United States v. Jason Strubberg , 929 F.3d 969 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-2087
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jason Michael Strubberg
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Central Division
____________
Submitted: November 15, 2018
Filed: July 12, 2019
____________
Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
____________
GRASZ, Circuit Judge.
A jury convicted Jason Michael Strubberg of one count of attempting to entice
a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b). On appeal,
Strubberg argues there was insufficient evidence to support his conviction, challenges
the district court’s1 instructions to the jury, and contends certain supervised release
special conditions were improper. We affirm.
I. Background
In January 2016, law enforcement officials arrested Strubberg in a motel
parking lot when he tried to meet up with a woman whom he believed to be “Kathy,”
and her fourteen-year old daughter, “Abby.” Strubberg had, through text messages
with Kathy, planned a rendezvous at the motel with the mother and daughter, during
which he would “train” Abby by engaging in sexual acts with her as Kathy watched.
Unbeknownst to Strubberg, neither Kathy nor Abby were real people; instead, they
were fictional characters created as part of a sting operation.
After the arrest, Detective Andrew Evans led Strubberg to believe police had
been tipped off by Kathy, who had gotten cold feet and called the police. Strubberg
admitted to Detective Evans he had sent the texts to Kathy indicating he intended to
engage in sexual conduct with both Abby and Kathy.
Strubberg was then charged with attempting to entice a minor to engage in
sexual activity in violation of 18 U.S.C. § 2422(b). The case went to trial. The
government called five witnesses, with most of the testimony coming from Detective
Evans. Strubberg called three witnesses to testify, including himself.
During Strubberg’s testimony, he admitted he initially intended to have sex
with Abby. Strubberg claimed, however, this was only because he thought it would
be legal if the mother signed a contract giving him permission. He explained to the
1
The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
-2-
jury that he later researched the law and determined it would be illegal to have sex
with a fourteen-year-old even with such parental permission.
With this information in mind, Strubberg claimed to the jury that he decided
against having sex with Abby. Strubberg explained he nonetheless proceeded to the
meeting location. He testified he did this because he wanted to meet with Kathy, in
part, so he could tell her in person that he could not have sex with Abby unless she
convinced him it was legal. He also testified that he hoped Kathy would agree to
have sex with him.
The jury found Strubberg guilty. The district court sentenced him to 120
months of imprisonment and five years of supervised release with special conditions.
Strubberg filed a timely notice of appeal, challenging both his conviction and
sentence.
II. Analysis
A. Sufficiency of the Evidence
We first consider Strubberg’s attack on his conviction based on his belief there
was insufficient evidence to support the jury’s guilty finding. This court reviews de
novo an appeal based on insufficiency of the evidence. United States v. Young, 613
F.3d 735, 742 (8th Cir. 2010). “The jury’s verdict will be upheld if there is any
interpretation of the evidence that could lead a reasonable jury to find the defendant
guilty beyond a reasonable doubt.” Id.
A conviction for enticement of a minor to engage in sexual activities requires
the government to prove beyond a reasonable doubt the defendant:
(1) used a facility of interstate commerce, such as the internet or the
telephone system; (2) knowingly used the facility of interstate commerce
-3-
with the intent to persuade or entice a person to engage in illegal sexual
activity; and (3) believed that the person he sought to persuade or entice
was under the age of eighteen.
Id. (quoting United States v. Pierson, 544 F.3d 933, 939 (8th Cir. 2008) (cleaned up)).
To prove attempt, the government must establish “(1) intent to commit the
predicate offense; and (2) conduct that is a substantial step toward its commission.”
United States v. Spurlock, 495 F.3d 1011, 1014 (8th Cir. 2007). Conversations to
arrange to have sex with a minor may constitute attempt when those conversations go
“beyond mere preparation,” are “necessary to the consummation of the crime,” and
“strongly corroborate . . . criminal intent to entice [a minor].” Id.
On appeal, Strubberg argues there is not sufficient evidence he intended to
engage in illegal activity because, once he learned the activity was illegal, he
abandoned his intent to engage in sexual contact with the girl. Strubberg claimed to
the jury he went to the meeting spot only because he wanted to tell Kathy he thought
it was probably illegal to have sex with Abby, and also in the hope he could still have
sex with Kathy. Strubberg also argues there was not sufficient evidence to show that
he took a substantial step toward engaging in the illegal activity because he refused
to stop his car in the parking lot at the motel and instead sought to drive away.
We find no merit in Strubberg’s arguments. There were numerous instances
where Strubberg explicitly announced his intent to engage in sexual activity with
someone he was told was a minor. This happened repeatedly during his text message
conversations with Kathy. Strubberg also conducted an internet search the morning
he was to meet Abby that used crass search terms indicating he had a desire to learn
about having sex with a minor. Furthermore, he bought condoms at the convenience
-4-
store immediately before proceeding to the motel.2 He also wore a red shirt to make
Abby and Kathy “feel comfortable,” after Kathy told him red was Abby’s favorite
color. While Strubberg certainly has offered excuses for much of this behavior and
a story that he had abandoned wrongful intent when he went to the motel, the jury
was not required to believe him.
As to the substantial step element,“[a] substantial step generally exists when
a defendant takes actions ‘necessary to the consummation of the crime’ that were of
‘such a nature that a reasonable observer, viewing the actions in context, could
conclude that the actions were undertaken in accordance with a design to’ commit the
actual offense.” Young, 613 F.3d at 743 (quoting United States v. Mims, 812 F.3d
1068, 1077 (8th Cir. 1987) (cleaned up)).
We have repeatedly held the substantial step element was satisfied by acts
similar to those taken by Strubberg. See id. (holding the defendant took a substantial
step by attempting to check into a hotel even though he cancelled the room after his
credit card declined); United States v. Myers, 575 F.3d 801, 809 (8th Cir. 2009)
(holding the defendant took a substantial step toward committing a crime when the
evidence showed he drove two hours to meet the minor and police found condoms
and a digital camera in his car); United States v. Patten, 397 F.3d 1100, 1104 (8th Cir.
2005) (“There is clear authority for the government’s position that [the defendant’s]
act of driving to the arranged meeting place . . . was relevant evidence of a substantial
step.”). Specifically, Strubberg planned a sexual encounter with a minor and then
took a substantial step by traveling to the meeting place, buying condoms, and then
driving to the motel. The evidence is sufficient to uphold Strubberg’s conviction.
2
Strubberg and Kathy had originally planned to meet at the convenience store.
Strubberg received a text message telling him Kathy and Abby would meet him at a
nearby motel because there were too many cars at the convenience store.
-5-
B. Jury Instructions
Strubberg challenges the district court’s jury instructions in two ways. First,
he argues he was entitled to an entrapment defense instruction. He also argues the
district court abused its discretion by instructing the jury it could not allow the fact
the government used deceptive means during the sting operation to affect its verdict.
Neither argument warrants reversal.
1. Entrapment Instruction
“The refusal of a proffered entrapment instruction is a denial of a legal
defense.” United States v. Cooke, 675 F.3d 1153, 1155–56 (8th Cir. 2012).
Consequently, this court reviews a denial of an entrapment instruction de novo. Id.
at 1156.
“A defendant is entitled to an instruction on the affirmative entrapment defense
if sufficient evidence exists from which a reasonable jury could find that [the]
government entrapped him.” United States v. Wynn, 827 F.3d 778, 786 (8th Cir.
2016). “A valid entrapment defense has two related elements: government
inducement of the crime, and a lack of predisposition on the part of the defendant to
engage in criminal conduct.” Id. (quoting Mathews v. United States, 485 U.S. 58, 63
(1988) (cleaned up)).
“To warrant an instruction, a defendant alleging entrapment must ‘show that
the government agents implanted the criminal design in his mind and induced him to
commit the offense.’” Id. (quoting United States v. Kendrick, 423 F.3d 803, 807 (8th
Cir. 2005)). “Evidence that Government agents merely afforded an opportunity or
facilities for the commission of the crime would be insufficient to warrant an
entrapment instruction.” Id. (quoting Mathews, 485 U.S. at 66 (cleaned up)).
-6-
“Entrapment occurs only when the criminal conduct was the product of the
creative activity of law-enforcement officials.” Id. (quoting Sherman v. United
States, 356 U.S. 369, 372 (1958)). Factors relevant to determining whether a
defendant was induced to entice a minor in sexual activity include the following: (1)
whether the government officials initiated the contact; (2) who introduced the topics
of meeting and sex; and (3) the degree to which the government officials influenced
the behavior of the defendant by portraying minors as sexually precocious. Young,
613 F.3d at 747.
The district court concluded the instruction was not warranted, in part, because
the government did not induce the crime. We agree.
Strubberg initiated contact with law enforcement officials, who were posing
as Kathy. Strubberg asked Kathy what she wanted him to teach her daughter. After
Kathy made a sexually suggestive statement — that she wanted him to teach her
daughter “discipline, respect, and birds and bees stuff :)” — Strubberg almost
immediately brought up having sex with the girl despite being told she was only
fourteen years old. Over the next several days, Strubberg repeatedly initiated explicit
discussions of the sexual acts he would engage in with the child. And despite being
given numerous opportunities to back out of the arrangement, Strubberg persisted in
encouraging Kathy to proceed and continued to arrange the details of the rendezvous.
Considering these facts, Strubberg did not meet his burden of establishing there was
sufficient evidence the government induced him. See Young, 613 F.3d at 747
(holding the defendant did not establish the government induced him to commit the
crime of enticing a minor even though the government initiated some of the sexual
conversations and arguably portrayed the purported minor as a “sexually precocious
teenager”).
Strubberg relies on cases from outside this circuit to contend he was entitled
to the jury instruction. See United States v. Gamache, 156 F.3d 1, 10–11 (1st Cir.
-7-
1998); United States v. McGill, 754 F.3d 452, 454 (7th Cir. 2014). We do not
believe the facts in Gamache or McGill are analogous to the facts of this case. In
Gamache, the government first initiated the idea of the defendant having sex with the
underage children and the defendant initially only expressed a desire to have a sexual
relationship with the children’s mother. 156 F.3d at 10–11. Here, Strubberg was the
first to directly reference sex with a minor and only later tried to convince the mother
to have sex with him. And in McGill the court stressed the fact the defendant’s friend
(who was working undercover in cooperation with the government) kept pushing the
crime on the defendant, despite the defendant’s repeated attempts to change the topic
and cancel meetings with his friend. 754 F.3d at 455, 459. Our review of the record
convinces us Strubberg did not receive the pressure or manipulation placed on the
defendants in Gamache or McGill. These cases, therefore, do not convince us
Strubberg was entitled to his requested entrapment instruction.
2. Deceptive Investigation Instruction
Over Strubberg’s objection, the district court included a jury instruction
describing deceptive investigative techniques employed by the government officials
and directing the jurors not to allow their opinion of such practices to influence their
deliberations. The instruction stated:
During this trial you heard the testimony from undercover agents who
were involved in the government’s investigation in this case.
Undercover agents may properly make use of false names, false
appearances, and may properly assume the roles of members in criminal
organizations. The government may utilize a broad range of schemes
and ploys to ferret out criminal activity. Law enforcement officers are
not precluded from engaging in stealth and deception, such as the use of
undercover agents, in order to apprehend persons engaged in criminal
activities.
-8-
Whether or not you approve of the use of such investigative techniques
to detect unlawful activities is not to enter into your deliberations in any
way. If you are satisfied beyond a reasonable doubt that the defendant
committed the offense as charged in the indictment, the fact that the
government made use of investigative techniques that deceive is not
relevant to your determination.
On appeal, Strubberg argues this instruction interfered with the jury’s
consideration of the evidence. Strubberg contends the jury could have interpreted this
instruction as forbidding it from considering for purposes of credibility the fact
Detective Evans deceived Strubberg in order to obtain his confession. Strubberg
contends this shifted or limited the government’s burden of proof and requires
reversal here because there is no way to know whether the jurors ignored concerns
over Evans’s credibility due to the instruction.
This court “review[s] a district court’s formulation of jury instructions for an
abuse of discretion and its interpretation of law de novo.” United States v. Farah,
899 F.3d 608, 614 (8th Cir. 2018). An error in the instructions “does not warrant
reversal of a conviction if it is harmless.” Id. We may disregard such an error where
it is clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty without the error. Id.
Strubberg is correct that we have never endorsed such a jury instruction. Nor
have the parties cited to any other circuit court permitting this exact instruction. We
do note the Seventh Circuit has analyzed a similar jury instruction by a district court
and refused to find its use an abuse of discretion. See United States. v. McKnight,
665 F.3d 786, 789–90 (7th Cir. 2011). The instruction at issue in McKnight stated:
Sometimes the government uses undercover agents and undercover
informants who may conceal their true identities in order to investigate
suspected violations of law. In the effort to detect violations of the law,
it is sometimes necessary for the government to use ruses, subterfuges
-9-
and employ investigative techniques that deceive. It is not improper or
illegal for the government to use these techniques, which are a
permissible and recognized means of criminal investigation. Whether or
not you approve of such techniques[] should not enter into your
deliberations in any way.
Id. (alteration in the original).
The Seventh Circuit refused to reverse the guilty verdict based on the
instruction. Id. at 795. The court explained the instruction could be a useful tool to
remind the jury of its task at hand and not to serve as a “roving commission to express
disapproval of law enforcement techniques that are acceptable under established legal
principles.” Id. at 794. And the court discounted the concern that the jury would take
this instruction to mean it must take the informant’s testimony at face value in light
of other instructions suggesting they could question the informant’s credibility. Id.
at 794–95. The court did, however, express some concerns about the use of the
instruction, recognizing such an instruction may clutter the instructions as a whole,
deflect the jury’s attention from its most important task, and give a signal of indirect
approval by the judge of the government’s management of the investigation. Id. at
794.
We share the Seventh Circuit’s concern that the instruction could signal
indirect judicial approval of the government’s management of the investigation.
However, the evidence supporting Strubberg’s conviction is so overwhelming that
any possible error would be harmless. Although we do not endorse or encourage
giving this instruction, we will not vacate Strubberg’s conviction based on its
inclusion.
-10-
C. Special Conditions
Finally, we consider Strubberg’s challenges to seven special conditions of
supervised release the district court imposed on him as part of his sentence.
Strubberg admits he did not object to any of these conditions at his sentencing
hearing and thus plain error review applies.3 See United States v. Bordman, 895 F.3d
1048, 1054 (8th Cir. 2018).
“To prevail under plain-error review, [Strubberg] ‘must show (1) the district
court committed an error, (2) the error is clear or obvious, and (3) the error affected
his substantial rights.’” Id. (quoting United States v. White Bull, 646 F.3d 1082, 1091
(8th Cir. 2011)). Even where those elements are satisfied, the court “will exercise
[its] discretion to reverse ‘only if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.’” Id. (quoting White Bull, 646 F.3d at 1091
(cleaned up)).
Part of Strubberg’s argument on appeal is that the district court imposed these
special conditions without providing an adequate explanation as to how the
conditions satisfied the requirements of 18 U.S.C. § 3583(d). It is true that when
crafting a special condition, the district court is generally required to “make an
individualized inquiry into the facts and circumstances underlying a case and make
sufficient findings on the record so as to ensure that the special condition satisfies the
statutory requirements.” United States v. Glover, 893 F.3d 536, 539 (8th Cir. 2018)
3
The Presentence Investigation Report included the challenged special
conditions and noted the statute required a term of supervised release of at least five
years and United States Sentencing Guidelines § 5D1.2(b)(2) required a term of
supervised release of between five years and life. In his briefing and during the
sentencing hearing, Strubberg only challenged the length of his supervised release,
arguing it should be for no more than five years. The district court agreed,
concluding any longer supervision was unnecessary.
-11-
(quoting United States v. Wiedower, 634 F.3d 490, 493 (8th Cir. 2011)). However,
even if the district court does not make individualized findings, “reversal is not
required . . . if the basis for the imposed condition can be discerned from the record.”
United States v. Thompson, 653 F.3d 688, 694 (8th Cir. 2011). On the record before
us, and as will be evident from our discussion of Strubberg’s substantive complaints,
we cannot say the district court’s failure-to-explain was “an obvious error that caused
prejudice and a miscarriage of justice.” United States v. Thompson, 888 F.3d 347,
351 (8th Cir. 2018). For this reason, we decline to vacate the special conditions for
a lack of adequate explanation.
As for Strubberg’s complaints about the substance of the special conditions,
we begin by noting that district courts have wide discretion when fashioning
conditions of supervised release. See id. at 351. The conditions must, however, be
“reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a),
involve[] no greater deprivation of liberty than is reasonably necessary, and [be]
consistent with any pertinent policy statements issued by the Sentencing
Commission.” Id. (citing 18 U.S.C. § 3583(d)). Because Strubberg did not object to
any of the special conditions, in order to prevail on plain error review he must
“establish that the condition is obviously impermissible” to reverse — it is not
enough that the permissibility of the condition is “reasonably debatable.” Id. at 355.
For the reasons discussed below, Strubberg cannot meet his high burden.
1. Computer-Related Conditions
We first consider Strubberg’s challenges to three conditions related to his use
of computers. Conditions “c” and “k,” which are identical, state: “The defendant
shall not possess or use any computer or electronic device with access to any ‘on-line
computer service,’ without the prior approval of the Probation Office. This includes
any public or private computer network.” Condition “m” requires Strubberg to
consent to the Probation Office conducting periodic, unannounced examination of his
-12-
cell phone contents and hardware. Condition “n” requires that Strubberg consent to
having hardware or software installed on his computer (at Strubberg’s cost) so as to
monitor its use.
We have upheld conditions that limit or restrict the use of computers and the
internet where they are related to the circumstances of the defendant’s offense. See
United States v. Perrin, No. 18-1503, 2019 WL 2517787, at *5 (8th Cir. June 19,
2019) (concluding a computer-related condition did not involve a greater deprivation
of liberty than is reasonably necessary because it was not a complete ban on internet
access and there was ample evidence the defendant used his devices for illegal
activities); United States v. Bender, 566 F.3d 748, 751 (8th Cir. 2009) (citing cases
where we have “affirmed computer and internet restrictions where the defendant sold,
transferred, produced, or attempted to arrange sexual relations with minors”). We
have reasoned that when such a connection between the crime and the condition
exists, the condition “is reasonably calculated to deter [the defendant] from repeating
his illegal activity, protect the public from similar conduct, and serve his correctional
needs.” Id.
The district court did not err in imposing these conditions. The trial record
shows Strubberg perused websites in an effort to arrange casual sexual encounters,
which was the genesis of his attempt to have sex with a minor here. He exchanged
emails and photographs with Kathy, including purported photographs of Abby. And
he used search terms indicating he was looking up information about having sex with
a minor immediately before leaving to meet with Abby. Also, the conditions do not
amount to a total ban on computers or internet use as they allow Strubberg to possess
and use computers authorized by the Probation Office and subject to reasonable
conditions.
-13-
2. Conditions Related to Contact and Residence
We next consider Strubberg’s challenges to three special conditions related to
his contact with minors and his residence. Condition “e” provides that Strubberg not
“associate or have any contact with persons under the age of 18, except in the
presence of a responsible adult who is aware of the nature of the defendant’s
background and current offense and who has been approved by the Probation Office.”
Condition “h” provides that Strubberg’s “place of residence may not be within 1,000
feet of schools, parks, playgrounds, public pools, or other locations frequented by
children.” Condition “i” states Strubberg is “barred from places where minors (under
the age of 18) congregate; such as residences, parks, pools, daycare centers,
playgrounds and school[s], unless prior written consent is granted by the Probation
Office.”
Strubberg claims these conditions are “wildly overbroad for a defendant who
was the victim of a sting, and has never been shown to have had contact with any
child for sexual purposes.” He also complains they lack clarity to the point he will
have difficulty complying with them. Although we are troubled by the breadth of the
conditions, we conclude it was not plain error for the district court to impose them.
First, our precedent supports the imposition of condition “i,” which forbids
Strubberg from going places where minors congregate without prior written consent
from the Probation Office. See United States v. Crume, 422 F.3d 728, 733–34 (8th
Cir. 2005) (concluding a similar restriction was sensible and not overly broad after
applying a reasonableness requirement that it would apply only at such places where
children under the age of 18 actually congregate); United States v. Ristine, 335 F.3d
692, 696–97 (8th Cir. 2003) (upholding a similar condition under plain error review).
Therefore, we conclude it was not plain error to impose the condition on Strubberg.
-14-
As for condition “h,” which forbids his residence from being within 1,000 feet
of “schools, parks, playgrounds, public pools, or other locations frequented by
children,” we have affirmed similar conditions in the past. See Thompson, 888 F.3d
at 353–54 (holding the district court did not commit plain error by including a
condition that did not permit him to reside within 500 feet of places frequented by
children under the age of 18, without prior written approval from the probation
office). We recognize Strubberg’s condition differs from Thompson in that it does
not permit Strubberg to ask the Probation Office to approve an exception. And this
inability to seek approval is troublesome considering the vagueness of the inclusion
of “other locations frequented by children.”
We are also concerned with condition “e,” which provides that Strubberg “will
not associate or have any contact with persons under the age of 18, except in the
presence of a responsible adult who is aware of the nature of the defendant’s
background and current offense and who has been approved by the Probation Office.”
It is true we have affirmed somewhat similar conditions before. See id. at 353
(affirming a condition on plain error review forbidding contact with minors without
prior written permission of the probation office); Bender, 566 F.3d at 753–54
(explaining this court has affirmed similar special conditions where the defendant can
seek permission from the probation office to contact minors in specific situations).
But the condition here gives us pause because it does not permit Strubberg to seek
approval for appropriate un-chaperoned contact with a minor. And the government
has failed to point to any case where we have affirmed such a condition without the
ability to ask for permission.
Despite our concerns, we decline to vacate these conditions on plain error
review because we cannot say they were obviously impermissible. We trust the
probation office and, if necessary, the district court will interpret these conditions in
a manner where they will not unreasonably interfere with Strubberg’s liberty. And
should the special conditions prove unworkable because of their vagueness or
-15-
breadth, Strubberg “may apply to the district court for an appropriate modification,”
pursuant to 18 U.S.C. § 3583(e). United States v. Forde, 664 F.3d 1219, 1225 (8th
Cir. 2012) (quoting United States v. Henkel, 358 F.3d 1013, 1015 (8th Cir. 2004)).
III. Conclusion
For the above reasons, we affirm the district court’s judgment.
______________________________
-16-