United States Court of Appeals

For the First Circuit

No. 19-1732

UNITED STATES OF AMERICA,

Appellee,

v.

CHRISTOPHER SAEMISCH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Thompson and Lipez, Circuit Judges,

and Torresen,

 District Judge.

Zainabu Rumala for appellant.

Donald C. Lockhart, Assistant United States Attorney,

with whom Nathaniel R. Mendell, Acting United States Attorney, and 

Jordi de Llano, Assistant United States Attorney, were on brief, 

for appellee.

November 17, 2021

 Of the District of Maine, sitting by designation.
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TORRESEN, District Judge. Defendant-Appellant 

Christopher Saemisch was convicted by a jury of one count of 

knowingly distributing child pornography, in violation of 18 

U.S.C. § 2252A(a)(2)(A). Saemisch's case arose from a ruse 

crafted by his prison pal, Dmitry Bron, which resulted in Saemisch 

sharing his collection of images of child sexual abuse1 with Bron. 

But because Bron was working with law enforcement, Saemisch was 

promptly arrested after he sent the unlawful images to an email 

address controlled by agents from Homeland Security Investigations 

("HSI").

At trial, Saemisch tried to pursue an entrapment defense

on the theory that Bron pressured and manipulated Saemisch into 

sending him the unlawful images. In an effort to meet his burden 

of production to put that defense before the jury, Saemisch sought 

to introduce the testimony of Dr. Robert Weiss, a therapist and 

relationship specialist with a specialty in sex addiction. The 

district court concluded that Dr. Weiss's testimony was not 

relevant to Saemisch's defense and granted the Government's motion 

to exclude Dr. Weiss. Saemisch now challenges that ruling, 

arguing that the district court erred not only in excluding Dr. 

1 Although the statutory language speaks in terms of "child 

pornography," as defined in 18 U.S.C. § 2256(8), we use the term 

"images of child sexual abuse," unless we are directly referring 

to the statute, because we believe it more aptly describes the 

images depicted. 
- 3 -

Weiss's testimony, but also in failing to allow a testimonial 

proffer from Dr. Weiss before doing so. Seeing no error, we 

affirm.

I. Factual Background

In 1997, Saemisch pleaded guilty in the United States 

District Court for the Northern District of California to various 

child exploitation offenses. Among other things, Saemisch helped 

produce images of sexual abuse of a ten-year-old child, and he 

sexually abused a five-year-old child named Akina. Saemisch's

involvement in that offense also included his use of an online 

chat room called the Orchid Club in which members exchanged images 

of child sexual abuse and discussed their sexual interest in 

minors. While in prison for that offense, Saemisch met Bron, who 

also had been convicted of various child exploitation offenses.

In 2012, Saemisch was released from prison. Bron, 

having been sentenced to a substantial term of imprisonment, 

remained incarcerated, but the two remained in touch, primarily 

through email.2 Their initial communications were benign, but in 

early 2016, Bron steered the conversation towards child sexual 

abuse. Saemisch took the bait, and so began two months of illicit 

conversation between Bron and Saemisch about child molestation; 

2 Federal inmates can email individuals on an approved 

list through a Bureau of Prisons-run email system.
- 4 -

production, possession, and distribution of images of child sexual 

abuse; and sex trafficking.

Saemisch and Bron exchanged numerous, lengthy, and 

graphic emails in thinly disguised code that allowed them to pass 

undetected by prison authorities. For example, images of child 

sexual abuse are discussed as "antiques," and children are referred 

to as "puppies" or "vehicles."3 The evolution of these emails, 

Bron's and Saemisch's level and degree of participation in these 

messages, and the timing of these communications are all important. 

We thus reproduce some of the most relevant communications and 

summarize others.4

A. Bron and Saemisch's Email Communications

The first relevant communications begin on February 26, 

2016, when, after Saemisch mentions that he is considering a 

vacation in Eastern Europe, Bron responds that he knows a Ukrainian 

guy who could "provide Akina type entertainment [for] about 200"

dollars. The next day, February 27, 2016, Saemisch asks if Bron

is "serious about the Akina entertainment." Discussion about the 

potential trip to Ukraine continued, and on March 2, Saemisch tells

Bron that he is interested in going to Ukraine, asks Bron for 

3 The Defendant has never disputed the meaning of these 

coded words.

4 All typographical errors in these communications are in 

the originals.
- 5 -

advice about logistics, and tells Bron that he is going to start 

looking at flights. Saemisch also talks about "set[ting] up a dog 

training school" and how he hopes Bron's friend "has younger dogs." 

Consistent with his stated intent to travel to Ukraine, on March 

7, 2016, Saemisch searched for two apps in the Google Play store: 

Packing Pro (which helps with packing for a trip) and Entrain 

(which helps with jet lag).

Interspersed among the conversations about traveling to 

Ukraine for "Akina-type entertainment" are discussions about

collecting and distributing images of child sexual abuse. On 

February 27, 2016, less than twenty-four hours after Bron's first 

mention of Akina, Saemisch tells Bron that he sees "stuff from 

your production company all the time. Your work is still out 

there." Saemisch also recommends that Bron "look up Orchid Club"

the next time he is in "the law library," and Saemisch offers to 

"dig it up again and print it and send it to you." In the next 

email, also on February 27, Bron states: "I assume from your 

message that you still collect antiques," and asks Saemisch whether 

he "still do[es] woodworking" himself. Saemisch responds that he 

is "just a bystander" in "the antique business" but that "the 

markets are exploding."

Just three days after Bron mentions Akina, on February 

29, 2016, Saemisch tells Bron: "I am not currently refinishing 

furniture. I prefer to trade antiques online, no hands on. 
- 6 -

Current technology makes it so easy to access a plethora of high 

quality antiques with crystal clear presentations. Business is 

booming." On March 2, 2016, Saemisch tells Bron:

As far as my antique collection my warehouse 

is the equivalent of about 30 GB's. Easy 

acquisitions with cloud storage. If the 

antique dealers have the same cloud storage, 

then a click of the button- and their 

inventory is now in your storage. Instantly. 

No wait time. In fact, 25 GBs did happen that 

way, instantly. Pretty much all newer 

acquisitions, the old presentations are almost 

laughable compared to the new presentations. 

Nearly all presentations are video, from a few 

minutes, to over an hour apiece. It's the 

best way for a collector to know the exact 

condition of the antiques. I have not spent 

hardly any time working at this, so I would 

have much more if I actually worked at it. 

But I'm a cheap skate over 50 GBs storage cost 

money per month. But 1, 2, 3 terrabites are 

available. One antique dealer offered a 

terabite trade.. But again I'm kinda cheap......

Hope this helps. But the opportunities and 

possibilities are endless...... As with all 

business now days, there is no need to carry 

anything with you. You simply log on and 

presto, all is there. Secure sites, with 

encryption, keep businesses from being hacked.

On March 3, Saemisch tells Bron how concerned he is about 

security and how he uses a Virtual Private Network ("VPN") to hide 

his Internet Service Provider ("ISP"), as well as an encrypted 

email server. As Saemisch put it in a later email, he had "a lot 

of learning to do" when he first got out of prison. Saemisch also 

tells Bron that he uses an online videochat platform to "find 

people with similar interests" and that he has one person in 
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Germany with whom he chats. Saemisch tells Bron that he and his 

German acquaintance "entertain each other for hours."

On March 15, Bron initiates a conversation with Saemisch 

about sex trafficking. Bron tells Saemisch that his friend in 

Ukraine can "accommodate renting an Antique Akina vehicles" and 

that there are "premium vehicles" available in different "model 

years." He also mentions that "a long term contract" would be 

about $400 per week. Saemisch responds that he is interested but 

concerned about the price. In response, Bron pivots and says the 

price would be $400 per month, not per week. Relieved, Saemisch 

comments that he "thought $400 was way too high, even by American 

standards let alone Ukrainian Standards. Glad to hear about the 

correction." And Saemisch tells Bron that that corrected price 

was "Ok."

Discussion about the Ukrainian trip progressed, and 

Saemisch tells Bron that he is "interested in cars 2008 to 2011 or 

even 2012" but opines that "production was best in 2010 and 2011." 

And he makes clear to Bron that his primary goal for Ukraine is to 

produce images of child sexual abuse.

During this same time period, Saemisch also begins to 

tell Bron about his exploits trading images of child sexual abuse 

online. On March 5, he tells Bron how there are "[m]any sites to 

advertise your products," that it is "[e]asy to sign up and post 

generic offerings," and that he uses a Russian site where "[t]hey 
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contact you and offers are made to trade links." On March 11, 

Saemisch tells Bron that "business has been booming, doubled in 

size over the last few days." On March 21, Saemisch tells Bron 

how he finds it "fun to share similar interests even if this side 

business is not making me a lot of money," how he thinks "you have 

to give in order to receive," and how "[t]hrough the years I've 

wanted to show off the cars I've had."

On April 4, Bron begins to plant the seeds for the sting 

operation that would ultimately ensnare Saemisch, telling Saemisch 

that "Nanny" (a pseudonym for Bron)5 was getting a smartphone. 

Saemisch then responds: "Well if you're going to be in contact 

with our old friend nanny I might have some information I want to 

pass on to you concerning the business and it ought to keep him 

pretty occupied as well." Saemisch continues: "[W]hat I could do 

for [Nanny] is show him what I have been up to by having him go to 

a Dropbox account that I will set up." This is the first time 

either Saemisch or Bron discusses sending images of child sexual 

abuse to Bron.

A few days later, on April 8, Saemisch offers to give 

Bron "a tour of my warehouses" and to give him "a general idea of 

the business." He also explains to Bron how he rates and organizes

part of his repository of images of child sexual abuse. And he 

5 This is a reference to Bron's online moniker (nanny69) 

from before he was incarcerated.
- 9 -

tells Bron that he plans to "set up a dropbox for nan" and that 

Bron will "never be the same." In the course of this discussion, 

Saemisch also tells Bron about an email he got from "a Russian"

asking to send "your collection" and how he sent the Russian "a 

link."

On April 15, Saemisch emails Bron, as had now become 

routine, but the tone of this communication has changed from 

Saemisch's usual excitement to one of apprehension. Saemisch 

tells Bron that HSI has contacted the mother of the children he 

babysits. He mentions that he is "taking the usual precautions"

and then signs off: "Hope you keep hearing from me...:/."

In this same vein, the following day, Saemisch again 

reaches out to Bron, expressing concern about being caught by law 

enforcement and crafting a rudimentary metaphor to explain the 

steps he is taking to cover his tracks:

I know Nan will be disappointed, but I think 

sailing may be in order now. Its been real 

windy lately. I want to stay ahead of the 

tail winds, lest the boat take a beating. 

Winds get so strong, you have to throw excess 

weight overboard. You can replace those items 

at the next port, but you have to get to the 

port first.. The clouds will disappear until 

the storm passes. Then damage from the winds 

can be repaired. It won't be the first time 

I've started over. Don't worry, if I come 

through this, you will be greatly rewarded. 

I've always saved a little for rainy days. 

All will not be lost.
- 10 -

Nevertheless, after a few tense days, it appears that 

Saemisch is under the impression that the law enforcement threat 

has mostly passed, telling Bron that his computer is up and 

running. He continues: "Tell Nan to set up an email. I'm ready 

to blow him away whenever he is ready." Bron then follows up with 

a request for a "nice long tour" with the "[s]ame details as 

before," but Saemisch does not engage with this request.

On April 22, Saemisch tells Bron that he is "still laying 

low" since he knows he is still under investigation, and he tells

Bron that "[o]nce nan transfers everything over to his hive, I may 

shut mine down and let him be the keeper of the bees. Then he can 

send me his logon info." In the course of this same conversation, 

after Saemisch tells Bron that he has not had sex in twenty years, 

Bron asks whether it is because Saemisch is only sexually 

interested in "puppies." Saemisch responds: "puppies is at the 

top of the list."

On May 1, Saemisch gives Bron some final instructions to 

prepare to receive Saemisch's collection of images of child sexual 

abuse. He tells Bron: "Have nan set up an email account as links 

are long strings and easier to cut and paste, might be able to cut 

and paste into and out of Kik [an instant messaging app], so that 

could be an option."
- 11 -

B. The Sting Operation

All this time, Bron had been creating a ruse. His 

discussion of his friend and the trip to Ukraine were made up. He 

was setting a trap for Saemisch, because at the same time Bron was 

reeling in Saemisch, he was reaching out to law enforcement. On 

February 28, 2016, Bron wrote a letter to his attorney outlining 

the idea for the ruse. Bron's attorney passed the letter on to 

an HSI agent in Las Vegas,6 who contacted Special Agent Christopher 

Diorio in Massachusetts sometime in late March. HSI first met 

with Bron on April 13, 2016. That day was the first time that the 

Government learned about Bron's emails and the ruse that he had 

crafted, and the investigation was officially opened shortly 

thereafter. The agents then met with Bron for a second time on 

April 19.

On May 3, 2016, Bron and the Government7 initiated a 

conversation with the Defendant via Kik. What follows is an 

abridged version of the conversation:

Bron/Government: What's up smashy[8]

6 The Defendant tried to admit this letter into evidence 

but was not successful, so it is not part of the record. While 

the exact date is not clear from the record, Bron's attorney first 

contacted HSI at some point in March 2016.

7 Special Agent Diorio testified that he wrote some of the 

Kik messages and Bron wrote others. But he made clear that none 

of the messages were sent without his approval.

8 "Smashy" is one of Bron's nicknames for Saemisch.
- 12 -

Bron/Government: This is nanny 69

 Respond

. . . .

Saemisch: [I]f you have an email I will send 

you links

Bron/Government: Nan.Nanny2020@gmail.com

. . . .

Saemisch: Try to go to proton.com and see if 

you can go ahead and set up a secure 

email account

. . . .

Saemisch: [W]hen we are done for the evening 

you can go up in the upper right 

hand corner and delete this chat

. . . .

. . . .

Saemisch: I will send you a whole bunch of 

links and even attachments if you 

want. Don't get bogged down with 

any one link right now. I would 

just go through and see which ones 

you can immediately access without 

having to download individual 

files. The last two links are mine 

the rest were links sent to me I can 

also forward some attachments I 

don't even know what they are just 

stuff people sent me to get started 

on Trading

Saemisch: But Gmail is not secure

Bron/Government: Nanny69@protonmail.com just

 finished send it all

Saemisch: Just sent you an estimated hundred 

gigs of links
- 13 -

Saemisch: Again the last two links are mine 

and the others are open right now 

but possibly could close at any time 

so if there's stuff you really like 

you might want to download those 

first I don't know next thing to do 

is to go to Mega NZ and open up an 

account

. . . .

Saemisch: Be sure to delete chat upper

right-hand corner

. . . .

Saemisch: Your welcome and you'll see some of 

that have 4-star and 5-star folders 

those are mine that I've sorted so 

those are the good ones to start 

with

During this conversation, Saemisch sent to Bron (and the 

Government) five emails containing attachments of, and links to, 

images and videos of child sexual abuse. Some of these links were 

to a cloud storage service, mega.nz, where images and videos of 

child sexual abuse were stored.

C. Saemisch's Other Exploits

In addition to evidence already discussed, the record 

contains evidence of Saemisch's contemporaneous activities that 

shows Saemisch's emails accurately reflected his thoughts and 

behaviors. For example, on February 4, 2016, three weeks before 

Bron first mentioned Akina, Saemisch searched for VPNs in the 
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Google Play store.9 And on February 18, more than a week before 

Bron first mentioned Akina, Saemisch conducted a search for 

mega.nz, the cloud storage service that he later instructed Bron 

to use. 

One of the videos of child sexual abuse that Saemisch 

shared with Bron (and HSI) on mega.nz on May 3 was also found on 

a thumb drive in Saemisch's yard. The video file on that thumb 

drive was created on February 14, 2016, almost two weeks before 

Bron's first mention of Akina. It thus appears that Saemisch 

obtained this video file (from an unknown source) no later than 

February 14.

The Government also presented evidence at trial that 

Saemisch was exchanging images of child sexual abuse with other 

individuals besides Bron. On March 20, 2016, Saemisch sent the 

following email to traderrmann@gmail.com: "I would be interested 

in knowing what you would like to trade. Send samples." Saemisch 

sent that email two weeks before he and Bron first discussed 

sending images of child sexual abuse to Bron. Then, on April 4, 

2016, Saemisch sent an email to a German email address (childnaked@gmx.de) saying: "I would be interested in knowing what you 

would like to trade. Send samples."

9 Recall that Saemisch told Bron on March 3 that he used 

a VPN to hide his ISP. 
- 15 -

The record also contains evidence that Saemisch was 

babysitting four young children between the ages of seven and 

eleven before Bron first mentioned Akina. Saemisch discusses 

these children in his emails to Bron with some frequency. While 

these portions of the emails are largely redacted in the record, 

there is enough in them to make clear that Saemisch was grooming 

the children and was focusing in on one in particular.

II. Procedural Background

Prior to trial, the Government moved in limine to 

preclude the Defendant from asserting an entrapment defense 

"absent a sufficient proffer of how he intend[ed] to satisfy his 

burden of demonstrating its applicability." The district court 

granted that motion, finding that "the defendant ha[d] not adduced 

'hard evidence' showing that he was 'not predisposed to commit the 

crime,' a necessary prerequisite to the assertion of an entrapment 

defense." (quoting United States v. Vasco, 564 F.3d 12, 18 (1st 

Cir. 2009)).

On March 3, 2019, the Defendant provided an "amended 

summary of expert testimony" that he expected to elicit at trial 

from Dr. Robert Weiss (the "expert disclosure letter"). Dr. Weiss 

is a therapist and relationship specialist with an expertise in

sex addiction, compulsivity, and digital age sex addiction. The 

Defendant offered that Dr. Weiss would testify about "how the human 

brain responds to addictive stimuli" and "that portions of the 
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brain become triggered when the topic of a person's addiction is 

raised." It was also expected that he would testify about "how a 

person feels when that portion of the brain is triggered" and about 

"the social isolation faced by individuals who suffer from 

behavioral addiction and their specific vulnerability to 

triggering stimuli." The Defendant made clear that he did not 

intend to elicit any opinions about Saemisch specifically, since

Dr. Weiss did not evaluate or test Saemisch. Rather, it was 

expected that Dr. Weiss would testify based on his research, 

writing, and education in the area of behavioral addictions.

Prior to the cross-examination of the Government's final 

witness, the district court concluded that the Defendant's pursuit 

of an entrapment defense was "fruitless" because there was no 

possible view of the evidence that would support the "predicate 

conclusion that there was an absence of predisposition." 

Referring to the emails between Bron and Saemisch, the district 

court found it "abundantly clear" that the "predicate had not been 

established for an entrapment defense."

The district court went on to indicate that, based on 

the expert disclosure letter, it did not consider Dr. Weiss's

testimony to be relevant. The Defendant argued that Dr. Weiss's

testimony would help to prove that "but for the informant's choices 

to set up this entire ruse, that Mr. Saemisch may not have engaged 

in the one criminal act that he is actually charged with." The 
- 17 -

district court was unpersuaded and excluded Dr. Weiss's testimony. 

The district court indicated that it made the ruling when it did 

so that the Defendant could adjust any cross-examination and 

presentation of direct evidence with the understanding that the 

entrapment instruction would not be given.

The Defendant subsequently asked the district court to 

reconsider its ruling and to allow him to present a "testimonial 

offer of proof outside of the presence of the jury" of Dr. Weiss's

testimony. The district court denied this request and concluded 

that the expert disclosure letter was a sufficient proffer of Dr. 

Weiss's testimony.

Finally, before resting, the Defendant sought 

clarification of the district court's ruling as to Dr. Weiss. The 

Defendant indicated that Dr. Weiss's testimony about how someone 

with a sex addiction could be triggered by exposure to content 

related to the addiction was also relevant to how those 

communications would have affected Bron (as a diagnosed pedophile) 

and to the propriety of the Government's use of Bron as a 

cooperating source. The district court pointed out that how Bron 

would have been affected by the communications occurring 

throughout the ruse was both outside the Defendant's earlier 

proffer and was also excludable on the basis that, just as Dr. 

Weiss could not testify to Saemisch's individual situation, he 

also could not speak to Bron's personal situation.
- 18 -

Saemisch was ultimately convicted of knowingly 

distributing child pornography, and on July 16, 2019, the district 

court sentenced him to 360 months in prison. Saemisch timely 

filed this appeal.

III. Discussion

It is against the backdrop detailed above that we review 

Saemisch's arguments to us on appeal. The Defendant contends that 

he was entitled to a jury instruction on the defense of entrapment 

and that the district court limited his opportunity to present 

this defense when it did not allow him to present a testimonial 

proffer from his proposed expert witness and ultimately excluded 

the testimony of his proposed expert altogether. Saemisch does 

not spend much time arguing he was ultimately entitled to the 

instruction on entrapment, and so, following his lead, we focus on 

his two-pronged evidentiary attack. We review the district 

court's evidentiary decisions for abuse of discretion. See United 

States v. Jadlowe, 628 F.3d 1, 23 (1st Cir. 2010).

A. Defendant's Efforts to Proffer Dr. Weiss's Testimony

We begin with the Defendant's contention that it was 

error for the district court to refuse the Defendant's request to 

conduct a testimonial proffer of Dr. Weiss. To preserve a claim 

of error in a ruling to exclude evidence, a party need only inform

the court of the substance of the evidence by an offer of proof. 

Fed. R. Evid. 103(a)(2). "[A]n effective offer of proof enables 
- 19 -

the trial judge to make informed decisions based on the substance 

of the evidence." United States v. Adams, 271 F.3d 1236, 1241 

(10th Cir. 2001). So long as a party has been allowed to provide 

sufficient substance of the proposed testimony to enable the trial 

judge to make an informed decision about the admissibility of the 

evidence, the decision to forgo a testimonial proffer is within 

the district court's broad discretion. See United States v. 

Fosher, 590 F.2d 381, 382–84 (1st Cir. 1979) (affirming district 

court's decisions to forgo testimonial proffer and to exclude 

expert testimony about the reliability of eyewitness 

identification and concluding that district court "was entitled to 

rely upon the representations made in the written" description of 

the expert's testimony). The expert disclosure letter provided a 

relatively detailed exposition of the information about which Dr. 

Weiss could (and could not) testify. And it provided sufficient 

information for the district court to be able to assess the 

relevance of his testimony.

While the Defendant contends that a more detailed 

testimonial proffer was necessary, he has failed to identify any 

additional factual information that was purportedly lacking from 

the expert disclosure letter, either in the district court or on 

appeal.10 There is nothing to indicate that the district court 

10 At oral argument, when asked what more Dr. Weiss would 

have offered had his testimony been proffered, the Defendant 
- 20 -

lacked sufficient information to make its ruling or that the 

district court was missing any material information about Dr. Weiss

before granting the Government's motion to exclude his testimony. 

Thus, the district court did not err in declining the Defendant's

request for a testimonial proffer of Dr. Weiss.

B. Exclusion of Dr. Weiss's Testimony

We next consider whether the district court erred by 

excluding Dr. Weiss's testimony. 

contended that Dr. Weiss would have testified to the difference 

between predisposition and addiction. We are skeptical that this 

is a distinction that Dr. Weiss would have been permitted to draw, 

because predisposition is a legal concept that would have been 

beyond Dr. Weiss's purview. While he could have offered factual 

information that might lead to the conclusion that Saemisch was 

not predisposed, testifying as to whether addiction constitutes 

predisposition for purposes of an entrapment defense would have 

crossed the line. See United States v. Powers, 702 F.3d 1, 13–14 

(1st Cir. 2012) ("It is for the judge, not the lawyers or the 

witnesses, to inform the jury of the law applicable in the case." 

(quoting Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 100 (1st 

Cir. 1997))). Further, it was clear from the thrust of the expert 

disclosure letter and the Defendant's accompanying argument that 

Dr. Weiss intended to try to draw this distinction in his 

testimony. It is thus evident that, prior to excluding Dr. Weiss's 

testimony, the district court already knew that Dr. Weiss was being 

offered to testify about the effect that a sex addiction would 

have on Saemisch's predisposition to commit the crime of 

distributing child pornography. 

The Defendant also pointed out at oral argument that a 

testimonial proffer would have allowed for follow-up questions, 

but the Defendant has not identified anything substantive that a 

follow-up question may have elicited. Accordingly, we do not see 

what value the ability for counsel or the district court to ask 

follow-up questions would have added. 
- 21 -

1. Legal Background

"Entrapment occurs when the criminal design originates 

with the" government, which "implant[s] in the mind of an innocent 

person the disposition to commit the alleged offense and induce[s] 

its commission." United States v. Dávila-Nieves, 670 F.3d 1, 9 

(1st Cir. 2012) (quoting United States v. Gamache, 156 F.3d 1, 9 

(1st Cir. 1998)). "The defense of entrapment has two elements: 

(1) government inducement of the accused to engage in criminal 

conduct, and (2) the accused's lack of predisposition to engage in 

such conduct." United States v. Rodriguez, 858 F.2d 809, 812 (1st 

Cir. 1988). 

"'Inducement' exists when the governmental deception or 

instigation actually implants the criminal design in the 

defendant's mind." Gamache, 156 F.3d at 9. "[M]erely provid[ing] 

an opportunity to commit a crime" is not improper inducement, 

although "proof of opportunity plus 'something else' may be 

adequate to meet a defendant's burden" to prove inducement. Id. 

"Examples of such 'government overreaching' include 'excessive 

pressure by the government upon the defendant or the government's

taking advantage of an alternative, noncriminal type of motive.'" 

United States v. Hinkel, 837 F.3d 111, 117 (1st Cir. 2016) (quoting 

United States v. Gendron, 18 F.3d 955, 961–62 (1st Cir. 1994)). 

"[M]ultiple solicitations of a defendant do not necessarily equal 

improper inducement." Dávila-Nieves, 670 F.3d at 10. "It is also 
- 22 -

important to distinguish between initiating contact with someone 

versus suggesting that they commit a crime." Id. at 11.

Predisposition is "the principal element in the defense 

of entrapment" and "focuses upon whether the defendant was an 

unwary innocent or, instead, an unwary criminal who readily availed 

himself of the opportunity to perpetrate the crime." Mathews v. 

United States, 485 U.S. 58, 63 (1988) (internal quotation marks 

omitted). "[A] defendant predisposed to commit [a] crime should 

not get off merely because the government gave the defendant too 

forceful a shove along a path that the defendant would readily 

have taken anyway." United States v. Acosta, 67 F.3d 334, 337–38 

(1st Cir. 1995).

The question, then, is whether the "defendant would have 

been likely to commit the same crime without the undue pressure 

actually exerted." Id. at 338. This inquiry focuses on the 

defendant's predisposition before contact with the government. 

Gamache, 156 F.3d at 12. "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." United States v. 

Pérez-Rodríguez, 13 F.4th 1, 18 (1st Cir. 2021). 

"In evaluating the question of whether the defendant was 

predisposed, the factfinder must . . . 'assume away . . . the 
- 23 -

present circumstances insofar as they reveal government 

overreaching.'" Id. at 20 (quoting Gendron, 18 F.3d at 962). If 

there was no improper inducement, this task is an easy one, since 

we already know "how the defendant would respond to 'an ordinary 

opportunity to commit the crime' and any further analysis of 

predisposition is unnecessary." Id. (quoting Gendron, 18 F.3d at 

962). "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." Id.

Factors to be considered in assessing whether a 

defendant was predisposed to commit a crime include: "(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 
- 24 -

will often be relevant to both prongs." Pérez-Rodríguez, 13 F.4th 

at 18. 

The defendant has the "modest burden of production" to 

introduce evidence supporting both prongs of the defense and 

thereby "make[] the entrapment theory 'plausible' or 

'superficially reasonable.'" Id. at 18–19 (quoting Gamache, 156 

F.3d at 9); accord Rodriguez, 858 F.2d at 814 ("[T]here must be 

some hard evidence in the record which, if believed by a rational 

juror, would suffice to create a reasonable doubt as to whether 

government actors induced the defendant to perform a criminal act 

that he was not predisposed to commit.").11 "[T]his is not a very 

high standard to meet." Pérez-Rodríguez, 13 F.4th at 19 (quoting 

Gamache, 156 F.3d at 9). Moreover, the two prongs "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." Id. at 20.

11 We note that, to meet that burden, "[a] defendant does 

not need to introduce his own evidence" and "may rely on 'evidence 

adduced during the government's case' or 'any probative material 

in the record.'" Pérez-Rodriguez, 13 F.4th at 19 (quoting 

Rodriguez, 858 F.2d at 813). The "'probative material'" may 

include the absence of evidence in the government's case that the 

defendant had previously engaged in the kind of conduct underlying 

the charges. See id. at 21 ("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."). Of 

course, in this case, there is abundant evidence of such prior 

conduct.
- 25 -

There is no exact quantum of evidence required for the 

defendant to meet this "modest burden," but it is not enough for 

the defendant to prove "mere solicitation" or "that the government 

afforded the defendant the opportunity for commission of the 

offense." Rodriguez, 858 F.2d at 813 (internal quotation marks 

omitted). Instead, the defendant must "produc[e] 'some evidence'"

of both improper inducement and lack of predisposition that is 

"sufficient to raise a reasonable doubt as to whether he was an 

unwary innocent rather than an unwary criminal." United States

v. Joost, 92 F.3d 7, 12 (1st Cir. 1996) (quoting United States v. 

Hernandez, 995 F.2d 307, 313 (1st Cir. 1993)).

The district court's assessment of whether the defendant 

has met this threshold is similar to that of assessing a motion 

for a judgment of acquittal; that is, the evidence must be viewed 

in the light most favorable to the defendant. See Rodriguez, 858 

F.3d at 812. "An entrapment instruction is required if the 

evidence, viewed in this charitable fashion, 'furnishes an 

arguable basis for application of the proposed rule of law.'" 

Pérez-Rodríguez, 13 F.4th at 19 (quoting Rodriguez, 858 F.2d at 

814).

2. Analysis

The district court barred Dr. Weiss's testimony after 

concluding that it was not relevant. The Defendant contends that 

Dr. Weiss's testimony was relevant to both inducement and 
- 26 -

predisposition. We begin with inducement. This case is unique 

in that Bron's campaign of persuasion began before he ever came 

into contact with HSI. It does not appear that HSI even learned 

about Bron's efforts until late March or early April, and no agent 

of the Government met with Bron until Special Agent Diorio met 

with him on April 13. As defense counsel acknowledged at trial, 

there is no such thing as private entrapment, so the Government is 

not necessarily responsible for Bron's actions prior to becoming 

involved in the case.

The Defendant argues12 that when the Government came into 

the case, it essentially adopted (and is thus responsible for) 

everything that Bron did beforehand. The Defendant has offered 

no persuasive authority to support the proposition that an 

entrapment instruction is warranted when someone like Bron, acting 

outside of and unknown to law enforcement, induces a defendant to 

commit a crime. We have on two prior occasions assumed the 

validity of the "novel theory" that governmental ratification of 

a private party's prior conduct can constitute entrapment, United 

States v. Young, 78 F.3d 758, 760 n.1 (1st Cir. 1996); Vasco, 564 

F.3d at 18 n.1, and because of the content of Dr. Weiss's

testimony, we need not settle this issue.

12 We disagree with the Government's contention that the 

Defendant did not assert this argument at trial and thus waived 

the argument.
- 27 -

Dr. Weiss was expected to talk about the social isolation 

suffered by sex offenders, which would have helped to establish 

that Saemisch may have been unusually susceptible to Bron's ploy, 

particularly given their preexisting relationship. It is possible 

that with Dr. Weiss's testimony, the Defendant could have met his 

minimal burden of putting forward some evidence of improper 

inducement under the Defendant's ratification theory. But because 

we ultimately conclude that the Defendant failed to show evidence 

of a lack of predisposition, we sidestep again the question of 

whether the Defendant could have met his burden of production on 

the inducement prong under a ratification theory. See PérezRodríguez, 13 F.4th at 19 ("Because the defendant is required to 

meet the burden of production on both prongs, a court may deny an 

entrapment instruction based on a failure to show evidence on one 

prong or the other, without discussing both.").

As to the predisposition prong, the Defendant contends

that Dr. Weiss would have testified about the difference between 

addiction and predisposition, presumably to give credence to the 

argument that because Saemisch was an addict, he would not have 

engaged in the scheme had he not been triggered by Bron's mention 

of Akina in February 2016. However, the district court rejected 

the proffered testimony as irrelevant after finding that Saemisch 

could not possibly establish a lack of predisposition – i.e., that 

Dr. Weiss's testimony could not offset the Government's evidence 
- 28 -

of predisposition. The court indicated that its ruling took into 

account that Dr. Weiss had not examined Saemisch and therefore 

would not be able to address his individual circumstances. We 

find no abuse of discretion in the court's exclusion of Dr. Weiss's 

testimony on relevancy grounds. As we shall explain, the record 

contains substantial evidence showing that Saemisch was

predisposed to commit the crime of distributing images of child 

sexual abuse. In addition, while he was communicating with Bron, 

he was simultaneously discussing trading images of child sexual 

abuse with other individuals. In evaluating the factors that are 

useful in the predisposition analysis, Saemisch checks every box.

a. Character or Reputation of the Defendant

Evidence as to this factor "might include prior criminal 

convictions for similar offenses or a history of sexual interest 

in minors." Id. at 21. Saemisch has a long history of possessing 

and distributing images of child sexual abuse. He was convicted 

in 1997 for crimes involving molestation and production and 

distribution of child pornography. And the evidence admitted at 

trial demonstrates that his criminal behavior continued after his 

release from prison. 

In addition, "evidence of predisposition may be inferred 

from conversations in which a defendant displays knowledge or 

experience in the criminal activity under investigation." United 

States v. Tom, 330 F.3d 83, 90 (1st Cir. 2003). That knowledge 
- 29 -

and experience were on display in Saemisch's communications. 

While the Defendant seeks to paint Bron as the puppet master in 

their relationship, it is clear from their communications that it 

was Saemisch pulling the strings. Saemisch discussed concealing 

his activities and images using a VPN, secure email servers, and 

cloud storage, as well as eliminating communication threads as 

soon as the conversation concluded. Saemisch and Bron's 

communications also reflected Saemisch's knowledge of the norms of 

distributing images of sexual abuse and even sex trafficking – as 

reflected, inter alia, in his communications about the high prices 

in Ukraine.13

b. Initial Suggestion of Criminal Activity 

While Bron was the first one to mention Akina, it was 

Saemisch who first initiated conversation about distributing 

images of child sexual abuse. And Saemisch was also the one who

proposed sending images of child sexual abuse to Bron. Not only 

this, but after Saemisch learned that he was under investigation, 

he proposed "transfer[ring] everything over" to Bron, shutting his 

storage sites down, and allowing Bron to "be the keeper of the 

bees," while still allowing Saemisch access to the transferred 

links. At this point in time, Saemisch's motive for sending Bron 

13 Saemisch also argues that his emails to Bron must be 

taken with a grain of salt because he was engaging in significant 

puffery. But the Defendant does not point to any evidence of 

this, such as anything that he said to Bron that is provably false.
- 30 -

his collection of images of child sexual abuse was not benevolence, 

but self-preservation. He wanted to protect himself while still 

being able to maintain access to something from which he derived 

enjoyment.

c. Engaging in the Criminal Activity for Profit

There is some indication that Saemisch may have been

selling images of child sexual abuse. In his communications with 

Bron, Saemisch made frequent references to commercial terms like 

"business" or "advertising," but it is difficult to know whether 

he was speaking purely in code or whether he was accurately 

describing his behavior. In one exchange, though, Saemisch 

referred to distributing images of child sexual abuse as a "side 

business" and said that it was not making him "a lot of money." 

And not making "a lot of money" seems to indicate he was making 

some money.

Regardless of the financial profit, it is very clear 

that Saemisch was distributing images of child sexual abuse 

separate and apart from his involvement with Bron. And it is 

equally clear that even if Saemisch was not receiving money for 

the images he was trading, he was profiting by expanding his 

collection of images.

He discussed "trad[ing] antiques"; how he "find[s] 

people with similar interests" online and they "entertain each 

other for hours"; "advertis[ing] . . . products," "post[ing] 
- 31 -

generic offerings," and receiving "offers . . . to trade links"; 

and "show[ing] off the cars [he's] had." Saemisch also sent emails 

to two individuals about trading images, including one two weeks 

before Saemisch first raised the prospect of sending images of 

child sexual abuse to Bron.14 All of this makes clear that Saemisch 

was engaged in distributing images of child sexual abuse because 

he wanted to receive images in return.

d. Reluctance to Commit the Offense

Saemisch demonstrated no reluctance to distribute images 

of child sexual abuse to Bron, at least not until he realized that 

he was being investigated. As soon as Bron told Saemisch that he 

was getting a smartphone, Saemisch proposed passing on "some 

information . . . concerning the business" that would keep Bron 

"pretty occupied." Saemisch also seemed to derive pleasure from 

the idea of sending Bron his collection.

14 At times in the district court and in the briefing on 

appeal, the Defendant appears to make the spurious and unsupported 

argument that Saemisch was not predisposed to distributing images 

of child sexual abuse to Bron in particular. The question is 

whether the Defendant was predisposed to commit the particular

type of crime, not the specific criminal act in which he engaged. 

See Joost, 92 F.3d at 12 ("The [entrapment defense] protects both 

citizens who are completely law abiding and those who have violated 

laws but whose unreadiness to commit a particular type of crime 

was overcome by excessive governmental efforts."); cf. Mathews, 

485 U.S. at 63 ("Predisposition . . . focuses upon whether the 

defendant was an 'unwary innocent' or, instead, an 'unwary 

criminal' who readily availed himself of the opportunity to 

perpetrate the crime."). 
- 32 -

Although Saemisch tries to portray himself as being 

easily manipulated, that is not accurate. When he knew he was 

being investigated by HSI, he took a step back, which is indicative 

of someone very much in control. He contemplated offloading his 

contraband collection to Bron while still maintaining access to 

it. And there are times in the emails when Bron tried to pump 

Saemisch for information, but Saemisch did not take the bait, 

particularly once Saemisch knew that HSI had begun to ask 

questions.

e. Nature of the Inducement or Persuasion

This factor hearkens "back to the improper inducement 

analysis," Pérez-Rodríguez, 13 F.4th at 23, although, in this case, 

that analysis was mooted by our assumption that the Defendant could 

have met his burden to introduce some evidence of improper

inducement. With that assumption in mind, we examine the nature 

of Bron's efforts to ensnare Saemisch, even before the Government 

became aware of his covert operation. In reviewing the record as 

a whole, we are not convinced that Bron's efforts crossed a line. 

Bron created a ruse and strung Saemisch along, to be sure, but he 

never overtly pressured Saemisch. It is true that "[e]ven very 

subtle governmental pressure, if skillfully applied, can amount to 

inducement." Id. at 17 (quoting United States v. Poehlman, 217

F.3d 692, 701 (9th Cir. 2000)). But it is difficult to 

characterize Bron's passive approach as pressure at all.
- 33 -

Bron repeatedly took a light touch with Saemisch, 

apologizing for all of his questions or for bugging him, and 

telling him that he would leave him alone. The strategy of not 

wanting to come on too strong is an obvious one, but it is difficult 

to see it as crossing a line. It is Saemisch who was the more 

sophisticated party here, and he was always in control. 

It is also significant that while Bron is the one who 

first brought up Akina and steered his communications with Saemisch 

down a sexual path, it was Saemisch who first brought up the 

distribution of images of child sexual abuse in general.15 It was 

also Saemisch who first brought up the idea of distributing images 

of child sexual abuse to Bron in particular. While there might 

be some argument that Bron's inducement of Saemisch to engage in 

"Akina-type entertainment" (i.e., sex trafficking) might have come 

nearer to entrapment (assuming the viability of the governmentratification theory), Saemisch was charged with distribution of 

child pornography rather than a contact offense. 

In sum, we agree with the district court that the 

Government's evidence of predisposition is so weighty that, even 

15 The Defendant cites to a Seventh Circuit case, United 

States v. Mayfield, 771 F.3d 417, 435 (7th Cir. 2014) (en banc), 

for the proposition that a drug addict's "inclination or urge to 

obtain narcotics" is not enough to demonstrate predisposition to 

distribute drugs. The distinction is an important one, but it is 

not helpful to the Defendant, who went beyond whatever inclinations 

and urges he had to view images of child sexual abuse to being 

heavily involved in distributing such images.
- 34 -

if Dr. Weiss had been allowed to testify, no reasonable juror could 

have found that Saemisch was not predisposed to commit the charged 

offense. Accordingly, the district court did not abuse its 

discretion in excluding Dr. Weiss's testimony on the ground that 

it was not relevant.

IV. Conclusion

We affirm Saemisch's conviction.