In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2539
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
W ILLIAM A LLEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 238—Charles P. Kocoras, Judge.
A RGUED A PRIL 5, 2010—D ECIDED M AY 25, 2010
Before E ASTERBROOK, Chief Judge, and B AUER and
W OOD , Circuit Judges.
B AUER, Circuit Judge. William Allen appeals his con-
viction for advertising, transporting, and possessing child
pornography in violation of 18 U.S.C. §§ 2251(d)(1)(A),
2252A(a)(1), and 2252A(a)(5)(B). He claims that the
district court erred by denying his for-cause challenge to
a prospective juror and by admitting into evidence por-
tions of a chat log where he claimed to have com-
2 No. 09-2539
mitted other crimes. We have reviewed the district
court’s rulings for an abuse of discretion. Finding no
prejudicial error, we affirm.
I. BACKGROUND
Undercover FBI agent Kenneth Jensen logged into a
chatroom and observed an advertisement for a file
server, operated by someone calling himself “kidbot,” that
allowed people to trade child pornography with kidbot.
Agent Jensen connected to kidbot’s server, uploaded
what was supposed to be an image of child pornography
so that he could gain credit to download, and pro-
ceeded to download forty-two files before getting cut off,
ostensibly because the image he had uploaded for credit
was from the Hubble telescope, not child pornography.
Three of the files he downloaded from kidbot showed
a pre-pubescent girl engaging in sexual activity with
an adult male.
Agents executed a warrant to search the home of
William Allen’s mother, the AT&T subscriber to whom
kidbot’s Internet Protocol address had been dynamically
registered. They found Allen, who was twenty-one years
old and living with his mother and siblings, alone in
his bedroom with a desktop computer and other storage
devices containing more than one thousand images of
child pornography. They also discovered a log file on the
desktop identifying the desktop as the file server to
which Agent Jensen had connected, and chat logs
where someone identifying himself as “William” and as
a “21-year old male from Illinois” described how he
No. 09-2539 3
used computers and chatrooms to trade child pornogra-
phy. In another chat log the agents discovered, Allen
claimed to have molested minor children.
Allen was indicted for advertising, transporting, and
possessing child pornography. During jury selection,
prospective jurors completed a written questionnaire
before appearing in court. The questionnaire asked
whether anything would make it difficult for a prospec-
tive juror to be fair, to which one prospective juror
replied “yes” because of an incident in which a man
had attempted to kidnap her then six-year-old, now
grown daughter. The judge then asked the prospective
juror personally whether “that experience would some-
how prejudice you against the defendant in this case?”
The prospective juror replied, “Yes.” App. A-3 at 139.
The judge then instructed her that “both sides are
entitled to fairness and, actually, a clean slate in your
mind, so that whatever exists in your past does not
carry over and influence the decision in this case,” and
asked her once more whether she could be open-minded,
perhaps set the experience aside, and give Allen the
presumption of innocence. She replied that she could.
App. A-3 at 140.
The judge then allowed Allen’s attorney to perform
follow-up questioning. He brought up the questionnaire
and again asked the prospective juror whether “the nature
of the charges alone would make it difficult for you
to be fair to both parties.” Again, she replied, “Yes,”
indicating that she didn’t know whether she would start
the case by giving Allen the presumption of innocence.
App. A-3 at 141-42.
4 No. 09-2539
The judge again instructed her, “There is not anything
wrong with having an impact, but it is whether, just the
nature of the charges, you find so offensive that you will
not give the guy the benefit of the doubt?” She replied,
“I would give him the benefit of the doubt until every-
thing is presented, yes.” She was questioned no further.
App. A-3 at 142.
Allen had used all of his peremptory challenges so he
objected that the prospective juror should be stricken
for cause. The judge disagreed and allowed her to be
seated as the twelfth member of the jury.
The jury found Allen guilty and the district court sen-
tenced him to thirty years in prison. Allen does not
argue that thirty years in prison for a twenty-one-year-
old first-time offender who never left his mother’s
home is constitutionally excessive. Cf. Graham v. Florida,
No. 08-7412 (U.S. May 17, 2010) (vacating a term-of-years
sentence as categorically unconstitutional); Solem v. Helm,
463 U.S. 277 (1983) (vacating a term-of-years sentence
because it was unconstitutional as applied to the facts
of the case). Rather, he limits his appeal to the district
court’s seating of the prospective juror and to the admis-
sion into evidence of the chat log portions where
he claimed to have molested minors.
II. DISCUSSION
A. Denial of For-Cause Challenge to Prospective Juror
We review Allen’s claim that the district court errone-
ously denied his for-cause challenge for an abuse of
No. 09-2539 5
discretion. See, e.g., Thompson v. Altheimer & Gray, 248
F.3d 621, 624-25 (7th Cir. 2001); United States v. Nelson,
277 F.3d 164, 201 (2d Cir. 2002). In reviewing denials of
challenges for cause, we “accord great deference to the
judgment of the experienced trial judge based on his
unique opportunity to assess the credibility of the jurors
during voir dire examination, as well as their demeanor
throughout the course of the trial.” United States v.
Nururdin, 8 F.3d 1187, 1190 (7th Cir. 1993) (quoting
United States v. Barnes, 909 F.2d 1059, 1070-71 (7th Cir.
1990)); accord Wainwright v. Witt, 469 U.S. 412, 428 (1985);
see also Thompson v. Keohane, 516 U.S. 99, 111 (1995) (ac-
cording “special deference”); Nelson, 277 F.3d at 201-02
(“There are few aspects of a jury trial where we would
be less inclined to disturb a trial judge’s exercise of dis-
cretion, absent clear abuse, than in ruling on challenges
for cause in the empaneling of a jury.”) (quoting United
States v. Ploof, 464 F.2d 116, 118 n.4 (2d Cir. 1972)).
The Constitution guarantees criminal defendants “due
process of law” and the right to “an impartial jury.” U.S.
Const. amends V, VI. These mandates are satisfied, when
seating a prospective juror despite a party’s for-cause
challenge, if the prospective juror has given final, unequiv-
ocal assurances, deemed credible by the judge, that for
purposes of deciding the case, she can “set aside any
opinion [she] might hold,” Patton v. Yount, 467 U.S. 1025,
1036 (1984), “relinquish her prior beliefs,” Thompson, 248
F.3d at 626, or “lay aside her biases or her prejudicial
personal experiences,” United States v. Gonzalez, 214
F.3d 1109, 1114 (9th Cir. 2000). See Thompson, 248 F.3d at
626 (collecting cases).
6 No. 09-2539
The district court was within its discretion to find that
the prospective juror gave final, unequivocal, and credible
assurances that she could set aside any bias she might
have stemming from the kidnapping attempt on her
daughter and decide the case on the evidence, for
three reasons.
First, the unrelatedness of Allen’s case and of the kid-
napping attempt suggest that any bias was minimal
compared with other cases in which the trial judge deter-
mined the juror’s ability to overcome bias. In Thompson,
where the ultimate issue was the spuriousness of the
employee’s claim, the prospective juror manifested a
belief, based on his experience as an employer, “that
some claims against employers are spurious.” Thompson,
248 F.3d at 626. The relationship between the case’s
ultimate issue and juror’s prior experience was precise
coincidence, thus forming a strong bias or predisposi-
tion to find against a certain party. See also Gonzalez, 214
F.3d at 1112 (finding implied bias where the juror
“had some personal experience that is similar or
identical to the fact pattern at issue”).
But here the prospective juror’s prior experience was
wholly unrelated to whether Allen committed the crimes
for which he was indicted, much less any specific eviden-
tiary issues such as Allen’s state of mind or the identity
of kidbot. The prospective juror’s predisposition in this
case—having personally experienced the attempted
molestation of her daughter and the effect it must have
had on her daughter, herself, and her entire family—was
to find those who commit crimes against children par-
No. 09-2539 7
ticularly heinous. This belief has nothing to do
with whether any particular defendant is guilty of com-
mitting crimes against children. Moreover, the crime
here involved child pornography, not kidnapping. As the
prospective juror acknowledged, “this crime has nothing
to do with that crime.” App. A-3 at 140. Neither at
voir dire nor on appeal has Allen’s counsel been able to
explain how the prospective juror’s experience related
directly to the issues in this trial in such a way that the
district court was beyond the bounds of its discretion to
find the prospective juror able to weigh the evidence
impartially. For this reason, we give particular deference
to the district court’s finding that the prospective juror
would “give due weight to the evidence.” Thompson,
248 F.3d at 626.
Second, the prospective juror stated finally that she
would “suspend judgment until she ha[s] heard all the
evidence,” id., when she informed the court in her last
statement during voir dire that she “would give him the
benefit of the doubt until everything is presented.” She
told the judge what she would do, not that she would
merely “try,” Gonzalez, 214 F.3d at 1111, and we do not
find this statement equivocal simply because the ques-
tion to which it responded was preceded by the judge
saying that “[t]here is not anything wrong with [the
kidnapping attempt] having an impact.” Any impact of
the kidnapping attempt, as we have said, went to the
prospective juror’s predisposition to find certain crim-
inals heinous, not to find certain people criminals, and
in any event was related only tangentially to Allen’s
crimes. Nor, on this cold record, will we overturn the
8 No. 09-2539
determination, by the sole judge who was present, that the
prospective juror’s final, unequivocal assurance was
credible. Prior equivocating or wavering is hardly
dispositive in assessing credibility, as “[j]urors . . .
cannot be expected invariably to express themselves . . .
consistently.” Patton, 467 U.S. at 1039. Indeed, other
factors may indicate which of a prospective juror’s two
opposed sets of statements is more credible, such as
which was “least influenced by leading.” Id. Here
the judge found that any statements indicating bias
were a result of Allen’s counsel “pushing her. You
pushed her in another direction.” App. A-3 at 143. Fur-
thermore, the paper record does not reveal the relative
pushiness of the prospective juror’s questioners. Nor
does it reveal on which of her opposing sets of statements
the prospective juror varied her emphasis, in terms of
volume, inflection, or demeanor. A district court’s
findings concerning actual bias are “based upon determi-
nations of demeanor and credibility that are peculiarly
within a trial judge’s province.” Wainwright v. Witt, 469
U.S. 412, 428 (1985). Because appellate judges are absent
from voir dire, when a prospective juror fails to express
herself “carefully or even consistently. . . it is [the trial]
judge who is best situated to determine competency to
serve impartially.” Patton, 467 U.S. at 1039.
Finally, the trial judge was in the best position to gauge
the prospective juror’s ability to “follow[] [his] instruc-
tions.” Thompson, 248 F.3d at 626. Both times the judge
instructed the prospective juror on the burden of proof, he
elicited a response indicating that she would presume
Allen innocent. Moreover, the paper record does not
No. 09-2539 9
reveal the relative confidence or tentativeness of these
responses, which only the trial judge was able to examine.
We do not doubt that the trial judge’s questioning of the
prospective juror could have been more explicit in deter-
mining whether she would be able to “set aside any
opinion [she] might hold,” Patton, 467 U.S. at 1036, “relin-
quish her prior beliefs,” Thompson, 248 F.3d at 626, or “lay
aside her biases or her prejudicial personal experiences.”
Gonzalez, 214 F.3d at 1114. Nevertheless—given the rela-
tively minimal bias the prospective juror must have
had toward finding this particular defendant guilty, her
final and unequivocal statement that she would give
Allen the benefit of the doubt until the close of trial,
and her demonstrated ability to follow the judge’s instruc-
tions—we hold that the district court was within
its discretion to find that the prospective juror’s prior
experience would not impede her ability to decide the
case fairly. So we find no violation of Allen’s rights to
due process and to an impartial jury.
B. Admission of Chat Log Portions
We move to the admission of the chat log portions where
Allen claimed to have molested minors. Even were it
error, under Federal Rule of Evidence 403, for the district
court to admit them, the error was harmless because
the government presented plenty of other evidence cumu-
lative of the proper purposes for which they otherwise
may have been admitted—to prove identity, knowledge,
and intent. Fed. R. Evid. 404(b); see also United States
v. Sebolt, 460 F.3d 910, 917 (7th Cir. 2006).
10 No. 09-2539
To prove identity, for example, the government found
a plethora of child pornography on Allen’s desktop
computer and elsewhere in his room, a log file on the
desktop indicating it had been used to transport child
pornography to Agent Jensen, explicit advertisements
posted by Allen, other chat log portions where Allen
discussed trading child pornography, and an abundance
of information freely available online linking Allen’s
identity to the various nicknames he used when
engaging in these chats. FBI agents testified to these
items at trial and some were admitted into evidence
physically.
The government also presented other evidence to prove
Allen’s knowledge and intent. For example, in other
chat log portions, Allen stated “nah im just trading under
age porn” or “yeah well I love all little boy porn.” Appel-
lant’s Br. at 25. And as Allen admits, this evidence was
“equally capable of proving” knowledge and intent. Id.
Moreover, even were there a remaining harmful effect of
admitting Allen’s discussion of separate crimes, it was
additionally limited when the judge gave an instruction
specifically admonishing the jury to consider “evidence
of acts of the defendant other than those charged in the
indictment . . . only on the questions of the identity of the
defendant as the individual who committed the charged
acts; and, motive, intent, preparation, knowledge and
absence of mistake or accident.” Appellee’s Br. at 25
(quoting Tr. at 469).
For these reasons, we need not decide whether the
danger of unfair prejudice or the needless presentation
No. 09-2539 11
of cumulative evidence substantially outweighed the
chat log portion’s probative value. Even if they did, the
prosecution’s case would not have been “significantly less
persuasive had the improper evidence been excluded.”
United States v. Cooper, 591 F.3d 582, 590 (7th Cir. 2010)
(citations omitted).
III. CONCLUSION
Allen’s claim that the district court improperly denied
his for-cause challenge to a prospective juror fails
because he provides no argument to convince us that the
district court abused its discretion in finding that the
prospective juror would act impartially. His claim that
the district court improperly admitted his discussion of
molesting minors fails because even had it not been
admitted, the government presented a mountain of other
evidence to convict him. Therefore, we A FFIRM .
W OOD , Circuit Judge, dissenting. I regret that I cannot
join my colleagues’ assessment of the district court’s
decision to permit Juror 31 to sit on the jury that heard
William Allen’s case. As the court’s opinion recounts, over
and over again Juror 31 candidly admitted that it would
be difficult for her to be fair, given her vivid recollection
12 No. 09-2539
of the attempted kidnapping of her own daughter some
years earlier. Although the majority suggests that this
event was unrelated to the child pornography charges
involved in Allen’s case, ante at 6, Juror 31 herself saw a
close link between the two situations and properly
alerted the judge to her views. On its face, this reveals
the kind of inability to be neutral that has always been
understood to require the dismissal of a juror. See, e.g.,
Reynolds v. United States, 98 U.S. 145, 155 (1878) (removal
of a juror is appropriate if “a juror has formed an
opinion as to the issue to be tried”). If a court mistakenly
seats a juror who should have been struck for cause,
the error is a structural one, and a new trial is required.
Gray v. Mississippi, 481 U.S. 648 (1987).
Two aspects of the record reinforce my view that Allen
is entitled to a new trial under these principles. First,
Juror 31 never offered an unequivocal assertion of impar-
tiality. See Thompson v. Altheimer & Gray, 248 F.3d 621, 627
(7th Cir. 2001). The best she could manage was the state-
ment that she “would give [Allen] the benefit of the doubt
until everything is presented . . . .” “The benefit of the
doubt” is not the same thing as impartiality—why
should the government want a trial before a juror who
has put a thumb on the defendant’s side of the scale, if
that is what she meant—and if the juror’s statement is
understood as an attempt at promising to hold the gov-
ernment to its burden of persuasion, it states an
impermissibly lenient standard. “The benefit of the
doubt,” after all, is quite different from “proof beyond a
reasonable doubt.” In re Winship, 397 U.S. 358, 361-64
(1970). Second, Juror 31’s offer to give Allen the benefit of
No. 09-2539 13
the doubt occurred only after the court had misleadingly
told her that “there [was] not anything wrong with [the
kidnapping attempt] having an impact” on her perception
of Allen’s case. But there is everything wrong with that.
Her duty, as a juror, was to approach Allen’s case with-
out any predisposition. Allen has a right to a jury that
did not include people who might, because they consider
child abusers especially heinous, vote to convict Allen
just because the evidence showed that someone was in-
volved with child pornography.
For these reasons, I respectfully dissent.
5-25-10