admission that he doesn't say if he did that when he was an adult or if he was you know sixteen years old or fourteen years old and we also don't know how the jury would have to resolve that particular question because the jury never really got to consider the predisposition part of the entrapment offense because it never considered entrapment that was the only thing it was before the district court was that legal ruling on inducement and that doesn't have to do with a defendant predisposition just has to do with the conduct that the government engaged in well as far as lack of predisposition goes if he was an adult and he had a relation with an under age minor before consumer didn't the agent given a couple give them a couple of opportunities to back out that's correct the agent did do that but there isn't a case in this circuit that says the fact that you've given  somebody an option opportunity to back out in and of itself means that you haven't established inducement it's important to realize it or to recognize that inducement is simply a burden of production on the defendant it's not really a burden  persuasion and the question is before the district court is based on this record could a jury have reasonable doubt about entrapment and our position is that the district court made an er but you've got to review to know though because if it didn't realize that this evidence was sufficient to get to a jury now in terms of convincing a jury about that you know that's sort of anybody's guess because we don't know one point in the four day jury trial the defense counsel used the word entrapment but that wasn't directed to the agent's conduct in this case it was directed to stings in general and what what's the scope of cost to the limit of conduct that the government can engage in and he said well you don't want to do that because that might be i think the phrase was sort of like entrapment but that's not directed to what she was doing with respect it depends on how you interpret the judge's order when when the judge granted the government's motion in limine if she didn't enter a written order her language is there's no entrapment here and you will not be able to have the entrapment defense that's the court's ruling and it depends on how you interpret that ruling my interpretation of that ruling is she saying you don't you don't get to talk about this at all and i think that's what the defense coun create a sufficient record to review the structural air argument by its normal to no votes standard and play here if you can if you didn't do those slangs i guess they ask you about i did not read your what the you know you could do whatever you want it to i understand your point of view i disagree with that i think that it was clear from the context of the motions practice and the argument in court before the judge ruled on the motion in limine e that that is what she meant and it is a defense counsel repeatedly said things like you're tying my hands behind my back you're you're giving a pretrial room ruling on entrapment now i'm going to be scared to get into that and the judge then gives a ruling saying there is no entrapment and you don't get the instruction and so i think that was the defense counsel's interpretation of the ruling is look now i can even use the word entrapment and he did that throughout the entire about the agent talking about the little girl been disappointed if if if you didn't if the defendant didn't come on and come  twice i think she said and then sounded like she might have been crying you you mentioned allah right we did it and wheat like i said that defense counsel nibbled around the edges of this but he was he understood that he was prevented from talking about entrapment and that was something that the jury was expecting to hear because during jury selection one of the jurors sat up oh i've seen t v that sounds like entrapment to me and then the judge says well you raise a legal issue and i'm going to be dealing with that so the jury at that point this thing oh the judge is going to tell us about entrapment and then they never get told about entrapment and the parties never litigate entrapment and then they go to that but i do know that it was that the question was asked before the venire panel and so the entire panel heard the question and you know you draw the inference that they were the whole jury was expecting that i going to look into that case law says that the crux the bare focus of entrapment is predisposition it seems to me that there simply is  and our position is we didn't get litigated so we don't know how could i am talking about the evidence cherry foundation which you have to somehow in order to get the instruction right but we don't have to address the government's conduct created a substantial risk that the finance would be committed and listen to this by a person than one related to commit it it seems clear to me that  being inducement only and then once you establish inducement it becomes a jury issue on predisposition i don't know how we could have judges making that factual finding without creating  sixth amendment problem because that seems to me to be a factual finding that have to be determined by the jury that are let me switch a little from from that in say my understanding is that the element of inducement includes an element of persuasion or coercion of some kind that's where can you point to anything on these facts given the fact that he called back again and again and again when she hadn't even returned his calls for a while where is the persuasion where's the coalition if three things that we would hang our hat on here if she she offered him friendship and then she kind of  took advantage of his emotions by crying and talking about her daughter's disappointment if you want to show up so those are the things that we would say are the persuasion in our best case for this i think is the united states against coleman decision from the ninth circuit now there are differences between that situation and this issue ation because that was something that lasted over many weeks i think months and this is something that took place over two days but that's that's the case that we think is our best one to support our our position  advertisements we think created interaction evidence of those advertisers created an unfair trial those were advertisements that addresses relationships with adults not with with children and they were pretty said if you if you say well jesse you root against me on those but it least redact anything that has to do with almost his association with homosexuality and specifically exclude those that have that that the sequence of events was we objected to everything the judge splits the baby and then we still say judge your splitting of the baby is inadequate and we want those things excluded and if you don't exclude them we want to miss trial so i think this is a very take and you'll answer to my question to be no you did not click the homosexuality and trend best references i've no i think the answer is yes because weeks we explained that the reason we want these twenty one ads and eight ads out is because of  those those specifics sexual peccadilloes and said that because of those yes ok yes that's our position are there any other questions thank you for some apples and he thought homosexuality and transvestites were were part of this idea that there were a few that were male and there were male seeking male relationships but these ads that is first of all these ads were highly probative of his criminal intent specifically with respect to those and not with respect to all of the ones that were made he did not he asked for the exclusion of all seven hundred of the ads that he had responded to what in other words the jury member of the been are was not selected and made reference to entrapment and so there was an indication that entrapment would be a defense in this case set of instructions and you are to follow those instructions why do you believe it or not and then as to the second point as to whether this would affect the veneer or the other members of the juror jury  think there are a few jurors who are on it he hasn't raised a jury or jury taint issue that wasn't the issue before this court and so his he's raised this point as some kind of i think evidence that he was trial it's not you know it wasn't me on the on the conversation on the record conversations what was the his theory of defense at trial here is he had a few it all went to i didn't have the intent to entice this child and he is it there he was i just wanted to go over there to be a father figure i wanted to go over and keep he did do a lot of i was maybe just interested in april where they it's a low burden that's that's not but that doesn't say what he had to show it what he had to show was some evidence sufficient in which a reasonable jury could find that the government's conduct created a significant risk that an otherwise innocent person would commit the crime and that is what and the evidence didn't show that and so he was not entitled to a jury instruction you know you look at it his alleged inducement is the mother saying that my child is so disappointed if you don't come over to have sex with her which is just another way of saying that this child is super excited for you to come over to have sex with her that is not something that creates a significant risk or any risk at all that someone who is not willing or ready willing to have sex with a child and has a child would commit child enticement i opposite it would propose somebody that is only something you say to motivate someone who's interested in having sex with a child and so that's right and he can't point to it he can't point to anything that would show that would create that significant risk  and are there any other questions on that issue i have a question a little different issue it still has to do with the entrapment defense  but you you cite sister draft age thirteen thirty three and brown it page six twenty three for the proposition that any inducement to count at all has you got to help this poor fellow because the drug lords are about to kill him you know cracked i looked at those pages of those two cases and i did not see that they supported the position th head in order to be countered to deal with non criminal mode in the sense of it but i didn't see any case a lot of support that well these are different formulations of these are different ways of saying the kind of conduct that would create a significant risk that an innocent person would commit the crime and so when you are applying pressure or appealing to or manipulating a non criminal motive that is the kind of conduct that would create a significant risk that an see cases where you could appeal to someone's criminal motive but apply a lot of pressure you know harass them and if they say no and they say and you say come on come on crime and it depends on the circumstances that could but ultimately it's the question of taking everything together is this something that would create that risk that it would get someone who's not ready to commit the crime to commit the crime but and  we don't when the crime is child enticement saying that the child's excited to have sex with you is not not the kind of conduct that would create that risk if i can turn to something else for now what's your answer to the defendants pointing out that the prosecutor's closing argument contained shall we say merely remarks that would have been better left out or what would have been better left out the some of the things that the actually describing what the child pornography depicted so that's not improper hunting the closing argument that oh is this going to be a really experience really wonderful experience for a twelve year old's more like hunter forever mr ryan's objection was that you need expert testimony to to support that argument and that's just common sense that a child who is clearances a twelve year old girl who experiences sexual abuse is going that's a harmful experience and one that's going to carry with her for a long time and then the part that he doesn't care bunny scars he'll leave on the child and that goes directly to his theory of defense which was want to be a father figure fall if you care about this child and that's not what he was doing and he didn't care about the harm that he left on the child and so these are all just part of their relevant to the of they're based on the evidence and they're they're not prejudicial to him and he can't show the harm that these comments which show that the offense would be committed by a person of the land one rated to a committee that other than one rated come to commit it seems clear to me to be predisposition  and that is brought into the definition of inducement because we're asking what someone who's not disposed to do this how they would respond to the government's conduct and that is that is predisposition to evidence but i've never seen a case that says what they are doing so is that they are in fact considering predisposition to have a balance in assessing whether or not the eviden consistently affirmed the just the court's finding that there is insufficient evidence to warrant the entrapment instruction in those cases are consistently pointing out that the defendant as has shown no reluctance has as is completely willing and eager to commit this crime and that is the part that falls into the predisposition that you're talking about that because that is evidence of what an innocent person and non someone who's not predisposed to commit the crime and so i think that's where the overlap happens and i think  testifying and the exhibit comes in with the twenty one correct last post in the eight additional ones and that's where counsel says i object i move for a mistrial now all of this are on raid sexual proclivities are now supposedly for the jury to judge even though there's not a single issue of the elements dealing with sexual proclivities except for the interest of the child he doesn't say homosexuality doesn't say  you know some of the specific sexual proclivities but he just refers to them in general so that's where we think the objection was sufficient we've asked about the non criminal motive that's judge black's opinion in the united states against brown and there she states the standard and then she says as the first circuit has recently observed and do some it consists of opportunity put something like excessive pressure manipulation of a non criminal motive one way of reading that is this is an example another way of reading that would be this is the only way you do it i think the better way of reading it is like this is an example of how the defendant can meet his burden under the under the it's six twenty four i think ok yeah and it cites oh i'm looking at the wrong thing sorry it's page six twenty three brown and exciting united states against enron which is the first circuit decision where you were you clerking for judge black when that opinion was a junior in high school like it's a part burden of production the evidence is viewed in life most favorable to us and the government seems to have a view that it's a little bit more difficult than it really is but that's something for you to explore in the opinion that you write and  judge anderson you've raised a really interesting idea about the predisposition being kind of tucked into the inducement analysis like i said i understand what you're saying i just i don't agree with it and i can't really explain it a wonderful answer why that is i just i just see it's like it's a burden of production once you meet the burden of production it becomes a jury issue and i think if it didn't become a jury issue even even if it is a jury and in this particular case it seems to me the well we didn't really get to present our case on predisposition and so for you to rule on harmlessness as to this would put us in an awkward place where we didn't get to tell our story and now it's harmless because we were trying to follow what the district judge's ruling was