United States v. Rafael Mercado Berrios ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3062
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAFAEL MERCADO BERRIOS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 20-CR-30048 — Sue E. Myerscough, Judge.
____________________
ARGUED MAY 24, 2022 — DECIDED NOVEMBER 18, 2022
____________________
Before EASTERBROOK, WOOD, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. Rafael Mercado used an Internet
application to meet “Alexis,” a profile operated by a trained
FBI agent conducting an undercover investigation of adults
with sexual interest in children. After a few minutes of tex-
ting, “Alexis” told Mercado she was 15 years old. For the next
five days they texted, exchanged photos, and once spoke by
phone.
2 No. 21-3062
Each day, Mercado initiated text conversations with
“Alexis” in which he introduced explicit sexual content. He
raised various sexual topics, and he described a series of sex-
ual acts he wanted to engage in with her. Mercado also sent
“Alexis” sexually graphic and suggestive messages and emo-
jis, and he asked her to smoke marijuana and drink alcoholic
beverages with him.
They arranged to meet at a house which turned out to be
an FBI operations center. When Mercado arrived, he was ar-
rested. After Mercado exhibited health problems, he was
taken to a hospital and administered medication. Later, he
was interviewed at the hospital, waived his Miranda rights,
and made some inculpatory admissions.
Mercado was charged in a two-count indictment with at-
tempted enticement of a minor in violation of 18 U.S.C.
§ 2422(b) and use of interstate facilities to attempt to transmit
information about a minor in violation of 18 U.S.C. § 2425. He
opposed a government motion to preclude an entrapment de-
fense, but the district court ruled against him. That court also
denied Mercado’s motion to suppress his statements and evi-
dence obtained in his hospital interview. A jury convicted
him on both counts.
On appeal Mercado challenges the district court’s rulings,
arguing there was sufficient evidence to warrant an entrap-
ment jury instruction. He also contends his suppression mo-
tion should not have been denied because he did not validly
waive his Miranda rights. He further submits that his state-
ments were involuntary as he was under the influence of
drugs when he talked to the agents, and authorities coerced
his statements. We disagree and affirm the district court’s rul-
ings.
No. 21-3062 3
I. Background
A. Investigation
These relevant facts come from the jury trial transcript and
other district court records.
Rafael Mercado Berrios 1, who lived in Springfield, Illinois,
had a profile on MeetMe, an Internet application often used
by persons wanting to meet for casual sex. Online, Mercado
was “Jose Mer.” MeetMe requires users to be at least 18 years
old, and in August 2020 Mercado was 41 years old.
FBI agent Matthew Carter, who was trained and certified
to conduct online undercover investigations, used MeetMe to
investigate adults with sexual interest in children. MeetMe
was chosen, he testified, because the FBI had previously dis-
covered child victims being exploited on that application.
Carter created a profile of a girl named Alexis. To comply with
MeetMe’s age requirement, she was listed as 18 years old. The
profile included a photo of a female confidential source who
agreed to assist the FBI with its investigation. Although she is
an adult, a filter was used to make her appear younger. Carter
testified at trial that, through Alexis, he portrayed a naïve, in-
experienced child, allowing the defendant to educate her on
what he wanted.
During each of the next five days Mercado and Carter as
Alexis exchanged numerous, and occasionally lengthy, text
messages. They also swapped photos of themselves, mostly
Mercado requesting pictures of Alexis. Carter kept a library
of photos of the confidential source for this purpose. If
1 The defendant prefers to use the last name “Mercado,” a convention
we adopt.
4 No. 21-3062
Mercado made a specific request of Alexis, such as to speak
on the phone or for a particular pose in a picture, the confi-
dential source remained with Carter at the FBI operations
house to ensure that conversation could take place, or an im-
age could be taken with current content, date, and time stamp.
The details of the interactions between Mercado and
Carter as Alexis are important to Mercado’s challenges to his
convictions, so we review them now.
Monday, August 24, 2020. Mercado initiated a MeetMe chat
with Alexis at 4:39 p.m. In his initial contact Mercado asked
for additional pictures. The conversation quickly moved off
MeetMe to text messaging from their respective cell phones.
Within the first four minutes, Alexis told Mercado that she
was 15 years old (“almost 16”). Mercado acknowledged this,
stating she was “young.” Mercado then told Alexis she had “a
great body” for “only being 16” and Alexis clarified that “I’m
15 and I hate school.” Carter later testified that the authorities
wanted to “get the age of the child out as soon as we can” so
the person they are “communicating with knows that they’re
speaking with a child.”
Carter as Alexis texted Mercado that she would soon be
house sitting by herself. Mercado asked Alexis if she liked
how he looked, which she said she did. He then asked if she
liked “watching Netflix and chillin’,” to which Alexis replied,
“I’m looking for more than Netflix and chill.” After Alexis
again said she was “looking for more than that” because she
seldom had the house to herself, Mercado wrote “Oh … I can
do more than that if you want. What is your desire?” Alexis
wrote that she was embarrassed because she had not “done
very much.” Mercado responded he could “help” with her in-
experience because he was “all about fun.” Mercado then
No. 21-3062 5
asked, “Are we talking about regular activities outdoors or in-
doors?” Alexis responded, “Guess it could be either.” Mer-
cado briefly discussed an array of non-sexual activities, like
tennis and frisbee. Alexis wrote, “I don[‘]t think we are talk-
ing about the same type of fun.” Mercado answered, “Ok
good … I wasn[‘]t sure. If you meant fun fun or just fun. So …
I love to eat you know what.” Mercado continued, “I also have
done many positions.” Alexis answered, “I have never had
that before” Mercado continued “And licking and caressing.
… Especially how I do it. I really enjoy it.” Mercado contin-
ued, “I can also play some domination” and “It feels really
good. If done right. And u can have multiple you know
whats.”
In response, Alexis asked Mercado, "Why are u talking like
that." Mercado answered, "Just being careful." Alexis: "What
do u mean." Mercado explained: "Your age. … You have heard
of people getting in trouble right?" and "Didn[']t want to say
the words. Unless you want me to. You give me consent?"
Alexis responded, “Yes defin[i]tely.”
Mercado then continued the text conversation and graph-
ically described a series of sexual acts and sexual positions
that he wished to engage in with Alexis. He also asked for a
photo of her genitalia. Mercado continued his graphic sexual
commentary, including how many times he would engage in
sexual acts with her. Mercado confirmed that they could meet
that weekend, which he reiterated in each of their text conver-
sations over the next four days. After Mercado asked Alexis if
she “actually had sex?” Alexis responded “I’m [] a virgin. I
know that’s embarrassing.” Mercado continued his graphic
sexual commentary, weaving in references to virginity.
6 No. 21-3062
Their conversation continued until Alexis told Mercado
that she needed to run errands. He told her to reach out when
she wanted to talk more. After a two-hour break, Carter as
Alexis texted Mercado and they resumed their conversation
until 10:46 p.m. that night. Mercado tried to contact Alexis five
more times that night without a response.
Tuesday, August 25, 2020. The next morning Mercado initi-
ated another text conversation with Alexis. He requested an-
other photo, which Carter as Alexis sent. Mercado then sent
her a sexually suggestive emoji and texted how he could not
“wait to pass [his] hands on [her] smooth skin.” They dis-
cussed the logistics of their planned meetup. Mercado said he
would “bring some goodies,” such as drinks, marijuana, can-
dles, and a blindfold.
During this text conversation, Mercado again made sev-
eral explicit sexual references. Mercado sent Alexis two
GIFs—graphical interchange format, a series of images in con-
tinuous loop—including of a woman having an orgasm. He
also said there were perks to being “dominant” and “submis-
sive.” Mercado asked Alexis for an email address, which
Carter sent to him. Mercado also asked to speak by phone
with Alexis the next day.
Wednesday, August 26, 2020. The following morning Mer-
cado again initiated a text conversation with Alexis. He asked
if she shaved “down there,” which Carter took to mean her
pubic hair. Mercado brought up spanking Alexis, asked what
types of alcoholic beverages she liked, and wondered if she
had ever gotten drunk. Mercado asked Alexis for another
photo of herself in which she sent him a kiss, and Carter as
Alexis complied. Mercado also established that Alexis had not
used marijuana. When they met, Mercado asked her to drive
No. 21-3062 7
around with him while smoking marijuana and listening to
music.
Thursday, August 27, 2020. Mercado again initiated a text
conversation with Alexis the next morning He had gotten his
haircut and sent “her” a picture of himself. Mercado asked
Alexis for a picture licking or biting her lip, and Carter as
Alexis complied. Mercado then raised the topic of Alexis’s vir-
ginity and her sexual experiences. He described sexual acts he
would perform on her, said how “your [sic] going to love it
when I make you a wo[m]an,” and how “[y]our [sic] going to
want to do it many times and I will be able to.”
Mercado then explained his schedule for the next day. Af-
ter Mercado sent Alexis a series of GIFs and emojis, the second
of which said “I wanna do bad things with you,” Mercado
spoke by telephone with the confidential source posing as
Alexis. When asked on the witness stand why the phone call
took place, Carter said that Mercado had requested it and the
call provided “a certain type of realism” to the profile.
After the phone call, Mercado asked for another picture,
which Carter as Alexis sent. Mercado said he was “not having
sex with many women” and he asked Alexis if she wanted
him to bring condoms. When Carter as Alexis said Mercado
could bring sexual lubricant, he agreed to do so. Mercado
asked whether Alexis’s neighbors were nosy, and where he
should park. He also asked for “her” address. Mercado then
sent a series of emojis which read together were sexually sug-
gestive. He and Alexis then exchanged photos and Mercado
sent two more sexually suggestive GIFs.
Friday, August 28, 2020. On the day of the planned meeting,
Mercado initiated a text conversation: “You are not baiting me
8 No. 21-3062
right? … You are not with law enforcement or affiliated to law
enforcement right?” Carter as Alexis texted she was not and
asked if Mercado was. Mercado texted: “Oh no baby … I am
asking because of your age. I wanted to make sure. I have a
good life and I don[‘]t want it all screwed up … just making
sure.”
Mercado told Alexis he was getting the alcoholic beverage
White Claw, alluded to sexual lubricant, and said “I can’t wait
to get my arms around you.” Later that day Mercado again
asked Alexis for her address. Carter as Alexis texted Mercado
the address of an FBI operations house in Springfield. Mer-
cado drove to that address and arrived at approximately 5:50
p.m., where agents arrested him. On his person Mercado had
the cell phone linked to the MeetMe account, as well as mari-
juana. In his car he had sexual lubricant and a case of White
Claw.
First Interview. Law enforcement agents brought Mercado
inside the operations house and into an interview room. The
agents read Mercado his Miranda rights and he signed a form
waiving those rights. After speaking briefly with the agents,
Mercado asked for an attorney. The agents stopped their
questioning, and when they told Mercado he was going to jail
he started hyperventilating and pleading with them. The
agents attempted to calm Mercado down, including by re-
moving his handcuffs, but he passed out. The agents then
called 911 and paramedics transported him to a nearby hos-
pital.
At the hospital Mercado regained consciousness after a
few minutes. The attending physician observed that Mercado
“spontaneously recovered” and he began speaking quickly.
Mercado said he was agitated because he suffered from post-
No. 21-3062 9
traumatic stress disorder and anxiety. The sedative loraze-
pam (Ativan) was administered, but it did not appear to affect
Mercado. It turns out Mercado was already taking a similar
drug, alprazolam (Xanax), which could have explained why
his demeanor did not change. To the physician, Mercado re-
mained conscious and alert. He spoke clearly and he did not
show signs of intoxication. The physician believed Mercado
may have been exaggerating his symptoms, so he arranged
for Mercado to be returned to law enforcement.
Second interview. After Mercado had been at the hospital
for more than three hours, and about 2 hours and 10 minutes
after he received lorazepam, a detective escorting Mercado
alerted the law enforcement agents from the first interview at
the operations house that Mercado wanted to speak with
them again. The agents went to the hospital and spoke with
Detective Howard, who said Mercado “was alert, conscious,
talking” and had been engaging in small talk.
The agents again read Mercado his Miranda rights, which
they told him applied because he was in custody. Mercado
began by asking “Will you let me go home” in a low volume,
speaking slowly, and drawled out. He made eye contact with
them, and his questions were appropriate. Based on the
agents’ experience, Mercado was not intoxicated.
Several times Mercado asked the agents about going
home. Detective Howard told Mercado that she would ask her
boss, and then she said, “so it’s kind of depending on the out-
come of – I don’t know what you’re going to say to me when
I ask you questions, okay?” Mercado responded, “Even in
custody it doesn’t really mean I’m going to go straight to jail.”
One of the agents replied, “I don’t know the answer to that,
okay? And I don’t know that because I don’t know what
10 No. 21-3062
you’re going to tell me, okay?” Mercado then said, “Ok, ok …
I’ll start I guess.”
Again, the agents advised Mercado that he had a right to
talk to a lawyer before answering any questions. Mercado
asked how that was possible. One of the agents explained that
an attorney could be assigned to him. After Mercado said he
understood he had the right to talk to an attorney and he
signed another waiver of his rights, the second interview pro-
ceeded.
Mercado admitted that Alexis told him she was 15 years
old. When one of the officers referred to her as “Alexa,” Mer-
cado corrected the officer that her name was Alexis. Mercado
said he did not plan to have sex with her, and he offered mul-
tiple contradictory explanations for his actions. Then he said
he thought Alexis was a “bot” rather than a real person, that
he wanted to stop her from being assaulted by someone else,
and that the White Claw alcoholic beverages were for his
friends. Mercado also consented to a search of his phone, on
which agents located his text messages with Alexis.
B. Procedural History
Mercado was charged with attempted enticement of a mi-
nor in violation of 18 U.S.C. § 2422(b) and use of interstate
facilities to attempt to transmit information about a minor in
violation of 18 U.S.C. § 2425. He pleaded not guilty.
Before trial the government filed a motion about antici-
pated defenses and evidence. The motion included a request
to preclude an entrapment defense. Mercado opposed the
motion, and he proposed jury instructions on the elements of
entrapment which defined the terms “induce” and “predis-
posed.” The district court granted the government’s motion
No. 21-3062 11
and declined to instruct the jury on entrapment. In the district
court’s view, Mercado was predisposed to commit the of-
fense; even if he was not, there was insufficient evidence of
inducement to warrant an instruction on entrapment.
Mercado also moved to suppress his statements and evi-
dence obtained during the second interview. He argued that
he had unambiguously invoked his right to counsel, so any
questioning should have stopped. His waiver of rights was
also invalid, he said, because he was intoxicated when he
spoke to the agents. The government opposed this motion.
At a hearing, the district court heard testimony from the
two investigating agents who questioned Mercado and the
emergency room physician who treated him. The court also
received medical opinions about Mercado’s condition at the
hospital from physicians from both parties. In a lengthy opin-
ion, the district court concluded that:
 Mercado did not unequivocally invoke his right
to counsel during the second interview;
 under the totality of the circumstances, his Mi-
randa waiver was knowing, intelligent, and vol-
untary;
 his statements during the second interview
were voluntary; and
 his consent to search his electronic devices was
knowing, intelligent, and voluntary.
So, the district court denied the suppression motion.
A three-day trial took place, at which Mercado did not ask
to readdress the entrapment issue. A jury convicted Mercado
on both counts, and he was sentenced to 120 months’
12 No. 21-3062
imprisonment. On appeal he challenges the district court’s
failure to instruct the jury on entrapment and the denial of his
motion to suppress.
II. Entrapment Jury Instruction
We review de novo Mercado’s challenge to the district
court’s decision not to instruct the jury on entrapment. United
States v. Pillado, 656 F.3d 754, 763 (7th Cir. 2011).
A. Legal Framework
Entrapment “is a defense to criminal liability when the
defendant was not predisposed to commit the charged crime
before the intervention of the government’s agents and the
government’s conduct induced him to commit it.” United
States v. Mayfield, 771 F.3d 417, 420 (7th Cir. 2014) (en banc). In
Mayfield this court comprehensively reviewed its case law on
entrapment. See United States v. Garcia, 37 F.4th 1294, 1301–02
(7th Cir. 2022) (describing Mayfield’s rulings). Entrapment is
an affirmative defense on which the government bears the
burden of proof beyond a reasonable doubt. Mayfield, 771 F.3d
at 439.
This court has adopted pattern criminal jury instructions
on entrapment and its elements. THE WILLIAM J. BAUER
PATTERN CRIMINAL JURY INSTRUCTIONS OF THE SEVENTH
CIRCUIT, §§ 6.04 & 6.05 (2020 ed.). “[T]he defendant is entitled
to a jury instruction on the defense ‘whenever there is suffi-
cient evidence from which a reasonable jury instruction could
find entrapment.’” Mayfield, 771 F.3d at 440 (quoting Mathews
v. United States, 485 U.S. 58, 62 (1988)). The two elements of
entrapment—predisposition and inducement—though dis-
tinct from each other, are “conceptually related.” Id. at 420,
430. “[T]o obtain a jury instruction and shift the burden of
No. 21-3062 13
disproving entrapment to the government, the defendant
must proffer evidence on both elements of the defense. But
this initial burden of production is not great. An entrapment
instruction is warranted if the defendant proffers some evi-
dence that the government induced him to commit the crime
and he was not predisposed to commit it.” Id. at 440. (citations
omitted). “Put another way, ‘[a]lthough more than a scintilla
of evidence of entrapment is needed before instruction on the
defense becomes necessary, the defendant need only point to
evidence in the record that would allow a rational jury to con-
clude that he was entrapped.’” Id. (citations omitted)
This court cautioned in Mayfield that “assessing ‘suffi-
ciency’ in this context does not mean that the judge weighs
the evidence or decides whether the defense is believable.
‘[W]here there is at least some evidence [of entrapment] in the
record, it is for the jury … to weigh conflicting testimony, to
draw reasonable inferences from the evidence[,] and to make
credibility determinations.” Id. (citations omitted)
Mayfield also addressed whether before trial the district
court may preclude the defendant from asserting an entrap-
ment defense. Id. at 440–41. “As a practical matter, entrapment
is now regularly litigated as it was here: before trial, on the
government’s motion in limine to preclude the defense.” Id.
at 440. Although permissible, this court noted “an increased
risk that the court will be tempted to balance the defendant’s
evidence against the government’s, invading the province of
the jury.” Id. So, when ruling on a pretrial motion to preclude
entrapment, the district court must accept as true the defend-
ant’s proffered evidence, and not weigh the government’s ev-
idence against it. Id.
14 No. 21-3062
The two elements, predisposition and inducement, also
“are not equally amenable to resolution before trial,” accord-
ing to Mayfield. Id. at 441. Predisposition is a factual question,
so it is hard to conclude “how a particular person could be
deemed ‘likely’ to do something as a matter of law.” Id. “The
inducement inquiry, on the other hand, may be more appro-
priate for pretrial resolution; if the evidence shows that the
government did nothing more than solicit the crime on stand-
ard terms, then the entrapment defense will be unavailable as
a matter of law.” Id. We consider the latter element next.
B. Government Inducement
“[I]nducement means more than mere government solici-
tation of the crime.” Mayfield, 771 F.3d at 434. “Instead, in-
ducement means government solicitation of the crime plus
some other government conduct that creates a risk that a
person who would not commit the crime if left to his own de-
vices will do so in response to the government’s efforts.” Id.
at 434–35. That conduct may include “repeated attempts at
persuasion, fraudulent representations, threats, coercive tac-
tics, harassment, promises of reward beyond that inherent in
the customary execution of the crime, pleas based on need,
sympathy, or friendship.” Id. 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
government’s efforts” may qualify as inducement. Id. at 435.
As previously stated, when considering a pretrial motion
to prohibit an entrapment defense, the district court must ac-
cept the defendant’s proffered evidence as true and not weigh
the government’s evidence against it. Id. at 440. The district
court here satisfied that requirement. It only examined the ev-
idence of inducement that Mercado pointed to—his text
No. 21-3062 15
conversations with Alexis—and it expressly avoided other ev-
idence offered by the government.
The district court first considered whether comments by
Carter as Alexis constituted solicitation, or more than that.
The court reviewed the texts in detail. They included two
comments by Carter as Alexis about “looking for more than
Netflix and chill” and not thinking they were “talking about
the same type of fun.” To the district court, those two “com-
ments were at most a mere solicitation for Defendant to com-
mit the offense,” and “no more than a mere invitation.” The
comments were “open-ended” and not inducement for which
the entrapment defense was warranted. That Mercado “’re-
lented,’ if it can even be called that … based on nothing more
than the[se] … open-ended comments” persuaded the district
court that the government did not improperly induce Mer-
cado to commit the crimes. 2
Mercado sees government inducement in how his text
conversations with Alexis unfolded. He contends Alexis was
“the first person to suggest that he was interested in more
than just watching Netflix and urg[ed] [him] to use sexually
2 A few words about the legal standard for inducement that the dis-
trict court referenced. Mercado argues the district court employed an im-
proper standard by requiring that “extraordinary inducement” be shown.
In Mayfield, this court considered the complication the term “extraordi-
nary” had presented in decisions of the Supreme Court and this court, and
“made a fresh start with a definition of inducement.” 771 F.3d at 434. Here,
the district court cited to and quoted from the correct standard of Mayfield,
771 F.3d at 434–35, and eventually concluded that the statements of
“Alexis” constituted a “mere solicitation,” which would not implicate the
clarification of inducement in Mayfield. The district court’s mention of the
term “extraordinary” did not affect its ruling or implicate the reset of the
law on inducement in Mayfield.
16 No. 21-3062
explicit language,” and he characterizes the “Netflix” com-
ment as “escalat[ing] the conversation.” To Mercado, only
when Carter as Alexis said they were “talking about a differ-
ent kind of fun” did Mercado make sexual comments. He as-
serts Alexis “repeatedly tried to get [him] to engage in sexual
conversation even when [he] was not doing so himself.”
But Mercado’s renditions of the text conversations are not
accurate, as seen in their detailed recitation above. Mercado,
not Alexis, introduced explicit sexual content into their text
conversation, despite Alexis having stated multiple times that
she was 15 years old. Mercado was the first to raise the topic
of physical appearance, telling Alexis five minutes into their
first conversation that she had a “great body for only being
16.” Mercado seized on the ambiguous statement from Alexis
about the type of fun they would have, and he repeatedly in-
jected explicitly sexual content, either by asking about it or
steering their conversations to it. The full transcript of the text
conversations shows that shortly after Mercado’s “open
ended” comments, he was engaging in graphic sexual
commentary with someone whom he had found out shortly
before was (he thought) a 15-year-old girl. They show him re-
peatedly raising sexual topics, asking for photographs (such
as of her genitalia and “biting her lip”), and sending sexual
GIFs and emojis.
For support, Mercado points to United States v. Pérez-
Rodríguez, 13 F.4th 1 (1st Cir. 2021), a First Circuit decision
holding that a defendant presented sufficient evidence of
inducement to justify an entrapment instruction. But that de-
cision’s facts differ from those here. In Pérez-Rodríguez the
law-enforcement agent posed as an adult. The agent first dis-
cussed the prospect of sex with the defendant, before bringing
No. 21-3062 17
up the agent’s minor boyfriend in the proposed sexual activ-
ity. Id. at 20–22. Because the defendant expressed interest in
the agent—the adult, rather than the minor—the First Circuit
held that a jury could conclude the defendant would not have
attempted to entice a minor without the agent’s encourage-
ment. Id. at 22. Further, according to that court, in that context
the government’s “perverse statements that the minors would
enjoy and benefit from sexual exploitation were important be-
cause such suggestions have the potential to influence the
mind of a person who is not predisposed to abuse children
and convince him that sex with a minor is acceptable.” Id. at
27.
Here, Carter posed as a minor, and no adult was involved
in whom Mercado would express interest. In the text ex-
changes between Mercado and Alexis there were no com-
ments from anyone posing as an adult that suggested minors
would benefit from sexual exploitation. Mercado was also the
first to make explicit comments about sex. Thus, contrary to
Mercado’s suggestions, Pérez-Rodríguez is not persuasive.
One way inducement may be shown is if a defendant re-
peatedly declines persistent government pressure. See May-
field, 771 F.3d at 420–21, 441 (entrapment instruction war-
ranted when informant offered multiple opportunities over
lengthy time period to engage in drug sales or robbery, and
defendant agreed to commit crime only after informant
implied harm if defendant did not repay loan). The text mes-
sages on Monday, August 24, 2020, do not show Mercado re-
peatedly declining escalating government pressure. Instead,
he initiated their text conversations. In the first four minutes,
Alexis told Mercado she was 15 years old, and seven minutes
into their first interaction she had mentioned twice more that
18 No. 21-3062
she was underage. Mercado immediately stated that Alexis
had a “great body.” About 40 minutes into their texting, Mer-
cado first sexualized the conversation, stating “So … I love to
eat you know what” and “I also have done many positions.”
And only 16 minutes passed from Mercado’s Netflix com-
ment—a euphemism for casual sex—to Mercado raising and
indirectly referencing oral sex and sexual positions.
We agree with the district court that these two comments
by Carter as Alexis were no more than solicitations or invita-
tions. Government solicitation of a crime does not constitute
inducement for the purpose of an entrapment defense. May-
field, 771 F.3d at 440.
Beyond these two comments by Carter as Alexis, Mercado
points to what he believes are “plus” factors that qualify the
government’s conduct here as inducement. We consider each
in turn.
1. Age of the Confidential Source. Mercado claims Carter
“fraudulently misrepresented” the age of the FBI’s confiden-
tial source depicted in the pictures Carter sent Mercado. The
MeetMe profile used a picture of an adult female, but when
Mercado sought further pictures of “Alexis,” Carter sent pic-
tures of an adult female that “he misrepresented as depicting
a 15-year-old.” To Mercado, this created a greater risk of en-
trapping an innocent suspect when it confused him by
providing him with the picture of an adult.
This argument falls short because regardless of how “old”
Alexis looked in the photo, Carter as Alexis told Mercado
right away that she was only 15 years old. Associating a pho-
tograph of an adult with the Alexis profile did not present “a
risk that a person who otherwise would not commit the crime
No. 21-3062 19
if left alone would do so in response to the government’s ef-
forts.” Mayfield, 771 F.3d at 435. The photograph is not analo-
gous to an improper inducement, such as a threat of violence
or a personalized appeal to friendship. Cf. id. at 441 (holding
that these tactics were sufficient evidence from which a rea-
sonable jury could find inducement). The text conversation
between Mercado and Alexis shows the defendant believed
she was 15 years old. Mercado says to Alexis “Oh wow. Your
[sic] young,” and Carter as Alexis twice repeated her age.
Mercado acknowledged her age and said it could present le-
gal trouble for him.
Given that the age of Alexis did not deter Mercado, the
photograph of a youthful-looking adult does not support the
defendant’s contention that but for the government’s efforts,
he would not have committed the crime of attempted entice-
ment.
2. Resuming the Text Conversation. Mercado also argues
that Carter as Alexis induced him to commit these crimes
because during their first night of text messaging, after a two-
hour pause, Alexis reached out and resumed the conversa-
tion.
Mercado’s take on this sequence does not make it a “plus”
factor. Carter as Alexis told Mercado that she needed to run
errands. Mercado told her to reach out when she wanted to
talk more. After a two-hour break, Alexis texted Mercado and
they resumed their conversation until 10:46 p.m. This does not
qualify as inducement, as Mercado invited Alexis to text him.
Further, as the government points out, Mercado tried to
contact Alexis five more times that night without a response.
Even more, Mercado initiated contact with Alexis each of the
20 No. 21-3062
next four days. The single occasion on which Carter actively
resumed the text conversation, at Mercado’s invitation, does
not show inducement.
3. Use of an Internet application that facilitates adult
connections. Mercado argues that Carter's use of an Internet
application that facilitates adult connections to investigate in-
dividuals with a sexual interest in children amounted to in-
ducement. We disagree. In agent Carter's experience, MeetMe
is used for sex, not dating, as evidenced by its geographic lo-
cation features. It is also commonly used to find children.
Additionally, Mercado knew he was not pursuing an "adult
connection" within minutes of talking to Alexis. The govern-
ment's use of MeetMe is thus hardly "other government con-
duct 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 government's efforts," Mayfield, 771 F.3d at 434–35.
4. Agent’s enthusiasm for illicit sex. Mercado also argues that
“enthusiasm for illicit sex” by Carter as Alexis should be con-
sidered a potential “plus” factor. Mercado could be taking is-
sue with how Carter phrased some of the text messages from
Alexis, or with a couple of the pictures Mercado requested
which Carter took of the confidential source posing as Alexis.
But the focus is on the defendant’s actions to determine
whether an attempted enticement crime under 18 U.S.C.
§ 2422(b) has been committed, so any amenability of Alexis to
Mercado’s pursuit is not a “plus” factor to establish govern-
ment inducement. Regardless, Mercado never develops this
argument, so it is waived. White v. United States, 8 F.4th 547,
552 (7th Cir. 2021).
Mercado also argues that even if any of these individual
items did not amount to inducement, their cumulative effects
No. 21-3062 21
did, citing United States v. Barta, 776 F.3d 931 (7th Cir. 2015).
Barta is far different, though, factually and procedurally, than
this case. That decision involved an undercover government
operation in which Barta and co-defendants agreed to bribe a
fictional county official in California to obtain a government
contract. Id. at 933. Undisputed evidence showed several
“plus factors” signaling inducement, such as the government
employing “fraudulent representations,” “promises of re-
ward beyond that inherent in the customary execution of the
crime,” and “pleas based on need, sympathy, or friendship.”
Id. This court concluded that the cumulative effects of these
tactics directed at Barta amounted to inducement. Id.The “plus” factors Mercado proposes do not hold up un-
der scrutiny. Each falls comfortably within the scope of solic-
itation of the crime, and not more.
Mercado’s case differs from those decisions in which a
jury is to answer the factual question whether there was gov-
ernment inducement. For example, the facts here diverge
markedly from those in Mayfield. There, the defendant was in-
dicted for conspiring with a coworker and a drug courier to
rob a stash house. The conspiracy was a setup, as the courier
was an undercover government agent and the coworker an
informant. 773 F.3d at 419. Mayfield sought to present an en-
trapment defense at trial. The government moved in limine to
preclude the defense, arguing there was insufficient evidence
that the government induced the crime or that Mayfield
lacked the predisposition to commit it. Id. In response, May-
field relayed a narrative that included exploitation of his acute
financial need. Id. at 421, 441. Mayfield also described the in-
formant’s persistent campaign to involve him in the stash-
house robbery, which Mayfield repeatedly resisted, as well as
22 No. 21-3062
the informant’s thinly veiled threat of violence against May-
field. Id. Based in part on the “substantial government induce-
ment going beyond the mere offer of a chance to rob a stash
house,” id. at 420, this court vacated the judgment and re-
manded the case for a new trial. Id. at 443.
Unlike the persistent informant in Mayfield, Mercado
initiated the contact on the first day and every day thereafter.
Mercado—not the informant, as in Mayfield—made the daily
sexual overtures, which occurred over five days, rather than
over many weeks. Mayfield capitulated due to financial pres-
sures, while here Mercado took the lead throughout, continu-
ously sexualizing a series of text conversations even though
he knew within a few minutes that “Alexis” was underage.
United States v. Blitch, 773 F.3d 837, 840 (7th Cir. 2014), de-
cided shortly after Mayfield, is instructive. There, a federal
agent orchestrated an operation nearly identical to the one in
Mayfield, yet we ruled that an entrapment instruction was not
warranted. Id. In Blitch, as in Mayfield, the agent asked defend-
ants to help him rob a fictional drug stash house. Id. All the
defendants agreed, and law enforcement eventually arrested
them at a planned staging area. Id. at 843. Pretrial, two of the
defendants sought to present an entrapment defense. Id. at
840. The district court refused and granted the government’s
motion in limine to preclude that defense. Id. On appeal, this
court affirmed the district court’s decision and distinguished
the case from Mayfield. Id. at 844–45. Unlike in Mayfield, where
the government engaged in a drawn-out campaign of persua-
sion, prayed on Mayfield’s financial need, and impliedly
threatened him, the Blitch operation featured no inducement.
Id. at 845. The undercover agent framed the crime as “a take-
it-or-leave-it proposition,” and did “nothing more than make
No. 21-3062 23
a stash house robbery available.” Id. Accordingly, this court
held that there was no inducement. Id. The government ac-
tions here are closer to Blitch than to Mayfield. Agent Carter
presented Mercado with an ordinary opportunity to act un-
lawfully towards a minor, which he accepted.
In Mayfield this court considered the fundamental princi-
ple in entrapment law that the government’s offer of a run-of-
the-mill opportunity to commit the charged crime is not
entrapment and situated it on the inducement side of the anal-
ysis. Id. at 431–32. “Where the government’s agents merely …
solicit the crime, or furnish an opportunity to commit it on
customary terms, the government has not ‘induced’ the crime
within the meaning of the entrapment doctrine and the de-
fense should be unavailable without the need for a more com-
plex inquiry into evidence of predisposition.” Id. at 432.
Sadly, these circumstances are “run-of-the-mill”: Carter as
Alexis furnished Mercado the chance to commit this crime on
customary terms—a text conversation on a hook-up website
followed by a meeting—and Mercado did so. 3 The only
source Mercado points to of government inducement—the
text conversations—do not provide any evidence that would
allow a rational jury to conclude that the defendant was en-
trapped. In reaching this conclusion, the district court
properly accepted the defendant’s proffered evidence as true
and did not weigh the government’s evidence against it. May-
field, 771 F.3d at 440.
Courts look for certain tactics to find inducement warrant-
ing a jury instruction on entrapment. Carter’s actions as
3 The law enforcement agents in this particular operation in Spring-
field arrested twelve men the same weekend as Mercado.
24 No. 21-3062
Alexis did not include any of the conduct prohibited as in-
ducement, such as “repeated attempts at persuasion, fraudu-
lent representations, threats, coercive tactics, harassment,
promises of reward beyond that inherent in the customary ex-
ecution of the crime, pleas based on need, sympathy, or
friendship.” Id. at 434–35. Limited ambiguity in Mercado’s
early texts on Monday, August 24, 2020, does not provide him
“some evidence” of government conduct that created a risk
that a person who would not commit the crime if left to his
own devices would do so in response to that conduct. None
of these facts or inferences are “evidence in the record that
would allow a rational jury to conclude he was entrapped.”
Mayfield, 771 F.3d at 440.
* * *
A defendant is required to proffer evidence on both ele-
ments of the entrapment defense, inducement and predispo-
sition, to warrant an entrapment instruction. Mayfield, 771
F.3d at 440; Pillado, 656 F.3d at 764. “[W]here there is insuffi-
cient evidence of inducement—either because there is no such
evidence at all, or because the government did nothing more
than offer a standard market deal in a sting—there is no need
to consider predisposition.” United States v. Plowman, 700 F.3d
1052, 1057 (7th Cir. 2012). Mercado did not present sufficient
evidence to permit a reasonable jury to find that the govern-
ment induced him to commit these crimes, Mayfield, 771 F.3d
at 440, so the district court correctly denied his request for a
jury instruction on entrapment.
No. 21-3062 25
III. Suppression of Evidence
The district court denied Mercado’s motion to suppress
his statements during the second interview, which took place
at the hospital.
“We review a district court’s denial of a motion to sup-
press under a dual standard, assessing conclusions of law de
novo and evaluating factual findings for clear error with spe-
cial deference granted to the court’s credibility determina-
tions.” United States v. Outland, 993 F.3d 1017, 1021 (7th Cir.
2021) (citation omitted). Clear error exists only when “after
considering all the evidence, we cannot avoid or ignore a def-
inite and firm conviction that a mistake has been made.”
United States v. Thurman, 889 F.3d 356, 363 (7th Cir. 2018) (ci-
tation omitted). There are two separate inquiries: whether the
defendant validly waived his Miranda rights, and whether his
statements themselves were voluntary. Outland, 993 F.3d at
1021. The voluntariness of a statement is a question of law.
United States v. Villalpando, 588 F.3d 1124, 1127 (7th Cir. 2009).
Mercado raises three challenges to this evidence. He ar-
gues his Miranda waiver was not valid, his statements were
not voluntary, and the agents coerced his statements.
Validity of Miranda waiver. The government submits that
Mercado has failed to preserve any argument that his waiver
of Miranda rights was not valid by failing to raise that argu-
ment on appeal. Mercado did not respond to this contention.
Waiver, the intentional relinquishment or abandonment of
a known right, precludes appellate review. United States v.
Wood, 16 F.4th 529, 537 (7th Cir. 2021), cert. denied, 142 S. Ct.
1697 (2022). When a defendant “selects among arguments as
a matter of strategy,” he “waives those arguments he decided
26 No. 21-3062
not to present.” United States v. Mansfield, 21 F.4th 946, 955 (7th
Cir. 2021) (citation omitted). The government is correct. On
appeal, Mercado has made a strategic decision to pursue ar-
guments other than those about his waiver of Miranda rights,
see id., so he has waived this argument.
Even if Mercado had not done so, the district court cor-
rectly found that Mercado voluntarily signed a written waiver
of his Miranda rights. To be voluntary, the government must
show the defendant understood the rights he purported to
waive. Outland, 993 F.3d at 1022. The voluntary nature of a
waiver “is assessed based on the totality of circumstances,”
and it need only be shown by a preponderance of the evi-
dence. Thurman, 889 F.3d at 364. Often, the court’s ruling on
whether a waiver of Miranda rights was voluntary will turn
on the court’s evaluation of the parties’ credibility. See id.
Before the district court, Mercado pointed to his alleged
intoxication as the reason he did not voluntarily waive his Mi-
randa rights. As discussed below, the government presented
evidence to rebut Mercado’s contention that he was intoxi-
cated so as to render his waiver of rights and subsequent
statements involuntary. That court considered the totality of
the circumstances, including the expert reports and the cred-
ibility of various witnesses. The district court concluded there
was “no evidence that [Mercado] was intoxicated … there is
not sufficient evidence that the administration of lorazepam
to [Mercado] several hours earlier interfered with his capacity
to make a knowing, intelligent, and voluntary waiver of his
Miranda rights during the hospital interview.”
That conclusion was based, in part, on the district court’s
evaluation of the credibility of Special Agent Roth (who con-
ducted the hospital interview) and Dr. Regis (an emergency
No. 21-3062 27
room physician who treated Mercado at the hospital). The
district court’s finding—which credited the government’s
version of events, in which Mercado was not intoxicated or
showing any signs of intoxication at the time he waived his
Miranda rights—is not clearly erroneous and is entitled to def-
erence. See Thurman, 889 F.3d at 363–64.
Voluntariness of Mercado’s statements. Related to whether
Mercado’s waiver of his Miranda rights was valid is “whether,
in the totality of circumstances, the defendant’s statements to
authorities were voluntary.” Outland, 993 F.3d at 1021. Mer-
cado has preserved a challenge to the voluntariness of his
statements at the hospital to the law enforcement agents dur-
ing the second interview. He claims he was too intoxicated to
make voluntary statements. Mercado asserts that his decision
to speak with the officers and his speech patterns were “con-
sistent with the disinhibiting effects of lorazepam.” He also
contends he was under the influence of marijuana, which had
a sedating effect. The government responds that Mercado
fails to identify a clear error in the district court’s factual find-
ings on either of these points.
Accompanying Mercado’s motion to suppress was the af-
fidavit of the toxicologist Dr. Skolly, which focused on the ad-
ministration of lorazepam to Mercado at the hospital. Dr.
Skolly opined that Mercado’s behavior was consistent with
the disinhibiting effects of lorazepam and that as a result of
the drug’s effects, he was “incapable of thinking through the
consequences of his actions.” In response, the government
filed the reports of Dr. O’Donnell (a Doctor of Pharmacy) and
Dr. Killian (a board-certified psychiatrist).
According to Dr. O’Donnell, there was no evidence of
Mercado being under the influence of lorazepam, as he spoke
28 No. 21-3062
clearly and responsively and did not slur his words during
the second interview with law enforcement agents. Dr.
O’Donnell also noted that Mercado was prescribed alprazo-
lam, a drug similar to lorazepam (both are classified as ben-
zodiazepines), but at least twice as potent. Similarly, Dr.
Killian responded to Dr. Skolly’s opinion by noting that Mer-
cado “clearly demonstrated a more than adequate awareness
of his situation, working hard to convince the officers that he
was innocent and that his intentions were pure.” Addition-
ally, Dr. Killian agreed with Dr. O’Donnell that Mercado’s
“answers to the agents demonstrated understanding, deliber-
ation, memory, recall[,] and persistence.”
Though Dr. Killian did not dispute Dr. Skolly’s statement
that lorazepam may lead to a loss of restraint with respect to
social behavior, per Dr. Killian “this effect would be seen only
with very high doses.” Dr. Killian rejected as wholly unsup-
ported what he termed the “blanket statement” by Dr. Skolly
that anyone using lorazepam could not think and reason ap-
propriately. And Dr. Killian echoed Dr. O’Donnell’s conclu-
sion that there was no evidence Mercado was impaired by
marijuana he had consumed earlier in the day, noting that
Mercado’s regular use of an ounce of marijuana per week
likely caused him to develop a tolerance for it. According to
Dr. Killian’s assessment of Mercado’s speech during the sec-
ond interview with law-enforcement agents, “if there was any
impairment whatsoever, it was very subtle and brief.”
In this battle of experts, the district court did not commit
clear error by relying on those opinion witnesses who testified
that lorazepam did not render Mercado’s statements involun-
tary. See United States v. Wessel, 2 F.4th 1043, 1055–56 (7th Cir.
No. 21-3062 29
2021) (holding it was not clear error to credit certain expert
witnesses over others).
A similar analysis applies to Mercado’s argument about
the effects of marijuana. He relies on Dr. Skolly’s report,
which said it was “possible” that Mercado was under the
influence of tetrahydrocannabinols, the active ingredient in
marijuana, during the second interview. But the district court
instead credited Dr. Killian’s report, which opined that Mer-
cado’s regular use of marijuana likely caused him to adapt to
any initial sedating effect of the drug. On this basis, the dis-
trict court concluded that Mercado failed to present “suffi-
cient evidence that the presence of THC in his system had any
appreciable effect on whether [his] Miranda waiver was know-
ing, intelligent, and voluntary.”
Finding facts, and assessing which accounts are consistent
with those facts, is the province of the district court. Outland,
993 F.3d at 1023; Thurman, 889 F.3d at 364. After review, we
are not left with the definite and firm conviction that the
district court erred in finding that any slight degree of intoxi-
cation did not make Mercado’s statements involuntary. The
district court listened to the recording of the second interview
and found that Mercado did not slur his speech and did not
appear to be impaired. We conclude there was no clear error
in this respect, and that Mercado showed no meaningful signs
of intoxication while speaking with the agents. None of the
evidence led the court to find that Mercado was sufficiently
intoxicated to lack an understanding of his rights and render
his statements involuntary.
Statements and police coercion. Last, Mercado argues that his
statements during the second interview were the result of po-
lice coercion so the district court should have granted his
30 No. 21-3062
motion to suppress. According to Mercado, he was coerced
when “law enforcement officials gave vague and misleading
statements implying that [he] might be able to return home if
he would just answer their questions.” He concedes, though,
that no “explicitly false promises” were made. The govern-
ment responds that police tactics short of false promises are
insufficient to overcome a defendant’s free will.
The government has the better of this argument. We treat
false promises differently than other deceptive police tactics
because a false promise “has the unique potential to make a
decision to speak irrational and the resulting confession unre-
liable.” Villalpando, 588 F.3d at 1028. Other tactics, such as ca-
joling and duplicity, do not give rise to the same risks. Id.Here, Detective Howard arguably implied there was a
possibility that Mercado could go home rather than to jail,
contingent on the answers Mercado provided. Of course, it
was unlikely—though not necessarily impossible—that any-
thing Mercado could have told law enforcement agents at that
juncture would have resulted in his being released from cus-
tody. But, as Mercado concedes, the statement was not an
“empty prosecutorial promise” that could have prevented
him “from making a rational choice.” Id. (citations omitted).
Mercado tried to get the agents to promise that he could go
home, but the agents did not agree. Under these circum-
stances, then, any pressure Mercado felt “did not rise to the
level of coercion” for the statements to be involuntary. Thur-
man, 889 F.3d at 365. The district court therefore properly de-
clined to suppress Mercado’s statements as coerced.
Mercado requested that the agents from the first interview
return to the hospital to interview him. Mercado signed a
valid waiver of his Miranda rights, and the lorazepam or any
No. 21-3062 31
prior use of marijuana did not result in intoxication or affect
the voluntariness of his statements. Neither were his state-
ments the result of police coercion. Mercado’s motion to sup-
press was thus properly denied.
IV. Conclusion
Mercado has failed to point to “some evidence” that the
government induced him to commit these crimes; it merely
offered him the opportunity to do so. None of the inferences
or facts he points to amount to “plus” factors. Because no rea-
sonable jury could find otherwise, the district court did not
err in declining to give a jury instruction on entrapment.
Mercado’s suppression motion was properly denied be-
cause he executed a valid waiver of his Miranda rights. The
voluntariness of his statements was not affected by the pres-
ence of any medications or drugs, and his statements were not
the result of police coercion.
For these reasons we AFFIRM the district court’s rulings.