United States Court of Appeals

For the First Circuit

No. 19-1538

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL PÉREZ-RODRÍGUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge] 

Before

Kayatta, Lipez, and Barron, Circuit Judges.

Linda A. Backiel for appellant.

Julia Meconiates, Assistant United States Attorney, with whom 

W. Stephen Muldrow, United States Attorney, and Mariana E. BauzáAlmonte, Assistant United States Attorney, were on brief, for 

appellee.

September 2, 2021
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LIPEZ, Circuit Judge. Rafael Pérez-Rodríguez was 

convicted by a jury of attempted enticement of a minor for unlawful 

sexual activity in violation of 18 U.S.C. § 2422(b). He was 

apprehended through a sting operation in which a government agent 

created a profile on an adults-only dating application posing as

a gay adult man, and, after being contacted by Pérez, then offered

to arrange a sexual encounter with his minor "boyfriend." Pérez

appeals on several grounds, including insufficiency of the 

evidence and the denial of a jury instruction on the entrapment 

defense. While we find Pérez's challenge to the sufficiency of 

the evidence meritless, we conclude that the district court 

committed plain error in failing to give the entrapment 

instruction. We therefore vacate the conviction and remand for a 

new trial.

I. 

In 2015, Ryan Seig, a special agent with the child 

exploitation unit of Homeland Security Investigations ("HSI"),

conducted a sting operation using the geosocial networking

application Grindr. Agent Seig testified that the purpose of the 

application is "to talk and usually meet with someone else who 

shares your interests." On cross-examination, he added "it's 

social networking among homosexuals." Grindr describes itself as 

"the largest social networking app for gay, bi, trans, and queer 

people." About, Grindr, https://www.grindr.com/about/ (last 
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visited August 25, 2021). Grindr allows users to create profiles 

and to exchange messages with other users with profiles in their 

geographic area. Per Agent Seig's testimony, "[a] profile is a 

small blurb about what you are looking for, possibly what you look 

like, and sort of a general description of who you are and what 

you want." Grindr requires users to be eighteen years of age or 

older and does not allow individuals to use the platform to seek 

sexual encounters with minors.

Agent Seig created a Grindr profile under the name "Dave 

W." He wrote in his profile, "Looking for young fun or to share 

my young fun." He testified that he chose this text as a "veiled" 

reference to a sexual encounter with a minor, explaining that

"someone who was familiar with the way pedophiles communicate on 

the internet could read this and know what it meant." The profile 

also described "Dave W." as "Muscular, White, Single." 

On December 30, 2015, the Dave undercover profile 

received a message from a profile with the name "Mirando," a 

profile created by Pérez. Dave and "Mirando" exchanged messages 

on Grindr, and then moved to text messaging. The precise language 

of the messages is crucial to this case.1 Thus, we reproduce key 

parts of the exchange in full. The conversation began as follows:

1 The messages were primarily in Spanish. We draw from the 

certified English translations that were admitted into evidence.
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Pérez: Hello what are you doing?

Dave: Hey what's up

Pérez: Let's see you

Dave: Cool, do you like really young guys?

Pérez: Yes

 Age?

 I started at 8

Dave: Me? 35, but my boyfriend is young

Pérez: Hahhaha Okk

 How old is he?

 What does your boyfriend like? 

Dave: He likes everything :)

He is very young, what age do you like?

Pérez: The younger the better

 I don't discriminate

 I started at 8 hehehhe

 So you tell me

 What does he like to do?

 We are close, we can come up with some fun

 From there up I do it all

Dave: Do you understand English? I speak only a little 

Spanish

My boyfriend is 11 years old. Do you want to play 

with him?

Pérez: Mmmm yessss

 Where is he?

 I speak little only a little English?

 Share pics??

 You tell me when and where???

 Do you prefer to call?

 Yes, I want to play

Dave: We live in[] San Juan.

 We're free next week. 
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Pérez: Ok

 Have whatsapp?

 Send me pics?

 Can you now?

Dave: Yes I'm busy with a party

Pérez: Ok, but you are close

 Can you get away?

 Can you*

Dave: Last night, no haha :)

Do you want anal with him or oral?

Pérez: Everything

 I want the 3 of us to play

 You for a while and me for a while. You like?

Dave: Me too

 Yes

Pérez: Send me something to see you playing with him

 I like taboo

Dave: Me too :)

Pérez: Have a pic?

 Are you with him at the party

Dave: I don't want to send a pic because I won't know 

who you are until we meet

Yes, he is here

You can take pics if this happens. Just no faces

I don't have whatsapp

But I can text

Pérez: Text is better

Pérez then sent two photos of himself to "Dave," and Dave provided

Pérez with a telephone number.

The next day, December 31, Pérez sent Dave a text message 

to continue the conversation. He again expressed sexual interest 

in "Dave's" minor "boyfriend." Dave messaged, "we're going to 
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have a lot of fun, friend. :) . . . Him you and I[.]" Pérez

requested pictures of "Dave." Pérez asked Dave questions about 

his relationship with the minor. ("How did you get him?" and "How 

long have you had him?"). 

On January 1, Pérez messaged Dave and said, "Happy New 

Year." He again said, "I want your boyfriend." Pérez and Dave

discussed their availability for a meeting that week. They 

exchanged messages about what Pérez wants to do during the sexual 

encounter. Pérez asked several questions about how Dave met the 

minor, what the minor's parents think, and whether "Dave's" family 

knows about the minor. "Dave's" answers included "He's my friend" 

and "I am a 'good influence.'" 

On January 2, Dave initiated the conversation. He 

writes, "Just saying hi. Very busy with family! Happy new 

year ;)[.]" The following day, Dave and Pérez discussed meeting.

Pérez: Let's see each other tomorrow to get to know you

Dave: Ok, what time can you do it?

Pérez: Write me when you wake up

 I get up early

 Where should we meet?

Dave: Are we using your house or mine for the threesome?

Pérez: Yes. I live alone. But if it's at home, then it 

 should be in the afternoon

 But I want to see you before to get to know you 

 and see what you want to do so that I'm 

 comfortable

Dave: I understand. Me too.
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Pérez: Ok

Dave: Where is a good place for us all to meet?

Pérez: Where should we meet

Dave: We can meet and then go to your house for sex with 

all of us?

I can meet anywhere. It doesn't matter. We'll 

talk in the morning when you know more concerning 

your schedule

Pérez: Yes

 Depends on what we talk about and we'll go

 I am free. Write to me tomorrow.

Pérez then requested a picture of Dave again. He asked Dave

several more questions about his relationship with the minor. Dave

said that the minor is "excited, happy" about the planned sexual 

encounter. They agreed to meet at Guaynabo Plaza. Pérez stated

"first I see you" and asked "Can you come alone?" Dave replied,

"I can leave him at my place and you can follow me there, ok?" 

Pérez responded, "Yes." 

The following morning, Monday, January 4, Dave started 

the conversation again, initiating this exchange:

Dave: Can you meet at 3? 

Pérez: Ok

Dave: Cool

Pérez: Ok

Dave: I spoke with him and he's excited :)

He's worrie[d] about what clothes to bring

LOL

What parking do you want to meet in?

Are you busy?
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Pérez: Hahahhahha

Go to Guaynabo Plaza and I'll tell you where

we'll meet

Remember that I want to talk to you first. I 

need to feel safe.

Dave: Yes, me too, it's a good idea.

I am also scared.

Pérez: That's why I want to see you by yourself.

 I would like to know you first.

Dave: Yes, he will be at my house

Pérez: Ok

Dave: Waiting with the XBOX and beers LOL

Pérez: What are you like, physically?

Mmmmm

I like beer

He doesn't get in trouble for drinking?

Dave: Like in my profile.

5'9" or 5'10". Brown hair.

Pérez: Gym body?

Dave: Yes, I lift weights 4-5 days a week

I am not fat

Pérez: And what's he like?

Dave: Skinny, like a young guy. He is Boricua, with

short hair.

Pérez: Ok

Dave: He likes soccer jerseys?

He's very intelligent and friendly

Pérez: Let's see one another now to talk and be horny 

 about what we're going to do.
- 9 -

The two men eventually agreed to meet at the Martinez Nadal train 

station at 4 p.m. 

At the appointed time, Agent Seig drove to the station 

and parked his vehicle in the parking lot. Seig had informed other 

members of his unit about the meeting, and several additional HSI 

agents were also waiting in the parking lot. Pérez drove into the 

parking lot, pulled up alongside Agent Seig's vehicle, and got out 

of his car. HSI agents immediately arrested him.

On January 27, 2016, a grand jury returned an indictment 

charging Pérez with one count of attempted enticement of a minor 

in violation of 18 U.S.C. § 2422(b). Prior to commencement of the 

jury trial, the parties submitted proposed jury instructions. 

Pérez filed a separate ex parte request for an entrapment jury 

instruction.

A two-day jury trial was held beginning on May 15, 2017. 

The government's case primarily consisted of Agent Seig's 

testimony and the transcripts of the Grindr and text messages.2 

Pérez did not present any witnesses.3 At the close of the evidence, 

2 The government also presented testimony from two other HSI 

agents present at the arrest. An AT&T security manager also

explained how he confirmed that the phone which sent the messages 

belonged to Pérez.

3 Pérez attempted to present character witnesses, but the 

court excluded the testimony as impermissible under the Federal 

Rules of Evidence because there was no pertinent character trait 

associated with the crime charged. 
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Pérez moved for acquittal under Rule 29. The district court denied 

the motion. The parties participated in a charging conference, 

which was not recorded. Nevertheless, the record indicates that 

Pérez renewed his request for an entrapment jury instruction at 

that conference because the district court denied the entrapment 

instruction in a docket entry, stating, "The ruling is based on 

the arguments presented by the government and defendant's response 

during the charging conference in connection with predisposition. 

In the end, the evidence presented at trial did not justify an 

entrapment instruction." Before instructing the jury, the court 

asked the parties if there were "any objections to the 

instructions." Pérez did not raise any objections at that time. 

After charging the jury, the district court did not invite 

objections from the parties. Pérez did not raise any objection. 

The jury deliberated for less than one hour and returned a guilty

verdict. On May 14, 2019, Pérez was sentenced to 151 months of 

incarceration. 

Pérez timely filed this appeal. In addition to 

challenging the sufficiency of the evidence, he asserts that the 

district court erred in rejecting his request for an entrapment 

instruction.4

4 Pérez raises four additional claims of error: (1) inadequate 

questioning during voir dire, (2) violations of the Jones Act, see

48 U.S.C. § 864 (requiring that all trial proceedings in the 
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II.

We review de novo the district court's denial of Pérez's

properly preserved claim that the evidence presented at trial was 

insufficient to support the jury's verdict. See United States v. 

Tanco-Baez, 942 F.3d 7, 15 (1st Cir. 2019). In evaluating a 

sufficiency of the evidence claim, "we examine the evidence, both 

direct and circumstantial, in the light most favorable to the 

prosecution and decide whether that evidence, including all 

plausible inferences drawn therefrom, would allow a rational 

factfinder to conclude beyond a reasonable doubt that the defendant 

committed the charged count or crime." United States v. VelázquezAponte, 940 F.3d 785, 798 (1st Cir. 2019) (quoting United States

v. Díaz-Rosado, 857 F.3d 116, 120–21 (1st Cir. 2017)).

A. The Elements of the Offense 

Pérez was found guilty of violating 18 U.S.C. § 2422(b),

which provides:

Whoever, using the mail or any facility or 

means of interstate or foreign commerce, or 

within the special maritime and territorial 

jurisdiction of the United States knowingly 

persuades, induces, entices, or coerces any 

individual who has not attained the age of 18 

District of Puerto Rico be conducted in English), and the Court 

Reporter Act, see 28 U.S.C. § 753(b) (requiring federal court 

proceedings to be recorded verbatim), (3) improper opinion 

testimony, and (4) improper exclusion of a character witness. 

Except for some observations on the voir dire process, we do not 

address the other issues raised given our conclusion that Pérez's 

conviction must be vacated on the basis of the court's failure to 

give an entrapment instruction. 
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years, to engage in prostitution or any sexual 

activity for which any person can be charged 

with a criminal offense, or attempts to do so, 

shall be fined under this title and imprisoned 

not less than 10 years or for life.

To support a conviction under the attempt portion of the statute,

the government must show that the defendant attempted to "(1) use 

a facility of interstate commerce (2) to knowingly persuade, 

induce, entice, or coerce (3) an individual under the age of 18 

(4) to engage in illegal sexual activity."5 United States v. Berk, 

652 F.3d 132, 138 (1st Cir. 2011) (quoting United States v. 

Gravenhorst, 190 F. App'x 1, 3 (1st Cir. 2006) (per curiam)). 

To prove an attempt, the government must establish both 

a specific intent to commit the substantive offense and a 

substantial step toward its commission. Id. at 140. Hence, for 

conviction under § 2422, the specific intent required is the intent 

to persuade, induce, entice, or coerce a minor into engaging in 

illegal sexual activity. We have interpreted this requirement as 

broadly requiring an intent "to achieve a mental state -- a minor's 

assent -- regardless of the accused's intentions vis-à-vis the 

actual consummation of sexual activities with the minor." United 

States v. Dwinells, 508 F.3d 63, 71 (1st Cir. 2007) (emphasis 

omitted). 

5 Here, the government argued, the illegal sexual activity 

was sexual assault under Puerto Rico law. See P.R. Laws Ann. tit. 

33, § 5191(a) (defining sexual assault to include sex with someone 

under age sixteen).
- 13 -

A substantial step toward commission of an offense is 

"less than what is necessary to complete the substantive crime, 

but more than 'mere preparation.'" Berk, 652 F.3d at 140 (quoting 

United States v. Piesak, 521 F.3d 41, 44 (1st Cir. 2008)). This 

requirement serves to "distinguish between those who express 

criminal aims without doing much to act on them and others who 

have proved themselves dangerous by taking a substantial step down 

a path of conduct reasonably calculated to end in the substantive 

offense." United States v. Doyon, 194 F.3d 207, 211 (1st Cir. 

1999). We have found that a variety of actions, including actions 

short of meeting the minor in person, can constitute a substantial 

step toward a § 2422(b) offense. See United States v. Rang, 919 

F.3d 113, 121 (1st Cir. 2019) (defendant reserved hotel room and 

sought consent from the minor's mother for a "sleepover" with the 

minor); Berk, 652 F.3d at 140 (defendant offered to help a woman 

find housing in exchange for sex with her daughter and sent the 

woman leads about homes for rent); Gravenhorst, 190 F. App'x at 4

(defendant sent minors sexually explicit messages and proposed 

meeting in person). But see Berk, 652 F.3d at 140-41 (noting that 

"explicit sexual talk alone" does not constitute a substantial 

step toward a § 2422(b) offense (citing United States v. Gladish, 

536 F.3d 646, 652 (7th Cir. 2008))). Direct communication with a 

minor, real or fictitious, is not required. A person can commit 

a § 2422(b) offense by communicating with an adult who acts as an 
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"intermediary" between the defendant and a minor. See Berk, 652

F.3d at 140.

B. The Sufficiency of the Evidence Against Pérez

On the first element, intent, Pérez argues that the 

government failed to provide enough evidence to allow a jury to 

conclude that he intended to persuade, induce, entice, or coerce 

a minor. He asserts: "There was no reason to do that [i.e.,

persuade, induce, entice, or coerce] here because the agent offered 

[a minor] he presented as already ready, willing, and experienced, 

'lik[ing] everything.'" In his view, the evidence, at most, could 

allow the jury to conclude that Pérez communicated with an adult 

with the intention of "bringing about a meeting at which prohibited 

conduct was supposed to, or likely to occur." 

Pérez's focus on the fictitious minor's supposed sexual 

experience and willing participation is seriously misplaced. A 

child who has previously been sexually abused or is otherwise 

depicted as "experienced" can still be a victim of persuasion, 

inducement, enticement, or coercion. See United States v. Hinkel, 

837 F.3d 111, 116 (1st Cir. 2016) (upholding a § 2422(b) conviction 

where the minor was described as "15 but experienced"). And a 

child's expression that he "like[s] it" and wants to engage in 

illegal sexual activity does not mean that persuasion, inducement, 

enticement, or coercion could not possibly play a role. See

Dwinells, 508 F.3d at 67 (upholding a § 2422(b) conviction where 
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law enforcement agents posing as minors responded positively to 

the defendant's sexual advances, including one fictitious minor 

who "assured him that she would consent" to sexual activity in 

person). To suggest otherwise is to misunderstand the nature of 

child sexual abuse. See United States v. Gonyer, 761 F.3d 157, 

167 (1st Cir. 2014) (describing the process of a sexual predator 

"grooming" a child to form an emotional connection which would 

lead the child to be persuaded to engage in sexual activity); 

United States v. Brand, 467 F.3d 179, 203 (2d Cir. 2006) ("Child 

sexual abuse is often effectuated following a period of 'grooming' 

and the sexualization of the relationship." (quoting Sana Loue, 

Legal and Epidemiological Aspects of Child Maltreatment, 19 J. 

Legal Med. 471, 479 (1998))).

It was reasonable for the jury to believe that the

fictitious eleven-year-old boy Dave "offered" to Pérez would not 

participate in the planned sexual encounter absent persuasion, 

inducement, coercion, or enticement -- at a minimum, "implicit 

coaxing or encouragement." See United States v. Montijo-Maysonet, 

974 F.3d 34, 42 (1st Cir. 2020) ("[T]he four verbs Congress 

used -- including 'entice' and 'induce' -- plainly reach implicit 

coaxing or encouragement designed to 'achieve . . . the minor's 

assent' to unlawful sex[.]" (second omission in original) (quoting 

Dwinells, 508 F.3d at 71)). And it was reasonable for the jury to 

conclude that Pérez must have been cognizant of that reality and 
- 16 -

was relying on Dave to affect his "boyfriend's" mental state such 

that the minor would participate. Although Agent Seig's text 

messages can be read to imply that Dave had already groomed the 

minor for the sexual activity, the jury could reasonably infer

that Pérez intended to use Dave as an intermediary to "entice"

(meaning "to draw on by arousing hope or desire: allure, attract,"

id.) the minor into participating in illegal sexual activity with 

Pérez on January 4, 2016.

On the second element, substantial step, Pérez 

emphasizes that he never communicated directly with a minor. Such 

communication is not required to establish a substantial step 

towards commission of a § 2422(b) offense. In Berk, we recognized 

that "a defendant can be convicted [of a § 2422(b) offense] even 

if the relevant communications are with an intermediary." 652 

F.3d at 140. Berk involved communications between the defendant 

and parents of minor children, but we did not state that only 

parents could serve as intermediaries in the commission of a 

§ 2422(b) offense. See id. Indeed, the rationale for relying on 

a sexual predator's use of intermediaries extends to any adult 

with sufficient influence or control over a minor. As explained

by the Third Circuit, in an opinion cited in Berk, § 2422(b) is 

"part of an overall policy to aggressively combat computer-related 

sex crimes against children[] [and] [i]t would be wholly 

inconsistent with the purpose and policy of the statute to allow 
- 17 -

sexual predators to use adult intermediaries to shield themselves 

from prosecution." United States v. Nestor, 574 F.3d 159, 162 (3d 

Cir. 2009); see also Montijo-Maysonet, 974 F.3d at 42 ("Congress 

. . . meant to cast a broad net (consistent with the Constitution) 

to catch predators who use the Internet to lure children into 

sexual encounters." (citing H.R. Rep. 105-557, at 21 (1998), as 

reprinted in 1998 U.S.C.C.A.N. 678, 678–79)). 

The "broad net" plainly must cover a defendant who

attempted to use any intermediary adult perceived to have

sufficient sway to "lead a child to participate in sexual 

activity." See United States v. Douglas, 626 F.3d 161, 164 (2d 

Cir. 2010). The defendant's understanding of the nature and degree 

of the adult's control over the minor is a question of fact for 

the jury. Here, the jury could reasonably infer that an adult man 

whose "boyfriend" is a minor, and who confidently invites another 

man to have sex with the child, would have been viewed by the

defendant as someone with the power to elicit the minor's assent 

to illegal sexual activity.6

Pérez similarly argues a lack of evidence of a 

substantial step because the evidence showed he arrived at the 

6 Pérez mischaracterizes the evidence by describing Dave as 

"a part-time tutor" to the minor. While Dave did mention that the 

minor was his student, he more importantly described him as his 

"boyfriend" and a person with whom he had an ongoing sexual 

relationship for six months. 
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parking lot to meet Dave, not the minor. We agree with the district 

court that "the act of traveling to meet an intermediary . . . has 

been held sufficient to establish a 'substantial step.'" United 

States v. Pérez-Rodríguez, No. 16-041 2016, WL 7442650, at *2 

(D.P.R. Dec. 27, 2016) (citing Berk, 652 F.3d at 140). Drawing 

all inferences in favor of the government, a rational jury could 

find that Pérez's communications with Dave and his subsequent 

arrival at the meeting he arranged with Dave constituted a 

substantial step to persuade, induce, entice, or coerce a minor. 

Thus, there was sufficient evidence to convict and the motion for 

acquittal was properly denied. 

III.

The district court declined to instruct the jury as to 

the elements of Pérez's primary defense, entrapment, because, in 

its view, the record did not contain sufficient evidence to warrant 

the instruction. Pérez argues that this omission denied him a 

fair trial.

A. Standard of Review

Preserved objections to the denial of a requested jury 

instruction are subject to plenary review. United States v. Joost, 

92 F.3d 7, 12 (1st Cir. 1996). If, however, the defendant fails 

to preserve his claim of entitlement to a jury instruction, the 

claim is forfeited, and we review the district court's decision 

under the plain error standard of Rule 52(b) of the Federal Rules 
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of Criminal Procedure. United States v. Baltas, 236 F.3d 27, 36 

(1st Cir. 2001). It has been the longstanding rule of this circuit 

to treat a challenge to jury instructions as forfeited if the 

defendant fails to object to the instructions after the judge has 

charged the jury, regardless of whether he previously brought the 

matter to the judge's attention. United States v. Wilkinson, 926 

F.2d 22, 26 (1st Cir. 1991) ("As we have repeatedly held, . . . 

[a] party may not claim error in the judge's charge to the jury 

unless that party 'objects' after the judge gives the charge but 

before the 'jury retires . . . .'" (quoting Fed. R. Crim. P. 30)), 

overruled on other grounds by Bailey v. United States, 516 U.S. 

137, 149 (1995). Though Pérez requested an entrapment instruction 

before the trial and argued for it at a charging conference, he

did not lodge a post-charge objection to the denial of the

instruction.7 Thus, Pérez's claim is subject to plain error 

review.

To meet the heavy burden of establishing plain error, an 

appellant must show "(1) that an error occurred (2) which was clear 

or obvious and which not only (3) affected the defendant's 

substantial rights, but also (4) seriously impaired the fairness, 

7 Pérez also failed to make an objection when the judge invited 

objections on the record directly before instructing the jury. 

Even if Pérez had made such an objection, his claim would still be 

subject to plain error review under our precedent because he did 

not renew it after the instruction, and we hold parties strictly 

to that timing. See Wilkinson, 926 F.2d at 26.
- 20 -

integrity, or public reputation of judicial proceedings." United 

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). The first 

prong, "error," consists of "[d]eviation from a legal rule."

United States v. Olano, 507 U.S. 725, 732-33 (1993). The second 

prong requires that the error identified in the first prong is not 

"open to doubt or question," though an appellant can meet this 

requirement even in the "absence of a decision directly on point." 

United States v. Morales, 801 F.3d 1, 10 (1st Cir. 2015).8 To 

establish the third prong, the appellant must show that "it is 

reasonably probable that the . . . error affected the result of 

the proceedings." United States v. Latorre-Cacho, 874 F.3d 299, 

303 (1st Cir. 2017). Our analysis under the fourth prong is

guided by our fundamental concern with "the public legitimacy of 

our justice system[,] [which] relies on procedures that are

'neutral, accurate, consistent, trustworthy, and fair.'" RosalesMireles v. United States, 138 S. Ct. 1897, 1908 (2018) (quoting 

Josh Bowers & Paul H. Robinson, Perceptions of Fairness and 

8 We note that, in our circuit, the second prong is sometimes 

described as "clear and obvious error," e.g., United States v. 

Scott, 877 F.3d 42, 49 (1st Cir. 2017), while in other opinions it 

is phrased as "clear or obvious error," e.g., United States v. 

Aquino-Florenciani, 894 F.3d 4, 7 (1st Cir. 2018). As far as we 

can tell, there is no substantive difference between the two 

usages. In fact, we are unaware of any decision suggesting that 

the words "clear" and "obvious" have different meanings. We will 

use the "clear or obvious" formulation here, which appears to be 

the more frequent usage.
- 21 -

Justice: The Shared Aims and Occasional Conflicts of Legitimacy 

and Moral Credibility, 47 Wake Forest L. Rev. 211, 215–16 (2012)). 

The plain error standard is a difficult burden for any 

appellant to meet. See United States v. Gelin, 712 F.3d 612, 620 

(1st Cir. 2013) ("This multi-factor analysis makes the road to 

success under the plain error standard rather steep; hence, 

reversal constitutes a remedy that is granted sparingly."). It is

a particularly challenging standard to meet in the context of an 

unpreserved objection to jury instructions. See United States v. 

Paniagua–Ramos, 251 F.3d 242, 246 (1st Cir. 2001) ("[T]he plain 

error hurdle, high in all events, nowhere looms larger than in the 

context of alleged instructional errors."). Nonetheless, on rare 

occasions, the severity of an error in instructing the jury does 

rise to the level of plain error and requires vacatur of the 

conviction. See, e.g., Latorre-Cacho, 874 F.3d at 310; United 

States v. Delgado-Marrero, 744 F.3d 167, 189 (1st Cir. 2014).

B. The Entrapment Defense

Entrapment provides a defense if law enforcement

officers "originate a criminal design, implant in an innocent 

person's mind the disposition to commit a criminal act, and then 

induce commission of the crime so that the Government may 

prosecute." Jacobson v. United States, 503 U.S. 540, 548 (1992);

see United States v. Teleguz, 492 F.3d 80, 84 (1st Cir. 2007) 

("Congress could not have intended that its statutes were to be 
- 22 -

enforced by tempting innocent persons into violations." (quoting 

Sherman v. United States, 356 U.S. 369, 372 (1958)). The defense 

has two prongs: (1) improper government inducement and (2) the 

defendant's lack of predisposition to commit the offense charged. 

Id. 

1. Improper Inducement

Improper inducement, also referred to as "government 

overreaching," occurs when law enforcement agents engage in 

conduct "of the type that would cause a person not otherwise 

predisposed to commit a crime to do so." Hinkel, 837 F.3d at 117.

The mere creation of an "opportunity to commit a crime" through a 

"sting" operation does not, in and of itself, constitute improper 

inducement. United States v. Gendron, 18 F.3d 955, 961 (1st Cir. 

1994) (quoting Jacobson, 503 U.S. at 550). Rather, "[a]n 

'inducement' consists of an 'opportunity' plus something else --

typically, excessive pressure by the government upon the defendant 

or the government's taking advantage of an alternative, noncriminal type of motive." Id. "Plus" factors that may tip a 

government operation from a permissible sting operation to 

improper inducement include, for example, intimidation and 

threats, "dogged insistence," playing on the defendant's 

sympathies, and "repeated suggestions." Id. (collecting cases). 

"[E]ven very subtle governmental pressure, if skillfully applied, 

can amount to inducement." United States v. Poehlman, 217 F.3d 
- 23 -

692, 701 (9th Cir. 2000). The judgment of whether government 

conduct has crossed the line from valid law enforcement tactic to 

improper inducement is often a difficult factfinding question for 

the jury because "the facts [may] fall somewhere in a middle ground 

between what is plainly proper and what is plainly improper."

United States v. Acosta, 67 F.3d 334, 338 (1st Cir. 1995); see

also id. ("To assume that we are dealing with a sharp boundary 

rather than a spectrum is an illusion.").

2. Lack of Predisposition 

The second element of the entrapment defense turns on 

whether the "defendant was disposed to commit the criminal act 

prior to first being approached by Government agents." Jacobson, 

503 U.S. at 549. Our decision in Gendron sets forth our 

understanding of this element as follows:

The right way to ask the question, it seems to 

us, is to abstract from -- to assume away --

the present circumstances insofar as they 

reveal government overreaching. That is to 

say, we should ask how the defendant likely 

would have reacted to an ordinary opportunity 

to commit the crime. By using the word 

"ordinary," we mean an opportunity that lacked 

those special features of the government's 

conduct that made of it an "inducement," or an 

"overreaching." Was the defendant 

"predisposed" to respond affirmatively to a 

proper, not to an improper, lure?

Gendron, 18 F.3d at 962 (citation omitted). The purpose of this 

predisposition inquiry is to determine whether the defendant is 

"someone who would likely commit the crime under the circumstances 
- 24 -

and for the reasons normally associated with that crime, and who 

therefore poses the sort of threat to society that the statute 

seeks to control, and which the government, through the 'sting,' 

seeks to stop." Id. at 963. The "critical time" for the 

predisposition analysis is the time "in advance of the government's 

initial intervention." United States v. Gifford, 17 F.3d 462, 469 

(1st Cir. 1994); see also United States v. Gamache, 156 F.3d 1, 12

(1st Cir. 1998) ("[T]he concept of predisposition has a definite 

temporal reference: 'the inquiry must focus on a defendant's 

predisposition before contact with government officers or 

agents.'" (quoting United States v. Brown, 43 F.3d 618, 627 (11th 

Cir. 1995)); Poehlman, 217 F.3d at 703 ("Quite obviously, by the 

time a defendant actually commits the crime, he will have become 

disposed to do so. However, the relevant time frame for assessing 

a defendant's disposition comes before he has any contact with 

government agents, which is doubtless why it's called 

predisposition."). While evidence of the defendant's response to 

the government's inducement may be relevant to the predisposition 

inquiry, that evidence must be evaluated in terms of what it 

reveals about the defendant's readiness to commit the crime before 

the government contacted him. See Gifford, 17 F.3d at 469. 

We have advised trial courts that the following factors 

may be useful in evaluating the evidence of predisposition or lack 

thereof: 
- 25 -

(1) the character or reputation of the 

defendant; (2) whether the initial suggestion 

of criminal activity was made by the 

Government; (3) whether the defendant was 

engaged in the criminal activity for profit; 

(4) whether the defendant showed reluctance to 

commit the offense, which was overcome by the 

governmental persuasion; and (5) the nature of 

the inducement or persuasion offered by the 

Government.

Gamache, 156 F.3d at 9–10. The second, fourth, and fifth of these 

factors are also relevant to the improper inducement analysis. 

Thus, while improper inducement and lack of predisposition are two 

separate prongs, the same factual evidence will often be relevant 

to both prongs.

3. The Defendant's Burden of Production

A defendant is entitled to a jury instruction on 

entrapment if he meets a modest burden of production on the two 

prongs of the defense. United States v. Rodriguez, 858 F.2d 809, 

814 (1st Cir. 1988). This rule is in keeping with the "general 

proposition [that] a defendant is entitled to an instruction as to 

any recognized defense for which there exists evidence sufficient 

for a reasonable jury to find in his favor." Mathews v. United 

States, 485 U.S. 58, 63 (1988). 

In analyzing whether the defendant has met his burden, 

the court must construe the evidence in the light most favorable 

to the defendant. Rodriguez, 858 F.2d at 813. An entrapment 

instruction is required if the evidence, viewed in this charitable 
- 26 -

fashion, "furnishes an arguable basis for application of the 

proposed rule of law." Id. at 814 (quoting United States v. Coady, 

809 F.2d 119, 121 (1st Cir. 1987)). In other words, the record 

must contain evidence that makes the entrapment theory "plausible" 

or "superficially reasonable." Gamache, 156 F.3d at 9. As we 

have previously emphasized, "[t]his is not a very high standard to 

meet." Id.

A defendant does not need to introduce his own evidence 

to meet this burden. Rodriguez, 858 F.2d at 813. He may rely on 

"evidence adduced during the government's case" or "any probative 

material in the record." Id. The proof may be "circumstantial 

rather than direct." Id. If there are factual disputes in the 

record, the court is not permitted to "weigh the evidence, make 

credibility determinations, or resolve conflicts in the proof." 

Gamache, 156 F.3d at 9. If the parties argue competing inferences, 

the court must draw all reasonable inferences in favor of the 

defendant's entrapment theory. Id. Ultimately, if "a reasonable 

jury could view the evidence as establishing that defendant was 

entrapped . . . [the defendant] [i]s entitled to an entrapment 

instruction." Teleguz, 492 F.3d at 84. Determining whether 

government conduct has crossed the line into improper inducement 

or whether a person was predisposed to commit an offense are

delicate questions of fact for the jury to sort out. See Acosta, 

67 F.3d at 338. Thus, a judge should not hesitate to send the 
- 27 -

question to the jury if there is even ambiguous evidence of 

entrapment.

Once the defendant meets his burden of production, 

entrapment becomes a question of fact for the jury. Id. At that 

stage, the government bears the burden of proving beyond a 

reasonable doubt either that there was no improper inducement or 

that the defendant was predisposed to commit the offense. Id. If 

"a rational jury could decide either way, its verdict will not be 

disturbed." Id.

IV.

Consistent with our earlier explanation of the plain 

error standard, Pérez is entitled to relief if he is able to 

demonstrate that: (1) the district court erred in failing to give 

an entrapment instruction; (2) his entitlement to that instruction 

was clear or obvious; (3) the omission affected his substantial 

rights; and (4) it undermined the fundamental fairness of the 

trial. See Duarte, 246 F.3d at 60. 

A. Error

The district court denied Pérez's requested entrapment 

instruction for failure to meet his burden of production on the 

lack of predisposition prong, without addressing whether Pérez had 

met his burden of production on the improper inducement prong.

Because the defendant is required to meet the burden of production 

on both prongs, a court may deny an entrapment instruction based 
- 28 -

on a failure to show evidence on one prong or the other, without 

discussing both. See, e.g., United States v. Rivera-Ruperto, 846 

F.3d 417, 431 (1st Cir. 2017); United States v. Sánchez-Berríos, 

424 F.3d 65, 77 (1st Cir. 2005). Because we disagree with the 

district court's assessment of the evidence on predisposition, we 

must consider both prongs. If the defendant failed to meet his 

burden of production on the improper inducement prong, an error by 

the judge in the assessment of the predisposition prong would be 

harmless. 

We also repeat that improper inducement and 

predisposition are analytically linked in that improper

inducement, and the defendant's responses to it, are part of the 

evidence courts should consider in deciding whether the defendant 

met his burden of production on the lack of predisposition prong. 

Gamache, 156 F.3d at 9–10; see Joost, 92 F.3d at 13-14 ("As for 

the absence of predisposition prong, much of what we have pointed 

to [in the improper inducement analysis] is relevant."). In 

evaluating the question of whether the defendant was predisposed, 

the factfinder must "abstract from -- . . . assume away -- the 

present circumstances insofar as they reveal government 

overreaching." Gendron, 18 F.3d at 962 (emphasis omitted). If 

there was no improper inducement, we already have our answer as to 

how the defendant would respond to "an ordinary opportunity to 

commit the crime" and any further analysis of predisposition is 
- 29 -

unnecessary. Id. (emphasis omitted). But if there was improper 

inducement, the nature of that inducement and the defendant's 

responses to it are relevant to the predisposition analysis to the

extent that they allow inferences about the defendant's state of 

mind prior to the government's intervention. Rodriguez, 858 F.2d 

at 816 (considering evidence of the defendant's responses to 

improper inducement because "later events often may shed light on 

earlier motivations").

1. Improper Inducement 

Agent Seig created a Grindr profile appearing to belong 

to an adult named "Dave W." The profile described Dave as 

"[m]uscular, [w]hite, [s]ingle." Pérez sent a message to that 

profile, presumably believing he was speaking with that adult man. 

Dave quickly turned the conversation towards sexual activity with 

a minor by offering to arrange a sexual encounter with his elevenyear-old "boyfriend." Dave said that both he and the minor would 

be part of the encounter, stating it would be "him you and I" and 

describing the encounter as a "threesome." This type of "bundling 

of licit and illicit sex into a package deal" can constitute a 

"plus factor" for purposes of establishing improper inducement. 

Hinkel, 837 F.3d at 118; see also Gendron, 18 F.3d at 961 

(describing "the government's taking advantage of an alternative, 

non-criminal type of motive" as a "typical[]" example of an 

inducement plus factor). 
- 30 -

Agent Seig, writing as Dave, represented from the start

that the eleven-year-old minor was his "boyfriend" -- a term which 

suggests the legally impossible notion that the minor was a 

consenting participant in a sexual and romantic relationship with 

Dave. Agent Seig repeatedly stated that this imagined encounter 

would be a positive experience for the minor. Such repeated 

suggestions "downplay[ing] the harm" caused by child sexual abuse,

or otherwise justifying it, can constitute a "plus factor" which 

a jury may rely on to find improper inducement. See Hinkel, 837 

F.3d at 118 (stating that the defendant presented evidence of 

"clever and sophisticated inducement" where the law enforcement 

agent "on numerous occasions, downplayed the harm that could be 

expected to flow from the commission of the crime by describing 

how 'amazing' the encounter would be, how 'excited' 'Samantha'

was, and how 'Lisa' 'appreciate[d]' how 'honest and caring' Hinkel 

had been in his messages"); Gamache, 156 F.3d at 11 (stating that 

the law enforcement agent's repeated "justifications for the 

illicit activity (intergenerational sex) by describing 'herself'

as glad that Gamache was 'liberal' like her, expressing that she, 

as the mother of the children, strongly approved of the illegal 

activity, and explaining that she had engaged in this conduct as 

a child and found it beneficial" constituted evidence of improper 

inducement); see also Jacobson, 503 U.S. at 540 (describing the

government's improper inducement as including repeated 
- 31 -

"suggesti[ons] that petitioner ought to be allowed to do what he 

had been solicited to do," i.e., purchase child pornography).

Hence, the record contained evidence that would allow a 

jury to find two significant "plus" factors in Agent Seig's 

communications with Pérez: first, Seig's linking the opportunity 

for adult sexual activity, a lawful objective of Grindr users,

with the unlawful sexual activity involving a minor -- establishing 

a kind of prerequisite for the adult activity; second, Seig's 

repeated suggestions that the illegal conduct was not harmful, but 

actually beneficial, to the minor. Thus, a reasonable jury could 

have found improper inducement -- a necessary precondition for a 

defendant to meet his burden of production on lack of 

predisposition.

2. Lack of Predisposition 

Pérez met his burden of production on the lack of 

predisposition prong if the record would permit a reasonable 

inference by the jurors that, before his interaction with Agent 

Seig, Pérez was not predisposed to commit the crime of enticing a 

minor to commit unlawful sexual activity. See Gendron, 18 F.3d at 

962. The five factors identified in Gamache guide our analysis. 

See 156 F.3d at 9-10. 

As to the first factor, the character or reputation of 

the defendant, the evidence might include prior criminal 

convictions for similar offenses or a history of sexual interest 
- 32 -

in minors. Tellingly, the record contains no such evidence. See

id. at 12 ("[T]here was no evidence presented that Gamache had 

engaged in similar activities independent of this sting operation. 

The jury could have relied on this evidence to find a lack of 

predisposition . . . ."); see also Hinkel, 837 F.3d at 118 (stating 

that the defendant produced sufficient evidence to "clearly" meet 

his prima facie burden of a lack of predisposition because, inter 

alia, "the government had not uncovered any evidence suggesting 

that he had other underage victims"). The absence of any kind of 

negative character evidence relating to sexual activity with 

minors is one point in favor of allowing the entrapment 

instruction.

There are two statements from Pérez early in the 

conversation with Dave that "I started at 8." As noted earlier, 

the exchange begins as follows:

Pérez: Hello what are you doing?

Dave: Hey what's up

Pérez: Let's see you

Dave: Cool, do you like really young guys?

Pérez: Yes

 Age?

 I started at 8

Dave: Me? 35, but my boyfriend is young

Pérez: Hahhaha Okk

 How old is he?
- 33 -

 What does your boyfriend like? 

Dave: He likes everything :)

He is very young, what age do you like?

Pérez: The younger the better

 I don't discriminate

 I started at 8 hehehhe

 So you tell me

 What does he like to do?

 We are close, we can come up with some fun

 From there up I do it all

Dave: Do you understand English? I speak only a little 

Spanish

My boyfriend is 11 years old. Do you want to play 

with him?

Pérez: Mmmm yessss

 Where is he?

 I speak little only a little English?

 Share pics??

 You tell me when and where???

 Do you prefer to call?

 Yes, I want to play

The dissent states that, "in context," the exchange 

plainly reflects a "stark pre-dispositional admission by Pérez." 

In fact, however, the dissent ignores the context of Pérez's 

statements that "I started at 8." Both statements are made before 

the notion of sex with a minor entered the conversation ("My 

boyfriend is 11 years old. Do you want to play with him?"). Until 

Dave talks about his eleven-year-old "boyfriend," the 

conversation, which took place on a dating app for adults, can be 

read as discussing sex with young adults. When Dave refers to 

himself as thirty-five, he could be saying that he is thirty-five 
- 34 -

years old, or that he started having his sexual experiences at age 

thirty-five. Clearly, he (i.e., Agent Seig, posing as Dave) is 

not saying that his partners in his sexual experiences are thirtyfive. It thus remains unclear, when Pérez reiterates that he 

"started at 8," whether he is referring to the beginning of his 

own sexual experiences or the age of boys with whom he has had 

sex. 

The dissent similarly ignores the context when Pérez 

says, "the younger the better." Here, too, he makes the statement 

before Dave made any reference to his "boyfriend" being underage. 

Thus, it is hardly clear that Pérez is admitting to having an 

interest in children rather than meaning that he is interested in 

younger adults. The latter interpretation is plausible,

particularly in light of Dave's reference to "really young guys," 

(the word "guys" tending to imply adults), and the fact that Pérez 

made the comments on an adults-only dating app. As for Pérez's 

apparent eagerness when he discovers that Dave's "boyfriend" is 

only eleven, we have said in our case law that " eagerness alone 

. . . is not sufficient to remove the predisposition question from 

the jury's purview." Gamache, 156 F.3d at 12.

Hence, the text is ambiguous enough that a jury, not a 

judge, needed to determine its meaning. See id. at 9 ("[T]he 

court's function is to examine the evidence on the record and to 

draw those inferences as can reasonably be drawn therefrom, 
- 35 -

determining whether the proof, taken in the light most favorable 

to the defense can plausibly support the theory of the defense."). 

Thus, for the purpose of evaluating the evidence on the 

predisposition prong, the "I started at 8" statements do not 

provide evidence of a history of sexual interest in minors.

On the second factor, the initial suggestion of criminal 

activity, it is indisputable that the government first suggested 

the sexual abuse of a minor. In fact, as we have noted, Pérez 

encountered law enforcement on a forum intended to be used only by 

adults.9 The jury could reasonably draw the inference from Pérez's 

use of Grindr that, before his conversation with "Dave," he was 

interested in sex with other adult men, not children. Indeed, the 

expert psychologist who testified at sentencing drew this same 

inference, stating: "A pedophile will not be using, my personal 

clinical opinion, I don't think they will use Grindr because he 

will be easily identified." Although Agent Seig testified that he 

designed his profile to contain "veiled" references which would be 

understood as suggesting sexual abuse of a minor "by someone who 

was versed in communicating in the realm of pedophiles," we must 

interpret the evidence in the manner most charitable to Pérez. 

9 Agent Seig testified that profiles explicitly seeking sexual 

encounters with minors "would be removed from the social network, 

because many people would report that and then the owners of the 

network would remove it." 
- 36 -

Here, there is no basis for concluding on this record that Pérez 

understood these veiled references.

The third factor -- whether the defendant engaged in the 

criminal activity for profit -- is not relevant here, but we note 

that monetary profit was not at issue. 

As for the fourth factor, "whether the defendant showed 

reluctance to commit the offense," the transcripts show that Pérez 

insisted on meeting Dave without the minor's presence. Taken in 

the light most favorable to Pérez, as it must be at this stage, 

this insistence can be read as a sign of some reluctance to commit 

the crime. Pérez made clear that any subsequent meeting with the 

minor would depend on how the meeting with Dave went, and it is a 

reasonable inference from the messages that Pérez had not made up 

his mind about actually meeting the child. A jury could also 

conclude from Pérez's insistence on meeting with Dave alone, his 

repeated statements that he wanted to get to know Dave first, and 

his clear interest in Dave, that Pérez was hesitant about moving 

beyond the realm of fantasy with a minor and was motivated by a 

desire to "be horny" with an adult in whom he was sexually 

interested. Although a jury could also conclude that Pérez 

intended to proceed directly to a meeting with the minor after 

seeing Dave and ensuring he was not a law enforcement officer, 

that plausible inference is not sufficient to take the entrapment 

defense from the jury. See Gamache, 156 F.3d at 10 (explaining 
- 37 -

that whether the government disputes the defendant's version of 

the facts is "irrelevant to the question of whether it raises an 

issue of entrapment to be put before the jury"); Rodriguez, 858 

F.2d at 815 (explaining that it is sufficient that "[the 

defendant's] version, whether or not it strikes us as particularly 

credible, is neither thoroughly implausible nor constructed 

entirely of gauzy generalities").

The fifth factor, "the nature of the inducement or 

persuasion offered by the Government," brings us back to the 

improper inducement analysis. From the very beginning of the 

conversation, Pérez expressed his interest in "Dave," an adult 

man. Before either party said anything about a minor, Pérez said 

to Dave, "Let's see you," likely meaning that he wanted to see a 

picture of "Dave." Later in the conversation, Pérez asked Dave 

for pictures again and for a physical description of his body. A 

juror could reasonably infer that Pérez was primarily motivated by 

sexual interest in "Dave," not the minor. Pérez also asked Dave 

questions about how he "got" his "boyfriend." Drawing inferences 

in favor of Pérez, these questions suggest that he asked them

because he had not ever thought about or tried to entice a minor 

into sex before, and would not do so without the encouragement of 

the government agent and repeated statements "downplaying the 

harm," Hinkel, 837 F.3d at 118, or, even more offensively, 

normalizing the sexual behavior with the minor.
- 38 -

To be sure, there are different inferences one could 

draw from the communications between Pérez and Dave. But, in 

determining whether the defendant has met his burden of production,

we are required to draw all inferences in favor of the defendant. 

The evidence relevant to the factors listed in Gamache provides at 

least some evidence of lack of predisposition. Thus, the record 

met Pérez's modest burden of production, and the district court 

erred by denying the entrapment instruction.

B. Clear or Obvious Error

1. Relevant First Circuit Precedent

Prior to Pérez's trial in May 2017, our court had decided 

two significant cases addressing the circumstances in which a 

defendant is entitled to jury instructions on the entrapment 

defense in the context of child sexual abuse sting operations: 

Hinkel, 837 F.3d at 111, and Gamache, 156 F.3d at 1. Because these 

cases reveal the clarity of the district court's error, we describe 

their facts in some detail.

a. Hinkel

Hinkel was convicted of attempted enticement of a minor 

in violation of § 2422(b) -- the precise offense at issue here --

after email correspondence with a law enforcement agent posing as 

"Lisa," the thirty-eight-year-old mother of a fictitious fifteenyear-old girl, "Samantha." Hinkel, 837 F.3d at 116. Hinkel 

contacted "Lisa" based on a personal ad posted to an "online 
- 39 -

message board . . . frequented by those seeking adult sex 

partners." Id. at 115. The ad stated, "mom with daughter looking 

for taboo relationship." Id. at 116. Hinkel responded with an 

email containing "graphic descriptions of sexual acts that he 

imagined engaging in with 'Lisa' and her daughter." Id. The 

government agent posing as "Lisa" promptly told Hinkel that her 

daughter was "15 but experienced," to which Hinkel responded, 

"Sounds very naughty! I am concerned about her age since legally 

she should be 16 or older." Id. The agent answered "she[']s not 

[16 or older] so i guess this conversation is over." Id. Hinkel 

immediately replied, "Nope..... It is not over! I want to talk 

more! I'm very intrigued by it all. Such taboo and naughty 

play!!!!" Id.

For the next month, Hinkel continued to correspond with 

Lisa in "lurid detail" about his desire to have sex with 

"Samantha," though he occasionally expressed "conflicting 

feelings." Id. at 116-17. Lisa reassured Hinkel, writing "i think 

you will love her...and i appreciate the way you describe our 

situation." Id. at 117. Hinkel also exchanged sexually graphic 

emails with Samantha directly. Id. Hinkel and Lisa made plans 

for Hinkel to visit and have sex with Samantha. Id. Lisa told

him that the planned encounter would be "such an amazing experience 

for us to have together." Id. When Hinkel arrived at the appointed 

time and place, he was arrested and subsequently charged and 
- 40 -

convicted of a § 2422(b) offense. Id. At his trial, the government 

introduced evidence of "five cartoons, which consist of detailed 

anime drawings of adults and minors engaged in sex acts" that law 

enforcement had found on Hinkel's computer. Id. at 122.

Hinkel's primary defense at his trial was entrapment, 

and -- unlike here -- the district court instructed the jury on 

the elements of that defense. Id. On appeal, Hinkel claimed the 

government's evidence was insufficient to overcome the entrapment 

defense. Id. We rejected that challenge because it was reasonable 

for the jury to find that entrapment had not occurred. Id. at 

120. Of importance here, however, is our explicit consideration 

of whether Hinkel had satisfied his burden of production even 

though the district court had instructed the jury on entrapment. 

Id. at 118. Hence, although the posture of Hinkel was different,

its discussion of the facts that clearly met the threshold for an 

entrapment instruction is directly applicable here.

b. Gamache

Following a postal service correspondence with a law 

enforcement agent posing as a mother of three young children, 

Gamache was convicted of travel with intent to engage in illicit 

sexual conduct with a minor in violation of 18 U.S.C. § 2423(b),

and an attempt to use a minor to produce sexually explicit images 

in violation of 18 U.S.C. § 2251(a). Gamache, 156 F.3d at 2. The 

agent had published a personal ad in an adult magazine which read, 
- 41 -

in part, "female, 31; Single mom, two girls, one boy, seeks male 

as partner and mentor, seeks fun, enjoys travel and photography." 

Id. at 3. Gamache responded with interest in the adult female 

author of the advertisement. Id. 

The agent, posing as "Frances," steered the 

correspondence toward sex with her three minor children, ages 

twelve, ten, and eight. Id. at 4. Frances wrote that she wanted 

to "introduc[e] an adult male to further [her] children's sexual 

education and experiences." Id. Gamache responded that he was 

"not shocked" and that he would be "honored" to be chosen as the

adult man to have sex with Frances's children. Id. Over several 

months of continuing correspondence, Frances described sexual 

activities she wanted Gamache to engage in with her children, and 

Gamache replied in kind, sharing his own ideas and desires. Id.

at 4-7. He also sent a letter to the children describing sexual 

activities he planned to engage in with them. Id. at 7. Throughout 

the correspondence, Frances referenced a "kind" uncle who "taught 

[her] about sex when [she] was very young, and wanting the same 

type of experience for [her] children." Id. at 4-5 (alterations 

in original). She told Gamache the children were "very excited 

about meeting" him, and they arranged for Gamache to meet "Frances" 

and her children at a motel. Id. at 5-7. When Gamache arrived at 

the motel, he was arrested. Id. at 7.
- 42 -

Gamache requested an entrapment instruction at his 

trial, and the court rejected his request. Id. at 3. His objection 

was properly preserved and subject to plenary review. Id. at 9. 

We held that Gamache had met his burden of production on both 

prongs of the entrapment defense and that the court erred in 

failing to give the instruction. Id. at 12. We vacated the 

conviction and remanded for a new trial. 

c. Common Principles in Hinkel and Gamache

Our review of Hinkel and Gamache reveals that, at the 

time the district court rejected Pérez's request for an entrapment 

instruction, we had previously held that certain facts in 

combination -- present in both of those cases -- entitled a 

defendant to an entrapment instruction. 

In both cases, the government originated the criminal 

design and invited the defendants to participate by placing an 

ambiguous advertisement in an adults-only forum; then, when the 

defendants responded to the advertisements, the government offered

to arrange a sexual encounter involving a minor. Hinkel, 837 F.3d 

at 116; Gamache, 156 F.3d at 10. In both cases, we noted that the 

government agents used the tactic of "bundling . . . licit and 

illicit sex into a package deal," meaning that they offered a 

sexual encounter that would include both legal sex with an adult 

and illegal sex with a minor. Hinkel, 837 F.3d at 118; see also

Gamache, 156 F.3d at 10. A key component of the government agent's 
- 43 -

strategy in both cases was "downplay[ing] the harm" that would 

flow from the crime through repeated statements portraying sex 

with a minor as normal or even beneficial. Hinkel, 837 F.3d at 

116; see Gamache, 156 F.3d at 10-11. In both cases, the defendants 

manifested some hesitancy to commit the offense, though most of

their communications expressed eagerness to do so, and,

ultimately, both defendants showed up for a meeting with the minor. 

Finally, in both cases, there was no evidence of the defendants' 

prior sexual activity with minors. Hinkel, 837 F.3d at 116; 

Gamache, 156 F.3d at 10.

Not surprisingly, given these similarities, we cited 

Gamache as apt precedent in stating that the defendant met his 

burden of production in Hinkel. The cases, of course, are not 

identical. Gamache involved a more prolonged period of 

correspondence and, arguably, more severe government manipulation.

Despite those differences, however, when all inferences are drawn 

in favor of the defendant, the record in each case told, in 

essence, the same story: a defendant without any known prior sexual 

contact with minors moved from his initial, lawful inquiry about 

adult sex to what a jury could find was an attempt to commit an 

offense involving sexual exploitation of a minor, prompted by 

encouragement from the government that a reasonable juror could 

deem improper inducement.
- 44 -

2. Comparing Pérez's Case with Hinkel and Gamache

a. Initiation by the Government Agent

Like the law enforcement agents in Hinkel and Gamache, 

Agent Seig purported to be an adult using a forum for adults 

seeking adult sexual partners, and alluded to the possibility of 

a relationship with a younger person without specifying the nature 

of the relationship or the age of the young person. See Hinkel, 

837 F.3d at 116; Gamache, 156 F.3d at 10. Pérez took the bait and 

contacted the agent. Like Hinkel and Gamache, his initial message 

did not include any reference to sex with a minor. He wrote, 

"Hello what are you doing?" and then "Let's see you." It was the 

government agent who turned the conversation to sex with minors, 

asking if Pérez "liked really young guys," and then, when he

responded affirmatively, making the offer of sex with a minor: "My 

boyfriend is 11 years old. Do you want to play with him?" When 

Pérez again responded affirmatively, Agent Seig made that offer 

more explicit, asking what sex act Pérez wanted to engage in with 

the minor. While Pérez expressed enthusiastic interest, "[i]t was 

the Government that first mentioned the 'child[]' as [a] sex 

object[]; it was the Government that first used sexually explicit 

language involving the 'child[]'; [and] it was the Government that 

escalated the subject of sex with [the] child[]." Gamache, 156 

F.3d at 10.
- 45 -

b. Government's Bundling of Licit and Illicit Sex

Agent Seig's sting operation relied on precisely the 

same tactic we described in Hinkel and Gamache: the "bundling of 

licit and illicit sex into a package deal." Hinkel, 837 F.3d at 

118; see also Gamache 156 F.3d at 10. Pérez reached out to Dave

-- described as a "[m]uscular, [w]hite, [s]ingle" adult man -- on 

an adult dating application. He clearly remained interested in 

the adult throughout the conversation, including asking for photos 

just of Dave when Dave would not send photos of the minor. These 

circumstances permit a plausible inference that Pérez was not 

predisposed to sexually abuse a child, but, rather, was motivated 

by interest in sex with Dave. See Gamache, 156 F.3d at 10 (noting 

a plausible argument that "all of [Gamache's] correspondence about 

sex with minors was a ruse to have sex with 'Frances,' who was his 

target from the time that he answered the ad").

c. Government Agent's Statements Normalizing Sexual 

Abuse

Dave's comments repeatedly portraying sex with a minor 

as normal or even beneficial resemble those made by the agents in 

Hinkel and Gamache. See Hinkel, 837 F.3d at 118 (stating that the 

agent "downplayed the harm that could be expected to flow from the 

commission of the crime by describing how 'amazing' the encounter 

would be"); Gamache, 156 F.3d at 11 ("[T]he government agent 

provided justifications for the illicit activity [by] . . . 
- 46 -

expressing that she, as the mother of the children, strongly 

approved of the illegal activity, and explaining that she had 

engaged in this conduct as a child and found it beneficial to 

her."). The government's perverse statements that the minors would 

enjoy and benefit from sexual exploitation were important because 

such suggestions have the potential to influence the mind of a 

person who is not predisposed to abuse children and convince him 

that sex with a minor is acceptable. See Gamache, 156 F.3d at 11

("These solicitations suggested that Gamache ought to be allowed 

to engage in the illicit activity . . . .").

d. Defendant's Reluctance to Commit the Offense

As in Hinkel and Gamache, some of Pérez's actions could 

be interpreted as reluctance to commit the offense. He repeatedly 

insisted on meeting with Dave alone, without the minor's presence. 

That demand could be interpreted as an indication that he was 

reluctant to go through with meeting the minor, despite his many 

statements of enthusiasm about doing so. 

To be sure, Pérez's plausible expression of reluctance 

differed from the more explicit statements in Hinkel and Gamache.

Still, there was no outright rejection of the criminal conduct in 

either of those cases. Hinkel briefly indicated hesitation when 

"Lisa" told him that her daughter was fifteen, but clearly overcame 

his reluctance just moments later, stating in response to an 

obvious exit opportunity, "Nope..... It is not over! I want to 
- 47 -

talk more! I'm very intrigued by it all. Such taboo and naughty 

play!!!!"10 See Hinkel, 837 F.3d at 116. Hinkel subsequently did 

arrange and show up at a meeting with the fictitious fifteen-yearold. Id. at 117. Gamache initially resisted Frances's suggestion 

that he bring a video camera, but he stated his hesitance was based 

on technological ignorance, not any moral opposition to creating 

child pornography. See Gamache, 156 F.3d at 12. In the end,

Gamache did show up for a meeting with the children and brought a 

video camera with him.

e. Defendant's Eagerness to Commit the Offense

Aside from his insistence on meeting Dave separately 

prior to meeting the minor, Pérez's responses to Dave's suggestions 

of sexual activity with an eleven-year-old boy were decidedly not 

reluctant. His immediate response to Dave's offer of sex with his 

"boyfriend" was "yes," and he made explicit statements about the 

sex acts he wanted to engage in with the boy.11 Gamache and Hinkel 

10 In an apparent attempt to suggest that Hinkel was reluctant 

to engage in sex with a minor in a way that Pérez was not, the 

dissent ignores this quick abandonment of any hesitation in its 

characterization of Hinkel's response to the prospect of sex with 

a minor.

11 The dissent focuses on this immediate affirmative response, 

suggesting that Pérez's enthusiasm made the necessity of an 

entrapment instruction in this case unclear, and, thus, its 

omission was not plain error. But our precedent has been clear on 

this point: "[E]agerness alone . . . is not sufficient to remove 

the predisposition question from the jury's purview." Gamache, 

156 F.3d at 12. Similarly, the dissent emphasizes that Pérez went 
- 48 -

expressed similar reactions to law enforcement agents' criminal 

suggestions. See Hinkel, 837 F.3d at 118 (describing the 

defendant's response as "eager[]"); Gamache, 156 F.3d at 11

(describing the defendant's response as "enthusiastic"). Both 

Hinkel and Gamache gave graphic descriptions of the sex acts they 

wanted to engage in with minors. See Hinkel, 837 F.3d at 116 

(stating that "Hinkel corresponded frequently and in lurid detail 

with 'Lisa' and her fictitious daughter 'Samantha'" and that he 

"describ[ed] his own sexual desires in detail"); Gamache, 156 F.3d 

at 6 (describing a letter from Gamache to Frances that

"explain[ed], at length and in detail, how he will carry about the 

sexual 'education' of 'Frances'' 'children'").

Our holdings in Hinkel and Gamache make clear that a 

defendant can meet his burden of production on lack of 

predisposition even if he responded eagerly or enthusiastically to 

the proposed criminal conduct. As we have noted, in Gamache we 

explained, "[W]hile 'ready commission of the criminal act can 

to meet with Dave just five days after the first message. This 

time frame may be another display of eagerness, certainly worthy

of the jury's consideration, but it did not warrant withholding 

the entrapment instruction from the jury when other evidence in 

the record supported a finding of a lack of predisposition. The 

dissent also overlooks the fact that Pérez was arrested, not at a 

planned meeting with the minor, but rather, at a meeting with Dave. 

Read in the light most favorable to Pérez, he was prepared to meet 

with the adult intermediary alone, but had not clearly agreed to 

meet with the minor. By contrast, Hinkel and Gamache were arrested 

at planned meetings with minors. See Hinkel, 837 F.3d at 116; 

Gamache, 156 F.3d at 7. 
- 49 -

itself adequately evince an individual's predisposition' and thus 

provide sufficient evidence to support a jury's finding that the 

defendant was predisposed to commit the offense, eagerness alone, 

when coupled with the 'extra elements' present in this sting 

operation, is not sufficient to remove the predisposition question 

from the jury's purview." 156 F.3d at 12 (citation omitted)

(quoting Gifford, 17 F.3d at 469); see also id. at 11-12 

("[W]illingness to commit the crime, although clearly relevant to 

the jury's inquiry, is not sufficient by itself to mandate a 

finding that he was predisposed."); Rodriguez, 858 F.2d at 816 

("Although a jury might well find that Rodriguez's wiliness, and 

the level of experience and enthusiasm which he subsequently 

exhibited, were inconsistent with the claim of initial 

unreadiness, such a finding would not be inevitable.").

f. Prior Sexual Interest in Children

As Pérez notes, the trial record contained "absolutely 

no evidence that, aside from this virtual conversation, Mr. Pérez 

had engaged, tried to engage, or would have considered engaging in 

sex with a minor."12 In Gamache, we emphasized the importance of 

the absence of evidence of prior similar conduct in meeting the 

defendant's burden of production on lack of predisposition. See

12 As noted above in Section IV.A.2., the meaning of Pérez's 

statements that "I started at 8" is ambiguous. If all inferences 

are drawn in his favor, those statements do not constitute evidence 

of prior sexual interest in children. 
- 50 -

Gamache, 156 F.3d at 12 ("[T]here was no evidence presented that 

Gamache had engaged in similar activities independent of this sting 

operation. The jury could have relied on this evidence to find a 

lack of predisposition . . . ."). 

Of course, to address the burden of production on the 

predisposition issue, a defendant could introduce some evidence of 

positive relationships with children, though Gamache makes clear 

that the defendant need not introduce such evidence to meet that 

burden. See id. Indeed, Hinkel offered evidence that he "had 

raised two adult children and had not been accused of having an 

inappropriate relationship with either of them." Hinkel, 837 F.3d 

at 118. However, in Hinkel, there was contrary evidence that 

Hinkel had sexual interest in children before the contact with the 

government, in the form of cartoon images of adult sexual conduct 

with children recovered from his computer. Id. at 122. Hinkel 

challenged the admission of that evidence on appeal. Id. In 

rejecting that claim, we recognized that the images were "probative 

of Hinkel's predisposition" and may tend to show "sexual 

inclination towards children." Id. (quoting United States v. 

Chambers, 642 F.3d 588, 595–96 (7th Cir. 2011)). Still, even with 

the record containing evidence of Hinkel's sexual inclination 

towards children, we agreed with the district court that Hinkel 

had provided enough evidence of lack of predisposition to mount a 
- 51 -

"credible entrapment case." Id. at 118. Again, there was no such 

evidence of Pérez's prior sexual interest in children.

3. Conclusion

As we have described, this case is strikingly similar to 

Hinkel and Gamache. Agent Seig used the same tactics we saw in 

those cases -- placing an ambiguous lure on an adults-only forum, 

inviting the defendant who responded to the lure to engage in a 

"bundled" sexual encounter with an adult and a child, and 

repeatedly insisting that this sexual abuse was beneficial to the 

child. Pérez responded similarly to Hinkel and Gamache --

enthusiastic interest coupled with a weak expression of 

reluctance. And as in Gamache, the record at Pérez's trial 

contained no evidence of any sexual interest in children prior to 

the government's intervention. 

In Hinkel, we stated that the facts "clearly" met the 

defendant's "'modest' burden of making a prima facie showing that 

there is some evidence both elements [of the entrapment defense] 

are satisfied." Hinkel, 837 F.3d at 117; see also id. at 118 

(stating that the evidence at Hinkel's trial supported "a credible 

entrapment case"). In Gamache, we concluded that "appellant met 

the dual burdens required for an instruction on entrapment, because 

the evidence raises a reasonable doubt that the Government 

improperly induced a citizen to commit crimes that he was not 

predisposed to commit, yet crimes for which he was charged and 
- 52 -

convicted." Gamache, 156 F.3d at 12. The district court ignored 

our precedents when it decided a trial record containing strikingly 

similar core facts did not warrant an entrapment instruction

because the defendant did not meet his burden of production on the 

predisposition prong of the defense.

Tellingly, the government's brief on appeal does not 

even mention Hinkel or Gamache, much less attempt to distinguish 

those cases from the circumstances present here. The government's 

primary argument is that Pérez cannot meet his burden on lack of 

predisposition because he "jumped at the opportunity to 'play' 

with the 11-year-old boyfriend." That position is obviously 

foreclosed by our case law, and, if it influenced the district 

court's decision to deny the entrapment instruction, it should not 

have. 

The dissent claims that comparing this case to Hinkel

and Gamache is like "saying apples and oranges are 'clearly and 

obviously' the same because they both grow on trees in orchards." 

To be sure, there are distinctions among the three cases, but all 

three involve a mix of evidence -- some favorable to the entrapment 

defense, some tending to disprove entrapment. Each case involved 

statements reflecting eagerness and others reflecting reluctance. 

Although those statements appeared in conversations which played 

out across different time frames featuring different modes of 

communication, and the specific facts of the cases do not perfectly 
- 53 -

align, there is the significant overlap in the categories of facts 

that we have described. The district court's failure to see that 

overlap between this case on the one hand, and Hinkel and Gamache

on the other -- cases in which we stated the predisposition issue 

needed to go to the jury -- was a clear error. Although there are 

many varieties of apples, they are apples all the same.

C. Substantial Rights

Next, we ask whether the clear or obvious error affected 

the defendant's substantial rights. By refusing to give an 

entrapment instruction, the court denied Pérez an opportunity to 

have the jury consider his primary defense. See United States v. 

Benavidez, 558 F.2d 308, 309 (5th Cir. 1977). As we have discussed 

at length, Pérez's entrapment defense, reviewed in the light most 

favorable to him, as required by law, was plausible. There was a 

reasonable probability that a rational jury could credit the 

defense, even in the face of the government's attempt to disprove 

the entrapment defense beyond a reasonable doubt. See United 

States v. Benjamin, 252 F.3d 1, 9 (1st Cir. 2001) (stating that to 

determine whether an error affected the defendant's substantial 

rights, the court "must determine 'whether the record contains 

evidence that could rationally lead to a contrary finding with 

respect to the omitted [jury instruction]'" (quoting Neder v. 

United States, 527 U.S. 1, 19 (1999))). Thus, Pérez's substantial 

rights were affected.
- 54 -

D. Fundamental Fairness

Finally, we ask whether this error is one that 

"impugn[ed] the fairness, integrity, or public reputation of the 

criminal proceeding as a whole." United States v. Padilla, 415 

F.3d 211, 221 (1st Cir. 2005). Our analysis under this final prong

of plain error review is "flexible . . . and depends significantly 

on the nature of the error, its context, and the facts of the 

case." United States v. Gandia-Maysonet, 227 F.3d 1, 6 (1st Cir. 

2000). 

Entrapment is a judicially created defense reflecting a 

recognition that "[m]anifestly, [the law enforcement] function 

does not include the manufacturing of crime." Sherman, 356 U.S. 

at 369 (citing Sorrells v. United States, 287 U.S. 435, 443 

(1932)). Given the importance of the defense, erroneous or 

confusing jury instructions regarding entrapment compromise the 

fairness of a trial. E.g., United States v. Kopstein, 759 F.3d 

168, 182 (2d Cir. 2014) (holding that misleading jury instructions 

regarding entrapment, the defendant's "only viable defense," 

created so much confusion as to "call into question the fairness 

and integrity of [the defendant's] conviction" (quoting United 

States v. Rossomando, 144 F.3d 197, 201 (2d Cir. 1998))); United 

States v. Burt, 143 F.3d 1215, 1219 (9th Cir. 1998); United States

v. Duran, 133 F.3d 1324, 1335 (10th Cir. 1998); Here, we did not 

have an instruction that was problematic because it was confusing. 
- 55 -

Rather, we had a complete failure to instruct the jury on the 

defendant's primary defense. See Benavidez, 558 F.2d at 310. 

Because of the court's refusal to give Pérez's requested 

instruction, "the jury was not in a position to fairly evaluate 

the defendant's case," see id., as it did not know that the 

government was required to prove beyond a reasonable doubt that 

either no improper inducement took place, or that Pérez was 

predisposed to commit the offense. It is fundamentally unfair to 

allow a jury to convict without instructing it on the law relevant 

to a plausible entrapment theory that was "fairly raised" at trial. 

Id.

This is not the common plain error case where the failure 

of a defendant to properly preserve an objection for de novo review 

means that the trial court never had an opportunity to rule on the 

matter at issue. Pérez requested an entrapment instruction before 

trial and renewed his request at a charging conference shortly 

before the jury instructions were delivered. Although these steps 

did not preserve Pérez's challenge under our circuit's law --

because he did not renew his objection after the court charged the

jury -- the fact remains that the court was fully advised that

Pérez sought the instruction, and objected to its denial, because 

he intended to rely, and did in fact rely, on entrapment as a 
- 56 -

defense.13 Yet, the court denied the request in a single conclusory 

sentence, providing no explanation for its determination that 

Pérez had not met his burden of production on the predisposition 

prong of the defense.14 

Pérez is now serving a sentence of 151 months' (twelve 

and a half years') imprisonment based on the outcome of a trial at 

which the court summarily and improperly excluded his primary 

defense. Under these circumstances, the trial court's clear or

obvious error in refusing to present Pérez's entrapment defense to 

the jury affected his substantial rights and undermined the 

fundamental fairness of his trial. To correct that error, we must 

remand for a new trial.

V.

Given that we are remanding for a new trial, we choose 

to comment on one aspect of any new trial: the voir dire process.

13 As noted above, Pérez also failed to object on the record 

when the judge invited objections immediately before instructing 

the jury. Despite this omission, the trial record makes clear 

that the district court was aware of Pérez's objection.

14 To the extent that it might be relevant to the fourth prong 

analysis, we note that the retrial in this case will not require 

a victim to endure a second trial. Obviously, there was no actual 

victim of child sexual abuse in this attempt case. Cf. United

States v. Colon-Nales, 464 F.3d 21, 29 (1st Cir. 2006) ("Given the 

unchallenged nature of the evidence in this case . . . the greater 

threat to the 'fairness, integrity and public reputation of 

judicial proceedings' would be to send this back for trial . . . 

thereby requiring the carjacking and rape victim to testify 

twice.")
- 57 -

See, e.g., United States v. Gonzalez-Maldonado, 115 F.3d 9, 13 

(1st Cir. 1997) ("In order to give as much guidance as possible to 

the district court, we also discuss some of the other claims that 

are likely to resurface if there is a new trial."). Pérez insists 

that there was error in the district court's handling of the voir 

dire. We do not go that far. But the briefing has convinced us 

that the court would be well-advised to explore the issue of antigay bias more thoroughly than it did in the voir dire process 

reflected in the record. 

The court devoted only one question to the topic of antigay bias, asking the panel: "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 defendant were homosexual or gay?" On 

remand, the court should carefully consider Pérez's argument that 

this single self-assessment question "was inadequate to permit 

discovery of stereotypical and pejorative notions rooted in an 

extremely relevant bias." As Pérez notes, this case raises 

particular concerns about anti-gay bias not only because the 

defendant is gay, but because of the graphic sexual nature of the 

evidence and the repugnant but unfortunately widespread 

prejudicial belief that gay men are likely to sexually abuse 
- 58 -

children.15 Questions probing prospective jurors' actual bias

against gay men -- rather than their self-assessment of their

ability to be impartial at a criminal trial where the defendant is 

gay -- would be more useful in identifying jurors who could not be 

fair and impartial in dealing with the difficult facts of this 

case.

Vacated and remanded. 

- Concurring Opinion Follows -

15 See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 983 (N.D. 

Cal. 2010) ("[S]tereotypes imagine gay men and lesbians as . . . 

child molesters who recruit young children into homosexuality. No 

evidence supports these stereotypes."), aff'd sub nom. Perry v. 

Brown, 671 F.3d 1052 (9th Cir. 2012); Luke A. Boso, Dignity, 

Inequality, and Stereotypes, 92 Wash. L. Rev. 1119, 1142-43 (2017) 

(discussing manifestations of the false stereotype that gay men 

are likely to be pedophiles). 
- 59 -

LIPEZ, Circuit Judge, concurring. I write separately to 

urge our court in a future en banc proceeding to abandon the rigid 

and outdated interpretation of Rule 30(d) of the Federal Rules of 

Criminal Procedure that we had to apply in this case. We are the 

only circuit that -- without regard for the specificity or timing 

of a party's initial objection to jury instructions -- deems that 

objection forfeited if it is not repeated after the court instructs 

the jury. See United States v. Roberson, 459 F.3d 39, 45 (1st 

Cir. 2006). That preservation requirement serves no useful purpose 

in the administration of justice, and it is premised on 

practicalities that no longer exist.

To be clear, I do not raise this issue because of any 

reservations about the strength of the majority's plain error 

analysis in this case. Rather, I am concerned about the impact of 

our existing rule on criminal defendants who cannot meet that 

exacting standard in other instances where it is inappropriately 

applied. Pérez's case provides a helpful illustration of why the 

rule requiring a pointless post-charge objection is misguided. 

Before his trial commenced, Pérez filed an ex parte 

request for an entrapment jury instruction. At the close of 

evidence in the two-day trial, the parties participated in an 

unrecorded charging conference. Even without a record of the 

conference, it is clear from the district court's docket entry 

that Pérez renewed his request for an entrapment jury instruction. 
- 60 -

The district court denied the instruction, stating: "The ruling is 

based on the arguments presented by the government and defendant's 

response during the charging conference in connection with 

predisposition."16 Following the conference, the attorneys gave 

their closing arguments and the court then proceeded to charge the 

jury. It did not invite objections from the parties, and Pérez did 

not raise an objection. 

Under our court's interpretation of Rule 30(d), Pérez 

forfeited his claim that he was entitled to an entrapment 

instruction, subjecting that claim to plain-error review. See

Fed. R. Crim. P. 52(b). In other words, our law faulted Pérez for 

failing to reiterate an objection that had just been rejected at 

the charging conference. See United States v. Meadows, 571 F.3d 

131, 146 (1st Cir. 2009) ("Objections registered during pre-charge 

hearings are insufficient to preserve the issue." (quoting 

Roberson, 459 F.3d at 45)).

 Rule 30(d) does not require that interpretation. It 

states: "A party who objects to any portion of the instructions or 

to a failure to give a requested instruction must inform the court 

16 Before instructing the jury, the court asked the parties 

if there were objections to the instructions. Pérez did not object 

at that time, but that lack of objection would not matter because 

our precedent requires the objection to be made after the jury is 

instructed. See Roberson, 459 F.3d at 45. Even if Pérez had 

objected when invited to do so by the judge, his claim would still 

be considered forfeited and subject to plain error review on 

appeal. Id.
- 61 -

of the specific objection and the grounds for objection before the 

jury retires to deliberate." By its terms, then, the rule requires 

only that the party's objection be specific, explained, and 

presented before the jury deliberates. Pérez satisfied each of 

those requirements. 

Our rule insisting on a post-charge objection under Rule 

30(d) has its origins in a decades-old, out-of-circuit precedent 

-- authored by one of our First Circuit colleagues sitting by 

designation -- that involved the similar requirement in civil cases 

to timely raise instructional challenges. See Fed. R. Civ. P. 51. 

In that 1966 case, Judge Aldrich observed that "[t]he duty imposed 

upon counsel of 'stating distinctly the matter to which he objects 

and the grounds of his objection' cannot normally be performed 

until the charge has been heard in its entirety." Dunn v. St. 

Louis-San Francisco Ry. Co., 370 F.2d 681, 684 (10th Cir. 1966) 

(Aldrich, J. sitting by designation) (quoting then-current 

language of Fed. R. Civ. P. 51). Based on that view -- i.e., that 

specificity will likely be infeasible before counsel hears the 

instructions as given -- the panel in Dunn concluded that an 

instructional objection ordinarily will be deemed preserved only 

if it is voiced after the court charges the jury. See id. We 

subsequently adopted that post-charge preservation rule in our 

circuit, including for criminal cases governed by Rule 30(d). See

United States v. Leach, 427 F.2d 1107, 1113 (1st Cir. 1970) (citing 
- 62 -

Dunn as precedent for concluding that a claim for a jury 

instruction was forfeited where counsel requested the instruction 

but did not renew his objection after the instructions were 

delivered). While Dunn allowed for limited exceptions to the 

requirement that objections be made after the jury charge, see 370 

F.2d at 684, the First Circuit requires a post-charge objection in 

all criminal cases.17 See United States v. Coady, 809 F.2d 119, 

123 (1st Cir. 1987) (rejecting an argument that a claim regarding 

jury instructions could be preserved through a pre-charge 

objection, stating, "[t]hat counsel may have discoursed upon the 

nature of his theory at some time prior to the giving of the charge 

will not excuse noncompliance with the express mandates of Rule 

30").

The Dunn rationale for requiring a post-charge objection 

in most cases may have been apt when it was articulated more than 

a half-century ago. The judges of that era did not routinely give 

lawyers advance copies of their proposed instructions for 

discussion and debate at charging conferences. Indeed, even during 

17 In a civil proceeding, the trial court has been required 

since 2003 to "inform the parties of its proposed instructions and 

proposed action on the requests [for instructions] before

instructing the jury and before final jury arguments," Fed. R. 

Civ. P. 51(b)(1) (emphasis added), and it "must give the parties 

an opportunity to object on the record and out of the jury's 

hearing before the instructions and arguments are delivered," id.

at (b)(2). The rule states that an objection is timely if made 

"at the opportunity provided under Rule 51(b)(2)."
- 63 -

my tenure as a Maine state trial judge two decades later -- in the 

late 1980s and early 1990s -- most judges did not preview 

instructions with counsel in their entirety before delivering 

them. Hence, the general practice supported the assumption that 

parties ordinarily could not object with the specificity required 

by Rules 51 and 30(d) until they heard the instructions as 

delivered.

That is simply not the current reality. Today, attorneys 

are well-positioned to make specific objections to assist the judge 

in correcting errors before he or she charges the jury. The 

court's ability to distribute proposed instructions in advance and 

to easily revise them on the computer means that the attorney's 

obligation to object with specificity can now be -- and ordinarily 

is -- performed before "the charge has been heard in its entirety." 

Dunn, 370 F.2d at 684. My experience as an appellate judge reading 

trial records tells me that, as a result of this current practice, 

surprises in the instructions as given are rare. Thus, by 

maintaining our rule, we impose the harsh consequence of plainerror review without justification. 

We are an outlier in requiring a post-charge objection 

in criminal cases under all circumstances. Every other circuit 

that has considered the sufficiency of a pre-charge objection 

employs a more flexible approach, in which a pre-charge objection 

is evaluated for its adequacy in meeting Rule 30(d)'s requirements 
- 64 -

to provide the trial court with specific notice of an asserted 

instructional error. See United States v. Grote, 961 F.3d 105, 

115 (2d Cir. 2020) (an objection prior to jury charge is not 

forfeited if "taking further exception under the circumstances 

would have been futile" (quoting United States v. Rosemond, 841 

F.3d 95, 107 (2d Cir. 2016)); United States v. Russell, 134 F.3d 

171, 178 (3d Cir. 1998) ("[T]he crux of Rule 30 is that the district 

court be given notice of potential errors in the jury instructions, 

not that a party be 'required to adhere to any formalities of 

language and style to preserve his objection on the record.'" 

(quoting United States v. O'Neill, 116 F.3d 245, 247 (7th Cir. 

1997)); United States v. Hollinger, 553 F.2d 535, 543 (7th Cir. 

1977) ("[S]pecific and distinct objections voiced in an earlier 

instructions conference held in the presence of a court reporter 

will be considered timely under [Rule 30(d)] . . . . [W]e shall 

henceforth allow counsel to incorporate [objections] by 

reference."); United States v. Kessi, 868 F.2d 1097, 1102 (9th 

Cir. 1989) (parties need not object following the instructions if 

doing so would be a "pointless formality"); United States v. 

Kottwitz, 614 F.3d 1241, 1270 (11th Cir. 2010) (objection is 

preserved so long as it is "sufficient to give the district court 

the chance to correct errors before the case goes to the jury"), 

opinion withdrawn in part on denial of reh'g on other grounds, 627 

F.3d 1383 (11th Cir. 2010); see also United States v. McDonnell, 
- 65 -

792 F.3d 478, 504 & n.15 (4th Cir. 2015) (noting that the appellant 

objected at a pre-charge conference and should have repeated his 

objection after the instructions were delivered, but still 

applying harmless error review, rather than plain error), vacated 

on other grounds, 136 S. Ct. 2355 (2016);18 United States v. 

Bornfield, 184 F.3d 1144, 1146 (10th Cir. 1999) (stating that a 

party is "obligated to object on the record before the jury retired 

to preserve his objection for appellate review" and acknowledging 

that the objection might properly occur at a pre-charge 

conference).

That flexible approach not only fulfills the notice 

purpose of Rule 30(d), but it also aligns with our forfeiture 

doctrine more broadly. Issues not raised in the trial court are 

deemed forfeited, and subject to plain error review on appeal, to 

prevent a party from wasting judicial resources and undermining 

finality by "sandbagging" the court. See Puckett v. United States, 

556 U.S. 129, 134 (2009) ("[T]he contemporaneous-objection rule 

18 Indeed, on further review, the Supreme Court also applied 

a harmless error analysis and vacated the conviction on the ground 

that an error in the jury instructions was not harmless. See

McDonnell, 136 S. Ct. at 2375. The Supreme Court did not comment 

on the timing requirements of Rule 30(d) or explicitly affirm a 

flexible application of the rule. Although McDonnell is not 

binding intervening precedent that would require us to abandon our 

current rule, see United States v. Walker-Couvertier, 860 F.3d 1, 

8 (1st Cir. 2017), it does give tacit approval to review for 

harmless error rather than plain error when an appellant objected 

at a pre-charge conference but not after the instructions were 

delivered. 
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prevents a litigant from 'sandbagging' the court -- remaining 

silent about his objection and belatedly raising the error only if 

the case does not conclude in his favor."); United States v. 

Correa-Osorio, 784 F.3d 11, 22 (1st Cir. 2015) (stating that the 

plain error rule "(hopefully) deters unsavory sandbagging by 

lawyers (i.e., their keeping mum about an error, pocketing it for 

later just in case the jury does not acquit) and gives judges the 

chance to fix things without the need for appeals and new trials"). 

Our obsolete interpretation of Rule 30(d) does nothing to prevent 

"sandbagging." Where, as in this case, a defendant files a written 

request for an instruction, and argues for that request at a 

charging conference, he is not "sandbagging" when he raises that 

same issue on appeal. He has clearly brought the issue to the 

trial court's attention and given the court an opportunity to 

correct the instructions. 

Indeed, from a practical standpoint, an objection made 

during a charging conference, before the instructions have been 

delivered, should be preferred to a post-charge objection. The 

earlier notice provides more timely opportunity for the court to 

correct any errors. See Hollinger, 553 F.2d at 542-43 

("Ordinarily, trial judges will derive considerable benefit from 

a serious exchange of views by opposing counsel regarding the 

proper formulation of the applicable rules of law before they must 

charge the jury."). In addition, when a request regarding jury 
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instructions has been discussed in detail at a charging conference, 

and the court has ruled, there is no advantage to anyone for 

lawyers to persist with the same objection. To the contrary, such 

persistence can be awkward for counsel and off-putting for the 

court. See United States v. Toribio-Lugo, 376 F.3d 33, 41 (1st 

Cir. 2004) ("To do her job, a lawyer must be forceful, but she 

also must handle her relationship with the presiding judge with 

care."); United States v. Kelinson, 205 F.2d 600, 601-02 (2d Cir. 

1953) ("[Rule 30(d)] does not require a lawyer to become a 

chattering magpie.").

Importantly, I am not suggesting that a party's failure 

to lodge an objection after the court has delivered the jury charge 

should never result in forfeiture of the claim on appeal. 

Inevitably, some pre-charge objections will be insufficiently 

specific, or inadequately explained, and will therefore not 

fulfill the notice objective of Rule 30(d). But Rule 30(d) does 

not require us to demand pointless repetition of objections that 

were distinctly raised and decisively denied. 

In short, our court's outdated, inflexible approach to 

Rule 30(d) neither advances the purpose of the rule nor serves the 

interests of justice and, hence, it poses an unjustifiable barrier 

to plenary appellate review of fully preserved objections. We 

should replace our outmoded instructional-error doctrine with the 

flexible approach that -- for good reason -- is now the prevailing 
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view. In other words, like our sister circuits, we should 

recognize that a pre-charge objection may preserve a jury 

instruction issue for appellate review if the objection was 

sufficiently specific to give the trial court notice of the claimed 

error and repetition of the objection post-charge would be a futile 

exercise. 

- Concurring Opinion Follows -
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BARRON, Circuit Judge, concurring. I share the concern 

that Judge Lipez expresses about the way that our precedent 

currently requires us to construe Rule 30(d) of the Federal Rules 

of Criminal Procedure. The text of the rule, his concurrence 

points out, does not compel the rigid procedure for preserving 

objections to jury instructions that our case law requires. There 

may often be benefits to voicing objections to instructions after 

the charge to the jury has been given. But, they are not manifest 

in every case. Indeed, the case at hand exemplifies the point. 

The sole ground that the District Court gave at the charging 

conference for denying the requested instruction here was that the 

evidence developed at trial had failed to provide a factual basis 

for giving it. Nothing about the charge itself could have called 

that ruling into question. Yet, our precedent still requires that 

we treat this defendant's failure to seek reconsideration of that 

ruling as if it were a failure to have requested the instruction 

at all. See United States v. Baltas, 236 F.3d 27 (1st Cir. 2001). 

- Dissenting Opinion Follows -
- 70 -

KAYATTA, Circuit Judge, dissenting.

The majority's analysis hinges crucially on the 

assertion that, as to the matter of predisposition, this case is 

so like Hinkel and Gamache that the need for an entrapment 

instruction was "clear or obvious." Respectfully, I cannot see 

how this is so in this case. 

Here is what Hinkel said when he first learned that a 

15-year-old was involved: "Sounds very naughty. I am concerned 

about her age since legally she should be 16 or older." It then 

took a month before the continued enticement ripened into a planned 

meeting. Here, by contrast, is what Pérez said upon first learning 

that an eleven-year-old was involved: "Mmmm yes." Within three 

days Pérez was messaging, "I want your boyfriend." And within 

five days from the first message, the meet was on.

There is more. Hinkel offered affirmative evidence that 

he had never sought a relationship with someone not of legal age. 

Pérez offered no such evidence. Rather, when the agent asked Pérez 

at the outset of their communications "what age do you like?," 

Pérez replied, "The younger the better. I don't discriminate. I 

started at 8. Hehehe. So you tell me." And when asked "do you 

like really young guys?," he replied: "Yes. Age? I started 

at 8." So while Hinkel was saying he never even looked for sex 

with a minor, Pérez was highlighting a nondiscriminatory track 
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record. And he was clearly saying in context that eight years old 

was not too young.

Gamache is even further removed. The defendant in 

Gamache initially expressed interest solely in an adult 

relationship. Only after "the Government's insistence and artful 

manipulation" over the course of eight months did he become ready 

to meet the supposed victims, and even then he was saying "this 

will be a new experience for me." United States v. Gamache, 156 

F.3d 1, 6, 10 (1st Cir. 1998). Pérez, conversely, expressed eager 

interest immediately. And unlike Hinkel and Gamache, he offered 

no evidence suggesting a lack of predisposition. 

The majority's effort to avoid the stark predispositional admission by Pérez at the very outset of his 

exchanges with the agent warrants particular scrutiny. Ignoring 

Pérez's express assurance that he likes them the "younger the 

better," all the majority can do is claim that there is some 

ambiguity about what the agent meant when he subsequently referred 

to his own age. And the majority's claim that it is not obvious 

what Pérez was saying is twice-flawed: It certainly seems obvious 

he was indeed saying he likes them "the younger the better;" and, 

in any event, I do not see how it was possibly plain error for the 

trial court to have read Pérez's statement exactly as I do, i.e., 

as a frank, un-coaxed profession of the precise predisposition at 

issue. And since there is zero contrary evidence, I simply cannot 
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see how it was also plain error to conclude that Pérez failed to 

generate a sufficient claim of entrapment to get to a jury. See

Gamache, 156 F.3d at 9 ("The defendant carries the initial burden 

of producing some evidence of both the Government's improper 

inducement, and the defendant's lack of predisposition to commit 

the alleged offense, so as to 'raise a reasonable doubt as to 

whether he was an unwavering innocent rather than an unwavering 

criminal.'" (quoting United States v. Joost, 92 F.3d 7, 12 (1st 

Cir. 1996)) (second emphasis added)); see also id. ("[T]he court's 

function is to examine the evidence on the record and to draw those 

inferences as can reasonably be drawn therefrom, determining 

whether the proof, taken in the light most favorable to the defense 

can plausibly support the theory of the defense." (first emphasis 

added)).

The bottom line is that the majority significantly errs 

in comparing Hinkel and Gamache to this case by noting the 

similarities while ignoring or downplaying the very material 

differences. The resulting reasoning is like saying apples and 

oranges are clearly and obviously the same because they both grow 
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on trees in orchards. I would rule that it was not clear or 

obvious that an entrapment instruction was required in this case.19

19 I do agree, however, with my colleague's concurrences that 

we should revisit our rule on preserving objections to jury 

instructions. As ably explained, our rule is not derived from the 

text of Rule 30(d), no longer fits practice, and is apt to produce 

unfair results. I also agree with Part V of the majority opinion.