United States Court of Appeals

For the Eighth Circuit

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No. 17-2087

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Jason Michael Strubberg

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court

for the Western District of Missouri - Central Division

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Submitted: November 15, 2018

Filed: July 12, 2019

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Before GRUENDER, KELLY, and GRASZ, Circuit Judges.

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GRASZ, Circuit Judge.

A jury convicted Jason Michael Strubberg of one count of attempting to entice

a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b). On appeal,

Strubberg arguesthere wasinsufficient evidence to support his conviction, challenges
the district court’s

1

instructions to the jury, and contends certain supervised release

special conditions were improper. We affirm.

I. Background

In January 2016, law enforcement officials arrested Strubberg in a motel

parking lot when he tried to meet up with a woman whom he believed to be “Kathy,”

and her fourteen-year old daughter, “Abby.” Strubberg had, through text messages

with Kathy, planned a rendezvous at the motel with the mother and daughter, during

which he would “train” Abby by engaging in sexual acts with her as Kathy watched. 

Unbeknownst to Strubberg, neither Kathy nor Abby were real people; instead, they

were fictional characters created as part of a sting operation.

After the arrest, Detective Andrew Evans led Strubberg to believe police had

been tipped off by Kathy, who had gotten cold feet and called the police. Strubberg

admitted to Detective Evans he had sent the texts to Kathy indicating he intended to

engage in sexual conduct with both Abby and Kathy.

Strubberg was then charged with attempting to entice a minor to engage in

sexual activity in violation of 18 U.S.C. § 2422(b). The case went to trial. The

government called five witnesses, with most of the testimony coming from Detective

Evans. Strubberg called three witnesses to testify, including himself. 

During Strubberg’s testimony, he admitted he initially intended to have sex

with Abby. Strubberg claimed, however, this was only because he thought it would

be legal if the mother signed a contract giving him permission. He explained to the

1The Honorable Brian C. Wimes, United States District Judge for the Western

District of Missouri.

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jury that he later researched the law and determined it would be illegal to have sex

with a fourteen-year-old even with such parental permission.

With this information in mind, Strubberg claimed to the jury that he decided

against having sex with Abby. Strubberg explained he nonetheless proceeded to the

meeting location. He testified he did this because he wanted to meet with Kathy, in

part, so he could tell her in person that he could not have sex with Abby unless she

convinced him it was legal. He also testified that he hoped Kathy would agree to

have sex with him.

The jury found Strubberg guilty. The district court sentenced him to 120

months of imprisonment and five years of supervised release with special conditions.

Strubberg filed a timely notice of appeal, challenging both his conviction and

sentence.

II. Analysis

A. Sufficiency of the Evidence

We first consider Strubberg’s attack on his conviction based on his belief there

was insufficient evidence to support the jury’s guilty finding. This court reviews de

novo an appeal based on insufficiency of the evidence. United States v. Young, 613

F.3d 735, 742 (8th Cir. 2010). “The jury’s verdict will be upheld if there is any

interpretation of the evidence that could lead a reasonable jury to find the defendant

guilty beyond a reasonable doubt.” Id.

A conviction for enticement of a minor to engage in sexual activities requires

the government to prove beyond a reasonable doubt the defendant:

(1) used a facility of interstate commerce, such as the internet or the

telephone system;(2) knowingly used the facility of interstate commerce

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with the intent to persuade or entice a person to engage in illegal sexual

activity; and (3) believed that the person he sought to persuade or entice

was under the age of eighteen.

Id.(quoting United States v. Pierson, 544 F.3d 933, 939 (8thCir. 2008) (cleaned up)). 

To prove attempt, the government must establish “(1) intent to commit the

predicate offense; and (2) conduct that is a substantial step toward its commission.”

United States v. Spurlock, 495 F.3d 1011, 1014 (8th Cir. 2007). Conversations to

arrange to have sex with a minor may constitute attempt when those conversations go

“beyond mere preparation,” are “necessary to the consummation of the crime,” and

“strongly corroborate . . . criminal intent to entice [a minor].” Id. 

On appeal, Strubberg argues there is not sufficient evidence he intended to

engage in illegal activity because, once he learned the activity was illegal, he

abandoned his intent to engage in sexual contact with the girl. Strubberg claimed to

the jury he went to the meeting spot only because he wanted to tell Kathy he thought

it was probably illegal to have sex with Abby, and also in the hope he could still have

sex with Kathy. Strubberg also argues there was notsufficient evidence to show that

he took a substantial step toward engaging in the illegal activity because he refused

to stop his car in the parking lot at the motel and instead sought to drive away.

We find no merit in Strubberg’s arguments. There were numerous instances

where Strubberg explicitly announced his intent to engage in sexual activity with

someone he was told was a minor. This happened repeatedly during histext message

conversations with Kathy. Strubberg also conducted an internet search the morning

he was to meet Abby that used crass search terms indicating he had a desire to learn

about having sex with a minor. Furthermore, he bought condoms at the convenience

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store immediately before proceeding to the motel.

2 He also wore a red shirt to make

Abby and Kathy “feel comfortable,” after Kathy told him red was Abby’s favorite

color. While Strubberg certainly has offered excuses for much of this behavior and

a story that he had abandoned wrongful intent when he went to the motel, the jury

was not required to believe him. 

As to the substantial step element,“[a] substantial step generally exists when

a defendant takes actions ‘necessary to the consummation of the crime’ that were of

‘such a nature that a reasonable observer, viewing the actions in context, could

conclude that the actions were undertaken in accordance with a design to’ commit the

actual offense.” Young, 613 F.3d at 743 (quoting United States v. Mims, 812 F.3d

1068, 1077 (8th Cir. 1987) (cleaned up)). 

We have repeatedly held the substantial step element was satisfied by acts

similar to those taken by Strubberg. See id. (holding the defendant took a substantial

step by attempting to check into a hotel even though he cancelled the room after his

credit card declined); United States v. Myers, 575 F.3d 801, 809 (8th Cir. 2009)

(holding the defendant took a substantial step toward committing a crime when the

evidence showed he drove two hours to meet the minor and police found condoms

and a digital camera in his car); United States v. Patten, 397 F.3d 1100, 1104 (8th Cir.

2005) (“There is clear authority for the government’s position that [the defendant’s]

act of driving to the arranged meeting place . . . wasrelevant evidence of a substantial

step.”). Specifically, Strubberg planned a sexual encounter with a minor and then

took a substantial step by traveling to the meeting place, buying condoms, and then

driving to the motel. The evidence is sufficient to uphold Strubberg’s conviction. 

2Strubberg and Kathy had originally planned to meet at the convenience store.

Strubberg received a text message telling him Kathy and Abby would meet him at a

nearby motel because there were too many cars at the convenience store.

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B. Jury Instructions

Strubberg challenges the district court’s jury instructions in two ways. First,

he argues he was entitled to an entrapment defense instruction. He also argues the

district court abused its discretion by instructing the jury it could not allow the fact

the government used deceptive means during the sting operation to affect its verdict. 

Neither argument warrants reversal. 

1. Entrapment Instruction

“The refusal of a proffered entrapment instruction is a denial of a legal

defense.” United States v. Cooke, 675 F.3d 1153, 1155–56 (8th Cir. 2012). 

Consequently, this court reviews a denial of an entrapment instruction de novo. Id.

at 1156.

“A defendant is entitled to an instruction on the affirmative entrapment defense

if sufficient evidence exists from which a reasonable jury could find that [the]

government entrapped him.” United States v. Wynn, 827 F.3d 778, 786 (8th Cir.

2016). “A valid entrapment defense has two related elements: government

inducement of the crime, and a lack of predisposition on the part of the defendant to

engage in criminal conduct.” Id. (quoting Mathews v. United States, 485 U.S. 58, 63

(1988) (cleaned up)).

“To warrant an instruction, a defendant alleging entrapment must ‘show that

the government agents implanted the criminal design in his mind and induced him to

commit the offense.’” Id. (quoting United States v. Kendrick, 423 F.3d 803, 807 (8th

Cir. 2005)). “Evidence that Government agents merely afforded an opportunity or

facilities for the commission of the crime would be insufficient to warrant an

entrapment instruction.” Id. (quoting Mathews, 485 U.S. at 66 (cleaned up)). 

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“Entrapment occurs only when the criminal conduct was the product of the

creative activity of law-enforcement officials.” Id. (quoting Sherman v. United

States, 356 U.S. 369, 372 (1958)). Factors relevant to determining whether a

defendant was induced to entice a minor in sexual activity include the following: (1)

whether the government officials initiated the contact; (2) who introduced the topics

of meeting and sex; and (3) the degree to which the government officials influenced

the behavior of the defendant by portraying minors as sexually precocious. Young,

613 F.3d at 747. 

The district court concluded the instruction was not warranted, in part, because

the government did not induce the crime. We agree.

 Strubberg initiated contact with law enforcement officials, who were posing

as Kathy. Strubberg asked Kathy what she wanted him to teach her daughter. After

Kathy made a sexually suggestive statement — that she wanted him to teach her

daughter “discipline, respect, and birds and bees stuff :)” — Strubberg almost

immediately brought up having sex with the girl despite being told she was only

fourteen years old. Over the nextseveral days, Strubberg repeatedly initiated explicit

discussions of the sexual acts he would engage in with the child. And despite being

given numerous opportunities to back out of the arrangement, Strubberg persisted in

encouraging Kathy to proceed and continued to arrange the details of the rendezvous. 

Considering these facts, Strubberg did not meet his burden of establishing there was

sufficient evidence the government induced him. See Young, 613 F.3d at 747

(holding the defendant did not establish the government induced him to commit the

crime of enticing a minor even though the government initiated some of the sexual

conversations and arguably portrayed the purported minor as a “sexually precocious

teenager”).

Strubberg relies on cases from outside this circuit to contend he was entitled

to the jury instruction. See United States v. Gamache, 156 F.3d 1, 10–11 (1st Cir.

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1998); United States v. McGill, 754 F.3d 452, 454 (7th Cir. 2014). We do not

believe the facts in Gamache or McGill are analogous to the facts of this case. In

Gamache, the government first initiated the idea of the defendant having sex with the

underage children and the defendant initially only expressed a desire to have a sexual

relationship with the children’s mother. 156 F.3d at 10–11. Here, Strubberg was the

first to directly reference sex with a minor and only later tried to convince the mother

to have sex with him. And in McGill the courtstressed the fact the defendant’sfriend

(who was working undercover in cooperation with the government) kept pushing the

crime on the defendant, despite the defendant’srepeated attemptsto change the topic

and cancel meetings with his friend. 754 F.3d at 455, 459. Our review of the record

convinces us Strubberg did not receive the pressure or manipulation placed on the

defendants in Gamache or McGill. These cases, therefore, do not convince us

Strubberg was entitled to his requested entrapment instruction.

2. Deceptive Investigation Instruction

Over Strubberg’s objection, the district court included a jury instruction

describing deceptive investigative techniques employed by the government officials

and directing the jurors not to allow their opinion of such practices to influence their

deliberations. The instruction stated:

During this trial you heard the testimony from undercover agents who

were involved in the government’s investigation in this case. 

Undercover agents may properly make use of false names, false

appearances, and may properly assume the roles of membersin criminal

organizations. The government may utilize a broad range of schemes

and ploys to ferret out criminal activity. Law enforcement officers are

not precluded from engaging in stealth and deception, such as the use of

undercover agents, in order to apprehend persons engaged in criminal

activities.

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Whether or not you approve of the use of such investigative techniques

to detect unlawful activities is not to enter into your deliberationsin any

way. If you are satisfied beyond a reasonable doubt that the defendant

committed the offense as charged in the indictment, the fact that the

government made use of investigative techniques that deceive is not

relevant to your determination.

On appeal, Strubberg argues this instruction interfered with the jury’s

consideration of the evidence. Strubberg contends the jury could have interpreted this

instruction as forbidding it from considering for purposes of credibility the fact

Detective Evans deceived Strubberg in order to obtain his confession. Strubberg

contends this shifted or limited the government’s burden of proof and requires

reversal here because there is no way to know whether the jurors ignored concerns

over Evans’s credibility due to the instruction.

This court “review[s] a district court’s formulation of jury instructions for an

abuse of discretion and its interpretation of law de novo.” United States v. Farah,

899 F.3d 608, 614 (8th Cir. 2018). An error in the instructions “does not warrant

reversal of a conviction if it is harmless.” Id. We may disregard such an error where

it is clear beyond a reasonable doubt that a rational jury would have found the

defendant guilty without the error. Id.

Strubberg is correct that we have never endorsed such a jury instruction. Nor

have the parties cited to any other circuit court permitting this exact instruction. We

do note the Seventh Circuit has analyzed a similar jury instruction by a district court

and refused to find its use an abuse of discretion. See United States. v. McKnight,

665 F.3d 786, 789–90 (7th Cir. 2011). The instruction at issue in McKnight stated:

Sometimes the government uses undercover agents and undercover

informants who may conceal their true identities in order to investigate

suspected violations of law. In the effort to detect violations of the law,

it is sometimes necessary for the government to use ruses, subterfuges

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and employ investigative techniques that deceive. It is not improper or

illegal for the government to use these techniques, which are a

permissible and recognized means of criminal investigation. Whether or

not you approve of such techniques[] should not enter into your

deliberations in any way.

Id. (alteration in the original). 

The Seventh Circuit refused to reverse the guilty verdict based on the

instruction. Id. at 795. The court explained the instruction could be a useful tool to

remind the jury of itstask at hand and not to serve as a “roving commission to express

disapproval of law enforcement techniquesthat are acceptable under established legal

principles.” Id. at 794. And the court discounted the concern that the jury would take

this instruction to mean it must take the informant’s testimony at face value in light

of other instructions suggesting they could question the informant’s credibility. Id.

at 794–95. The court did, however, express some concerns about the use of the

instruction, recognizing such an instruction may clutter the instructions as a whole,

deflect the jury’s attention from its most important task, and give a signal of indirect

approval by the judge of the government’s management of the investigation. Id. at

794.

We share the Seventh Circuit’s concern that the instruction could signal

indirect judicial approval of the government’s management of the investigation. 

However, the evidence supporting Strubberg’s conviction is so overwhelming that

any possible error would be harmless. Although we do not endorse or encourage

giving this instruction, we will not vacate Strubberg’s conviction based on its

inclusion. 

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C. Special Conditions

Finally, we consider Strubberg’s challenges to seven special conditions of

supervised release the district court imposed on him as part of his sentence. 

Strubberg admits he did not object to any of these conditions at his sentencing

hearing and thus plain error review applies.

3

See United States v. Bordman, 895 F.3d

1048, 1054 (8th Cir. 2018). 

 

“To prevail under plain-error review, [Strubberg] ‘must show (1) the district

court committed an error, (2) the error is clear or obvious, and (3) the error affected

hissubstantialrights.’” Id.(quoting United States v. White Bull, 646 F.3d 1082, 1091

(8th Cir. 2011)). Even where those elements are satisfied, the court “will exercise

[its] discretion to reverse ‘only if the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.’” Id. (quoting White Bull, 646 F.3d at 1091

(cleaned up)).

Part of Strubberg’s argument on appeal is that the district court imposed these

special conditions without providing an adequate explanation as to how the

conditions satisfied the requirements of 18 U.S.C. § 3583(d). It is true that when

crafting a special condition, the district court is generally required to “make an

individualized inquiry into the facts and circumstances underlying a case and make

sufficient findings on the record so asto ensure that the special condition satisfiesthe

statutory requirements.” United States v. Glover, 893 F.3d 536, 539 (8th Cir. 2018)

3The Presentence Investigation Report included the challenged special

conditions and noted the statute required a term of supervised release of at least five

years and United States Sentencing Guidelines § 5D1.2(b)(2) required a term of

supervised release of between five years and life. In his briefing and during the

sentencing hearing, Strubberg only challenged the length of his supervised release,

arguing it should be for no more than five years. The district court agreed,

concluding any longer supervision was unnecessary. 

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(quoting United States v. Wiedower, 634 F.3d 490, 493 (8th Cir. 2011)). However,

even if the district court does not make individualized findings, “reversal is not

required . . . if the basis for the imposed condition can be discerned from the record.” 

United States v. Thompson, 653 F.3d 688, 694 (8th Cir. 2011). On the record before

us, and as will be evident from our discussion of Strubberg’ssubstantive complaints,

we cannotsay the district court’sfailure-to-explain was “an obvious error that caused

prejudice and a miscarriage of justice.” United States v. Thompson, 888 F.3d 347,

351 (8th Cir. 2018). For this reason, we decline to vacate the special conditions for

a lack of adequate explanation. 

As for Strubberg’s complaints about the substance of the special conditions,

we begin by noting that district courts have wide discretion when fashioning

conditions of supervised release. See id. at 351. The conditions must, however, be

“reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a),

involve[] no greater deprivation of liberty than is reasonably necessary, and [be]

consistent with any pertinent policy statements issued by the Sentencing

Commission.” Id. (citing 18 U.S.C. § 3583(d)). Because Strubberg did not object to

any of the special conditions, in order to prevail on plain error review he must

“establish that the condition is obviously impermissible” to reverse — it is not

enough that the permissibility of the condition is “reasonably debatable.” Id. at 355. 

For the reasons discussed below, Strubberg cannot meet his high burden. 

1. Computer-Related Conditions

We first consider Strubberg’s challenges to three conditions related to his use

of computers. Conditions “c” and “k,” which are identical, state: “The defendant

shall not possess or use any computer or electronic device with accessto any ‘on-line

computer service,’ without the prior approval of the Probation Office. This includes

any public or private computer network.” Condition “m” requires Strubberg to

consent to the Probation Office conducting periodic, unannounced examination of his

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cell phone contents and hardware. Condition “n” requires that Strubberg consent to

having hardware or software installed on his computer (at Strubberg’s cost) so as to

monitor its use.

We have upheld conditions that limit or restrict the use of computers and the

internet where they are related to the circumstances of the defendant’s offense. See

United States v. Perrin, No. 18-1503, 2019 WL 2517787, at *5 (8th Cir. June 19,

2019) (concluding a computer-related condition did not involve a greater deprivation

of liberty than is reasonably necessary because it was not a complete ban on internet

access and there was ample evidence the defendant used his devices for illegal

activities); United States v. Bender, 566 F.3d 748, 751 (8th Cir. 2009) (citing cases

where we have “affirmed computer and internetrestrictions where the defendantsold,

transferred, produced, or attempted to arrange sexual relations with minors”). We

have reasoned that when such a connection between the crime and the condition

exists, the condition “isreasonably calculated to deter [the defendant]fromrepeating

hisillegal activity, protect the public from similar conduct, and serve his correctional

needs.” Id. 

The district court did not err in imposing these conditions. The trial record

shows Strubberg perused websites in an effort to arrange casual sexual encounters,

which was the genesis of his attempt to have sex with a minor here. He exchanged

emails and photographs with Kathy, including purported photographs of Abby. And

he used search terms indicating he waslooking up information about having sex with

a minor immediately before leaving to meet with Abby. Also, the conditions do not

amount to a total ban on computers or internet use as they allow Strubberg to possess

and use computers authorized by the Probation Office and subject to reasonable

conditions.

 

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2. Conditions Related to Contact and Residence 

We next consider Strubberg’s challenges to three special conditions related to

his contact with minors and hisresidence. Condition “e” provides that Strubberg not

“associate or have any contact with persons under the age of 18, except in the

presence of a responsible adult who is aware of the nature of the defendant’s

background and current offense and who has been approved by the Probation Office.”

Condition “h” provides that Strubberg’s “place of residence may not be within 1,000

feet of schools, parks, playgrounds, public pools, or other locations frequented by

children.” Condition “i” states Strubberg is “barred fromplaces where minors(under

the age of 18) congregate; such as residences, parks, pools, daycare centers,

playgrounds and school[s], unless prior written consent is granted by the Probation

Office.”

Strubberg claims these conditions are “wildly overbroad for a defendant who

was the victim of a sting, and has never been shown to have had contact with any

child for sexual purposes.” He also complains they lack clarity to the point he will

have difficulty complying with them. Although we are troubled by the breadth of the

conditions, we conclude it was not plain error for the district court to impose them.

First, our precedent supports the imposition of condition “i,” which forbids

Strubberg from going places where minors congregate without prior written consent

from the Probation Office. See United States v. Crume, 422 F.3d 728, 733–34 (8th

Cir. 2005) (concluding a similar restriction was sensible and not overly broad after

applying a reasonableness requirement that it would apply only at such places where

children under the age of 18 actually congregate); United States v. Ristine, 335 F.3d

692, 696–97 (8th Cir. 2003) (upholding a similar condition under plain error review). 

Therefore, we conclude it was not plain error to impose the condition on Strubberg. 

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Asfor condition “h,” which forbids his residence from being within 1,000 feet

of “schools, parks, playgrounds, public pools, or other locations frequented by

children,” we have affirmed similar conditions in the past. See Thompson, 888 F.3d

at 353–54 (holding the district court did not commit plain error by including a

condition that did not permit him to reside within 500 feet of places frequented by

children under the age of 18, without prior written approval from the probation

office). We recognize Strubberg’s condition differs from Thompson in that it does

not permit Strubberg to ask the Probation Office to approve an exception. And this

inability to seek approval is troublesome considering the vagueness of the inclusion

of “other locations frequented by children.” 

We are also concerned with condition “e,” which providesthat Strubberg “will

not associate or have any contact with persons under the age of 18, except in the

presence of a responsible adult who is aware of the nature of the defendant’s

background and current offense and who has been approved by the Probation Office.” 

It is true we have affirmed somewhat similar conditions before. See id. at 353

(affirming a condition on plain error review forbidding contact with minors without

prior written permission of the probation office); Bender, 566 F.3d at 753–54

(explaining this court has affirmed similar special conditions where the defendant can

seek permission from the probation office to contact minors in specific situations). 

But the condition here gives us pause because it does not permit Strubberg to seek

approval for appropriate un-chaperoned contact with a minor. And the government

has failed to point to any case where we have affirmed such a condition without the

ability to ask for permission.

 

Despite our concerns, we decline to vacate these conditions on plain error

review because we cannot say they were obviously impermissible. We trust the

probation office and, if necessary, the district court will interpret these conditions in

a manner where they will not unreasonably interfere with Strubberg’s liberty. And

should the special conditions prove unworkable because of their vagueness or

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breadth, Strubberg “may apply to the district court for an appropriate modification,”

pursuant to 18 U.S.C. § 3583(e). United States v. Forde, 664 F.3d 1219, 1225 (8th

Cir. 2012) (quoting United States v. Henkel, 358 F.3d 1013, 1015 (8th Cir. 2004)). 

III. Conclusion

For the above reasons, we affirm the district court’s judgment.

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