This post examines an opinion from the U.S. Court of Appeals for the 11th Circuit: U.S. v. Rutgerson, 2016 WL 2754457
(2016). The opinion explains that on
April 24, 2014,
a grand jury sitting in the U.S. District Court for the Southern District of Florida indicted Rutgerson
with one count of:
`using any facility and means of
interstate commerce, [to] knowingly attempt to persuade, induce, entice, and
coerce an individual who had not attained the age of eighteen years, to engage
in prostitution or any sexual activity for which a person can be charged with a
criminal offense, in violation of Title 18, United States Code, Section 2422(b).’
Rutgerson's case proceeded to a jury
trial on August 25, 2014.
U.S. v. Rutgerson,
supra.
The opinion goes on to explain that, at Rutgerson’s trial,
the prosecution called
Detective Robert Mauro, who was part of
the Fort Lauderdale Internet Crimes Against Children task force. Detective
Mauro testified that Rutgerson replied to an ad that he and Detective Jennifer
Montgomery posted on backpage.com as part of an operation that targeted child predators
on the Internet.
The ad was posted on January 23, 2014,
and was titled:
♥ ♥ ♥ SwEEt Petite yOung Lady . . . ♥
♥>> ♥ Come See Me!! ♥AMBERLY♥ Ft Laud♥–99.
The ad included photos of a woman's
stomach and legs and read this way:
Hi, I'm Amberly . . . pics are 100%
real ((promise)) . . . . New 2 BP and hOping tO like it here♥
i'm 5′2, 103 lbs, grEEn EyeS with a
swEEt bAby dOLL sMile♥
i PreFer mature upScale GENTLEmen who
like the cOmpany of a petite yOung lady and Enjoy bEing paMpered & spOiled.
If this sounds like you, hit me Up!
i'm juSt an email or pHonE cALL aWay!!
Come see MEEEE! ! ! ♥ ♥>> ♥
♥
Gmail me @cutieamberly99 for my #
U.S. v. Rutgerson,
supra.
The opinion goes on to explain that Mauro also testified at
trial that he had been
trained how to sound like a child
online, using typos, spelling errors, slang, and words that adults typically do
not use as much as children. He explained that the heart symbols and the
spelling that alternated between capital and lowercase letters were indicative
of how a teenager texted and communicated on the internet. The words `petite’
and `young’ indicated that the poster was under 18. Mauro testified that,
through his training and experience, he knew that the number 99, in the
underage prostitution world, is code for a child, so the 99 in the ad was a
`big hint’ that the person posting the ad was underage. The woman in the
pictures was actually Detective Montgomery, taken when she was 34 years old.
U.S. v. Rutgerson,
supra.
It also explains that on January 22, 2014,
Richard Rutgerson responded to the
e-mail address listed in the ad. Mauro, playing the role of Amberly, replied.
Their conversation continued via email and text message for the next two days,
culminating in a meeting for sex and Rutgerson's arrest at a La Quinta Inn in
Plantation, Florida.
The government introduced a composite
exhibit of the e-mail exchange between Rutgerson and Amberly. The conversation
began:
Rutgerson: Hi babe.
Can you tell me more about you?
Amberly: im available
tomorrw ... im new on here and fyi im young. bp [backpage.com] shut down
my ad twice thats why I cant put a phone # now cuz they kno its me. what are u
lookn for
Rutgerson: I'm looking for
a playmate.
What are you looking for?
Amberly: im on bp ... wat
do you think lol are you good with a young playmate or no
Rutgerson: How young are
you?
Where will you be available?
Amberly: im 15 bu ppl say i
look older. im clean and descreet. im gonna be near ft laud airport
Rutgerson: Can you send me
more pictures?
Ya. I'm fine. So long as we're
discrete.
What do you like to do? What are your
rules?
In subsequent emails, Rutgerson again
asked Amberly what she liked to do and what her `rules’ were. She responded
that her rules were that he could not `tattle’ about her age, pee on her, or do
anything that hurt. Amberly asked what he wanted to do, and Rutgerson replied
that he was looking on Backpage, so `what do you think[?]’ Rutgerson asked how
Amberly could get a hotel room and whether she was working with someone else.
She told him that she was working with a 17–year–old friend named Nicki who was
in charge and set the rules.
U.S. v. Rutgerson,
supra.
The opinion explains that Rutgerson tried to get Amberly to meet
him in
Miami. He offered to pick her up or to
get a hotel room in Miami. She refused, explaining that she was 15 and
could not drive. On January 24, 2014, Rutgerson texted that he had gotten off
work early and offered to drive the hour to Fort Lauderdale if Amberly was
still available. She gave him the address of a La Quinta Inn in Plantation,
told him to hurry, and advised him to `bring $ n stop playin games.’ He told
her that he was on his way. Rutgerson sent Amberly a series of text messages
from the car as he drove to Fort Lauderdale and showed no reluctance to have
sex with a 15–year–old in those text messages.
Mauro and other officers arrested
Rutgerson when he arrived at the hotel in Fort Lauderdale. Mauro interviewed
Rutgerson after explaining his Miranda rights. The recording
of that interview was introduced and played before the jury. In the interview,
Mauro asked Rutgerson if he thought he was going to have a sexual encounter
with a 15–year–old. Rutgerson replied that he did not know what was going to
happen until he got there and that he `was just coming to hang out,’ but that `nine
times out of ten that's what happens.’ Rutgerson further admitted that he
believed Amberly was 15 years old when he was texting and e-mailing her.
U.S. v. Rutgerson,
supra. There are more details in the original opinion, which you can find here.
Rutgerson was convicted and appealed, arguing that “he
should not have been convicted because he was entrapped into committing the
crime as a matter of law.” U.S. v.
Rutgerson, supra.
The court begins its analysis of his entrapment argument by
explaining that
[e]ntrapment is an affirmative defense
that requires (1) government inducement of the crime, and (2) lack of
predisposition on the part of the defendant to commit the crime before the
inducement. U.S. v. Orisnord, 483 F.3d 1169 (U.S. Court of
Appeals for the 11th Circuit 2007); U.S. v. Ryan, 289 F.3d
1339 (U.S. Court of Appeals for the 11th Circuit 2002). The defendant bears the
initial burden of production as to the government inducement and he may meet
this burden by producing any evidence that is sufficient to raise a jury
question that the government `created a substantial risk that the offense would
be committed by a person other than one ready to commit it.’ U.S. v. Ryan, supra (quoing U.S. v.
Brown, 43 F.3d 618 (U.S. Court of Appeals for the 11th Circuit 1995)).
`The defendant may make such a showing by `demonstrating that he had not
favorably received the government plan, and the government had had to ‘push it’
on him, or that several attempts at setting up an illicit deal had failed and
on at least one occasion he had directly refused to participate.’ U.S. v.
Andrews, 765 F.2d 1491 (U.S. Court of Appeals for the 11th Circuit 1985).
. . .
U.S. v. Rutgerson,
supra.
The Court of Appeals went on to explain that since
entrapment is generally a jury
question, entrapment as a matter of law is a
sufficiency-of-the-evidence inquiry that we review de novo, viewing
all facts and making all inferences in favor of the government. U.S. v.
King, 73 F.3d 1564 (U.S. Court of Appeals for the 11th Circuit 1996).
Where, as here, the jury has rejected an entrapment defense and government
inducement is not at issue, `our review is limited to deciding whether the
evidence was sufficient for a reasonable jury to conclude [beyond a reasonable
doubt] that the defendant was predisposed to take part in the illicit
transaction.’ U.S. v. Brown, supra.
U.S. v. Rutgerson,
supra.
The court then explained that entrapment
is a fact-intensive and subjective
inquiry, requiring the jury to consider the defendant's readiness and
willingness to engage in the charged crime absent any contact with the
government's agents. U.S. v. Brown, supra; Jacobson v. U.S., 503U.S. 540 (1992) (once
government inducement is shown, `the prosecution must prove beyond reasonable
doubt that the defendant was disposed to commit the criminal act prior to first
being approached by Government agents’). We have rejected creating a `fixed
list of factors' for evaluating an entrapment defense, but we have posited
`several guiding principles’:
Predisposition may be demonstrated
simply by a defendant's ready commission of the charged crime. A predisposition
finding is also supported by evidence that the defendant was given opportunities
to back out of illegal transactions but failed to do so. Post-crime statements
will support a jury's rejection of an entrapment defense. Existence of prior
related offenses is relevant, but not dispositive. Evidence of legal activity
combined with evidence of certain non-criminal tendencies, standing alone,
cannot support a conviction. Finally, the fact-intensive nature of the
entrapment defense often makes jury consideration of demeanor and credibility
evidence a pivotal factor.
U.S. v. Brown, supra.
The court then began its analysis of Rutgerson’s argument regarding
whether he was predisposed to commit the offense with which he was charged:
Viewing the evidence in the light most
favorable to the government, a variety of factors support a finding that
Rutgerson was not entrapped as a matter of law. In the first place, Rutgerson
made the initial contact with Amberly and, after she said that she was 15,
Rutgerson readily proceeded to attempt to arrange a sexual encounter with her.
She repeatedly asked if he was okay with her tender age, and he replied that he
was okay as long as they were discreet. Rutgerson never once said that he did
not want to have sex with a 15–year–old (even as he was repeatedly advised of
Amberly's age), and, as we have outlined the facts, persistently pursued
Amberly over three days in an attempt to agree on a price, rules, time, and
location for a sexual encounter.
Second, Rutgerson did not back out of
his meeting with Amberly and never expressed any hesitation about having sex
with a minor, although he repeatedly had the opportunity. Indeed, he drove from
Miami to Fort Lauderdale for the purpose of paying her for sex. He repeatedly
rescheduled his date with her after his work kept interfering. And in spite of
the expressed concerns that Amberly was not real or was part of a sting
operation, Rutgerson continued to pursue a sexual encounter with her. .
. . In the third place, his post-arrest statements were quite damning: he
stated that he believed he was texting and e-mailing a 15–year–old, and that
while he was not sure what was going to happen when he got there, `nine times
out of ten’ a sexual encounter happens. Fourth, and finally, although there was
no evidence of prior related offenses, the government introduced evidence that,
before reaching out to Amberly, Rutgerson had accessed numerous ads for `young’
prostitutes online. Plainly, Rutgerson was familiar with the website he used to
locate Amberly's ad. While there was no evidence that the other prostitutes
Rutgerson contacted were under 18, his search history suggests that he was
predisposed to attempt to entice young women into having sex.
The long and short of it is that the
government agents `simply provided [Rutgerson] with the opportunity to
commit a crime’ by posting the backpage ads, and his `ready commission of the
criminal act amply demonstrate[d][his] predisposition.’ See Jaconbsen v. United States, supra. The
evidence supports the jury's verdict.
U.S. v. Brown,
supra.
The Court of Appeals therefore affirmed Brown’s conviction. U.S.
v. Brown, supra.
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