*1 In all oth- imposing before sentence. quy not and he did offense ted this Indiana respects, er we affirm. prove necessary the facts admit He doubt. beyond reasonable charge findings court’s
contended most, under, a preponderance
made He characterizes standard. standard as preponderance
the use of the
Booker,
v.
States
of United
violation
U.S. (2005). not did ex But Groves’ sentence Doe, and Jane Plaintiffs- John DOE maximum, statutory and the dis ceed the Appellants, couid; the Guidelines as not treat trict did preponderance mandatory. The of the use is no appropriate, there was standard SMITH, Shepard, Brady Dianne States to correct. See United error Kathryn Fletcher, al., et Sliman, Cir. 800-01 Defendants-Appellees. Robinson,
2006); States v. United No. 04-3421. 699, 701 Appeals, United States Court III. Seventh Circuit. remand, district court should On Sept. Argued ruling of its fact-findings support enter Decided Nov. should suppress, and on the motion to totality of the circumstances consider determining Foster’s consent whether voluntarily given. If Foster’s consent ruling voluntary, suppression stand, on the the conviction
cannot jeopardy. be in
ammunition count would particular suggest mean to
We do not suppress; the motion to
outcome for stands, is insuffi- only as it there
note fact-finding analysis insufficient
cient possible that It is appellate review. appropriate find- the court makes the
after deny
ings support of its decision
motion, may its withdraw defense counsel ruling; possible it is
objection to the also basis be some non-frivolous
there still the convic-
for further review. We reverse I, possession firearm
tion on Count stated above.
charge, reasons reversal, court
light of that the district any new Groves. At
should resentence the district
sentencing hearing, Rule 32 collo- appropriate
should allow
Protection and Due Process clauses of the Fourteenth Amendment to the United Constitution, States as enforced provisions various trial, Illinois law. Prior the district granted summary judgment to the individually school district and the named defendants the Does’ section 1983 trial, jury claims. At found liability no *4 remaining on the claims. summary affirm judgment
We for the on defendants the Does’ section 1983 against claims the school district and (with exception school officials of Bra- Smith), dy pro- because Titles and IX VI adequate statutory vide recourse for alleged discrimination. We also affirm the district court’s decision to admit John history, Doe’s criminal because it rele- was Bauer, Ellyn (argued), Bullock Nally, J. vant to claim compensatory his for dam- Feinen, Mann, IL, Bullock & Champaign, ages. Plaintiffs-Appellants. However, we conclude the Does enti- are R. Joseph (argued), Timothy Vallort J. tled a trial new for three reasons. The Young, Chilton Yambert Porter Young, & (1) trial court granted erred when it: sum- IL, Chicago, for Defendants-Appellees. mary judgment Smith, Brady favor of because IX Titles VI and do not shield COFFEY, EVANS, Before and alleged child from molester prospect WILLIAMS, Judges. Circuit liability
individual for his constitutional (2) tort, WILLIAMS, Judge. excluded Circuit Smith’s 2001 conviction for soliciting another middle school student This case disturbing allegations involves (3) sex, denied the Does’ motion to of child aby public molestation committed reconsider admitting testimony witness’s school official. John Doe his mother sexually that Smith abused him in the late Jane Doe contend while he en- reasons, 1970’s. For these as discussed rolled at Franklin Middle School in Cham- below, fully more we reverse and remand Illinois, paign, repeatedly he was molested for a new trial on John Doe’s section 1983 Students, Dean school’s Brady claim Brady Smith and the Does’ Smith, and that Champaign Community VI IX Titles claims the school Schools Unit District No. and various district and school officials their official school officials were deliberately indiffer- capacities. ent to the abuse. The Does filed
lawsuit under Title VI of the Rights Civil (42
Act § of 1964 U.S.C. 2000d et seq.), I. BACKGROUND Title IX of the Education Amendments of (20 seq.), Equal 1681 et John Doe first enrolled at Franklin Mid- of sexual grader.1 sixth instance abuse. two ate die School Saturday on a at a local restau- dispute that Doe was breakfast do not parties up rant and thereafter ended at Smith’s conduct child whose classroom troubled home, where watched football. At By Doe’s disruptive at times. sev- point game, Smith, during some Smith turned year, Brady the school’s enth-grade “therapy”.4 said that Doe needed Students, ap- had taken what Dean of meant, “therapy” Doe asked what When benign and constructive peared be pulled boy’s pants, Smith down the held counseling boy, Doe interest often back, his per- Doe’s hands behind In Doe’s grades. about his conduct and During oral sex him. formed the ride however, eighth-grade year, Smith’s seem- home, back Doe’s Smith instructed Doe alleged innocent conduct revealed his ingly “therapy” was their secret and supervising school- ulterior motive. While anyone. directed him not to tell The fol- school, children before Smith would often Monday, lowing ordered Doe to his playground and order out Doe on the seek office he reminded him again where not to him office because he was to Smith’s *5 anyone about the weekend’s tell activities.5 trial, At Doe testified that troublemaker.2 ninety-five percent spent approximately he to Doe persisted Smith’s attention year in the dean’s of- eighth-grade his year throughout eighth-grade Doe’s and fice, rather than class. never Smith high undisputed It into school. helped Doe his homework or studies with gave money bought Doe and often Smith visits; in- these during extended office shoes, games, sports him tennis video and Does, stead, to used according Smith eighth-grade tickets. At the of his end sexually groom to John Doe.3 time year, told he Smith Doe that needed more “therapy” graduate to from middle school.6 instance, February Friday For one And, failing every despite class 1996, office, in- while in the dean’s Smith eighth grade, promoted was to Cen- Doe Doe have with him. vited to breakfast High tral School. invitation, Doe, according to This breakfast Perhaps egregious At the most conduct beginning was the the molestation. trial, 4, on 1996. alleges Doe testified detail about the first Doe occurred October food, money clothing. generally putative See 1. Doe the other victims are John Americans; Woodridge Elem. Sch. Dist. No. 68 Bd. all African Smith is Caucasian. Doe Educ., 910732, 2005 U.S. Dist. specifically that Smith tar- WL Does contend of LEXIS 7023 (sexual (N.D.Ill.2005) underprivileged grooming geted young, Ameri- African food, giving gifts, clothing, boys they particularly were vul- include can because authority likely they making promises well to use to be believed if as as nerable less leniently). reported Smith testified at trial to authorities. more molestation gifts spent $5000 Doe and $4000 he to on for male students. other African American 10, 4, 2004). (May Tr. Trial vol. presented at trial that 4. The Does grooming process 3. Sexual is "the of cultivat they told victims that needed Smith often his ing gradually trust with a victim and intro "therapy,” was a word for oral code ducing reaching the sexual behaviors until "therapy” typically provide Smith would sex. point of intercourse.” United.States John boys were at the dean’s to while son, 1997). Cir. home. allege grooming that Smith's sexual Does lessening punish Doe included school John 2004). (May 5. Trial Tr. vol 825-28 favors, exchange promising ment in for sexual judicial system exchange manipulate 10, 2004). favors, (May enticing gifts Trial Tr. vol for sexual Doe with in an placed Doe had been altercation with his Smith administrative leave gym juvenile police teacher and landed himself in while local and the Illinois Department of Family Children and court Ser- court assault. Smith came to investigated allegations. vices Doe’s and, Doe, Two according hearing: before the later, weeks in early November de- went court- We to a little section spite ongoing police agency and state going go house and said I he investigation, Smith returned work juvenile but talk DOC he could to some- Indeed, the dean. the school district’s su- body, Attorney or somebody the State’s perintendent called Smith and welcomed help agree I me but had to for thera- any him back imposing without restrictions py keep him to me out of prison.7 on his contact with In students.11 contrast to the open arms the school district alleg- hearing, At the probation Doe received edly upon return, extended to his Smith and, urging at the of Smith and the state’s Doe did return report- to school after attorney, juvenile him released ing the abuse. No was made to custody, into un- express inform truancy; his mother of his no sup- derstanding that Smith would take him to offered; port services were and his school register for school.8 Doe left the court- records irretrievably lost. Janu- but, house with regis- rather than ary 1997, the state decided not to charge him tering for school as the court instruct- sexually abusing Smith with Doe. ed, Doe Smith took to his home where he Ultimately, both Smith and Doe were again performed oral sex on him.9 *6 convicted of Smith felonies. was convicted (then gave Smith often years Doe old in 2001 soliciting for another middle school license) and without a keys driver’s the to 2001, student for sex act. In an African his truck in exchange for “therapy”. The American middle reported school student relationship abusive ended October office, while in the dean’s Smith told when Doe Possibly wrecked Smith’s SUV. boy the him give he would if boy the $10 eyebrows to fend off raised and suspicions agreed to “show himself’ Smith’s office. impropriety, Smith reported truck Another middle report- school student also stolen, again and Doe found himself to police ed propositioned Smith had juvenile there, detention. While Doe told him for sex. Police subsequently obtained mother his of the abuse and sent a hand- wiretapped conversation corroborating juvenile letter written to the judge court boys’ initially stories. Smith was in- stating that finally ready explain he was assault, aggravated dicted for sexu- why he go misconduct, did not to school.10 al and indecent solicitation. 10, 4, 2004). (May Doe], 7. Trial Tr. vol you specifically “[John Court: are required go Brady school with Mr. today Smith to enroll.” hearing, following exchange At took 61, 13, (Oct. 4, Hr'g Def. Trial Ex. Tr. place attorney, juve- between the state's 1996). judge, nile court and Doe: 4, 10, 2004). (May 9. Trial vol Tr. 836-37 attorney: you State's "I also tell that Mr. Smith has volunteered to take the minor to 24, 10. PL’s Ex. Trial John Doe's Handwritten school and today facilitate his enrollment Difanis, Letter to the Honorable J. Thomas see accomplished and that it’s ... 1 think Court, Judge, Illinois Circuit Sixth Judicial something agreed that’s that was would be (Oct. 1996). Circuit good ... ... since he had been the minor’s year.” dean last 10, 2004). (May 11. Trial Tr. vol 640-41 delayed ness. After trial elev- However, dropped and charges were those months, the Does asked the court to for the remain- en probation received Smith Tyr- charge. ruling excluding Doe amassed reconsider its earlier has solicitation ing over the court de- felony drug testimony; convictions one B’s district three nied the motion to reconsider. years. men, Doe his mother sued and including John Four African American Community Doe, Schools Unit Champaign at trial that Smith sex- John testified Smith, and the fol- Brady ually No. groomed
District and abused them as stu- in their individual officials lowing school dents at Franklin Middle The de- School. (the Michael Cain capacities: official actions fendants countered benevolent, superintendent), only district’s assistant school dean wanted (the Frank- Kathryn principal youths. Fletcher After a ten- help the troubled (the School), trial, Donald Hansen day liability lin Middle found jury no on School), High appeal at Central Does’ This principal claims. followed. (the High at Central Shepard Dianne dean
School).12 sought relief under The Does II. ANALYSIS IX, well VI and Titles argue they The Does entitled to a are law. as state trial the district court new because erred granted summary court The district (A) granted summary judgment on when it the Does’ judgment defendants (B) claims, their section 1983 excluded evi- claims, allowing their Titles section 1983 soliciting dence of Smith’s conviction dis- and IX claims school VI (C) act, minor for a sex admitted evidence pendent state law claims trict felony drug of John Doe’s three convic- district to stand. Before and the (D) tions, B’s Tyrone excluded testi- trial, ruled on several district mony him in the that Smith molested are in limine. Two relevant motions arguments 1970s. the Does’ We address first, court denied appeal: the district in turn.13 *7 Doe’s the Does’ motion to exclude John convictions; contrast, drug felony three Preemption A. the Does’ Section granted the defendants’ district court the 1983 Claims 2001 conviction motion exclude his sued the John Doe and mother of a child. Ten indecent solicitation District, Brady Smith Champaign School scheduled trial days originally before the officials, individually named school and the date, hearing the Does’ case in after about IX, and as of Titles VI claiming violations media, victim, putative Tyrone the another Pro- Equal Protection and Due well as the B, reported that he police went the of the Fourteenth Amend- cess clauses by was molested Smith as adoles- too ment, § 42 by as enforced U.S.C. late 1970’s. district cent the brought under As to claims emergency the motion to ad- their denied Does’ IX, Titles the Does contend Tyrone testimony VI mit B’s because unlawful race and sex- potential wit- John Doe suffered failed to disclose him as Perry Township, 128 Champaign Metropolitan Sch. Dist. against claims 12. The Does’ 1997). 1014, (7th F.3d 1021 n. 3 Cir. capacities are school officials their official essentially and treated as suits redundant Smith, Brady allegedly mo- the dean who school itself. See Smith v. district Doe, responded appeal. has not lested 338 677, 684-85, sity Chicago, 441 interfered with U.S. 99
based discrimination
federally
(1979).
1946,
his
funded education because S.Ct.
L.Ed.2d
60
560
African
targeted
Ameri-
specifically
also
Does
assert
constitutional
grooming
can
and abuse.
boys
claims
the school district and
provides
pertinent part
IX
Title
pursuant
42
school officials
U.S.C.
shall,
sex,
...
basis of
person
“no
§ 1983. To state a claim under section
in,
participation
from
de-
be excluded
be
1983, plaintiff
allege
must
two elements:
of,
subjected
benefits
or be
nied the
(1)
alleged
by
conduct was committed
any
pro-
education
discrimination
acting
law;
person
under color of state
activity receiving Federal
gram or
finan-
(2)
activity deprived person
rights,
1681(a).14
§
20
cial assistance.”
U.S.C.
privileges,
by
or immunities secured
damages
claim for
is based on
When a
Constitution
laws of the United States.
behavior of
teacher or
some other
Milewski,
(7th
564,
Case v.
327 F.3d
566
recipient,
of the Title IX
employee
Cir.2003);
Toledo,
635,
Gomez
446 U.S.
plaintiff
prove
must
that “an official of the
1920,
(1980)
100
64
S.Ct.
L.Ed.2d 572
educational
who at
[defendant
institution]
1983).
(citing
Here,
§
42 U.S.C.
the Does
authority
a minimum has
institute cor-
generally
contend that
school district
of,
measures ... has actual
rective
notice
eye
turned a blind
to Smith’s abuse of
to,
deliberately
and is
indifferent
boys and,
such,
African American
as
Delgado
misconduct.”
v. Stegall,
teacher’s
school
equal
district denied John Doe
pro
Cir.2004)
(7th
(quoting
tection
process
and substantive due
as the
Dist.,
Lago
Indep.
Vista
Gebser v.
School
requires.15
Fourteenth Amendment
274, 277,
118 S.Ct.
U.S.
(1998)).
IX
Title
L.Ed.2d
was mod-
The district court granted summary
Rights
eled
Title
of the Civil
after
VI
Act
judgment in favor of the defendants on the
(under
of 1964
Does assert
dis-
claims,
Does’ section 1983
reasoning that
well).
claims
crimination
The statutes
those
claims
barred
Titles VI and
except
prohibits
are
Title
parallel
VI
IX.
legal
We review
district court’s
discrimination,
discrimination,
race
not sex
novo,
conclusions de
see Wyninger v. New
to all
applies
programs receiving fed-
Gear, Inc.,
Venture
funds,
only
eral
programs.
education
Cir.2004), and affirm
grant
of sum-
Gebser,
seq.;
See 42
2000d
et
mary judgment in favor of the school dis-
U.S. at
tant anti-discrimination “to boy would register take for school. avoid the use of federal resources to sup- Indeed, attorney the state’s told the court port discriminatory practices” pro- and “to releasing custody Doe to Smith’s protection vide individual citizens effective good idea because Smith “had been the Cannon, practices.” those year.”16 minor’s last course, dean Of Doe U.S. at “But quite S.Ct. 1946. it is alleges that he was never taken register this, otherwise in case such as in which for day, school that but was instead taken is a malefactor teacher whose malefac- home for Smith’s further abuse. policy is not a or a As- practice suming Doe’s version of school could be held liable under Title the facts is true (as IX.” Delgado, 367 at 674. do at summary-judgment Title IX must stage), does not from per- opportunity shield the malefactor to molest him liability sonal day his federal constitutional made possible because Smith legislators tort. “The enacted Title authority who used his persuade the dean to IX by would be startled to juvenile discover court judge to release Doe to doing so had federal killed all reme- custody. his dies for sex discrimination teachers of
which the knowledge.” school lacked actual generally, More the Does contend Id. at 674-75. supervising while students on the *10 (Oct. 1996). Hr'g Def. Ex. Tr. Trial probation.” The single Doe his incarcerations often Smith would playground, to Smith’s report him to Does that introduction of the felo- instruct contend out and he would isolate office, allegedly ny inflammatory where was convictions Viewing the facts sexually groom Doe. improper therefore the Federal under Does, jury favorable to the light in the disagree. Rules of Evidence. We reasonably conclude that Smith was could color law when he under of state
acting evi review the district court’s We allegedly sexu- Doe from class withheld discretion, dentiary rulings for abuse of abuse. See ally subsequent him for groom Wilson, States v. 437 F.3d United Waymire, Through Norris ByWest & Cir.2006), was conclude that the court (7th Cir.1997) (assuming 114 F.3d mo denying not unreasonable the Does’ officer act- police that a without discussion evidence of Doe’s exclude John law when he mo- color of state ed under First, history. contrary to criminal year-old girl while escort- a thirteen lested assertion, felony convictions Does’ curfew). Title after Because ing home her into only evidence because were admitted the Does’ section preempt IX does sought compensatory damages. Doe and because claims properly “agree[d] district fact as to wheth- a triable issue of there is history Doe’s criminal Plaintiffs that John color of law acting er Smith of Defendant’s is not relevant to issue Doe, judgment allegedly he abused when liability rights civil claims this for the improper. law There- as matter of case.”17 summary fore, grant of we reverse the favor. The Does’ sec- judgment in Smith’s if further contend even Does him must be rein- claims tion 1983 were relevant to the issues the convictions stated. damages, inflammato- racially jury. ry only further confused the Evidentiary Rulings B. argument at oral whether When asked regarding limiting sought instruction was Admissibility Doe’s Felo- of John convictions, his indicated Doe’s counsel ny Drug Convictions have request that no was made. We such his entitle In an effort to establish most limiting instruction is that a stated damages, Doe’s ex compensatory ment eliminating possi- or reducing effective Doe at trial suffered pert testified from the introduction prejudice ble unfair stress disorder post-traumatic from acts or convictions. prior of evidence of bad (PTSD) abuse. The as a result of Smith’s Puckett, States See United that, even defendants-appellees countered case, because PTSD, if from Doe’s three he suffered admitted Doe’s convictions were John in prison were felony convictions and stint compensatory damages rebut his claim his caused PTSD. life stressors that seek the Does failed to and because evidence of court allowed The district any preju- limiting to minimize instruction the limited to come Doe’s convictions may have dice confusion jury that “John informing purpose dis- caused, cannot conclude felonies, of three has been convicted Doe it ad- unreasonably acted when for, trict court what the sen what the felonies are mitted the evidence. felony length and the for each tence was 2003). (June Denying Limine Pl.'s Mot. in 17. Or.
342 Admissibility Brady
2. of Smith’s Does Smith’s 2001 conviction should have been admitted at trial.
2001 Indecent So- Conviction of a licitation Child 415, Congress together enacted Rule 414, part with Rules 413 and as of the 2001, years five after Doe was Crime and Law Violent Control Enforce- abused, an African American allegedly 1994, 103-322, Act of ment Pub.L. No. reported male Franklin to au student at 320935, 1796, § 108 Stat. 2135-38. Partic- expose thorities that asked him to eases, ularly in sex offense rules were himself the two were in while the dean’s designed supercede general exclu- During subsequent investiga office.18 404(b). sionary principle forth in set Rule tion, boy police another wore a wire and Cunningham, States v. United F.3d 103 recorded in which Smith conversations 553, Thus, Rule under exchange asked him for oral sex in 415, party alleged in civil cases where is money. subsequently Smith was convicted to have committed sexual assault or child of of a indecent solicitation child. molestation, of that party’s “evidence com- trial, granted At the district court mission another offense or offenses motion limine to evi- exclude sexual assault or child molestation ad- is dence related to 2001 conviction. The 415(a). op- Fed.R.Evid. missible.” argue appeal Does on district erational definition of “sexual is assault” court erred because the conviction was set forth Rule of Federal Evidence under Federal of Evi- admissible Rule 413(d) any and is as pro- defined conduct reviewing dence 415. In the trial court’s chapter scribed 109A or evidentiary decision for abuse of discre- state relevant law.20 Smith was convicted Seals, tion, see United States v. violating ILCS the Illinois 5/11-6 Cir.2005), Code, agree proscribes soliciting a minor 10, 2004). (3) contact, consent, (May 18. Trial Tr. vol without between the genitals any or anus of the defendant and 415(a) provides Federal Rule Evidence part person's body; of another as follows: (4) deriving pleasure gratifica- or sexual damages In a civil case in which a claim for death, bodily from the infliction predicated party's or other relief injury, pain physical per- or on another alleged constituting commission of conduct son; or an offense assault of sexual or child moles- (5) conspiracy engage in or tation, party's of that commission (l)-(4). paragraphs conduct described in of another or offense offenses of sexual as- cross-reference, Chapter By 109A of title 18 sault or child molestation is admissible and both forbids "sexual acts” and con- "sexual provided be considered as Rule 413 minor, attempts tact” with well as to do and Rule 414 of these rules. things. either of these See 18 U.S.C. 413(d) Precisely, provides: 2241(c), 2243(a), 2244(a)(1), (a)(3). §§ A purposes For of this rule and Rule anal, vaginal, "sexual act” consists of or oral “offense of sexual assault" means crime sex, touching genitalia as well as of anoth- (as law under Federal or the law State of a purposes, including gra- er for various defined in section 513 of title United 2246(2). § tification. See 18 U.S.C. "Sexual Code) States that involved— touching contact” consists of the intentional (1) any proscribed by chapter conduct (directly clothing) through genitalia, of the Code; 109Aof title United States anus, breast, groin, thigh, inner or buttocks of contact, (2) consent, without between purposes, including another for various sexu- any body part defendant’s or an gratification. 2246(3). al See 18 U.S.C. object genitals and the or anus of another person;
343 whether, an inherent risk exploita- [T]here under is of question The for sex.21 tion, coercion, if 413(d)(5), solicitation not when an adult soli- attempt engage to an in the a engage activity. cits minor to sexual amounted The district court group conduct.22 Minors a have a less well- proscribed in the negative, this question developed answered of than judgment sense minor for a concluding soliciting adults, that a sex greater at peril and thus are of attempt an to com- act does constitute making choices that are not in their own re- offense of sexual assault. We mit an best interests. conclusions of law the district court’s
view
at 765.
Id.
436
Hepp,
F.3d
Dunlap
de novo.
Similarly, in Hernandez-Alvarez v. Gon
(7th
zales,
Cir.2005),
soliciting a minor
argue
Does
The
chat-room
petitioner entered an Internet
necessarily constitutes
substan-
for sex
and conversed with an adult undercover
sexual
committing
toward
assault.
step
tial
investigator, whom he
to be a
believed
in our
law
support
is forceful
case
There
year-old girl.
petitioner
fifteen
made
instance, in
Does’
For
argument.
for the
sex,
“minor” for
plans meet the
but was
Gonzales, 412 F.3d
Gattem
arrested en route to the address the inves
Cir.2005), the
was convicted of
petitioner
case,
In
tigator
we stated
supplied.
Illinois law for
indecent solicitation under
“solicitation, partially completed
of
if she
offering
cigarettes
a minor
would
attempt
fense similar to an
constitutes sex
him. We affirmed
in oral sex with
engage
U.S.C.]
ual abuse of a minor under
[8
Appeals’s
Immigration
Board of
deci-
101(a)(43)(A).”
(internal
Id. at 766
cita
petitioner’s
solicitation con-
sion that
omitted).
(not merely attempt
viction amounted to
but)
and Her
act of
abuse because the
It is true
Gattem
sexual
immigration
cases
used
or inducement
nandez-Alvarez
petitioner
persuasion
involving
of a
offense
minor
the definition
sexual
in an effort to convince the
to en-
Immigration and Na
sexually
purposes
conduct.
of the
gage
explicit
Id.
tionality Act,
requires
us
whereas
case
holding
765. Our
in Gattem
based
interpret
a sexual of-
what constitutes
upon
following principle:
5/11-6(a)
purposes
introducing
of
provides:
22. For
of
720 ILCS
under Rule
a "child” is
child molestation
years
up-
person
age
of
of 17
A
age
under the
of 14. Fed.
of
so-
defined as a minor
wards commits the offense
indecent
person,
414(d).
aof
child if the
with the
Illinois
licitation
R.Evid.
statute
aggravated
that the
crimi-
intent
offense
was convicted indicates "child”
which Smith
assault,
assault,
sexual
sexual
criminal
nal
years
age.
It is
person
means a
under 17
child,
predatory
sexual assault of a
criminal
in this case whether
unclear from the record
aggravated
sexual abuse be
criminal
or
boy
was under the
solicited
committed, knowingly
solicits
child or
age
Plausibly,
the minor Smith solic
to be
whom he
she believes
a child
one
or
age
age
of 14 but under the
ited
over the
penetration
perform
an act of sexual
record,
ambiguity
light
in the
of 17.
of this
as defined in Section 12-12
sexual conduct
admissibility
of Smith’s
discuss
Code.
of this
parallel provision
415’s
under Rule
conviction
command, authorize,
"Solicit” means to
assault,
pertaining to offenses
incite,
urge,
advise
request, or
another
age
does not include
limitation on
by any
including,
perform an act
means
but
victim.
to,
phone,
person,
not limited
over
writing, by
computer, or
advertisement
any kind.
purposes
fense for
the Federal Rules of
The Federal
have generally
courts
re-
jected rigid
approach
formalistic
Beyond
immigration
Evidence.
con-
to the
text,
offense. Instead
common-
soliciting a minor for sex
whether
*13
ly recognize
by
that the determination
attempt
to commit sexual
constitutes an
particular
their
conduct
(or
[of what] consti-
that mat-
assault
child molestation for
...
tutes
is
attempt]
dependent
[an
so
ter)
impression
is a
of first
question
the particular
on
facts of each case
analysis
begin
this Court.
our
We
necessity,
be
there can
no litmus test
attempt:
the definition of
“the crime of
guide
reviewing
courts. Follow-
specific
intent
requires
analysis,
ing
which we
consider
and a
step
commit a crime
substantial
reasoned approach,
better
several
towards
commission of that crime.”
feder-
al courts have
concluded
a solicita-
Johnson,
689,
v.
F.3d
United States
376
accompanied
requisite intent
(7th Cir.2004). “A
step
693
substantial
is
may constitute
attempt.
than
something
preparation,
more
mere
Rovetuso,
(7th Cir.1985)
Rovetuso,
volving of sexual assault. allegations recognize that there is an inherent risk fact that he de- court reasoned “the exploitation an said when adult solicits sex [the when victim] sisted and withdrew interested, who, a minor due or her she not indicates that from to his un merely der-developed judgment Mr. Blue Bird most solicited sense sus coercion, of sexual contact. to ceptibility capacity some kind Without lacks the step, Therefore, we hold that some more substantial to consent. hold that a attempt- cannot constitute this conduct attempts sexually defendant to assault a attempt engage or an to ed sexual act is, step minor —that takes substantial (internal quota- Id. sexual contact.” at 993 committing the crime—when he toward omitted). tion marks complacency the in a solicits child’s sex case, In this act. Smith’s solicitous con Oddly, liberally more de courts have when called a duct occurred both he mid step to fined what constitutes a substantial to office and of dle school student his offense child in so- commit a sex himself, boy expose the to fered $10 cyber-molester called cases. In United telephone during subsequent recorded Bailey, F.3d 637 Cir. States Although it is unclear conversations. 2000), upheld Circuit a defen the Sixth precisely the what solicitous from record attempting engage for conviction to dant’s ultimately the conduct formed basis minor the in sex with a where defendant instance, his guilty plea, either Smith’s telephone underage number to emailed his beyond thinking about or conduct went girls to convince them to meet and tried to minor. planning have sex with a Un him sex. court reasoned that calling minor to questionably, step strongly corroborated substantial telling to expose office and him dean’s mi persuade the defendant’s intent to money himself for evinces Smith’s intent simply nor victims was solicitous step substantial toward sexual ass his Id. putative emails he victims. sent wiretapped be Likewise, ault.23 conversations cyber-molest at 640. another Murrell, satisfy minor case, Smith and a also our tween er States v. United (11th Cir.2004), inquiry. coded attempt Smith’s refer Eleventh Circuit “therapy” to sex corroborate his ences as held that a defendant’s electronic solicita still, Smith made sub of a who defen intent. Further government agent, minor, the of- step completing to be toward dant believed constituted stantial necessary distinguishes cyber-molest- agree that defendant’s travel is 23. The dissent cases, cases, reasoning step. bright- Such a those to establish a substantial er engaged inapplicable in cases such travel to line rule would be defendants in substantial victims, operandi putative as here where the defendant’s modus meet their whereas agree to have minor victims come him did not. We that a defendant's travel his inviting step; dis- to his home or office sex. a substantial but we them evince to, identified as the Simply fense when he his home indifferent Smith’s misconduct. stated, sex place where the would occur and if anything wrong, Smith did not do money would be the form of stated necessarily then the school district cannot payment. analogous conduct is liable for be deliberate indifference. cyber-mo- conduct in the defendants’ highly probative Smith’s conviction was Bailey lester cases like and Murrell. position provided whether Smith’s as dean appreciable There is no difference be- with an opportunity him cultivate tween child sexual assault us- attempted and, also, trust boys’ the conviction tends means, case, ing telephonic as in the defendants-appellees’ discredit theo- means, cyber-molest- electronic ry merely that Smith was a benevolent er cases. therefore conclude that We educator. We therefore conclude that the of a Smith’s solicitation child in 2001 con- prejudicial effect of Smith’s conviction does a sexual stituted an commit outweigh probative value to offense a minor. case that Does’ he was convicted in soliciting sex from another Franklin mid- question The final in our Rule 415 dle schooler.24 *15 inquiry probative the is whether value of admitting outweighs Smith’s conviction Admissibility Tyrone 3. of B’s testi- prejudicial effect. We believe that it does. mony Molinari, As Representative Susan learning After of the in Does’ case 413-415, principal sponsor for House Rules media, B, Tyrone putative another statements, in her floor “In commented victim, to police Smith went and re history child cases ... a molestation of ported that Smith him in late abused similar to be exceptionally pro acts tends Tyrone 1970’s. B described himself as an disposi bative because it shows an unusual family. isolated child from single-parent a tion of the defendant —a sexual or sadosex (who According Tyrone to B was 10 or ual simply interest in children —that does time), (who years old at the Smith was ordinary people.” Cong. exist in Rec. old) years then or 20 Tyrone cultivated 1994). (Aug. H8991-92 The school dis B’s trust and friendship by him giving that, trict notwithstanding contends tennis shoes appealing to his love admissibility against of the conviction sports. Tyrone Eventually, B started Smith, his conviction does not to tend es spending nights at Smith’s home and in any tablish of the Does’ claims it. bed; Tyrone Smith’s more than once B disagree. pedophilic We Smith’s conduct sex, would awake to performing oral consequence is fact of that is intertwined attempting perform sex, to anal or mastur with the potential school district’s civil lia bating. bility. As we noted our discussion their section claims the school The Does of Tyrone learned B’s state- district, in liability, order to establish to police ment on days June ten prove Does must Champaign some trial originally before set begin to school official at a minimum had au 16. period who June discovery Because the thority closed, to institute corrective measures had filed emergency Does of, had actual deliberately notice and was motion to admit Tyrone B’s to statement opinion This ing was circulated advance question en banc on the of the admissibili- publication judges regu- to all this court in ty of Smith's conviction for indecent solicita- pursuant lar active service to Seventh Circuit tion of child. 40(e). majority Rule A did not favor rehear- 415(b) Federal of Evidence states: Rule Evidence police under Federal continued who sponte party trial court sua “A intends offer evidence The 2003; then the court to November trial under this rule shall disclose the evidence to ad- emergency the Does’ motion denied party against whom it of- to the will be November, testimony. B’s Tyrone mit days ... at fered least fifteen before the delayed, time at again the trial date of trial or such later scheduled 28, the November request. On good time as court allow for its asked the court reconsider Does Notwithstanding our cause.” deferential Tyrone B’s testi- ruling excluding earlier review, a strong argu- standard of there is court, 16, the district mony. On December emergen- on the ruling ment Does’ denied motion explanation, without motion, cy the court should allowed have ultimately occurred The trial reconsider. good B’s The Tyrone testimony for cause. Does nearly year after the May of the motion emergency denial to admit Tyrone introduce B’s initially sought appellate not the sole of the basis Does’ testimony. however; after argument, the trial was months, delayed for five the Does filed conclude trial We Tyr- motion reconsider exclusion Tyrone it B’s testi erred when excluded admissibility testimony. trial. of elev B’s The trial court denied mony from one testimony presents com enth-hour witness the motion reconsider and it is parties. the one peting interests of the On ruling that we find unreasonable. hand, discovery potential witnesses Tyrone Does B was contended timely important princi is an
in a fashion *16 his story a crucial witness because bore “The central aim of such ple litigation. of to other vic- striking similarities Smith’s by trial surprise is to minimize rules but, Doe, unlike who was a convicted tims in ad of witnesses requiring disclosure felon, B Tyrone more credible because was F.3d Tyson Trigg, vance of trial.” steady job police a and went to the he held (7th Cir.1995). party against A Moreover, Tyrone on his own initiative. offered an eleventh-hour witness is whom testimony, dating pedophilia B’s undoubtedly disadvantaged de to some is 1970’s, an provided far as the late back On the other gree by the late disclosure. temporal case. important context hand, own, through party fault of its a no of evidentiary the value agree We only days of a may learn critical witness testimony apparent, B’s is Tyrone prior competing trial. the inter to Given filing the good cause for Does’ there was judge given at stake and the trial ests noted, As delay. the district weigh inter position in the best such own, Plaintiffs no fault of their “through unfold, they we have declined ests as of this witness until did not become aware the regarding rule fashion hard-and-fast rea- 2003.”25 The court nonetheless June admissibility newly witness discovered testimony that the should be exclud- soned Instead, testimony. Id. we a trial review its delay the was violation of ed because newly decision to exclude discover court’s the discovery order. To call Does’ discov- testimony for an abuse discretion ed disclo- ery Tyrone B an eleventh-hour only ruling if the court’s will reverse however, misleading, giv- is somewhat sure unreasonable. Ins. Co. Cincinnati Inc., delay when Service, eleven-month between Elec. 131 en the Flanders Motor trial B was when Tyrone disclosed F.3d 16, 2003). Testimony Denying (September Mot. to Admit 25. Or. Pl.'s place. Any prejudice nately, jury given only general eventually took by form, defendants caused the late disclo- us leaving verdict without the benefit mitigated been afford- sure could have interrogatories of its answers to about the opportunity to de- ing the defendants Two case. scenarios that would have Tyrone during B the eleven-month pose made the record clearer for our review Therefore, we conclude that delay. (1) against are: Doe’s section claim of the Does’ motion district court’s denial summary have judg- Smith would survived Tyrone’s exclusion of testi- reconsider ment, requiring jury thus to determine court’s mony was an abuse discre- Doe; implicitly whether Smith molested tion. (2) required verdict form would have jury explicitly determine whether sure, jury’s be verdict would
To the sexual abuse occurred. Neither of evidentiary if stand the court’s errors were Sutton, here, States v. these scenarios is what have harmless. United Cir.2003). element(s) “An do not error thus we know which if only be harmful it had Titles IX will found their VI and claims the Does injurious effect or influ- prove by preponderance substantial failed to (internal Id. jury’s on the verdict.” ence In light evidence. of this ambiguity omitted). cannot quotation marks We con- record, say we cannot the district court’s trial clude this record court’s errors were harmless. error,
evidentiary rulings were harmless argument The Does’ however. III. CONCLUSION new trial implies are entitled to a that the district court’s exclusion of Smith’s 2001 grant summary judg- We affirm testimony Tyrone preju- conviction and B’s ment to school officials as to the Does’ ability their to establish their diced Titles against section 1983 claims them their words, and IX claims. VI other However, capacities. individual because Does assume their claims the Titles and IX not preempt VI do individual jury school district failed because the did liability alleged the malefactor *17 Doe, not believe Smith molested misconduct, have committed the we RE- successfully have carried their would bur- grant VERSE the district court’s of sum- of proof den had the excluded evidence mary judgment in Brady favor of Smith on However, come at trial. this assump- claim, John Doe’s section 1983 and that crystal tion is not clear from the record. claim trial. is reinstated for necessary are There other elements to es- prejudicial We also find error in two of (i.e., liability tablish the district’s whether the evidentiary rulings. district court’s adversely Smith’s molestation affected of the evidentiary paints whole record Doe; of, whether the district knew but was a compelling picture over the course abuse; deliberately indifferent to the twenty years, of used his result; Smith various damaged whether Doe was as a positions authority groom of and abuse and whether the district proximately sexually. By excluding Tyrone his victims damages). Plausibly, the caused their testimony may B’s that he was claims have failed on of molested the one those felony example, jury For the late 1970’s Smith’s 2001 convic- elements. child, not indecent have believed the district was for solicitation of a the aware Doe, felon, jury unreasonably fragmented or that a convicted abuse received damages proximately did not suffer caused tale of this fragmentation abuse. Absent evidence, the district’s indifference. Unfortu- a there is substantial like- cooperation of the trial would With the of one of that the outcome lihood 5/108A-1. boys, police recorded telephone We therefore been different. have Re- boy’s for a trial conversation that corroborated the Remand the case new verse story. subsequently charged and Title IX claims Smith was on Does’ Title VI (1) aggravated and the school with three crimes: sexual against the school district (2) (3) assault; misconduct; capacities. in their official officials indecent solicitation of a Those minor. COFFEY, Judge. Circuit dropped of a charges part were later plea agreement agreed plead Smith judgment remanding Concurring guilty to one count of indecent solicitation dissenting trial and with the case for new over telephone, of a minor violation Opinion, Majority’s Section respect to 5/11-6(a). of 720 ILCS “Admissibility Brady I.B.2. entitled Solic- Smith’s 2001 Conviction Indecent 31, 2001, July alleged On one of Smith’s my view, In itation of Minor.” (identified Doe”) victims as “John and his indecent solicitation 2002 conviction for (identified Doe”) mother as “Jane filed this does consti- telephone over the minor monetary seeking civil suit to recover dam an “offense of sexual assault” tute in the ages United States District Court 413(d) of of Evi- the Federal Rules the Central District of Illinois. The Thus, magistrate I agree dence. Does claimed inter alia Smith and the evidence judge’s1 conclusion Champaign School District Title violated not ad- Smith’s solicitation conviction was Act of IX Rights of the Civil Title VI in Smith’s civiltrial. missible of the federal Education Act Amendments 1972, and and Due Equal Protection two African-American students Process clauses of the Fifth and Four Franklin School in Cham- Middle teenth Amendments to United States Illinois de- police the local paign, informed trial, sought At Does Smith, Constitution. Brady the school’s partment Illinois introduce evidence Smith’s 2001 Students, propositioned had them Dean of soliciting conviction for a minor for (each state separate occa- individually one filed a motion in limine sions) sex. Smith record for sex. The reflects any testimony con exclude from evidence boys authorities that Smith one of told conviction, argu cerning his state Illinois if he “show had offered him would $10 any concerning the 2001 ing that boy claimed that himself.” other conviction inadmissible evidence in one had asked him for instance 2under assault” (undisclosed), previous “offense of sexual stat- allegedly sexual favors *18 Fed. Federal Rules of Evidence. See boy him a be- ing that the “owed favor” 413(d), magistrate The R.Evid. 415. helped pass eighth grade. him cause he information, agreed granted the defendant- police judge3 this ob- Based on motion, finding that Smith’s authorizing appellee wiretap tained a warrant Illinois recording previous conviction of a device Smith’s installation 5/11-6(a) consti- did “not See 725 ILCS ILCS telephone. Smith’s home Statute overly signed prejudicial un- parties was irrelevant and 1. to the case a waiver All of 636(c) Mag- 404(b) allowing § pursuant to 28 U.S.C. of the Rules der Rules 403 and Federal Judge "any and all to conduct istrate Bernthal of Evidence. proceedings in case." [the] 3.Evidentiary rulings were as- case defendants-appellees also claimed The Magistrate Judge signed G. Bernthal. David convic- of 2001 Illinois state Smith’s assault, of assault tute an offense sexual as defined vated criminal sexual criminal sex (d) majority assault, would predatory 413[ ].”4 Rule ual criminal sexual as child, magistrate judge’s of a aggravated have us reverse sault or criminal 5/11-6(a). goes on conclude that sexual abuse.” 720 ruling and ILCS majority indecent prior attempts conviction for solicitation of shoehorn Smith’s telephone a minor over the does constitute 2001 conviction for indecent of solicitation attempted an of sexual assault” a minor into Federal “offense Evidence 413(d)’s 413(d) under Rules 415 and and thus ad definition of sexual assault disagree. holding at trial. I “Smith’s solicitation of a missible child ... telephone]
[over
constituted an
attempt to
commit
sexual offense
I. DISCUSSION
minor,”
and thus was admissible. Ma
prior
In order
criminal conviction
jority
However,
Opinion at 346.
because
in a civil trial
be admissible
in federal
per
solicitation
se cannot
an at
constitute
person
“conduct consti-
ie.,
tempt,
without a
act” in
“substantial
tuting an offense of
assault or child
sexual
crime,
furtherance of
intended
molestation,”
required
it
previ-
that the
since there is no evidence in the record to
attempt
comport
ous
the definition of
suggest
anything
that Smith did
except
assault,”
an
“offense
sexual
as
set
converse
I
telephone,
disagree.
over the
Federal Rules of Evidence. Fed.R.Evid.
pp.
See
351-55.
infra
413(d),
According
to Rule
the “of-
sexual
fense of
assault” is
In support
defined
of the majority’s conclusion
per
solicitation
se
an
constitutes
“at
(1) any conduct proscribed by chapter
tempt”
413(d),
under Rule
it cites two deci
Code;
109A
title
United States
which,
sions of
although they
this court
(2) contact,
consent,
without
between
may be considered
analogous,
somewhat
any
body
part
or an
defendant’s
See,
distinguishable.
are
e.g., Gattem v.
object
genitals
and the
or
anoth-
anus of
Gonzales,
Cir.2005);
412 F.3d
er person;
Gonzales,
Hernandez-Alvarez v.
(3) contact,
consent,
without
between
example,
For
Gat
genitals
or anus
defendant
tem Gonzales was a
of a
review
removal
any part
person’s body;
another
decision
Immigration
under the
and Natu
(Ip)deriving
pleasure
gratifi-
Act,
§
ralization
8 U.S.C.
101 et seq.
death,
cation
bodi-
from
infliction
While we held that the petitioner’s prior
ly injury,
pain
or physical
on another
conviction for solicitation constituted “sex
person; or
abuse,”
ual
that decision was made in an
(5)
or conspiracy
engage
immigration
§
case under 8 U.S.C.
(1)-
in conduct described in paragraphs
3509(a)(8),
§
which defines
a).
“sexual
much
abuse”
expansively
more
contrast,
413(d).
the Illinois statute under
than Rule
Compare 18 U.S.C.
3509(a)(8),
Smith was convicted in
413(d);
2001 makes
with Fed.R.Evid.
see
*19
illegal
Gattem,
the “indecent solicitation
aof
child
at
764-65. As we recog
... with the
Gattem,
intent of [committing] aggra-
in
3509(a)(8),
§
nized
18 U.S.C.
Alternately,
magistrate
judge
prove
concluded
person
used to
“the
character of
in
that the evidence
Smith's
conviction was
conformity
order
show action in
there-
404(b).
precluded by
finding,
Rule
In so
with,”
prohibited
404(b).
by
which is
Rule
judge concluded that such evidence would be
include,
Bird,
Blue
992-95
Cir.
sexual abuse
“broadly defines
2004).
Bird, a
In Blue
witness for
things,
‘inducement’ of
other
among
government
as
as
testified
she was
in
act well
when
engage
a sexual
child to
years
age
approached
fourteen
she
exploitation
of chil-
was
sexual
form[s]
‘other
”5
contrast,
defendant,
Bird,
by the
Blue
and solicited
at
Rule
Id.
761-62.
dren.’
413(d)
and,
Specifically,
girl
for sex.
Id. at 992.
scope
see
is more limited
resting
she
on a
nearly
isn’t
as all-inclusive stated
while
was
p.
supra
3509(a)(8)
couch,
Bird,
hand,
“held her
rubbed
§
its defini-
Blue
broad
and/or
stomach,
just
up
her
her
pushed
assault and
t-shirt
what constitutes sexual
tion of
said,
breasts,
her,
her
kissed
does
include
terms
below
not
conspicuously
”
inducement, enticement,
girl
‘Let’s do it.’
Id. at 992. The
under
or
“persuasion,
3509(a)(8).6 Thus,
stood
actions and
to be
§
these
words
18 U.S.C.
coercion.”
engage
act
manifestation of his intention to
of a sex
over the
while the solicitation
act
conceivably,
respond
a sex
with her. See id. She
alone
under
telephone
by
Bird
not
circumstances,
telling
con-
ed
Blue
that she was
be sufficient to
certain
nothing
he did
more.7 See
attempt
induce or
interested and
persuade,
stitute an
413(d)
Applying
act
18 id.
definition
minor into a sex
entice a
assault,”
3509(a)(8),
§
the “offense [of]
the same cannot be
U.S.C.
413(d)
Eighth
concluded that while Blue
requires proof
Circuit
for Rule
said
Bird
some kind
sexual contact
attempt to commit actual sexual as-
“solicited
of an
...
some more substantial
[J[w]ithout
sault.
...
an
step
this conduct cannot constitute
re
majority
the cases which the
While
attempted
act’ or
‘sexual
an
Gattem,
upon, Hernandez-Alvarez
’
lies
adde
engage
’’(emphasis
in ‘sexual contact.
under the Federal Rules
decided
d).8
Evidence,
ad
Eighth
Circuit has
Eighth
ap-
issue,
I
that the
Circuit’s
precise
of whether solic
believe
dressed this
more
advised and is the
proach
a sex act
to an “at
is well
itation of
amounts
And,
413(d),
apply
should
prudent approach.
has
tempt” pursuant
to Rule
in this
For the
reasoning
case.
that it does not.
United States
similar
held
See
also
the testi-
strictly
Eighth
8.The
Circuit
addressed
to the “act or
5. Solicitation refers
seeking to
requesting or
obtain
mony
instance of
witness
claimed that
of another
who
something,”
"per-
while
refers to
sex,
inducement
again
solicited
Blue Bird had
her for
enticing
person to
suading
take a
another
finding
actions
rise to the
that his
did not
course of action.” Black's
certain
Law
Dictio-
attempted
assault
level of
or actual sexual
an
nary (7th ed.1999).
413(d) without
"substan-
under Rule
a more
Bird,
tial act.”
Eighth decision Bird ters Rule definition Circuit’s Congressional Indeed, much line with an more of sexual “offense assault.” 413(d) underlying 415 and us, intent Rules the case before the evidence in the proposed by majority. than only record establishes that Smith solicited statutes, While there are federal such as telephone. minor for sex act over the 3509(a)(8) § 18 and 18 U.S.C. Even were we to assume that Smith had 2422(b), § which criminalize solicitation the intent to commit crime of sexual se, an additional per without “substantial assault, the record falls far short of estab- act,” not per solicitation se does constitute lishing that there was a act” in “substantial sexual attempted assault alleged furtherance of the planned and/or 413(d). authorities, both Numerous schol intended crime.9 While I do not condone arly judicial, long recognized have (in any of Smith’s fact I actions condemn act of solicitation does not “the mere con them), any the record is barren of attempt stitute an the crime commit suggest would did any- Smith Torcia, Wharton’s 4 solicited.” Charles E. thing salaciously case but talk 672; see Graham v. Peo Criminal Law minor telephone— solicit a over the 179, (1899) 477, ple, Ill. 55 N.E. 181 182 and words alone do not to the rise level of (“[M]ere prove solicitations not an do at being legally sufficient to constitute a O’Neil, State v. 65 tempt”); Conn.App. act” in “substantial furtherance (2001) (“There 209, 782 A.2d 216 has See, crime e.g., of sexual assault. State v. been much debate whether mere solicita (Mo.1989) Molasky, 597, 602 765 S.W.2d attempt .... constitutes an Most (en banc) (in order for solicitation rise to ”) Low, (quoting answer ‘no.’ P. courts will an attempt, level of it must be accom- (1984)); Otto, Criminal Law 289 State v. panied by an attenuated substantial act: (1981). Idaho P.2d act, “An making whether it be a cash law, attempt requires Under criminal an payment, delivering a weapon, [journeying words; thoughts more something than scene, victim, etc., waiting to] crime requires an defendant has accompanied [to have] conversa- a “substantial act” in undertake further tion, evidencing thus the seriousness of crime, ie., ance of the intended sexual purpose, making planned crime previously held, assault. As this court has fruition.”); State, closer to see Ford v. also step something “[a] substantial is more (Ala.Crim.App.1992) So.2d preparation, than less mere but than the (holding that “solicitation must be accom- last necessary act the actual before com panied act, ie., by an overt ‘a direct move- mission of substantive crime.” United ment toward the commission the in- [of Barnes, States v. tended after preparations crime] all the Cir.2000). specific law state the de ”). are made.’ fendant-appellee Smith us before was con point This illustrated the fact that violating punishes victed of solicitation only, though pleaded Illinois statute that this solicitation over Smith phone guilty violated to in Illinois prohibiting essentially Illinois’ statute State court minor, indecent solicitation of a 720 ILCS criminalizes intent alone. See ILCS 6(a), 6(a). it does parame- not fit within the Illinois statute 720 ILCS 5/11— 5/11 — 5/11 — Any undertake, affirmative acts did tion and do constitute substantial acts in it, picking up such phone, dialing furtherance "offense of assault” so forth were acts that occurred in further- 413(d). under Rule for, of, preparation ance and in the solicita- *21 6(a) a to com step a “substantial what constitutes substantial require not that does the intended sex a in act” in furtherance of mit sex offense a child so- record before performed crime and the be cyber-molestor Majority called cases.” any such act. is and devoid of us barren Opinion at 345. The reason that courts be Indeed, requirement a would re such have what a “sub interpreted constitutes dundant, intent in addition to “sub step” liberally stantial more in those cases in of the crime stantial act” furtherance that cybermolestor prosecut is most cases assault, sexual attempted amount to would brought ed federal court are under stat 5/11-6(a) would and thus 720 ILCS be 2422(b), § utes such as 18 U.S.C. See, e.g., 4 Wharton’s superfluous. come specifically incorporate actions that juris (stating § 672 Law Criminal amount to into the statute. See solicitation Illinois, dictions, that have statutes such as Mitchell, 553-54; F.3d at United solicitation, specifically criminalize Murrell, v. States 368 F.3d 1287-88 liability ‘attempt’ “the ... imposition support To its untenable a circumvention would constitute position, majority cites United contrary”). ... intent legislative proposition States Murrell for that mere solicitation proposition The of a minor over the solicitation for sex classified as an is should not be step internet “constituted substantial “cyber- by supported further the so-called Majori commit act a child.” sex As Circuit Eighth molestor” cases. However, contrary ty Opinion at 345. Bird, cyber- pointed supra, out Blue Murrell, reading majority’s what distinguishable are molestor cases from in that actually the Eleventh Circuit held Bird, cases as Smith’s. Blue such See 2422(b) § under 18 case U.S.C. cyber- in the F.3d 993. The at defendants (not 413(d)), Rule the defendant under have, exception, cases without en- molestor step inducing “took a substantial toward something than gaged in more solicitation acts, minor to in illicit there engage sexual alone, or the as substantial travel like such the second of crimi satisfying element victim or to meet with intended statutory language nal attempt.” prosecuted under a predator has been stat- 413(d) encompass Rule does not crimes of specifically incorpo- ute which recites (unlike 2422), § thus inducement 18 U.S.C. rates element solicitation an while solicitation alone constitute a 2422(b). See, § crime, such as 18 U.S.C. toward commission of step substantial Mitchell, e.g., 353 F.3d United States § consti an it does not offense (7th (defendant Cir.2003) trav- 553-54 tute an of sexual as attempted “offense in- eled from Indiana Illinois with the 413(d). Murrell, sault” under engage activity tent with what added); Fed. (emphasis thought fourteen-year-old); he was a Unit- 413(d). R.Evid. Just as this has Bailey, ed States v. into refused to read additional terms Cir.2000) (defendant prosecuted under 18 contract, obligated to read addi we are 2422(b)).10 majority § misin- statu very specific tional into the language terprets stating decisions when these tory legislation as Rule liberally have elements of such some “courts more defined However, parameters charged not fit of Fed.R.Evid. with vio- within was not 413(d)’s even if he lating 18 U.S.C. of sexual definition of “offense statute, of that based on same violation assault.’’ case, acts that we have in this his would facts *22 413(d)11 However, sexual al accomplish to a desired toward assault.” simply v. Equitable generally leged See Heller unsubstantiated acts recounted result. Society, above,12 Assurance 833 although repugnant, most were Life Cir.1987) (“In a absence of magistrate judge presented never to the as clear, specific and contractual unequivocal a for basis the motion in limine under obligated the insured is requirement completely and review are unrelated to undergo attempt to to minimize surgery to telephone Smith’s conviction for indecent disability, refuse to the same. his order of a solicitation child under 720 ILCS 5/11— impose To hold and to such otherwise 6(a), only and to serve confuse issue. would, effect, enlarge in requirement Defendant-appellee Smith’s motion in li- beyond clearly policy of the those terms only mine concerned introduction into policy agreed by in to defined evidence of conviction for indecent Smith’s Heintz, parties.”); Jenkins phone solicitation of a minor over in (7th Cir.1994) (“We obligated [are to] 6(a),13 violation of 720 and our ILCS 5/11 — Congress drafted it. apply law as We only review concerns that conviction. disregard statutory plain should not lan- Any alleged criminal activities in to guage impose order on the statute ly in are engaged which unrelated and not what we consider a more reasonable part of his conviction under ILCS meaning.”). attempted An “offense of sex- 5/11-6(a) for indecent solicitation of a mi 413(d) ual assault” Rule as defined nor no bearing have on whether that con separate inducement under are viction constitutes an attempted “offense crimes, requiring distinct each different of sexual assault” meaning within the of proof. elements of 413(d) 415(a) Rules of the Federal majority, an to attempt manufac- Rules of Evidence. act,” ture “substantial states that Smith supra, recognize As stated while we
“called middle school student to his office previous conviction for solicitation boy and offered the himself.” expose $10 telephone morally of a minor via the Majority Opinion See at 345. its at- reprehensible, repulsive and indeed consti- tempt previous have Smith’s conviction Illinois, tuted a criminal act in it falls short 413(d), fit parameters within the of satisfying attempted the definition of an majority “Undoubtedly, that: posits 413(d). “sexual assault” calling under Rule Had the minor the dean’s office and telling expose Congress permit him for money himself intended to the introduc- evinces step previous Smith’s intent and substantial tion of concerning telephone 11. Which include does not solicitation in its 13.The content of the conversation definition of an "offense of sexual assault.” as the served basis for Smith's convic 5/11-6(a) ap ILCS does initially charged aggravat 12. Smith was with pear appeal, record on and this court assault, ed sexual sexual misconduct in way knowing has no what Smith said to the However, decent solicitation. accordance only minor. The record reveals that Smith bargain, plea aggravated his sexual 1-6(a) violating was convicted of 720 ILCS 5/1 charges assault and sexual misconduct illegal person it which makes of the "[a] dropped pleaded guilty only and Smith to one age years upwards child, [to] ... know count of of a indecent solicitation 6(a). ingly supra p. violation of 720 See solicit a child one he or ILCS or whom she 5/11 — Thus, Smith was never convicted of perform to be a an act believes child aggravated sexual assault sexual or miscon penetration sexual conduct.” duct, alleged and those criminal acts convic tions are not us. before telephone an constitute at encompass over would crimes, as those that such induce, represent or en- murder. tempted coerce This would attempt persuade, act, law, con- expansion a sex into the criminal tice minor into unwarranted of an “offense fines the definition Supreme long Court has defined an specifically it would have sexual assault” requiring an “overt act” fur *23 by incorporating this such accomplished Supreme of a crime. therance As 413(d). fact, Rule In evi- language into Spectrum in Inc. v. Sports, Court stated to in- Congressional intent dence of “combination, McQuillan, intention and of definition clude such elements present act all without overt be similar in a is statute sexual assault amounting attempt.” to a 506 criminal plain language of statutes by evinced 7, 447, 884, 455 n. 122 U.S. 113 S.Ct. 3509(a)(8) spe- which such as 18 U.S.C. (1993) 247 and Co. v. (citing L.Ed.2d Swift in- the “persuasion, criminalizes cifically States, 375, 387-88, 196 25 United U.S. enticement, ducement, of sex- coercion” (1905)). 276, L.Ed. It S.Ct. 518 has However, a minor. these ual acts with law for been in Illinois over well-settled more all-en- laws much broader and are years that do not “mere solicitations 413(d), con- than Rule compassing prove attempt.” People, an Graham not spicuously does include solicitation (1899). 181 Ill. N.E. as- its of sexual “offense[s] definition enacting a statute such as 720 ILCS 5/11— language omission this sault.” The 6(a), Legislature implicitly the Illinois rec 413(d), intent of Rule reflects the clear alone should ognized solicitation not limit Congress strictly the introduction and, in order amount to sexual assault con- potentially prejudicial information in an in protect predators minors from previous only crimes cerning a defendant’s technological society, had creasingly in the to the circumstances enumerated criminalize alone. insight to solicitation It Supreme rule. Court stated As place expand not our Illinois is Co., Inc., 534 Sigmon Barnhart v. Coal encompass attempt to commit statute to an 452-53, S.Ct. U.S. assault, expand nor should we Rule (2002): princi- It is a general L.Ed.2d 908 413(d) Congress beyond limits ple statutory construction that when it to include As has intended solicitation. fit to Congress particu- has seen “include correctly again, it stated time and been lar but language one section of a statute place interpret the law this court’s Act, section the same it in another omits written, judgment our substitute Congress presumed it is generally See, e.g., Jenkins legislature. that of the intentionally and in the dis- purposely acts Cir.1994). Heintz, As parate inclusion or exclusion.” Id. beyond se is the bounds of per Solicitation such, barring magistrate judge’s ruling assault” attempted an “offense of sexual introducing from into Does language to the clear pursuant conviction, for so- prior Smith’s which was 413(d), and thus 2001 Illinois State only, entirely proper. licitation properly ex conviction solicitation was more, the conclusion majority’s What’s from evi magistrate judge cluded alone is sufficient to estab- solicitation at trial. dence have a very lish could well criminal effect this court’s deleterious were it to the law
jurisprudence become instance, ma- For circuit. a murder
jority’s reasoning, solicitation of