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United States of America v. Mark J. McGill.   No. 12-3490.

Background: Jacob Elliott was arrested in 2009 and, when offered hope of leniency, became an FBI informant. He targeted Mark McGill, who, after weeks of pestering, allowed Elliot to bring a USB flash drive to his apartment to copy child pornography from his computer. For this indulgence McGill was charged with distributing child pornography in addition to possession. See 18 U.S.C. § 2252A(a)(2), (a)(5)(B).

At trial he sought to raise entrapment as a defense to the distribution count, but prosecutors convinced the judge not to instruct the jury on that defense. McGill was found guilty of both crimes, and on appeal he argues that refusing to give an entrapment instruction was reversible error. We agree with him.

Analysis: The question before us is whether a rational jury could have found in favor of McGill on the issue of entrapment. In answering that inquiry, we look at the trial evidence in the light most favorable to McGill. See United States v. Pillado, 656 F.3d 754, 758 (7th Cir. 2011)

An entrapment instruction is warranted if the evidence would permit a jury to find that the defendant was not predisposed to commit the crime and that the government induced him to do so. See Pillado, 656 F.3d at 763 Although more than a scintilla of evidence of entrapment is needed before instruction on the defense becomes necessary, the defendant need only point to evidence in the record that would allow a rational jury to conclude that he was entrapped. See United States v. Haddad, 462 F.3d 783, 789-90 (7th Cir. 2006).

The district court identified nothing in the record suggesting that McGill was predisposed to distribute child pornography, and on this point we agree. In the first place, the government’s investigation turned up no evidence that McGill ever before had distributed child pornography.

The government points to McGill’s use of file-sharing applications to acquire child pornography, but so what? These applications, although designed to promote sharing, also permit a user to exclude outsiders from gaining access to files on the user’s computer. The government offered no evidence that McGill had unlocked his files even while he had file-sharing applications on his computer.

Moreover, in Elliott’s very first recorded phone call to McGill, the defendant was explicit that he would not again use file-sharing applications. The government also makes much of McGill’s attendance at a party where other men were distributing child pornography. But McGill took nothing to that party (and brought nothing home), and the next time Elliott pushed him to attend a similar gathering, McGill declined.

The government’s other premise, that McGill’s possession of child pornography is evidence of a predisposition to distribute, proves too much. Possession and distribution are very different crimes; the government’s long history of prosecuting drug offenses surely makes this evident, as possession of a controlled substance generally is a misdemeanor but distribution, even of small amounts, is a felony. See 21 U.S.C. §§ 841(a)(1), 844(a).

McGill was not innocent of possession—and never claimed to be—but before his August 2009 meeting with Elliott he was, as far as the government can say, innocent of the crime of distributing child pornography.

Government exploitation of friendship can constitute improper inducement. Sherman v. United States, 356 U.S. 369 (1958). Assessing an entrapment defense involves a subjective inquiry.  United States v. Stallworth, 656 F.3d 721, 726 (7th Cir. 2011), meaning that a defendant is entitled to argue that he was particularly susceptible to inducement, see, e.g., United States v. Sandoval-Mendoza, 472 F.3d 645, 656 (9th Cir. 2006).

We conclude that this record provided a sufficient basis for a rational jury to infer that Elliott exploited his unique connection with McGill to induce the defendant to distribute child pornography. At trial and now on appeal the government has been emphatic that McGill, not Elliott, instigated the distribution crime during their very first recorded telephone conversation. McGill offered to share his files with Elliott, the government insists, without being directly asked. But this gloss on the telephone conversation is not the only one that is reasonable.

A rational, properly instructed jury could have seen things differently than the government and concluded that McGill’s vulnerability and fear of losing Elliott’s friendship left him particularly susceptible to government inducement. Indeed, the district judge seems to have found this inference compelling, as she made known her belief that the government had exploited McGill’s friendship with Elliott.

The existence of competing inferences is precisely why the issue of entrapment should have been submitted to the jury.

The question is not whether the government’s take strikes us as logical or even probable, but simply whether “there exists evidence sufficient for a reasonable jury to find” in the defendant’s favor. Mathews, 458 U.S. at 63; see Pillado, 656 F.3d at 766-68.

Conclusion: McGill’s conviction on the distribution count is REVERSED, and that count is REMANDED for further proceedings. On remand the government must proceed without delay if it elects to retry McGill on that count. McGill’s sentence on the possession count is VACATED; that concurrent sentence is linked to his conviction for distribution and, on remand, must be reconsidered in conjunction with the disposition of the distribution charge.

By:  Michael J. Petro Chicago Federal Criminal Defense Attorney