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Full Opinion
USCA11 Case: 23-12132 Document: 48-1 Date Filed: 06/24/2024 Page: 1 of 23
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12132
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE MOJOCOA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:22-cr-00017-GAP-PRL-1
____________________
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2 Opinion of the Court 23-12132
Before WILSON, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
Jorge Mojocoa offered and agreed to pay $60 to have oral
sex with a 12-year-old girl who was unable to speak, paralyzed from
the waist down, and who needed money for medical bills because
her mother had just died. Thankfully, the act itself never
happened—Mojocoa made this deal with an undercover agent
posing as the girl’s aunt, and the would-be-victim was imaginary.
Mojocoa was arrested at the arranged meeting place carrying the
Skittles and lubricant the agent had told him to bring for the girl.
While in custody, Mojocoa admitted to the underlying conduct.
But he argued at trial that the government had entrapped him. The
jury rejected that defense and found him guilty of attempted
enticement of a minor to engage in sexual activity.
This is Mojocoa’s appeal. He raises four arguments. First,
Mojocoa argues that the district court should have granted his
motion for a judgment of acquittal because the government did not
prove that he was “predisposed” to comment the offense
independent of the undercover agent’s influence. Second, he
asserts that the district court abused its discretion in allowing the
government to introduce a jail call between him and his wife into
evidence, in which he acknowledged that he had confessed,
because the call was protected by spousal privilege and unduly
prejudicial. Third, he contends that the district court abused its
discretion in not giving a modified instruction on the entrapment
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23-12132 Opinion of the Court 3
defense. And finally, he urges that the government shifted the
burden of proof in closing arguments by telling the jury it would
need to find that he was the unluckiest man in the world to acquit
him. We reject each argument and affirm.
I. Background
A. The Offense Conduct, Arrest, and Indictment
The government’s key witness at trial was Agent Angela
Fitch of the Unified Drug Enforcement Strike Team with the
Marion County Sheriff’s Office. In 2021, Fitch was assigned to an
undercover operation investigating child predators. In that role,
Fitch posted internet advertisements posing as an aunt soliciting
her (imaginary) niece for prostitution.
On March 29, 2022, she posted an advertisement on
Craigslist as part of the operation. The advertisement did not
explicitly say that it was advertising a young child for sex, because
Craiglist flags such ads. The ad represented that she, the poster,
had a 12-year-old niece who was paralyzed and was unable to
communicate, and had substantial medical bills. The ad stated that
the poster was “looking for someone who would enjoy [the girl’s]
company[.]”
Mojocoa responded to the advertisement. He asked
whether Fitch was with the police. In order to give him an out,
Fitch asked if Mojocoa was with the police and said that, if so, she
did not think they should continue the conversation. Fitch said she
would call him the next day, in (she said) another effort to give him
a chance to rethink the situation.
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4 Opinion of the Court 23-12132
On a phone call the next day, Mojocoa and Fitch discussed a
planned sexual encounter with the young girl. Mojocoa asked
Fitch if the young girl could get pregnant. He assured Fitch that he
did not need condoms because he “shoots blanks.” Mojocoa
confirmed that he wanted to have sex with the girl, but, because
she was paralyzed, asked “[h]ow do we do it?” Mojocoa asked Fitch
multiple times how much she charged to pimp out her niece. Fitch
never stated a particular price, but she did tell Mojocoa that
another man had paid $100. Mojocoa offered to pay $60 for oral
sex. In a follow-up text message, Fitch told Mojocoa that “the other
guy did everything. She[, the young girl,] has no feeling in her
lower body, so you can do whatever you want.”
On a later phone call, Mojocoa remarked that Fitch was a
woman. He said “[t]hat’s something different, something new. It
just . . . never happened to me like that.” Mojocoa also said that, if
the encounter worked out, they could make it “a regular thing.”
Later on, Fitch told Mojocoa to bring Skittles for the girl. Fitch
explained that she mentioned Skittles to make sure that Mojocoa
knew the girl was a child and to help identify him at the scene of
the meet-up.
On the day of the rendezvous, Mojocoa texted Agent Fitch
that he was on his way and reiterated that he hoped he was not
being set up by the police. He also said that if he was being set up,
it would destroy him and his family. He also said that he was
nervous because he “never did [sic.]” Fitch said that she was
“nervous too” but “need[ed] the money.” She added, “[p]lus, since
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23-12132 Opinion of the Court 5
[the young girl] doesn’t feel anything from the waist down, it’s not
like she is getting hurt, and she can’t tell anyone.” When Mojocoa
arrived—two hours early—he asked what to do, and Fitch texted
him: “Go grab some lubricant. She is still practically a virgin. She is
only 12.” Mojocoa said he would go to Walmart.
Once Mojocoa arrived at the meeting place, he was
surrounded and arrested. Law enforcement found two bags of
Skittles and lubricant in his car.
After he was arrested, Mojocoa waived his Miranda rights. 1
He thanked God that he did not have a daughter, for fear of abusing
her. And, in a written statement, he admitted responding to the
Craigslist ad, offering to pay $60 for oral sex with a 12- or 14-year-
old girl, and driving to an agreed-upon location for sex after buying
candy and lubricant.
Mojocoa was indicted for attempted enticement of a minor
to engage in sexual activity. See 18 U.S.C. § 2442.
B. The Jail Call
At trial, the government sought to introduce recorded jail
calls between Mojocoa and his wife. During one such call (the only
one relevant on appeal), Mojocoa’s wife implored him to enter a
plea, stating, “there’s an absolute case. You confessed”—to which
Mojocoa responded “Yeah. I know that. I know.” Before such calls,
an automated message played twice, informing inmates that the
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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6 Opinion of the Court 23-12132
call was “not private” but would be “recorded” and “may be
monitored.” The message even directs inmates to take certain
steps if they believe a call should be private.
Mojocoa filed a motion in limine, seeking to prevent the
government from introducing the jail calls and various other
statements he made in an interview. Mojocoa argued that the
conversation was covered by spousal privilege and, even if it was
not, it was unduly prejudicial under Federal Rule of Evidence 403.
The court overruled the objections, and the calls were published to
the jury.
C. The Entrapment Instruction
Mojocoa’s defense was based on the theory that Fitch and
the government had entrapped him. He submitted a modified jury
instruction arguing that, while this Circuit has a pattern instruction
on entrapment, his instruction better reflected the law of
entrapment under Jacobson v. United States, 503 U.S. 540 (1992). His
main complaint was that the pattern instruction did not clearly
state that the burden of proof rested with the government.
After the government argued that the pattern instruction
was adequate and Mojocoa’s substitute mischaracterized the law,
Mojoca submitted a second proposed instruction on the
entrapment issue. This proposed instruction read as follows:
A person is entrapped when he or she is induced or
persuaded by law enforcement officials or their agents
to commit a crime that he or she had no previous
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23-12132 Opinion of the Court 7
intent to commit, and the law as a matter of policy
forbids his or her conviction in such a case.
However, there is no entrapment where a defendant
is ready and willing to break the law and the
Government agents merely provided what appears to
be a favorable opportunity for the defendant to
commit the crime.
The Government has the burden of proving beyond a
reasonable doubt that the defendant was not
entrapped.
So, a defendant would not be a victim of entrapment
if you should find beyond a reasonable doubt that a
defendant was ready, willing[,] and able to commit the
crime charged in the indictment whenever
opportunity was afforded and that Government
officers or their agents did no more than offer an
opportunity.
On the other hand, if the evidence in the case leaves
you with a reasonable doubt whether a defendant had
any intent to commit the crimes except for
inducement or persuasion on the part of the
Government officer or agent, then it is your duty to
find the defendant not guilty.
In support of his modified instruction, Mojocoa argued that
the pattern instruction included an example that “seem[ed] to
direct a verdict for the Government with respect to law
enforcement sting operations of the nature in [this] case.” The
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8 Opinion of the Court 23-12132
pattern example reads: “For example, it’s not entrapment for a
government agent to pretend to be someone else and offer—
directly or through another person—to engage in an unlawful
transaction[.]” Eleventh Circuit Pattern Jury Instructions (Criminal
Cases) S13.1 (2022).
At the beginning of trial, the court instructed the jury that
the government had the burden to prove guilt beyond a reasonable
doubt. The court repeated this admonition in its final instructions.
As for the final entrapment instruction, the district court
instructed the jury that the government had the burden to show
Mojocoa was not entrapped and that, “if the government has met its
burden, it is not entrapment for a government agent to pretend to
be someone else and offer directly or through another person to
engage in an unlawful transaction.” (emphasis added).
D. Closing Arguments and the Verdict
After the close of the evidence, Mojocoa argued to the jury
that the government had failed to prove he was not entrapped into
committing the crime because it had not shown he was
“predisposed” to commit the crime.
In response, the government stated, at the end of its rebuttal
argument, that “[i]n order for you[, the jury,] to find that this
defendant was entrapped and he is not guilty, period, you’ve got to
find that this is the most unlucky man on the face of the planet.”
Mojocoa objected. The court overruled the objection, stating that
the comment was simply argument. When the government
resumed its rebuttal argument, it repeated the remark, explaining
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23-12132 Opinion of the Court 9
that Mojocoa went on Craigslist, clicked on the ad, communicated
with Fitch, took instructions about what to bring to the encounter,
and even wrote down and admitted to his wife that he had done all
these things.
The jury found Mojocoa guilty of attempted enticement of
a minor to engage in sexual activity, and the court sentenced him
to 121 months’ imprisonment.
II. Discussion
Mojocoa makes four arguments on appeal. First, he
contends that the district court erred in denying his motion for a
judgment of acquittal. Second, he argues that the district court
abused its discretion in admitting the jail call between him and his
wife into evidence. Third, he argues that the district court abused
its discretion in refusing to give his modified jury instruction on the
entrapment defense. And finally, he argues that the government
improperly shifted the burden of proof to him in its closing
argument. We consider, and reject, each argument in turn.
A. The district court correctly denied Mojocoa’s motion for
a judgment of acquittal.
Mojocoa first argues that his motion for a judgment of
acquittal should have been granted because the government failed
to disprove his entrapment defense—that is, failed to show beyond
a reasonable doubt that he was “predisposed to commit the offense
of . . . child enticement.” Mojocoa suggests that the government
initiated contact with him, that the presentation of the victim
amounted to “compulsion,” and, most importantly, that “the
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10 Opinion of the Court 23-12132
government presented no evidence” that he “had ever engaged in
any child sex-related transactions or activities in his . . . life[.]”
Those arguments all fail.
“After the government closes its evidence or after the close
of all the evidence, the court on the defendant’s motion must enter
a judgment of acquittal of any offense for which the evidence is
insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). “We
review the denial of a motion for judgment of acquittal de novo.”
United States v. Evans, 344 F.3d 1131, 1134 (11th Cir. 2003). “Since
entrapment is generally a jury question, entrapment as a matter of
law is a sufficiency-of-the-evidence inquiry that [this Court]
review[s] de novo, viewing all facts and making all inferences in
favor of the government.” United States v. Rutgerson, 822 F.3d 1223,
1234 (11th Cir. 2016) (footnote omitted). “The jury’s verdict
cannot be overturned if any reasonable construction of the
evidence would allow the jury to find the defendant guilty beyond
a reasonable doubt.” United States v. Padron, 527 F.3d 1156, 1159
(11th Cir. 2008) (alteration accepted) (quotation omitted).
There are two elements to an entrapment defense: (1) the
government in some way induced the commission of the crime,
and (2) the defendant was not predisposed to commit the crime
before inducement. Rutgerson, 822 F.3d at 1234. “[I]nducement
consists of opportunity plus something like excessive pressure or
manipulation of a non-criminal motive.” United States v. Brown, 43
F.3d 618, 623 (11th Cir. 1995). The defendant bears a “light”
burden of production to show inducement. United States v. Isnadin,
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23-12132 Opinion of the Court 11
742 F.3d 1278, 1297 (11th Cir. 2014). If the defendant meets this
burden, then “the burden shifts to the Government to prove
beyond a reasonable doubt that the defendant was predisposed to
commit the crime.” Id. 2
Predisposition requires “the prosecution [to] prove beyond
reasonable doubt that the defendant was disposed to commit the
criminal act prior to first being approached by Government
agents.” Jacobson, 503 U.S. at 548–49. In other words, the
government must prove “that the defendant was actually
predisposed to commit the underlying crime absent the
government’s role in assisting such commission.” United States v.
Aibejeris, 28 F.3d 97, 99 (11th Cir. 1994) (emphasis omitted). This
“[p]redisposition may be demonstrated by” such things as “ready
commission of the charged crime”; the fact that a defendant was
“given opportunities to back out . . . but failed to do so”; and
“[p]ost-crime statements[.]” Rutgerson, 822 F.3d at 1235 (quoting
Brown, 43 F.3d at 625).
There was more than enough evidence here for the jury to
conclude Mojocoa was predisposed to commit the crime
charged—and thus reject his entrapment defense.
To begin with, Mojocoa is wrong factually—the
government did not initiate contact, Mojocoa did so when he
contacted the undercover agent in response to the Craigslist ad. See
2 The government does not dispute that Mojocoa met his burden of
production on inducement, so we address only predisposition.
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12 Opinion of the Court 23-12132
id. (having “made the initial contact” with the victim supported a
finding of predisposition). A jury could also reasonably conclude
that Mojocoa was the first to bring up sex with the would-be-
victim, since the ad was ambiguous or at least euphemistic. See id.
(having “readily proceeded to attempt to arrange a sexual
encounter” with the victim supported a finding of predisposition).
Mojocoa even expressed a desire to “make [appointments to have
sex with the child] a regular thing.” Mojocoa “never once said that
he did not want to have sex with” a child. Id.
Further, a reasonable jury could have found that Mojocoa
“persistently pursued [Fitch, the undercover agent] over three days
in an attempt to agree on” the details of “a sexual encounter.” Id.
Mojocoa communicated with Fitch for three days and even
negotiated the price of sexually assaulting the would-be victim. See
id. (finding predisposition in part because the defendant went to the
effort of “dr[iving] from Miami to Fort Lauderdale for the purpose
of paying . . . for sex”).
Nor did Mojocoa “back out of his meeting” with Fitch and
the would-be-victim, “and [he never] expressed any hesitation
about having sex with a minor, although he repeatedly had the
opportunity.” Id.; see also Brown, 43 F.3d at 625 (“A predisposition
finding is also supported by evidence that the defendant was given
opportunities to back out of illegal transactions but failed to do
so.”). Indeed, Mojocoa’s expressed concern was about whether the
police officer was part of a sting—which demonstrates his
consciousness of wrongdoing, and thus predisposition to commit
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23-12132 Opinion of the Court 13
the crime if he thought he would not get caught. Rutgerson, 822
F.3d at 1235 (“in spite of the expressed concerns that” the
undercover agent “was part of a sting operation, [the defendant]
continued to pursue a sexual encounter with her”); see also United
States v. Lee, 603 F.3d 904, 915 (11th Cir. 2010) (holding that the
defendant’s concern that an online person the defendant intends to
have sex with is part of a sting operation supports a relevant
inference of guilt because “a relationship with . . . an adult[ ] would
not have concerned law enforcement”).
Finally, Mojocoa’s own statements provided substantial
evidence of predisposition. For one, a reasonable jury could have
interpreted Mojocoa’s expression of surprise that the undercover
agent was a woman as an indication that he had engaged in such
activity before the sting here. See Brown, 43 F.3d at 626 (“Evidence
that [the defendant] was actually engaged in drug smuggling prior
to contact with Government agents would certainly establish his
predisposition to engage in smuggling beyond a reasonable
doubt.”); see also Rutgerson, 822 F.3d at 1235–36 (even where there
was “no evidence of prior related offenses,” the fact that the
defendant “had accessed numerous ads for ‘young’ prostitutes
online” demonstrated his “familiar[ity] with the website he used”
and therefore “suggest[ed] that he was predisposed to attempt to
entice young women into having sex”). And for another, Mojocoa
told law enforcement after his arrest that he was thankful “he didn’t
have a daughter out of fear of abusing her.” See Brown, 43 F.3d at
626 (the defendant “made many statements in the record which, if
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14 Opinion of the Court 23-12132
credited, provide direct proof of his prior involvement in drug
smuggling and dealing activities”).
Mojocoa disagrees, advancing essentially two arguments in
response. 3 He disputes the strength of some of these factual
inferences, and he insists that the government failed to show
predisposition prior to the government’s approach. Both
arguments fail.
First, Mojocoa cannot show that no reasonable jury could
make the inferences and draw the conclusions discussed above. He
attempts, for example, to cast the Craigslist ad as “initiat[ing]
communication” with him (which, as we have said, is just wrong);
he plays up the government’s role in sexualizing the would-be-
3 We say “essentially” because Mojocoa also suggests that the presentation of
“[a] victim [who] literally could not report any offense” (because “she was . . .
non-verbal”), combined with “great sympathy” for the undercover agent and
the would-be-rape-victim (because “the[ ] money was desperately needed”),
created “compulsion” or an “emotional incentive” for him to rape a disabled
minor.
We set this suggestion off to one side because Mojocoa’s argument on this
point—or, perhaps, the argument made for him—is not a defense, it is a
confession. That Mojocoa could be enticed to commit an offense because the
victim was (1) unable to report him and (2) vulnerable, shows, not refutes, that
he was predisposed to commit the offense. And the suggestion that a person
would be compelled to commit the heinous offense attempted here because
the victim needed money—recall the story was that she had medical bills and
her mother had recently died—is appalling. A jury would be more than
justified in finding that such a child’s need for money (which a person could
just give out of charity) is no inducement to raping her—but rather that
evidence of enticement to vulnerability is, itself, evidence of predisposition.
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23-12132 Opinion of the Court 15
victim by reference to the man who paid $100 for time with her,
and the statement that Mojocoa could “do whatever [he] want[ed]”
with the child; and he disputes—without explanation—the
inference that his surprise at speaking to a woman about the
encounter suggests that he had engaged in similar transactions in
the past. But even if those were valid critiques of the permissible
inferences—and they are not—the inferences are still permissible.
And our review here is properly limited to “viewing all facts and
making all inferences in favor of the [verdict].” Rutgerson, 822 F.3d
at 1234.
Second, Mojocoa emphasizes the government must show
predisposition prior to the approach of government agents. See
Jacobson, 503 U.S. at 548–49. But as we have just explained, the
government did so. A jury could reasonably conclude that the
evidence discussed above proves a predisposition that existed
before and independent of Mojocoa’s contact with Fitch. The
government need not meet its burden by producing evidence of
events or conduct that took place in time before the sting
operation. See Rutgerson, 822 F.3d at 1235 (the “[e]xistence of prior
related offenses is relevant, but not dispositive.” (quoting Brown, 43
F.3d at 625)).
“The long and short of it is that the government agents
‘simply provided [Mojocoa] with the opportunity to commit a
crime’ by posting the [Craigslist] ads, and his ‘ready commission of
the criminal act amply demonstrate[s the necessary]
predisposition.” Id. at 1236 (quoting Jacobson, 503 U.S. at 550).
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16 Opinion of the Court 23-12132
Thus, a reasonable jury could find that the government proved
Mojocoa’s predisposition to commit the crime, and the district
court correctly denied Mojocoa’s motion for a judgment of
acquittal.
B. The district court did not abuse its discretion in
allowing the jail call with Mojocoa’s wife into evidence.
Mojocoa also argues that the district court should not have
allowed the government to introduce the jail call with his wife. He
primarily contends that the call was protected by the marital
privilege. And, failing that, he asserts that “the jail call should have
been inadmissible because . . . the prejudicial effect” of the call
“outweighed its probative value” under Federal Rule of Evidence
403.
“We review a district court’s decision to admit or exclude
evidence for abuse of discretion.” United States v. Reeves, 742 F.3d
487, 501 (11th Cir. 2014). The marital-communications privilege
makes confidential communications between a husband and wife
inadmissible. Blau v. United States, 340 U.S. 332, 333 (1951); see also
Trammel v. United States, 445 U.S. 40, 50–51 (1980) (discussing “the
privilege against adverse spousal testimony”). We presume
communications between husband and wife are confidential, but
“that presumption can be overcome by proof of facts showing that
[the communications] were not intended to be private.” Pereira v.
United States, 347 U.S. 1, 6 (1954). “The presence of a third party
negatives the presumption of privacy.” Id. Rule 403, in turn,
provides that “the court may exclude relevant evidence if its
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23-12132 Opinion of the Court 17
probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403. And of
course, “[a]n erroneous evidentiary ruling will result in reversal
only if the resulting error was not harmless.” United States v.
Frediani, 790 F.3d 1196, 1200 (11th Cir. 2015).
We see no abuse of discretion here. First, the presence of a
third party negates the presumption of privacy in spousal
communications, Pereira, 347 U.S. at 6, and the jail call here was
preceded by an automated message that the call “is not private”
and “will be recorded.” The system even instructed Mojocoa to
hang up and take other action if he wanted the call to be private.
So the government successfully rebutted the presumption that
Mojocoa’s conversation with his wife was kept confidential.
Second, the district court had ample discretion to conclude
that admission of the jail calls did not violate Rule 403’s exclusion
of evidence that is substantially more prejudicial than probative.
The jail call evidence was prejudicial to Mojocoa’s case, to be sure,
but it was not unfairly prejudicial because it did not “suggest [a]
decision on an improper basis,” Steger v. Gen. Electric Co., 318 F.3d
1066, 1079 (11th Cir. 2003) (emphasis added)—but rather based on
the fact that Mojocoa had confessed, see United States v. Wright, 392
F.3d 1269, 1277 (11th Cir. 2004) (“consciousness of guilt” may be
evidence of guilt). See also United States v. Tillmon, 954 F.3d 628, 643
(4th Cir. 2019) (damage to a party’s case is not unfair prejudice
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18 Opinion of the Court 23-12132
under Rule 403, which refers instead to capacity of some
concededly relevant evidence to lure factfinder into declaring guilt
on a ground different from proof specific to charged offense).
Regardless, any error here was plainly harmless. A jail call
acknowledging that Mojocoa confessed is cumulative of the actual
confession—to say nothing of the other, overwhelming evidence
of guilt—so either or both supposed evidentiary errors would have
been harmless anyway. See Frediani, 790 F.3d at 1202 (finding that
any error from admitting evidence was harmless in light of
overwhelming evidence of defendant’s guilt).
Thus, we find no reversible error in allowing the jail calls
into evidence.
C. The district court did not abuse its discretion in refusing
to give Mojocoa’s preferred jury instruction on
entrapment.
Mojocoa next argues that the district court should have
given his requested jury instruction on entrapment. Mojocoa
contends that the instructions as given “provided the possibility
that the jury found entrapment on his conduct where the evidence
failed to prove his predisposition[.]”
We review jury instructions de novo “to determine whether
they misstate the law or mislead the jury to the objecting party’s
prejudice,” United States v. Gomez, 580 F.3d 1229, 1233 (11th Cir.
2009) (quotations omitted), but we review a “district court’s refusal
to give a requested jury instruction” only for abuse of discretion,
United States v. Mayweather, 991 F.3d 1163, 1174, 1183 (11th Cir.
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23-12132 Opinion of the Court 19
2021). “So long as the district court’s jury instructions accurately
reflect the law, the trial judge has wide discretion to decide on the
style and wording of the instruction.” United States v. Singer, 963
F.3d 1144, 1162 (11th Cir. 2020) (alteration adopted) (quotation
omitted). Thus, our job on appeal is to “examine the jury charges
as a whole, determining whether the entire charge sufficiently
instructed the jury about the issues.” Id. at 1162–63 (alterations
adopted) (quotations omitted).
We reject Mojocoa’s argument that the district court abused
its discretion in not giving his modified version of the entrapment
instruction. Considered as a whole, the jury instructions given by
the district court explained that (1) government had the burden of
proving the case beyond a reasonable doubt; (2) the jury would
have to find beyond a reasonable doubt that the government only
offered him an opportunity to commit a crime he was already
willing to commit, and (3) the jury would have to find him not
guilty if there was reasonable doubt about whether he was willing
or predisposed to commit the crime without government
persuasion. Those instructions are an accurate statement of the
law. See Jacobson, 503 U.S. at 548–49 (holding that, to overcome the
defense of entrapment, “the prosecution [must] prove beyond
reasonable doubt that the defendant was disposed to commit the
criminal act prior to first being approached by Government
agents.”). Thus, the court was “not required to adopt the precise
wording of [Mojocoa’s] proposed charge[.]” Singer, 963 F.3d at
1163.
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20 Opinion of the Court 23-12132
“In short, the district court’s jury instructions adequately
covered [Mojocoa’s] proposed instruction, and the district court
did not abuse its discretion when it declined to give [his] proposed
jury instruction[.]” Id. We therefore find no abuse of discretion in
refusing to give Mojocoa’s custom instruction.
D. The district court did not commit reversible error in
failing to correct the government’s closing argument.
Finally, Mojocoa argues that the government improperly
attempted to shift the burden of proof during its closing argument
when it told the jury that, “[i]n order for you to find that this
defendant was entrapped, and he is not guilty . . . you’ve got to find
that this is the most unlucky man on the face of the planet.”
According to Mojocoa, the district court’s failure to admonish the
government or give a curative instruction was error because it
allowed the government to argue an improper understanding of
the parties’ burdens of proof—which led the jury to “convict[ him]
on less than [the evidence] required and the [process] guaranteed
to him[.]”
We review claims of prosecutorial misconduct during
closing arguments de novo, bearing in mind that such claims
generally involve mixed questions of law and fact. United States v.
Sosa, 777 F.3d 1279, 1294 (11th Cir. 2015). “To find prosecutorial
misconduct, a two-element test must be met: (1) the questions or
comments must be improper, and (2) the questions or comments
must prejudicially affect the substantial rights of the defendant.”
United States v. Schmitz, 634 F.3d 1247, 1267 (11th Cir. 2011).
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23-12132 Opinion of the Court 21
To be sure, it is improper for prosecutors to “mak[e] burden-
shifting arguments which suggest that the defendant has an
obligation to produce any evidence or to prove innocence.” United
States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992). Comments
“may be so prejudicial as to shift the burden of proof” if they are
“so pronounced and persistent that [they] permeate[] the entire
atmosphere of the trial[.]” Id. at 1086 (quotation omitted); see also
United States v. Nerey, 877 F.3d 956, 970 (11th Cir. 2017) (listing
factors we consider to determine the extent of the prejudice).
Assuming prosecutorial comments are improper, “[a]
defendant’s substantial rights are prejudicially affected when a
reasonable probability arises that, but for the remarks, the outcome
of the trial would have been different.” United States v. Eckhardt,
466 F.3d 938, 947 (11th Cir. 2006). But “substantial evidence
establishing guilt may counteract claims of prejudice,” Nerey, 877
F.3d at 970, as long as the strength of the evidence suggests that
“any error is harmless,” Eckhardt, 466 F.3d at 947. And prejudice
can be mitigated or cured by jury instructions properly allocating
the burden of proof. See Schmitz, 634 F.3d at 1267.
We see no basis for reversal. To start, we can see why the
district court did not think the government’s comment was
improper. In telling the jury that, to find the lack of predisposition
necessary to entrapment, the jurors would need to “find that
[Mojocoa was] the most unlucky man on the face of the planet,”
the government was arguing that Mojocoa had made a series of
choices, of his own volition, that led him to such a place that he
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22 Opinion of the Court 23-12132
would otherwise have to be profoundly unlucky to find himself.
The district court had discretion to find that the jury would
understand the comments that way—not as shifting some burden
of proof to Mojocoa. At any rate, Mojocoa cannot show reversible
error.
Even if the government’s comments were improper, or at
least ran an unacceptable risk of confusing the jury, Mojocoa has
not shown the comments prejudiced his substantial rights. Again,
to obtain reversal, Mojocoa must show that, “but for the remarks,
the outcome of the trial would have been different.” Eckhardt, 466
F.3d at 947. Here, however, the court’s instructions to the jury (at
both the beginning of the trial and after closing arguments) clearly
pointed out that the government had the burden of proof. See
Schmitz, 634 F.3d at 1267 (“[E]ven if some of the prosecutor’s
questions slightly suggested that Schmitz had the burden of proof,
the district court cured any possibility of prejudice with its clear
and repeated instructions on the prosecution’s burden of proof.”).
And the evidence against Mojocoa was very strong. Mojocoa was
caught red-handed at the meeting place, with the items he was
supposed to bring, after discussing the encounter in detail in
recorded messages and phone calls. He admits all of these facts.
His only defense at trial was entrapment, which—for the reasons
discussed above—was powerfully refuted by evidence of his
willingness to participate in the sale of a young, disabled girl for
sex. United States v. Bergman, 852 F.3d 1046, 1070 (11th Cir. 2017)
(prosecutor’s “lone [improper] comment” did not warrant reversal
of jury’s verdict “[g]iven the abundant evidence supporting the
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23-12132 Opinion of the Court 23
defendants’ guilt”). So, far from being likely that the outcome
would be different, it is affirmatively unlikely the outcome of the
trial would have been any different had the district court
admonished the government or redirected the jury.
Mojocoa nonetheless insists that the government’s
comment was not merely a response to his position, but rather “its
ultimate summation of what the jury needed to determine in this
case.” Again: the district court had discretion to find otherwise, but
it does not matter, because Mojocoa cannot show prejudice. To
the contrary, Mojocoa offers no answer to the mitigating effect of
the jury instructions, relying entirely on the supposition that “the
government failed to meet its burden of proof as to predisposition.”
Because that supposition is wrong, his argument here fails.
We therefore find no reversible error related to the
government’s comments at closing argument.
III. Conclusion
All told, we find no merit in Mojocoa’s arguments on appeal,
and so affirm the judgment below.
AFFIRMED.
Case Information
- Court
- 11th Cir.
- Decision Date
- June 24, 2024
- Status
- Precedential