In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2672
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES D ANIEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:06-CR-165—Rudy Lozano, Judge.
A RGUED A PRIL 9, 2009—D ECIDED A UGUST 13, 2009
Before M ANION, R OVNER, and W OOD , Circuit Judges.
W OOD , Circuit Judge. In this appeal, we once again
consider issues arising from an August 2006 police op-
eration in Indiana designed to catch predators using
internet chat rooms to persuade minors to engage in
sexual activity. James Daniel was ensnared in the opera-
tion’s net when he struck up a chat with someone
calling “herself” Amanda_13. Unbeknownst to him, he
was really communicating with a male officer claiming
2 No. 08-2672
to be a 13-year-old girl. But the government failed to
realize the extent of its own sting operation. During Dan-
iel’s trial, the prosecution introduced two chat sequences
found on Daniel’s computer that apparently involved
minor girls. What the government did not notice until
sentencing was that one of those “girls,” daisy13_Indiana,
was actually an officer from the same Indiana operation.
And that was not all. To our surprise, the government
was unaware until this panel told it at oral argument
that the other screen name, blonddt, was also an officer
from the Indiana operation. Daniel asserts that the gov-
ernment’s failure to disclose the identity behind these
two screen names violated Brady v. Maryland, 373 U.S.
83 (1963), and thus entitles him to a new trial. Because
the information was not material to Daniel’s trial, we
affirm his conviction and sentence.
I
On August 7, 2006, Daniel initiated an online chat with
Amanda_13. Amanda_13 told Daniel that she was a 13-
year-old female; in truth, Amanda_13 was Sergeant
Richard Howard, an officer with the Porter County Sher-
iff’s Department in Indiana. Daniel chatted with
Amanda_13 several times; he frequently brought up sex
during these exchanges. He persuaded Amanda_13 to
meet him at Will Park in Valparaiso, Indiana, to have
sex. Stressing the importance of using a condom, he
promised Amanda_13 to bring one to the meeting. When
Daniel arrived at the park at the agreed time, ready with
a condom in his wallet, instead of a 13-year-old girl he
No. 08-2672 3
found the police. A grand jury indicted Daniel for
violating 18 U.S.C. § 2442(b), which forbids knowingly
persuading, inducing, enticing, or coercing an individual
under the age of 18 to engage in criminal sexual activity.
After his arrest, Daniel consented to a police search of
his computer. The computer examiner, Secret Service
Agent James Kimes, found 192 files containing the
history of Daniel’s online chats. In addition to the con-
versations with Amanda_13, Agent Kimes found chats
with two other screen names claiming to be minor girls;
daisy13_Indiana and blonddt. Daniel discussed sex with
both, even though daisy13_Indiana said that she was a 13-
year-old girl and blonddt said that she was a 15-year-old
girl. The government offered, and the court admitted,
these conversations during Daniel’s trial under F ED. R.
E VID. 404(b) for the limited purpose of showing Daniel’s
intent, motive, and absence of mistake.
Sometime before sentencing, the government realized
that daisy13_Indiana was not a minor, but a police offi-
cer. It informed Daniel, but Daniel neither requested a
new trial under F ED. R. C RIM. P. 33 nor otherwise raised
the issue to the district court. Insofar as it relates to
daisy13_Indiana, we therefore review Daniel’s allegation
of a Brady violation for plain error. United States v. Price,
520 F.3d 753, 761 (7th Cir. 2008). Under the plain error
standard, the alleged Brady violation must be an
obvious error that affected Daniel’s substantial rights
and created “a substantial risk of convicting an inno-
cent person.” United States v. Paladino, 401 F.3d 471, 481
(7th Cir. 2005).
4 No. 08-2672
Upon reviewing this case, we recognized the screen
name blonddt from United States v. Davey, 550 F.3d 653
(7th Cir. 2008), another case involving the August 2006
Indiana operation. Blonddt is also in reality an under-
cover officer, though neither the government nor Daniel
spotted this until we pointed it out during oral argu-
ment. In our view, the facts about blonddt do not change
Daniel’s argument. (This case, in other words, would
have been the same if only one additional undercover
name had been involved, whichever one it was.) We
therefore also analyze the government’s failure to
disclose the true identity of blonddt under the plain
error standard.
II
To establish a Brady violation, Daniel must show
“ ‘(1) that the prosecution suppressed evidence; (2) that
the evidence was favorable to the defense; and (3) that
the evidence was material to an issue at trial.’ ” United
States v. Grintjes, 237 F.3d 876, 880 (7th Cir. 2001) (quoting
United States v. Morris, 80 F.3d 1151, 1169 (7th Cir. 1996)).
Suppressed evidence is material if “there is ‘a reason-
able probability that, had the evidence been disclosed,
the result of the proceeding would have been differ-
ent.’ ” United States v. Banks, 546 F.3d 507, 510 (7th Cir.
2008) (quoting United States v. Bagley, 473 U.S. 667, 682
(1985)).
Daniel proposes three ways that the fact that he was
really chatting with two different undercover police
officers is material: first, he believes that it impeaches
No. 08-2672 5
Agent Kimes’s testimony that the conversations were
unrelated to the chats with Amanda_13; second, he
argues that it shows entrapment; and third, he con-
tends that this information was necessary in order to
decide whether the chats were admissible under
Rule 404(b).
None of these arguments has merit. First, nothing
about the identity of the persons using these screen
names tends to impeach Kimes’s testimony. The chats
were related to the charges against Daniel only in the
sense that they were part of the same undercover opera-
tion. They were unrelated in the more important sense
that Daniel believed that he was chatting with three
different minor girls. In addition, Kimes was not
involved in the August 2006 operation; he was testifying
on the basis of his examination of Daniel’s computer. All
that Daniel could have shown, had the government
informed him that daisy13_Indiana and blonddt were
names operated by police officers, was that Kimes
did not know much about the undercover operation.
But Kimes never said that he did know about it, and so
this information would not have impeached his testimony.
Second, the information does not advance Daniel’s
entrapment argument, because the chats with blonddt
and daisy13_Indiana occurred after Daniel initiated the
chats with Amanda_13. Subsequent chats with police
officers do not show that the government induced the
illegal conduct with Amanda_13 or that Daniel lacked a
predisposition to engage in the criminal conduct with
Amanda_13. See United States v. Ellis, 23 F.3d 1268, 1271
(7th Cir. 1994).
6 No. 08-2672
Third, the identity of daisy13_Indiana and blonddt
affects neither the admissibility of the conversations
under Rule 404(b) nor their relevance. The conversations
were admitted under Rule 404(b) to show Daniel’s state
of mind—his intent, motive, and absence 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.”). What matters is what
Daniel believed about the conversations, and Daniel
believed that he was talking about sex with minor girls.
Finally, even if Daniel knew before trial that
daisy13_Indiana and blonddt were police officers, there
is no reasonable probability that the jury would have
acquitted Daniel; the evidence overwhelmingly showed
that Daniel used the internet to persuade Amanda_13,
someone Daniel believed to be a 13-year-old girl, to
meet him to engage in criminal sexual activity. Par-
ticularly given the fact that our review is only for plain
error, we are confident that the alleged Brady violation
does not support reversal here. It is not obvious and does
not create a substantial risk that the jury convicted an
innocent person.
***
The judgment of the district court is A FFIRMED.
8-13-09