In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2824
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ANDALL JOSEPH K NOPE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:08-cr-199—Charles N. Clevert, Jr., Chief Judge.
A RGUED A PRIL 15, 2011—D ECIDED A UGUST 22, 2011
Before P OSNER and M ANION, Circuit Judges, and L EFKOW,
District Judge.
L EFKOW, District Judge. Randall Joseph Knope was
convicted of possession of child pornography and at-
tempting to persuade or entice a minor to engage in a
sexual act. Knope argues that the trial court committed
The Honorable Joan Humphrey Lefkow of the Northern
District of Illinois, sitting by designation.
2 No. 10-2824
reversible error by (1) denying his motion to suppress
statements to the police and evidence seized from his
home, (2) admitting evidence regarding his prior online
chats with individuals who purported to be minors, and
(3) denying certain requested jury instructions. We
affirm Knope’s conviction.
I. Facts
On June 28, 2008, Knope logged on to the adult Yahoo!
Romance, Wisconsin chat room using the screen
name “ilovethecock83.” He sent a private message to
“mariachickaletta.” Milwaukee Police Department Detec-
tive Doreen DuCharme was using that screen name and
the alias “Maria.” Knope wrote, “[W]anna show a guy
what its like to take it up the ass? ill get a strap-on to use.”
Maria responded, “Oh, my God, for real?” and Knope
replied, “Is that a yes?” Maria wrote back, “Yeah, that’s
cool with me.”
Knope then asked Maria for her “ASL,” or age, sex, and
location. Maria stated that she was fifteen years old,
female, and lived in Milwaukee. Knope responded,
“Really?” and asked her to send a photograph. Maria
shared two photos of a police officer taken at the age
of fourteen or fifteen. Knope then wrote, “When and
where can you meet?” Maria responded that she could
meet after 2:00 p.m. “[be]cause I’m baby-sitting for my
sisters right now.” Knope asked Maria where she lived
and then stated, “Once we hook up I can get us a room
somewhere if you’re cool with that.” Maria also asked
Knope how old he was. When Knope stated that he was
No. 10-2824 3
forty-one, 1 she wrote, “I can’t walk in with you. . . . There’s
no way me and you can walk in anywhere together and
act like we’re chilling then.” Knope told Maria, “We
can walk in separate.”
Knope then asked Maria several questions about her
clothing size so he could determine what size strap-on to
bring for her. Maria asked, “[D]oes it matter if I’m not
like that big or anything? I mean, I’m kind of a skinny
but I’m not a wimp.” Knope responded, “Think you can
wear a strap-on and fuck me like you’re a girl—a guy or
girl getting revenge on a guy for sticking his dick in her
ass?” Maria responded, “OMG, yes, I want to big
time.” Knope then asked Maria whether she had pre-
viously had anal sex and whether she enjoyed watching
pornography.
Knope also asked Maria if she had a web camera that
she could use. Maria wrote, “No, just a mic. . . . And
I got a phone. But I don’t got a cam. ‘Cause my mom
thinks my sis would use it. And she can’t chat.” Knope
wrote, “May I hear your voice PLS,” and asked for
Maria’s phone number “to call you when I’m near you
later.” DuCharme then spoke to Knope using a micro-
phone, adopting the voice and mannerisms of a
teenage girl.2 Knope provided written responses to
Maria’s questions. He wrote that he was six feet tall,
1
This may be a typo, as Knope later told DuCharme that he
was thirty-one years old.
2
DuCharme testified that she raised her voice by leaning
forward over a chair to compress her diaphragm.
4 No. 10-2824
about 275 pounds, and had “more of a muscular build.”
Maria asked, “[A]ll right, so is this even going to work
then?” Knope responded, “Yeah.”
Knope and Maria planned to meet that afternoon at a
Walgreens store on the south side of Milwaukee.
During the voice chat, Knope asked Maria how long she
could be away from home. She stated that she had to be
home by 11:00 p.m., which is the City of Milwaukee
curfew. Towards the end of the chat, Knope asked
Maria, “You excited?” Maria responded, “Yeah, this is
gonna rock. Way random. LOL.” Knope wrote, “Random
can be a lot of fun.” He then asked her to describe what
she would be wearing so he could find her easily.
Before Knope ended the chat, he wrote, “If I ask you to
prove you aint the cops can you?” Maria responded,
“Yeah.”
Later that day, Knope called Maria on her cell phone
and told her that he would arrive at the Walgreens in
about half an hour or forty-five minutes. He called twice
more while on his way. In the meantime, DuCharme
went to the Walgreens parking lot and waited for Knope
in an unmarked police car with Detective Richard
McQuown. When Knope arrived, Detectives DuCharme
and McQuown observed him park and walk into the
store. The officers arrested him while he was walking
back to his car. They recovered a strap-on dildo
from Knope’s car as well as a cell phone that had
DuCharme’s number saved as “Maria Chick.” It was
later determined that Knope had purchased condoms
at the Walgreens.
No. 10-2824 5
Knope was indicted for violations of 18 U.S.C.
§§ 2252(a)(4)(B) and 2422(b). A jury found Knope guilty
of both counts after a week-long trial.
II. Analysis
A. Motion to Suppress Statements and Evidence
Knope argues that the district court erred in admitting
(1) post-arrest statements he made to the detectives and
(2) computer equipment seized from his residence. A
magistrate judge heard Knope’s motion and issued a
report and recommendation that the motion be denied,
which the district court adopted in a separate written
opinion. Because the district court adopted the report
and recommendation, we review the magistrate judge’s
factual findings for clear error and her legal conclusions
de novo. United States v. Hendrix, 509 F.3d 362, 373 (7th
Cir. 2007). We give deference to the credibility deter-
minations of the court that had the opportunity to hear
the testimony and observe the demeanor of the wit-
nesses. Id.
1. Post-Arrest Statements
The evidence presented at the suppression hearing
showed that Knope began to talk immediately after the
officers approached him in the Walgreens parking lot.
He stated, “I’m so stupid. Curiosity killed the cat.” Knope
was then arrested and placed in the back seat of the
6 No. 10-2824
unmarked police car.3 DuCharme sat in the front seat,
which was not separated from the back seat by a cage.
Knope continued to talk to DuCharme while she set up
the recording equipment for their interview. Knope
stated he was upset and angry with himself, and
DuCharme initially told him, “All right. I can’t talk to
you about it until after my partner gets here.” Knope
responded, “I know, I know, I’m just I’m ready to cry
seriously. I can’t believe I even did it. I just . . . and
there’s no way. I’m going to get charged with it and
that’s all there is to it. . . . I can’t believe I did this.
I can’t.” DuCharme explained that she and McQuown
worked for the Milwaukee Police Department and
that they appreciated Knope’s cooperation with the
arrest. Knope continued, “When you know you’re
stupid, you know you’re stupid . . . you screwed up. You
should just realize you did something you should have
slapped yourself in the head for. Somebody else
shouldn’t have to.”
After McQuown joined her in the front seat of the car,
DuCharme told Knope that he had been arrested for
using a computer to facilitate a child sex crime. She
said that she would need to obtain preliminary informa-
tion and then asked Knope to state his first and last
name, age, date of birth, address, and phone number.
Knope stated that he was 31 years old and that he lived
at “109 Randolph” in Burlington, Wisconsin. He also
3
The car was outfitted with a recording device, and the jury
heard a recording of the entire interview at trial.
No. 10-2824 7
expressed concern about being detained at the police
station and repeatedly asked whether there was any way
to make the case “go away.” After DuCharme obtained
Knope’s information, she notified him of his Miranda
rights. The interview continued after Knope stated that
he was willing to answer questions.
Knope argues that the statements he made while he
was seated in the back of the unmarked police car were
admitted in error because they were the result of a custo-
dial interrogation. Under Miranda v. Arizona, 384 U.S. 436,
444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) and Rhode
Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d
297 (1980), the test for whether Knope was subject to
interrogation is “whether a reasonable objective
observer would have believed that the . . . question[]
claimed by [the defendant] to have been unlawful inter-
rogation [was] in fact ‘reasonably likely to elicit’ an in-
criminating response.” United States v. Abdulla, 294 F.3d
830, 834 (7th Cir. 2002) (quoting United States v. West-
brook, 125 F.3d 996, 1002 (7th Cir. 1997)). “Volunteered
statements of any kind are not barred by the Fifth Amend-
ment.” Miranda, 384 U.S. at 478. The focus of Knope’s
objection is the admission of biographical information
that was later used to execute a search of his residence.
Knope argues that the question “Where do you live?” was
a form of interrogation because his answer provided
the likely location of the computer that he had used for
the online chats. “[R]outine booking questions” asked
before Miranda warnings are given are not usually
grounds for suppression of a defendant’s statements
revealing his identity and residence. Pennsylvania v.
8 No. 10-2824
Muniz, 496 U.S. 582, 601, 110 S. Ct. 2638, 110 L. Ed. 2d 528
(1990) (questions reasonably related to the police’s ad-
ministrative concerns do not constitute interrogation
under Miranda); United States v. Edwards, 885 F.2d 377,
385 (7th Cir. 1989). Although a suspect’s home is a likely
place for this type of illicit activity, DuCharme did not
then know the location of the computer Knope used.
(It could have been at work or anywhere a laptop could
be linked to the Internet.) There is no evidence that
DuCharme was seeking an admission when she asked
where he lived. Knope cites no precedent where re-
vealing one’s place of residence during booking, thereby
identifying a place to search, was found sufficient to
invoke Miranda. Although we do not foreclose the possi-
bility of such a case, this is not it.
2. Computer Equipment
Knope argues that computer equipment seized from
his residence should be suppressed because it was the
fruit of an illegal search. During his interview with Detec-
tives DuCharme and McQuown, Knope stated that
there was a strap-on dildo in his car, that he had viewed
and downloaded child pornography on his home com-
puter, and that he had used his home computer to chat
online with Maria. DuCharme eventually asked Knope
for permission to go to his house and search his com-
puter. Knope said that he wanted to be present for
the search because there was “stuff” on his external hard
drive that he “didn’t have a chance to go through yet.”
DuCharme told Knope, “That’s the problem . . . you can’t
No. 10-2824 9
be [there].” Knope continued, “[T]here is probably stuff on
it. . . . And it’s in a separate folder . . . that needs to be
deleted. . . . [B]ut all I’m saying is I just . . . I want to make
this go away the best I can.” DuCharme responded,
“Listen. . . . It’s already there so whether you give me
permission I can go other ways and try to do it. I’m
asking for your permission.” Knope stated, “What’s done
is done,” and asked when his computers would be re-
turned to him. DuCharme explained that they would
not be returned if they contained contraband and con-
tinued to question Knope about the items he down-
loaded from the Internet.
As she spoke to Knope, DuCharme filled out the top of
a Milwaukee Police Department consent to search form.
The form stated that Knope gave consent for the search
of “[his] premises and all property found therein and
located at 105 Randolph” as well as his car, personal
computers, data storage devices, and cell phone.
DuCharme read the form aloud to Knope, who con-
firmed that he understood what the consent entailed.
DuCharme then handed the form to Knope to complete,
instructing him to “check off the boxes if you agree . . .
and then sign your name on the bottom.” She also
asked Knope additional questions about the items that
might be found in his car. During this exchange,
Knope asked, “When we get down there [to the police
station], [i]s it possible to have a lawyer there?” DuCharme
told him, “Sure. . . . You have a right to a lawyer, what-
ever you want.” Knope responded that he did not want
to “worm [his] way out of anything that’s done” and
that he knew that their conversation was recorded.
10 No. 10-2824
DuCharme told Knope the date, which he wrote on the
form, and then said, “Okay, Randy, just so you know
where I’m at now, because you’re asking for a lawyer
at this point, I can’t ask you any more questions. You
can go ahead and you can talk to me but you’ve
limited what I can do . . . .” DuCharme testified that
she decided to stop asking Knope questions “to be on
the safe side,” even though she was not sure whether
he was asking for a lawyer at that time or stating
that he wanted a lawyer to be present when he arrived
at the police station. She could not recall whether
Knope had already signed the consent form when he
invoked his right to an attorney.
After the interview, DuCharme and McQuown traveled
to Burlington to conduct the search. They stopped at the
Burlington Police Department on the way because they
wanted uniformed officers to be present when they
arrived at Knope’s residence. There they confirmed that
Knope lived at 109 Randolph Street. As they arrived,
DuCharme realized that she had written “105 Randolph”
on the top of Knope’s consent form. After reviewing
her notes, DuCharme concluded that 109 Randolph
was correct, as it was what she had initially written
down when she asked Knope for his address.
The detectives proceeded to 109 Randolph Street,
where they met Knope’s girlfriend and her mother, both
of whom lived with Knope. The detectives explained
that Knope had been arrested for a computer-related
crime and that he had consented to a search of his area
of the residence. The mother then showed the detectives
No. 10-2824 11
where Knope’s belongings were located. The detectives
recovered a DVD with child pornography images,
Knope’s laptop computer, and an external hard drive.
Before the DVD and laptop were searched, DuCharme
obtained a search warrant to examine the items that
had been seized.
Knope first argues that he was coerced into signing
the consent form when DuCharme told him “whether
you give me permission [to search the residence] I can go
other ways and try to do it.” The court looks to the
totality of the circumstances to determine whether
Knope’s consent was voluntary. Schneckloth v. Bustamonte,
412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).
The factors we consider include Knope’s age, education,
and intelligence, the length of his detention prior to
consent, whether the police repeatedly asked for consent,
whether physical coercion was used, and whether he
was in custody. United States v. Strache, 202 F.3d 980, 985
(7th Cir. 2000). An empty threat to obtain a search war-
rant may render consent involuntary, but if “the
expressed intention to obtain a warrant is genuine . . . and
not merely a pretext to induce submission, it does not
vitiate consent.” United States v. White, 979 F.2d 539, 542
(7th Cir. 1992); see also United States v. Hicks, 539 F.3d 566,
572 (7th Cir. 2008).
Here, Knope had admitted that he viewed and down-
loaded child pornography on his home computer and
that he had been using that computer when he engaged
in online chats with Maria. Therefore, DuCharme would
have had a legitimate belief that she could obtain a
12 No. 10-2824
warrant to search Knope’s residence. Moreover, the
record shows that DuCharme explained Knope’s rights
to him in a non-threatening manner and that he readily
consented to the search of his residence. The district
court did not err in concluding that Knope’s consent
was voluntary.
Knope also asserts that his consent was invalid be-
cause he signed the consent form after he invoked his
right to counsel. He cites Edwards v. Arizona, 451 U.S.
477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), where
the Supreme Court held that police cannot continue
an interrogation after the accused invokes his right to
counsel. Knope’s argument is foreclosed, however, by
this court’s holding that “a consent to search is not an
interrogation within the meaning of Miranda.” United
States v. Shlater, 85 F.3d 1251, 1256 (7th Cir. 1996);
United States v. LaGrone, 43 F.3d 332, 335 (7th Cir. 1994).
Indeed, we rejected nearly identical arguments in Shlater
and LaGrone. Knope’s consent was not invalid on these
grounds.
Finally, Knope argues that the consent form was not
valid because it contained the wrong address. There is
no question that Knope consented to the search of his
residence, that he told DuCharme that his address
was 109 Randolph Street, or that the Burlington Police De-
partment confirmed that Knope lived at that address.
DuCharme’s transcription error does not invalidate
No. 10-2824 13
Knope’s voluntary consent.4 For these reasons, the dis-
trict court correctly denied Knope’s motion to suppress.
B. Admission of Other Acts Evidence
1. The Evidence
The government moved before trial to introduce tran-
scripts of Knope’s other online chats and evidence re-
garding a prior investigation of Knope’s online activity.
Over Knope’s objection, the evidence was admitted to
show Knope’s motive, intent, and plan to commit the
crimes charged. The presentation of the other acts evi-
dence took up a substantial portion of a trial that
lasted four and a half days, excluding voir dire.
The chat transcripts show that between February 18,
2007 and July 5, 2007, Knope chatted with an individual
who identified herself as “westsideg_url” and purported
to be fifteen years old. Knope used the alias
“ilovethecock83,” the same alias that he used during
his chats with DuCharme. On February 18, 2007, Knope
sent a private message to “westsideg_url” that stated
“whatsup,” and then told her that he was “trying to
find someone to hang out with.” Knope asked
westsideg_url her age, which she claimed was fifteen,
and then asked if she could send a photograph of herself.
4
Based on this conclusion, we need not address whether the
other occupants of Knope’s residence validly consented to
the search of the basement area where Knope’s items were
located.
14 No. 10-2824
The requested photo could not be delivered to Knope’s
account. Nevertheless, Knope asked if she “would . . .
wanna hang out.” On March 15, Knope again initiated a
conversation by asking “whatsup.” When westsideg_url
responded “nothin u,” Knope wrote that he was “waiting
for a girl I know to show up so I can try to get her
preg since she wants to have a baby.” Knope told
westsideg_url that “they are lesbians and they want a
baby they asked if I could help.” He then asked, “[Y]ou
want one too?” When westsideg_url responded, “naw I’m
straight I don’t need any more babys,” Knope wrote, “last
time we talked you told me you were a virgin . . . we can
change that!” During this chat, Knope again asked if
westsideg_url would meet with him and wrote that he
wanted to “flirt back” at her in person. She responded
that he could go to jail because Knope was thirty and “im
15 remember.”
In later chats with westsideg_url, Knope wrote that he
was “excited” that he had impregnated one of his friends
and repeatedly asked westsideg_url whether she wanted
to lose her virginity to him and have him “fertilize” her
“eggs.” On July 5, westsideg_url asked Knope “y do u
wana a young girl.” He wrote that they are “more fun to
be with” and then asked westsideg_url whether she had
“any friends that wanna get preg” because he was “sure
[he could] hook them up.” Knope told westsideg_url to
give his screen name to her friends because “there is at
least one of your friends that probably would just . . . do
it.” Although Knope asked westsideg_url to meet with
him several times, there is no evidence that a meeting
occurred.
No. 10-2824 15
On May 9, 2007, Knope chatted with an individual who
used the screen name “spoiledbrat8705” and who pur-
ported to be a fifteen-year-old female from Milwaukee.
Knope again used the online alias “ilovethecock83” and
stated that he was thirty years old. Knope asked
spoiledbrat to send him a picture and told her that it was
“too bad you don’t have a nude” because she was “hot.”
Knope told spoiledbrat that he had been with younger
women “but not as young as you” and asked spoiledbrat
detailed questions about her prior sexual experiences.
Towards the end of the chat, Knope told spoiledbrat
that he was “having a hard time believing your not a bot5
and that your 15” because “there are too many pervs
that pretend to be young girls . . . not to mention police.”
Knope asked if he might be able to call spoiledbrat, but
she refused to give him her phone number.
Between April 28, 2007 and May 4, 2007, Knope chatted
with “baseballdude1991,” an individual who purported
to be a fifteen year old male. Knope used the alias
“ilovethecock83.” Knope and “baseballdude” discussed
various sexual fantasies in detail and discussed how they
might meet in a park to have sex. Knope also asked
“baseballdude” for a photo. The government submitted
a related chat, which took place on May 7, 2007,
between Knope and “paltry40.” Knope told paltry40
that he had been chatting with “some ass telling me he
was 15 and wants to hookup” and that the fifteen-year-old
5
DuCharme testified that a “bot” is a robotic program that
sends and receives chats.
16 No. 10-2824
claimed to be from Bonduel, Wisconsin. The government
argued that Knope was referring to baseballdude in
this comment because baseballdude had told Knope that
he was from Bonduel. In the chat with paltry40, Knope
wrote that the purported fifteen-year-old was “most
likely some guy faking to be a teen . . . or some desperate
cop trying to make himself a name.”
On February 16, 2008, Knope chatted with “gyrlpowur,”
who identified herself as a seventeen-year-old female.
Knope used the alias “sugar_daddy_looking_4_girl.” The
two exchanged photos and then Knope asked whether
gyrlpowur wanted to have a baby because he was “looking
for the near future.” Knope also asked gyrlpowur if she
was bothered by the fact that he was significantly older
than she, since “a lot of girls seem too afraid of older
guys.” Towards the end of the chat, gyrlpowur asked
Knope, “[S]o u really wanna get me pregnant?” Knope
responded, “[I]f you want me to.”
On February 21, 2008, Knope chatted with “lilcutie4193,”
who purported to be a fifteen-year-old female in Mil-
waukee. Knope asked lilcutie to send photographs, and
when the photographs could not be viewed he asked to
see her Myspace page. Knope complained that the
address she sent him was private and that he could not
see any pictures of her on the page.
The government also introduced chat transcripts, re-
corded phone calls, and testimony relating to a prior
undercover investigation of Knope. The transcripts, which
were found on Knope’s computer, showed that between
June 1 and July 6, 2005, Knope had chatted online with
an individual who purported to be a fourteen-year-old
No. 10-2824 17
girl named Alyssa. In each of nine chats with Alyssa,
Knope made graphic sexual comments and indicated his
eagerness to meet with Alyssa to have sex. Alyssa was
actually a male detective with the Milwaukee Police
Department.
In their first chat, Knope told Alyssa that he was online
looking for “someone that wants to be eaten out.” Alyssa
indicated that she would like to be “eaten out” by
someone who was “kewl to hang with.” Knope immedi-
ately inquired whether she would like to “meet up some-
time.” He stated that he would even be willing to meet
near Alyssa’s house, which was a two- to three-hour
drive from his home in Green Bay, but that he “would
wanna be able to talk on the phone first to know your
real.” Knope also told Alyssa that he wanted to have
sex with her. Subsequently, on June 30, 2005, Knope
and Alyssa planned a meeting at a Walgreens in Mil-
waukee. They discussed that they would then go to a
nearby motel, and Knope provided his telephone
number to Alyssa. The recordings of Knope’s telephone
calls to the female detective who posed as Alyssa show
that Knope drove from Green Bay to Milwaukee that
same night but went to the wrong Walgreens.6 Knope
and Alyssa chatted two more times but there was no
evidence of another attempted meeting.
6
DuCharme was the police officer who pretended to be
Alyssa during Knope’s calls. She testified that when she chatted
again with Knope in 2008, using the alias Maria, she did not
know that Knope was the same individual she had investi-
gated in 2005.
18 No. 10-2824
2. Rule 404(b) Factors
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove that the defendant has a propensity to
commit the crime charged. Such evidence may, how-
ever, be admissible for other purposes, such as to prove
motive, intent, knowledge, identity, or absence of mis-
take. Fed. R. Evid. 404(b). Courts use a four-part test
to determine the admissibility of other acts evidence:
(1) the evidence must be directed toward establishing a
matter in issue other than the defendant’s propensity
to commit the crime charged; (2) the evidence must
show that the other act is similar enough and close
enough in time to be relevant to the matter in issue;
(3) the evidence must be sufficient to support a jury
finding that the defendant committed the similar acts;
and (4) the probative value of the evidence must not be
substantially outweighed by the danger of unfair preju-
dice. United States v. Asher, 178 F.3d 486, 492 (7th
Cir. 1999). We review the district court’s evidentiary
rulings for abuse of discretion. United States v. Hensley,
574 F.3d 384, 388 (7th Cir. 2009). We will reverse for
error in admitting Rule 404(b) evidence only if the error
was not harmless. United States v. Dennis, 497 F.3d 765,
770 (7th Cir. 2007).
Knope argues that the district court erred in admitting
the other acts evidence because the other acts were not
sufficiently similar or close in time to be relevant, the
government did not present sufficient evidence to
support a finding that Knope committed the other acts,
and the district court did not adequately explain
why the probative value of the chats outweighed the
No. 10-2824 19
danger of unfair prejudice. The first three are easily
disposed of.
The other acts evidence was relevant to a matter in
issue, as the government was required, for the attempted
enticement charge, to prove that Knope believed that
Maria was a minor. See United States v. Coté, 504 F.3d
682, 686 (7th Cir. 2008). The chats show that Knope had
expressed interest in having sex with minors in the
past, that he had attempted to meet with at least one
minor (Alyssa) for this purpose, and that he attempted
to distinguish between actual minors and others who
might pose as minors on the internet. These facts under-
mined Knope’s defense that his chats with Maria were
harmless fantasy and that he believed that she was over
eighteen years old. Therefore, the evidence was relevant
to establishing Knope’s knowledge, intent, and lack of
mistake. See United States v. Sebolt, 460 F.3d 910, 917
(7th Cir. 2006) (“Prior instances of sexual misconduct
with a child victim may establish a defendant’s sexual
interest in children and thereby serve as evidence of
the defendant’s motive to commit a charged offense
involving the sexual exploitation of children.”); see also
United States v. Chambers, 642 F.3d 588, 595 (7th Cir. 2011)
(sexually explicit online chat was admissible to show
motive and intent to entice minor to have sex); United
States v. Zahursky, 580 F.3d 515, 524-25 (7th Cir. 2009)
(same).
The proximity and similarity factor is also met. The
other acts occurred within the past three years, sufficiently
close in time to his arrest to be relevant to the offense
20 No. 10-2824
conduct. See United States v. Lee, 558 F.3d 638, 647 (7th
Cir. 2009) (two-year time period was close enough in
proximity); United States v. Best, 250 F.3d 1084, 1092
(7th Cir. 2001) (two-year period); United States v. Kreiser,
15 F.3d 635, 640-41 (7th Cir. 1994) (seven-year period);
United States v. Goodapple, 958 F.2d 1402, 1407-08 (7th
Cir. 1992) (five-year period); see also United States v.
Beasley, 809 F.2d 1273, 1277 (7th Cir. 1987) (“Questions
about ‘how long is too long’ do not have uniform
answers; the answers depend on the theory that makes
the evidence admissible.”).
The other acts also demonstrate Knope’s continued
pursuit of minors for sex. Knope argues that the chats
with “westsideg_url,” “baseballdude1991,” “paltry40,”
“spoiledbrat8705,” “gyrlpowur,” and “lilcutie4193” were
not sufficiently similar to his conduct with Maria
because the government did not prove that the other
individuals were minors or that Knope actually tried to
meet with them. We reject Knope’s argument to the
extent that he suggests that prior conduct must have
constituted a crime in order to be admissible. See Fed. R.
Evid. 404(b) (referring to other “crimes, wrongs, or acts”);
United States v. Senak, 527 F.2d 129, 143 (7th Cir. 1975)
(“We do not agree that similar acts introduced to
establish motive, intent, the absence of mistake or
accident, or a common scheme or plan must necessarily
be acts constituting a crime.”). Furthermore, we have
made clear that the conduct in the chats need not be
identical to the conduct at issue during trial. It is enough
that the prior and instant acts are “sufficiently alike to
support an inference of criminal intent.” United States
No. 10-2824 21
v. Vargas, 552 F.3d 550, 555 (7th Cir. 2008) (quoting
United States v. Lloyd, 71 F.3d 1256, 1265 (7th Cir. 1995)).
During the prior acts Knope expressed interest in
having sex with individuals who represented that they
were minors, attempted to determine whether the indi-
viduals were, in fact, minors, and in some instances
asked these individuals to meet with him. See Hensley,
574 F.3d at 389 n.3 (“The relevant similarity . . . is that
in both instances [defendant] was attempting to persuade
a minor to engage in sexual activity.”). Whether the
other individuals were actually minors, as opposed to
people who convincingly pretended to be minors, does
not affect the court’s analysis of whether the chats
support the inference that Knope had the requisite
criminal intent.
With respect to the identity factor, the evidence
supports a finding that Knope participated in the other
acts. The chat transcripts were seized from Knope’s
computer and Knope often used the same alias that he
had used in his chats with DuCharme. His argument
that the government was also required to prove the
identities of the other individuals who were involved
in the chats is without merit because the issue is what
Knope believed about their ages, not their actual ages.
The final factor is less clear-cut. Knope asserts that
the other acts evidence was unfairly prejudicial and
that the district court erred by failing to articulate its
reasoning. Knope argues that any prejudice was com-
pounded by the district court’s waiting until the jury
charge to issue a limiting instruction.
22 No. 10-2824
The district court concluded that there was a “clear
basis” for admitting the evidence under Zahursky but
did not explicitly address the danger of unfair prejudice.
In Zahursky, 580 F.3d at 524-25, we held that prior
online chats were properly admitted in a section 2422(b)
prosecution. There the government introduced several
internet chats with an individual who claimed to be a
fourteen-year-old girl, another chat where the defendant
claimed to have had sex with a fourteen year old, and
evidence that the defendant had twice had sex with a
fifteen-year-old girl. We upheld the district court’s “im-
plicit determination” that the probative value of the
other acts evidence was not substantially outweighed by
the danger of unfair prejudice or its cumulative nature.
We agree with Knope that the district court should
have given explicit reasons for its conclusion that the
evidence was not unfairly prejudicial rather than
making reference to another similar case.7 District courts
should explain their reasoning at the time of ruling in
order to ensure a fair trial for the defendant, facilitate
appellate review, and preserve the integrity of the
judicial system. See United States v. Ciesiolka, 614 F.3d 347,
357-58 (7th Cir. 2010) (“A trial court’s ‘perfunctory’ consid-
eration of this critical question is inadequate and may
7
“Evidence is unfairly prejudicial only if it will induce the jury
to decide the case on an improper basis, commonly an emotional
one, rather than on the evidence presented.” Zahursky, 580
F.3d at 525 (quoting United States v. Harris, 536 F.3d 798, 809
(7th Cir. 2008)).
No. 10-2824 23
in itself be grounds for reversal.”; “[T]he Rule 403
standard incorporated in the requisite test for admitting
evidence under Rule 404(b) has teeth.”); see also
United States v. Moore, 641 F.3d 812, 823-24 (7th Cir.
2011); United States v. Albiola, 624 F.3d 431, 438-39 (7th
Cir. 2010); United States v. Macey, 8 F.3d 462, 467 (7th
Cir. 1993); Beasley, 809 F.2d at 1279.
Our concern here is the court’s failure to take the cumu-
lative effect of the chats into account. The govern-
ment sought to admit Knope’s chats with seven different
individuals, and presentation of this evidence was ex-
pected to take up a significant part of the trial. (Defendant
calculates that 23% of testimonial time in the govern-
ment’s case-in-chief was devoted to it.) Given the
sexually graphic nature of the chats, the court should
have explained why this volume of evidence was appro-
priate. The impact on the jury may have been magnified
by the court’s omission of a limiting instruction at the
time the evidence was introduced.8
Nonetheless, we conclude that the error was harmless.
Knope relies heavily on Ciesiolka, where we did find
unfair prejudice. Similarly to here, the district court had
failed to address the prejudice factor, and a substantial
8
We express no opinion on the government’s argument that
the written questionnaire that was sent to prospective jurors,
which was designed to weed out individuals who had strong
opinions regarding pornography or unconventional sexual
practices, might have lessened any prejudice that resulted
from the admission of the other acts evidence at trial.
24 No. 10-2824
portion of the testimony was devoted to prior bad acts.
But unlike here, the prior bad acts “ran the gamut from
the jury’s viewing over 100 images of child pornography
to its hearing a woman’s testimony of her having had sex
with the defendant when she was 15 to the offensive
sexual content of defendant’s many IM conversations
with unidentified third parties.” 614 F.3d at 358. Signifi-
cantly, we concluded that the government’s evidence of
the crime itself was “far from conclusive,” id. at 356 n.2,
and the defendant’s theory that he believed he was in-
teracting with an adult merely pretending to be a child
had “strong support” in the evidence. Id. at 356.9 More-
over, as the trial progressed the defendant had asked
the district court to repeat its limiting instruction, which
the court refused to do without explaining why. (Knope,
in contrast, did not request a limiting instruction at the
time the evidence was introduced.) We decided that
“given the context-specific facts of this highly unusual
case, the district court’s failure to explain its decision to
grant the government virtual carte blanche to introduce
all the Rule 404(b) evidence that it did was an error that
was not adequately cured by the limiting instruction
provided.” Id. at 358-59.
The government’s 404(b) evidence was, as we have
already explained, relevant to the knowledge issue,
9
See 614 F.3d at 356 (noting that the undercover officer who
chatted with the defendant had posted a photo of a woman
in her 20s and had listed beer and Purdue University as
interests on her Yahoo! profile).
No. 10-2824 25
reasonably recent, similar in content, and identified with
Knope. In addition, there was abundant evidence of
Knope’s criminal intent, even without the other acts
evidence. Knope initiated contact with Maria, made it
clear that he was interested in having sex, and attempted
to meet with her despite the fact that she stated she was
a minor. His knowledge of Maria’s age could be
readily inferred from the fact that DuCharme sent him
a photograph of a minor, spoke to him as though she
were a fifteen-year-old girl, and repeatedly emphasized
Maria’s age during the chats. Knope’s intent to have sex
with Maria was also clear. He brought a strap-on device
to the meeting with Maria and then purchased condoms
while he waited for her. Taken together, this evidence
belied Knope’s assertion that he had driven to meet
Maria merely out of curiosity. Added to Knope’s volun-
teered inculpatory statements, the evidence of guilt was
overwhelming (despite the prosecutor’s concession in
closing argument that without the 404(b) evidence it
“might” be possible to conclude that Knope was
actually mistaken about her age). For these reasons, we
will not reverse Knope’s conviction because of the
court’s failure to explain itself about the prejudice issue.1 0
10
We also reject Knope’s argument that the district court’s
admission of the chat transcripts violated his right to free
speech under the First Amendment. Knope was not being
prosecuted for his conduct relating to the other chats and “[t]he
First Amendment . . . does not prohibit the evidentiary use
of speech to establish the elements of a crime or to prove
(continued...)
26 No. 10-2824
C. Jury Instructions
Knope also argues that the district court erred in
denying several of his proposed jury instructions. We
generally review a district court’s decision to refuse
an instruction for abuse of discretion, reviewing any
underlying legal issues de novo. United States v. Campos,
541 F.3d 735, 744 (7th Cir. 2008). We review a court’s
decision not to provide a theory of defense instruction
de novo. United States v. Martin, 618 F.3d 705, 735 (7th
Cir. 2010). A defendant is entitled to a jury instruction
regarding a theory of defense if (1) the instruction is a
correct statement of law; (2) the evidence supports the
theory of defense; (3) the theory of defense is not part
of the charge; and (4) the failure to provide the instruc-
tion would deny the defendant a fair trial. United States
v. Canady, 578 F.3d 665, 672 (7th Cir. 2009).
Knope requested an instruction that possession of adult
pornography and lewd speech directed towards adults
is protected speech. He argues that the instruction was
necessary to preserve his rights under the First Amend-
ment. For the offense of possession of child pornography,
Knope’s concern was fully addressed by the jury instruc-
tion which stated that the production of the pornographic
images must have “involved the use of an actual mi-
nor.” Knope has cited no portion of the record that sup-
10
(...continued)
motive or intent.” Wisconsin v. Mitchell, 508 U.S. 476, 489, 113
S. Ct. 2194, 124 L. Ed. 2d 436 (1993); see also Dressler v.
McCaughtry, 238 F.3d 908, 915 (7th Cir. 2001).
No. 10-2824 27
ports his assertion that the jury might have mistakenly
understood that it could convict him for possession
of adult pornography.1 1 On the other hand, the proposed
instruction was potentially confusing because the jury
might have misunderstood that the government had to
prove that the individual was an actual minor in order
to prove attempted enticement.
Knope also requested an instruction regarding what
constitutes a “substantial step” towards the completion
of a violation of section 2422(b). In order to find Knope
guilty of an attempt to entice Maria to have sex with
him, the jury needed to conclude that Knope had taken
a “substantial step” towards completing the offense.
Travel, making arrangements for a meeting, and other
preparatory steps may constitute a substantial step.
United States v. Gladish, 536 F.3d 646, 649 (7th Cir. 2008).
The jury may not, however, convict on the basis of obscene
speech or “hot air” alone. Id. at 649-50. Knope’s proposed
instruction stated that “the mere act of communicating
online or by telephone with a person who states that they
are under the age of 18” does not constitute a substantial
step. This instruction would have been redundant in
light of the court’s instruction regarding the elements of
the offense of enticement, which stated that “it is neces-
11
To the contrary, when McQuown testified that images of
adult pornography were recovered from Knope’s DVDs and
CDs, the prosecution asked him to clarify that “the illegal
things that have been charged in this case are child porn” and
that “adult pornography while people may not like it . . .
that’s not the subject of this charge or trial, right?”
28 No. 10-2824
sary for the Government to prove that the Defendant . . .
knowingly took some action, other than merely chatting
online or by telephone, that was a substantial step
toward bringing about or engaging in that sexual activity.”
The instruction was also consistent with Gladish. The
district court did not abuse its discretion in denying
Knope’s supplemental description of the substantial
step requirement.
In addition, Knope requested a theory of defense in-
struction stating that the jury could acquit if it found
that Knope “believed in good faith that the person he
was communicating with on the internet and by tele-
phone was not under the age of 18 and he was mistaken
in that belief.” The district court properly declined to
issue a separate good faith instruction because this
defense was included in the definition of the term “know-
ingly” that was provided to the jury. See United States v.
Given, 164 F.3d 389, 394-95 (7th Cir. 1999) (refusal to
give specific good faith instruction was not error where
judge had clearly defined the term “knowingly” using
this circuit’s pattern instruction).
Knope also argues that the district court erred in
denying his proposed entrapment instruction. A de-
fendant may raise an entrapment defense if he shows
that he was not predisposed to commit the crime and
that he was induced by the government to commit it.
United States v. Hall, 608 F.3d 340, 343 (7th Cir. 2010). We
consider the following factors in assessing the
defendant’s predisposition:
No. 10-2824 29
(1) the defendant’s character or reputation;
(2) whether the government initially suggested the
criminal activity; (3) whether the defendant engaged
in the criminal activity for profit; (4) whether the
defendant evidenced a reluctance to commit the
offense that was overcome by government persuasion;
and (5) the nature of the inducement or persuasion
by the government.
United States v. Blassingame, 197 F.3d 271, 281 (7th
Cir. 1999). The most important factor is whether the de-
fendant showed reluctance to engage in criminal activity
that was overcome by the government’s inducement. Id.
Here, all of the factors indicate that Knope was predis-
posed to commit the crimes. Knope initiated contact with
DuCharme and asked her if she wanted to meet him in-
person. He took an active role in planning the meeting by
offering to get a room, asking Maria how he could recog-
nize her, and confirming how long Maria could spend with
him. He also initiated the discussion about the strap-on
device and then tried to determine what size strap-on to
bring for Maria. He decided to purchase condoms at
Walgreens, without any prodding from Maria. Finally,
Knope had engaged in nearly identical conduct with
Alyssa in 2005. “Where . . . the government simply invites
the defendant to participate in the crime and does not
‘employ[ ] any pressure tactics or use[ ] any other type
of coercion’ to induce the defendant, a defendant is not
entitled to an entrapment defense.” United States v. Orr,
622 F.3d 864, 869 (7th Cir. 2010) (quoting United States v.
Akinsanya, 53 F.3d 852, 858 (7th Cir. 1995)). Given these
30 No. 10-2824
facts, and that Knope has not cited any evidence to
support the conclusion that he was induced to commit
the crimes at issue, the district court properly denied
his entrapment instruction.
Knope submitted a detailed instruction regarding the
use of “other acts” evidence under Rule 404(b), which
the district court rejected in favor of this circuit’s
pattern instruction. The district court did not abuse
its discretion in rejecting Knope’s instruction. Knope’s
instruction does not differ materially from the instruc-
tion given by the court and we are not convinced that
the extra language is necessary to convey the proper
role of Rule 404(b) evidence.
Finally, Knope argues that the district court erred in
denying his theory of defense instructions as to posses-
sion of child pornography and enticement. Knope’s pro-
posed theory of defense instruction regarding the pornog-
raphy charge stated that the government must prove
beyond a reasonable doubt that the images depicted an
actual minor. This instruction, like Knope’s privileged
speech instruction, was unnecessary because the jury
charge included the requirement that the production of
the images involved the use of actual minors and that
the defendant knew that the images involved the use of
a minor. In addition, there was no evidence to support
an inference that any of the images involved virtual
rather than actual minors.
Knope’s theory of defense instruction with respect to
the enticement charge stated that Knope did not believe
he was communicating with a person under age eighteen
No. 10-2824 31
and that he was “attempting to leave the Walgreens
parking lot at the time he was arrested and did not take
the necessary substantial step.” We agree with the
district court that Knope’s instruction was not an
accurate statement of the law because it implied that
traveling to the Walgreens could not constitute the
“substantial step” required for the offense of attempted
enticement of a minor. Even if Knope had been at-
tempting to leave Walgreens when he was arrested, he
had already completed the substantial step by driving
to the designated meeting place and purchasing condoms
inside the store. See Gladish, 536 F.3d at 648-49. More-
over, the first portion of Knope’s theory of defense in-
struction, regarding mens rea, was unnecessary in light of
the jury charge. The court’s instruction regarding entice-
ment made clear that Knope had to have “believed that
[Maria] was less than eighteen . . . years of age.” For these
reasons, we conclude that the district court properly
denied Knope’s theory of defense instructions.
III. Conclusion
For the foregoing reasons, we A FFIRM .
8-22-11