Craigslist, Email and Entrapment

After Edwin Gennette pled nolo contendere to “one count of unlawful use of a two-way communications device to facilitate a felony, in violation of § 934.215, Florida Statutes”, he appealed.  Gennette v. State, 2013 WL 4873490 Florida Court of Appeals 2013). He entered his plea after the trial judge denied his motion to dismiss the charge against him.  Gennette v. State, supra.

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.

[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.

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. 

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'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.

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.