United States of America v. Gary Wayne Ross

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY WAYNE ROSS,
Defendant - Appellant.
No. 09-10010
D.C. No. 4:06-cr-00637-SBA-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, United States District Judge, Presiding
Argued and Submitted May 11, 2010
San Francisco, California
Before: REINHARDT, W. FLETCHER and N.R. SMITH, Circuit Judges.
Gary Wayne Ross appeals his conviction by a jury for attempted online
solicitation of a minor in violation of 18 U.S.C. § 2422(b). He makes four
arguments, none of which entitles him to relief.
FILED
MAY 20 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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First, Ross contends that there was insufficient evidence that he took a
“substantial step” towards attempting to persuade, induce, entice or coerce a person
under 18 years of age to engage in sexual activity that would constitute a criminal
offense. See United States v. Goetzke, 494 F.3d 1231, 1234-35 (9th Cir. 2007); 18
U.S.C. § 2422(b). To prevail on this claim, Ross must demonstrate that “after
viewing the evidence in the light most favorable to the prosecution, [no] rational
trier of fact could have found [such a substantial step] beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). To constitute a substantial step,
“the defendant’s actions must go beyond mere preparation, and must corroborate
strongly the firmness of the defendant’s criminal intent.” United States v. Hofus,
598 F.3d 1171, 1174 (9th Cir. 2010) (quoting United States v. Nelson, 66 F.3d
1036, 1042 (9th Cir. 1995)). The internet chats, emails exchanges and phone calls
between Ross and his alleged victim, not to mention his travel to a location that he
thought was her home, provided the jury with ample evidence from which to
conclude that he took such a step. See Goetzke, 494 F.3d at 1237.
Ross’s other three arguments concern the defense of entrapment. To prevail
on an entrapment defense, a defendant must both have been induced by the
government to commit the crime and have lacked the predisposition to do so. See
United States v. Poehlman, 217 F.3d 692, 698 (9th Cir. 2000). “An improper

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inducement goes beyond providing an ordinary opportunity to commit a crime. An
inducement consists of an opportunity plus something else—typically, excessive
pressure by the government upon the defendant or the government’s taking
advantage of an alternative, non-criminal type of motive.” Id. at 701 (citations,
alterations, and internal quotation marks omitted). Government agents simply
presented Ross with an opportunity—a curious thirteen year old girl repulsed by
neither Ross’s age nor his taste in graphic pornography. They did nothing that
could be categorized as pressure, solicitation, or altering “the normal balance
between risks and rewards from commission of the crime.” Id. at 702-03.
Accordingly, there was no inducement.
Ross’s second, third and fourth contentions all fail because of the absence of
inducement. Ross’s second contention is that he was entrapped as a matter of law,
but without inducement there can be no entrapment. His third contention is that
the district court gave an erroneous jury instruction as to the factors to be used to
determine predisposition. Because there was no inducement, Ross’s predisposition
was of no moment and the instruction, erroneous or not, did not prejudice him.
Finally, Ross contends that the district court erred by failing to give a limiting
instruction barring the jury from considering stories downloaded by Ross some
months after his arrest when determining his predisposition. Again there was no

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prejudice because there was no inducement and hence no entrapment, regardless of
Ross’s predisposition.
AFFIRMED.

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