No. 22-1301
“All this evidence must be considered with care,” we said
in Mayfield, because “the defendant’s later actions may have
been shaped by the government’s conduct.” 771 F.3d at 437.
“[T]he greater the inducement, the weaker the inference that
in yielding to it the defendant demonstrated that he was pre-
disposed to commit the crime in question.” Id., quoting Hol-
lingsworth, 27 F.3d at 1200. For those not predisposed, the less
inclined to commit the crime, the more enticement it will
likely take. Evidence that the government made overture after
overture after overture before the defendant agreed to com-
mit the crime may suggest both inducement and lack of pre-
disposition.
From all these text messages, reasonable jurors could draw
different inferences. The government will of course be entitled
to present its very different interpretation of the evidence, but
once the accused came forward with “some” evidence of en-
trapment, the weighing was for the jury, not the court.3
3 On appeal, the government also relies on information from Ander-
son’s presentence report, which was not available when the district court
granted the government’s motion in limine. The presentence report sum-
marized a text exchange between Anderson and a then-adult woman fan-
tasizing about having sex with her when she had been 17, years earlier.
Even if this information had been available at trial, it would not have
changed the result of this appeal. First, at the time of the text exchange,
the woman was an adult, and there is no evidence that Anderson acted
out this fantasy. See Jacobson, 503 U.S. at 551–52 (“a person’s inclinations
and ‘fantasies … are his own and beyond the reach of government’”). Sec-
ond, to prove attempted enticement of a minor, the government must
prove “enticement into any sexual activity for which any person can be
charged.” 18 U.S.C. § 2422(b). The government based its prosecution of
Anderson on aggravated criminal sexual abuse under Illinois law. Under
that statute, the age of consent is 17, so even acting on that reported fan-
tasy would not have been criminal. See 720 ILCS 5/11-1.60(d). Finally, even

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No. 22-1301 19
D. The District Court’s Ruling
A district judge deciding whether to give an entrapment
instruction is not a trier of fact: “the court must accept the de-
fendant’s proffered evidence as true and not weigh the gov-
ernment’s evidence against it.” Mayfield, 771 F.3d at 440.
“[T]he trial judge cannot weigh the competing evidentiary
proffers and accept the government’s as more persuasive than
the defendant’s.” Id. at 442.
The district court erred here by weighing the conflicting
evidence. In deciding the government’s motion in limine, the
judge noted the five factors Mayfield considers for predisposi-
tion and weighed the evidence for and against Anderson. The
judge noted there was no evidence that Anderson had en-
gaged in any similar prior criminal activity or other indicia of
character prone to this offense.
The judge then observed—but incorrectly—that Anderson
first suggested the criminal activity. As noted above, it was
actually the agent who first invited a meeting after revealing
that “Bailey” was supposedly just 15. See supra at 12–13. The
judge then weighed the defendant’s reluctance: “The defend-
ant expressed some reluctance to go to the home, but then
came up with an alternate plan.” The judge did not evaluate
inducement using the low bar of “some” evidence: “Nothing
in this record that I’m aware of, nor would there be at trial,
that, that his reluctance was overcome only by repeated gov-
ernment inducement or persuasion.” Finally, the judge
if this information were deemed to weigh in favor of predisposition, it
would still have to be weighed against other information tending to show
a lack of predisposition. As explained in the text, that weighing is for the
jury rather than the judge.

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20 No. 22-1301
weighed these factors against each other by “[t]aking all of
that into account” and ruled that he would not instruct the
jury on entrapment. Mayfield reserves this weighing for the
jury.
E. Case Comparison
We base our decision here primarily on Mayfield and the
Supreme Court precedents it built upon. The government has
relied on some earlier cases from this circuit and decisions by
other circuits that are either not precedential or apply a more
demanding standard than we do under Mayfield.
For example, the government relies on another online en-
ticement sting case, United States v. Knope, 655 F.3d 647 (7th
Cir. 2011), where we affirmed the denial of an entrapment in-
struction. The facts in Knope were quite different from this
case. That defendant required no persuasion and showed no
reluctance. He offered no evidence of government induce-
ment, just an invitation to commit the crime, and we ex-
plained there that all the predisposition factors showed that
the defendant was predisposed. Id. at 661. Knope does not help
the government here.
Another pre-Mayfield case quoted an earlier case to the ef-
fect that ‘‘persistence … in the absence of coercion … does not
establish inducement.’’ United States v. Plowman, 700 F.3d
1052, 1059 (7th Cir. 2012), quoting United States v. Higham, 98
F.3d 285, 290 (7th Cir. 1996) (affirming jury’s rejection of en-
trapment defense). Plowman is consistent with Mayfield and
our decision here. The defendant in Plowman never expressed
reluctance but was instead the instigator of the bribery
scheme in that case. 700 F.3d at 1059–60. Plowman did not en-
dorse Higham’s coercion requirement, and Higham did not

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No. 22-1301 21
apply the low Mayfield bar of “some evidence” of entrapment.
In any event, Mayfield made clear that inducement does not
require coercion. Persistent persuasion may be enough to
show entrapment, as we have repeatedly noted.
A more recent decision by this court in another online en-
ticement sting helps to mark the line between sufficient and
insufficient showings to obtain an entrapment instruction. In
United States v. Mercado, 53 F.4th 1071 (7th Cir. 2022), an FBI
agent pretended to be a 15-year-old girl on an adults-only in-
ternet application. After exchanging text messages with the
agent for several days, the defendant went to a house to meet
the fictional girl for sex, but was arrested and, like Anderson
here, charged with attempted enticement. Mercado sought an
entrapment instruction but was denied. We affirmed, relying
on facts that are decisively different from this case.
Our opinion in Mercado carefully summarized the Mayfield
standard calling for “some evidence” of both inducement and
lack of predisposition, including recognition that repeated at-
tempts at persuasion can show inducement. Id. at 1080, 1082.
Mercado argued that the agent’s text messages amounted to
inducement, but we rejected that argument based on a close
review of the messages that Mercado and the agent ex-
changed. As we said in Mercado, the details are important. Id.
at 1075. It was Mercado, not the agent, who introduced ex-
plicit sexual content into the conversation. He did so repeat-
edly and quite graphically after being told the agent was only
15. Our opinion recognized that a defendant may show en-
trapment if he repeatedly declined persistent government
pressure, but Mercado could not show that he did so. Instead,
he initiated the conversations, made them explicitly sexual af-
ter being told the agent was 15, and did not show any

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22 No. 22-1301
reluctance or need for the government to persist. Id. at 1082.
On those quite different facts, Mercado was not entitled to an
entrapment instruction, while Anderson was.4
The cases the government cites from other circuits, most
of which are non-precedential, are inconsistent with Mayfield
and its reading of Supreme Court precedents permitting a de-
fendant to show “some” reluctance because he fears punish-
ment. United States v. Hood concerned an appeal from denying
a motion for acquittal based on entrapment, which relied on
similarly unpublished Sixth Circuit authority disqualifying
from consideration a defendant’s reluctance “from a fear of
getting caught.” 811 Fed. App’x 291, 298 (6th Cir. 2020) (cita-
tion omitted). Even then, in Hood the court had submitted the
entrapment defense to the jury. Id. at 293. United States v. Un-
rein relied on Eleventh Circuit authority disqualifying a de-
fendant’s fear of a government sting as merely a
4 We also recently issued a non-precedential order affirming a district
court’s refusal to give an entrapment instruction in this same sting opera-
tion in United States v. Dean, No. 21-2736, 2022 WL 11587950 (7th Cir. Oct.
20, 2022). We rarely address such non-precedential orders in precedential
opinions, but we make an exception in this case because Dean involved
the same “Cupid’s Arrow” sting operation and was tried to the same dis-
trict judge who tried Anderson. As in Mercado, the facts in Dean were quite
different from those here. Dean mentioned just once a concern that he
might be communicating with law enforcement. He expressed no other
reluctance. He tried to rendezvous with the fictional minor for sex within
an hour of first making contact. Likewise, Dean offered no evidence of
government behavior beyond ordinary solicitation. Id. at *2. The absence
of evidence supporting an entrapment defense in Dean contrasts deci-
sively with Anderson’s repeated expressions of reluctance and “Bailey’s”
persistent persuasion over two days. We do not hold here that Anderson
was entrapped as a matter of law, but unlike Dean, his entrapment defense
had some evidence supporting it.

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No. 22-1301 23
demonstration of “his criminal intent.” 688 Fed. App’x 602,
609 (11th Cir. 2017). Likewise, United States v. Shinn dis-
counted the defendant’s reluctance since “his only hesitation
with their meeting was the risk that they might be discov-
ered.” 681 F.3d 924, 930 (8th Cir. 2012). And finally, United
States v. Cawthon, 637 Fed. App’x 804, 806 (5th Cir. 2016), is
easily distinguishable, for that defendant did not show any
reluctance and did not require any persistent persuasion. The
court’s opinion seems to have relied on Fifth Circuit entrap-
ment cases requiring a higher standard for entrapment than
we have applied since Mayfield. See id., quoting United States
v. Theagene, 565 F.3d 911, 920 (5th Cir. 2009) (reversing denial
of entrapment instruction).
None of the government’s cases applied Mayfield’s low bar
of “some” evidence of a lack of predisposition. Nor do their
rejections of reluctance based on fear of being caught reflect
Supreme Court precedent. Recall that the Supreme Court
wrote in Jacobson: “that most people obey the law … may re-
flect a generalized respect for legality or the fear of prosecution,
but for whatever reason, the law’s prohibitions are matters of
consequence.” 503 U.S. at 551 (emphasis added). “Some” evi-
dence of reluctance, for whatever reason, noble or base, satis-
fies Mayfield’s criteria to demonstrate lack of predisposition.
This case and this circuit’s Mayfield jurisprudence are
closer to the First Circuit’s decision in United States v. Pérez-
Rodríguez, 13 F.4th 1 (1st Cir. 2021). There, as here, a govern-
ment agent encountered the defendant in an online dating
app. Id. at 9. The agent and the defendant discussed a sexual
encounter with the agent’s fictional young boyfriend. Id. at 9–
11. The First Circuit held that the district court erred when it
denied an entrapment instruction. Id. at 24. The First Circuit

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24 No. 22-1301
explained that “the government first suggested the sexual
abuse of a minor” and that the defendant “encountered law
enforcement on a forum intended to be used only by adults.”
Id. at 22.
Consistent with Mayfield, and perhaps going a little further
than we did in Mayfield, the First Circuit applied a “charita-
ble” threshold for giving an instruction on the entrapment de-
fense, one that “is not a very high standard to meet.” Id. at 19
(citation omitted). The defendant in Pérez-Rodriguez offered
considerably less evidence of reluctance and government in-
ducement than Anderson did. See id. at 23, 27 (summarizing
evidence of reluctance and inducement). The most important
common ground between the cases was the two defendants’
expressions of reluctance to go forward with the criminal con-
duct first proposed by the government and the government’s
continued efforts to persuade them to do so despite that re-
luctance. The most important factual difference is that Ander-
son expressed reluctance far more times than Pérez-Rodri-
guez did and showed greater government persistence in per-
suading him to go forward with the criminal tryst.
Conclusion
Anderson came forward with “some evidence” of govern-
ment inducement to commit the crime and of his own lack of
predisposition to commit the crime. Under Mayfield, he was
entitled to have the court instruct the jury on his entrapment
defense. We cannot say whether a jury would acquit Ander-
son. He was not entrapped as a matter of law. The govern-
ment’s actions here fell short of the extensive campaigns of
enticement in Jacobson, 503 U.S. at 550 (defendant entrapped
as a matter of law after being “the target of 26 months of re-
peated mailings and communications from Government

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No. 22-1301 25
agents and fictitious organizations”), or in Barta, 776 F.3d at
934–36 (finding entrapment as a matter of law where govern-
ment’s persistent inducement lasted months and defendant
repeatedly showed reluctance to go along with criminal pro-
posal). The judgment of the district court is R EVERSED and the
case is R EMANDED for a new trial in which Anderson should
be permitted to present his entrapment defense.

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26 No. 22-1301
ST. EVE, Circuit Judge, concurring in part and dissenting in
part.
I agree with the majority that Mr. Anderson offered suffi-
cient evidence of his own lack of predisposition and that the
district court erred in deciding that issue as a matter of law.
But a defendant must offer “some evidence” of both prongs of
the entrapment defense to require an entrapment instruction
at trial. I respectfully dissent from the majority’s opinion as to
the government inducement prong. I would hold that Mr. An-
derson failed to offer “some evidence” of inducement and af-
firm the district court on those grounds.
I.
Where, as here, the district court precluded a defendant
from submitting an entrapment defense to the jury before the
trial began, the Seventh Circuit “review[s] a district court’s re-
fusal to give an entrapment jury instruction de novo,” United
States v. Pillado, 656 F.3d 754, 763 (7th Cir. 2011) (quoting
United States v. Hall, 608 F.3d 340, 343 (7th Cir. 2010)); see also
United States v. Garcia, 37 F.4th 1294, 1302 (7th Cir. 2022). The
Court does so “bearing in mind that the question [of] whether
a defendant has been entrapped is ‘generally one for the jury,
rather than for the court.’” Pillado, 656 F.3d at 763 (quoting
Mathews v. United States, 485 U.S. 58, 63 (1988)). Since our au-
thoritative statement on entrapment instructions in Mayfield,
however, we have consistently held that “[t]he inducement
inquiry, [as compared to the predisposition inquiry], may be
more appropriate for pretrial resolution; if the evidence
shows that the government did nothing more than solicit the
crime on standard terms, then the entrapment defense will be
unavailable as a matter of law.” United States v. Mayfield, 771
F.3d 417, 441 (7th Cir. 2014).

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No. 22-1301 27
“[T]he fact that government agents initiated contact with
the defendant, suggested the crime, or furnished the ordinary
opportunity to commit it is insufficient to show inducement.”
Garcia, 37 F.4th at 1301 (quoting Mayfield, 771 F.3d at 434). Ra-
ther, as the majority notes, inducement requires normal solic-
itation of a crime “plus some other government conduct that
creates a risk that a person who would not commit the crime
if left to his own devices will do so in response to the govern-
ment’s efforts.” Mayfield, 771 F.3d at 434–35. Those “plus fac-
tors” can include the following:
[R]epeated attempts at persuasion, fraudulent representa-
tions, threats, coercive tactics, harassment, promises of re-
ward 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 creates a
risk that a person who otherwise would not commit the
crime if left alone will do so in response to the govern-
ment’s efforts.
United States v. Blitch, 773 F.3d 837, 844 (7th Cir. 2014) (quoting
Mayfield, 771 F.3d at 435).
“[T]here is no per se rule regarding the number of contacts
or length of relationship it takes to constitute inducement,”
United States v. Barta, 776 F.3d 931, 937–38 (7th Cir. 2015), “and
each entrapment defense, must be judged on its own facts.”
Id. at 938. On my reading, the facts of Mr. Anderson’s case do
not include even “some evidence” of government behavior
that went beyond solicitation. Without more, he was not enti-
tled to an entrapment defense.

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28 No. 22-1301
II.
The majority primarily notes the government’s eleven in-
vitations that Mr. Anderson “come over” to have sex with
“Bailey” as “repeated attempts at persuasion,” pushing the
government action from solicitation to inducement. The opin-
ion further points to the initial presentation of “Bailey” as an
adult woman interested in having sex with Anderson as a
source of confusion. And finally, the majority cites United
States v. Pérez-Rodríguez, 13 F.4th 1, 20 (1st Cir. 2021), contend-
ing that the First Circuit’s reasoning in that case supports a
requirement for a jury instruction for Mr. Anderson. These ar-
guments do not persuade.
A. Repeated Attempts at Persuasion
The majority relies on “Bailey’s” eleven suggestions that
Mr. Anderson “come over” to see her and her promises to
keep any meetings between the two a secret as “some evi-
dence” of “repeated attempts at persuasion.”
But these examples do not move the needle from govern-
ment solicitation to inducement. First, they happened within
twenty-four hours. While inducement can happen within one
day, a survey of our caselaw shows that such cases are exceed-
ingly rare. And when we have found “some evidence” of in-
ducement in such a short period of time, much more forceful
persuasion has been present—like screaming or obscenities.
See Pillado, 656 F.3d at 767 (“some evidence” of government
inducement was found in a single day where the government
agent screamed obscenities at the defendant who was hesitant
to unload drugs from a government vehicle and leveraged a
relationship with the defendant’s landlord to convince him to
continue). Where, as here, the persuasion is more subtle,

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No. 22-1301 29
“repeated attempts at persuasion” usually require a govern-
ment campaign measured in weeks or months, rather than
mere days. See United States v. Jacobson, 503 U.S. 540, 550 (1992)
(two years); Mayfield, 771 F.3d at 441 (three months); Barta, 776
F.3d at 938 (three months); United States v. Plowman, 700 F.3d
1052, 1059 (7th Cir. 2012) (five months was insufficient);
United States v. Theodosopoulos, 48 F.3d 1438, 1447 (7th Cir.
1995) (three months and nine separate meetings did not estab-
lish inducement); cf. United States v. Mercado, 53 F.4th 1071,
1084 (7th Cir. 2022) (government contact “occurred over five
days, rather than over many weeks” and therefore did not es-
tablish inducement).
Absent more forceful conduct, the short-lived behavior
cited by Mr. Anderson does not show the “more than a scin-
tilla of evidence” of inducement required to warrant an in-
struction on entrapment.
B. Fraudulent Representations
The majority opinion also references the government’s in-
itial presentation of “Bailey” as an adult as part of its entrap-
ment analysis. Mr. Anderson’s counsel argued that this fell
into the category of “fraudulent representations.” At oral ar-
gument, he relied on the fact that he met “Bailey” on
MeetMe—an app that is intended for adults only—and that
“Bailey” was depicted using photographs of a 30-year-old
woman. The resulting confusion about age, he insists, is the
type of “fraudulent representation” that the Mayfield Court
warned against. That argument is squarely foreclosed by our
recent decision in Mercado, 53 F.4th at 1082–83.
In Mercado, we considered a strikingly similar case. Just
like Mr. Anderson, the Mercado defendant met an FBI agent

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30 No. 22-1301
posing as a fifteen-year-old girl on the MeetMe app. Id. at
1074. Like in this case, the two moved the conversation to text
message the very same day. Id. at 1075–76. And just as here,
the profile that the FBI set up used photos of an adult woman,
rather than of an actual fifteen-year-old girl. Id. at 1082–83. We
rejected the defendant’s argument that the photos of an adult
woman were confusing enough to constitute “fraudulent rep-
resentations” under Mayfield:
[R]egardless of how ‘old’ [the potential victim] looked in
the photo, [the undercover agent] told [the defendant]
right away that she was only 15 years old. Associating a
photograph of an adult with the … profile did not present
‘a risk that a person who otherwise would not commit the
crime if left alone would do so in response to the govern-
ment's efforts.’”
Id. at 1082; cf. Barta, 776 F.3d at 937 (finding “fraudulent rep-
resentations” where the government repeatedly set fake
deadlines and fabricated problems in order to convince the
defendant that the bribes were necessary). Put differently,
“fraudulent representations” are about what the government
actually says to a defendant, not what the defendant chooses
to believe.
Here, “Bailey” told Mr. Anderson in no uncertain terms
that she was 15 years old. She did so thirty-four messages into
a 253-message conversation. Perhaps the more important
number is that “Bailey” told Mr. Anderson she was a minor
just sixteen minutes after they moved their conversation from
the MeetMe app to text message. See Mercado, 53 F.4th at 1075
(finding no fraudulent representation where agent informed
defendant that she was a minor four minutes into text mes-
sage conversation). Mr. Anderson, just like the defendant in

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No. 22-1301 31
Mercado, knew within moments that he was speaking to a mi-
nor. Any initial belief that “Bailey” was an adult is not enough
to overcome her early and unequivocal statements that she
was not.
C. Normalization of Sexual Abuse
Finally, the majority notes some similarities between this
case and the First Circuit’s decision in United States v. Pérez-
Rodríguez, 13 F.4th 1, 20 (1st Cir. 2021), including the use of a
dating app and the fact that the government agent was the
first to suggest sex with a minor. The similarities, however,
end there. Pérez-Rodríguez found “some evidence” of govern-
ment inducement where an FBI agent posed as an adult offer-
ing sex with a child and advised the defendant that sexual
abuse would be enjoyable or even beneficial for a minor vic-
tim. See Pérez-Rodríguez, 13 F.4th 1, 20 (1st Cir. 2021). In other
words, where one adult normalizes child sexual abuse for an-
other adult, the First Circuit found that there is “potential to
influence the mind of a person who is not predisposed to
abuse children and convince him that sex with a minor is ac-
ceptable.” Mercado, 53 F.4th at 1082 (citing Pérez-Rodríguez, 13
F.4th at 27). That same risk of undue influence is not present
where, as here, the only one normalizing sex with a child is
that child. Mr. Anderson repeatedly cites the fact that “Bailey”
presented herself as “sexually experienced.” But no law in
this Circuit—nor any law cited from our sister circuits—sug-
gests that a child’s description of her own past sexual abuse
constitutes undue influence, inducing a separate offender to
abuse her again. We held as much in Mercado, and the same is
true here.
For the foregoing reasons, I would affirm the district
court’s holding on the alternate ground that Mr. Anderson

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32 No. 22-1301
has not offered the threshold evidence of government induce-
ment required to mandate a jury instruction on entrapment.

-- 32 of 32 --