United States v. McGill

• Decision Date: 13 June 2014
• Docket Number: No. 12–3490.,12–3490.
• Citation: United States v. McGill, 754 F.3d 452 (7th Cir. 2014)
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Mark J. McGILL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

754 F.3d 452

UNITED STATES of America, Plaintiff–Appellee,

v.Mark J. McGILL, Defendant–Appellant.

No. 12–3490.

United States Court of Appeals, Seventh Circuit.

Argued May 21, 2013.

Decided June 13, 2014.

Tiffany J. McCormick, John F. Kness, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Heather L. Winslow, Chicago, IL, for Defendant–Appellant.

Before POSNER, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

By the government's account, Mark McGill spent most of his free time in his apartment and rarely socialized except with Jacob “Jake” Elliott.Elliott had befriended McGill in 2006 after they met through an acquaintance who shared their sexual attraction to young boys.It was Elliott who introduced McGill to child pornography, yet during their three-year friendship, he had never known McGill to give child pornography to anyone, not even when Elliott took him to a 2008 gathering arranged specifically for participants to swap child pornography.

Elliott, on the other hand, regularly attended these events and was using the Internet to distribute child pornography, including photos he took of himself sexually assaulting a young boy.Elliott was arrested in 2009 and, when offered hope of leniency, became an FBI informant.He targeted McGill, who, after weeks of pestering, allowed Elliott to bring a USB flash drive to his apartment to copy child pornography from his computer.For this indulgence McGill was charged with distributing child pornography in addition to possession.See18 U.S.C. § 2252A(a)(2), (a)(5)(B).At trial he sought to raise entrapment as a defense to the distribution count, but prosecutors convinced the judge not to instruct the jury on that defense.McGill was found guilty of both crimes, and on appeal he argues that refusing to give an entrapment instruction was reversible error.We agree with him.

I.

The question before us is whether a rational jury could have found in favor of McGill on the issue of entrapment.In answering that inquiry, we look at the trial evidence in the light most favorable to McGill.SeeUnited States v. Pillado,656 F.3d 754, 758(7th Cir.2011);United States v. Díaz–Maldonado,727 F.3d 130, 136(1st Cir.2013);United States v. Theagene,565 F.3d 911, 917–18(5th Cir.2009);United States v. Glover,153 F.3d 749, 752(D.C.Cir.1998).

The FBI had executed a search warrant at Elliott's residence in June 2009 and found thousands of images of child pornography.Those images include Elliott's photos of himself abusing a young boy.When Elliott was told (quite accurately) that life imprisonment was a genuine possibility, he agreed to help investigators gather evidence against fellow members of “boylovers,” a group interested in child pornography featuring young boys.

Elliott's cooperation, which mostly involved meeting or telephoning suspects, led to the arrests of several men, including McGill, then 24 years old.Before trial McGill notified prosecutors that he intended to raise an entrapment defense, though only on the distribution count.The government responded by moving in limine to prevent McGill from arguing entrapment or eliciting evidence supporting that affirmative defense.The district court denied the government's motion but reserved for trial a decision whether to instruct the jury on entrapment.

At trial Elliott was the government's star witness.He testified that he and McGill belonged to “boylovers,” whose members mostly interacted online but occasionally met in person.Elliott conceded, however, that he hadn't mentioned McGill when the FBI first asked him to name others in the group.For some time the two had been socializing in person at least twice monthly, yet McGill's name as a possible target did not surface until, by chance, he telephoned Elliott during a June 2009 meeting with agents.

After that the investigation of McGill began in earnest.Over the next three weeks, Elliott repeatedly telephoned him probing his activities and asking for child pornography.In the first of these fifteen recorded calls, McGill disclaimed any interest in acquiring more child pornography and said he felt uncomfortable even discussing the subject of child pornography with anyone but Elliott.McGill proposed that they simply “hang out,” but Elliott steered the conversation back to child pornography.He said that fear of being caught had led him to discard his stash, which now he wanted to replace.Another “boylover,” Elliott prompted, already had promised to provide copies of his files.McGill said he possibly could help, though he quickly added that the other member's collection likely was much larger.As this conversation wound down, McGill repeated that Elliott was the only person he trusted to converse with about child pornography.

McGill's unease around other people, even other “boylovers,” is evident throughout the recordings.On one occasion Elliott left a message proposing that the group meet; McGill did not respond, and when Elliott called again pushing for a gathering, McGill balked.In particular he opposed Elliott's plan to bring along someone new.McGill voiced reluctance to mingle with unfamiliar faces, and although he finally agreed to tag along, he later canceled and went camping.

Elliott reacted by calling and pressuring McGill to attend a “boylovers” meeting.The group should assemble—ideally, he suggested, at McGill's apartment.McGill rebuffed the idea, saying he was uncomfortable hosting anyone but Elliott.McGill suggested that just the two of them meet somewhere for a beer or to play frisbee golf.Elliott countered that he first wanted to stop by McGill's apartment with a flash drive and copy the child pornography on his computer.McGill relented.

Yet when that day arrived, McGill called to cancel, saying he was sick.Elliott, perhaps thinking he was lying, pushed to stop by anyway.McGill refused.At Elliott's prodding, though, he agreed to call later in the day if he felt better.When McGill did not call, Elliott did.McGill acquiesced to the visit, and Elliott brought along a flash drive that they used to copy McGill's collection of child pornography.

In the days after, Elliott continued calling McGill urging him to attend a party(actually, an FBI sting) with others interested in child pornography.McGill rejected the invitation.During one telephone conversation, he elaborated on his social anxiety and said that being with more than a couple of people makes him uncomfortable.Even Elliott's visit, he added, had caused him to experience a near panic attack.This information did not surprise Elliott; at trial he conceded knowing that McGill was a “loner” who regularly conversed with him but no one else outside of family.

Elliott's work to ensnare McGill yielded hours of recorded conversations devoted mostly to subjects other than child pornography.As Elliott conceded at trial, the two discussed topics ranging from music and politics to the supernatural and roommate troubles.He also admitted that McGill wasn't the one who turned their conversations to child pornography.Elliott's objective, he conceded, was persuading McGill to distribute child pornography.

The district court, after hearing this evidence, refused McGill's request to instruct the jury on his defense of entrapment to the distribution count.The court accepted McGill's argument that the government had not proved he was predisposed to distribute child pornography.On the other hand, the court reasoned, neither was there evidence that McGill was induced to give Elliott copies of the files on his computer.The court characterized the pressure exerted by Elliott as “pretty nil” and “nothing out of the ordinary.”McGill had been “willing to do this for Mr. Elliott,”the court added, though “not for anybody else.”After the jury returned guilty verdicts, McGill moved for a new trial on the ground that withholding the entrapment instruction deprived him of a fair trial.That motion was denied.

McGill's act of sharing his files with Elliott increased the high end of his guidelines imprisonment range by more than 6 years, and his conviction for distribution subjected him to a 5–year statutory minimum.See18 U.S.C. § 2252A(b)(1).Under U.S.S.G. § 2G2.2, which applies to convictions for both possession and distribution, McGill would have received upward adjustments of 2 levels because children depicted were younger than 12, id.§ 2G2.2(b)(2); 4 levels because some images depict violence, id.§ 2G2.2(b)(4); 2 levels because a computer was used, id.§ 2G2.2(b)(6); and 5 levels because of the large number of images, id.§ 2G2.2(b)(7)(D).The base offense level for distribution, however, is 22 rather than 18. Id.§ 2G2.2(a).McGill had no criminal history, so sharing his child pornography with Elliott increased his guidelines exposure from a range of 108 to 135 months (Total Offense Level 31 x Criminal History Category I) to a range of 168 to 210 months (Total Offense Level 35 ¹ x Criminal History Category I).Had McGill pleaded guilty just to possession, as it seems he was willing to do, his imprisonment range likely would have dropped to 78 to 97 months (Total Offense Level 28 x Criminal History Category I).

The prosecutor insisted that it was McGill's idea to share his child pornography with Elliott, not Elliott's idea.Thus, the prosecutor argued, a prison sentence within the guidelines range would be appropriate.McGill's lawyer countered that the statutory minimum would be adequate punishment.Defense counsel spoke only briefly and suggested that the district court would benefit more from hearing directly from McGill, who before sentencing had submitted to a psychosexual evaluation.The psychologist concluded, in part, that from a young age McGill had become fixated on sexual activity initiated by another boy who was a couple of years older than he was.The psychologist had found McGill to be remorseful and believed his explanation that he...