Eighth Circuit Upholds Denial of Entrapment Instruction in Online Sex Trafficking Case – U.S. v. Cooke
As a cyber crime criminal defense attorney, I often work with defendants who have been, or feel they have been, entrapped by law enforcement in a “sting” operation. These are common in cases where the defendant is accused of trying to meet a minor for sex, and very often, the client asks me whether we can plead entrapment. Unfortunately, the answer is frequently no, because there’s a high threshold for an entrapment defense, and the courts have ruled fairly consistently that the typical undercover law enforcement operation is not entrapment. So I was interested to see another case taking on this thorny issue in United States v. Cooke, in the Eighth U.S. Circuit Court of Appeals. Louis Edward Cooke was convicted of one county of attempted sex trafficking of a minor and one count of attempting to coerce a minor into a sex act. He appealed the denial of an entrapment defense, but the court upheld it.
Cooke, of eastern Missouri, answered an ad placed online promising two sisters who would “make your dreams come true.” There were no sisters, of course; the ad was placed by police officers. In response to Cooke’s response, they sent him a “digitally morphed” image of an underage girl and quoted prices for 30 or 60 minutes with her. They ultimately exchanged 14 emails and five phone calls, during which time Cooke was told the sisters were 13 and 15 and briefly spoke to a female officer posing as the older sister. He also tried to negotiate down the price and, after officers told him the “pimp’s” car wouldn’t start, offered to jump it for a discount. After coming to the house and agreeing to pay $60 for 15 minutes with the older girl, Cooke was arrested and charged. At trial, he testified that he thought the ad was a hoax and did not intend to have sex with the girl. At trial, he unsuccessfully requested an entrapment instruction, but was denied; his sentence was 10 years in prison.
On review, the Eighth Circuit noted that defendants may have an entrapment instruction only if a reasonable jury could find entrapment from the evidence. Law enforcement must induce the crime, and the defendant must lack a predisposition for it. The court ultimately decided that this case falls short of that standard. In support of his argument, Cooke cited the phone call that officers placed to him to see if he was coming to “meet” the girl — but the Eighth Circuit said that call shouldn’t be considered in isolation. It said, Cook initiated the majority of calls and emails, repeatedly tried to determine whether he was speaking to law enforcement, sought a discount and asked for privacy when he entered the house. Thus, the court found he was predisposed to commit the crimes he was convicted of, and no entrapment instruction was required. The court also rejected Cooke’s objection to the admittance of unrelated emails, including some to an alleged 16-year-old, saying Cooke’s response (“that’s cool that ur young, but i don’t want u to narc”) was further evidence of his propensity and not hearsay.
As a federal sex crimes defense lawyer, I might also raise this objection. “That’s cool that you’re young” is not an especially lascivious response, and the news came after Cooke had corresponded several times with a young woman he knew was a college student. This makes it difficult to interpret the response as predisposition to have sex with underage girls. As for the larger issue of entrapment, courts have repeatedly ruled that the evidence must show no propensity to commit the crime — but courts are free to decide for themselves what is evidence of propensity. Thus, courts may decide the issue using evidence that other courts would not find relevant, such as the number of phone calls each party placed. As an online sex trafficking criminal defense attorney, I explain all of this in detail, with a candid discussion of options and likely outcomes, when an entrapment defense is possible.
Seltzer Law, P.A., represents clients around the United States who are accused of serious cyber crimes, including online sex crimes. Our lead attorney, David Seltzer, is an experienced former cyber crime prosecutor in Miami-Dade County. To learn more or set up a free consultation, call us toll-free at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.
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