United States v. Gillis
| Decision Date | 13 September 2019 |
| Docket Number | No. 16-16482,16-16482 |
| Citation | 938 F.3d 1181 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Dane GILLIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Holly Lynn Gershow, Peter J. Sholl, Michelle Thresher Taylor, U.S. Attorney's Office, Tampa, FL, Nicole M. Andrejko, Emily C.L. Chang, Karen L. Gable, U.S. Attorney's Office, Orlando, FL, Arthur Lee Bentley, III, Bradley Arant Boult Cummings, LLP, Tampa, FL, for Plaintiff-Appellee.
Adeel Bashir, Federal Public Defender's Office, Tampa, FL, Rosemary Cakmis, Donna Lee Elm, Karla Mariel Reyes, Federal Public Defender's Office, Orlando, FL, for Defendant-Appellant.
Before JILL PRYOR, ANDERSON, and HULL, Circuit Judges.
After a jury trial, Defendant Dane Gillis appeals his convictions for: (1) attempting to knowingly induce or entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b) (Count 1); (2) solicitation of another to commit the crime of federal kidnapping under 18 U.S.C. § 1201(a), in violation of 18 U.S.C. § 373 (Count 2); and (3) knowingly transmitting a communication containing a threat to kidnap, in violation of 18 U.S.C. § 875(c) (Count 3). On appeal, Gillis argues that (1) the government failed to present sufficient evidence to support his § 2422(b) conviction in Count 1, and (2) the district court deprived him of his constitutional right to present a defense by prohibiting the testimony of his proposed expert witnesses. Gillis also contends that his § 373 solicitation conviction in Count 2 must be vacated because § 1201(a) kidnapping does not categorically satisfy the use-of-force element in § 373.
After careful review of the record and the parties’ briefs, and with the benefit of oral argument, we affirm in part and reverse in part. We first recount the evidence and procedural history in this case.
The three charges arose from Gillis’s online communications with an undercover agent from September 1-16, 2015. These communications involved two separate intended victims: (1) M.O., Gillis’s coworker; and (2) the undercover agent’s fictional 11-year-old daughter.
In late August 2015, Gillis posted an ad on the Orlando, Florida, "personals" section of the website Craigslist under the "casual encounters" subsection. The ad stated:
On September 1, 2015, Gillis’s ad caught the attention of Special Agent Rodney Hyre, with the Federal Bureau of Investigation’s ("FBI") Violent Crimes Against Children Task Force. Agent Hyre was reviewing ads on Craigslist to identify individuals who might be soliciting sexual activity with children. Posing undercover as the father of an 11-year-old girl, Agent Hyre replied to Gillis’s ad. Agent Hyre identified himself as a "40 yo[ ] dad perv with 11 yo daughter" who was interested in meeting "like minding people."
Shortly thereafter, Gillis, who at the time was 58 years old, responded, "Tell me more ... i know a 40 yo that needs to be schooled." Gillis then sent Agent Hyre a picture of victim M.O. and asked "Any pics?" In response, Agent Hyre sent Gillis a photograph of his supposed daughter (actually a childhood photograph of a fellow law enforcement officer), with the message "sweet for 11. don’t you think." Over the next two and a half weeks, Gillis and Agent Hyre carried on a conversation in which they discussed (1) a plan to kidnap and rape Gillis’s coworker M.O., and (2) a plan for Gillis to meet and engage in sexual activity with Agent Hyre’s fictional 11-year-old daughter.
Regarding the kidnapping plan, Gillis told Agent Hyre that he was "looking to snag [M.O.] and use her a[s] a sex slave." During the course of the conversation, Gillis sent Hyre three more pictures of M.O. and explained that M.O. was his coworker, that she was "unwilling and unknowing," and that kidnapping her would require "some strategic planning ... manpower etc."
Gillis stated that the kidnapping would have to take place early in the morning, around 4:30 a.m., because of his and M.O.’s respective work schedules. Gillis asked Agent Hyre if he had any friends, specifically "someone with experience," that would be interested in assisting with the kidnapping plot. Gillis explained that they would "[n]eed help," "a van," and "a place to keep [M.O.] for at least 24 hours," and recommended that they "hood and[/]or blindfold her" and wear masks themselves. Gillis described the types of sexual acts he wanted to perform on M.O. and described her as "a goody 2 shoes flirt that NEEDS to be taught a lesson." Gillis told Agent Hyre that he was "open to any ‘ending’ scenario when it [comes] to her."
Regarding the minor daughter, Gillis told Agent Hyre early on in the conversation that he would "love to meet [Agent Hyre’s] girl" and asked when he could meet her. At one point during the conversation, Agent Hyre asked Gillis for clarification about whether Gillis was "interested in my 11 yo girl or just older," to which Gillis responded, "Right now im only interested in your 11 yo ... the other we can talk about." As their plans to meet progressed, Gillis asked Agent Hyre what types of sexual acts the daughter would be willing to perform. When Agent Hyre told Gillis that "[s]he will do whatever you say" and asked what Gillis would like to do to the girl, Gillis told Hyre that he would like to do "a little of everything," including oral sex and vaginal penetration.
Gillis and Hyre initially planned to meet on September 10, 2015, but Gillis backed out at the last minute. The following day, Agent Hyre reached out to Gillis again, and they resumed discussions about both the plan to kidnap M.O. and the plan for Gillis to have sex with Agent Hyre’s fictional daughter. Gillis explained that he backed out of the first meeting with Agent Hyre and the daughter because he was "a little nervous," having "[n]ever been with a young one" before, and was concerned that Agent Hyre might be setting him up. Agent Hyre reassured Gillis that he was not being set up, and they then planned a second rendezvous in which Gillis and Agent Hyre would meet first to "show we are real" and then Agent Hyre would take Gillis back to his house to meet the fictional daughter.
As they were planning this second meeting, Gillis asked Agent Hyre seven times for more pictures of the daughter and requested that Agent Hyre dress her in "a short skirt no underwear" for their meeting. When Agent Hyre sent Gillis a second picture, Gillis commented: "Looks [like] she has some tasty little titties ... is she still all smooth down below?" Ultimately, they arranged to meet at a Gander Mountain parking lot in Lake Mary, Florida—about an hour’s drive from Gillis’s home in Leesburg, Florida—on September 16, 2015.
On the day of this second planned meeting, Gillis drove to the Gander Mountain parking lot in Lake Mary. Another FBI agent posed as the 11-year-old’s father and waited in a tan Buick, while Agent Hyre and a third agent conducted surveillance from the other side of the parking lot. Gillis flashed his headlights, and the agent posing as the father tapped his brake lights. After approaching Gillis’s car and confirming his identity, the agent asked him, "Do you want to go to the house?" and Gillis answered, "Sure." The agents then arrested Gillis and advised him of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). Gillis waived his rights and agreed to talk to the agents.
In a post- Miranda interview, Gillis admitted: (1) that he had been emailing with the father of an 11-year-old girl; (2) that those conversations centered on his having sex with the daughter; and (3) that he had driven an hour from Leesburg for no other reason than to "have sex with the little girl." Gillis admitted that "for approximately the last two years" he had "fantasized about having sex with children." A subsequent search of Gillis’s computer revealed sexually suggestive photographs of prepubescent girls and his internet search history showed that, since 2011, Gillis repeatedly sought out pornographic images of preteen girls.
Regarding the plot to kidnap M.O., Gillis first told agents during his post- Miranda interview that her name was Jamie Johnson and gave a detailed story about how she had broken his heart. Gillis admitted he had been posting on Craigslist for the past couple of years and had 10 to 20 conversations with people about helping him to kidnap and hurt Jamie Johnson. When the agents confronted Gillis with the victim’s true name, Gillis admitted that M.O. was the person he had been sending pictures of and "talking about kidnapping and raping and possibly killing." Gillis explained that they were coworkers but had no romantic relationship. Gillis admitted that, two weeks prior, M.O. had rejected him and told him she was leaving the restaurant where they worked together and going to work at another restaurant.
Further investigation revealed that Gillis had been trying for months to find someone to help him kidnap and rape M.O. Between February and August 2015, without M.O.’s knowledge, Gillis engaged in sexually explicit communications about kidnapping and raping M.O. and sent photographs of M.O. to numerous Craigslist users. Additionally, around the time he was messaging Agent Hyre in September 2015, Gillis conducted several internet searches containing the words "rape" and "kidnap."
In a superseding indictment, a federal grand jury charged Gillis with: (1) attempting to knowingly induce or entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b) (Count 1); (2) solicitation of another to commit the crime of federal kidnapping under 18 U.S.C. § 1201(a), in violation of 18 U.S.C. § 373 (Count 2); and (3) knowingly transmitting a communication containing a threat to kidnap, in violation of 18 U.S.C. § 875(c) (Count 3). Gillis pled not guilty and ...
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