U.S. v. McGuire

• Decision Date: 02 December 2010
• Docket Number: No. 09-1597,09-1597
• Citation: 627 F.3d 622
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald J. McGUIRE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

627 F.3d 622

UNITED STATES of America, Plaintiff-Appellee,

v.Donald J. McGUIRE, Defendant-Appellant.

No. 09-1597.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 9, 2010.

Decided Dec. 2, 2010.

Julie B. Porter, Assistant U.S. Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Susan Kister, Attorney (argued), St. Louis, MO, for Defendant-Appellant.

Before POSNER, TINDER, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge.

The defendant was convicted by a jury of traveling in interstate and foreign commerce for the purpose of having sex with a minor, and was sentenced to 25 years in prison. His appeal argues that while he indeed had sex with minors on trips that crossed state and national boundaries, sex was not the purpose of the travel. He further argues that the judge should have excluded the testimony of other minors, besides the one whom he was charged with molesting, under Rule 403 of the Federal Rules of Evidence, on the ground that the additional testimony was unduly prejudicial. He does not challenge his sentence.

McGuire was a prominent Jesuit priest who in 1983 had begun serving as the spiritual director of Mother Teresa's order of nuns-the Missionaries of Charity-and as her confessor. A resident of Canisius House, in Evanston, Illinois, a dwelling for Jesuit priests, he led retreats all over the world modeled on the spiritual exercises of Saint Ignatius of Loyola, the founder of the Jesuit order. In 1997, when his molestation of a boy named Dominick began, he was elderly-67-and suffering from a long list of diseases, including diabetes and asthma, and disabilities resulting from frequent surgeries. He recruited boys such as Dominick to accompany him on his travels to the retreats, explaining that he needed the boys to carry his bags, to provide him with medications, physical therapy, and massages, and to wash his feet.

He used the boys for sex as well. Dominick was a fatherless child of 13 who became the defendant's ward. From 1997 to 2001 the defendant engaged in frequent sexual activity with Dominick, often on trips to retreats; the details of the activity need not detain us. He engaged in similar acts with the four other boys who testified, and indeed with many more. His sexual predation (which had begun long before-perhaps decades before-his molestation of Dominick began) involved the following modus operandi: sleeping in the same bed with the boys; receiving massages from them that began innocently but evolved into sexual fondling of him that he commanded them to perform; displaying pornographic movies and magazines to "educate" the boys about sex and the "beauty of the human form"; eliciting confessions that they had masturbated and threatening to expose as a masturbator any boy who complained about molestation; and insisting that complaint would be futile because no one would believe that a priest of the defendant's prominence was a pedophile.

The defendant's religious superiors began to be suspicious of him as early as 1991, though he was not defrocked until 2008. In 1991 they ordered him not to travel with anyone under the age of 18. In 1995 the threshold was raised to 21 and in 2001 to 30. In 2000 they forbade his having his young assistants stay with him at Canisius House. He continued to travel with boys after being forbidden to do so. His defense at trial was that Dominick had concocted a false claim of sexual molestation in the hope of obtaining money.

The defendant was charged with violating 18 U.S.C. § 2423(b), which is one of four closely related provisions of the federal criminal code. The four are as follows:

18 U.S.C. § 2421: Whoever knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so,shall be fined under this title or imprisoned not more than 10 years, or both.

18 U.S.C. § 2423(a): Transportation with intent to engage in criminal sexual activity.-A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life.

18 U.S.C. § 2423(b): Travel with intent to engage in illicit sexual conduct.-A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

18 U.S.C. § 2423(c): Engaging in illicit sexual conduct in foreign places.-Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

Section 2421 is the original Mann Act, as amended in minor respects. Section 2423(a), intended to protect minors from sexual predation, mirrors the Mann Act but imposes more severe penalties. Section 2423(b), the provision under which the defendant was prosecuted, was added to expand the protection of minors still further; it punishes travel in interstate commerce even if no minor is transported, if the purpose of the travel is sex with a minor. (Prosecutors frequently use this section to prosecute persons who cross state lines to rendezvous with minors whom they meet in online chat rooms. See, e.g., United States v. Buttrick, 432 F.3d 373 (1st Cir.2005).) Section 2423(c) was added to punish persons who travel in foreign commerce and have sex with a minor in the course of the trip regardless of what the defendant intended when he set out on it.

It is apparent that if, as the jury found, the defendant had molested Dominick on their travels, he violated sections 2421, 2423(a), and 2423(c). E.g., United States v. Bonty, 383 F.3d 575, 578 (7th Cir.2004); United States v. Snow, 507 F.2d 22, 23 (7th Cir.1974); United States v. Hitt, 473 F.3d 146, 150 (5th Cir.2006). But inexplicably the government charged the defendant only with violating section 2423(b), which requires that the travel be for the purpose of engaging in illegal sexual activity. This charging decision (which the government's lawyer was unable to explain to us at the oral argument) enabled the defendant to argue that the purpose of his trips was merely to conduct retreats; sex was not the purpose but a welcome byproduct (if the government's evidence was believed) of the opportunities that the retreats created, as the boys were more vulnerable when far from home and the defendant's molestation of them was less likely to be detected by his religious superiors, who as we know had suspected him for many years of being a child molester yet had taken no effective steps to protect young boys from him.

The courts have had trouble dealing with cases in which the travel prosecuted under section 2423(b) may have had dual purposes, only one of which was to have sex with minors. The statute says "the" purpose must be sex rather than "a" purpose, but in United States v. Vang, 128 F.3d 1065, 1068 (7th Cir.1997), we approveda jury instruction which said that sex didn't have to be "the sole purpose" of the travel, though it did have to be "a dominant purpose, as opposed to an incidental one. A person may have more than one dominant purpose for traveling across a state line." To speak of multiple dominant purposes is not idiomatic, but given the evidence in Vang the precise wording of the instruction hardly mattered. Other cases, too, fasten on "dominant," but then define it down to mean "significant," "efficient and compelling," "predominat[ing]," "motivating," not "incidental," or not "an incident" to the defendant's purpose in traveling. E.g., United States v. Julian, 427 F.3d 471, 485 (7th Cir.2005); United States v. Hitt, supra, 473 F.3d at 152; United States v. Hayward, 359 F.3d 631, 637-38 (3d Cir.2004); United States v. Meacham, 115 F.3d 1488, 1495-96 (10th Cir.1997); United States v. Campbell, 49 F.3d 1079, 1083-84 (5th Cir.1995); United States v. Ellis, 935 F.2d 385, 390 (1st Cir.1991); United States v. Bennett, 364 F.2d 77, 79 (4th Cir.1966).

These verbal formulas are strained; the courts turn handsprings trying to define "dominant" as if it were a statutory term, see, e.g., United States v. Miller, 148 F.3d 207, 212-13 (2d Cir.1998), which it is not. It would be better to ask whether, had a sex motive not been present, the trip would not have taken place or would have differed substantially. See, e.g., United States v. Snow, supra, 507 F.2d at 24; United States v. Farley, 607 F.3d 1294, 1335 (11th Cir.2010); United States v. Meacham, supra, 115 F.3d at 1495-96.

We can place the blame for judicial preoccupation with the word "dominant" on the Supreme Court, which in Mortensen v. United States, 322 U.S. 369, 374, 64 S.Ct. 1037, 88 L.Ed. 1331 (1944), a Mann Act case, said that engaging in forbidden sexual activity "must be the dominant purpose of such interstate movement." That was dictum, because the sole purpose of the movement in question was to give several prostitutes an innocent vacation-that is, one in which they would not be plying their trade. There were not multiple purposes, of which one was sexual, so there was no occasion to identify a dominant purpose. But later cases, ignoring Justice Holmes's admonition to think things not words, have tended to treat "dominant purpose" as if it were the language of the Mann Act itself, and, later...