United States v. Jorge Leal ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1808
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JORGE L. LEAL,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 19-cr-40069 — J. Phil Gilbert, Judge.
____________________
ARGUED MAY 19, 2023 — DECIDED JUNE 29, 2023
____________________
Before FLAUM, ROVNER, and ST. EVE, Circuit Judges.
FLAUM, Circuit Judge. Jorge Leal used a dating application
to arrange a sexual encounter with a fifteen-year-old male.
Unbeknownst to Leal, FBI agents were posing as the fifteen-
year-old, and Leal was arrested when he attempted to meet
the minor. A jury convicted Leal of attempted enticement of a
minor. He now appeals the district court’s denial of his mo-
tion for a judgment of acquittal, challenging an instruction
given to the jury and the sufficiency of the evidence submitted
2 No. 22-1808
to prove that he was not entrapped. For the following reasons,
we affirm his conviction.
I. Background
A. Factual Background
FBI agents conducted an undercover operation in Herrin,
Illinois to identify and apprehend individuals using dating
apps to solicit sex from minors. As part of the operation, an
agent created a profile for a fictitious individual named
“Clay” on a dating app called “Grindr.” Since Grindr does not
allow users to create a profile if they are under eighteen and
will delete a profile if it determines that a user is underage,
the agent represented that Clay was eighteen years old.
Another FBI agent, Michael Carter, later assumed control
of the Clay profile. Carter testified that he exchanged mes-
sages with Leal and told him that Clay was fifteen years old.
Shortly thereafter, Grindr deleted Clay’s profile. Carter
promptly created a new profile with the name “Corey.” Leal
initiated contact with Corey, and the following exchange oc-
curred:
Leal: You home alone? (8:40 PM)
Corey: Yup (8:40 PM)
Leal: what are you Doing? (8:40 PM)
Corey: Just hanging out … bored wbu (8:41 PM)
Leal: looking for fun lol (8:41 PM)
Corey: I’m always looking for fun. Lol
What u have in mind (8:42 PM)
Leal: �
I want to but I’m really concern about your age bro (8:42
PM)
Corey: I understand that, but I’m almost 16 … not 9 …
No. 22-1808 3
I’m not a baby. (8:43 PM)
Leal: i know but not trying to go to jail (8:44 PM)
Corey: You are not going to jail babe. I would never do that
(8:45 PM)
Leal: How do I know that? (8:45 PM)
Corey: Because I’m not like that. (8:45 PM)
Leal: Lol (8:46 PM)
Corey: Like I said, I’m not a baby
I’m a big boy that can make his own decisions and knows
what he wants (8:46 PM)
Leal: send me location
?
Well?
see you are not serious (8:49 PM)
�
like I said you are not serious
I’ll just go home then
See ya (8:51 PM)
Corey: Sorry. Omg you are impatient. Lol. I don’t have any
protection can u bring condoms? (8:54 PM)
Leal: I kind of just want bj this time
? (8:57 PM)
Corey: O ok. That sounds awesome. (8:57 PM)
Leal: Where are you? (8:57 PM)
Corey: 908 n 13th. Herrin what u driving (8:57 PM)
? (8:59 PM)
Leal: A malibu (9:00 PM)
Corey: Ok. If u come to the back alley my moms red car is
under an awning (9:01 PM)
Leal: Ok (9:02 PM)
Corey: Let me know when u are here. If it’s easier we can
text (9:02 PM)
4 No. 22-1808
Leal: How do I know this is not a trap? (9:09 PM)
Corey: Babe I would NEVER do that. This is it a trap
Not* (9:11 PM)
Leal: Not sure (9:11 PM)
Corey: You have to trust me (9:11 PM)
Leal: how? (9:12 PM)
Corey: Seriously that would be so fucked up (9:12 PM)
Leal: how are you going to convince me? (9:13 PM)
Corey: Babe I don’t know how to convince you … (9:13
PM)
Leal: turn some light on outside (9:18 PM)
Corey: Are u at the front? (9:19 PM)
Leal: I was (9:19 PM)
Corey: Just turned it on (9:20 PM)
Leal: There was a car in the back alley rn (9:21 PM)
Corey: Yes it my moms. Reddish car
U can come too back door too (9:23 PM)
Are u coming
? (9:24 PM)
Around the same time, an officer surveilling the area saw
a Malibu drive into the alley behind the address Corey pro-
vided to Leal and stop behind the home. The officer pulled his
vehicle into the alley behind the Malibu, and the Malibu ac-
celerated. Officers stopped the vehicle shortly thereafter and
found Leal behind the wheel. Leal agreed to accompany the
officers for questioning and admitted to planning to receive
oral sex from Corey—who he believed was under eighteen.
He also told the agents that he deleted the Grindr app from
his phone as he was being pulled over because he “totally
knew” it was wrong to meet with a fifteen-year-old.
No. 22-1808 5
B. Procedural Background
Leal was indicted on one count of attempted enticement of
a minor in violation of 18 U.S.C. § 2422(b). At Leal’s request,
the district court charged the jury with the pattern instruction
regarding the entrapment defense. The court also provided
the jury with the pattern instruction regarding the permissi-
bility of the government’s use of undercover and deceptive
investigative techniques. Ultimately, the jury convicted Leal.
He timely filed a motion for a judgment of acquittal, challeng-
ing, in relevant part, the evidence the government presented
to disprove his entrapment defense. The district court denied
Leal’s motion and sentenced him to the mandatory minimum
of 120 months’ imprisonment.
II. Discussion
A. Jury Instructions
Leal first argues that the combination of instructions
regarding entrapment and the permissibility of deceptive
investigative techniques confused the jury. The comments to
both pattern instructions provide that before they are given
together, “consideration should be given” to whether the
investigative-techniques instruction should be reworded “so
that it does not implicitly modify or undercut the entrapment
instruction.” Pattern Criminal Jury Instructions of the Seventh
Circuit (2020) at 63, 130. Leal contends that the district court,
the government, and his trial attorney failed to consider this
risk and reword the investigative-techniques instruction
accordingly. Indeed, Leal’s trial counsel never raised the issue
to the district court. As a result, the government argues that
Leal has waived this challenge.
6 No. 22-1808
Under Federal Rule of Criminal Procedure 30(d), if a de-
fendant does not object to a jury instruction “before the jury
retires to deliberate,” he may only challenge the instruction
for plain error on appeal. Fed. R. Crim. P. 30(d), 52(b). How-
ever, we have held that a defendant’s affirmative approval of
a jury instruction constitutes waiver and precludes appellate
review entirely. See, e.g., United States v. Friedman, 971 F.3d
700, 711 (7th Cir. 2020) (“Although passive silence with regard
to a jury instruction permits plain error review … a defend-
ant’s affirmative approval of a proposed instruction results in
waiver.” (alteration in original) (citation omitted)); United
States v. Morgan, 929 F.3d 411, 432 (7th Cir. 2019) (noting that
a defendant who waives his objection to a jury instruction
generally “has no recourse”).
Yet, given that a jury instruction conference will “[o]nly
rarely … provide the opportunity for agnostic silence that
preserves plain error review,” we have acknowledged that
“[t]his approach can sometimes produce especially harsh re-
sults.” United States v. Natale, 719 F.3d 719, 730 (7th Cir. 2013).
Thus, when nothing more than a “‘no objection’ [is] given
during a rote call-and-response colloquy with the district
court judge during a charging conference, we [have] sug-
gested that … the court may examine whether the objection
was forfeited rather than waived.” United States v. Ajayi, 808
F.3d 1113, 1121 (7th Cir. 2015). Admittedly, some tension has
surfaced in our case law in this area. Compare United States v.
Bell, 28 F.4th 757, 763 (7th Cir. 2022) (concluding that the de-
fendant waived his objection to jury instruction, and thus not
reviewing his challenge to it, because counsel answered, “No,
we don’t have a problem with that,” when the district court
asked if he had any objection to the instruction during charg-
ing conference), with United States v. Briseno, 843 F.3d 264, 274
No. 22-1808 7
(7th Cir. 2016) (noting that counsel’s cursory reply, “None at
all,” in response to the judge’s inquiry about objections to jury
instructions was not indicative of a knowing waiver).
However, here, the record reflects more than a simple “no
objection,” and thus, it is clear that Leal waived the objection.
See United States v. LeBeau, 949 F.3d 334, 342 (7th Cir. 2020) (“At
times, there may be some ambiguity in the defendant’s state-
ment, and so the court must decide whether it is looking at
waiver or the type of negligent oversight that triggers plain-
error review. In this case, however, we see no such ambigu-
ity.” (citation omitted)). Ten days before trial, the government
filed its proposed jury instructions, which included the inves-
tigative-techniques instruction. In response, Leal’s counsel
filed a substantive objection to a different instruction but said
nothing about the investigative-techniques instruction. Coun-
sel had an opportunity to change course at the formal charg-
ing conference but chose not to. Instead, he affirmatively ap-
proved the investigative-techniques instruction by respond-
ing “no objection” and continued to press the objection to the
other instruction. 1
In other words, Leal’s counsel’s failure to object to the
investigative-techniques instruction occurred as part of an in-
depth discussion of the jury instructions. It was not off-the-
1 The government points to additional instances when, it argues, Leal
could have objected to the instruction but did not—like a pretrial phone
conversation with the government and an off-the-record meeting with the
district court’s law clerks during trial. However, we may not consider
these conversations because they are not reflected in the record. See Prairie
Rivers Network v. Dynegy Midwest Generation, LLC, 2 F.4th 1002, 1013 (7th
Cir. 2021) (“[A]s a general rule[,] we will not consider evidence on appeal
that was not before the district court.”).
8 No. 22-1808
cuff, reflexive, or negligent; on the contrary, the record
demonstrates that it was a knowing and intentional decision.
See United States v. Freed, 921 F.3d 716, 720 (7th Cir. 2019)
(indicating that where the instruction conference involved
“in-depth discussions of other instructions,” the counsel’s “no
objection[]” response to the jury instruction at issue “was
anything but an exercise in the reflexive”).
As such, Leal waived any objection to the instruction, and
we will not review his challenge to it. See, e.g., Friedman, 971
F.3d at 712 (“By choosing to pursue changes to certain instruc-
tions and forgoing multiple chances to change others, [the de-
fendant] waived other possible jury instruction challenges.”);
LeBeau, 949 F.3d at 342 (concluding that the defendant waived
objection to instruction, and thus not reviewing his challenge,
where counsel affirmatively approved it during pretrial pro-
ceedings and “had the opportunity … to raise a later objection
to the instruction at any time before the case went to the jury”
but chose not to). 2
B. Sufficiency of the Evidence
Leal next argues that the government presented insuffi-
cient evidence to defeat his entrapment defense and, thus, the
district court erred in denying his motion for a judgment of
acquittal. We review that decision de novo, construing “the
evidence in a light most favorable to the government.” United
2 We note that even if Leal had forfeited the objection, his challenge
would fail under plain error review. Leal does not cite any authority that
clearly prohibits a court from giving the pattern entrapment and
investigative-techniques instructions together, which dooms his
argument. See Natale, 719 F.3d at 731 (noting that for an error to be plain,
it must be “clear under current law” (citation omitted)).
No. 22-1808 9
States v. Jackson, 5 F.4th 676, 682 (7th Cir. 2021). In doing so,
we assess “whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” United States v. Faulkner, 885 F.3d 488, 492 (7th Cir.
2018) (citation omitted). Thus, we will overturn a conviction
“only where the record is devoid of evidence from which a
reasonable jury could find guilt beyond a reasonable doubt.”
United States v. Godinez, 7 F.4th 628, 638 (7th Cir. 2021) (cita-
tion omitted). We have frequently described this standard as
“nearly insurmountable.” United States v. Grayson Enters., Inc.,
950 F.3d 386, 405 (7th Cir. 2020) (citation omitted).
Once a defendant puts forth “some evidence” of entrap-
ment, he is entitled to present the defense to the jury. United
States v. Mayfield, 771 F.3d 417, 440 (7th Cir. 2014) (en banc)
(citation omitted). The government must then prove beyond
a reasonable doubt, as an element of the crime, that the de-
fendant was not entrapped. Id. at 439−40. To shoulder that
burden, the government must establish “either that the de-
fendant was predisposed to commit the crime or that there
was no government inducement.” Id. at 440.
Leal argues that the government did not present sufficient
evidence to disprove that the FBI agents induced him to com-
mit attempted enticement of a minor. Government induce-
ment requires more than merely soliciting the defendant to
commit the crime. United States v. Mercado, 53 F.4th 1071, 1080
(7th Cir. 2022); see also United States v. York, 48 F.4th 494, 502
(7th Cir. 2022) (“[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.” (alteration in original) (citation omitted)), cert.
denied, 143 S. Ct. 1772 (2023) (mem.). Instead, the government
10 No. 22-1808
must have solicited the crime and committed “some
other … 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 government’s efforts.” Mercado, 53 F.4th at
1080 (citation omitted). Examples of such additional conduct
include: “repeated attempts at persuasion, fraudulent repre-
sentations, threats, coercive tactics, harassment, promises of
reward beyond that inherent in the customary execution of
the crime, [and] pleas based on need, sympathy, or friend-
ship.” United States v. Garcia, 37 F.4th 1294, 1301 (7th Cir. 2022)
(alteration in original) (citation omitted).
According to Leal, the evidence establishes that Carter did
more than solicit the crime—he fraudulently misrepresented
Corey’s age and repeatedly reassured Leal when he expressed
reservations about engaging in sexual acts with a minor.
However, there is another reasonable interpretation of the ev-
idence: Despite many opportunities to end these conversa-
tions, Leal persisted in actively planning a sexual encounter
with a minor.
Carter testified that he first conversed with Leal through
the Clay profile, where he told Leal that Clay was fifteen years
old. After Grindr deleted Clay’s profile, Leal initiated the con-
versation with Carter’s new profile (Corey) and continued
pursuing him even after Corey told Leal that he was fifteen
years old. Carter further testified that during the conversa-
tion, he waited to respond to certain messages to try to give
Leal “an opportunity … to walk away.” Indeed, the preserved
messages reflect six- and eight-minute gaps between the
agent’s messages at certain points in the conversation. Instead
of seizing that opportunity, Leal grew impatient with the mi-
nor when he did not promptly respond to Leal’s request for
No. 22-1808 11
an address, threatening to “just go home” and challenging
that Corey was “not serious” about having sex with him. The
messages also show Leal initiating the encounter (by telling
Corey he was “looking for fun”), selecting the particular sex
act that he wanted the minor to perform, and asking for Co-
rey’s address more than once. Finally, Leal confessed to the
crime and to knowing that his actions were wrong.
We have previously found comparable evidence sufficient
to disprove an entrapment defense in similar contexts. See,
e.g., York, 48 F.4th at 502 (concluding that “jury had sufficient
evidence to reject [the defendant’s] entrapment defense”
where the defendant “initiated conversations” with the un-
dercover agent online “several times after finding out she was
a minor”); Mercado, 53 F.4th at 1082−84 (concluding that an
undercover agent “fraudulently misrepresent[ing]” his age
and reciprocating sexual discussions initiated by the defend-
ant amounted to “no more than solicitations or invitations” to
commit attempted enticement of a minor); United States v.
Fitzpatrick, No. 22-2549, 2023 WL 1962644, at *4 (7th Cir. Feb.
13, 2023) (rejecting sufficiency of the evidence argument
where the defendant continued a conversation with an under-
cover agent after the agent said he was underage, “pursued”
the minor “by insisting that he was ‘interested’ and ‘serious’”
despite initial apprehension, and driving to the minor’s
home).
At bottom, “[i]t is the jury’s job, and not ours, to gauge the
credibility of the witnesses and decide what inferences to
draw from the evidence.” United States v. Brown, 973 F.3d 667,
686 (7th Cir. 2020) (alteration in original) (citation omitted).
While some parts of the conversation could reasonably be per-
ceived as inducements, when viewing all the evidence in the
12 No. 22-1808
light most favorable to the government, a jury could have rea-
sonably believed Leal was not induced to commit the crime.
The jury was “free to choose” between these two “reasonable
constructions of the evidence.” United States v. Colon, 919 F.3d
510, 516 (7th Cir. 2019) (citation omitted); see also United States
v. Palladinetti, 16 F.4th 545, 549 (7th Cir. 2021). As such, we re-
ject Leal’s challenge to the sufficiency of the evidence support-
ing his conviction. 3
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.
3 Leal also argues that the government presented insufficient evidence
to prove that he was predisposed to commit the crime. However, “there is
no need to consider predisposition” here because sufficient evidence sup-
ports that Leal was not induced to commit the crime. Mercado, 53 F.4th at
1085; see also Mayfield, 771 F.3d at 439−40 (explaining “the government can
defeat the entrapment defense at trial by proving either that the defendant
was predisposed to commit the crime or that there was no government
inducement”).