Supreme Court Final Day

In this June 20, 2019, file photo, the Supreme Court is seen under stormy skies in Washington. Two issues that could determine the distribution of political power for the next decade await resolution on the Supreme Court's final day of decisions before a long summer break. Chief Justice John Roberts could well be the author of decisions on both politically charged topics Thursday, June 27, whether to allow a citizenship question on the 2020 census and place limits on drawing electoral districts for partisan gain.

A man convicted of attempted sex trafficking of a child has filed an appeal to the U.S. Supreme Court, arguing his jury should have been able to consider that an Arapahoe County sheriff’s investigator committed entrapment while posing as a 17-year-old girl online.

Jalil Lemason Robinson is now asking the nation's highest court to consider whether the Denver-based federal appeals court added a limitation on the entrapment defense beyond what the Supreme Court previously articulated nearly 90 years ago.

After a federal jury found Robinson guilty in December 2018 for attempting to pimp a fictitious girl, Robinson turned the U.S. Court of Appeals for the 10th Circuit. Among other claims, he asserted the trial court judge was wrong to not inform the jury that the government had to prove beyond a reasonable doubt that Robinson was not entrapped.

For entrapment to occur, a defendant must show government agents induced him to commit an offense that he was not otherwise inclined to commit.

In April of this year, a three-judge panel for the 10th Circuit ruled against Robinson. Judge Joel M. Carson III, writing for the panel, explained in part that “no entrapment jury instruction was warranted where the government offered a chance to back out of the potential crime.”

Now, Robinson is challenging that justification, arguing the Supreme Court has issued no ruling that nullifies an entrapment defense if the defendant had the opportunity to back out, but did not take it.

“This exception — wholly of certain courts of appeals’ creation —  threatens to fundamentally weaken criminal defendants’ rights in the face of new and evolving law enforcement methods of governmental inducement,” Ryan A. Ray, an attorney in Tulsa representing Robinson, wrote to the Supreme Court on July 1.

In Robinson's case, an Arapahoe County Sheriff’s Office investigator created a profile for an 18-year-old Aurora girl named “Brooke” on the social networking service hi5. The agent was assigned to the Federal Bureau of Investigation’s Innocence Lost task force, which handles child sexual exploitation and human trafficking cases.

Robinson, who also had a profile on the adults-only platform, contacted Brooke. Several weeks later, Brooke responded, and Robinson offered to make her a “business partner” — meaning a prostitute — and told her they could make “hella money.”

Reportedly, the two exchanged roughly 90 text messages until Brooke told Robinson that she was actually 17 years old and her real name was “Nikki.” The 10th Circuit found that Robinson pushed forward, telling Nikki she would need a fake identification and pressuring her to send nude photos. When Nikki agreed to travel to Robinson in California, federal agents met him at the bus terminal and arrested him.

"When the government disclosed Nikki was underage, it provided Defendant with an out he refused to take," Carson wrote in the panel's opinion. In total, "we conclude evidence exists in the record sufficient to support the jury's determination that Defendant intended for Nikki to engage in commercial sex acts while still a minor."

However, Robinson told the Supreme Court that he repeatedly affirmed he was hesitant to take Nikki on as a prostitute until she turned 18.

“On your birthday we will be doing things bigger and better,” Robinson wrote in one message. “My only concern is, is because you are 17,” he said in a phone call with someone posing as Nikki.

Robinson’s attorney argued his client was not looking to initiate criminal activity with a child, as evidenced by his profile on the adults-only website and his initial messages to Brooke under the assumption she was 18.

“There is clearly some evidence that the Government induced Mr. Robinson into the ‘child’ element of the charged offense,” stated Robinson’s petition. An additional requirement for entrapment — that Robinson had no opportunity to back out — “makes little sense as a workable legal standard and it is in plain and direct conflict with this Court’s prior case law.”

Ian P. Farrell, an associate professor of criminal law at the University of Denver, said Robinson was correct in asserting the Supreme Court has never required judges to automatically deny an entrapment instruction to a jury if undercover police offered the defendant a chance to back out.

“The fact that a defendant had the opportunity to back out and did not take it is a relevant factor among others in determining whether there was inducement and non-predisposition,” Farrell said.

But overall, he did not believe Robinson had a persuasive argument. The 10th Circuit panel, Farrell noted after reviewing the case, considered Robinson’s refusal to back out an important factor, but did not say it merited an automatic denial of the jury instruction.

The case is Robinson v. United States.

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