United States v. Dane Gillis
938 F.3d 1181
| 11th Cir. | 2019Background
- Defendant Dane Gillis posted a Craigslist ad seeking "taboo" sexual encounters and communicated for two weeks with an undercover FBI agent posing as the father of an 11‑year‑old and as other users. Conversations detailed plans to kidnap and sexually assault coworker M.O. and to have sex with the agent’s fictional 11‑year‑old daughter.
- Gillis canceled an initial meeting but later arranged a second rendezvous; he drove about an hour to the meeting location and was arrested. He admitted post‑Miranda that he traveled to have sex with a minor and had fantasized about sex with children; police found prepubescent images and related searches on his computer.
- A superseding indictment charged Gillis with: (Count 1) attempt to induce/entice a minor to engage in sexual activity (18 U.S.C. § 2422(b)); (Count 2) solicitation to commit federal kidnapping (18 U.S.C. § 373 with § 1201(a) as the underlying felony); and (Count 3) interstate threat to kidnap (18 U.S.C. § 875(c)).
- At trial the district court limited two defense experts (Dr. Herriot and Dr. Sullivan); Gillis testified that the chats were fantasy/role‑play. The jury convicted on all counts; district court imposed concurrent lengthy sentences.
- On appeal the Eleventh Circuit affirmed the § 2422(b) conviction and the district court’s exclusion of expert testimony, but reversed the § 373 solicitation conviction because § 1201(a) kidnapping, read categorically as required by precedent, can encompass non‑physical (inveigle/decoy) means and therefore does not categorically have a physical‑force element required by § 373.
Issues
| Issue | Gillis's Argument | Gov't Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for § 2422(b) (Count 1) | Chat was fantasy/role‑play; agent suggested minor; cancelled first meeting; only met father to discuss future plans. | Gillis repeatedly expressed sexual interest in the supposed 11‑yr‑old, requested sexualized photos/outfit, planned acts, and drove to meeting; post‑Miranda admissions and corroborating images/searches. | Affirmed — evidence (communications, travel, admissions, files) was sufficient to prove intent and a substantial step. |
| Exclusion of expert testimony (Drs. Herriot & Sullivan) — constitutional right to present a defense | Excluded experts were necessary to show communications were fantasy/role‑play and negate intent; exclusion violated Fifth/Sixth Amendment rights. | Experts failed Daubert/Rule 702 (unreliable, insufficiently disclosed) and Rule 704(b) (impermissibly opine on criminal intent); Gillis could still testify. | Affirmed — district court did not abuse discretion; no compelling reason to override evidentiary rules; exclusion not reversible constitutional error. |
| Construction of § 373(a) (elements vs. conduct‑based approach) | § 373 twice refers to soliciting another to "engage in conduct," so court should examine the actual conduct Gillis solicited (violent abduction) rather than apply an ordinary‑case categorical approach. | § 373 uses nearly identical elements language to § 924(c)(3)(A) and § 16; prior Eleventh Circuit precedent (McGuire) and related canons require the categorical approach. | Court followed McGuire and applied the categorical approach to § 373. |
| Whether § 1201(a) federal kidnapping categorically has a physical‑force element (impact on § 373 conviction) | Even the least culpable kidnapping means charged (confinement) involves threats/use of physical force; conviction should stand. | § 1201(a) enumerates alternative means (including inveigle/decoy) that can be non‑physical; under categorical approach a conviction might rest on non‑physical means, so § 373’s force requirement isn’t necessarily met. | Reversed § 373 conviction — § 1201(a) is indivisible and its least culpable means (inveigle/decoy) can involve only emotional/intellectual restraint; because § 373 requires a felony that "has as an element" physical force, the solicitation conviction cannot stand. |
Key Cases Cited
- United States v. Lee, 603 F.3d 904 (11th Cir. 2010) (elements and proof standards for § 2422(b) attempt to entice a minor)
- United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004) (defendant’s travel to meet a purported minor corroborative of intent)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial‑court gatekeeping on expert admissibility under Rule 702)
- United States v. McGuire, 706 F.3d 1333 (11th Cir. 2013) (applied categorical approach to elements‑clause analysis under § 924(c)(3)(A))
- United States v. Davis, 139 S. Ct. 2319 (2019) (Supreme Court discussion of "offense" and categorical approach in context of § 924(c))
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing divisible statutes and explaining the modified categorical approach)
- Curtis Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means force exerted by concrete bodies; definition for ACCA elements clause)
- United States v. Chatwin, 326 U.S. 455 (1946) (kidnapping may involve mental restraint; discussion of "holding" requirement)
- United States v. Boone, 959 F.2d 1550 (11th Cir. 1992) (inveiglement/decoy can amount to kidnapping where kidnapper retains ability/willingness to use force)
- Stokeling v. United States, 139 S. Ct. 544 (2019) ("physical force" is force capable of causing physical pain or injury; clarifies degree required)