Leal v. USA

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JORGE LUIS LEAL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
Civil No. 24-cv-2254-JPG
Criminal No. 19-cr-40069-JPG
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Jorge Luis Leal’s motion to vacate, set
aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The Government has
responded to the motion (Doc. 5), and Leal has replied to that response (Docs. 6 & 7).
I. Background
In August 2019, the petitioner was indicted on one count of attempted enticement of a
minor to engage in unlawful sexual activity in violation of 18 U.S.C. § 2422(b) (No. 19-cr-
40069-JPG, Doc. 16). The case grew out of communications on Grindr, a cellphone application
known to be used by men looking to have sex with other men, between Leal and undercover FBI
investigator Special Agent Michael Carter posing as a 15-year old boy named “Corey.” Leal
and “Corey” agreed meet at “Corey’s” house, and Leal was arrested after he approached the
house where Special Agent Carter indicated “Corey” lived. In a post-arrest interview, Leal
made incriminating statements.
The case was tried to a jury in November 2021 where Leal asserted a defense of
entrapment. At Leal’s request, the Court instructed the jury using the William J. Bauer Pattern
Criminal Jury Instructions of the Seventh Circuit (2020) (“Pattern Instruction”) 6.04 and 6.05
(modified) regarding entrapment (Defendant’s Instructions 1 and 2). It also gave Pattern
Instruction 3.19 regarding the Government’s use of undercover and deceptive investigative
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techniques (Government’s Instruction 4). It did not give any instruction requiring the jury to
unanimously agree on (1) the substantial step taken toward the enticement or (2) which of the
two entrapment elements the Government proved. Nor did it give a limiting instruction on
using character evidence only for the purpose of determining whether Leal was predisposed to
commit the crime. These and other facts underlying Leal’s § 2255 will be discussed in more
detail as necessary below.
The jury found the petitioner guilty (No. 19-cr-40069-JPG, Doc. 107). In May 2022, the
Court sentenced the petitioner to serve 120 months in prison, the statutory mandatory minimum
sentence (No. 19-cr-40069-JPG, Doc. 133).
The petitioner appealed his conviction. The Court of Appeals held that, by failing to
object, Leal had waived the issue of whether Pattern Instruction 3.19 should have been reworded
in light of the Court’s also giving Pattern Instructions 6.04 and 6.05 as suggested in the Pattern
Instruction Committee Comments. See United States v. Leal, 72 F.4th 262, 266-67 (7th Cir.
2023). It also rejected Leal’s argument that there was insufficient evidence to defeat his
entrapment defense. Id. at 267-68. The Court of Appeals affirmed the conviction on June 29,
2023. It also denied a petition for rehearing and rehearing en banc on August 2, 2023, and
issued the mandate on August 10, 2023 (No. 19-cr-40069-JPG, Docs. 158 & 159). The
petitioner did not seek a writ of certiorari from the United States Supreme Court.
II. § 2255 Motion
In his timely § 2255 motion, filed September 30, 2024, the petitioner raises the following
claims:
Ground 1: Counsel was constitutionally ineffective in violation of the petitioner’s Sixth
Amendment rights for failing to seek a sufficient instruction to the jury regarding
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the meaning of “induce” in the statute of conviction;
Ground 2: (a) The Government committed prosecutorial misconduct in violation of the
petitioner’s Fifth Amendment due process rights when it offered the instruction
regarding Government investigative techniques; (b) Counsel was constitutionally
ineffective in violation of the petitioner’s Sixth Amendment rights by failing to
object to that instruction, especially because the petitioner was asserting the
defense of entrapment;
Ground 3: (a) The Government committed prosecutorial misconduct in violation of the
petitioner’s Fifth Amendment due process rights when, in closing arguments, it
improperly used the petitioner’s socioeconomic status and a personal opinion of
the his character to inflame the jury’s passions against him; (b) Counsel was
constitutionally ineffective in violation of the petitioner’s Sixth Amendment
rights by failing to object to these prosecutorial errors and by failing to request a
limiting instruction to confine character evidence to the question of
predisposition;
Ground 4: Counsel was constitutionally ineffective in violation of the petitioner’s Sixth
Amendment rights by failing to object to jury instructions (a) that did not require
unanimous agreement regarding the “substantial step” toward committing the
offense and (b) that did not require unanimity regarding which of the two prongs
of the entrapment defense—inducement or predisposition—the Government
disproved; and
Ground 5: (a) The Government enforced the statute of conviction in a discriminatory manner
based on sexual orientation in violation of the petitioner’s Fifth Amendment due
process rights because it targeted a website with an audience focused on adult
men seeking other adult men for sexual activity; (b) Counsel was constitutionally
ineffective in violation of the petitioner’s Sixth Amendment rights for failing to
object to this selective prosecution.
Following review pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts, the Court ordered briefing on all issues. Those arguments are now
before the Court.
III. Analysis
The Court must grant a § 2255 motion when a defendant’s “sentence was imposed in
violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). However,
“[r]elief under § 2255 is available ‘only in extraordinary situations, such as an error of
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constitutional or jurisdictional magnitude or where a fundamental defect has occurred which
results in a complete miscarriage of justice.’” United States v. Coleman, 763 F.3d 706, 708 (7th
Cir. 2014) (quoting Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013)). It is proper to
deny a § 2255 motion without an evidentiary hearing if “the motion and the files and records of
the case conclusively demonstrate that the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255(b); see Shipman v. United States, 925 F.3d 938, 943 (7th Cir. 2019); Sandoval v. United
States, 574 F.3d 847, 850 (7th Cir. 2009). This case can be decided without an evidentiary
hearing.
A. Ineffective Assistance of Counsel
Many of Leal’s challenges to his sentence rest on alleged instances of ineffective
assistance of counsel. The Sixth Amendment to the Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.” U.S. Const. amend. VI. This right to assistance of counsel encompasses the right to
effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970);
Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009).
A party claiming ineffective assistance of counsel bears the burden of showing (1) that
his counsel’s performance fell below objective standards for reasonably effective representation
and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
688-94 (1984); Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014).
To satisfy the first prong of the Strickland test, the petitioner must direct the Court to
specific acts or omissions of his counsel. Wyatt v. United States, 574 F.3d 455, 458 (7th Cir.
2009). The Court must then consider whether, in light of all of the circumstances, counsel’s
performance was outside the wide range of professionally competent assistance. Id. “The
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question is whether an attorney’s representation amounted to incompetence under ‘prevailing
professional norms,’ not whether it deviated from best practices or most common custom.”
Harrington v. Richter, 562 U.S. 86, 105 (2011). The Court’s review of counsel’s performance
must be “highly deferential[,] . . . indulg[ing] a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
Counsel’s performance must be evaluated keeping in mind that an attorney’s trial strategies are a
matter of professional judgment and often turn on facts not contained in the trial record.
Strickland, 466 U.S. at 689. The Court cannot become a “Monday morning quarterback.”
Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).
To satisfy the second prong of the Strickland test, the petitioner “must demonstrate ‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at
694). “That requires a substantial, not just conceivable, likelihood of a different result.”
Thornell v. Jones, 602 U.S. 154, 163 (2024) (internal quotations omitted).
B. Prosecutorial Misconduct
A substantial number of Leal’s challenges rest on assertions of prosecutorial misconduct
at and prior to his trial in violation of his Fifth Amendment due process rights. Defendants have
a Fifth Amendment due process right to a fair trial. Prosecutors who commit misconduct may
violate those due process rights if their conduct “so infected the trial with unfairness as to make
the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181
(1986) (internal quotations omitted). For example, prosecutorial misconduct can occur when
the Government fails to honor a promise in a plea agreement or other pretrial promised, see
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Delatorre v. United States, 847 F.3d 837, 843 (7th Cir. 2017), or when the Government makes
improper statements to the jury that “poison[] the entire atmosphere of the trial,” Patel v. United
States, 19 F.3d 1231, 1237 (7th Cir. 1994).
Whether misconduct actually deprived a defendant of a fair trial depends on evaluation of
the trial as a whole, including,
1) whether the prosecutors’ statements manipulated or misstated the evidence; 2)
whether the statements implicated specific Bill of Rights provisions such as the
right to counsel or the right to remain silent; 3) whether the improper statements
were an “invited response” to the argument of defense counsel; 4) whether the
trial court instructed the jury to disregard the improper statements; 5) whether the
defense had and used the opportunity for rebuttal to counter the prosecutors’
statements; and 6) the weight of the evidence against the defendant.
Shepard v. Lane, 818 F.2d 615, 621 (7th Cir. 1987) (citing Darden, 477 U.S. at 181-83).
Before turning to the specific grounds Leal asserts as justifying § 2255 relief, it is
important to state that the Court firmly believes, after hearing all the evidence and observing the
witnesses and attorneys during the trial, that Leal was given a fair trial. The evidence that he
committed the crime was overwhelming, the Court is confident that the Government did not
entrap Leal into committing the crime, and counsel on both sides performed competently,
ethically, and professionally. None of Leal’s specific arguments shows otherwise.
C. Leal’s Specific Challenges
1. Ground 1: Defining “Induce”
In Ground 1, Leal argues that his trial counsel was constitutionally ineffective for failing
to seek a jury instruction regarding the meaning of “induce” in the statute of conviction, 18
U.S.C. § 2422(b). That statute, in pertinent part, makes it a crime to use a means of interstate
commerce to “knowingly persuade[], induce[], entice[], or coerce[]” any person under 18 years
old to engage in sexual conduct for which any person could be charged with a criminal offense.
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Indeed, Leal’s indictment charges him with:
using facilities of interstate commerce, that is a cellphone connected to the
Internet, [to] knowingly attempt to persuade, induce, entice, and coerce an
individual who had not attained the age of 18 years, to engage in sexual activity
under such circumstances as would constitute a criminal act under 720 ILCS 5/11-
1.60(d) (Aggravated Criminal Sexual Abuse) in violation of 18 United States
Code, Section 2422(b).
Indictment 1-2 (emphasis added) (No. 19-cr-40069-JPG, Doc. 16). Leal faults his counsel for
failing to propose a jury instruction to explain the special legal meaning of “induce” that differs
from the ordinary understanding of the term and for failing to request a special verdict form
showing which of the four offending actions—persuading, inducing, enticing, or coercing—was
found beyond a reasonable doubt.
Counsel was not deficient in this regard because the jury was not asked to decide whether
Leal “induced” anyone, only whether he “enticed” someone. It is true that the Court instructed
the jury about the statutory language set forth above, Court’s Instr. No. 2 (No. 19-cr-40069-JPG,
Doc. 113 at 2; Tr. Trans. 126:4-11), and that the jury had the indictment during its deliberations.
Indeed, the word “induce” was in its deliberation universe. But the Court’s instructions were
clear that the critical question for the jury to decide was whether Leal attempted to “entice”
someone. Gov.’s Instr. No. 8 (modified) (No. 19-cr-40069-JPG, Doc. 113 at 19; Tr. Trans.
127:8-128:7) (derived from Pattern Instructions 4.01 (Burden of Proof) and from § 2422(b)).
Whether Leal “induced” anyone simply was not before the jury and was not an issue that needed
any explanation.
In fact, the only time the jury was instructed about “inducement” was in the context of
the entrapment defense. There, the Court instructed the jury that, in order for the Government to
prove it did not entrap Leal into committing the crime, the Government would have to prove
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either that “Government agents did not induce the defendant to commit the offense; or . . . [t]he
defendant was predisposed to commit the offense before he had contact with government
agents.” Def.’s Instr. No. 1 (No. 19-cr-40069-JPG, Doc. 113 at 28; Tr. Trans. 130:20-131:1).
That instruction came along with its own definition of “induce.” Def.’s No. 2 (modified) (No.
19-cr-40069-JPG, Doc. 113 at 29-30; Tr. Trans. 131:3-132:12). In fact, the word “induce,” or
different forms of it, were used in front of the jury exclusively in connection with the
Government’s burden to prove Leal was not entrapped.1 All other references to “inducement”
were outside the presence of the jury (Tr. Trans. 102-08; 118:15). In fact, an additional
instruction defining the term “induce” would have only confused the jury. Thus, counsel’s
failure to seek an instruction further defining “induce” was not deficient performance.
As a whole, the instructions were sufficient and did not need further definition of any
term. Jury instructions are proper if they are adequately supported by the record and are fair and
accurate summaries of the law. United States v. Peterson, 823 F.3d 1113, 1123 (7th Cir. 2016).
Leal has not argued that Government’s Instruction Number 8 (modified) was not an accurate
summary of what the jury needed to decide in order to find him guilty. He simply thinks they
should have been told more. But no further instruction defining “entice,” the relevant term, was
necessary since it was not a mistake for the jury to apply the ordinary meaning of the term.
United States v. Rossi, No. 21-3165, 2022 WL 2237024, *2 (7th Cir. June 22, 2022) (citing
United States v. Clarke, 842 F.3d 288 (4th Cir. 2016)). And it was not deficient performance to
1 Leal points to the Government’s statement in its response (Doc. 116) to his motion for
judgment of acquittal. In the response, the Government states that it argued to the jury that Leal
“enticed and induced” the alleged minor to engage in sexual acts. A review of the transcript of
the Government’s closing argument, however, reveals no use of any form of the word “induce”
other than in the context of the entrapment defense.
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fail to ask for a separate special verdict form. The jury was presented with one theory—that
Leal attempted to “entice” a minor—so there was no need to ensure other avenues in the statute
were not used.
This is all true despite United States v. Hansen, 599 U.S. 762, 766 (2023). In that case,
the Supreme Court held that a federal criminal statute penalizing a person who “encourages” or
“induces” a noncitizen to enter the United States illegally, 8 U.S.C. § 1324(a)(1)(A)(iv), was not
unconstitutionally overbroad so as to violate the First Amendment by penalizing protected
speech. Id. It found Congress intended “induce” and “encourage” in their historic specialized
legal way to incorporate common-law liability for solicitation and facilitation of crimes, not
merely speaking in a way that could promote the cause of undocumented immigrants. Id. at
774. In the case at bar, there was no danger of violating the First Amendment for mere speech
because a conviction required the completion of a substantial step toward committing a crime,
not just talk. Gov.’s Instr. No. 8 (modified) & Gov.’s Instr. No. 9 (No. 19-cr-40069-JPG, Doc.
113 at 19, 21; Tr. Trans. 127:8-128:25).
In sum, with respect to Ground 1, counsel was not deficient. Government’s Instruction
Number 8 (modified) was adequate to present the relevant issues to the jury, and the verdict form
clearly showed the jury found Leal committed attempted “enticement,” under the ordinary
meaning of the word, by taking a substantial step toward committing the crime. Counsel was
well within the bounds of competent performance not to object or request a special verdict form.
Furthermore, had counsel done so, the Court would have denied his requests.
2. Ground 2: Instruction about Government Investigative Techniques
In Ground 2, Leal argues that his trial counsel were constitutionally ineffective and that
the Government committed prosecutorial misconduct in connection with the jury instruction
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regarding the Government’s use of investigative techniques. That instruction stated:
You have heard evidence obtained from the government’s use of undercover
agents and deceptive investigative techniques. The government is permitted to
use these techniques. You should consider evidence obtained this way together
with any—together with and in the same way you consider the other evidence.
Gov.’s Instr. No. 4 (Pattern Instruction 3.19 (Government Investigative Techniques) as read by
the Court) (No. 19-cr-40069-JPG, Doc. 113 at 16; Tr. Trans. 125:18-23).
The committee comment to Pattern Instruction 3.19 cautions about using this instruction
in certain circumstances where it might convey to the jury the Court’s approval of certain
Government investigative techniques. The comment indicates that the instruction should be
given “only in the rare case in which questioning or argument, or a statement during jury
selection, or some other circumstance arising or existing during trial suggests the impropriety of
such techniques.” Pattern Instr. No. 3.19 committee comment. The committee comment
further states that the Court should explain why it is giving the instruction and should give
“consideration . . . to rewording this instruction so that it does not implicitly modify or undercut
the entrapment instruction.” Id. (referring to Pattern Instr. Nos. 6.04 and 6.05).
At trial, the Government proposed Pattern Instruction 3.19 as Government’s Instruction
Number 4. In argument to the Court in connection with the entrapment defense, the
Government noted that investigating agents had misrepresented to Leal the age of the agent
posing as “Corey” and his willingness to have sex with Leal. In the Government’s view, these
misrepresentations were permissible as necessary to the sting operation and did not amount to the
kind of fraudulent inducement to commit the crime that would show entrapment. Leal’s counsel
did not object to Government’s Instruction Number 4, so the Court had no occasion to explain on
the record its decision to give it. The Government did not mention the investigative techniques
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instruction in its closing argument.
On appeal, Leal argued that giving the entrapment instructions and the Government
investigative techniques instruction confused the jury and that the Court should have considered
rewording the latter instruction as recommended by the committee comments. The Court of
Appeals found that he had waived the argument by not raising it at the trial level when making
substantive objections to other instructions. United States v. Leal, 72 F.4th 262, 266 (7th Cir.
2023). In dicta, the Court of Appeals found that Leal’s argument would have failed even if the
Court had reviewed the matter for plain error because it was not clear under current law that
giving both instructions was improper. Id. at 267 n.2.
Leal now faults his trial counsel for waiving objection to the Government investigative
techniques instruction where no issue was raised in front of the jury about the propriety of the
Government’s investigative conduct, where the instruction undercut Leal’s criticism of the
management of the investigation, where the Court did not explain on the record why it was
giving the instruction, and where Leal was attacking Special Agent Carter’s credibility and
asserting an entrapment defense. This failure, Leal notes, prevented his appellate counsel from
raising the issue for full review on appeal. Leal also faults the Government for proposing the
instruction despite the concerns in the committee comments.
a. Plain Error
The Government’s primary argument is that, if giving the Government investigative
techniques and entrapment instructions would not have survived plain error review on direct
appeal, see Leal, 72 F.4th at 267 n.2, it cannot be ineffective assistance of counsel. Indeed, the
plain error review standard for whether an error affects a defendant’s substantial rights is
comparable to the prejudice requirement under Strickland. Resnick v. United States, 7 F.4th
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611, 623 (7th Cir. 2021) (citing Swanson v. United States, 692 F.3d 708, 717 (7th Cir. 2012)).
In other words, if counsel’s conduct cannot survive plain error review because it did not affect
the defendant’s substantial rights, that conduct could not have prejudiced the defendant under an
ineffective assistance of counsel analysis.
The Court hesitates to adopt the Government’s argument in the circumstances presented.
The Court of Appeals’ statement about counsel’s failure to object to giving all three instructions
was dicta in a footnote without significant development. The decision rested on waiver, not
plain error. Plain error requires this:
[B]efore an appellate court can correct an error not raised at trial, there must be
(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ If all three
conditions are met, an appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings.’
Johnson v. United States, 520 U.S. 461, 467 (1997) (quoting United States v. Olano, 507 U.S.
725, 732 (1993). In Leal’s case, the explanation of any plain error review suggested that the
assessment rested on the fact that counsel’s mistake, if it was one, was not an “obvious” error
that was “clear under current law.” Leal, 72 F.4th at 267 n.2 (citing United States v. Natale, 719
F.3d 719, 731 (7th Cir. 2013)). That is, any error was not “plain.” The Court of Appeals said
nothing about whether the error affected Leal’s substantial rights, which is what usually equates
with prejudicing the defendant. Olano, 507 U.S. at 734-35; see United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004) (Rule 11 colloquy error). There was simply no statement on
direct appeal about prejudice of the alleged error.
b. Prejudice
Nevertheless, Leal has failed to carry his burden of demonstrating he was prejudiced by
counsel’s failure to object to Government’s Instruction No. 4. To the extent Leal argues his
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counsel should have requested the Court reword Government’s Instruction Number 4, he has
failed to propose an alternate wording. When a § 2255 petitioner claims his counsel failed to
make an objection or argument, he must specify the objection or argument counsel should have
made and explain how it would have had a reasonable chance of changing the outcome of the
trial. It is his burden to show prejudice from counsel’s performance. See Fuller v. United
States, 398 F.3d 644, 652 (7th Cir. 2005); Berkey v. United States, 318 F.3d 768, 774 (7th Cir.
2003); see, e.g., United States v. Stuart, 773 F.3d 849, 852-53 (7th Cir. 2014) (no showing that
failure to recall Government’s witness prejudiced case). Leal has not proposed an alternate
wording that had a reasonable chance of changing the outcome of the trial.
Turning to Leal’s argument that counsel should have objected to giving Government’s
Instruction Number 4 at all, he has likewise not shown prejudice. Leal speculates that the jury
might have been confused by the Court’s giving both Government’s Instruction Number 4 and
Defendant’s Instructions Number 1 and 2 (modified). Leal has not explained how any
confusion-generating conflict in the instructions had a reasonable probability of changing the
jury’s verdict.
As noted above, the evidence of enticement before getting to the entrapment defense was
overwhelming. As to entrapment, the Court instructed the jury that to find Government
inducement, the jury had to find conduct that “creates a risk a person who would not commit the
crime if left to his own devices will do so in response to the efforts of the agent or agents.”
Def.’s Instr. No. 2 (No. 19-cr-40069-JPG, Doc. 113 at 29; Tr. Trans. 131:3-132:12).
Alternatively, the jury could find that Leal was predisposed to commit the crime, that is, “he was
ready and willing to commit the crime and likely would have committed it without the
intervention of the agent; or he wanted to commit the crime but had not yet found the means.”
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Id. It is perfectly reasonable to assume that the jury reconciled all of the instructions given by
understanding that the Government can use undercover agents or other deceptive techniques but
that it entrapped Leal if those techniques would have induced him to commit the crime where he
would not have done so if left to his own devices and without the intervention of the
Government. Where it is not prohibited to give the instructions together, Leal, 72 F.4th at 267,
n.2, Leal needs to explain why doing so had a reasonable possibility of changing the jury’s
verdict. He has not done so.
In fact, reviewing the trial as a whole, the Court finds that changing or omitting the
Government investigative techniques instruction would not have had a reasonable chance of
leading to a different result. The jury was presented with phone chat transcripts showing
exactly what Special Agent Carter, posing as “Corey,” and Leal said in those interactions.2
Those conversations gave the jury a basis for assessing whether there was enticement by Leal,
inducement by Special Agent Carter, exactly how reticent Leal was to engage in sex with
“Corey,” and the nature of that reticence. The jury also listened to a recorded interview of Leal
in which he said that he knew showing up to meet with a 15-year-old boy for oral sex was
wrong, that he knew he should not have, and that he understood what he did was illegal. He
also confirmed the accuracy of the Grindr chat that had occurred that evening.
Defense counsel also vigorously argued weaknesses in the investigation. One weakness
was that the Government had not shown the earlier unpreserved Grindr messages that may have
contained evidence of entrapment, for example, reticence to proceed once a fictional minor’s age
2 Previous interactions between an agent posing as 15-year-old “Clay” and Leal were not
preserved and were not accessible later because Grindr had banned the “Clay” account and Leal
had deleted his own record of those exchanges.
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was revealed. Another weakness was the lack of video surveillance of the house where “Corey”
reported he was and the lack of evidence Leal would have actually entered the house. The jury
knew about these weaknesses thanks to excellent argument by defense counsel, yet still found
the Government did not induce Leal to do anything he would not otherwise have done without
Government agents’ conduct. Furthermore, no instruction prevented the jury from finding
conduct the Government was “permitted to use” under Government’s Instruction Number 4
could also serve as a basis for the distinct question of entrapment. In the face of such evidence,
argument, and instruction, there is no reasonable probability that the jury would have interpreted
and weighed the evidence differently without the Government investigative techniques
instruction (or with a modified instruction) and that, instead, they would have acquitted Leal of
the charge.
c. Prosecutorial Misconduct
Leal asserts the Government committed misconduct when it even proposed the
unmodified instruction. He points to the fact that in a trial of another defendant on a similar
charge, the Government offered and then withdrew the same instruction after the defense
objected, and in that trial, the defendant was acquitted.
There is nothing improper about offering an instruction in one case while withdrawing it
in another, even when both cases involve the same charged offense. Each case has its own
facts, and the Government makes its litigation decisions based on those facts. And where no
law prohibits the giving of Pattern Instruction 3.19 with the entrapment instructions, is it not
misconduct to offer it. Doing so does not “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(internal quotations omitted).
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3. Ground 3: Closing Arguments
In Ground 3, Leal argues that the Government committed prosecutorial misconduct in
violation of his Fifth Amendment due process rights during its closing argument when it invoked
the petitioner’s socioeconomic status and a personal opinion of Leal’s character to inflame the
jury’s passions against him. He criticizes his counsel for failing to object to the Government’s
argument and by failing to request a limiting instruction to confine character evidence to the
question of predisposition to commit the charged offense, all of which he believes violated his
Sixth Amendment right to effective assistance of counsel.
When evaluating a claim of prosecutorial misconduct because of a prosecutor’s
comments, the Court first asks whether the comments were improper in isolation, then asks
whether the comments, in the context of the whole record, denied the defendant a fair trial.
United States v. Gustafson, 130 F.4th 608, 617 (7th Cir. 2025); see United States v. Clark, 535
F.3d 571, 580 (7th Cir. 2008) (“If it was improper, we next consider whether it prejudiced the
defendant.”).
In the latter inquiry, the Court considers:
(1) whether the prosecutor misstated the evidence; (2) whether the remark
implicated a specific right; (3) whether the defendant invited the remark; (4)
whether the district court provided (and the efficacy of) a curative instruction; (5)
whether the defendant had an opportunity to rebut the remark; and (6) the weight
of the evidence against the defendant.
Clark, 535 F.3d at 580-81. “[I]t is not enough that the prosecutors’ remarks were undesirable or
even universally condemned. The relevant question is whether the prosecutors’ comments so
infected the trial with unfairness as to make the resulting conviction a denial of due process.”
United States v. Washington, 417 F.3d 780, 786 (7th Cir. 2005) (internal quotations and citations
omitted).
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The Court turns to the two statements in the Government’s closing argument about which
Leal complains.
a. Socioeconomic Status
In the Government’s main closing argument, the prosecutor made the following argument
to the jury:
So the final element that we have to talk about over the next couple of minutes is
the entrapment element, Element Number 5 in that backbone instruction, and then, once
again, that Element Number 5 refers to a much longer or a long instruction that is also in
the packet. And during—and as part of that instruction, Judge Gilbert told you that a
government agent induces the defendant to commit a crime if the agent solicits the
defendant to commit the crime and does something in addition that could influence a
person to commit a crime that the person would not commit if left to his own devices.
So, what does that mean? That means the Government entraps someone if they
cause the defendant to do something that he did not want to do. And the evidence in this
case shows that the Government did not cause the defendant to do anything he didn’t
already want to do. If you look at—if you look at the Government’s Exhibit in this case,
during his confession and during the chat sessions, it’s obvious the defendant knew what
he was doing was wrong. He just didn’t care.
It also came out during his success—during his interview in Government’s
Exhibit 2 is that he wasn’t some lamb in the woods. He wasn’t someone who the
government agents could easily take advantage of. He was a successful, educated
businessman and a restaurant owner in Marion, Illinois, with arguably the largest and
most popular restaurant in Marion, Illinois.
Trial Tr. 143:17-144:18 (No. 19-cr-40069-JPG, Doc. 118 at 34-35; Tr. Trans. 143:17-144:18)
(emphasis added).
Leal assets that his education level and business success were irrelevant to the question of
entrapment and that the Government used those characteristics to bias the jury against him.
They were not irrelevant, and the Government’s reference to those personal characteristics was
proper. The Government is “free to invite the jury to draw a particular inference from [the]
evidence.” United States v. Collins, 223 F.3d 502, 511 (7th Cir. 2000). It was in evidence that
Leal had been to college and that he was part owner of a large, successful restaurant in Marion,
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Illinois. In highlighting these characteristics, the Government was asking the jury to infer from
the evidence that Leal was a savvy, discerning man who was not easily tricked into doing
something he would not ordinarily be inclined to do. This is relevant to his entrapment defense,
that is, whether the Government was able to induce him to commit a crime that he would not
have committed if left to his own devices and whether he was predisposed to commit that crime.
If he were not easily led, it would be less likely that the Government could induce him to commit
a crime. Asking the jury to draw such an inference was proper.
b. Personal Opinion
Leal objects to the Government’s statement in the following portion of its main closing
argument:
And there was also—and this is probably the point where I will end this section of
my closing argument—but there was kind of a telling exchange, which I didn’t notice the
first couple of times I listened to it, but there is a telling exchange which indicated to me,
anyway, that this was not the defendant’s first time where he had gone out and had
recruited someone for sex on Grindr who was on the borderline at least of being a minor.
(Government’s Exhibit 2 played).
It’s our position that that “as far as I know” is kind of a telling statement. This
defendant was using Grindr, he said, for two or three years. He was using it, it appears
to be with at least he didn’t know if it was minors, but it doesn’t appear that he cared.
He said “as far as I know.” He sort of admits that he is having sex with people on the
borderline of that age, and it gets back to my statement the Government did not entrap the
defendant because he just didn’t care.
Trial Tr. 145:10-146:2 (No. 19-cr-40069-JPG, Doc. 118 at 36-37; Tr. Trans. 145:10-146:2)
(emphasis added). The recording in Exhibit 2 contained the following exchange:
Agent Bendoraitis: Was this your first time?
Jorge Leal: Um with a minor?
Agent Bendoraitis: Yes.
Jorge Leal: Ahh, as far as I know, ya.
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Gov.’s Resp. Ex. 3 at 31 (Doc. 5 at 31).
Leal argues that the italicized language above improperly offered the prosecutor’s
personal opinion about certain a statement Leal made in his interview with law enforcement
officers. Contrary to Leal’s assertion, his statement was in evidence through the recordings
played to the jury—and again replayed in the Government’s closing argument—of Leal’s
interview with law enforcement. And as noted above, the Government can invite the jury to
draw a particular reasonable inference from that evidence. Here, the Government was asking
the jury to adopt a nuanced understanding of a piece of evidence that even the prosecutor initially
missed. The prosecutor’s self-deprecation was likely to make the jury feel less bad about
perhaps not appreciating that understanding the first time as well—and perhaps okay about
rejecting it as too nuanced. It is unfortunate that the prosecutor injected himself unnecessarily
into his plea to the jury, but his plea was, indeed, based on the evidence, and it was not an
impermissible expression of his own personal belief in the defendant’s guilt or the credibility of
a witness. Therefore, it was a proper comment.
Since the foregoing statements by the Government in its closing argument were proper,
defense counsel was not deficient for failing to object to them. Even if they had been improper,
whether to object to a statement in a closing argument is often a matter if trial strategy. United
States v. Driver, 798 F.2d 248, 255 (7th Cir. 1986). Counsel may have weighed the harm done
by the statements against the harm of calling attention to them and decided that letting them go
without objection better served the defendant’s interests.
Furthermore, neither of the statements improperly prejudiced the jury. Both accurately
stated the evidence, and neither implicated any specific right of the defendant such as, for
example, his right not to testify. As for the defendant’s inviting the statements, in his opening
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statement, defense counsel stated that Leal was not interested in having sex with a minor, that a
Government agent insisted that Leal join the fictitious minor in sex, and that a Government agent
enticed Leal to have sex with a minor—in essence, it suggested entrapment. The Government’s
statements in its closing argument were aimed at that theory of the defense.
Because the Government made the statements in its main closing argument, as opposed to
its rebuttal, Leal had an opportunity in his own closing argument to rebut the statements.
Indeed, Leal’s counsel addressed the Government’s argument about Leal’s not knowing he had
done anything before with a minor, but counsel likely did not highlight either argument to the
jury for fear of calling attention to the Government’s position. Most importantly, the
Government’s statements in its closing argument were insignificant in light of the overwhelming
evidence against Leal, including his own recorded admissions to law enforcement officers.
To the extent Leal objects to counsel’s failure to seek a limiting instruction, that was not
deficient performance. The committee comment to Pattern Instruction 6.05 recommends, but
does not mandate such an instruction. Such an instruction would have highlighted the
Government’s statements when it was reasonable trial strategy to try to minimize them in the
jury’s mind. Further, in light of the strong evidence against Leal and the Court’s giving Pattern
Instruction 2.01 (instructing the jury that the lawyer’s statements and arguments are not
evidence), there is no reasonable chance that a limiting instruction would have had changed
Leal’s conviction.
For the foregoing reasons, the Government’s closing arguments and defense counsel’s
performance relating to those arguments do not warrant § 2255 relief.
4. Ground 4: Unanimity
In Ground 4, Leal makes several arguments that his counsel was constitutionally
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ineffective because he did not demand unanimity of the jury.
a. Element of the Offense
In the first instance, he argues that his counsel was deficient for failing to request an
instruction requiring the jury to unanimously agree on the statutory element—attempted
persuasion, enticement, inducement or coercion of a minor—committed by Leal. Leal also
faults his counsel for failing to request a special verdict form or a poll of the jury.
As noted above, while the Court informed the jury that Leal was charged in an indictment
naming all four elements in the alternative, the elements instruction required the jury to
unanimously find the single element of attempt to entice before it could convict Leal.3 Gov.’s
Instr. No. 8 (modified) (No. 19-cr-40069-JPG, Doc. 113 at 19). Any further instruction for
unanimity regarding the statutory element, or a special verdict form confirming the element
found, would have been superfluous and could have confused the jury. Furthermore, the Court
did poll the jury after it returned a verdict to confirm that each juror had agreed to the verdict.
Trial Tr. 160-62 (Doc. 118 at 51-53). In sum, the elements instruction given was a correct
statement of the law, and the jury’s verdict proves that it unanimously found Leal had committed
the elements of attempt to entice. Counsel was not deficient for failing to ask for more.
b. Substantial Step
Leal also argues counsel was deficient for failing to request instructions requiring
unanimity on the “substantial step” taken toward attempting to entice a minor, element 4 in the
elements instruction. Gov.’s Instr. No. 8 (modified) (No. 19-cr-40069-JPG, Doc. 113 at 19).
3 Additionally, the Court reiterated in other places the need for unanimity in its closing
instructions: Court’s Instruction Numbers 11 and 12 (No. 19-cr-40069-JPG, Doc. 113 at 11-12)
(Pattern Instructions 7.02 (Verdict Form) and 7.03 (Unanimity/Disagreement Among Jurors)).
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He argues that the jury may have thought he took a substantial step toward one of the other
alternate elements of the statute—like inducing rather than enticing—which would have
deprived him of a unanimous verdict. But the answer again rests in the elements instruction,
which specifically required the jury find Leal took “a substantial step toward committing the
crime of attempted enticement of a minor.” Trial Tr. 127:19-20 (No. 19-cr-40069-JPG, Doc.
118 at 55) (emphasis added).
To the extent Leal raises the question of whether counsel should have asked for an
instruction requiring unanimity on the specific “substantial step” taken, Leal has not pointed to
any caselaw showing the jury needed to make such a finding. See United States v. Hofus, 598
F.3d 1171, 1176 (9th Cir. 2010) (jury need not agree on specific “substantial step”); see also
United States v. Griggs, 569 F.3d 341, 344 (7th Cir. 2009) (in conspiracy context, no need to
agree on specific “overt act”). Counsel cannot be deficient for failing to ask for an instruction
the law did not require at the time.4
Further, in this case, a “substantial step”—traveling to the prearranged meeting place, see
United States v. Berg, 640 F.3d 239, 250 (7th Cir. 2011)—was so salient and was supported by
such overwhelming evidence that there is no reasonable probability that, had the jury been
4 Leal also invokes United States v. Christophel, 92 F.4th 723 (7th Cir. 2024), to help him.
There, the Court of Appeals for the Seventh Circuit held that one of the sentences in the
instruction defining what it means to attempt to commit enticement—also in Leal’s case as
Government’s Instruction Number 9—could have confused the jury because it suggested that it
could find the defendant guilty if he had unintentionally caused the minor to consent to illegal
sexual activity. Id. at 727. However, the Court of Appeals found that the instruction a whole
did not misstate the law because its first sentence “described the offense as ‘knowingly’ taking a
substantial step with the ‘intent to commit enticement of a minor,’” and left no room for
unintentionally causing the minor to consent. Id. Leal does not explain how Christophel
impacts his case, but the Court finds that even if it did, Christophel was not decided until well
after Leal’s trial, so counsel cannot be faulted for failing to anticipate its holdings and
recommendations.
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instructed on the need to agree on the substantial step, they would have failed to unanimously
agree on that specific substantial step.
c. Entrapment
Finally, Leal faults his counsel for failing to request an instruction requiring unanimous
agreement on which of the two prongs of the entrapment defense the Government proved beyond
a reasonable doubt: (1) that Government agents did not induce Leal to commit the offense when
he would not have committed it absent the Government conduct or (2) that Leal was predisposed
to commit the offense before he had contact with Government agents. He argues the
Government focused on proving there was no inducement—an argument focusing on the
Government’s conduct—but then commented on his character by arguing in its closing argument
that “he just didn’t care” about the age of the person he was meeting—more aimed toward
showing he was predisposed. He suggests evidence of his character improperly conflated two
completely separate issues, thereby confusing the jury.
Counsel was not deficient for offering a pattern instruction approved by the Seventh
Circuit Court of Appeals and failing to ask for a different instruction requiring unanimity on
whether the Government proved the “no inducement” or “predisposition” prong of the
entrapment defense. Leal has not pointed to any caselaw showing the jury needed to make such
a finding, and while a pattern instruction is not guaranteed to be correct, failing to object to it, at
least in this case, is well within the realm of reasonable performance. An instruction requiring
unanimity regarding the entrapment prongs was not required by the law at the time, so counsel
was not deficient for failing to make such an argument or ask for a special verdict form or a jury
poll to confirm the jury’s finding. Further, the evidence was overwhelming that Leal was
predisposed to commit the charged crime and that the Government did not overreach in
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influencing him to commit the crime. It simply presented the opportunity, and Leal took it.
Finally, the Court notes that Leal’s view of the two prongs as completely distinct is not
correct. “[A]lthough the defense has two distinct elements—government inducement and lack
of predisposition—the elements are conceptually related.” United States v. Mayfield, 771 F.3d
417, 430 (7th Cir. 2014) (en banc) (citing Mathews v. United States, 485 U.S. 58, 63 (1988)); see
United States v. Anderson, 55 F.4th 545, 553 (7th Cir. 2022) (noting that the two entrapment
defense elements are closely related). They are related because “[t]he nature of the government
inducement is ‘significant chiefly as evidence bearing on predisposition: the greater the
inducement, the weaker the inference that in yielding to it the defendant demonstrated that he
was predisposed to commit the crime in question.’” Mayfield, 771 F.3d at 437 (quoting United
States v. Hollingsworth, 27 F.3d 1196, 1200 (7th Cir. 1994) (en banc). For example, the
defendant’s reluctance to commit the crime and his conduct after the initial contact with
Government agents may be evidence relevant to predisposition. Mayfield, 771 at 437. Further,
reluctance can prompt further Government persuasion that can rise to the level of inducement.
Anderson, 55 F.4th at 553. “Each factor on lack of predisposition, including reluctance, helps
estimate how likely it was the defendant would have committed the crime if left to his own
devices.” Id.
Here, Leal’s character was relevant to his predisposition to commit the crime before
contact with Government agents as well as the “no inducement” prong. In considering the “no
inducement” prong, the Court asked the jury to assess what Leal would have done “if left to his
own devices” absent contact with Government agents and whether the Government contact was
of a nature and quantum to influence Leal to do something he would not otherwise have done.
The Government asked the jury to conclude that Leal did not care about the age of his sexual
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partners and suggested that he would have had sex indiscriminately with minors and adults “if
left to his own devices.” Thus, the Government suggested, there could be no improper
Government influence to induce Leal to do something he would not have done without the
Government contact because he was likely already doing it. This concept lies at the intersection
of the “predisposition” and “no inducement” prongs of the entrapment defense.
For the foregoing reasons, Ground 4 does not warrant § 2255 relief.
5. Ground 5: Discriminatory Enforcement
In Ground 5, Leal argues that the Federal Bureau of Investigation (“FBI”) investigated
and referred his case for prosecution because of his sex and sexual orientation.5 Leal asserts
violations of his Fifth Amendment due process rights (incorporating Fourteenth Amendment
equal protection rights) by the FBI’s use of Grindr, a website focused on men seeking other men
for sex, to intentionally attract male suspects rather than female, based on their sexual
orientation. This is especially true, Leal argues, because FBI agents believed adult gay men
tended to get sexual in their messages sooner than others in the community. He also argues his
counsel was constitutionally ineffective in violation of his Sixth Amendment rights by failing to
object to the discriminatory investigation and referral. Contrary to the Government’s view, the
Court does not construe this as a request for discovery in this § 2255 proceeding but as a
complaint about the FBI’s investigation methods and his counsel’s failure to object to them.
Selective enforcement is the moniker given to claims like Leal’s that a law enforcement
agency’s investigative or referral decisions were unduly discriminatory. See United States v.
Davis, 793 F.3d 712 (7th Cir. 2015) (selective enforcement based on race); United States v. York,
5 Importantly, he is not challenging the United States Attorney’s decision to prosecute this
case once the FBI referred it for prosecution.
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No. 20-cr-40050-JPG, 2021 WL 1062241, at *3 (S.D. Ill. Mar. 18, 2021) (based on sex). It is
clear that where law enforcement agencies discriminate in who they investigate or refer to the
United States Attorney for prosecution, they may violate constitutional equal protection
guarantees. Davis, 793 F.3d at 720. Unlike prosecutors, investigators are not protected by
executive privilege and are not afforded the presumption of honest and constitutional conduct
like prosecutors are when probable cause exists. Id.; see Conley v. United States, 5 F.4th 781,
791 (7th Cir. 2021).
When faced with a charge of selective enforcement, Davis instructs the Court to begin by
asking whether there was any reason to believe that the impermissible factor (race, sex, etc.)
played a role in the investigation. Id. at 722. If there is, the Court might take evidence from
the investigating agency in camera. Id. at 723. If there is reason to believe a factor was
impermissibly considered in investigatory decisions, the Court must “determine whether
forbidden selectivity occurred or plausibly could have occurred. If not, there would not be a
basis to attribute this prosecution to the defendants’ race [or sex/sexual orientation]. . . .” Id. at
723. If so, more information should be gathered with broader discovery. Id.
a. Counsel’s Performance
Leal claims his counsel was constitutionally ineffective for failing to seek discovery on a
selective enforcement claim. However, he has not carried his burden of establishing that
reasonable counsel would have believed that Leal’s sex or sexual orientation played a role in his
investigation or in his referral to the United States Attorney for prosecution. Although most of
the suspects and defendants caught in sting operations on Grindr were gay men, there were many
other such sting operations on other websites like Craigslist that do not cater to a single sex or
those with a single sexual orientation. See, e.g., York, 2021 WL 1062241, at *1, *7 (“Operation
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Beach Apple” on Craigslist). Using Grindr is not a free pass from investigation of activity
conducted there simply because it appeals to a certain segment of the population. Leal has
pointed to no evidence reasonably suggesting that the FBI’s investigations were purposefully
discriminatory on the basis of sex or sexual orientation simply because this one sting was on
Grindr.
Furthermore, Leal has not pointed to any evidence his counsel could have found in
discovery that would have had a reasonable change of changing the result in this case, that is, of
causing the Court to dismiss the indictment because of selective enforcement. As the Court has
noted above, when a § 2255 petitioner alleges his counsel failed to make an argument, it is his
burden to show what counsel should have argued and explain how such an argument would have
had a reasonable chance of changing the outcome of the case. See Fuller v. United States, 398
F.3d 644, 652 (7th Cir. 2005); Berkey v. United States, 318 F.3d 768, 774 (7th Cir. 2003).
Similarly, where a § 2255 petitioner claims his counsel failed to investigate something, he must
“provide the court sufficiently precise information, that is, a comprehensive showing as to what
the investigation would have produced” and how what was discovered would have had a
reasonable probability of changing the outcome. Richardson v. United States, 379 F.3d 485,
488 (7th Cir. 2004) (internal quotations omitted); Hardamon v. United States, 319 F.3d 943, 951
(7th Cir. 2003) (internal quotations and citation omitted). He cannot rely on vague allegations
that the investigation was insufficient or would have yielded favorable evidence. See
Hardamon, 319 F.3d at 951. Without sufficiently precise information of discriminatory criteria
and decisions of the FBI, the petitioner cannot show that constitutionally adequate counsel would
have performed any differently than his actual counsel did or that counsel would have discovered
evidence that would likely have led to a different result. See Richardson, 379 F.3d at 488.
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b. Selective Enforcement
It should go without saying that if Leal cannot show reasonable counsel would have
believed that his sex or sexual orientation played a role in his investigation, and if he cannot
specify what further investigation would have yielded that would have had a reasonable
probability of changing the outcome of this case, he cannot carry his burden of showing that the
FBI selectively enforced the law against him.
For the foregoing reasons, Ground 5 does not warrant § 2255 relief.
6. Other Miscellaneous Arguments
To the extent Leal advances other miscellaneous arguments that the Court has not
addressed, they do not warrant § 2255 relief. Nor do all the asserted grounds cumulatively
warrant relief. As it noted earlier in this order, the Court observed counsel for both sides
behaving and arguing vigorously and appropriately with the goal of giving Leal a fair trial. In
looking back on the trial, the Court is certain he got one, and that any errors that might have been
made were harmless. Accordingly, the Court will deny § 2255 relief.
IV. Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings and Rule 22(b)(1) of
the Federal Rules of Appellate Procedure, the Court considers whether to issue a certificate of
appealability of this final order adverse to the petitioner. A certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); see Tennard v. Dretke, 542 U.S. 274, 282 (2004); Ouska v.
Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001). To make such a showing, the petitioner
must “demonstrate that reasonable jurists could debate whether [the] challenge in [the] habeas
petition should have been resolved in a different manner or that the issue presented was adequate
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to deserve encouragement to proceed further.” Ouska, 246 F.3d at 1046; accord Buck v. Davis,
580 U.S. 100, 115 (2017); Miller-El v. Cockrell, 537 U. S. 322, 327 (2003). The Court finds
that Leal has not made such a showing and, accordingly, declines to issue a certificate of
appealability.
V. Conclusion
For the foregoing reasons, the Court DENIES Leal’s § 2255 motion (Doc. 1),
DECLINES to issue a certificate or appealability, and DIRECTS the Clerk of Court to enter
judgment accordingly.
IT IS SO ORDERED.
DATED: October 28, 2025
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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