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United States v. Robinson.

No. 19-1256.  D.Colo. Judge Carson. Attempted Sex Trafficking of a Minor—Sufficiency of the Evidence—Entrapment Jury Instruction—Confidential Source—Expert Testimony—Exhibits—Cumulative Error.

March 29, 2021

Defendant maintained a profile on an adult dating website. He sought a “business partner” between ages 18 and 35 in California. An FBI task force officer created a social media profile for a fictional 18-year-old from Aurora, Colorado, named Brooke. Defendant contacted “Brooke,” and after several online communications, she texted defendant to let him know she was only 17 years old, and her real name was Nikki. Defendant continued the conversation and purchased a bus ticket for Nikki to travel from Denver to California. Federal agents arrested defendant at the bus terminal. He was charged with attempted sex trafficking of a child and transporting an individual to engage in prostitution. At trial, defendant contended he had planned to have a platonic relationship until Nikki’s 18th birthday. The jury found defendant guilty on both counts.

On appeal, defendant contended that the government presented insufficient evidence to support the conviction for attempted sex trafficking of a minor under 18 USC § 1591(a). However, defendant’s messages, phone calls, and offer of a fake ID, and expert law enforcement testimony, sufficiently supported the conclusion that defendant intended for Nikki to engage in commercial sex acts before she turned 18.

Defendant also argued that the district court erred by denying his request for an entrapment jury instruction. He maintained that the government’s use of a dating website limited to persons over 18 years old led him to reasonably believe he was talking with an adult when he started his conversation with Nikki, so the government’s delay in disclosing that Nikki was underage shows that agents induced him to engage in illegal conduct with a minor. However, despite learning Nikki’s age, defendant caused the relationship to progress; the government did not induce his conduct. Therefore, sufficient evidence did not exist to support the conclusion that a reasonable jury could find entrapment.

Defendant also contended that the court erred by denying his motion to disclose the identity of the government’s confidential source. Here, the district court admitted transcripts of all conversations between the source and defendant into evidence, so the source would have added nothing new, and her testimony would have been unnecessarily cumulative. Accordingly, defendant failed to show that the district court abused its discretion.

Defendant also argued that the district court erred in admitting an agent’s expert testimony. The agent’s testimony provided a basis on which the jury could infer that defendant recruited a vulnerable girl seeking structure and stability in her life, so it related to an element of the crime. Accordingly, the district court did not abuse its discretion by allowing the agent’s expert testimony on pimping and prostitution culture. Further, defendant agreed to the jury instruction about the agent’s testimony and therefore invited any error caused by the lack of instructions and waived his right to challenge them.

Defendant further argued that the district court erred by failing to admit a government trial exhibit in its entirety. Here, the government’s proposed exhibit contained exculpatory statements that defendant claimed on appeal the district court should have admitted. But defendant caused their exclusion through his own relevance objection to the district court. As a result, if the district court erred by not admitting evidence it did not know defendant believed was exculpatory, the error was invited.

Defendant also argued that the aggregation of the district court’s errors leads to cumulative error. However, defendant identified at most invited error, so the Tenth Circuit rejected this argument.

Lastly, defendant argued that his sentence was substantively unreasonable. However, the district court did not abuse its discretion, and defendant’s sentence was not substantively unreasonable.

The conviction was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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