State v. Gililung: Attempted Commercial Sexual Abuse of Minor (Undercover Sting)
Mr. Gililung was arrested in December 2019 as a result of an undercover operation where police posed as willing participants for sex, including a particular girl that was supposedly 16. Mr. G was found guilty of Attempted Commercial Sexual Abuse of a Minor and Communication with a Minor for Immoral Purposes (“CMIP”) after a jury trial.
A male detective posted an advertisement on a website used for prostitution, including an image of a young female who was also an undercover detective. “Her” listed age was 23, but the ad stated, “Younger than you think.” Gililung responded by text to this ad. The male detective responded, stating three times, “she” was “16 years old,” would be “discreet,” and “not say sh[*]t to anyone.” Gililung requested a phone call, and the female detective spoke to him. Gililung asked her if she was “really 16,” and she assured him she was. Gililung was concerned that the operation was a “setup,” and he “didn’t want to get arrested.” He requested “full service,” and was informed that would cost $100. He continued texting, requesting to meet at his car and to send him a nude photograph. His requests were declined.
Gililung texted he would instead come to where “she” was and was given a hotel address (i.e. the undercover sting location). “She” texted saying she only took cash. Gililung responded he would stop at an ATM. Gililung later texted he was not coming to the hotel. The male detective then concluded by texting, “Wow. F[*]ck off. Bye.” as if “her” time had been wasted. The sting operation closed down.
As the female detective was leaving the hotel, she noticed a male sitting in a truck. It was Gililung who texted and stated he would come to the hotel. The male detective texted back, asking for a photo of Gililung and a description of his truck. Gililung attempted to drive away, but was stopped by police. A later search of his vehicle resulted in his phone being seized, and $100 being found in the cup holder.
Gililung sought a jury instruction on ‘entrapment’ as to the CMIP count. The Court of Appeals agreed with the trial judge that there was not sufficient evidence produced of “inducement” to allow such an instruction, finding there was really no testimony that went beyond making the act of paid sex with a minor “available.” The defense argued on appeal that there need only to be “some” evidence of the below required elements to get such an instruction:
Washington’s entrapment statute provides:
(1) In any prosecution for a crime, it is a defense that:
a. The criminal design originated in the mind of law enforcement officials, or any person acting under their direction, and
b. The actor was lured or induced to commit a crime which the actor had not otherwise intended to commit.
(2) The defense of entrapment is not established by showing only that law enforcement officials merely afforded the actor an opportunity to commit a crime.
RCW 9A.16.070
The Appellate Court agreed that the evidentiary standard was a preponderance of evidence, or “some” evidence. However, it disagreed with the idea that Gililung had shown this standard was met at trial (thereby agreeing with the trial judge):
Evidence of inducement may be based on “persuasion, fraudulent representations, threats, coercion, harassment, promises of reward, pleas based on need, and sympathy or friendship.” Id. At 375. But merely providing the defendant with the opportunity to commit the offense is insufficient to establish inducement. Id. “There must be opportunity ‘plus’ something else, such as excessive pressure placed on the defendant.” Id. at 377 (quoting United States v. Poehlman, 217 F.3d 692, 701 (9th Cir. 2000)).
The only “pressure” here appears to be Mr. Gililung wanting personal assurances, such as demanding photos of the victim or having to meet beforehand.
Mr. Gililung argued that inducement was shown by his lack of predisposition to have sex with a minor:
Gililung’s initial argument that there was some evidence that he was not predisposed to commit the crime because law enforcement changed the age of the purported victim is unpersuasive given that law enforcement repeatedly clarified that the female was just 16 years old. Indeed, after being told multiple times the person was just 16, Gililung continued communicating with the person, apparently withdrew $100 from an ATM, and drove to the hotel where the detective stated that the minor would be—all showing Gililung was predisposed to commit the crimes against a minor.
Gililung testified he told the female detective he was “not okay” with her being 16 years old, that he did not believe she was actually 16, had not made up his mind about sex, but actually looking to just talk to someone. This is inconsistent with the $100 cash found in the truck. The Appellate Court held:
[E]ven when viewed in the light most favorable to Gililung, none of the evidence that Gililung sets forth is sufficient to permit a reasonable juror to find entrapment by a preponderance of the evidence; the facts cited by Gililung cannot be reasonably considered some evidence of “opportunity ‘plus’ something else, such as excessive pressure placed on the defendant.” State v. Arbogast, 199 Wn. 2d at 377. Thus, we hold that the trial court did not abuse its discretion in refusing to instruct the jury on entrapment with respect to the communication with a minor for immoral purposes count.Mr. Gililung got 30 months in prison as a result of a fairly classic undercover website sting by law enforcement. It’s really a ‘hard sell’ to defend oneself by saying someone or something induced me to engage in sexual conduct when one goes on such sites, particularly with these facts. The detectives involved here did nothing to talk Mr. Gililung into showing up at the hotel.