In entering his plea, Gennette
reserved his right to appeal the denial
of the motion to dismiss. In his motion, Gennette argued that his conduct was
the product of entrapment by the government, as defined by § 777.201, Florida Statutes, and that he was thus entitled to dismissal as a matter of
law.
Gennette v. State,
supra.
The opinion explains that Gennette was charged as the result
of a
a police operation intended to
apprehend persons seeking illegal contact with minors. To this end, government
agents published an on-line (Craigslist) advertisement for apparently legal
activity with a fictitious adult or adults: `Sisters looking for a hot night --
w4m -- 19 (Pcola/Destin/PC).’ Testimony at the motion hearing confirmed that
`w4m’ meant female looking for male, and the number 19 was to indicate the
advertiser's age. The ad did not suggest illegal activity.
Gennette v. State,
supra.
The Court of Appeals’ opinion also says that Gennette
“responded to the advertisement late on a Thursday night”, as follows:
Appellant (11:24 p.m.): For
real? nah, I don't believe it, LOL can U prove me wrong? cute guy here, Trey
`Amber’ (11:42 p.m.): Hi Trey! Let see how
cute!!! My lil sis is in town visiting me for the summer. She is 14, you ok
with that?
The next morning, [Gennette] continued his e-mail correspondence with the law enforcement agent posing as the 19–year–old `Amber’ as follows:
Appellant (10:21 a.m.): well I think she
is a bit young, lol but depends on what you have in mind before i send my pic,
are there any age requirements? lmao well the hell with it, ill send a pic
anyway me and my pet possum.
`Amber’ (3:44 p.m.): Nice pic! Why in the
world do you have a pet possum? There are no age requirements here.
Appellant (3:59 p.m.): Well
thank you. . . . I found my lil-bear in my backyard when she was just a baby
and ive raised her . . . she's so spoiled and thinks shes a people, lol. . . . now
its your turn, lol.
Gennette v. State,
supra.
The court then notes that the prosecution argued that
Gennette’s response,
in the third e-mail message of the
chain, defeated his claim of entrapment because he readily accepted the
government's offer for sexual activity with a minor. To the contrary, [Gennette’s]
e-mail shows only that he understood that a minor sister was visiting
19–year-old `Amber’ for the summer.
The agent's question of `you ok with
that?’ and [his] response `she is a bit young . . . but depends on what you
have in mind . . . are there any age requirements?’ was equivocal. Neither the
agent's nor [Gennette’s] messages at this point contained any reference to
sexual activity or performance with either `Amber’ or the minor. The early
messages are simply too vague to constitute an offer and acceptance for
criminal conduct.
Gennette v. State,
supra.
The Court of Appeals then explains that in the eighth email
message, the
agent sent [Gennette] a photograph of
two young women posing as the fictional adult female and the minor. The agent's
subsequent messages described the photo as showing a `fun’ weekend and plans to
`get into some fun.’ [Gennette] described his weekend plans as watching a movie
at home and caring for his pet opossum, who was recovering from veterinary
surgery.
In the seventeenth message, [he]
invited `u’ to his home where `we could figure out something to do if you
like,’ to which the agent replied `we host only.’ [Gennette] then lamented that
`u’ would be unable to meet his pet possum and inquired `if I was invited over,
what would u have in mind?’ The agent repeated `fun,’ and inquired `what do you
have in mind for us?’ While the agent used the plural terms `us’ and `we’ in her
e-mails, [he] consistently responded with `u’ and `you,’ making his intentions
ambiguous about whether he was still contemplating contact only with `Amber’
(the adult, as originally advertised) at this point in the conversation.
Gennette v. State,
supra.
The court then noted that Gennette’s emails
at this point continued to discuss his
pet opossum and contained no words or phrases that suggested any sexual
activity with either `Amber’ or her `sister’ or in the `sister's’ presence. [His]
only reference to physical features were to his pet's `female parts,’ because
the recovering animal had recently been spayed. He sent a photo of the opossum
to `Amber’ and suggested `a ride in my talking Mustang.’
When [Gennette] described his current
activity as `just cleaning house,’ the agent again stated `we are looking to
have fun tonight.’ The twenty-seventh e-mail in the exchange, sent by [Gennette]
the Friday night after his response to the Craigslist advertisement, stated `maybe
you can twist my arm, lol, I have some things to do tomorrow am, and since you
cant come here . . . but I can be persuaded, lol.’ Four more e-mails were
exchanged and both of the agent's messages inquired about what [he] wanted `to
do with us.’ [His] responses remained ambivalent about any particular activity
with either female.
Gennette v. State,
supra.
Finally, according to the opinion, in the
thirty-second e-mail, the agent tried
to clarify the offer, stating `do u realize that its me and my lil sis.’ [Gennette]
responded: `im trying to keep things clean so to speak, lol until told
otherwise, lmao but my car is fast, I can get somewhere pretty quick if needbe,
just hope I don't get a ticket.’ The agent continued to urge [him]t to provide
details and assured him that `we like it dirty.’
When [his] responses continued to lack sexual content pertaining to the `minor, the agent insisted she needed details because `I need to prep her.’ [Gennette’s] response `Prep her? what does that consist of?’ shows the agent's offer including the minor is finally beginning to dawn on him.
When [his] responses continued to lack sexual content pertaining to the `minor, the agent insisted she needed details because `I need to prep her.’ [Gennette’s] response `Prep her? what does that consist of?’ shows the agent's offer including the minor is finally beginning to dawn on him.
[His] vague response caused the agent
to demand in the fortieth message: `r u scared to talk about it[?]’ Finally, in
the forty-first message of the e-mail chain, [Gennette] acknowledges the
`underage sister,’ asks `is that all consensual,’ and the agent assures him
`everything is consensual.’ The messages continued into the next day
(Saturday).
The agent responded to [Gennette’s] continued use of the singular `you’ by prompting him not to `leave out’ the minor sister. From that point on, both the agent's and [Gennette’s] messages increased in suggestiveness, including suggestions of sexual activity including the minor.
The agent responded to [Gennette’s] continued use of the singular `you’ by prompting him not to `leave out’ the minor sister. From that point on, both the agent's and [Gennette’s] messages increased in suggestiveness, including suggestions of sexual activity including the minor.
Gennette v. State,
supra.
The Court of Appeals then takes up the issue of entrapment,
explaining that the
defense of entrapment has evolved under
federal and Florida law as both crime and its detection have increased in
sophistication. Beginning with the opinion in Sorrells v. U.S., 287 U.S. 435 (1932), the courts have consistently recognized a policy disapproving
use of the government's police power to trick otherwise law-abiding citizens
into violating the law.
The power to use the `potentially dangerous tool’ of deception to prevent and detect crime is abused `when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.’ Sorrells v. U.S. supra.
The power to use the `potentially dangerous tool’ of deception to prevent and detect crime is abused `when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.’ Sorrells v. U.S. supra.
As stated in Sherman v. U.S., 356U.S. 369 (1958), `[t]o determine whether entrapment has been established, a
line must be drawn between the trap for the unwary innocent and the trap for
the unwary criminal.’ . . .
Gennette v. State,
supra. For more on the defense of entrapment, check
out Wikipedia’s entry on the topic.
The Court of Appeals noted that, in 1987, the Florida
legislature adopted § 777.201, cited above, which states that a law enforcement
officer
perpetrates an entrapment if, for the
purpose of obtaining evidence of the commission of a crime, he or she induces
or encourages and, as a direct result, causes another
person to engage in conduct constituting such crime by employing methods
of persuasion or inducement which create a substantial risk that such
crime will be committed by a person other than one who is ready to
commit it.
Gennette v. State,
supra (emphasis in the original).
It explained that to raise the defense of entrapment, the
defendant must show that the agent “induced or encouraged him or her to the
extent that the defendant's conduct was caused by the persuasive methods of the
agent.” Gennette v. State, supra. It also explained that “inducement” in the
context of the entrapment defense has been defined
as `persuasion, fraudulent
representations, threats, coercive tactics, harassment, promises of reward, or
pleas based on need, sympathy or friendship.’ State v. Henderson, 955
So.2d 1193 (Florida Court of Appeals 2007). . . . `Encourages’ has not been
further defined in an entrapment context by case law. Black's Law Dictionary
defines `encourage’ in reference to criminal law, as `[t]o instigate; to incite
to action; to embolden; to help.’ Black's Law Dictionary (9th edition 2009). Merriam–Webster
defines `encourage’ as `to attempt to persuade: “urge” or “to spur on”.’
Gennette v. State,
supra.
The Court of Appeals then applied these principles to the
facts in this case:
[T]he e-mail chain established, by a
preponderance of evidence, that the government induced or encouraged [Gennette],
and due to his lack of predisposition, caused him by methods of persuasion to
commit the offenses charged. As previously noted, the parties stipulated that [he]
was `a person other than one who is ready to commit’ the offense. Florida
Statutes § 777.201(1).
Throughout the e-mail chain, it was the
agent who took the lead. It was the law enforcement agent who initially
suggested the presence of a minor, though without any specific proposition of
sexual or other criminal involvement between Appellant and the minor. When [Gennette’s]
communications wandered to innocuous matters, it was the agent who repeatedly
steered the conversation back to sexual activity with a minor.
The agent redirected [his] lack of focus on the minor by introducing and promoting the idea of participation by the minor in sexual activity with [Gennette]. It was the agent who coaxed and cajoled [him] for more details and challenged [his] reluctance by impugning his nerve and suggesting he was `scared.’
The agent redirected [his] lack of focus on the minor by introducing and promoting the idea of participation by the minor in sexual activity with [Gennette]. It was the agent who coaxed and cajoled [him] for more details and challenged [his] reluctance by impugning his nerve and suggesting he was `scared.’
The agent's persistent urging to
overcome [Gennette’s] obvious reluctance to commit or even describe illegal
activity in his e-mail messages easily fits the statutory definition of
entrapment -- `induces or encourages’ and `as a direct result, causes’ [Gennette’s]
eventual unlawful communications -- as set out in section 777.201. . . .
The definitions of `induces’ and
`encourages,’ including `instigation,’ `persuasion,’ `harassment,’ `urging,’
`spurring on’” and `incitement to action’ all apply to the progression of the
government's messages to [Gennette] in this case. [His] eventual sexually
suggestive communications pertaining to the minor occurred only after the agent
`cast her “fishing expedition” to bait, hook, net, and land him for’ the
offenses charged. See Futch v. State, 596 So.2d 1150 (Florida
Court of Appeals 1992).
Gennette v. State,
supra.
The Court of Appeals therefore held that
[b]ecause the preponderance of the
evidence, as set out in the e-mail messages, showed the law enforcement
officer's methods of persuasion induced or encouraged, and as a direct result
caused [Gennette’s] unlawful communications, the legal definition of entrapment
. . . was met and the motion to dismiss should have been granted.
The law does not tolerate government action to provoke a law-abiding citizen to commit a crime in order to prosecute him or her with that crime.
The law does not tolerate government action to provoke a law-abiding citizen to commit a crime in order to prosecute him or her with that crime.
Gennette v. State,
supra.
It therefore reversed Gennette’s conviction and sentence and
remanded the case for the dismissal of the charges. Gennette v. State, supra.
1 comment:
keep in mind too that the photo they sent me was that of someone in her later 20's. There are many things that I have also found out that law enforcement lied about that wasn't found until after the proceedings were over
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