Rutgerson: Agreement to pay for sex satisfies "persuade or induce" element of 2422(b)

In U.S. v. Rutgerson, No. 14-15536 (May 12, 2016), the Court affirmed a conviction for attempting to persuade, induce, entice or coerce a minor into engaging in prostitution, in violation of 18 U.S.C. § 2422(b). After exchanging emails with a Ft. Lauderdale, Florida, police detective posing as a 15-year old named “Amberly,” Rutgerson was arrested as he arrived at a hotel at which “Amberly” had agreed to have sex in exchange for his payment of $300. The Court rejected Rutgerson’s argument that this was simply a “market transaction.” The court held that Amberly’s agreement to have sex in exchange for money sufficed to show that Rutgerson attempted to persuade or induce Amberly to engage in sex with him. The Court also rejected Rutgerson’s claim that the evidence showed that he was entrapped. The Court noted that Rutgerson “never expressed any hesitation about having sex with a minor.” The Court found no error in the district court’s refusal to give a theory of defense instruction, holding that the district court’s instruction correctly “tracked the statutory language,” and that the proposed instruction was a substantive instruction on the statute, not a theory of defense instruction. The proposed instruction was incorrect because it failed to account for the fact that Rutgerson was charged with an “attempt,” and therefore should have admitted of the possibility that he could be guilty even if had tried unsuccessfully to entice Amberly into engaging in sex. Finally, the Court agreed with Rutgerson that it was error for the district court to exclude the proffered testimony of a police detective that Rutgerson had never visited any websites dedicated to sex with minors. This evidence was relevant to rebut the government’s charge that Rutgerson was predisposed toward attempting to induce an underage prostitute to have sex with him. However, the error was harmless, because essentially the same evidence was elicited from another witness, and Rutgerson was able to emphasize this evidence during closing defense argument.