United States of America v. Mark Fitzpatrick

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 25, 2023
Decided February 13, 2023
Before
DIANE S. SYKES, Chief Judge
DIANE P. WOOD, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2549
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARK FITZPATRICK,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Illi-
nois.
No. 4:20-cr-40087-JPG
J. Phil Gilbert,
Judge.
O R D E R
Following a trial, a jury convicted Mark Fitzpatrick of attempted enticement of a
minor in violation of 18 U.S.C. § 2422(b). In the course of doing so, it rejected the entrap-
ment defense on which it had been instructed. The district court sentenced Fitzpatrick
to the statutory minimum of 120 months’ imprisonment. Fitzpatrick now appeals and
argues that the evidence was insufficient to sustain his conviction. Because a reasonable
trier of fact could have found Fitzpatrick to have committed the essential elements of
his crime and that he was predisposed to commit it without government intervention,
we affirm the judgment.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 22-2549 Page 2
I
This case arose, as many such prosecutions do, from an FBI investigation of vari-
ous online communication platforms to identify people showing a sexual interest in
children. In August 2020, Agent Raymond Hart was operating an undercover profile on
“Adam4Adam,” an online dating application. Hart portrayed a 15-year-old boy,
“Codey,” interested in having sex with men. He used the profile name “Funboy696969,”
and he stated on that profile that he was 18 years old, because that is the minimum age
required by Adam4Adam.
Shortly after Hart created the profile, Fitzpatrick contacted Funboy696969
through a profile named “ass4sure.” In response to Fitzpatrick’s questions, Funboy said
he had “never been with a guy but want[ed] to,” and would like to “give and receive
oral.” He told Fitzpatrick he was looking for older men because he didn’t “trust guys
my age to keep a secret.” Fitzpatrick responded that he was 55 years old and had “cer-
tainly had [his] share of 18 y/o newbie’s before.” At that point (just minutes into the
chat), Funboy revealed that he was only 15 years old, and the conversation continued
with Fitzpatrick expressing his worry of a “trap”:
Funboy: what about 15yo newbies
ass4sure: You are 15?
Funboy: yeah. that’s why I’m discreet. I’d be fucked at school if guys
found out I sucked cock lol
ass4sure: Your profile said you were 18. I can’t do anything since you are
15. I am not interested in going to jail. Sorry.
Funboy: ok. I understand. No worries. I can keep a secret tho.
ass4sure: I don’t doubt you can but the law says you are a minor. This
could be a trap for all I know.
Funboy: Im not looking to trap anybody just have some experiences. I un-
derstand tho. Nice to meet you anyway
One minute after Funboy ended the conversation at Fitzpatrick’s request, Fitz-
patrick restarted it. He bluntly asked Funboy: “Show me your dick.” In response, Hart
sent three pictures from a “cooperating human source”; two pictures showed a face,
and the third partially revealed a bare chest. Fitzpatrick responded that he wished Fun-
boy were older, but that they should stay in touch because he remained “interested” de-
spite nervousness about Funboy’s age:

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No. 22-2549 Page 3
ass4sure: I just wish you were older.
Funboy: sorry. I can’t help that
ass4sure: Yeah. I know. Well hit me up later if you can’t find anyone.
Funboy: if ur interested and serious I will
ass4sure: I am interested and I am serious. Just a little nervous about it.
Funboy: I wouldn’t want u to be nervous cause I will be cause I’m not sure
if I’m any good at it
ass4sure: I am only nervous due to your age.
Funboy said Fitzpatrick would have to “teach” him; Fitzpatrick replied that he would
“do [Funboy] first so [he] could know what to do.”
Fitzpatrick then asked if Funboy would “rather have a number to text.” Funboy
said sure and introduced himself as “Codey.” The conversation on Adam4Adam then
ended, after 59 minutes. Following Fitzpatrick’s invitation, “Codey” sent a text message
to the phone number that Fitzpatrick provided him, and the conversation moved to that
platform.
Fitzpatrick and “Codey” continued texting for five days. During that time, Fitz-
patrick repeatedly expressed interest in making plans to meet “Codey.” Early in the
conversation, “Codey” suggested that he would be alone during the upcoming week-
end because his mother was going out of state. The two exchanged photographs, and
Fitzpatrick again unsuccessfully requested nude photographs.
Communications continued, alternating between Fitzpatrick worrying about a
trap and disregarding that fear to keep engaging with “Codey.” For example, over text
Fitzpatrick asked “your age still makes me nervous. How do I know that you aren’t the
police trying to entrap me?” Yet Fitzpatrick asked “Codey” about masturbation, or-
gasms, and the acts that he and “Codey” could perform when they met. After asking
“Codey” what sexual position he wanted to use, he graphically described different sex
positions and said they could try them “just to see which position you like.” Fitzpatrick
said that he wanted sex on a “regular basis” with “Codey” if that was what “Codey”
wanted.
Eventually, Fitzpatrick set out to visit “Codey’s” home. Agents conducting sur-
veillance observed Fitzpatrick drive past the home four times in a short period and then
pull into the driveway. When Fitzpatrick knocked on the door, officers arrested him.

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No. 22-2549 Page 4
After the government presented this evidence, it rested its case, and Fitzpatrick
moved for judgment of acquittal under Rule 29(a) of the Federal Rules of Criminal Pro-
cedure. The district judge denied that motion without elaboration. The following day,
Fitzpatrick rested without presenting any evidence. The judge submitted the case to the
jury and gave the defense-tendered instruction on an entrapment defense. The jury re-
turned a guilty verdict, and the judge sentenced Fitzpatrick to a term of 120 months in
prison.
II
On appeal, Fitzpatrick challenges the sufficiency of the evidence. In doing so, he
faces what this court has called a “nearly insurmountable” hurdle. See, e.g., United States
v. Farmer, 38 F.4th 591, 602 (7th Cir. 2022). We assess the sufficiency of the evidence by
considering it “in the light most favorable to the government and draw[ing] all reasona-
ble inferences in its favor.” We vacate the conviction only if no rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. United
States v. York, 48 F.4th 494, 499 (7th Cir. 2022). Where there are competing interpreta-
tions of the events that transpired, the choice of which version to believe is up to the
jury, not us. Farmer, 38 F.4th at 602 (“We can neither reweigh the evidence nor reassess
witness credibility.”).
Fitzpatrick raises two sufficiency arguments. First, he contends that the evidence
of an intent to entice a minor was insufficient, and second, he argues that the evidence
mandated a finding that the government entrapped him. We address them in that or-
der.
A
The evidence we have described is more than sufficient to show that Fitzpatrick
attempted to entice a minor. A person who “knowingly persuades, induces, entices, or
coerces any individual who has not attained the age of 18 years, to engage in prostitu-
tion or any sexual activity for which any person can be charged with a criminal offense,
or attempts to do so” using the mail or a means of interstate or foreign commerce is
guilty of enticing a minor. 18 U.S.C. § 2422(b). Section 2422(b) criminalizes encouraging
and obtaining a minor’s agreement to engage in sex; it does not require proof of an in-
tent to engage in such activity. See United States v. Berg, 640 F.3d 239, 252 (7th Cir. 2011).
To prove an attempt to entice a minor, the government needed to prove that Fitzpatrick
(1) had the specific intent to commit the underlying crime of enticing a minor and
(2) took a substantial step towards completion of the offense. Id. at 246.

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No. 22-2549 Page 5
Fitzpatrick’s main argument is that the evidence was insufficient to prove that he
intended to persuade, induce, or entice “Codey” to engage in illicit sex. (He does not
contest other elements of the offense.) He insists that he was enticed by “Codey,” who
sent him alluring pictures, and he just wanted to fantasize about “Codey” until he suc-
cumbed to Hart’s unrelenting pressure to meet.
But that is not the way the standard of review works, and it also mischaracterizes
much of the evidence. It is not enough for Fitzpatrick to offer one favorable, rational
view of the evidence; he must demonstrate that the evidence, when considered in the
government’s favor, would not be enough to convict. See York, 48 F.4th at 499; Berg,
640 F.3d at 246. The evidence here permitted the jury to find that Fitzpatrick attempted
to entice a person he believed to be a minor. First, Fitzpatrick contacted “Codey.” Sec-
ond, when Fitzpatrick hesitated upon learning that “Codey” was 15, “Codey” ended
contact with “nice to meet you anyway,” but a minute later, Fitzpatrick restarted the ex-
change with the sexually explicit request to “show me your dick.” Third, it was Fitzpat-
rick who offered “Codey” his phone number, arranged to take the conversation off the
platform that barred minors, and discussed the various sexual positions and acts they
could perform on a “regular basis.” A rational jury could see these facts as ample evi-
dence of substantial steps toward enticing a minor. See Berg, 640 F.3d at 252.
Fitzpatrick responds that “Codey” promised to keep contacting Fitzpatrick (and
thereby pressuring Fitzpatrick to meet) despite “Codey’s” age, as reflected in this ex-
change:
ass4sure: I just wish you were older.
Funboy: sorry. I can’t help that
ass4sure: Yeah. I know. Well hit me up later if you can’t find anyone.
Funboy: if ur interested and serious I will
But a rational jury did not have to find from this dialogue that “Codey” would keep
contacting Fitzpatrick, no matter what Fitzpatrick said. Rather, it could focus on the fact
that Fitzpatrick solicited “Codey” by asking him to “hit me up later” and that “Codey”
said he would do so only if Fitzpatrick was “interested and serious” (which Fitzpatrick
confirmed he was). Moreover, a debate about “Codey’s” interest in illicit sex is beside
the point. The government had to prove only that Fitzpatrick intended to induce a per-
son he believed to be a minor to assent to illicit sex. “[A] minor’s willingness or unwill-
ingness to engage in sexual activity is irrelevant.” York, 48 F.4th at 500. Here, Fitzpat-
rick’s persistent sexual talk with a minor, request for nude photos, exploration of the

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No. 22-2549 Page 6
minor’s sexual history and preferences, and description of sexual acts to be performed
were enough for a jury to find that Fitzpatrick attempted to entice a minor. Id. at 500–01.
B
Entrapment, if proven, is a complete defense to the crime of enticement. See id.
at 502. Once the instruction was given to the jury, the government had to prove that
Fitzpatrick was not entrapped. See United States v. Mayfield, 771 F.3d 417, 439 (7th Cir.
2014) (en banc). This required it to prove, in addition to the other elements of the crime,
that Fitzpatrick was predisposed to commit the charged crime or that the government
did not induce him. Id. at 440, 443.
Fitzpatrick argues that a rational jury would have been compelled to find that he
was entrapped. He cites his refusal to commit to sex “until Funboy’s efforts at persua-
sion,” flattery, reassurances (that “Codey” was not the police), and manipulations fi-
nally overcame his resolve against enticing “Codey.” He contends that this evidence
demonstrates a level of persistence from the government similar to that found in United
States v. Barta, 776 F.3d 931, 937, 939 (7th Cir. 2015), where we held that the evidence
compelled a finding of entrapment.
Once again Fitzpatrick’s argument fails because it assumes, incorrectly, that Fitz-
patrick’s view of the evidence is the only rational one. The jury was not required to in-
terpret the evidence as Fitzpatrick frames it. Unlike the situation in Barta, where the FBI
repeatedly called and emailed the defendant despite receiving no response from him,
Fitzpatrick took the initiative over and over again. He began the conversation with
“Codey” and reinitiated it when “Codey” attempted to end it. Then, after he initially
said that he was “nervous” about “Codey’s” age of 15, he pursued “Codey” by insisting
that he was “interested” and “serious,” asking for nude photographs, and offering to
teach “Codey” sex acts. Fitzpatrick also proposed that they leave the online platform
and stay in touch over text, where over five days he discussed his hope for “regular”
sex. Finally, it was Fitzpatrick who drove to “Codey’s” home, walked up his driveway,
and knocked on his door. A reasonable jury thus could, and did, interpret this evidence
as demonstrating that Fitzpatrick was predisposed to obtain “Codey’s” consent to en-
gage in sex, without additional prodding from the government.
III
Because the evidence was sufficient to support Fitzpatrick’s conviction for at-
tempted enticement of a minor and for the jury to find that the government did not en-
trap him, we AFFIRM the judgment of the district court.

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