the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court orders in session and they could not be there it did not ask them to identify themselves if they had any prejudice experience were feeling regarding gay people one way or the other the question therefor in are predisposed to pedophilia was there any question posed to the judge that went to that issue why don't you as opposed to the questions were really just sort of a variation of the but there were questions that i asked about it jurors being uncomfortable talking about homosexuality about a juror's well lation to gay people in the family or the community in other words there were questions that required a jury juror to respond about his or her experience feelings and opinions regarding gay people not just his or her opinion about whether she could be fair  that's the difference between the ten questions that the defense proposed and the one that was asked and what was the was the particular distinction you're drawing now between that last question which was asked and other questions which would not have asked the jury to make their own assessment of their fairness but simply to report a bias was that distinction between the questions made to the district  the district court but this was not a question of the judge evaluating how your answer to a particular question had not been i guess the concern i just will is whether in the reality of what happened trial the district court might have thought that last question was sort of a catch all covered and then i just wonder whether is anything that would apprise the district court that in the view of defense counsel that that's not so the other ones are meaningfully distinct  well maybe yes and then one was about religious views of homosexuality and but was there anything that was the the version that you had in fact just today that would have been such as you know if you had any instances of prejudice towards gay people would you have any uncomfortable interactions with them was that question stripped of religion specifically identified after the ruling have an opinion that could be there and the defense feels that he or she should not trust i don't want to interrupt my call and want to ask further about this but i do want you to address the sufficiency question and yes you crime of communication and the district courts view summer and that this is a crime of desire and mr sanders did not stop when he was offered an opportunity to do so or to each one with a different meaning including any types to entice suggest just create you know an opportunity that might be enticing to someone present an opportunity i mean this i thought it was the one least favorable to me because it was his general there was enticement here but it was the defendant who was enticed he did not offer a single thing to the minor he did not ask the undercover to communicate with the minor and that is explicit on the record he said no messages in contrast to all of the other cases he didn't go looking for a minor he was not a parent guardian or person with  already only the minor the fictitious minor as presented here required absolutely no inducement or persuasion the asian said don't worry he's gay he's happy  puzzlement over the statute how to think about the country in this context with respect to the intent issue there may be something that the substantial step requirement in an attempt case as a bit with respect to the intent requirement in an attempt case isn't if the defendant is making clear their intention to have sexual relations with a minor child how is that not manifesting an intention to induce or intakes the child to have a sexual relations in the sense of overbearing will of the child since the child can't consent well st of all he's not talking to the child all i'm saying just sticking with maybe the evidence is clear that the defendant in communication with the intermediary manifested in an attempt to have sexual relations with the child tha he manifested an interest he manifested an interest but even when he went to meet the and under cover he said i want to talk with you about what you want to you if i thought that a jury would find you manifested an intent to have sexual relations with the child through his conversations with the intermediary wouldn't that satisfy the intent requirement under the statu persuade the minor those burbs all require the intent the relevant intent is to have sex with a minor it is to convince our minor to submit your its will how counsel would be helpful to o given improper opinion testimony about what d the defendant was thinking what was the theory of the defense here i realize there was no defense case you had cross examination closing argument grab the agent said you know don't worry come to my house i have x i have all the traditional enticements in and i see minor cases jim from the agent here he said you know don't worry if you want this you can get it i'll supply a little dinner i will have lots of fun so it was it was a case in which he did fend it was being enticed by the agent repeatedly there is no evidence that he had ever done this before and there was no evidence that he had simply plea made up his mind to attempt to induce a minor to submit to his well he was fascinated absolutely but in the communication about his interest start with the agent and as soon as the agent got it which is what he set out to get after all that was his job he kept making sure that the defendant took the next counsel what is the other some attention paid a trial to the the way in which the asian presented himself had what you call it that the headline having having young fun something like that are you interested in having young funder seems to be some uncertainty as to whether the defendant actually saw that and read that and that could be important because this is a a site or an application that is used by men an interested in consensual adult sect what is the state of the record on that whether the defendant had seen his profile or not that is the state of the record but how does this how does the subject  the phrase the presentation of a willing minor yes and it well i guess i'm just having trouble in this context understanding what that means given that the  exercise make some influence the will of the mind even though this statutory offense in puerto rico for example would make that irrelevant there is no hard and fast formula regarding or that dictates the depth or the breadth of questions that must be asked this is something that's false squarely within the district court province and here on appeal but  right to a fair and impartial jury when we look at the proceedings as a whole what we have is the court explains the process of wanted to hear he says that the questions are tailored so that mr betters can receive a fair and impartial jury that will base its verdict on the evidence and the instructions the court mentioned to charge it put the panel under oath explained that they could answer in public in front of everybody or if they had questions it could go to the court on the record with with the attorneys and give their questions bare it discussed the charge when it discussed the charge and how it was about possible child sexual abuse to jurors had no problem standing up and saying your honor we there's nothing embarrassing in any segment of our society in saying you're against child abuse and you feel strongly about it but saying that you know are fine homosexuality important and have strong feelings about that that put you into the crossfire socially in society doesn't are disputes about that in certain areas so i'm not sure your analogy holds up someone would seem to me to be a little bit more reluctant to announce to announce that they have any strong feeling bias against gays well your honor and in response to that the district court did allow an opportunity to speak one on one with the court and the parties and well your honor i believe that the court in through all of its questions did say that because while it didn't talk about a specific question for homosexual bias it also with reason with respect to that issue of homosexual bias the question as phrase as the juror to assess whether they had a bias that would preclude them from sitting on the jury and doing a fair job the defense counsel was saying that's that's not the right question because that just as make a self assessment of whether their bias is such that they can set were what counsel needs to know is whether they have a bias towards the group and that was not asked could you just address that point yes your honor and that question was not asked and it pending independent of religious views was there a question put to the district were just probe into the bias of jurors against the group independent of their assessment of whether the bias was such that they couldn't sit well your honor what gave that the jury another opportunity to represent him that's the same version that's about their assessment of whether they could set i'm just guessing a very simple question was the judge asked separately to ask the jury a question that would probe just for whether they had bias against the group and not asked them for an assessment of whether they could sit in light of that well what happened was after i went at the sidebar in and i have the transcript right here the defense attorney noted that his additional proposed the idea included many questions but when he and about homosexuality but when he was saying you know i mean wondering whether the court should consider some of those questions then he focused it to the religious aspect there so there wasn't sort of this let's ask about he said let's explore it but when he was given a specific question for the court to consider asking he tailored it to the topic of religion so whether thank you that's helpful and just substantively what's the government's position as to whether there's a justification for not asking about the bias against the group and instead only asking about whether there's a bias that would preclude the chair said well at when they were discussing it when the parties were discussing it and the government and the defense and the court the government did bring up the possibility that circling back could almost be a red flag could be trying to highlight something where there was an issue where there isn't the question that i'm just asking the government's use of that's just straight up out of think about what the are in this context two questions the defense counsel proposes but the judge to ask one is the question that just the other is could you just probe through whether they have bias towards the group without asking them whether it's a bias of a kind that would preclude them from setting is there a reason not to ask the nd question to ask year was adequate to see whether the district court inquired as to whether there's a potential avenue of bias and if they could render a fair and impartial verdict now here the district court did talk about well your honor the question as posed talked about homosexual bias and then there was a given an opportunity for the jury panel if there was anything any reluctance they had to then talk about it again and i'm not sure that's a factor but it's just said point me to any question he wants do we know if any one of the fifty jurors had any bias against homosexuals i don't think that question was ever asked i think wasn't asked do you have any bias that would keep you from rendering a fair verdict so as a result no one knows if and for all we know all fifty jurors could have been biased against homosexuals but they made a self assessment that they could still be fair even though that assessment is st be made by the court you can't guess the question did have two components did flag the issue of homosexual bias and then also talked about rendering a fair question him in other words the way the question was phrased could you have answered it truthfully if you had a bias towards homosexuals but believed on your own that it was not such a bias that you couldn't because let's be specific about what the two question was do you feel that you would not be able to render a fair and impartial verdict based on the evidence and my instructions if the defender were homosexual a n that was the question and i think don's question is how does that ask about was it as any bias well i think i think it's correct to saying that it flagged an issue to the jury that the defendant is gay and are they capable of rendering a fair and impartial verdict but it didn't specifically use the word bias but when you take the jury proceedings what you're proceedings as a whole and how the judge to let me just ask you this what if you was biased against people as a group could you have truthfully answered no that you would not have a problem sitting on the jury to that question i could you could write the question did not ok but then that then the question becomes your honor what the follow up questions that were then presented whether they're just their ports denial of that becomes an abuse of discretion and dispensing the religion and when the court did it did not say that it would not the court said that it was reluctant to given its perceptions in the way that the panel had been very open and clear and it was able to perceive them and see their answers and religion is not a litmus test for harboring homosexuals iris and if you realize what what i think what you're saying here is a in a case that involves clearly homosexual defend engaging in talking about express fully talking about homosexual conduct you're saying it's ok never to ask any of the jurors whether they have any bias against homosexuals i think that's what you're saying we should rule no you're not i'm not saying that it's ok never to ask and think that what happened here is an abuse of just is not an abuse of discretion because you have to look at the proceedings as a whole in there is no harder especially where in the proceedings as a whole is there any attempt to determine whether any of the jurors have a bias against homosexuals well the court clearly flagged the issue and explained in the sidebar that it was sensitive to it because when they talked about cultural and religious and when the defense attorney talked about this the court said i was a sense that just to that issue that's why i asked to this question mentioning homosex sexuality in that the defendant can be getting now at that point that clearly put the jury on on a notice that this was going to be an issue and nobody thought the need to get up and say pronouncing it correctly and what happened in that case it was a case that involved to a rein in americans and the district court gave a general question on bias where it said that you're not supposed to use ethnicity race religion in determining whether you can say whether you're going to be able to have a fair and impartial verdict and one woman got up and said i do not trust muslims and she was then dismissed then the defense asked for more questions and even individualized questions and there the district court used its perception saying that people when they had problems they said it and people said that there was not going to be a problem here and the th circuit there said that it was a proper exercise of its discretion and that it was a reasonable choice given what happened in this case we submit that a similar circumstance happens here that the issue of homosexuality it's not that it wasn't uncovered the court did bring it to the jury attention and then at the end talked about if there's anything else that would prohibit them from rendering this fair and impartial juror verdict nobody said anything given the totality of this record we believe that the court acted within its discretion  a long list of biases in the nasty three and would any of you because of those be unable to render a fair and impartial verdict and no juror raises hand and then they're off to the races that seems to be the logic of what you're saying you possible bias that would that would not be the best idea and saying that that's what happened in the th circuit and by way of example and by way of showing that people can get up in a court can use its perception of saying that but that's not what happened in this case the avenue of of homosexual bias was with the court was sensitive to it and brought it up and whether clearly the court can ask many many questions but the question is whether here it abused its discretion when the on this topic i understand what you're saying that there was because of the follow up the judge wasn't apprised of this distinction and that it was only a crisis in the context of a request for a question regarding religion and their special reasons why it might make sense not to ask about the atlantic that's your point therefore no abuse of discretion if i read the record differently and i thought it was put to the district court to decide o separate question of whether the question that was asked which asked for a jury self assessment was not enough is it an abuse of discretion for the judge also them to refuse to ask the question separately about whether there was bias against the group because yes or no and then why you think the answer is yes or no no let's put aside your reading of the record in which you say to follow up on the concerned religion which i fully understand the import of that point but if i read the record differently and i thought on this record the judge was put to the choice of allowing either only the question about duracell's us or also a separate question probing just for whether they homosexuality just do want to have the government just address the entrapment and sufficiency issues we could take the time do a little bit on the go ahead yes your honor with the words permission the fact presented sufficient evidence that that is attempted to persuade induce and entice the minor to engage in sexual activity as this court has explained section two thousand two hundred and forty two criminalize as the intentional specifically if you could address the issues that i was proven with your opponent which is with respect to intent i'm a little puzzled about how to understand the statute since it  just a attempt to have sexual contact with a monitor and yeah it seems hard to see how you could intend to have sexual contact with a minor without it without having the intention that you're going to induce the minor against their will to have sex given that they're a minor so that's one but then secondly even if the attempt standard is satisfied here what is your answer on the substantial step point and in what respect was a substantial step courts that this court has relied upon it's the subject of intent what is it that the defendant wanted to do or illustrate that he was trying to overcome or to get the minor to agree with it and here the government presented overwhelming evidence of that the questions he acts and the things that he wanted to do with this minor shows that that was it was always his intent to get the minor to agree to do what he wanted to do he did th story of background question how did you get such a young boyfriend how if you've been together where do you hide him what do his parents think how were you able to convince him how was the st time in a long and you've been together and in no uncertain words he stated that he wanted to be his boyfriend so this shows that all along what the minor thought about mr bettis was very important to mr pettis and mr that even asked the agent if he had told the minor about him which shows that the miners mental state he wanted to transform and he wanted to overcome it and to receive his assent now going back to circling back to the substantial step your honor i find this case is actually quite similar to the burke case because in the b case you have a father who is on the internet that wants to get some extra money you have a defendant who comes up to him and says will you i want to have sexual is conduct with your daughters the police intervenes and then they meet to discuss about it and this court not only found that the intent was there by having conversations about what you want to do and with us child but going and meeting the father was sufficient a substantial step here we have on that same day they were planning to do two things he was going to meet the boyfriend to talk about it so that when he finally met miner that the miner would be comfortable he wanted the going to be comfortable he wanted the minder to do scary things yet wanted it to be comfortable and then he went to speak with the adult in the hopes of getting sort of a primer about this minor and then meeting him later on that meeting just as burke went and spoke with undercover pretending to be a father that he would have understood that it was about having fun with with young people there is some uncertainty about who said what he merely referenced a j what exactly does that mean i don't understand why that modest burden of production in order to get credit instruction was was not met here only talking about scuse me he talks about my job was to reel him in he uses that phrase i once i sensed that there was an interest and you know people my job was not real clear and i think uses  the opportunity the government presenting a sting operation only provides an opportunity and when we look at what was actually said as opposed to what how the might how the undercover agent was explaining it to the jury you'll see that that's exactly what happened he merely opened the door and it was the defendant that walked through it if you look at exhibit two a which is the grinder chats which shows how all of this sort of unraveled you have the defendant who says hi the agency says what's up do you like younger guys and friends and then he says a little later the younger that the better i don't discriminate i started at age eight the next comment the next thing is my boyfriend is eleven and then he says yes so it's not like he was saying tell me what age you want is that eighteen or is it eleven here there was just this opportunity this window of young fun now it can be interpreted as maybe a whether the instruction is just a thought what view is the judge supposed to take the evidence just in deciding whether that modest burden of production if there is some incredible struction yes your honor however we cannot divorce the rest of the conversation because the defense here can be played talks about the st three steps but once it's clear that it's an eleven year old minor there wasn't any insistence and there was i want i want to play with him he said that he wanted to have anal sex and oral sex before adult sex even came into the picture so yes that agent explains that he need to put a number he needed to have the miners number there but once that number was there there wasn't any pressure it was just the presentation of an opportunity in this court has held that sting operations that nearly provide you with an opportunity with no excessive intimidation threats threats your insistence none of that is here it was just here's this opportunity the government opened the door and he will unleash went through it and then by his own court explained what he wanted to do and it was illicit sex with a minor and then it was the defendant himself who bundles adult sex and then a civil we can have a threesome but it was clear beforehand if you look at two a which is the grander text that it was just  minor st that was an eleven year old minor and yes he wanted to play yes the younger the better without any sort of prodding or intimidation from the part of the government thank you  please yes well again this is effects prosecution here kind of ignores the fact not this was a gay dating site and that mr that is rodriguez went looking for a gay date and what he found was somebody with the younger boy and i submit that the exhibits are at least consistent with mr pitt is consistently having an interest in the older man and the older man saying i'll bring along my boyfriend we can have a lot of fun and if mr perez interest is in cultivating misguided who seems pretty wild and pretty exciting he's free to chat about all kinds of things on the internet but the evidence does not show that he committed to sex with a minor now this was a classic case of bundling the licit and illicit sex and i submit that the chats read in their entirety certainly support a view that it was the agent who isn't tyson the defendant every step of the way and certainly met the lower threshold for an entrapment instruction i think there is a very important distinction between this case and burke in burke it was the defendant who reached out to a dad looking for some money looking for chores to do i think economically desperate man and the defendant says hey i want to i want to pay you to use your daughter her and the defendant didn't even know if there are other i mean they will parent didn't even know what he meant defendant to have an intent to entice the minor you cannot conclude be under reasonable doubt that he had that at the point he went to meet the agent and he doesn't say i want to know what to do so that the is comfortable he says when he's going to meet the agent i want to know what you want to do he's still not committed to actually meeting the minor you have to remember that this is an internet chat this is a site where people get to decide and i had just one last question on the how to think about entrapment in this context and what needs to be show the offense is going to preview attempt a variant and when the elements of the attempt variant or both the intent of the defendant and the fact that the defendant would then take a substantial stuff that that would suggest to me that the predisposition that would defeat the ability to get the entrapment struction has to be a predisposition not only to intend to have sex with a minor but a predisposition to that is the point your honor he doesn't need you know there's substantial stefania intent kind of confirm each other and it is i submit that is intent was not clear and that this step that he took to meet the agent was in order to make up his conversations that occurred which themselves are somewhat ambiguous on that score so even if they are not to support the conviction i guess there is the question of whether or not there are just to defeat the right that an instruction  asking all these questions about what was it like and how did you do it in august because he doesn't know there is a predisposition somebody who is already involved in these activities would not be asking those disconnect from the hearing at this time