United States of America v. Luis A. Tobar

United States Court of Appeals
For the Eighth Circuit
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No. 20-1655
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United States of America,
Plaintiff - Appellee
v.
Luis A. Tobar,
Defendant - Appellant
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Appeal from United States District Court for the District of Nebraska
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Submitted: November 20, 2020
Filed: January 20, 2021
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Before BENTON, ERICKSON and GRASZ, Circuit Judges.
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BENTON, Circuit Judge.

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A jury convicted Luis Antonio Tobar of coercion and enticement of a minor
in violation of 18 U.S.C. § 2422(b). He appeals, arguing that the district court1
should have given instructions on entrapment. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.
Tobar is entitled to an entrapment instruction only if “there is sufficient
evidence from which a reasonable jury could find entrapment.” United States v.
Herbst, 666 F.3d 504, 511 (8th Cir. 2012). An entrapment defense has two
elements: government inducement of the crime, and a defendant’s lack of
predisposition to commit the crime. Id. “Inducement exists when the government
‘implanted the criminal design’ in the defendant’s mind.” United States v. Young,
613 F.3d 735, 747 (8th Cir. 2010), quoting United States v. Eldeeb, 20 F.3d 841,
843 (8th Cir. 1994). If the defendant establishes inducement, the government has
the burden to demonstrate the defendant’s predisposition to engage in the crime.
Herbst, 666 F.3d at 511-12.
“The refusal of a proffered entrapment instruction is a denial of a legal
defense.” United States v. Strubberg, 929 F.3d 969, 976 (8th Cir. 2019). This
court reviews de novo. Id.
On April 11, 2019, the Federal Bureau of Investigation posted an
advertisement on SipSap.com, a website that lists escort and prostitution services.
The ad stated:
This Kitty is ready to play. Talk sweet . . . . pet me just right . . . and
this Kitty will purrrrrrr. Cum see me and you won’t regret it. I love
to have my soft, warm tummy licked.
Tobar tried to call the number in the ad, eventually texting with an
undercover agent he thought was Kitty. They agreed to one hour of sex for $150
1 The Honorable Robert F. Rossiter, Jr., United States District Judge for the
District of Nebraska.

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and to meet at a gas station that evening. Tobar arrived with about $2,000 in cash,
alcohol that Kitty had requested, and the cell phone he used for the texts. Arrested,
Tobar apologized repeatedly, admitted receiving a text that Kitty was only 15, and
offered multiple explanations.
Tobar argues that the evidence was sufficient to show the government
induced him to entice a minor. “Inducement may take different forms, including
pressure, assurances that a person is not doing anything wrong, persuasion,
fraudulent representations, threats, coercive tactics, harassment, promises of
reward, or pleas based on need, sympathy, or friendship.” United States v. Myers,
575 F.3d 801, 806 (8th Cir. 2009). This court considers four factors to determine
inducement: (1) whether the government initiated the contact; (2) the effect of the
photos sent by the government; (3) whether the government introduced the topics
of meeting and sex; and (4) the degree to which the government influenced the
behavior of the defendant by portraying the minor as sexually precocious. Id.
Factor 1. Tobar initiated contact. Seeking a prostitute, Tobar found the Kitty
ad; it was not directed or addressed to him. He called the number in the ad. When
it went unanswered, he texted, “Hi beautiful” and “Are you available.”
Factor 3. After initiating contact, Tobar introduced meeting for sex. True,
the FBI’s Kitty ad, suggested meeting for sex and provided the opportunity. This,
however, is not determinative. See Sorrells v. United States, 287 U.S. 435, 441
(1932) (“[T]he fact that officers or employees of the government merely afford
opportunities or facilities for the commission of the offense does not defeat the
prosecution.”). In early texts, Tobar asked, “how much ½ h”—a common way to
negotiate one-half hour of sex—and “What time babe.” The agent texted, “I’m
kinda young if that’s ok.” Tobar replied, “Yes I like babe.” The agent texted
again, “I’m 15 hopefully that’s not to young.” Tobar replied, “Is your job babe”
and “I yes want woman” with a female-face emoji. Within minutes, Tobar
requested nude photos, texted “I want sex,” and began arranging to meet in person.

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Tobar asserts his texts and conduct are ambiguous. He claims he did not know
Kitty’s age and that SipSap is an adult website that screens out minors, including a
feature to report minors offering sex. To the contrary, Tobar learned Kitty’s age
early on and had many chances to end contact, but rather escalated it by requesting
nude photos and arranging the meeting.
Factors 2 and 4. The photos on the website and in the texts show a clothed
female with cat-like ears and whiskers. Her age is not apparent. Kitty’s profile
has sexually suggestive comments. However, Kitty’s texts were not sexually
explicit. In fact, in response to Tobar’s request for “Naked naked” photos, Kitty
declined, saying “I can’t I would get in trouble.” To the extent Kitty’s photos and
behavior portray her as sexually precocious, it is only to a minor degree. See
Young, 613 F.3d at 747.
On de novo review of the facts, this court agrees with the district court that
Tobar’s enticement of a minor was not induced by the government.
Even if Tobar could establish inducement, the evidence was sufficient to
show he had a predisposition to entice a minor. Predisposition “focuses upon
whether the defendant was an ‘unwary innocent’ or, instead, an ‘unwary criminal’
who readily availed himself of the opportunity to perpetrate the crime.” Myers,
575 F.3d at 805, quoting Mathews v. United States, 485 U.S. 58, 63 (1988).
“[W]hen a defendant responds immediately and enthusiastically to his first
opportunity to commit a crime, without any period of government prodding, his
criminal disposition is readily apparent.” Id. at 807-08.
Discovering Kitty’s age, Tobar quickly asked for nude photos and a meeting
to arrange sex. He responded immediately and enthusiastically, without any
government prodding. Tobar claims his text, “I yes want woman,” expresses a
preference for an older woman, but the context refutes this. Tobar was texting
other escorts—including a 28-year-old the same evening—but pursued the minor.

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The district court properly refused to give entrapment instructions.
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The judgment is affirmed.
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