[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12132

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

JORGE MOJOCOA, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 5:22-cr-00017-GAP-PRL-1

____________________

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2 Opinion of the Court 23-12132

Before WILSON, BRANCH, and LUCK, Circuit Judges.

PER CURIAM:

Jorge Mojocoa offered and agreed to pay $60 to have oral 

sex with a 12-year-old girl who was unable to speak, paralyzed from 

the waist down, and who needed money for medical bills because 

her mother had just died. Thankfully, the act itself never 

happened—Mojocoa made this deal with an undercover agent 

posing as the girl’s aunt, and the would-be-victim was imaginary. 

Mojocoa was arrested at the arranged meeting place carrying the 

Skittles and lubricant the agent had told him to bring for the girl. 

While in custody, Mojocoa admitted to the underlying conduct. 

But he argued at trial that the government had entrapped him. The 

jury rejected that defense and found him guilty of attempted 

enticement of a minor to engage in sexual activity.

This is Mojocoa’s appeal. He raises four arguments. First, 

Mojocoa argues that the district court should have granted his 

motion for a judgment of acquittal because the government did not 

prove that he was “predisposed” to comment the offense 

independent of the undercover agent’s influence. Second, he 

asserts that the district court abused its discretion in allowing the 

government to introduce a jail call between him and his wife into 

evidence, in which he acknowledged that he had confessed, 

because the call was protected by spousal privilege and unduly 

prejudicial. Third, he contends that the district court abused its 

discretion in not giving a modified instruction on the entrapment 

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defense. And finally, he urges that the government shifted the 

burden of proof in closing arguments by telling the jury it would 

need to find that he was the unluckiest man in the world to acquit 

him. We reject each argument and affirm.

I. Background

A. The Offense Conduct, Arrest, and Indictment

The government’s key witness at trial was Agent Angela 

Fitch of the Unified Drug Enforcement Strike Team with the 

Marion County Sheriff’s Office. In 2021, Fitch was assigned to an 

undercover operation investigating child predators. In that role, 

Fitch posted internet advertisements posing as an aunt soliciting 

her (imaginary) niece for prostitution. 

On March 29, 2022, she posted an advertisement on 

Craigslist as part of the operation. The advertisement did not 

explicitly say that it was advertising a young child for sex, because 

Craiglist flags such ads. The ad represented that she, the poster, 

had a 12-year-old niece who was paralyzed and was unable to 

communicate, and had substantial medical bills. The ad stated that 

the poster was “looking for someone who would enjoy [the girl’s] 

company[.]” 

Mojocoa responded to the advertisement. He asked 

whether Fitch was with the police. In order to give him an out, 

Fitch asked if Mojocoa was with the police and said that, if so, she 

did not think they should continue the conversation. Fitch said she 

would call him the next day, in (she said) another effort to give him 

a chance to rethink the situation.

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On a phone call the next day, Mojocoa and Fitch discussed a 

planned sexual encounter with the young girl. Mojocoa asked 

Fitch if the young girl could get pregnant. He assured Fitch that he 

did not need condoms because he “shoots blanks.” Mojocoa 

confirmed that he wanted to have sex with the girl, but, because 

she was paralyzed, asked “[h]ow do we do it?” Mojocoa asked Fitch 

multiple times how much she charged to pimp out her niece. Fitch 

never stated a particular price, but she did tell Mojocoa that 

another man had paid $100. Mojocoa offered to pay $60 for oral 

sex. In a follow-up text message, Fitch told Mojocoa that “the other 

guy did everything. She[, the young girl,] has no feeling in her 

lower body, so you can do whatever you want.” 

On a later phone call, Mojocoa remarked that Fitch was a 

woman. He said “[t]hat’s something different, something new. It 

just . . . never happened to me like that.” Mojocoa also said that, if 

the encounter worked out, they could make it “a regular thing.” 

Later on, Fitch told Mojocoa to bring Skittles for the girl. Fitch 

explained that she mentioned Skittles to make sure that Mojocoa 

knew the girl was a child and to help identify him at the scene of 

the meet-up. 

On the day of the rendezvous, Mojocoa texted Agent Fitch 

that he was on his way and reiterated that he hoped he was not 

being set up by the police. He also said that if he was being set up, 

it would destroy him and his family. He also said that he was 

nervous because he “never did [sic.]” Fitch said that she was 

“nervous too” but “need[ed] the money.” She added, “[p]lus, since 

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[the young girl] doesn’t feel anything from the waist down, it’s not 

like she is getting hurt, and she can’t tell anyone.” When Mojocoa 

arrived—two hours early—he asked what to do, and Fitch texted 

him: “Go grab some lubricant. She is still practically a virgin. She is 

only 12.” Mojocoa said he would go to Walmart.

Once Mojocoa arrived at the meeting place, he was 

surrounded and arrested. Law enforcement found two bags of

Skittles and lubricant in his car. 

After he was arrested, Mojocoa waived his Miranda rights.1 

He thanked God that he did not have a daughter, for fear of abusing 

her. And, in a written statement, he admitted responding to the 

Craigslist ad, offering to pay $60 for oral sex with a 12- or 14-yearold girl, and driving to an agreed-upon location for sex after buying 

candy and lubricant. 

Mojocoa was indicted for attempted enticement of a minor 

to engage in sexual activity. See 18 U.S.C. § 2442. 

B. The Jail Call

At trial, the government sought to introduce recorded jail 

calls between Mojocoa and his wife. During one such call (the only 

one relevant on appeal), Mojocoa’s wife implored him to enter a 

plea, stating, “there’s an absolute case. You confessed”—to which

Mojocoa responded “Yeah. I know that. I know.” Before such calls, 

an automated message played twice, informing inmates that the 

1 Miranda v. Arizona, 384 U.S. 436 (1966).

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call was “not private” but would be “recorded” and “may be 

monitored.” The message even directs inmates to take certain 

steps if they believe a call should be private. 

Mojocoa filed a motion in limine, seeking to prevent the 

government from introducing the jail calls and various other 

statements he made in an interview. Mojocoa argued that the 

conversation was covered by spousal privilege and, even if it was 

not, it was unduly prejudicial under Federal Rule of Evidence 403. 

The court overruled the objections, and the calls were published to 

the jury. 

C. The Entrapment Instruction

Mojocoa’s defense was based on the theory that Fitch and 

the government had entrapped him. He submitted a modified jury 

instruction arguing that, while this Circuit has a pattern instruction 

on entrapment, his instruction better reflected the law of 

entrapment under Jacobson v. United States, 503 U.S. 540 (1992). His 

main complaint was that the pattern instruction did not clearly 

state that the burden of proof rested with the government. 

After the government argued that the pattern instruction 

was adequate and Mojocoa’s substitute mischaracterized the law,

Mojoca submitted a second proposed instruction on the 

entrapment issue. This proposed instruction read as follows:

A person is entrapped when he or she is induced or 

persuaded by law enforcement officials or their agents 

to commit a crime that he or she had no previous 

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intent to commit, and the law as a matter of policy 

forbids his or her conviction in such a case.

However, there is no entrapment where a defendant 

is ready and willing to break the law and the 

Government agents merely provided what appears to 

be a favorable opportunity for the defendant to 

commit the crime.

The Government has the burden of proving beyond a 

reasonable doubt that the defendant was not 

entrapped.

So, a defendant would not be a victim of entrapment 

if you should find beyond a reasonable doubt that a 

defendant was ready, willing[,] and able to commit the 

crime charged in the indictment whenever 

opportunity was afforded and that Government 

officers or their agents did no more than offer an 

opportunity.

On the other hand, if the evidence in the case leaves 

you with a reasonable doubt whether a defendant had 

any intent to commit the crimes except for 

inducement or persuasion on the part of the 

Government officer or agent, then it is your duty to 

find the defendant not guilty.

In support of his modified instruction, Mojocoa argued that 

the pattern instruction included an example that “seem[ed] to 

direct a verdict for the Government with respect to law 

enforcement sting operations of the nature in [this] case.” The 

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pattern example reads: “For example, it’s not entrapment for a 

government agent to pretend to be someone else and offer—

directly or through another person—to engage in an unlawful 

transaction[.]” Eleventh Circuit Pattern Jury Instructions (Criminal 

Cases) S13.1 (2022).

At the beginning of trial, the court instructed the jury that 

the government had the burden to prove guilt beyond a reasonable 

doubt. The court repeated this admonition in its final instructions. 

As for the final entrapment instruction, the district court 

instructed the jury that the government had the burden to show 

Mojocoa was not entrapped and that, “if the government has met its 

burden, it is not entrapment for a government agent to pretend to 

be someone else and offer directly or through another person to 

engage in an unlawful transaction.” (emphasis added).

D. Closing Arguments and the Verdict

After the close of the evidence, Mojocoa argued to the jury

that the government had failed to prove he was not entrapped into 

committing the crime because it had not shown he was 

“predisposed” to commit the crime. 

In response, the government stated, at the end of its rebuttal 

argument, that “[i]n order for you[, the jury,] to find that this 

defendant was entrapped and he is not guilty, period, you’ve got to 

find that this is the most unlucky man on the face of the planet.” 

Mojocoa objected. The court overruled the objection, stating that 

the comment was simply argument. When the government 

resumed its rebuttal argument, it repeated the remark, explaining

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that Mojocoa went on Craigslist, clicked on the ad, communicated 

with Fitch, took instructions about what to bring to the encounter, 

and even wrote down and admitted to his wife that he had done all 

these things. 

The jury found Mojocoa guilty of attempted enticement of 

a minor to engage in sexual activity, and the court sentenced him 

to 121 months’ imprisonment. 

II. Discussion

Mojocoa makes four arguments on appeal. First, he 

contends that the district court erred in denying his motion for a 

judgment of acquittal. Second, he argues that the district court 

abused its discretion in admitting the jail call between him and his 

wife into evidence. Third, he argues that the district court abused 

its discretion in refusing to give his modified jury instruction on the 

entrapment defense. And finally, he argues that the government 

improperly shifted the burden of proof to him in its closing 

argument. We consider, and reject, each argument in turn. 

A. The district court correctly denied Mojocoa’s motion for 

a judgment of acquittal.

Mojocoa first argues that his motion for a judgment of 

acquittal should have been granted because the government failed 

to disprove his entrapment defense—that is, failed to show beyond 

a reasonable doubt that he was “predisposed to commit the offense 

of . . . child enticement.” Mojocoa suggests that the government 

initiated contact with him, that the presentation of the victim 

amounted to “compulsion,” and, most importantly, that “the 

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government presented no evidence” that he “had ever engaged in 

any child sex-related transactions or activities in his . . . life[.]” 

Those arguments all fail.

“After the government closes its evidence or after the close 

of all the evidence, the court on the defendant’s motion must enter 

a judgment of acquittal of any offense for which the evidence is 

insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). “We 

review the denial of a motion for judgment of acquittal de novo.” 

United States v. Evans, 344 F.3d 1131, 1134 (11th Cir. 2003). “Since 

entrapment is generally a jury question, entrapment as a matter of 

law is a sufficiency-of-the-evidence inquiry that [this Court] 

review[s] de novo, viewing all facts and making all inferences in 

favor of the government.” United States v. Rutgerson, 822 F.3d 1223, 

1234 (11th Cir. 2016) (footnote omitted). “The jury’s verdict 

cannot be overturned if any reasonable construction of the 

evidence would allow the jury to find the defendant guilty beyond 

a reasonable doubt.” United States v. Padron, 527 F.3d 1156, 1159 

(11th Cir. 2008) (alteration accepted) (quotation omitted). 

There are two elements to an entrapment defense: (1) the 

government in some way induced the commission of the crime, 

and (2) the defendant was not predisposed to commit the crime 

before inducement. Rutgerson, 822 F.3d at 1234. “[I]nducement 

consists of opportunity plus something like excessive pressure or 

manipulation of a non-criminal motive.” United States v. Brown, 43 

F.3d 618, 623 (11th Cir. 1995). The defendant bears a “light” 

burden of production to show inducement. United States v. Isnadin, 

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23-12132 Opinion of the Court 11

742 F.3d 1278, 1297 (11th Cir. 2014). If the defendant meets this 

burden, then “the burden shifts to the Government to prove 

beyond a reasonable doubt that the defendant was predisposed to 

commit the crime.” Id.2

Predisposition requires “the prosecution [to] prove beyond 

reasonable doubt that the defendant was disposed to commit the 

criminal act prior to first being approached by Government 

agents.” Jacobson, 503 U.S. at 548–49. In other words, the 

government must prove “that the defendant was actually 

predisposed to commit the underlying crime absent the 

government’s role in assisting such commission.” United States v. 

Aibejeris, 28 F.3d 97, 99 (11th Cir. 1994) (emphasis omitted). This 

“[p]redisposition may be demonstrated by” such things as “ready 

commission of the charged crime”; the fact that a defendant was 

“given opportunities to back out . . . but failed to do so”; and 

“[p]ost-crime statements[.]” Rutgerson, 822 F.3d at 1235 (quoting 

Brown, 43 F.3d at 625).

There was more than enough evidence here for the jury to 

conclude Mojocoa was predisposed to commit the crime 

charged—and thus reject his entrapment defense. 

To begin with, Mojocoa is wrong factually—the 

government did not initiate contact, Mojocoa did so when he 

contacted the undercover agent in response to the Craigslist ad. See 

2 The government does not dispute that Mojocoa met his burden of 

production on inducement, so we address only predisposition.

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id. (having “made the initial contact” with the victim supported a 

finding of predisposition). A jury could also reasonably conclude 

that Mojocoa was the first to bring up sex with the would-bevictim, since the ad was ambiguous or at least euphemistic. See id.

(having “readily proceeded to attempt to arrange a sexual 

encounter” with the victim supported a finding of predisposition). 

Mojocoa even expressed a desire to “make [appointments to have 

sex with the child] a regular thing.” Mojocoa “never once said that 

he did not want to have sex with” a child. Id.

Further, a reasonable jury could have found that Mojocoa 

“persistently pursued [Fitch, the undercover agent] over three days 

in an attempt to agree on” the details of “a sexual encounter.” Id. 

Mojocoa communicated with Fitch for three days and even 

negotiated the price of sexually assaulting the would-be victim. See 

id. (finding predisposition in part because the defendant went to the 

effort of “dr[iving] from Miami to Fort Lauderdale for the purpose 

of paying . . . for sex”).

Nor did Mojocoa “back out of his meeting” with Fitch and 

the would-be-victim, “and [he never] expressed any hesitation 

about having sex with a minor, although he repeatedly had the 

opportunity.” Id.; see also Brown, 43 F.3d at 625 (“A predisposition 

finding is also supported by evidence that the defendant was given 

opportunities to back out of illegal transactions but failed to do 

so.”). Indeed, Mojocoa’s expressed concern was about whether the 

police officer was part of a sting—which demonstrates his 

consciousness of wrongdoing, and thus predisposition to commit 

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the crime if he thought he would not get caught. Rutgerson, 822 

F.3d at 1235 (“in spite of the expressed concerns that” the 

undercover agent “was part of a sting operation, [the defendant] 

continued to pursue a sexual encounter with her”); see also United 

States v. Lee, 603 F.3d 904, 915 (11th Cir. 2010) (holding that the 

defendant’s concern that an online person the defendant intends to 

have sex with is part of a sting operation supports a relevant 

inference of guilt because “a relationship with . . . an adult[ ] would 

not have concerned law enforcement”).

Finally, Mojocoa’s own statements provided substantial 

evidence of predisposition. For one, a reasonable jury could have 

interpreted Mojocoa’s expression of surprise that the undercover 

agent was a woman as an indication that he had engaged in such 

activity before the sting here. See Brown, 43 F.3d at 626 (“Evidence 

that [the defendant] was actually engaged in drug smuggling prior 

to contact with Government agents would certainly establish his 

predisposition to engage in smuggling beyond a reasonable 

doubt.”); see also Rutgerson, 822 F.3d at 1235–36 (even where there 

was “no evidence of prior related offenses,” the fact that the

defendant “had accessed numerous ads for ‘young’ prostitutes 

online” demonstrated his “familiar[ity] with the website he used”

and therefore “suggest[ed] that he was predisposed to attempt to 

entice young women into having sex”). And for another, Mojocoa 

told law enforcement after his arrest that he was thankful “he didn’t 

have a daughter out of fear of abusing her.” See Brown, 43 F.3d at 

626 (the defendant “made many statements in the record which, if 

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credited, provide direct proof of his prior involvement in drug 

smuggling and dealing activities”). 

Mojocoa disagrees, advancing essentially two arguments in 

response.3 He disputes the strength of some of these factual 

inferences, and he insists that the government failed to show 

predisposition prior to the government’s approach. Both 

arguments fail. 

First, Mojocoa cannot show that no reasonable jury could 

make the inferences and draw the conclusions discussed above. He 

attempts, for example, to cast the Craigslist ad as “initiat[ing] 

communication” with him (which, as we have said, is just wrong); 

he plays up the government’s role in sexualizing the would-be3 We say “essentially” because Mojocoa also suggests that the presentation of 

“[a] victim [who] literally could not report any offense” (because “she was . . . 

non-verbal”), combined with “great sympathy” for the undercover agent and 

the would-be-rape-victim (because “the[ ] money was desperately needed”),

created “compulsion” or an “emotional incentive” for him to rape a disabled 

minor. 

We set this suggestion off to one side because Mojocoa’s argument on this 

point—or, perhaps, the argument made for him—is not a defense, it is a

confession. That Mojocoa could be enticed to commit an offense because the 

victim was (1) unable to report him and (2) vulnerable, shows, not refutes, that 

he was predisposed to commit the offense. And the suggestion that a person 

would be compelled to commit the heinous offense attempted here because 

the victim needed money—recall the story was that she had medical bills and 

her mother had recently died—is appalling. A jury would be more than 

justified in finding that such a child’s need for money (which a person could 

just give out of charity) is no inducement to raping her—but rather that 

evidence of enticement to vulnerability is, itself, evidence of predisposition. 

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victim by reference to the man who paid $100 for time with her, 

and the statement that Mojocoa could “do whatever [he] want[ed]” 

with the child; and he disputes—without explanation—the 

inference that his surprise at speaking to a woman about the 

encounter suggests that he had engaged in similar transactions in 

the past. But even if those were valid critiques of the permissible 

inferences—and they are not—the inferences are still permissible. 

And our review here is properly limited to “viewing all facts and 

making all inferences in favor of the [verdict].” Rutgerson, 822 F.3d 

at 1234. 

Second, Mojocoa emphasizes the government must show 

predisposition prior to the approach of government agents. See 

Jacobson, 503 U.S. at 548–49. But as we have just explained, the 

government did so. A jury could reasonably conclude that the 

evidence discussed above proves a predisposition that existed 

before and independent of Mojocoa’s contact with Fitch. The 

government need not meet its burden by producing evidence of 

events or conduct that took place in time before the sting 

operation. See Rutgerson, 822 F.3d at 1235 (the “[e]xistence of prior 

related offenses is relevant, but not dispositive.” (quoting Brown, 43 

F.3d at 625)).

“The long and short of it is that the government agents 

‘simply provided [Mojocoa] with the opportunity to commit a 

crime’ by posting the [Craigslist] ads, and his ‘ready commission of 

the criminal act amply demonstrate[s the necessary] 

predisposition.” Id. at 1236 (quoting Jacobson, 503 U.S. at 550). 

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Thus, a reasonable jury could find that the government proved 

Mojocoa’s predisposition to commit the crime, and the district 

court correctly denied Mojocoa’s motion for a judgment of 

acquittal. 

B. The district court did not abuse its discretion in 

allowing the jail call with Mojocoa’s wife into evidence.

Mojocoa also argues that the district court should not have 

allowed the government to introduce the jail call with his wife. He 

primarily contends that the call was protected by the marital 

privilege. And, failing that, he asserts that “the jail call should have 

been inadmissible because . . . the prejudicial effect” of the call 

“outweighed its probative value” under Federal Rule of Evidence

403. 

“We review a district court’s decision to admit or exclude 

evidence for abuse of discretion.” United States v. Reeves, 742 F.3d 

487, 501 (11th Cir. 2014). The marital-communications privilege 

makes confidential communications between a husband and wife 

inadmissible. Blau v. United States, 340 U.S. 332, 333 (1951); see also 

Trammel v. United States, 445 U.S. 40, 50–51 (1980) (discussing “the 

privilege against adverse spousal testimony”). We presume

communications between husband and wife are confidential, but 

“that presumption can be overcome by proof of facts showing that 

[the communications] were not intended to be private.” Pereira v. 

United States, 347 U.S. 1, 6 (1954). “The presence of a third party 

negatives the presumption of privacy.” Id. Rule 403, in turn, 

provides that “the court may exclude relevant evidence if its 

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probative value is substantially outweighed by a danger of one or 

more of the following: unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly 

presenting cumulative evidence.” Fed. R. Evid. 403. And of 

course, “[a]n erroneous evidentiary ruling will result in reversal 

only if the resulting error was not harmless.” United States v. 

Frediani, 790 F.3d 1196, 1200 (11th Cir. 2015).

We see no abuse of discretion here. First, the presence of a 

third party negates the presumption of privacy in spousal 

communications, Pereira, 347 U.S. at 6, and the jail call here was 

preceded by an automated message that the call “is not private” 

and “will be recorded.” The system even instructed Mojocoa to 

hang up and take other action if he wanted the call to be private. 

So the government successfully rebutted the presumption that 

Mojocoa’s conversation with his wife was kept confidential. 

Second, the district court had ample discretion to conclude 

that admission of the jail calls did not violate Rule 403’s exclusion 

of evidence that is substantially more prejudicial than probative. 

The jail call evidence was prejudicial to Mojocoa’s case, to be sure, 

but it was not unfairly prejudicial because it did not “suggest [a] 

decision on an improper basis,” Steger v. Gen. Electric Co., 318 F.3d 

1066, 1079 (11th Cir. 2003) (emphasis added)—but rather based on 

the fact that Mojocoa had confessed, see United States v. Wright, 392 

F.3d 1269, 1277 (11th Cir. 2004) (“consciousness of guilt” may be 

evidence of guilt). See also United Statesv. Tillmon, 954 F.3d 628, 643

(4th Cir. 2019) (damage to a party’s case is not unfair prejudice 

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18 Opinion of the Court 23-12132

under Rule 403, which refers instead to capacity of some 

concededly relevant evidence to lure factfinder into declaring guilt 

on a ground different from proof specific to charged offense). 

Regardless, any error here was plainly harmless. A jail call 

acknowledging that Mojocoa confessed is cumulative of the actual 

confession—to say nothing of the other, overwhelming evidence 

of guilt—so either or both supposed evidentiary errors would have 

been harmless anyway. See Frediani, 790 F.3d at 1202 (finding that 

any error from admitting evidence was harmless in light of 

overwhelming evidence of defendant’s guilt).

Thus, we find no reversible error in allowing the jail calls 

into evidence. 

C. The district court did not abuse its discretion in refusing 

to give Mojocoa’s preferred jury instruction on 

entrapment.

Mojocoa next argues that the district court should have 

given his requested jury instruction on entrapment. Mojocoa 

contends that the instructions as given “provided the possibility 

that the jury found entrapment on his conduct where the evidence 

failed to prove his predisposition[.]” 

We review jury instructions de novo “to determine whether 

they misstate the law or mislead the jury to the objecting party’s 

prejudice,” United States v. Gomez, 580 F.3d 1229, 1233 (11th Cir. 

2009) (quotations omitted), but we review a “district court’s refusal 

to give a requested jury instruction” only for abuse of discretion, 

United States v. Mayweather, 991 F.3d 1163, 1174, 1183 (11th Cir. 

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2021). “So long as the district court’s jury instructions accurately 

reflect the law, the trial judge has wide discretion to decide on the 

style and wording of the instruction.” United States v. Singer, 963 

F.3d 1144, 1162 (11th Cir. 2020) (alteration adopted) (quotation 

omitted). Thus, our job on appeal is to “examine the jury charges 

as a whole, determining whether the entire charge sufficiently 

instructed the jury about the issues.” Id. at 1162–63 (alterations 

adopted) (quotations omitted).

We reject Mojocoa’s argument that the district court abused 

its discretion in not giving his modified version of the entrapment 

instruction. Considered as a whole, the jury instructions given by 

the district court explained that (1) government had the burden of 

proving the case beyond a reasonable doubt; (2) the jury would 

have to find beyond a reasonable doubt that the government only 

offered him an opportunity to commit a crime he was already 

willing to commit, and (3) the jury would have to find him not 

guilty if there was reasonable doubt about whether he was willing 

or predisposed to commit the crime without government 

persuasion. Those instructions are an accurate statement of the 

law. See Jacobson, 503 U.S. at 548–49 (holding that, to overcome the 

defense of entrapment, “the prosecution [must] prove beyond 

reasonable doubt that the defendant was disposed to commit the 

criminal act prior to first being approached by Government 

agents.”). Thus, the court was “not required to adopt the precise 

wording of [Mojocoa’s] proposed charge[.]” Singer, 963 F.3d at 

1163.

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20 Opinion of the Court 23-12132

“In short, the district court’s jury instructions adequately 

covered [Mojocoa’s] proposed instruction, and the district court 

did not abuse its discretion when it declined to give [his] proposed 

jury instruction[.]” Id. We therefore find no abuse of discretion in 

refusing to give Mojocoa’s custom instruction. 

D. The district court did not commit reversible error in 

failing to correct the government’s closing argument.

Finally, Mojocoa argues that the government improperly 

attempted to shift the burden of proof during its closing argument 

when it told the jury that, “[i]n order for you to find that this 

defendant was entrapped, and he is not guilty . . . you’ve got to find 

that this is the most unlucky man on the face of the planet.” 

According to Mojocoa, the district court’s failure to admonish the 

government or give a curative instruction was error because it 

allowed the government to argue an improper understanding of 

the parties’ burdens of proof—which led the jury to “convict[ him] 

on less than [the evidence] required and the [process] guaranteed 

to him[.]”

We review claims of prosecutorial misconduct during 

closing arguments de novo, bearing in mind that such claims 

generally involve mixed questions of law and fact. United States v. 

Sosa, 777 F.3d 1279, 1294 (11th Cir. 2015). “To find prosecutorial 

misconduct, a two-element test must be met: (1) the questions or 

comments must be improper, and (2) the questions or comments 

must prejudicially affect the substantial rights of the defendant.” 

United States v. Schmitz, 634 F.3d 1247, 1267 (11th Cir. 2011).

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To be sure, it is improper for prosecutors to “mak[e] burdenshifting arguments which suggest that the defendant has an 

obligation to produce any evidence or to prove innocence.” United 

States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992). Comments 

“may be so prejudicial as to shift the burden of proof” if they are 

“so pronounced and persistent that [they] permeate[] the entire 

atmosphere of the trial[.]” Id. at 1086 (quotation omitted); see also 

United States v. Nerey, 877 F.3d 956, 970 (11th Cir. 2017) (listing 

factors we consider to determine the extent of the prejudice). 

Assuming prosecutorial comments are improper, “[a] 

defendant’s substantial rights are prejudicially affected when a 

reasonable probability arises that, but for the remarks, the outcome 

of the trial would have been different.” United States v. Eckhardt, 

466 F.3d 938, 947 (11th Cir. 2006). But “substantial evidence 

establishing guilt may counteract claims of prejudice,” Nerey, 877 

F.3d at 970, as long as the strength of the evidence suggests that 

“any error is harmless,” Eckhardt, 466 F.3d at 947. And prejudice 

can be mitigated or cured by jury instructions properly allocating 

the burden of proof. See Schmitz, 634 F.3d at 1267.

We see no basis for reversal. To start, we can see why the 

district court did not think the government’s comment was 

improper. In telling the jury that, to find the lack of predisposition 

necessary to entrapment, the jurors would need to “find that 

[Mojocoa was] the most unlucky man on the face of the planet,”

the government was arguing that Mojocoa had made a series of 

choices, of his own volition, that led him to such a place that he 

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22 Opinion of the Court 23-12132

would otherwise have to be profoundly unlucky to find himself. 

The district court had discretion to find that the jury would 

understand the comments that way—not as shifting some burden 

of proof to Mojocoa. At any rate, Mojocoa cannot show reversible 

error.

Even if the government’s comments were improper, or at 

least ran an unacceptable risk of confusing the jury, Mojocoa has 

not shown the comments prejudiced his substantial rights. Again, 

to obtain reversal, Mojocoa must show that, “but for the remarks, 

the outcome of the trial would have been different.” Eckhardt, 466 

F.3d at 947. Here, however, the court’s instructions to the jury (at 

both the beginning of the trial and after closing arguments) clearly 

pointed out that the government had the burden of proof. See

Schmitz, 634 F.3d at 1267 (“[E]ven if some of the prosecutor’s 

questions slightly suggested that Schmitz had the burden of proof, 

the district court cured any possibility of prejudice with its clear 

and repeated instructions on the prosecution’s burden of proof.”). 

And the evidence against Mojocoa was very strong. Mojocoa was 

caught red-handed at the meeting place, with the items he was 

supposed to bring, after discussing the encounter in detail in 

recorded messages and phone calls. He admits all of these facts. 

His only defense at trial was entrapment, which—for the reasons 

discussed above—was powerfully refuted by evidence of his 

willingness to participate in the sale of a young, disabled girl for 

sex. United States v. Bergman, 852 F.3d 1046, 1070 (11th Cir. 2017) 

(prosecutor’s “lone [improper] comment” did not warrant reversal 

of jury’s verdict “[g]iven the abundant evidence supporting the 

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23-12132 Opinion of the Court 23

defendants’ guilt”). So, far from being likely that the outcome 

would be different, it is affirmatively unlikely the outcome of the 

trial would have been any different had the district court 

admonished the government or redirected the jury.

Mojocoa nonetheless insists that the government’s 

comment was not merely a response to his position, but rather “its 

ultimate summation of what the jury needed to determine in this 

case.” Again: the district court had discretion to find otherwise, but 

it does not matter, because Mojocoa cannot show prejudice. To 

the contrary, Mojocoa offers no answer to the mitigating effect of 

the jury instructions, relying entirely on the supposition that “the 

government failed to meet its burden of proof as to predisposition.” 

Because that supposition is wrong, his argument here fails.

We therefore find no reversible error related to the 

government’s comments at closing argument.

III. Conclusion

All told, we find no merit in Mojocoa’s arguments on appeal, 

and so affirm the judgment below. 

AFFIRMED.

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