United States v. McMillan, 12–1348.

• Decision Date: 12 March 2014
• Docket Number: No. 12–1348.,12–1348.
• Citation: 744 F.3d 1033
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Harry William McMILLAN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

744 F.3d 1033

UNITED STATES of America, Plaintiff–Appellee,

v.Harry William McMILLAN, Defendant–Appellant.

No. 12–1348.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 27, 2013.

Decided March 12, 2014.

George A. Norwood, Attorney, Office of the United States Attorney, Benton, IL, for Plaintiff–Appellee.

Seth M. Lahn, Attorney, Indiana University Maurer School of Law, Bloomington, IN, for Defendant–Appellant.

Before WOOD, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.

WOOD, Chief Judge.

Harry McMillan was a second-year law student at the Southern Illinois University School of Law when he posted an ad on craigslist entitled “sell me your teenage daughter.” The ad went on to solicit sexual acts for pay. He was caught when then-investigator (now Chief) Mike Andrews of the Benton, Illinois, police department spotted the ad while working undercover online. McMillan was charged with one count of violating 18 U.S.C. § 2422(b), which prohibits (among other things) knowingly persuading or enticing a person under the age of 18 to engage in criminal sexual activity. He was convicted after a three-day jury trial. The court sentenced him to 132 months' imprisonment, five years' supervised release, and a $500 fine. On appeal, McMillan contends that the evidence was insufficient to support his conviction and that the court erred in admitting certain evidence. While we find that the district court erred by failing to evaluate some of the evidence under Federal Rule of Evidence 403, we are satisfied that any error was harmless. We therefore affirm McMillan's conviction.

I

Chief Andrews is a member of the Illinois Attorney General's Task Force on Internet Crimes Against Children, and of the U.S. Secret Service's Southern Illinois Cyber Crimes Task Force. In that capacity, he was trained how to catch people who attempt to use the internet to exploit minors sexually. When Andrews saw McMillan's ad, he responded in the guise of “Mike,” a father with a teenage daughter who was willing to engage in sex. Over the next two days, McMillan and Andrews exchanged a number of emails, in which McMillan explored such topics as price, the possibility of a threesome, the availability of nude pictures, the location for a tryst, and the use of condoms. McMillan's emails showed that he was worried that “Mike” might be a police officer, and at one point he wrote to Mike that “i don't want to go to jail either.”

A couple of days into the exchange, “Mike” and McMillan agreed that “Mike,” McMillan, and the daughter would meet at a local movie theater. (The role of the daughter was played by an adult female who works for a state agency.) The meeting took place as planned on September 22, 2010. As soon as Andrews and the “daughter” entered the theater, the “daughter” went to the restroom. Andrews and McMillan spoke to one another, and McMillan asked for nude pictures of the girl that Andrews had promised to bring. Andrews handed McMillan an envelope, and as McMillan was opening it, Andrews arrested him.

In connection with the arrest, Andrews searched McMillan and found two condoms in his front pocket, along with a receipt for them. Later that evening, the police searched McMillan's residence and recovered his laptop computer. The computer revealed that Andrews had also responded to McMillan's initial craigslist posting using a second persona: that of a 14–year–old girl named “Kellie.” McMillan questioned Kellie closely about her sexual experience, asking whether she was “real,” if she was a virgin, if she would have sex for money, what sexual acts she had performed, whether she had experienced orgasm, and so on. The laptop search also revealed that McMillan had tried to find “Kellie” on Facebook.

At trial, McMillan admitted that he posted the ad that initially attracted Andrews's attention, but he said that he did so in an attempt to locate a child molester whom he could confront. He had been a victim of sexual abuse as a child himself, and he said that he wanted to ask questions pertinent to his own experience. McMillan also presented testimony about communications between himself and someone called “Just Me,” supposedly a 20–year–old man. The two had never met in person, but the defense presented evidence that they had tentatively agreed to meet on September 22, the day of McMillan's arrest. McMillan testified that he purchased the condoms that Andrews found for purposes of his meeting with “Just Me” before he had made the arrangements to meet “Mike” at the theater. The jury was not persuaded: it convicted McMillan, and he has now appealed from that judgment.

II

McMillan raises several arguments on appeal. First, he contends that he could not, as a matter of law, violate 18 U.S.C. § 2422(b) by having contact only with the adult father of a teenage girl. In his view, the internet contact must be directly between the defendant and the underage person protected by the statute. In addition, he argues that even if communication between two adults falls within the statute, the prosecution here failed to show that he intended to persuade, induce, or entice the minor to engage in the prohibited acts. Finally, he raises two arguments in connection with the admission of the “Kellie” evidence: he asserts that the evidence was not admissible under Federal Rule of Evidence 404(b); and he contends that the admission of this evidence violated his due process right to a fair trial. We take up these points in turn.

A

Because McMillan's first argument raises a question of statutory interpretation, we begin with the text of section 2422(b):

(b) Whoever, using the mail or any facility or means of interstate or foreign commerce ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or 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 and imprisoned not less than 10 years or for life.

McMillan argues that this language covers only direct efforts by the perpetrator to persuade, induce, etc., the underage person, and thus that it does not criminalize communication between two adults.

Although this question is new to us, it has been examined by seven of our sister circuits. Six of them have concluded that the statute does extend to adult-to-adult communications that are designed to persuade the minor to commit the 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); and United States v. Murrell, 368 F.3d 1283 (11th Cir.2004). See also United States v. Laureys, 653 F.3d 27 (D.C.Cir.2011) (per curiam) (not plain error to instruct a jury that adult-to-adult communications are sufficient); United States v. Brooks, 60 M.J. 495 (C.A.A.F.2005) (version of § 2422(b) incorporated in the Uniform Code of Military Justice covers adult-to-adult communications). To say the least, therefore, McMillan faces an uphill battle to convince us to hold otherwise.

In fact, even if all of those cases did not exist, we would not be inclined to read the statute as narrowly as McMillan does. The statute prohibits not only the knowing persuasion (etc.) of the minor, but also attempts to persuade, induce, entice, or coerce the minor into the criminal sexual acts. One particularly effective way to persuade or entice a person to do something is to enlist the help of a trusted relative, friend, or associate. As the Second Circuit noted in Douglas, the essence of the crime is attempting to obtain the minor's assent, which could be done “for example, by persuading a minor's adult guardian to lead a child to participate in sexual activity.” 626 F.3d at 164. The Third Circuit took a similar approach in Nestor. It reasoned that even if the completed crime would require contact with a minor, the defendant was still guilty of attempt because he “took substantial steps calculated to put him into direct contact with a child so that he could carry out his clear intent to persuade, induce, entice, or coerce the child to engage in sexual activity.” 574 F.3d at 162. The Eighth Circuit added that the statute should not “exempt[ ] sexual predators who attempt to harm a child by exploiting the child's natural impulse to trust and obey her parents.” Spurlock, 495 F.3d at 1014.

The rationales of these decisions vary slightly, but one can discern three lines of thought. Some courts would permit conviction solely on the basis of an adult's attempt to persuade another adult to allow the defendant to engage in sexual conduct with a minor. See Caudill, Murrell. Others find the persuasion element satisfied because the defendant trades on the influence of a parent over a minor child, or because the parent exploits his or her ability to bring the child to a meeting place where the defendant could attempt directly to persuade her. See Douglas, Nestor. Finally, some courts require a more direct attempt to use the parent as an intermediary to convey the defendant's message to the child. See Spurlock, Berk.

The third of these possibilities strikes us as the narrowest interpretation. Because we think it describes McMillan's conduct well, we have no need to decide now whether either of the broader readings would also be consistent with the statutory language. The essence of this crime is the defendant's effect (or attempted effect) on the child's mind. Nothing in the statute requires the minor to be the direct recipient of the defendant's message, whether it comes in conversation, by telephone, by text, by email, or in some other way. Human intermediaries long predate the digital contacts that are so common in these cases, and they are still an effective way to convey information.

We see...