“The Low-Threshold Rule for Entrapment Instructions” — A Comprehensive Commentary on United States v. Spradley, 93 F.4th ___ (10th Cir. 2025)

I. Introduction

United States v. Spradley addresses a recurring flash-point in modern cyber-crime stings: when must a trial judge allow the jury to consider the affirmative defence of entrapment? Steven E. Spradley, a 56-year-old Missouri resident, answered an on-line advertisement posted by a Kansas deputy sheriff posing as a 17-year-old girl (“Ashlee”). After messages discussing a $500 sexual weekend, Spradley drove across the state line to meet her and was arrested and charged under 18 U.S.C. § 2423(b) (travel with intent to engage in illicit sexual conduct with a minor).

At trial he requested an entrapment instruction; the district court refused, ruling that no reasonable juror could find (1) inducement and (2) lack of predisposition. Convicted, Spradley appealed. The Tenth Circuit—over a vigorous dissent—vacated the conviction, holding that “even a scintilla of evidence on both prongs triggers the right to an instruction.” In doing so, the court:

• clarified the evidentiary threshold (“some evidence”) for entrapment instructions after Mathews v. United States,
• found that lonely-heart cyber-stings can contain jury triable inducement, and
• re-emphasised the limits of appellate courts affirming on grounds sua sponte.

II. Summary of the Judgment

Judge Bacharach (joined by Judge Murphy) reversed and remanded for a new trial; Judge Eid dissented.

Majority Holdings

1. Right to Instruction. Viewing the evidence in the light most favourable to Spradley, “some evidence” existed of both inducement and lack of predisposition; the jury therefore should decide.
2. Inducement Evidence. A reasonable juror could see the undercover officer as exploiting Spradley’s loneliness, promising companionship, down-playing risk, and only achieving the interstate element after repeated cajoling and a faux female phone-call.
3. Predisposition Evidence. Jurors could credit Spradley’s testimony that (a) he had never paid for sex, (b) the $500 references were tongue-in-cheek, and (c) he thought the girl was an adult impersonator.
4. Harmless-error Rejected. Omission of an element-defeating instruction is structural unless the Government proves harmlessness beyond reasonable doubt—something it did not do.
5. Retrial Permitted. Evidence was nonetheless sufficient to support a guilty verdict; thus double-jeopardy does not bar retrial.

Dissent (Judge Eid)

The dissent argued that inducement ceases when the Government presents the defendant with an overt “out”—here, Ashlee’s explicit disclosure that she was 17 and inquiry “is that a problem?” Spradley’s refusal to stop showed predisposition; therefore no instruction was required. The dissent warned the majority opinion “may portend the end of undercover operations targeting child predators in this Circuit.”

III. Analysis

A. Precedents Cited and Their Influence

• Mathews v. United States, 485 U.S. 58 (1988) – bedrock rule: defendant is entitled to an entrapment instruction “whenever there is any evidence…”. Spradley elaborates what “any” means.
• United States v. Fadel (10th Cir. 1988) – defines two-prong test (predisposition + inducement).
• United States v. Ortiz, 804 F.2d 1161 – foundational Tenth-Circuit language on “substantial risk” inducement.
• United States v. Mayfield, 771 F.3d 417 (7th Cir. 2014) (en banc) – influential “some evidence” standard; cited for jury role.
• United States v. Munro, 394 F.3d 865, and United States v. Robinson, 993 F.3d 839 – prior Tenth-Circuit cases refusing instructions where defendant ignored “chance to back out.” The majority distinguishes them; the dissent relies upon them.
• United States v. Sineneng-Smith, 590 U.S. 371 (2020) – party-presentation doctrine; used by majority to reject dissent’s sua sponte basis for affirmance.
• Harmless error authorities: Neder v. United States, 527 U.S. 1; Tenth-Circuit precedents Kahn, Luke-Sanchez.

B. Court’s Legal Reasoning

1. Standard of Review. De novo; evidence viewed favourably to the defendant.
2. Predisposition. The panel stressed that prior criminal history is only one factor; spontaneous joking references to money, absence of cash at arrest, and Spradley’s testimony create a triable issue.
3. Inducement.
   • Government exploited “loneliness” through rapport-building.
   • Down-played criminality: girl “almost 18”, lawful age of consent for non-commercial sex in Kansas, suggestion of sexual experience.
   • Critical plus factor: Government needed Spradley to cross state lines; accordingly, requested the travel and suppressed phone contact until compliance seemed likely.
4. Party-Presentation. Court declined to affirm on dissent’s novel “opportunity to back out” theory because the Government never pressed that as a stand-alone ground on appeal.
5. Harmless-Error. Because entrapment negates mens rea, omitting the instruction removes an element; Government failed both Chapman and Neder formulations.

C. Potential Impact

• Threshold for Instruction. Reinforces an exceedingly low evidentiary bar—practical effect is to funnel most entrapment disputes to the jury.
• Law-Enforcement Strategy. Agencies must script on-line stings mindful that persistent emotional grooming, or refusals to permit voice contact, can generate inducement evidence.
• “Opportunity to Back Out.” Majority’s rejection of that single-factor test undercuts Munro/Robinson and sets up tension inside the Circuit; future panels may need to reconcile or distinguish.
• Party-Presentation Limits. Clarifies that courts of appeals should not invent alternate grounds for affirmance absent briefing—a cautionary note post-Sineneng-Smith.
• Harmless-Error Doctrine. Confirms near-automatic reversal for omitted entrapment instructions when evidence contests predisposition or inducement.
• Inter-Circuit Split on “Objective” vs “Subjective” Inducement. Opinion highlights divergence (D.C. vs. 9th Circuits) but declines to decide; may invite Supreme Court review.

IV. Complex Concepts Simplified

• Entrapment. An affirmative defence claiming the Government caused the crime in someone not already willing to commit it.
• Predisposition. Defendant’s readiness before first Government contact. Evidence: prior acts, eagerness, rapid acceptance, etc.
• Inducement. Government conduct that would tempt a typical law-abiding person. Includes excessive persuasion, exploitation of weakness, fabricated opportunities.
• “Some Evidence” Standard. Not “preponderance”; any non-frivolous evidence requires the instruction and shifts burden to Government.
• Party-Presentation Doctrine. Appellate courts decide issues raised by the parties; they avoid crafting new theories on their own initiative.
• Harmless Error (Structural vs. Neder). Omission of a defence that, if believed, negates an element is rarely harmless; Government must prove the jury would necessarily convict anyway.

V. Conclusion

United States v. Spradley cements a defendant-friendly procedural rule in the Tenth Circuit: whenever evidence might allow a reasonable juror to see both lack of predisposition and Government inducement, the jury must hear an entrapment instruction. The decision signals careful scrutiny of emotionally-driven cyber-stings and warns prosecutors that a mere opportunity to “back out” is not a cure-all. At the same time, the panel reinforces good appellate practice—courts should not affirm on un-briefed theories—ensuring adversarial integrity.

Whether the Supreme Court or an en banc Tenth Circuit will revisit the objective/subjective inducement split, or the robustness of the “out” doctrine, remains to be seen. For now, trial judges in the West must err on the side of letting juries decide entrapment, and law-enforcement must script sting operations with renewed caution.