No. 23-2653 ___________________________

United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

James Dean Hanapel,

lllllllllllllllllllllDefendant - Appellant. ____________

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

Submitted: March 15, 2024 Filed: August 12, 2024 ____________ Before COLLOTON, Chief Judge, ERICKSON and KOBES, Circuit Judges. ____________ COLLOTON, Chief Judge.

A jury found James Hanapel guilty of attempting to entice a minor to engage in sexual activity. See 18 U.S.C. § 2422(b). The charge arose from Hanapel’s dialogue with an undercover officer who posed as a fourteen-year-old girl. At trial, Hanapel raised the affirmative defense of entrapment. At the close of the government’s case, he moved for judgment of acquittal on the ground that he was entrapped as a matter of law. The district court* denied the motion, and we affirm.

I.

In August 2021, several law enforcement agencies participated in an operation to combat child exploitation on the internet during the Sturgis Motorcycle Rally in South Dakota. As part of the operation, a special agent from the Department of Homeland Security posed as “Journey,” a fictitious fourteen-year-old girl whose parents were attending the rally.

The agent created an account for Journey on SKOUT, an internet application that is used for dating and social networking. On Journey’s public profile, he represented that she was eighteen years old because SKOUT required users to be no younger. He also included two photographs of “Journey” that were actually pictures of an adult woman associated with law enforcement.

On August 10, 2021, Hanapel sent a message to Journey from an account purporting to belong to “Max Taylor.” According to the profile, Max Taylor was a twenty-one-year-old man located in Box Elder, South Dakota. Hanapel asked whether Journey wanted to “hang out.” The next day, Journey said “[m]aybe” and provided a telephone number.

On August 12, Hanapel and Journey began to communicate via text message. Hanapel asked whether Journey “[w]ant[ed] some company.” Journey said that she did, but she “want[ed] to tell” Hanapel that she was “not 18” and was “just here trying

* The Honorable Jeffrey L. Viken, United States District Judge for the District of South Dakota, now retired.

-2- to have fun while my parents are at the rally.” Hanapel asked, “How old are you ??” At 3:40 p.m., Journey replied, “14 but turn 15 in a couple months.”

Less than one minute later, Hanapel responded, “Yoo I can’t talk to you.” He added that they could “be friends but nothing more.” Journey wrote back: “ok. sorry. i understand. guys my age are pretty lame and you seemed pretty cool. i didn’t mean to upset you sorry. you were just so cute.” Hanapel reassured her that “[i]t’s okay you seem cool I just don’t want trouble if you wanna hangout and grab ice cream or catch a movie that’s cool but I’d have to meet your parents[.] Because if they got the wrong impression I’m going to jail.”

Journey said that she was “not here to get anyone in trouble,” and had “met people” on SKOUT “all the time.” Hanapel replied, “Oh okay well do you wanna go do something.” Journey asked what he had in mind. Hanapel suggested that they could “grab food or watch a movie,” and asked what Journey had “done with people before.” Journey answered, “a lot....lol [laugh out loud].” Hanapel asked