Friday, September 25, 2015

Craigslist, Age-Regression and Entrapment

After a jury found Jacob Mendoza “guilty of one count of child solicitation by electronic device contrary to [New Mexico Statutes] § 30–37–3.2”, he appealed, arguing, in part that “he was entrapped”.  State v. Mendoza, 2015 WL 5118099 (Court of Appeals of New Mexico 20150.  You can, if you are interested, read a little about how the charge arose in the news stories you can find here, here and here.
The Court of Appeals began its opinion by explaining that in
State v. Schaublin, 344 P.3d 1074 (2015), . . . we discussed an advertisement placed in the Craigslist website by Agent Phil Caroland of the Curry County Sheriff's office. This case involves the same Craigslist ad as discussed in Schaublin, by Agent Caroland posing as `Myrna Gonzales,’ a fifteen-year-old girl. State v. Schaublin, supra. . After engaging in a sexually explicit e-mail discussion with Myrna, [Mendoza] arranged to meet her in person. When Defendant appeared for the meeting, he was arrested. He was later charged with one count of child solicitation. Additional facts are provided as necessary in our discussion.
State v. Mendoza, supra.  This post only examines Mendoza’s argument regarding the alleged entrapment.
The opinion goes on to explain that “[p]rior to trial, [Mendoza] sought dismissal of the child solicitation charge on the ground that he was subjectively and objectively entrapped as a matter of law.” State v. Mendoza, supra. The Court of Appeals began its analysis of his argument by explaining that
`New Mexico recognizes two major approaches to the defense of entrapment, the subjective approach and the objective approach.’ State v. Schaublin, supra. Subjective entrapment, which focuses on the defendant's predisposition, is normally resolved by a fact-finder and is only rarely resolved as a matter of law by the court. State v. Schaublin, supra.
State v. Mendoza, supra. 
The Court of Appeals went on to explain that
[o]bjective entrapment, which `focuses upon the inducements used by the police[,]’ is broken into two subsets, factual and normative. State v. Schaublin, supra. . . . A defendant seeking to establish objective entrapment under a factual approach would attempt to prove to a fact-finder that `as a matter of fact . . .  police conduct created a substantial risk that a hypothetical ordinary person not predisposed to commit a particular crime would have been caused to commit that crime.’ State v. Schaublin, supra (alterations, internal quotation marks, and citation omitted). A defendant seeking to establish objective entrapment under a normative approach, that is as a matter of law, would seek a ruling by the district court that `as a matter of law and policy [the] police conduct exceeded the standards of proper investigation.’ State v. Schaublin, supra (alternations, internal quotation marks, and citation omitted).

In the present case, the district court concluded [Mendoza] was not subjectively or objectively entrapped as a matter of law, but the court allowed the jury to resolve the issue whether [he] was subjectively or objectively entrapped, as a matter of fact. The jury rejected [Mendoza’s] entrapment defenses when it found him guilty of child solicitation. On appeal, [he] seeks reversal of his conviction on the grounds that he was subjectively and objectively entrapped as a matter of law. Because Defendant challenges the court's rejection of his entrapment defense, as a matter of law, our review is de novo. State v. Vallejos, 122 N.M. 318, 924 P.2d 727, rev'd in part on other grounds,. . . 123 N.M. 739, 945 P.2d 957 (New Mexico Supreme Court 1997). [Mendoza] does not challenge the jury's conclusion that he was not objectively entrapped as a matter of fact.
State v. Mendoza, supra. 
The court then began by outlining what constitutes subjective entrapment, noting that
`[s]ubjective entrapment occurs when the criminal design originates with the police, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order to generate a prosecution.’ State v. Schaublin, supra. . . . It is permissible for police to set a trap for the unwary criminal by means of a ruse. State v. Schaublin, supra. The line between the permissible use of a ruse and impermissible entrapment is drawn at the point where the police `persuade[ ] an otherwise law abiding citizen to engage in criminal activity through repeated and consistent appeals[.]’ State v. Schaublin, supra.

`[E]ntrapment as a matter of law exists only when there is undisputed testimony which shows conclusively and unmistakably that an otherwise innocent person was induced to commit the act.’ U.S. v. Dozal–Bencomo, 952 F.2d 1246 (U.S. Court of Appeals for the 10th Circuit 1991) . . . (a court `may find entrapment as a matter of law if the evidence satisfying the essential elements of entrapment is uncontradicted’). . . . Subjective entrapment is rarely held to exist as a matter of law. State v. Schaublin, supra.
State v. Mendoza, supra. 
The Court of Appeals then began analyzing Mendoza’s argument, explaining that to
support his contention that he was subjectively entrapped as a matter of law, Defendant argues that (1) Myrna's ad was posted in a section of Craigslist that required each user to be at least eighteen years old, and therefore, it was reasonable for him to assume that any posting in that section was done by an adult; (2) he was misled by photographs of a twenty-six-year-old woman purporting to be Myrna; and (3) Myrna “pushed to set up a meeting with [him] after engaging him in [a] sexual discussion. Defendant claims he lacked the predisposition to commit child solicitation and that, but for the foregoing circumstances by which [he] argues the police entrapped him, he would not have engaged in such `conversations[.]’

[Mendoza’s] argument in this regard resembles the argument made by the defendant in Schaublin. In Schaublin, the defendant argued that, because Myrna's ad was in the adults-only section of Craigslist, the officer used an age-regressed photograph of an adult woman to accompany the `Myrna’ persona, and Myrna `inserted sexuality into their communications[,]’ he was subjectively entrapped as a matter of law. . . . We held that because Myrna `informed [the d]efendant immediately, in her response to [his] initial response to her ad, that she was fifteen years old[,]’ and because the record reflected that the defendant, not Myrna, first broached the topic of sexuality, `the jury could reasonably have concluded that [the d]efendant engaged with Myrna willingly and without having been persuaded to do so[.]’  State v. Schaublin, supra.
State v. Mendoza, supra. 
The court went on to explain that Mendoza
attempts to distinguish this case from Schaublin on the ground that the `Myrna’ photos in Schaublin were age-regressed and that the photos in the present case depicted a twenty-six-year-old woman whose photo had not been subject to age-regression. This distinction is contradicted by the record in the present case in which Agent Caroland testified that the Myrna photographs that had been sent to [Mendoza] had been subjected to an age-regression process by the National Center for Missing and Exploited Children and were intended to represent a pre-teen or young teenage girl. 

Furthermore, even were we to assume that the Myrna photographs in the present case were not age-regressed, such a fact would not `conclusively and unmistakably’ demonstrate that [Mendoza] was not predisposed to commit child solicitation such that [he] was entitled to a ruling that, as a matter of law, he was subjectively entrapped. See U.S. v. Dozal–Bencomo, supra.
`[E]ntrapment as a matter of law exists only when there is undisputed testimony which shows conclusively and unmistakably that an otherwise innocent person was induced to commit the act.’ . . . Here, as in Schaublin, in Myrna's first reply to [Mendoza’s] first e-mail to her, Myrna stated she was `15 and going to be in 10th grade.’

Therefore, even if we were to agree with [Mendoza] that the Myrna photographs had not been age-regressed, at best this would have created a circumstance in which there existed evidence supporting [his] argument that he believed Myrna was an adult and evidence supporting the State's position that [Mendoza] believed Myrna was a fifteen-year-old child. Under these circumstances, the district court properly determined that the issue of subjective entrapment should be resolved by the jury as a matter of fact. fact. See U.S. v. Dozal–Bencomo, supra (recognizing that subjective entrapment may only be found as a matter of law where the relevant facts are uncontradicted).
State v. Mendoza, supra. 
The court also found that,
although [Mendoza] argues that Myrna `pushed’ to meet him after engaging in a `sexual discussion’ with him, the record reflects [he] initiated the sexual discussion by asking Myrna, `R u still a virgin?’ and he initiated the plan to meet by asking Myrna whether she could `get away’ and by stating `I wanna see how well u can please me. I just need to find us a place[.]’ The record is devoid of any evidence that Agent Caroland used repeated and consistent appeals to persuade [him] to communicate with or meet Myrna. Myrna. See State v. Schaublin, supra (standard used to determine whether a defendant was subjectively entrapped includes `repeated and consistent appeals’ to `persuade[ ] an otherwise law abiding citizen to engage in criminal activity’). In sum, under the circumstances of this case, the district court did not err in denying [Mendoza’s] motion to dismiss on the ground that he was subjectively entrapped as a matter of law. See U.S. v. Dozal–Bencomo, supra (recognizing that entrapment as a matter of law may be found where it is unmistakable `that an otherwise innocent person was induced to commit the act’ (internal quotation marks and citation omitted)).
State v. Mendoza, supra. 
The Court of Appeals then took up “objective entrapment”, noting that the
district court determined that the police conduct was not unconscionable, and [Mendoza’s] motion to dismiss on the ground that he was objectively entrapped as a matter of law was denied. [He] challenges the district court's denial of his motion to dismiss, reiterating that he was objectively entrapped as a matter of law.
State v. Mendoza, supra. 
It began its analysis of this argument by explaining that
[o]bjective entrapment may be held to exist as a matter of law when the district court determines that `as a matter of law [the] police conduct exceeded the standards of proper investigation[ .]’ State v. Vallejos, 123 N.M. 739, 945 P.2d 957 (New Mexico Supreme Court 1997). This is distinct from the issue of objective entrapment as a matter of fact in which a jury considers whether, as a factual matter, the `police conduct created a substantial risk that an ordinary person not predisposed to commit a particular crime would have been caused to commit that crime[.]’ State v. Vallejos, supra.

In his argument, [Mendoza] conflates these distinct forms of objective entrapment and argues that he was objectively entrapped as a matter of law because the Myrna ad `created a substantial risk [that] an ordinary person would be lured into committing’ child solicitation. Since [he] expressly limits his argument on appeal to the issue of objective entrapment as a matter of law and he does not challenge the jury's verdict, we do not consider whether the jury properly concluded that, as a matter of fact, the police did not create a substantial risk that an ordinary person would be lured into committing child solicitation.

Instead, we limit our discussion of objective entrapment to [Mendoza’s] argument, that is, whether the police were guided by an `illegitimate purpose’ and that they acted unconscionably when they placed the ad in an adults-only section of Craigslist, used photographs of a twenty-six-year-old woman to depict `Myrna,’ and engaged [him] in two days of conversation `attempting to bait him into a sexual discussion[.]’

Before fully discussing [Mendoza’s] argument, however, we observe that, although [he] characterizes the photographs as depicting `a [twenty-six] year old,’ the evidence presented at the hearing on the motion to dismiss on entrapment grounds was that the photographs were of a twenty-three-year-old deputy and . . . had been age-regressed to portray a pre-teen or young teenage girl. Therefore, we do not accept [his] characterization that the photographs portrayed a twenty-six-year-old woman.
State v. Mendoza, supra. 
The Court of Appeals went on to point out that the issue as to whether the
law enforcement practice of posting an ad in an adults-only section of a website and using an age-regressed photo of an adult to accompany the false persona of a fifteen-year-old child, who purportedly placed the ad, constitutes objective entrapment as a matter of law is one of first impression in New Mexico. In State v. Vallejos, supra, our Supreme Court cautioned the judiciary not to `micro-manage police investigative procedures’ and stated that a determination of objective entrapment should be `reserved for only the most egregious circumstances[.]’ . . . Additionally, the Supreme Court noted that objective entrapment is not indicated simply because the police participate `in a crime [that] they are investigating’ or use `deception to gain the confidence of suspects[.]’
State v. Mendoza, supra. 
It also noted that in State v. Vallejos, supra, the New Mexico Supreme Court illustrated
the distinction between a permissible `degree of deception’ and impermissible `unconscionable methods’ of crime detection [by providing] several examples to serve `as indicia of unconscionability.’ . . .   Among the examples of unconscionable police methods are giving a defendant free illicit drugs until he is addicted and then playing on his addiction to persuade him to purchase illicit drugs; overcoming a defendant's demonstrated hesitancy by persistent solicitation; threatening or using violence; appealing to sympathy or friendship; offering `inordinate gain or . . .  excessive profit’; `excessive involvement by the police in creating the crime’; manufacturing `a crime from whole cloth’; and acting with the `illegitimate purpose’ of `ensnar[ing] a defendant solely for the purpose of generating criminal charges and without any motive to prevent further crime or protect the public at large.’ . . .

The court then applied the foregoing standards to determine that the police methods used in Vallejos, specifically, law enforcement's use of illegal drugs to set up drug transactions and their use of assumed identities as drug dealers to capture potential drug buyers did not constitute objective entrapment as a matter of law because none of the indicia of unconscionability were present. . . . 
State v. Mendoza, supra. 
The Court of Appeals went on to apply these standards to the Mendoza case, noting that
[i]n the present case, the record is void of any evidence that Agent Caroland persuaded [Mendoza] to engage in child solicitation by any of the indicia of unconscionability discussed in Vallejos.  Although [Mendoza] argues that Agent Caroland attempted `to bait him into a sexual discussion’ with Myrna, as noted earlier, the subject of sex was introduced into his and Myrna's conversation by [Mendoza]. Further, the record is void of any indication that the agent used persistent solicitation to overcome any hesitancy expressed by [him] to engage in a sexual relationship with Myrna, attempted to appeal to [his]sense of sympathy or friendship, or offered [Mendoza] any form of profit or gain.

Nor, under the circumstances of this case, was the act of placing an ad in the adults-only section of Craigslist an unconscionable police practice. Although the ad itself did not indicate Myrna's age, Agent Caroland represented Myrna to be a fifteen-year-old child in his first reply to Defendant's response to the ad. Thus, despite the placement of the ad in the adults-only section of Craigslist, [Mendoza] was made aware at the outset that the ad had not been placed by an adult.

Additionally, in terms of the conscionability of police practices, we see little distinction between Agent Caroland perpetuating the ruse that he was a fifteen-year-old girl who was breaking the rules of Craigslist by posting an ad in an adult-restricted section and the law enforcement practice of posing undercover as a drug dealer. . . . In each instance, law enforcement is playing a role and engaging in a ruse intended to root out criminals. Likewise, just as the Vallejos Court approved the use of actual illicit drugs in the drug sale by undercover agents posing as drug dealers, we approve the use in the present case of age-regressed photographs to accompany the Myrna persona. . . .

To hold that it was impermissible for Agent Caroland to use the age-regressed photographs that were essentially a `prop’ that permitted him to believably maintain the Myrna persona would amount to micro-management of police investigative procedures that is not within the purview of this Court. . . .
State v. Mendoza, supra. 
The court concluded this section of its opinion by noting that
[o]n a final note in regard to Defendant's objective entrapment argument, we observe that § 30–37–3.2(D) expressly provides that `[in] a prosecution for child solicitation . . .  it is not a defense that the intended victim of the defendant was a peace officer posing as a child under sixteen years of age.’ Thus, in drafting § 30–37–3.2(D) the Legislature appears to have contemplated that the police would use methods such as Agent Caroland's `Myrna’  Craigslist ad to enforce the prohibition against child solicitation. The obvious legislative intent behind § 30–37–3.2 further supports our conclusion that the activity here did not exceed the standards of proper investigation and was not unconscionable under State v. Vallejos, supra (stating that the appellate court should not interfere with the policy and enforcement decisions of the legislative and executive branches of government). In sum, [Mendoza’s] argument that he was objectively entrapped as a matter of law does not demonstrate grounds for reversal.
State v. Mendoza, supra. 
For these and other reasons, the Court of Appeals affirmed Mendoza’s conviction.


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