United States v. Mark McGill
2014 U.S. App. LEXIS 11084
| 7th Cir. | 2014Background
- McGill, a socially isolated member of an online “boylovers” group, possessed child pornography but had no prior evidence of distributing it.
- Jacob “Jake” Elliott, who introduced McGill to child pornography, was arrested with thousands of images and became an FBI informant to avoid life imprisonment.
- Over several weeks Elliott repeatedly called and pressured McGill to provide copies of his files; McGill initially expressed discomfort with sharing and social gatherings but ultimately allowed Elliott to copy files from his computer using a USB drive.
- McGill was charged with possession and distribution of child pornography; he sought an entrapment instruction for the distribution count, which the district court refused.
- A jury convicted McGill on both counts; the district judge sentenced him below guideline range (108 months), commenting that the government had effectively set McGill up.
- On appeal the Seventh Circuit evaluated whether a rational jury could find entrapment based on evidence of McGill’s lack of predisposition and Elliott’s exploitation of their friendship; the court reversed the distribution conviction and vacated the possession sentence for reconsideration on remand.
Issues
| Issue | Government's Argument | McGill's Argument | Held |
|---|---|---|---|
| Whether entrapment instruction was warranted on distribution charge | McGill was predisposed to distribute: prior possession, attendance at events, and his "offer" to share files show predisposition | McGill lacked predisposition to distribute and was induced by Elliott, who exploited McGill’s social isolation and friendship | Reversed distribution conviction; entitlement to jury instruction on entrapment because reasonable jurors could find lack of predisposition and improper inducement |
| Effect on sentencing after reversal of distribution conviction | Guideline enhancements and statutory minimums tied to distribution supported original sentence | Distribution conviction increased guideline range and statutory exposure; reversal requires resentencing on possession in light of disposition | Distribution count remanded for further proceedings; possession sentence vacated and must be reconsidered on remand |
Key Cases Cited
- United States v. Russell, 411 U.S. 423 (establishes entrapment doctrine distinguishing government prevention from inducement)
- Sherman v. United States, 356 U.S. 369 (entrapment occurs when government persuades an otherwise unwilling person to commit crime)
- Sorrells v. United States, 287 U.S. 435 (friendship-based government inducement can support entrapment defense)
- Mathews v. United States, 485 U.S. 58 (entrapment is typically a jury question when evidence could support defendant)
- United States v. Pillado, 656 F.3d 754 (7th Cir.) (standards for entrapment instruction and review)