Eighth Circuit Upholds Conviction for Attempting to Entice a Minor Over Entrapment Argument – U.S. v. Herbst

February 6, 2012 by David S. Seltzer

I’m proud to announce that I’ll be appearing on TruTV’s In Session this Friday at 1 p.m. Eastern. I will be discussing the Dalia Dippolito case from here in South Florida. If you’re not familiar with this case, Dalia Dippolito was a newlywed from Boynton Beach who conspired with one of her two extramarital boyfriends to kill her husband, Michael Dippolito, allegedly for his money. She was convicted last summer and sentenced to 20 years in prison. I will give my opinion as a south Florida criminal defense attorney about the case and Dalia Dippolito’s appeal. In Session airs from 9 a.m. to 3 p.m.; I’ll be appearing at 1 p.m .

Entrapment defenses are a common issue in my work as a cyber crime criminal defense lawyer. In an entrapment defense, the defendant argues that he or she would not have committed the crime without law enforcement’s actions. Though this defense seems very applicable to cases of online solicitation of a minor, it generally fails in such cases because of the fact patterns involved (and perhaps because the court is unsympathetic to the defense). In United States v. Herbst, the Eighth U.S. Circuit Court of Appeals rejected such an argument by Randall Allen Herbst of Iowa. Herbst was convicted of attempting to entice a minor to engage in illicit sexual activities. In his appeal, he argued unsuccessfully that his right to a speedy trial was violated, he should have been able to instruct the jury on entrapment and the government failed to prove its case.

Herbst chatted online in 2010 with a law enforcement officer posing as a 13-year-old girl named Brooke. Brooke and Herbst discussed sexual topics, and arranged to meet the next day at her local community center. The next day, they talked online again and Herbst asked Brooke to call him, which was arranged with the help of a female administrative worker in the office. When Herbst arrived at the meeting place, he texted Brooke with a request to walk toward the road, and was promptly arrested when he parked. At the sheriff’s office, Herbst confessed that he’d chatted with Brooke and another false persona, but insisted at trial that he was planning only on giving Brooke a ride home. He requested an entrapment instruction, but the district court denied it, saying the evidence did not support it. After his conviction, he asked for a new trial on the grounds that he wasn’t told how long the deputy had been posing as teenaged girls in chats with him, which he said supported the entrapment defense. This was also denied.

On appeal, Herbst argued that the evidence was not sufficient to convict him; that he should have been given an entrapment instruction; and that the new evidence required a new trial. All of these arguments failed. On the evidence argument, he said prosecutors did not show he had performed a substantial step toward completing the offense of enticement of a minor, because he had not stopped at the meeting place or prepared for a sexual encounter, and had another reason to be in the area. However, the Eighth Circuit said, driving toward a meeting place meets the requirements of the offense, and Herbst also texted Brooke with instructions that would allow him to pick her up. Furthermore, it found that Herbst was not entitled to an entrapment defense because he showed a predispostion to commit the crime; he initiated sexual discussions with both false teens and suggested activities. Finally, the Eighth ruled that the disclosure of the new evidence — that Herbst had talked to the false personas two months earlier than the officers had testified at trial — was unlikely to lead to acquittal in a new trial.

As a solicitation of a minor criminal defense attorney, I warn my clients that entrapment is a difficult defense to use. As the Eighth laid out in this decision, defendants must be able to show that they had no predisposition to commit the crime, as well as that the law enforcement inducements were the main reason they did it. The predisposition issue in particular is difficult because it requires defendants to prove a negative and can be overcome by any previous history or even prior accusations of crimes involving children. Law enforcement is well aware of this, of course, and takes steps to ensure that defendants cannot use it during this kind of “sting” operation. In my work as an enticement of a minor lawyer, I consider those and other facts before I advise my clients on how to proceed.

If you’re charged with a cyber crime offense, including any serious online sex crime involving a minor, don’t wait to contact Seltzer Law, P.A., for a free consultation. You can send us a message online or call 1-888-THE-DEFENSE (1-888-843-3333).

Similar blog posts:

Federal Judge Throws Out Charges Against Man Accused of Online Solicitation of a Minor

Missouri Supreme Court Declines to Suppress Evidence in Solicitation of a Minor Case – State v. Faruqi

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