In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐1348
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
HARRY WILLIAM MCMILLAN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:10‐cr‐40062‐JPG‐01 — J. Phil Gilbert, Judge.
____________________
ARGUED SEPTEMBER 27, 2013 — DECIDED MARCH 12, 2014
____________________
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
2 No. 12‐1348
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 crimi‐
nal 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 Gen‐
eral’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 McMil‐
lan agreed that “Mike,” McMillan, and the daughter would
meet at a local movie theater. (The role of the daughter was
No. 12‐1348 3
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 McMil‐
lan spoke to one another, and McMillan asked for nude pic‐
tures of the girl that Andrews had promised to bring. An‐
drews handed McMillan an envelope, and as McMillan was
opening it, Andrews arrested him.
In connection with the arrest, Andrews searched McMil‐
lan 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 ques‐
tioned 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 ini‐
tially 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 perti‐
nent to his own experience. McMillan also presented testi‐
mony 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,
4 No. 12‐1348
the day of McMillan’s arrest. McMillan testified that he pur‐
chased the condoms that Andrews found for purposes of his
meeting with “Just Me” before he had made the arrange‐
ments to meet “Mike” at the theater. The jury was not per‐
suaded: 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 di‐
rectly between the defendant and the underage person pro‐
tected 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 per‐
suade, induce, or entice the minor to engage in the prohibit‐
ed 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 co‐
erces any individual who has not attained the
No. 12‐1348 5
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 im‐
prisoned 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 exam‐
ined by seven of our sister circuits. Six of them have con‐
cluded that the statute does extend to adult‐to‐adult com‐
munications 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, en‐
tice, or coerce the minor into the criminal sexual acts. One
6 No. 12‐1348
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 es‐
sence 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 activi‐
ty.” 626 F.3d at 164. The Third Circuit took a similar ap‐
proach 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, en‐
tice, 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 per‐
suade 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 be‐
cause the parent exploits his or her ability to bring the child
to a meeting place where the defendant could attempt di‐
rectly 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.
No. 12‐1348 7
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 defend‐
ant’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. Hu‐
man 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 nothing in the text of § 2422(b) that undermines
this reasoning. McMillan suggests that the syntactical struc‐
ture of the statute demands an object for the transitive verbs
“persuade, entice, coerce, and induce,” and that the only
possible object must be the minor. But, as we already have
explained, the minor can be the object of the defendant’s ef‐
forts even if a third person functions as an intermediary. In
the end, what is important under this statute is the defend‐
ant’s attempt (using the mails or other instrumentalities of
commerce) to persuade the minor. So read, there is nothing
unconstitutionally vague about this law, contrary to McMil‐
lan’s protestations. See Skilling v. United States, 130 S. Ct.
2896, 2927–28 (2010). “Ordinary people using common
sense,” as the Second Circuit put it, will understand that
§ 2422(b) is violated by attempts to persuade, entice, coerce,
or induce a minor to engage in sexual activity. See United
States v. Gagliardi, 506 F.3d 140, 147 (2d Cir. 2007). Indeed, the
fact that McMillan feared that “Mike” was a police officer
setting up a sting shows that he was well aware that he was
8 No. 12‐1348
treading on forbidden ground. We are satisfied that the stat‐
ute gives adequately clear warning about what it prohibits.
B
Even if the statute permits conviction based on commu‐
nications such as those between himself and “Mike,” McMil‐
lan argues that the evidence presented at trial was insuffi‐
cient to prove that he ultimately intended to persuade a mi‐
nor to engage in sexual activity or to use an adult as an in‐
termediary. In order to prevail on such a claim, he must re‐
fute the possibility that “after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime be‐
yond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). McMillan has not cleared that hurdle.
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 dif‐
ferently 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 communi‐
cations look more like a negotiation with the father, howev‐
er, 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
No. 12‐1348 9
an email in which McMillan asks “Mike” “have you talked
to her about this yet?” These examples, which we do not in‐
tend to be exhaustive, show that the evidence was sufficient
to support the jury’s verdict.
C
Finally, we turn to 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 evi‐
dence showed that McMillan exchanged several sexually ex‐
plicit messages with “Kellie.”
We review decisions to admit evidence for abuse of dis‐
cretion. See United States v. Knope, 655 F.3d 647, 657 (7th Cir.
2011). Even if we conclude that the district court erred in
admitting or excluding certain evidence, however, we must
still ask whether the error was harmless—that is, if it affect‐
ed the defendant’s substantial rights. See FED. R. CRIM. P.
52(a).
Federal Rule of Evidence 404 addresses the subject of
character evidence. Subpart (a) of the rule generally prohib‐
its 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,
10 No. 12‐1348
intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.
FED. R. EVID. 404(b)(2).
We have expressed concern over the risk that practically
anything can be shoehorned into this list of permitted uses if
the district court is not careful. A rule of de facto automatic
admission would wipe out the general rule prohibiting pro‐
pensity evidence. See, e.g., United States v. Miller, 673 F.3d
688, 696–97 (7th Cir. 2012); United States v. Hicks, 635 F.3d
1063, 1069–74 (7th Cir. 2011) (prior convictions not admissi‐
ble to show intent or absence of mistake); United States v.
Webb, 548 F.3d 547 (7th Cir. 2008) (holding that evidence was
not admissible to show either intent or absence of mistake).
For many years, this court has used a four‐part test de‐
signed to screen evidence that should be admitted under
Rule 404(b) from that which should stay out. Under that test,
the government must demonstrate that:
(1) the evidence is directed toward establishing
a matter in issue other than the defendantʹs
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 suffi‐
cient to support a jury finding that the defend‐
ant committed the similar act; and (4) the pro‐
bative value of the evidence is not substantially
outweighed by the danger of unfair prejudice.
United States v. Chambers, 642 F.3d 588, 594 (7th Cir. 2011).
This was the test that the panel followed in United States v.
Gomez, 712 F.3d 1146 (7th Cir. 2013), but that opinion was va‐
No. 12‐1348 11
cated and the case has since been reheard by the en banc
court. The parties were invited, for purposes of the reargu‐
ment, to discuss the question whether we should retain the
existing test for Rule 404(b) evidence, or if some other test
would be preferable, such as one that asks directly whether
the proposed evidence is relevant to a specifically identifia‐
ble and disputed non‐propensity issue and then leaves the
work of balancing prejudice against probative value to Rule
403. See United States v. Gomez, No. 12‐1104 (7th Cir. June 14,
2013) (order granting rehearing en banc and requesting new
briefs).
If we thought it would make any difference to the out‐
come of this appeal, we would await the en banc court’s opin‐
ion in Gomez. But in our view McMillan cannot prevail under
any conceivable test that might apply to Rule 404(b) evi‐
dence. We therefore analyze his arguments under the tradi‐
tional test and explain why the more focused approach sug‐
gested by the briefing order in Gomez would not help him.
McMillan argues that the “Kellie” evidence violated the
first and fourth parts of the traditional test—in other words,
it was relevant only to propensity (he says), and its prejudi‐
cial effect outweighed its probative value in any event. The
latter point, which is captured in the fourth part of the tradi‐
tional 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 di‐
rectly relevant to issues that 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
12 No. 12‐1348
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 an‐
swered.” McMillan’s reason for undertaking this project,
counsel said, was to gain a better understanding of child mo‐
lestation, 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 that 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.” Looking at the Gomez briefing order, one could say
that the element the government was trying to prove was
intent, and that the “Kellie” emails were relevant to that is‐
sue under the standards set forth in Federal Rule of Evi‐
dence 401.
That 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. Ei‐
ther way, the district court should make the assessment that
Rule 403 calls for. In this case, unfortunately, the district
No. 12‐1348 13
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. See United States v.
Ciesiolka, 614 F.3d 347, 357–58 (7th Cir. 2010). 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.
Given the limited number of “Kellie” emails that 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 deci‐
sively for admission. The government did not get carried
away with this evidence, as it has done in some other cases,
see, e.g., United States v. Loughry, 660 F.3d 965 (7th Cir. 2011).
In fact, the “Kellie” evidence was significantly more limited
than the email exchanges in Knope, which upheld the admis‐
sion of evidence about seven additional minors. In short,
although the district court should have weighed the proba‐
tive value of the “Kellie” evidence against its prejudicial ef‐
fect, its failure to do so in the circumstances of this case was
harmless. These considerations also assure us that the ad‐
mission of the “Kellie” evidence did not violate McMillan’s
due process right to a fair trial.
III
McMillan also complains that the prosecutor’s references
to the “Kellie” emails in closing argument violated his right
to a fair trial. For the reasons we have already given, we re‐
ject that argument, as well as his understanding of § 2422(b),
14 No. 12‐1348
his attack on the sufficiency of the evidence, and his other
arguments about the “Kellie” evidence.
The judgment of the district court is AFFIRMED.