*1
509
437,
(7th
2004).
agreements.
plaintiffs
the
with deferral
438
Cir.
A complaint that
Rather,
pervades
claim,
it
this entire lawsuit. We
fails’
hand,
to state a
on the other
yet
anything
engages
have
to see
the
may
foreclosed jurisdictionally and
constitution,
opposed
federal
to
prejudice.
dismissed either
or without
responsibili
Indiana’s internal allocation of
Mains, 852
at
F.3d
ty
regulating
for codes
traffic. Even if the
Federal
power
courts lack the
to hear
city’s police department
issuing
was
tickets
most of
complaint;
the claims in this
pursuant
were
fines
paying
motorists
exceptions are those stemming from the
to an ordinance that was invalid under
and,
agreements
deferral
any-
there is
law,
Indiana
the conclusion that motorists’
them,
thing
Pre-Adjudication
rights
constitutional
were violated does not
Claims.
modify
We therefore
the district
action,
necessarily follow.
even
“[SJtate
court’s
judgment
show that the claims
lawj
though illegal under state
can be no
brought by all plaintiffs except those sub-
more and
less
no
constitutional under the
ject to
agreements
deferral
and those in
than if
it were sanctioned
[Constitution]
Pre-Adjudication
group are dismissed
legislature.”
Hughes,
the state
v.
Snowden
prejudice.
without
brought by
The claims
11,
1,
397,
321
64
U.S.
S.Ct.
constitutional violation or rise to an claim.”) (citations § 1983
actionable omit
ted). plaintiffs allege do not
were stopped probable without cause—in
deed, they do not even that they contest committing
were traffic infractions. There is nothing support extravagant con America, UNITED STATES tention that the action of the Indiana Plaintiff-Appellee, striking Court of Appeals down this grounds traffic ordinaneé home-rule city engaged that the demonstrates Jeffrey PARKHURST, Defendant- a wide-ranging conspiracy deprive plain Appellant. rights.
tiffs of their civil
No. 16-3102 IV Court of Appeals, United States a district dismiss When Circuit. Seventh jurisdiction, es an action for lack of prejudice. dismissal must be without Argued May Citibank, N.A., Mains v. Decided 2017). This is a dismissal because with prejudice operates disposi acts as a merits,
tion on the which a court without power hear a case not issue. City Lockport,
Frederiksen v. *3 Walters,
Greggory Attorney, R. Office of Peoria, IL, Attorney, the United for States Plaintiff-Appellee. sexy... .nothing ever Gold, very erotic and Attor- Kras, Roth Martin
Elvira only to make York, NY, you...goal LLP, forced New neys, Dentons US you will not want it to good feel so Defendant-Appellant. try .we can end ... .ever lol... EASTERBROOK, FLAUM, Before you have ever wondered anything SYKES, Judges. Circuit ask!... about...you only need to guy just an older discrete white Me ?...
FLAUM, Judge. Circuit like a your age at heart and built that’s trial little teenager convicted at who needs discrete Jeffrey engage good minor to times .a re- spend to entice a friend to with.. attempting to one activity ya was sentenced cost a little time ply in sexual *4 long in a imprisonment. thing you have done thirty-two months’ the best hundred hap- his con- challenges time....be safe...be cool...be appeal, Parkhurst On guys older so don’t py!!! looking We affirm both. Not for viction and sentence. you! or mine . thank your waste time Background I. (ellipses original).2 2015, Jeffrey July January to From . later, Detec- Decatur Police One week internet ad- a series of posted Parkhurst Parkhurst’s tive Todd Koester discovered “casual en- Craigslist’s vertisements responded using and an un- advertisement example, counters” section. On 15-year-old “Kacy persona of dercover following ad: posted Parkhurst (Detective Koester) Kacy and Lillard.” Young Lookin For Son— Gentleman email exchanged then text and Parkhurst (springfield) m4m1 eight and a half messages for the next very boy in Tryin young to a white find hours: quality togeth- time spend order to some (cid:127) interaction, stat- Kacy initiated the . kinda be a little fella er... .he would im “just say proba- to hi. ing, wanted kept. clean little thin built. not too tall. i and liek bly young but am 15 to[o] body average good hair . to look- no responded, hang out.”3 Parkhurst lol) a little white (easy eyes . on the ing young you can’t “You are too fun to be friendly guy who :)” buddy lol. Hi keep a secret helps.. .18 or .sense of humor around.. (cid:127) stated that he “[w]ould Parkhurst (younger bet- slightly older [Kacy] erotic sensual love to time(not ter). good . like to have a .must massage covering every inch of [his] .prefer you to speaking).. sensual room body in a candle lit with guys far as are con- virgin . as massage supplies oil and warming myself I am one.. .like to do cerned . as try.” want[ed] do whatever [he] fun .... many things that are different (cid:127) Kacy Parkhurst asked whether being being . touched . enjoy
must close referring uncut .... was “cut or all over with warm- massaged . rubbed Upon learning that [Kacy’s] penis.” lit room and made to feel ing oil in a dim ' originally grammar appear as spelling 'Male for male." with brackets. written unless altered included a num- 2. Parkhurst's advertisement 3.Later, messaged Kacy that he was "16” grammatical, spac- typographical, ber of using Koester testified that quoted old. Detective ing that we have without errors opinion, variation was unintentional. of this For the remainder “[sic].” stated, Kacy “cut,” was, Kacy Parkhurst lieved answered, and Parkhurst cut, was—well, am “Really glad ur so I.” “I assumed I at one point you (cid:127) said I were sixteen. So I assumed was proposed Parkhurst he and talking to a year fifteen sixteen old.”
Kacy “experiment explore to- added, however,' Parkhurst that he had gether only try what both of Kacy believed lying have been try.” [them] want[ed] age given multiple reported ages. (cid:127) expressed “[m]ay Parkhurst that he acknowledged Parkhurst that he had im- try [Kacy].” like to and suck plicitly sex in referenced oral his conversa- (cid:127) Kacy’s question, In response to “U Kacy, tion with and when asked whether any hurt?,” think gonna of its Park- reviewing someone exchanges answered, “I’ve studying hurst been Kacy reasonably could conclude that up subject on the so know what to Parkhurst had to engage intended in sexu- prepare you do to so it won’t hurt ! al activity, responded, “Proba- And I hurt would not for the bly.” buddy... world will .1 be extra care- buddy ful want cause I both of us to indictment, In a one-count the govern- want to do this over and over and ment charged Parkhurst with attempting *5 not a deal lol.” one time to entice a engage minor to in sexual activ- 2422(b). ity, in § violation 18 of U.S.C. Eventually, Kacy agreed Parkhurst and trial, After a a found Parkhurst night. planned meet that pick Parkhurst guilty, and the district sentenced him (where Kacy up apartment at his Decatur to one thirty-two impris- hundred months’ other Detective Koester and officers would pm onment and fifteen of supervised stationed) Kacy’s at after 11:30 release. appeal This followed. mother left for work. Parkhurst would dinner, Kacy stop take to a truck II. Discussion Springfield home for night, and back to Decatur 7:30 am appeals Parkhurst both his convic morning next his mother before returned. tion requests and his sentence. He a new Kacy messaged he would need to trial by challenging the admission parts of and for the pack bag night, shower a and testimony Detective Koester’s and the responded, ya Parkhurst “Cool make sure government’s certain emails during use of ur all good clean self extra over lol and i’ll in closing argu cross-examination and ya traveling know do later.” While resentencing ments. Parkhurst seeks Decatur, purchase Parkhurst offered based on use the trial court’s of an ob stated, Kacy candy, gotta some and “[J]ust struction enhancement. We review for an promise way not to eat them all on the abuse of district discretion the court’s evi asked, Kacy here lol.” “Lol I Y rulings, United States back won’t. dentiary not?,” my Williams, 845, responded, and Parkhurst “Not 856 (citation candy! buddy... yours omitted), kinda It’s all .I’m and sentence-enhance States v. pretty gonna spoil anyway decisions, much so ment Vasquez- United Hernandez, get used to it ok ?” 2016). At about 11:30 pm, Parkhurst arrived at
the Decatur Detective address Koester Testimony A. Detective Koester’s provided, promptly had ar- police and the him. Detective served at trial as a rested interviewed Detective Koester witness, fact-expert discussing dual both Koester asked how old Parkhurst had be- (as part in which he is Parkhurst versation Kacy) with his interactions Overruled. involving [sic ]. internet experience and his chal- children. Parkhurst against crimes So, thinking I’m that he doesn’t A: particular por- as unreliable two lenges candy all this want this kid to eat testimony: his Koester’s tions of Detective activity get full because of the sexual (1) “candy” understanding of Parkhurst’s he doesn’t gonna place; that’s take (2) comments, Craigslist ad. want him to be sick. Detective Lastly, Parkhurst contends that (internal added). Park- quotation marks fact-expert witness role Koester’s dual expert testimo- hurst asserts that this was argu- each jury. We consider confused of Evidence ny under Federal Rule in turn. ment argues that the lacked “methodology, ex- necessary discussion of “Candy” Conversation govern- or scientific method.” pertise, challenges admissi- first however, lay- ment, contends that this was testimony re- bility Detective Koester’s subject to Rule 701’s testimony, witness candy-related conversation garding a less-strict standards. (as Kacy) During Parkhurst. di- had Rule witness “[i]f Under examination, Detective Koester de- rect testimony in testifying expert, as an not understanding of the conversa- scribed his to one opinion form of an is limited tion: (a) rationally on the wit is: based Okay. And then the rest of (b) clearly un helpful to perception; ness’s talks about portion of the conversation derstanding the witness’s candy, hard or your preference of (c) issue; determining a fact at chewy, et cetera. And then 8:44 technical, scientific, spe or other based *6 portion this of the p.m., tell us about scope of knowledge cialized within conversation. 701. review Rule 702.” Fed. R. Evid. We “Cool, responds saying, at 8:44 A: He lay-opinion testimony decisions to admit all not to eat them just gotta promise for of discre pursuant to Rule 701 abuse here, way LOL.” on the back Corp., 653 tion. Yancick v. Hanna Steel your And then reaction? 2011) (citation omit “LOL, I respond, won’t. A: At 8:50 ted). testimony, on the expert Rule 702 Why not?” hand, on a witness’s knowl other is based skill, experience, training, or edu edge, say? Q: And what does he cation, and must be based on sufficient candy. It’s all my kind of A: “Not and methods. principles facts and reliable buddy.” yours, 702. The standard of review Fed. R. Evid. por- you interpret do Q: And what review de novo wheth is also different: We to mean? of the conversation tion Rule 702 required applied er the court thinking I’m he point, A: At framework, of and for an abuse discretion 15-year-old kid to doesn’t want or exclude the court’s decision to admit candy gonna because it’s eat a lot of v. Pansi expert testimony. United States activity with the sexual interfere er, place. take supposed that’s omitted). (citation Objection, speculation. Defense: together, government’s Taken testify- can—he’s Overruled. He Court: answers, examination, Detective Koester’s understood the con- ing as to what he ruling training experience, the district court’s made clear and individuals seeking Detective Koester’s about who minor. What “candy” parts was based on conversation his ad struck you [Parkhurst’s] at perception of the conversation the time saw it on July [when first 27]? 701 lay-witness it occurred—classic Rule Well, line, A: “very the first young testimony. government, for example, white boy, a little fella.” The “18 or about inquired Detective Koester’s “reac- older,” slightly right in parentheses messages, tions” and Detec- that, better,” “younger after explained tive Koester his view of the con- struck something me as that some- point.” versation “at that And the district body—okay, complying Pm up any regarding court cleared confusion Craigslist by putting rules 18 or the basis for Detective Koester’s answers slightly older, I’m— but when the court overruled Parkhurst’s Objection, speculation. Defense: speculation objection, clarifying that Honor, Government: Your this witness was testifying detective his under- has qualified expert been as an standing of the at the time conversation can testify training experi- such, participating in As it. this testi- why ence and this ad struck him. mony only satisfy need Rule 701’s require- objection’s Court: The actually overruled did, The district held ments. that it for government] [the reasons we see in no abuse of discretion admit- qualified states. He’s been ex- it. ting pert investigations. online He’s able testify as to ... his Craigslist Advertisement experience and expert opinion. qualified Detective Koester was as an A: parentheses right The—in after the objection gave without expert slightly says “18 or older” where it ways on the in which pre- child n better,” “the younger the that’s a way use certain key Craigslist dators words people around the get Craigslist detection,4 advertisements to evade basing basically terms and conditions without experience his awareness on saying younger. That’s a hint to. investigating online abuse and on child rel- people reading' it. “Prefer abe training.5 evant Detective Koester then *7 virgin.” Built—basically him describ- particular testified about his understand- ing himself like a teenager. as built ing Craigslist of Parkhurst’s 20 ad: things Those are the main that struck Now, Q: your testimony yes- believe me. terday parts discussed certain of ad- Now, Okay.
vertisements that look for that had testified that your are you, slightly paren- indicative to based on the “18 or older” but in government proffered Detective Koester testified that he had 5. The Detective Koester expert as an in suspects witness online child-abuse identify may learned how to who be (1) investigations, presenting his level of edu- committing against crimes children online (a (2) degree); expe- cation Master of Science suspects’ and these methods and means conducting twenty-five rience over in online committing explained He of such crimes. also involving investigations against crimes chil- Craigslist describing jury, to the the website's dren; (3) training relevant for online under- service, "flag” advertisements its function investigations cover for which he had re- (used identify illegal practices), pop- to and its certifications; (4) ceived and attendance at ularity among child-predators. regional related and national conferences. 516 “nine,” dollar,” was, “six, “fifty- in words “five and “younger
theses
better”
get
helpful);
a
your opinion, way
to
around the
five” within
conversation was
679,
use;
Ceballos,
right?
is that
F.3d
Craigslist terms of
States v.
302
United
(7th
(concluding that
Cir.
A: Correct.
“it,” them,”
interpretations
DEA
of
agents’
that Detective Koes-
argues
referring
methamphet
and
as
“both”
expert
testimony was inadmissible
ter’s
amine
Detective
shipments
helpful).
Rule 702
the court did not
under
because
key-word testimony helped the
Koester’s
in
Detective Koester’s
determine whether
jury
to the
alternative theo
apply
evidence
tested,
been
vestigative
“ha[d]
methods
may
of
not have
ordinarily
ries which
subjected
peer
publica
...
review
Ceballos,
at 687-
been
See
302 F.3d
aware.
tion,
a known rate of
whether there [was]
Christian,
88; see
673
also United States
error,
there
general
[was a]
whether
[or]
2012) (“What
702,
might
711
in evaluating
the field
acceptance
un
innocuous
to an
seem like
conduct
reliability
proffered testimony.”
of the
See
eye,
be
jury, might,
trained
the trained
702;
R. Evid.
Daubert v. Merrell Dow
Fed.
activity.”).
criminal
indicative of
Pharmaceuticals,
Inc.,
509 U.S.
113
(1993).
2786, 125
also
L.Ed.2d
He
S.Ct.
scientific-reliability
on
Parkhurst’s focus
an
that this
constituted
asserts
Koester’s
misplaced.
factors is
Detective
subjective
about Parkhurst’s
moti
opinion
expert testimony was
on his exten-
based
704(b), imput
of Rule
vations
violation
training
experience
sive
in over twen-
nefarious
of
ing to Parkhurst
intent
ty-five
internet
investigations
involving
targeting minors with his advertisement.
Training
crimes
children.
and ex-
against
perience
proper
expert
are
foundations for
outset, “[Ejxpert
At the
testimo
advisory
R. Evid.
com-
testimony. Fed.
helpful
admis
ny must be
be
(citations
mittee’s note to 2000 amendment
Christian,
United States v.
sible.”
omitted) (“the
expressly
text
Rule 702
2012).
Detective Koester
quali-
that an
contemplates
expert
func
Craigslist’s “flagging”
first described
experience.
fied
In certain
on the basis
improper
and blocks
tion
identifies
fields,
experience
predominant,
Craigslist
scrutinizing
features
uses
sole,
great
for a
basis
deal of reliable
in their
the words users include
advertise
testimony”); see
Tire
expert
also Kumho
interpreted
He then
presented
ments.
Co.,
Carmichael,
137, 156,
Ltd. v.
526 U.S.
“[k]ey
“young,”
various
words”—such
(1999)
when a law enforcement official states
government
mindset. The
asked Detective
opinion about the criminal nature of a
activities,
Koester what about the
testimony
defendant’s
such
advertisement had
him,
should not be excluded under Rule
stood out to
“based on
training
[his]
704(b)
clear,
long
as it is made
either
experience.”7
He then identified and
Expert
determine,
testimony regarding
6.
Experts
"code words”
exper-
can
based
their
may inherently
tise,
be untestable in a scientific
drug-related
that certain words have
given
manner
ever-changing
nature of
meanings
single
within the context of a
con-
these
groups
words over time and across
York,
(emphasis
versation.”
interpreted that, experi knowledge on in special based some of Parkhurst’s advertisement ence, “[k]ey Considering resembled words” that other tent. the as a examination target whole, to testimony individuals have used minors the did not violate Rule 704(b). Craigslist’s regulations. violating without Park- Detective Koester never mentioned Dual Role “mindset,” “intent” and he never
hurst’s
or
matter,
a final
As
directly
that Parkhurst
intention
testified
role
claims that Detective Koester’s dual
minors—
sought
sexually
to
entice
ally
jury.
a
the
fact-expert
as
witness confused
See,
prohibits.
precedent
which is what our
However,
routinely uphold
practice
the
we
Collins,
e.g.,
States v.
715 F.3d
United
witnesses,
presenting
fact-expert
of
dual
2013)
(7th
1032,
(expert testimo
1038
Cir.
experienced
“particularly where
en
law
testimony
ny admissible where officer’s
were involved
the
forcement officers
familiarity
special
not based on “some
York,
at
572
particular investigation
issue.”
defendant’s]
of
workings
[the
with
(citation omitted);
(internal
F.3d
see also
mind”)
omitted);
at 425
marks
quotation
586,
Lightfoot,
United
v.
224 F.3d
Are,
499,
States
States
513
United
v.
(7th
2000) (“there
2009) (“We
(7th
nothing
affirmed
589
Cir.
Cir.
the district
wrong
police
testify
a
expert
having
with
officer
court’s decision to allow the
testi
expert
both
witness
wit
mony because the officers testified that
as a fact
and an
ness”)
omitted).
(citation
True,
on
opinions
their
were based
their knowl
there are
practices
drug
dangers
of
“inherent
with
kind of dual
edge
‘common
this
(ci
confusion,
special familiarity
testimony,”
jury
and not
trade’
on ‘some
such
id.
omitted),
workings
tations
but
for
“potential
[the defendant’s]
with
”) (citations omitted);
by
prejudice
mind.’
United States
... can be addressed
means'
Blount,
cautionary
appropriate
instructions
F.3d
examination
noting
testify
of the
that is struc
(approvingly
witness
way
tured
a
as to
clear when
ing
[the
officer “never referred
defen
in such
make
”
testifying
holding
‘intent’ or ‘intentions’ and
the witness is
to facts and when
dant’s]
Id.
expert
offering
opinion
expert.”
that the officer’s
“did not
he is
as an
704(b)’s limitations”);
Mansoori, 304
transgress
(quoting
Rule
United States v.
(no
704(b)
2002)).
pre
Lipscomb,
F.3d at
Rule
These
violation where an
testified “that
cautions tell the
what
it needs
pattern
weight
evinces
know
how
partic
certain
of conduct
to determine
much
activity”).
opposing
ular kind of criminal
reason
coun
No
juror could
Detec
sel
able
have believed that
what he needs
know to cross-exam-
knowledge
online-predator
way
prac-
of common
ad that—kind
their
to dis-
tices:
posting
get
guise their
doesn’t
re-
so it
Q: Okay.
by Craigslist,
convey
yet
Are there other indicators within
moved
the ad that
are trained to
they’re looking
look
what
their audience
for.
Q:
per-
27th,
or not
to determine whether
July
you find
And did
an ad on
looking
looking
son is
for an adult posted
actually
that was
about a
for a minor?
earlier,
20th, 2015,
week
A: Yes.
Looking
Young
title Gentleman
For
things
What are some of the
dash, M4M,
Son,
parenthesis,
look for?
Springfield?
fresh,
Key
"young,
A:
words such as
bare-
A: That is correct.
used,”
ly
throughout
certain terms
*10
effectively.
ine the witness
United States v. basis for Detective Koester’s answers—
Moreland,
is,
given
whether a
answer was fact
testimony regarding the investigation in
2012).
(i.e.,
this case
Rule 701 testimony) or ex-
Contrary
assertions,
to Parkhurst’s
pert testimony derived from his experience
district court
government
took appro-
(i.e.,
similar investigations
Rule 702 tes-
priate precautions against
potential
timony). This is all
require
we
of the exam-
jury confusion. The district court instruct-
ining party.
983-84;
See id. at
see also id.
jury
ed the
as follows:
at 983 (“Telling
that a witness is
witnesses,
You have heard
[including]
lay
both a
witness and an expert witness
Koester,
...
who,
Detective Todd
and will be alternating between the two
instances,
some
gave opinions and testi-
roles is potentially confusing—and unnec-
mony
subjects,
about certain
specifically,
essary.”).
such,
As
Detective Koester’s
...
investigations
online
involving mi-
dual testimony
unproblematic.
nors. You do not
to accept
have
these
n witnesses’
opinions
or testimony. You
B. Parkhurst’s Emails
judge
should
these
opinions
witnesses’
argues
Parkhurst next
govern-
that the
way you
the same
judge
ment inappropriately questioned him about
any
other
In
witness.
email communications with other individu-
deciding how much weight
give
als who
responded
had
to his casual-en-
these opinions
testimony, you
should
counter advertisements.8 He additionally
consider
qualification,
the witnesses’
argues
government
committed
how
reached their opinions or con-
prosecutorial
by referring
misconduct
clusions, and the
I
factors
have de-
stricken evidence related to these commu-
scribed for determining
believability
during
nications
closing arguments.
its
testimony.
itWhile
is advisable that trial courts dis-
1. Evidentiary Rulings
tinctly
jurors
instruct
to not
the wit-
lay testimony any
ness’s
weight
argues
extra
sim-
Parkhurst
first
that the district
ply because the witness is an
expert,
incorrectly
we
ruled that Parkhurst had
previously
have
acceptable
“opened
deemed
in-
the door” to cross-examination on
nearly
structions
identical to
examination,
this one. See his emails. During direct
Moreland,
Furthermore,
however,
happen? to cross- government proceeded The then emails, using Parkhurst with the examine was 18 or hoping person I was A: that Park- the notion them to discredit older, my like ad said. of- only wanted to interact with hurst had individuals: age to force or Q: you Did ever intend you told Detective Q: Okay. And so age under the persuade someone - you had never talked Koester that you? 18 to have sex with you believed to be 15? anybody A: Not at all. A: Correct.
Q: Did want to have sex with age of 18?
somebody under true, it, though, is Mr. Q: That’s not Parkhurst? A: Not at all. Well, you really know Howold A: .... Correct.
A: don’t anybody Craigslist. is on Q: And the exhibit that re- question Detective Koester now, believe, 19B; viewed is that *12 is, you you ever talk to asked Did correct? anyone you that believed was 15 Correct. A: said, “No, you Craigslist, old on individual, Q: That is a different cor- never.” rect?
A: Correct. A: Correct. Q: But that is not true. You Correct? Q: you What did believe to age his be? Kacy to other people did talk ... than Well, A: he said he was 14. believed you
that were and other ages, minor correct? (internal added). quotation gov- marks age. A: sure of their wasn’t did ernment not move to enter the emails evidence,
into the district so court did not admit them.9 reviewing Q: Based Government’s you con- 19D ... have a [d]id Exhibit Parkhurst asserts that the district court portrayed with a that person versation by allowing government erred to im- 15-year-old? themselves be a peach him about email his communications portrayed A: Someone that theirself with purporting other individuals to be 15, yes. as [sic.] minors, arguing they were not evi- Okay. Q: your response And when We ruling dence. review the district court’s you asked if had to be person for an abuse of discretion. States v. United [you] keep Kohli, 18 was if can a over “not
secret”; (citations omitted). is right? Objection, Attorney: extrinsic Defense “It. a is well-settled that when crim evidence. testify inal defendant elects to in his own No, im- proper District Court: this is defense, puts credibility his issue and peachment. cross-examination, himself in exposes A: Correct. possibility cluding So, Q: you you when I asked earlier (citation omitted). impeabhed.” will be Id. with had a conversation someone who above, As illustrated testified you believed to be said times that he was interested multiple was, age didn’t know what their interacting of-age with individuals. you certainly enough tell knew repeated put These assertions his credibili secret, keep them a correct? ty opened in issue and thus door for A: Correct. question government the truthful by in testimony—particularly,
ness of Q: pur quiring [Exhibit 19D] And e-mail his conversations with with, ported who minors. id. Parkhurst’s claim
transaction an individual See Hunter, govem himself that the district court allowed the identifies as correct? cross-examination, government’s 9. After the were directed toward the truthfulness of the government’s statements; the court concluded that defendant’s and.... counsel for questioning appropriate: was of the ex- ”[A]U good-faith government had basis ask government hibits used or the manner questions.” those they impeach appropriate; they in which Now, Q: as identified to use the emails extrinsic evi- individual who ment conflates cross-examination of an is Hunter dénce himself as in Government’s with use of extrinsic evidence. See 19D, sue you actually Exhibit continued Sanders, States v. United message and had text conversation 2010) (“[T]he rules of him; right? is that make a cross- evidence distinction between A: Correct. examination to an issue the use surprise you it to know that Would it”). regarding extrinsic evidence While Detective Koester found the individual . is not admissible to “extrinsic evidence night? last of a con specific instances witness’s prove *13 A: support in order to attack the No. duct truthfulness[,] character for ... witness’s actually he was And cross-examination, may, allow the Okay. A: they inquired proba into are them to Attorney: Objection, move to Defense of the for truthfulness or tive character strike, too late but now. ... the witness.” Fed. R. untruthfulness of 608(b). added). (emphasis gov The Evid. Well, The District Court: sustained. did not seek to enter the emails ernment disregard question will that and that instead, Parkhurst; impeach it cross- answer. him his examined interactions with Later, during closing arguments, gov- the accepted an minors and his purported ernment reviewed the evidence tailored to Kohli, without contradiction. 847 swers Cf. sexually-explicit interactions Parkhurst’s (identifying at 493 the same distinc (Detective Koester). Kacy with Parkhurst’s regarding the related “collateral evi tion responded part by referring counsel rule”); Simmons, v. Inc. Pinker dence regarding both Parkhurst’s testimony (7th ton’s, Inc., 591, 762 F.2d 605 Cir. exclusively of-age desire to interact with 1985), abrogated grounds rec on other exchanges with individuals and email ognized by Glickenhaus & Co. v. House purported During argu- adults. its rebuttal Int’l, Inc., (7th 408, 425 n.12 hold 787 F.3d ment, in- government highlighted the the 2015) (describing the Cir. collateral evi re- consistencies incorporated rule as Rule dence “now into garding the emails: 608(b)”). sum, In the district court correct says compare Let’s what the defendant ly opened found that Parkhurst had the says to what the evidence He shows. government to his and that the door emails Koester, I Detective never talked him; appropriately impeached it was had anyone I be 15 who believed to the to admit Park- within court’s discretion old. But saw that when cross- that he testimony given hurst’s had waded him him examined and showed the e- eyes open. the emails into with his 19, in Government Exhibit mails 2. Prosecutorial Misconduct talking 15-year-old he was to a group, 14- talking Hunter. He was to a named argues govern- Parkhurst next that the year-old. hoping He said he to meet prosecutorial ment committed misconduct somebody age, he was not interested during closing argument mentioning its in anyone only looking under for line of re- previously-stricken child, But on cross- people Hunter. 18 to 25. saw garding gov- another an experienced examination that 23- following exchange had with ernment year-old, experienced 20-year-old during Parkhurst cross-examination: (citation rejected. at experience. Too much But an quotation internal fine, omitted). Further, experienced 16-year-old, that was marks the de- “[w]here fendant object fails the remarks at added). made (emphasis Parkhurst no ob- made, plain time were error jection. requires standard ... defendant argues govern establish not that the remarks- denied argument ment’s relied rebuttal on the trial, him a fair but also that the outcome previously-stricken testimony regarding of the proceedings would have been differ- age.10“Improper prosecuto- Hunter’s real ent absent the remarks.” United States v. during closing arguments rial comments Sandoval, 2003) 347 F.3d prosecutorial are under a reviewed miscon (citation internal quotation marks duct framework.” United States Rich omitted). Parkhurst cannot meet stan- ards, dard, given plethora unchallenged (citation omitted). analysis requires, “This evidence regarding Parkhurst’s interac- first prosecutors a determination that act (Detective Koester). Kacy tions with In his improperly, ed second conclusion email messages Kacy, and text improper prejudiced conduct Parkhurst, example, upon learning that *14 (citation omitted). gov defendant.” Id. The Kacy purportedly years old, was fifteen ernment’s allusion to Hunter rebuttal responded Kacy “only that was too young improper was not because it was not in Later, if keep could [he not] secret.” testimony, the reference to stricken as post-arrest his statement to Detective Rather, Parkhurst asserts. the statement Koester, explained Parkhurst that he had testimony was based on Parkhurst’s re thought may Kacy lying have been about exchanges own garding his email with age his still but had assumed he was talk- Hunter—which, above, as described the ing to a or sixteen-year-old. fifteen- De- government appropriately elicited after spite assumption, that had Parkhurst then door im opened Parkhurst had the to offers, made sexually-explicit asking Kacy peachment through his email interactions. uncut”; expressing whether he “cut or was testimony separate This about Hunter was “may try [Kacy]” that he like to and suck testimony and from the apart stricken proposing they “experiment age. about real Hunter’s explore together”; explaining Park- any event, [Kacy] to prepare In Parkhurst cannot hurst knew “what do to hurt”; government’s alleged so it clear that making [would not] show that the mis gauging conduct him. Parkhurst both of them to do prejudiced “want[ed] “When over”; and, finally, arranging this prejudice, light we consider the remarks over and Kacy attempting pick up to at his of the entire record to determine the to back deprived apartment defendant was of a fair trial.” Id. Decatur take him to claims, problematic, gins. arguments 10. This was Parkhurst Each of these addresses the variety admissibility the for a of reasons: the "Hunter” evi- stricken "Hunter” evi- dence, pro- evidence dence demonstrated that Parkhurst had a but it was that: stricken minors; (that admitted). sexually engage government pensity it was never The to with was question, hearsay hearsay—Hunter’s arguably inappropriate within statement asked an answered, objected, Koester Parkhurst his to Detective within Detective Koes- counsel sustained—possibly government; ter’s to the and it vio- the district statement Clause, lated as Parkhurst the reasons Parkhurst now lists. None of this the Confrontation government’s given opportunity the to whether the clos- was not confront relevant to party ing arguments—during enters either Detective Koester Hunter. Park- which no improper. parade of before it evidence into the record—were hurst’s horribles ends be- jury capacity he told the home. This evi- his other Springfield Park- support investigation exchanges of and alone was sufficient dence record Considering the hurst’s conviction. Parkhurst. whole, cannot show as a Parkhurst in a a witness ... testifies dual [W]hen prej- government’s alleged misconduct
the must capacity, district court take udiced him. precautions prejudice minimize might dual role defendant. witness’s Parkhurst’s Sentence C. jury, might jury or a confuse that the Lastly, argues by special an aura of expert’s smitten enhancing his sentencing by court erred reliability therefore factual mandatory-minimum ten-year sentence weight. Experts undue fa- finding based court’s eleven on the mously possess special an aura of relia- by proceeding that he had obstructed the testimony. bility surrounding their And Park- during trial. asserting his innocence this possible glow it is from halo however, hurst, challenge, has waived expert extend an witness’s fact cursorily it in his as he identifies well, swaying brief, failing any legal present opening perceived expertise virtue of his rather argu authority any supporting or make logical testimony. than the force of his Beavers, ments. See United States Or, jury may opin- unduly credit 2014) (“Perfunc 1044, 1059 testimony of investigating ion officer undeveloped arguments without dis tory, on a that the perception based au pertinent legal citation to cussion or privy to the defendant facts about Mahaffey v. thority (quoting are waived.” Alternatively, presented at trial. *15 Ramos, 588 F.3d Cir. fact expert testimony mixture of and 2009))). circumstances, could, under come some expert commenting an on close to the III. Conclusion in ultimate issue a criminal matter. reasons, AFFIRM foregoing For the we judgment of the district court. light dangers, the In of such district courts must take some ensure precautions EASTERBROOK, Judge, Circuit in jury the its function eval- understands concurring. jury uating this evidence. The needs to I join majority’s opinion, Although the testifying an as agent know when is an in- the separately write observe testifying as expert and when he is a is not pages struction discussed at 518-19 fact witness. The dual situa- Park- that district courts can do. the best places heavy tion an burden especially objected language the hurst neither on the district court to ensure that the some- quoted page proposed at nor jury in understood its function evaluat- better, should be thing judges but trial evidence, ing the where particularly the give juries help more than able question appear conduct at inno- instruction did. necessary precautions, the cent. To take can appropriate the court an cau- capac- Koester in
Detective testified two tionary instruction and examina- issues, a expert require an on he was ities: some way as tion of the witness in such capaci- lay expert on others. In his witness testify- make clear when the witness is the understand code ty helped jury offering ing to fact and he is used on Internet to find when language the targets exploitation; opinion expert. precautions for as an Other attract sexual government establishing include the Language juries the warn "will not to let foundation proper respect for witness’s ex- expertise carry for over to fact- opinions district pert and the court al- specific testimony can be drafted for use lowing rigorous cross-examination. all similar cases. is a simple possibili- Here ty: “This special knowledge witness’s Christian, about United States [expert subject] does make his testimo- (citations 712-13 and inter- ny [lay subject] about more reliable than quotation punctuation nal marks other omitted). any that of standard, Perhaps other witness.” By that the instruction up Committee jury improve- falls will come an given short. It language not tell “when an ment. Particular jury agent impor- does is is less testifying tant as when he is than the idea. conveying testifying aas fact witness.” Nor does it Analysis problem, of a legal such as the exper- tell not to let the witness’s Christian, discussion in can affect the con- tise some matters influence its evalua- duct of criminal lawyers trials when tion the facts of judges district address the problems case. put in jury concrete advice instruc- adapted The district its language tions. That was not done in Parkhurst’s precursor from to Instruction 3.13 of the lawyers case because flag did not Jury Pattern Criminal Instructions problem propose an appropriate treat- (2012 ed.). Seventh Circuit Instruction 3.13 today’s ment. The fact opinion, like predecessor and its in the 1999 edition Moreland, United States v. designed for witnesses were use with testi- 2012), accepts language solely That’s it fying experts. why does along the lines of Instruction 3.13 as suffi- not mention the that affect dual- issues cient does not mean this instruction capacity witnesses. The Committee on ought given. to be District judges should Jury Federal Criminal Instructions could legal do better than the floor. litigants judges do and district a favor drafting dual-capaci- a new instruction Moreland problematic its own happens, ty litigants witnesses. Until that right. Decided after Chris- months nine *16 judges should these address issues on tian, cite, Moreland told which it does their own. opposite Christian in district judges respects. some that distinguish- It asserted step pinning exactly
The first
is
down
ing
lay
components
between
given
which elements of a
witness’s testi-
a single
unnecessary
witness’s
mony
expertise
reflect
and which reflect
jury.
and confusing to the
subject briefed. has been al., CARSON, et
Aaron Plaintiffs-
Appellants, Paulsin, Intervenor-Appellant,
Ronald COUNTY, INDIANA,
LAKE
Defendant-Appellee.
No. of Appeals, States Court
United
Seventh Circuit.
Argued April
Decided