United States v. Sky Roubideaux

                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 23-2760
                         ___________________________

                             United States of America

                                       Plaintiff - Appellee

                                          v.

                             Sky Thomas Roubideaux

                                     Defendant - Appellant
                                   ____________

                     Appeal from United States District Court
                    for the District of South Dakota - Southern
                                   ____________

                             Submitted: May 10, 2024
                              Filed: August 14, 2024
                                  ____________

Before COLLOTON, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
                            ____________

BENTON, Circuit Judge.

       A jury convicted Sky Thomas Roubideaux of attempted enticement of a minor
using the internet in violation of 18 U.S.C. § 2422(b). The district court 1 sentenced
him to the mandatory-minimum 120 months in prison, followed by five years of



      1
        The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
supervised release. He appeals the conviction. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms.

      In March 2022, federal and local law enforcement in Sioux Falls conducted
an undercover operation to identify individuals actively enticing minors online for
sexual purposes. Agents created profiles on social media applications, posing as
minors. On March 6 an agent created a “Gregg” profile on the Grindr internet app.
Some adults use Grindr to sexually exploit children (according to law enforcement).
“Gregg’s” profile, with an age-regressed photo, showed him as 18 years old.

      Later that day, Roubideaux, a 22-year-old gay man, texted “Gregg” through
the Grindr app. During the conversation, “Gregg” texted that he was younger than
18 years old, lived with his parents, and had not told them he was gay. The next
day, Roubideaux again texted “Gregg.” Early in the conversation, he asked
“Gregg’s” age. “Gregg” said he was a bit younger than 16. Roubideaux texted, “We
can be friends . . . if anything happens it happens.” As the conversation continued,
“Gregg” referenced “other 15 year olds.” Roubideaux asked when he turned 16;
“Gregg” said in 8 months. Roubideaux said they could be “friends for awhile and
see what happens.” After discussing parents and security cameras, the conversation
turned more sexual. Roubideaux asked, “What do you want to try.” “Gregg” replied
“Whatever.” Roubideaux began discussing oral and anal sex, sexual positions,
adding he was “into bondage and kinks like that.” He and “Gregg” discussed
hooking up, with Roubideaux saying, “I’ll start whatever and if you don’t like it we
can stop.” He advised “Gregg” to use “extra lube” for anal sex the first time.
Roubideaux also discussed smoking marijuana with “Gregg” several times during
both conversations.

       After Roubideaux texted “when can I see you again,” they agreed to meet that
night at a park in Sioux Falls. Roubideaux texted explicit instructions for “Gregg”
to get prepared for anal sex, including using a douche and trimming his pubic hair.
Roubideaux said he would bring “lube and everything.” Roubideaux texted that he
was on his way, driving a blue car. Arriving at the parking lot, he was arrested. In
his blue car were a cell phone, condoms, lubricant, and genital hygiene products.
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All the Grindr texts between Roubideaux and “Gregg” were found on Roubideaux’s
cell phone.

                                               I.

       Roubideaux argues that the district court should have granted his Batson
challenge. This court reviews a Batson ruling for clear error. United States v.
Granados, 596 F.3d 970, 975 (8th Cir. 2010), citing United States v. Rodriguez, 581
F.3d 775, 791 (8th Cir. 2009). When a defendant alleges that a prosecutor’s juror
strike is racially motivated, a district court applies a three-step process:

      First, the trial court must determine whether the defendant has made a
      prima facie showing that the prosecutor exercised a peremptory
      challenge on the basis of race. Second, if the showing is made, the
      burden shifts to the prosecutor to present a race-neutral explanation for
      striking the juror in question. Although the prosecutor must present a
      comprehensible reason, the second step of this process does not demand
      an explanation that is persuasive, or even plausible; so long as the
      reason is not inherently discriminatory, it suffices. Third, the court
      must then determine whether the defendant has carried his burden of
      proving purposeful discrimination. This final step involves evaluating
      the persuasiveness of the justification proffered by the prosecutor, but
      the ultimate burden of persuasion regarding racial motivation rests
      with, and never shifts from, the opponent of the strike.

Rice v. Collins, 546 U.S. 333, 338 (2006) (internal quotation marks and citations
omitted), discussing Batson v. Kentucky, 476 U.S. 79, 98 (1986).

       Here, the government used a peremptory strike against the only non-white
juror on the prospective jury panel. See Johnson v. California, 545 U.S. 162, 169-
70 (2005) (striking all black venirepersons makes a prima facie showing for step 1).
The prospective juror had written that she was “multi-race” and worked for a tribal
community college. In response to Roubideaux’s objection, the prosecutor asserted
that he did not know this prospective juror was of “any other race,” and that the juror
was the only panelist who indicated she might be uncomfortable with the facts of the
case, as she had four children, some of whom were teenagers.

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        Roubideaux argues that this proffered reason is pretextual because other white
jurors with teenage children were not stricken from the panel. He relies on Davidson
v. Harris, 30 F.3d 963, 965-66 (8th Cir. 1994), which found a Batson violation where
defendants claimed to strike a black venireperson because she had young children,
but did not strike two white venirepersons with young children. In this case, there
is a difference: The white venirepersons did not express concern about serving on a
case involving online enticement of a minor.

       The district court discussed the process of reviewing a Batson challenge and
evaluated the persuasiveness of the proffered reasons. The district court determined
that the prosecution’s explanation for striking the prospective juror was honest and
race-neutral. See United States v. Darden, 70 F.3d 1507, 1531 (8th Cir. 1995)
(noting the district court is in the best position to judge the motives of the prosecutor
based on demeanor and credibility). Roubideaux has failed to meet his burden to
establish purposeful discrimination. The district court’s Batson ruling was not
clearly erroneous.

                                                II.

      Roubideaux argues that the district court should have granted a judgment of
acquittal based on his claim of entrapment. He asserts that the government failed to
prove he was not entrapped, and thus that the evidence was insufficient to support
the verdict. This court reviews de novo the denial of a judgment of acquittal,
“considering the evidence presented at trial in the light most favorable to the verdict
and drawing all reasonable inferences in the government’s favor.” United States v.
Zupnik, 989 F.3d 649, 652-53 (8th Cir. 2021), citing United States v. McAtee, 481
F.3d 1099, 1104 (8th Cir. 2007). This court “will reverse only if no reasonable jury
could have found [the defendant] guilty beyond a reasonable doubt.” Id., citing
United States v. Santana, 524 F.3d 851, 853 (8th Cir. 2008). This “very strict”
standard of review means that a verdict by the jury is not to be overturned lightly.
United States v. Surratt, 172 F.3d 559, 564 (8th Cir. 1999), citing United States v.
Perkins, 94 F.3d 429, 436 (8th Cir. 1996).


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       There are two elements to an entrapment defense: (1) government inducement
of the crime, and (2) a defendant’s lack of predisposition to commit the crime.
United States v. Tobar, 985 F.3d 591, 592 (8th Cir. 2021). “Inducement exists when
the government ‘implanted the criminal design’ in the defendant’s mind.” United
States v. Young, 613 F.3d 735, 747 (8th Cir. 2010), quoting United States v. Eldeeb,
20 F.3d 841, 843 (8th Cir. 1994). If the defendant establishes inducement, the
government has the burden to prove beyond a reasonable doubt that the defendant is
predisposed to commit the crime. Zupnik, 989 F.3d at 655.

       The district court ruled that Roubideaux made a showing of inducement
sufficient to warrant instructing the jury on entrapment. According to Roubideaux,
the government then failed to prove beyond a reasonable doubt the second element,
his predisposition to commit the crime of attempted enticement of a minor. The
predisposition element “focuses upon whether the defendant was an ‘unwary
innocent’ or, instead, an ‘unwary criminal’ who readily availed himself of the
opportunity to perpetrate the crime.” United States v. Myers, 575 F.3d 801, 805 (8th
Cir. 2009), quoting Mathews v. United States, 485 U.S. 58, 63 (1988).

      Roubideaux insists that the government—not Roubideaux—turned the
discussion toward sexual activity. Roubideaux points to text messages where he
offered to just be friends and smoke marijuana together. However, he overlooks that
“Gregg” texted that he was “younger,” later adding he would turn 16 “in 8 months.”
“Gregg” stated he lived with his parents and was still in school. Roubideaux initiated
the chat session on Grindr on March 6 and again began the conversation on March
7. Roubideaux asked “Gregg” if he wanted to be “fwb,” meaning friends with
benefits. Learning “Gregg” was younger than 16, Roubideaux stated they could be
friends and “if anything happens it happens.”

      Reviewing all the evidence of a 22-year-old’s interactions with an (apparent)
15-year-old, a reasonable jury could conclude that Roubideaux was predisposed to
meet “Gregg” for sexual activity. See Zupnik, 989 F.3d 655-56 (finding
predisposition where the adult exchanged sexually explicit messages and planned to
meet the minor in person to engage in sexual acts). “Because the entrapment defense
                                         -5-
requires factual determinations about government conduct and its likely effect upon
a defendant, ‘[t]he question of entrapment is generally one for the jury, rather than
for the court.’” Myers, 575 F.3d at 805, quoting Mathews, 485 U.S. at 63. “Where
the evidence is in conflict, we leave the jury’s verdict undisturbed.” Id., citing
United States v. Pardue, 983 F.2d 843, 847 (8th Cir. 1993) (per curiam). The
government met its burden to prove beyond a reasonable doubt that Roubideaux was
predisposed to commit the crime. The district court properly denied his motion for
judgment of acquittal.

                                               III.

       Roubideaux argues that the district court should have ordered a new trial,
asserting that the verdict was against the weight of the evidence. This court reviews
for abuse of discretion the decision to deny a new trial. See United States v. Smart,
501 F.3d 862, 865 (8th Cir. 2007). The district court “may vacate any judgment and
grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a).
“However, this authority should be exercised ‘sparingly and with caution.’” Smart,
501 F.3d at 865, quoting United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002)
(“Unless the district court ultimately determines that a miscarriage of justice will
occur, the jury’s verdict must be allowed to stand.”)

       In addition to reiterating his arguments about predisposition, Roubideaux
contends he believed “Gregg” was actually an old friend named Greg that he had not
seen for years. He argues that the small thumbnail-sized photo of “Gregg” on his
phone looked like his old friend. He emphasizes that he greeted “Gregg” with the
“How are you” text that he reserved for people he knew in person or had spoken to
in the past.

       The government presented substantial evidence to support the verdict,
including the entire text conversations between Roubideaux and “Gregg” on Grindr.
Government witnesses testified that the Grindr app is commonly used to arrange
causal sexual encounters. The jury saw that each day, Roubideaux initiated the
contact with “Gregg,” beginning the first day with “I’m here for a boyfriend mainly.”

                                         -6-
After “Gregg” told him several times he was 15, Roubideaux’s texts became more
sexually explicit. The evidence showed that Roubideaux texted “Gregg” as he left
work and arrived at the agreed location, possessing condoms, lubricant, and douche
products. The jury could reasonably rely on this evidence to return a guilty verdict.
The district court properly determined that a miscarriage of justice did not occur
when the jury rejected Roubideaux’s version of the facts. The district court did not
abuse its discretion in denying a new trial.

                                               IV.

      Roubideaux argues that the district court violated his constitutional right to
present a complete defense by excluding details of his conversations with other
Grindr users. This court reviews for an abuse of discretion, giving substantial
deference to the district court’s exclusion of evidence if it does not unfairly prevent
a party from proving its case. United States v. Copp, 1 F.4th 573, 576 (8th Cir.
2021), citing United States v. Condon, 720 F.3d 748, 754 (8th Cir. 2013). If
exclusion of evidence implicates a constitutional right, including the right to present
a complete defense, this court reviews de novo. Id., citing United States v. West,
829 F.3d 1013, 1017 (8th Cir. 2016).

       Evidence is relevant if it has any tendency to make a fact (of consequence in
determining the action) more probable or less probable than it would be without the
evidence. Fed. R. Evid. 401. Relevant evidence, however, may be excluded “if its
probative value is substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed R. Evid. 403. A district court has “‘broad
discretion’ to determine the relevance of evidentiary matters.” United States v.
Wilkens, 742 F.3d 354, 363 (8th Cir. 2014), quoting Smith v. Tenet Healthsystem
SL, Inc., 436 F.3d 879, 885 (8th Cir. 2006). This court “will reverse on the basis of
an evidentiary ruling only when it ‘affects the substantial rights of the defendant or
when . . . the error has had more than a slight influence on the verdict.’” United
States v. White Horse, 316 F.3d 769, 776 (8th Cir. 2003), quoting United States v.
Ballew, 40 F.3d 936, 941 (8th Cir. 1994).

                                         -7-
       Here, government witnesses testified several times—without objection—that
Grindr is a “hookup app” or a “gay hookup app.” In response, Roubideaux proffered
detailed verbatim printouts of many of his Grindr chats with other users.
Roubideaux argued these printouts would show he used a different greeting for
people he knew, and more importantly, that he used Grindr for non-sexual or friendly
chats, as well as for sexual chats. The district court admitted one printout showing
how Roubideaux greeted 17 other users but excluded the remaining printouts as
“misleading to the jury” and “not relevant” to the crime charged. Despite excluding
the printouts of other conversations, the district court allowed Roubideaux to explain
to the jury how he used the Grindr app. He testified about how he greeted people he
knew. He testified that some of his 57 text conversations of March 6 and 7 were
sexual in nature, but some were nonsexual. He testified he used Grindr to just have
conversations, make friends, and arrange dates and hookups. The district court did
not permit Roubideaux to testify to the details of the conversations with other users.

       Plainly referring to “well-established rules of evidence” and “Fed. Rule Evid.
403” itself, the Supreme Court has stated that the Constitution permits judges “to
exclude evidence that is ‘repetitive . . . , only marginally relevant’ or poses an undue
risk of ‘harassment, prejudice, [or] confusion of the issues.’” Holmes v. South
Carolina, 547 U.S. 319, 326–27 (2006). Federal rule makers have “broad latitude
under the Constitution to establish rules excluding evidence from criminal trials,”
which “do not abridge an accused’s right to present a defense so long as they are not
‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’” United
States v. Scheffer, 523 U.S. 303, 308 (1998).

       Because the district court had unquestionably constitutional discretion to
exclude the details of Roubideaux’s conversations with other users, it necessarily
follows that the district court’s application of Rule 403 did not violate his right to
present a complete defense. See United States v. Duggar, 76 F.4th 788, 792 (8th
Cir. 2023) (“The right to present a complete defense, in other words, does not trump
a district court’s discretion to keep out confusing or misleading evidence, even if it
would be helpful to the defense.”); West, 829 F.3d at 1019 (holding that the right to
present a complete defense does not entitle a defendant to present the jury with
                                           -8-
evidence that is either irrelevant or properly excluded under Fed. R. Evid. 403). Cf.
United States v. Zephier, 989 F.3d 629, 636, 637 n.4 (8th Cir. 2021) (reversing the
“total exclusion” of an “alternative explanation,” adding that the right to present a
complete defense does not give the defendant the right to “explore every detail” of
the alternative explanation, which is subject to “reasonable restrictions” on the
presentation of evidence).

                                    *******

      The judgment is affirmed.
                      ______________________________




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