Case Information
*1 Before W OOD , Chief Judge , B AUER E ASTERBROOK , Circuit Judges .
W OOD , Chief Judge Harry second year law student Southern Illinois University School Law when posted ad on craigslist entitled “sell me your teenage daughter.” ad went solicit acts pay. He caught when then investigator (now Chief) Mike Andrews Benton, Illinois, police department spotted ad while working undercover online. *2 was charged one count of violating U.S.C. § 2422(b), which prohibits (among things) knowingly persuading enticing a under age of to engage crimi nal activity. He was convicted after a three day jury trial. court sentenced him to months’ imprisonment, five years’ supervised release, and a $500 fine. On appeal, contends that was insufficient support conviction and court erred admitting certain evidence. While we find erred failing evaluate some of Federal of Evidence are satisfied error was harmless. therefore affirm McMillan’s conviction.
I Chief Andrews a member of Illinois Attorney Gen eral’s Task Force Internet Crimes Against Children, and U.S. Secret Service’s Southern Illinois Cyber Crimes Task Force. capacity, he was trained how catch people who attempt use internet exploit minors sexually. When Andrews saw ad, he responded guise “Mike,” a father a teenage daughter willing sex. Over next two days, and Andrews exchanged a number emails, explored such topics price, possibility threesome, availability nude pictures, location tryst, and use condoms. emails showed worried “Mike” might police officer, at one point wrote Mike “i don’t want go jail either.”
A couple days into exchange, “Mike” McMil lan agreed “Mike,” McMillan, daughter meet local movie theater. (The role daughter *3 ‐ played an adult female works for a state agency.) The meeting took place as planned on September 22, 2010. As soon as Andrews and “daughter” entered theater, “daughter” went restroom. Andrews and McMil ‐ lan spoke one another, and McMillan asked for nude pic tures girl that Andrews had promised bring. An drews handed McMillan an envelope, and McMillan opening it, Andrews arrested him. connection arrest, Andrews searched McMil
lan and found two condoms his front pocket, along a receipt them. Later that evening, police searched residence and recovered laptop computer. The computer revealed Andrews had also responded initial craigslist posting using a second persona: a ‐ year ‐ old girl named “Kellie.” McMillan ques tioned Kellie closely about her sexual experience, asking whether she “real,” she a virgin, if she sex money, what sexual acts she had performed, whether she had experienced orgasm, so on. The laptop search also revealed had tried find on Facebook.
At trial, admitted he posted ad ini tially attracted Andrews’s attention, but he said he did so attempt locate child molester whom he could confront. He had been victim abuse child himself, said wanted ask questions perti nent own experience. also presented testi mony communications between himself someone called “Just Me,” supposedly year old man. two had never met person, but defense presented they had tentatively agreed meet September *4 the day of arrest. testified he pur ‐ chased condoms Andrews found purposes of his meeting with “Just Me” before he had made arrange ments meet “Mike” theater. jury not per suaded: convicted McMillan, he has now appealed from judgment.
II raises several arguments appeal. First, he contends he could not, matter law, violate U.S.C. § by having contact only with adult father teenage girl. In view, internet contact di rectly between defendant underage pro tected statute. addition, he argues even communication between two adults falls within statute, prosecution here failed show he intended per suade, induce, or entice minor prohibit ed acts. Finally, he raises two arguments connection admission evidence: asserts admissible Federal Evidence 404(b); contends admission violated due process right fair trial. take up these points turn.
A Because first argument raises question statutory interpretation, begin text section 2422(b):
(b) Whoever, using mail or any facility means interstate or foreign commerce … knowingly persuades, induces, entices, co erces individual attained *5 5 12 ‐ 1348 age 18 years, to prostitution or any sexual activity can be charged criminal offense, or attempts to do so, shall be fined this title im prisoned not less than 10 years life. argues language covers only direct efforts
by perpetrator to persuade, induce, etc., underage person, thus does not criminalize communication between two adults.
Although question new to us, been exam ined seven our sister circuits. Six them con cluded statute does extend to adult ‐ to ‐ adult com munications are designed persuade minor commit forbidden acts. See United States v. Berk, 652 F.3d 132 (1st Cir. 2011); United States v. Douglas, 626 F.3d 161 (2d Cir. 2010) (per curiam); United States v. Nestor, 574 F.3d 159 (3d Cir. 2009); United States v. Caudill, 709 F.3d 444 (5th Cir. 2013); United States v. Spurlock, 495 F.3d 1011 (8th Cir. 2007); United States v. Murrell, F.3d (11th Cir. 2004). also United States v. Laureys, (D.C. 2011) (per curiam) (not plain error instruct jury adult ‐ adult communications are sufficient); Brooks, M.J. (C.A.A.F. 2005) (version § incorporated Uniform Code Military Justice covers adult adult communications). To say least, therefore, faces uphill battle convince us hold otherwise. fact, even all those cases did not exist, inclined read statute narrowly does. statute prohibits only knowing persuasion (etc.) minor, but also attempts persuade, induce, en tice, coerce minor into criminal acts. One *6 particularly effective way to persuade or entice a to do something to enlist the help a trusted relative, friend, or associate. As Second Circuit noted Douglas, the es sence crime attempting to obtain minor’s assent, could be done “for example, by persuading a minor’s adult guardian to lead a child to participate sexual activi ty.” F.3d at 164. The Third Circuit took a similar ap proach Nestor It reasoned even completed crime would require contact with a minor, defendant still guilty attempt because “took substantial steps calculated to put him into direct contact a child so could carry out clear intent to persuade, induce, en tice, or coerce child to engage sexual activity.” F.3d at 162. The Eighth Circuit added statute should “exempt[] sexual predators attempt to harm a child exploiting child’s natural impulse to trust obey her parents.” Spurlock, 1014. rationales these decisions vary slightly, but one
can discern three lines thought. Some courts permit conviction solely on basis an adult’s attempt per suade another adult allow defendant conduct a minor. See Caudill, Murrell. Others find persuasion element satisfied because defendant trades influence parent over minor child, cause parent exploits her ability bring child meeting place where defendant could attempt di rectly persuade her. See Douglas, Nestor. Finally, some courts require more direct attempt use parent intermediary convey defendant’s message child. Spurlock, Berk.
The third these possibilities strikes us as the narrowest interpretation. Because we think describes conduct well, we have no need decide now whether either the broader readings also be consistent the statutory language. essence this crime is the defend ant’s effect (or attempted effect) the child’s mind. Nothing in statute requires minor be the direct recipient defendant’s message, whether comes conversation, by telephone, by text, by email, or some other way. Hu man intermediaries long predate digital contacts that are so common these cases, they are still an effective way convey information. see nothing text § 2422(b) undermines this reasoning. suggests syntactical struc ture statute demands an object transitive verbs “persuade, entice, coerce, induce,” only possible object be minor. But, as already explained, minor can object defendant’s ef forts even third functions intermediary. end, what important statute is defend ant’s attempt (using mails instrumentalities commerce) persuade minor. So read, there nothing unconstitutionally vague law, contrary McMil lan’s protestations. See Skilling v. United States, S. Ct. 2896, 2927–28 (2010). “Ordinary people using common sense,” Second Circuit put it, will understand § violated attempts persuade, entice, coerce, induce minor activity. Gagliardi, (2d 2007). Indeed, fact feared “Mike” police officer setting up sting shows well aware *8 treading on forbidden ground. are satisfied stat ‐ ute gives adequately clear warning what prohibits.
B Even if statute permits conviction based on commu ‐ nications such as those between himself “Mike,” McMil ‐ lan argues evidence presented trial insuffi ‐ cient to prove ultimately intended to persuade a mi nor to engage sexual activity to use an adult an termediary. order to prevail on such a claim, re fute possibility “after viewing light most favorable to prosecution, rational trier fact could have found essential elements crime yond reasonable doubt.” Jackson Virginia, U.S. (1979). McMillan cleared hurdle.
Most from email exchanges between McMillan Andrews shows McMillan trying to get “father” to agree to allow daughter to activity with McMillan. McMillan states intentions dif ferently from time to time, ranging from direct “how much f**k your daughter” “I’m looking anything bad, maybe someone hang out with.” Even if these communi cations look more like negotiation father, howev er, there are others jury could have relied. The most damning when emails “Maybe she’d like see pic my cock.” jury may have understood (misguided) effort entice girl directly picture. On another occasion, asks “Mike” an email there “[a]ny chance you can let me talk your daughter directly, maybe she can email me.” This, jury could thought, attempt get father permit entice girl. Finally, there *9 an email which asks “Mike” “have you talked her yet?” These examples, we do tend be exhaustive, show evidence was sufficient support jury’s verdict.
C Finally, we turn most troubling part of case: district court’s decision admit evidence Federal Rule of Evidence of simultaneous email exchange having with “Kellie,” reality another fictional person portrayed Andrews. evi dence showed exchanged several sexually ex plicit messages “Kellie.” review decisions admit evidence abuse dis
cretion. See Knope, (7th 2011). Even if we conclude erred admitting excluding certain evidence, however, still ask whether error harmless—that is, affect ed defendant’s substantial rights. F ED R. C RIM . P. 52(a).
Federal Evidence addresses subject character evidence. Subpart (a) rule generally prohib its admission character “to prove particular occasion acted accordance character trait”—in words, show propensity. But subpart (b)(2) operates exception general rule exclusion; offers following list permitted uses character evidence:
This may admissible another purpose, such proving motive, opportunity, *10 10 12 1348
intent, preparation, plan, knowledge, identity, absence mistake, or lack accident.
F ED R. E VID . 404(b)(2). expressed concern over risk that practically anything can be shoehorned into list permitted uses court is not careful. A rule de facto automatic admission wipe out general rule prohibiting pro pensity evidence. See, e.g., United States v. Miller, 673 F.3d 688, 696–97 (7th Cir. 2012); United States v. Hicks, 635 F.3d 1063, 1069–74 (7th Cir. 2011) (prior convictions not admissi ble show intent absence mistake); United States v. Webb, F.3d (7th Cir. 2008) (holding evidence admissible show either intent absence mistake).
For many years, used four part test de signed screen evidence should be admitted from should stay out. Under test, government demonstrate that:
(1) evidence is directed toward establishing matter issue other than defendant ʹ s propensity commit crime charged; (2) evidence shows act similar enough close enough time relevant matter issue; (3) suffi cient support jury finding defend ant committed similar act; (4) pro bative value substantially outweighed danger unfair prejudice. United States v. Chambers, F.3d (7th Cir. 2011). This test panel followed Gomez, (7th 2013), but opinion va *11 No. ‐
cated and the case since been reheard by the en banc court. The parties were invited, purposes the reargu ‐ ment, discuss question whether we should retain existing test Rule 404(b) evidence, some other test would preferable, such one asks directly whether proposed evidence is relevant specifically identifia ‐ ble and disputed non propensity issue and then leaves work balancing prejudice against probative value Rule 403. Gomez, (7th June 2013) (order granting rehearing en banc and requesting new briefs).
If we thought would make any difference out ‐ come appeal, would await en banc court’s opin ion Gomez But our view cannot prevail under any conceivable test might apply Rule evi dence. therefore analyze arguments tradi tional test and explain why more focused approach sug gested briefing order Gomez help him. argues “Kellie” violated first fourth parts traditional test—in words, relevant only propensity (he says), its prejudi cial effect outweighed its probative value event. The latter point, captured fourth part tradi tional test, essentially repeats independent requirements Federal Evidence 403. record, however, does support points. It shows instead di rectly relevant issues put before jury. opening argument, trial counsel stated “Harry will tell you why placed ad. And ladies gentlemen, why placed ad what case all *12 about.” Counsel continued, “Harry will tell you his own words that he did this with intent that he might opportunity confront someone facilitate a sex crime against a minor order get his questions swered.” reason for undertaking project, counsel said, was gain a better understanding child mo lestation, because McMillan himself had been molested when he was young. Counsel later reiterated “Harry was also role playing while he engaged conversations with Officer Andrews.” “Kellie” emails directly address reason
for placing craigslist ad. said did it catch a molester, but “Kellie” emails cannot explained way. In them, thought was dealing directly minor, intent arrange a encounter unmistakable. This was far cry from propensity evidence; course action which was engaged at precisely same time emails “Mike.” Looking Gomez briefing order, one could say element government trying prove intent, emails were relevant sue standards set forth Federal Rule Evi dence 401.
That takes us Rule (or part four traditional test), permits court “exclude relevant its probative value substantially outweighed danger … unfair prejudice … .” Whether concept appears fourth element test Rule evidence, stands its own, makes little difference McMillan. Ei ther way, district should make assessment calls for. case, unfortunately, *13 court did not formally do so. have urged district courts make their findings explicit, especially when evidence as sensitive as the “Kellie” emails are. United States v. Ciesiolka, F.3d 357–58 (7th Cir. 2010). Nonetheless, accepting for the sake argument the district court erred here skipping over step too quickly, we still consider whether such error harmless.
Given limited number “Kellie” emails government used directness their relevance, we cannot say it clear district court have opted for exclusion had looked more carefully 403. Indeed, our prediction opposite: “Kellie” emails refuted proffered justification his actions, so even though they are prejudicial, balance tips deci sively admission. government did get carried away evidence, as done some cases, see, e.g., Loughry, (7th 2011). In fact, “Kellie” evidence significantly more limited than email exchanges Knope , upheld admis sion evidence seven additional minors. short, although should have weighed proba tive value “Kellie” against its prejudicial ef fect, its failure do so circumstances case harmless. These considerations also assure us ad mission “Kellie” did violate due process right fair trial.
III also complains prosecutor’s references emails closing argument violated right fair trial. For reasons already given, we re ject argument, well understanding § 2422(b), *14 attack sufficiency evidence, arguments evidence. judgment A FFIRMED