Entrapment Instructions Require Evidence of Government Pressure Beyond an Undercover Opportunity

1. Introduction

This decision addresses the boundary between an undercover officer’s creation of an opportunity to commit a crime and government inducement sufficient to require an entrapment instruction. Obdy Jessael Mencia Guerrero challenged his conviction for attempting to entice a minor to engage in sexual activity under 18 U.S.C. § 2422(b). He argued that an officer posing as a fourteen-year-old encouraged him to escalate an initially nonsexual conversation by repeatedly asking what they would do together and describing his proposed activities as boring or “lame.”

The Eleventh Circuit held that these exchanges, considered in Guerrero’s favor, did not supply the necessary evidence of government pressure, manipulation, or coercion. Questions inviting a suspect to identify his intentions, followed by acquiescence in his proposal, did not establish inducement on this record.

Precedential qualification: The opinion is designated “NOT FOR PUBLICATION.” It applies existing entrapment doctrine rather than establishing a new binding circuit rule. Its significance lies principally in its fact-specific guidance concerning online undercover investigations and the evidentiary threshold for an entrapment instruction.

2. Background and Procedural History

The undercover operation

Deputy Regan Thoresen created a profile under the name “Avery” on Badoo, an adult-only dating application. The profile listed an adult age, as the platform required, but used photographs of Thoresen at thirteen. Her practice was to match with users, wait for them to message her, move the conversation to text messages, and disclose that Avery was fourteen.

Guerrero initiated their direct communication on July 14, 2024. After he said he was thirty-seven, Avery disclosed her age and asked whether that was acceptable. He answered, “Yes,” and invited her to his house.

The July 14 exchanges

The parties discussed drinking beer, watching television, and eating together the following day. Avery repeatedly asked what they would do and called the proposed evening “kind of boring.” Guerrero made suggestive statements, including that they could do “everything you like,” but also agreed when Avery asked whether they would simply drink beer and watch television. A proposed meeting did not occur because Avery did not provide her address.

The renewed conversation and arrest

After an unanswered message eleven days later, Guerrero renewed contact on July 27 and again invited Avery to stay at his house. When she said traveling to Daytona “just to talk” was “lame,” Guerrero expressly proposed sex. Avery agreed conditionally—“Sure, if you want to”—and reminded him that she was fourteen and inexperienced.

Guerrero sought reassurance about getting into trouble, acknowledged being “scared” because of her age, and agreed to use protection after she mentioned pregnancy. He arranged to collect her at a gas station and was arrested when he arrived.

The requested instruction and appeal

A grand jury charged Guerrero with attempted enticement and illegal reentry. The district court severed the counts. At the attempted-enticement trial, Guerrero requested the pattern entrapment instruction, arguing that Avery’s comments signaled that he needed to escalate the encounter. The district court declined, reasoning that the government had provided an opportunity rather than manufactured the crime. The jury convicted him.

Guerrero subsequently pleaded guilty to illegal reentry and received concurrent prison terms of 121 months for attempted enticement and 24 months for illegal reentry. His appeal challenged the refusal to instruct on entrapment, not his illegal-reentry conviction or sentence.

3. Summary of the Opinion

The Eleventh Circuit affirmed on the following grounds:

1. Review was de novo. The appellate court independently assessed whether the evidence warranted the requested instruction.
2. The evidentiary burden was light but substantive. Guerrero needed some evidence, “more than a scintilla,” of government inducement. An attractive opportunity alone was insufficient.
3. The conversations did not demonstrate added government pressure. Avery asked questions, expressed dissatisfaction with proposed activities, and accepted Guerrero’s sexual proposal, but did not push a criminal plan on him.
4. The alleged sexualized portrayal lacked record support. Avery described herself as inexperienced; her reference to one prior encounter with an older person answered Guerrero’s question after he had proposed sex.
5. No jury determination of predisposition was required. Because Guerrero failed to meet the preliminary inducement threshold, the court did not reach the government’s burden to prove predisposition to defeat an adequately raised entrapment defense.

The holding concerned entitlement to an instruction. The court did not independently reassess every element of the underlying attempted-enticement offense.

4. Analysis

A. Precedents Cited and Their Influence

Standards governing review and defense instructions

United States v. Dixon, 901 F.3d 1322 (11th Cir. 2018)

The court relied on this decision for de novo review of whether a defendant produced sufficient evidence to warrant an entrapment instruction. This required an independent appellate assessment rather than deference to the district court’s evidentiary conclusion.

United States v. Chirinos, 112 F.3d 1089 (11th Cir. 1997)

Guerrero advocated abuse-of-discretion review, and the opinion acknowledged that some earlier decisions, including this one, had purported to use that standard. The panel explained that subsequent decisions clarified that de novo review governs the evidentiary-threshold question. The reference resolves the standard-of-review issue; it does not reject the earlier decision wholesale.

United States v. Ryan, 289 F.3d 1339 (11th Cir. 2002)

This case supplied the principle that a defense instruction requires “any foundation in the evidence.” The panel read that general principle together with the more specific entrapment requirement of evidence exceeding a scintilla. A proposed defense theory must have an evidentiary foundation, not merely a conceivable explanation of events.

The Supreme Court’s distinction between detection and creation of crime

Sorrells v. United States, 287 U.S. 435 (1932)

The opinion invoked the rule that law enforcement may employ “artifice and stratagem” to detect criminal activity. That principle supported treating Avery’s fictitious identity as a permissible investigative device rather than inducement by itself. The deception supplied an opportunity; Guerrero still needed evidence of additional conduct pressuring him to offend.

Jacobson v. United States, 503 U.S. 540 (1992)

This decision supplied the countervailing limitation: agents may not originate a criminal design, implant a criminal disposition in an innocent person, and induce the offense for prosecution. It framed the central inquiry—whether the government merely exposed a willingness to offend or generated the criminal decision through improper inducement.

Sherman v. United States, 356 U.S. 369 (1958)

The court quoted the distinction between a trap for the “unwary innocent” and one for the “unwary criminal.” That formulation explains why government participation in an offense is not itself entrapment: the doctrine distinguishes permissible detection from government-generated criminal conduct.

Mathews v. United States, 485 U.S. 58 (1988)

The panel drew the defense’s two elements from this decision: government inducement and the defendant’s lack of predisposition. Keeping those elements distinct was essential because Guerrero argued that the district court had confused them. The appellate court resolved only the threshold inducement question.

The Eleventh Circuit’s inducement framework

United States v. Mayweather, 991 F.3d 1163 (11th Cir. 2021)

This was the controlling and most extensively discussed precedent. Both parties accepted its framework. It established that the defendant must produce more than a scintilla of inducement evidence, evaluated in the defendant’s favor. If that threshold is met, the government must prove predisposition to the jury beyond a reasonable doubt.

It also supplied the operative definition: inducement requires an opportunity plus additional government behavior aimed at pressuring, manipulating, or coercing the defendant. Persuasion or mild coercion can suffice; extreme threats are unnecessary.

The factual comparison was important. In that case, an informant responded to one defendant’s hesitation with repeated calls, promises to pay traffic fines and other debts, and assurances that the proposed crime would be quick and safe. Those actions sought to secure participation in a government-proposed crime. Avery, by contrast, did not propose a crime, offer comparable benefits, or repeatedly pursue Guerrero. The panel instead analogized Guerrero to two defendants in that precedent who lacked evidence of any “plus” beyond the criminal opportunity.

The decision also cautioned against treating eagerness to participate or failure to withdraw as answers to the inducement question: those matters ordinarily concern predisposition. Whether agents applied pressure to overcome hesitation, however, remains relevant to inducement.

United States v. Sistrunk, 622 F.3d 1328 (11th Cir. 2010)

This case supported two propositions: even an attractive opportunity is not enough, and inducement may be shown where agents must push a plan on someone who initially receives it unfavorably. It explained why reassurances that made the proposed encounter easier to undertake did not necessarily amount to pressure to undertake it.

United States v. Brown, 43 F.3d 618 (11th Cir. 1995)

The panel cited this case for the rule that government initiation of contact or mere suggestion of a crime does not establish inducement. Consequently, the analysis could not turn solely on who opened a conversation. The decisive issue was whether additional persuasive or coercive government conduct appeared in the record.

Out-of-circuit decisions concerning sexualized decoys

United States v. Zupnik, 989 F.3d 649 (8th Cir. 2021)

This decision identified a minor’s sexually precocious portrayal as a relevant inducement factor. The Eleventh Circuit acknowledged that proposition but found its factual premise absent: Avery did not initiate sexual discussion and represented herself as inexperienced. The panel therefore did not treat a sexualized portrayal as categorically irrelevant; it found Guerrero’s characterization unsupported here.

United States v. Young, 613 F.3d 735 (8th Cir. 2010)

The court explained that the Eighth Circuit had found such a portrayal insufficient where the defendant initiated contact, initiated most sexual discussions, and proposed the encounter. This qualified Guerrero’s reliance on the portrayal factor: it does not independently establish inducement without attention to the complete interaction.

United States v. Pérez-Rodríguez, 13 F.4th 1 (1st Cir. 2021)

The panel distinguished a materially different investigative approach. There, an agent conditioned adult sexual activity on the defendant’s participation in sexual activity with a minor and repeatedly suggested that the encounter would benefit the child. Avery offered no comparable conditional benefit or justification. The comparison illustrates the difference between acquiescing in a suspect’s proposal and using an additional incentive or manipulative rationale to secure participation.

B. Legal Reasoning

The threshold concerns government conduct, not merely criminal willingness

The court’s starting point was the government’s behavior. Guerrero did not have to prove the entire entrapment defense to obtain an instruction, but he did have to identify evidence of inducement. Without that preliminary showing, the prosecution had no obligation to submit predisposition to the jury as part of an entrapment defense.

This distinction matters because a defendant’s apparent willingness cannot substitute for examining what officers actually did. Conversely, a lack of evidence that a defendant previously sought minors does not itself establish government pressure.

Questions and dissatisfaction did not amount to pressure here

Guerrero’s strongest argument was contextual: repeated questions and negative reactions to ordinary activities could imply that only a sexual proposal would satisfy Avery. The court accepted the words and sequence of the exchanges but rejected that inference as evidence of inducement.

In its assessment, asking what Guerrero wanted to do invited him to state his intentions rather than pressured him to form criminal ones. Describing conversation or television as unappealing rejected those activities without proposing sex. Avery did not repeatedly demand a sexual encounter, condition another benefit on one, or push a criminal plan after a refusal.

The lapse in communication reinforced that conclusion. Avery did not provide an address for the initial meeting and did not respond to Guerrero’s later message. He renewed contact and expressly proposed sex. These facts were relevant to whether the government pursued or pressured him, rather than simply to whether he appeared willing to offend.

Acquiescence and practical reassurances did not supply the missing inducement

Avery’s conditional acceptance—“Sure, if you want to”—left the proposal with Guerrero. The court likewise treated the later statements about secrecy, parental attention, sexual experience, and pregnancy as responses or practical details concerning an encounter he had already proposed.

Timing therefore mattered. Statements following the sexual proposal did not show that the government had pressured him to make that proposal. The opinion should not, however, be generalized into a rule that later government conduct can never induce further criminal activity. The narrower conclusion was that these particular statements supplied no pressure or manipulation.

A favorable reading does not require unsupported inferences

The court accepted Guerrero’s presentation of the exchanges but found no support for describing Avery as a teenager interested only in sex who had enjoyed a prior encounter with an older man. Her one-word answer, “Once,” did not establish enjoyment, and her express descriptions emphasized inexperience.

The distinction is evidentiary: courts must draw reasonable inferences for the defendant at this stage, but they need not adopt characterizations that the underlying communications do not reasonably support.

Independent review resolved the alleged conflation of elements

Although the district court mentioned “predisposed” offenders, its ruling focused on the absence of government initiation or crime-manufacturing conduct. More importantly, the appellate panel independently reviewed the record and found insufficient inducement evidence. Having resolved that threshold issue, it did not reach the remaining requirements for reversible instructional error: correctness of the proposed instruction, lack of substantial coverage elsewhere, and serious impairment of the defense.

C. Potential Impact and Limits

• Online investigations: The opinion supports distinguishing ordinary undercover questioning and acquiescence from affirmative efforts to generate criminal participation.
• Defense development: A request for an entrapment instruction should identify concrete added pressure—such as persistent solicitation, conditional rewards, manipulation, or efforts to overcome reluctance—rather than rely solely on a fictitious persona or an attractive opportunity.
• Sequence and context: Who proposed the criminal activity, whether officers pursued an unresponsive suspect, and when reassurances occurred can materially affect the inducement analysis.
• No first-speaker rule: The opinion does not establish that a defendant who first mentions sex can never be induced. Nor does government initiation automatically establish inducement.
• Limited precedential force: As an unpublished decision applying established law, its principal value is persuasive and factual rather than the creation of a new binding standard.

The adult-only platform and initial adult age listing were part of the investigative setting, not independently dispositive. The court evaluated what occurred after the express disclosure that Avery was fourteen.

5. Complex Concepts Simplified

Entrapment

A defense involving government inducement of criminal conduct and a defendant’s lack of predisposition to engage in it. Government participation alone is insufficient.

Inducement

Government conduct beyond providing an opportunity: persuasion, pressure, manipulation, or mild coercion directed toward securing criminal participation.

Predisposition

The defendant’s readiness or willingness to commit the offense apart from improper government inducement. It is distinct from what officers did to encourage the conduct.

Burden of production

The defendant’s initial duty to present enough evidence to raise inducement. It is a screening threshold, not a requirement to prove the complete defense.

“More than a scintilla”

More than a trace of evidence. The burden is light, but speculation or the existence of a criminal opportunity does not satisfy it.

De novo review

The appellate court decides the legal sufficiency question independently rather than deferring to the trial court’s conclusion.

Entrapment instruction

Directions explaining how the jury should evaluate the defense. Once sufficient inducement evidence raises the defense, the government must prove predisposition beyond a reasonable doubt.

Per curiam

An opinion issued in the court’s name without identifying an individual judge as its author.

6. Conclusion

United States v. Obdy Guerrero reinforces the distinction between presenting a criminal opportunity and pressuring someone to take it. On this record, an undercover officer’s questions, expressions of boredom, and acceptance of the defendant’s sexual proposal did not provide more than a scintilla of government-inducement evidence.

The conviction was therefore affirmed without submitting entrapment to the jury. The opinion’s broader lesson is methodological: examine the government’s specific conduct, its timing, and any added pressure while keeping inducement separate from predisposition.