Monday, April 14, 2014

The Law Student, Character Evidence and Offering to Buy “Your Teenage Daughter"

As a judge who sits on the U.S. Court of Appeals for the 7th Circuit notes at the beginning of his opinion in this case, “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.’”  U.S. v. McMillan, 2014 WL 945212. The opinion then goes on to explain that

Chief [Mike] 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 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 [they] 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 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 McMillan had tried to find `Kellie’ on Facebook.

U.S. v. McMillan, supra.

The opinion goes on to explain that McMillan was

charged with one count of violating 18 U.S. Code § 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 [U.S. District Court Judge] who presided over the trial] sentenced him to 132 months' imprisonment, five years' supervised release, and a $500 fine. 

U.S. v. McMillan, supra.

McMillan made several arguments in appealing his conviction to the Court of Appeals, the first of which was that

he could not, as a matter of law, violate 18 U.S. Code § 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. 

U.S. v. McMillan, supra.  The court began its analysis of his first argument by noting that section 2422(b) states that

[w]hoever, 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.

U.S. v. McMillan, supra. As noted above, McMillan argued that the statute “does not criminalize communication between two adults.”  U.S. v. McMillan, supra.

The court noted, first, that six of the other U.S. Courts of Appeals “have concluded that the statute does extend to adult-to-adult communications that are designed to persuade the minor to commit the forbidden acts.” U.S. v. McMillan, supra.  But this Court of Appeals explained that even if those decisions did not exist, it would not read the statute as narrowly as McMillan did.  U.S. v. McMillan, supra.  It noted that 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” and 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.”  U.S. v. McMillan, supra. 

The Court of Appeals explained that 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.

U.S. v. McMillan, supra.  It also noted that

the fact that McMillan feared that `Mike’ was a police officer setting up a sting shows that he was well aware that he was treading on forbidden ground. We are satisfied that the statute gives adequately clear warning about what it prohibits.

U.S. v. McMillan, supra. 

The court then moved on to McMillan’s next argument:  “that the evidence presented at trial was insufficient to prove that he ultimately intended to persuade a minor to engage in sexual activity or to use an adult as an intermediary.”  U.S. v. McMillan, supra.  The Court of Appeals did not agree:

Most of the evidence from the email exchanges between McMillan and Andrews shows McMillan trying to get the `father’ to agree to allow his daughter to engage in sexual activity with McMillan. McMillan states his intentions differently from time to time, ranging from a direct `how much to f* *k your daughter’ to `I'm not looking for anything bad, maybe someone to hang out with.’ Even if these communications look more like a negotiation with the father, however, there are others on which the jury could have relied.

The most damning is when McMillan emails `Maybe she'd like to see a pic of my cock.’ The jury may have understood this as McMillan's (misguided) effort to entice the girl directly with the picture. On another occasion, McMillan asks `Mike’ in an email if there is `[a]ny chance you can let me talk to your daughter directly, maybe she can email me.’ This, the jury could have thought, was an attempt to get the father to permit McMillan to entice the girl. Finally, there is an email in which McMillan asks `Mike’ `have you talked to her about this yet?’ These examples, which we do not intend to be exhaustive, show that the evidence was sufficient to support the jury's verdict.

U.S. v. McMillan, supra. 

The Court of Appeals then took up what it called

the most troubling part of this case:  the district court's decision to admit evidence under Federal Rule of Evidence 404(b) of a simultaneous email exchange that McMillan was having with `Kellie,’ who was in reality another fictional person portrayed by Andrews. The evidence showed that McMillan exchanged several sexually explicit messages with `Kellie.’

U.S. v. McMillan, supra.  It began its analysis of this issue by noting that

[w]e review decisions to admit evidence for abuse of discretion. See U.S. v. Knope, 655 F.3d 647 (U.S. Court of Appeals for the 7th Circuit 2011). Even if we conclude the district court erred in admitting or excluding certain evidence, however, we must still ask whether the error was harmless -- that is, if it affected the defendant's substantial rights. See Federal Rules of Criminal Procedure 52(a).

U.S. v. McMillan, supra. 

The Court of Appeals then explained that

Federal Rule of Evidence 404 addresses the subject of character evidence. Subpart (a) of the rule generally prohibits the admission of character evidence `to prove that on a particular occasion the person acted in accordance with the character or trait’ -- in other words, to show propensity. But subpart (b)(2) operates as an exception to the general rule of exclusion; it offers the following list of permitted uses of the character evidence:

`This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.’

The court then noted that “for many years,” it has used a “four-part test” that is “designed to screen evidence that should be admitted under Rule 404(b) from that which should stay out.” U.S. v. McMillan, supra.  Under the test, the prosecution must show that

(1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

U.S. v. McMillan, supra (quoting U.S. v. Chambers, 642 F.3d 588 (U.S. Court of Appeals for the 7th Circuit 2011)).

The court then noted that McMillan claimed the “Kellie” evidence violated the

first and fourth parts of the test -- in other words, it was relevant only to propensity (he says), and its prejudicial effect outweighed its probative value in any event. The latter point, which is captured in the fourth part of the traditional test, essentially repeats the independent requirements of Federal Rule of Evidence 403.

The record, however, does not support McMillan's points. It shows instead that the `Kellie’ evidence was directly relevant to issues McMillan put before the jury. In his opening argument, McMillan's trial counsel stated that `Harry will tell you why he placed the ad. And ladies and gentlemen, why he placed the ad is what this case is all about.’

Counsel continued, `Harry will tell you in his own words that he did this with the intent that he might have the opportunity to confront someone who would facilitate a sex crime against a minor in order to get his questions answered.’ McMillan's reason for undertaking this project, counsel said, was to gain a better understanding of child molestation, because McMillan himself had been molested when he was young. Counsel later reiterated that `Harry was also role-playing while he engaged in conversations with Officer Andrews.’

The `Kellie’ emails directly address McMillan's reason for placing the craigslist ad. McMillan said he did it to catch a molester, but the `Kellie’ emails cannot be explained that way. In them, McMillan thought he was dealing directly with a minor, and his intent to arrange a sexual encounter is unmistakable. This was a far cry from propensity evidence; it was evidence of a course of action in which McMillan was engaged at precisely the same time as his emails with `Mike.’ . . . [O]ne could say that the element the government was trying to prove was intent, and that the `Kellie’ emails were relevant to that issue under the standards set forth in Federal Rule of Evidence 401.

U.S. v. McMillan, supra. 

The court then explained that the analysis above

takes us to Rule 403 (or part four of the traditional test), which permits the court to `exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice. . . .’ Whether that concept appears as the fourth element of the test for Rule 404(b) evidence, or it stands on its own, makes little difference for McMillan.

Either way, the district court should make the assessment that Rule 403 calls for. In this case, unfortunately, the district court did not formally do so. We have urged district courts to make their findings explicit, especially when evidence is as sensitive as the `Kellie’ emails are. . . .Nonetheless, accepting for the sake of argument that the district court erred here by skipping over that step too quickly, we must still consider whether any such error was harmless.

U.S. v. McMillan, supra. 

The Court of Appeals then found that, given the

limited number of `Kellie’ emails the government used and the directness of their relevance, we cannot say that it is clear that the district court would have opted for exclusion had it looked more carefully at Rule 403. Indeed, our prediction is the opposite: the `Kellie’ emails refuted McMillan's proffered justification for his actions, and so even though they are prejudicial, the balance tips decisively for admission.

The government did not get carried away with this evidence, as it has done in some other cases. . . . In short, although the district court should have weighed the probative value of the `Kellie’ evidence against its prejudicial effect, its failure to do so in the circumstances of this case was harmless. These considerations also assure us that the admission of the `Kellie’ evidence did not violate McMillan's due process right to a fair trial.

U.S. v. McMillan, supra. 

For these and other reasons, the Court of Appeals affirmed McMillan’s conviction and sentence.  U.S. v. McMillan, supra. 

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