NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 20, 2017
Decided August 16, 2017
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
SHARON JOHNSON COLEMAN, District Judge*
No. 16‐3047
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin.
v. No. 3:15‐cr‐00132‐jdp‐1
RICHARD GEASLAND, James D. Peterson,
Defendant‐Appellant. Chief Judge.
O R D E R
Richard Geasland pleaded guilty to possessing child pornography, in violation of 18
U.S.C. § 2252(a)(4)(B), and was ordered to serve a prison term of 120 months. Geasland
appeals the denial of his motion to suppress evidence seized in the search of his
apartment as well as the district court’s determination that a prior Wisconsin conviction
for sexual assault of a minor qualifies as a conviction under a state law relating to
abusive sexual contact with a minor so as to trigger a ten‐year mandatory minimum
term of imprisonment, see 18 U.S.C. § 2252(b)(2). We affirm the judgment.
*
Of the Northern District of Illinois, sitting by designation.
No. 16‐3047 Page 2
I.
On the morning of October 6, 2015, Susan Leppert presented herself at the Cuba
City, Wisconsin police department to make a report concerning her former neighbor,
Richard Geasland. For the prior month and a half, Leppert had been living in the first‐
floor apartment of a two‐flat residence at 317 South Main Street; Geasland lived in the
upstairs apartment. Geasland and Leppert were on friendly terms. But two days earlier,
Leppert had had a disturbing conversation with Geasland that had caused her to move
out of the apartment and ultimately had brought her to the police station. Chief of
Police Terry Terpstra interviewed Leppert and had her prepare a handwritten
statement detailing what she told him. Leppert wrote out a three‐page statement on a
“Voluntary Statement” form provided to her. The first page of the form contained a pre‐
printed certification stating: “I am making this statement to the Cuba City Police
Department. I have read, or have had read to me, this statement, each page of which
bears my signature. … I certify that the facts and details contained herein are true and
correct.” R. 18‐2 at 4. Below that certification, Leppert filled in her identifying
information and signed the form. Next to that, Terpstra likewise provided his
identifying information and signed as a witness.
As the content of Leppert’s statement is relevant to the validity of the warrant
authorizing a search of Geasland’s apartment, we recount it in full below. We have
broken the statement into paragraphs for ease of reading. The statement read as follows:
On 10/4/15 Richard Geasland welcomed me into his apartment for a tour. Before I
entered his living room, he turned off his computer monitor and said he had some
pictures on his computer he didn’t want me to see. He asked me to sit down, offered me
a pop, and said he wanted to explain why he was in prison.
He asked me if I knew what a pedifile [sic: pedophile] or hedofile [sic:
hebephile] is. I said I only know what a [pedophile] is. He said [pedophile]
is if you like people/kids underage & [hebephile] is someone who likes
older people. He said he went to prison for touching a 5‐year old girl. He
said it was his girlfriend’s niece, who was 5 years old & she used to stay at
their house on the weekends. He said him & her both went to prison for
touching the little girl. He said cuddling was always more than cuddling.
He said when they picked her up she kissed him on the cheek & when he
went to kiss her on the cheek, she turned her head & kissed him on the
lips & stuck her tongue in his mouth. He said she would lay in bed &
cuddle with him. He said he went to prison for her giving him oral sex. He
tried to justify it by saying, he felt like she knew what she was doing & felt
as if she had done it before because she knew how to bob her head. He
No. 16‐3047 Page 3
said she lived with her mom & 3 [M]exican guys & one of them was the
mom’s boyfriend. He said he thought the mom’s boyfriend made her do
these sexual things because she seemed “experienced.”
He said he also did sexual things with his daughter and that she has not
talked to him in 15 years because of what he did. [H]e said she moved to
[F]lorida & that he doesn’t have a relationship with her because of what he
made her do. He said he was mad at her for telling his son because they
no longer have a good relationship. He said he spends holidays alone
because they won’t forgive him.
He said him & his girlfriend went to prison for what they did to the 5 yr
old.
He told me the reason he turned off the computer monitor [was] because
he had pictures of naked children on his computer & didn’t want me to
judge him before he explained his past. He said he sits on his computer all
night looking at young girls/children on a porn site online. He said it is a
private network where naked pictures of children are there to view. He
said he spends most of his time not wearing clothes & looking at these
pictures online. He said that he “prefers little girls between ages 13 & 16.”
He said he was caught for the 5 yr old but likes young teen girls.
He said that I don’t have anything to worry about because I have 3 little
boys (ages 6, 5, & 2) & he likes girls. I told him I had to go home & he
asked me to come back because he had a lot more to tell me. He asked me
not to tell anyone and said I was the only one in Cuba City he has told. He
said he felt like he had to tell me because he was my neighbor & I have
young kids.
I went home & packed my things. We stayed at my mom’s & I moved out
the next day 10/5/15. I refuse to live by someone like him!
R. 18‐2 at 4–6. In addition to her certification on the first page of the statement, Leppert
signed the final (third) page of her statement. R. 18‐2 at 6.
Based on what Leppert had told him, Terpstra decided to immediately seek a search
warrant for Geasland’s apartment. In addition to preparing a police report which
summarized his conversation with Leppert, Terpstra completed a brief affidavit in
support of the warrant application that attached his report and Leppert’s written
statement. The affidavit included the following representations concerning the house
where Geasland lived and Terpstra’s impression as to Leppert’s credibility:
No. 16‐3047 Page 4
3. Affiant knows that 317 S. Main Street is a two story house divided into
a lower and upper apartment. The upper apartment is the apartment in
question. The downstairs apartment is now vacant. The upstairs
apartment door is the door farthest to the West. The door is described as a
solid white door with no screen on the front. The house is multi colored
with red siding on the lower half and Tan on the upper half. The windows
have a red trim around the outside. The house is located on Main St. but
has no doors at the front. The house is the fo[u]rth property to the South
of Calhoun St. The subject resides by himself in the upper apartment,
317 ½ Main St.
4. Affiant states that he believes the information from Susan Leppert to
be truthful and reliable based upon her status as a citizen informant.
R. 18‐2 at 1. The certification on Terpstra’s affidavit represented that its contents were
“true to his own knowledge” except as otherwise indicated. R. 18‐2 at 1. The affidavit
was notarized by Lisa Riniker, who happened to be the Grant County District Attorney,
acting in her capacity as a notary public.1
A state court issued a warrant authorizing the search of Geasland’s apartment, and
on the evening of October 6 (the same day Leppert had made her report to Terpstra),
local and state police officers executed the warrant. Within the apartment, they
discovered, among other items, a 500 gigabyte external computer hard drive, which
they seized. Geasland was arrested based on certain incriminating statements he made
during the search (these were later suppressed) and a preliminary on‐site examination
of the external drive which confirmed it contained pornographic images of children.
1
Terpstra’s police report represented that he would be applying for a search
warrant “through the Grant County District Attorneys office,” R. 18‐2 at 3; and Terpstra
later represented that he indeed discussed the matter with Riniker, who agreed that
there was probable cause for the search, R. 15‐2 at 1. The parties agree that a police
officer’s consultation with a prosecutor while preparing the application for a warrant
can support a finding that the officer relied in good faith on the issuance of a warrant.
See United States v. Pappas, 592 F.3d 799, 802 (7th Cir. 2010) (collecting cases). However,
the warrant application in this case did not disclose Terpstra’s consultation with
Riniker, and we do not, as the government would have us do, interpret her mere
notarization of Terpstra’s affidavit as confirmation that she agreed the contents of the
warrant application established probable cause and had conveyed that assessment to
Terpstra.
No. 16‐3047 Page 5
Police subsequently obtained a second warrant authorizing a full forensic examination
of the drive and the other electronic devices seized from the apartment. On the drive
were thousands of pornographic images of young children.
Three weeks after Geasland was taken into custody,2 a federal complaint (supported
by an affidavit from Terpstra) was filed charging Geasland with the possession of child
pornography. In a superseding indictment dated March 9, 2016, a grand jury charged
him with one count of violating 18 U.S.C. § 2252(a)(4)(B) by knowingly possessing a
hard drive containing child pornography (with a requisite connection to interstate
commerce).
As relevant here, Geasland moved to suppress the evidence seized in the search of
his apartment, but the district judge, on the recommendation of the magistrate judge,
denied the motion. The thrust of Geasland’s motion was that because the police had
done nothing to confirm the veracity of the account Leppert had given to Terpstra, and
because Leppert was not otherwise a known informant with a track record of supplying
accurate information to the police, her statement alone plainly did not supply probable
cause to search Geasland’s apartment.
Magistrate Judge Crocker thought that the probable cause question was closer than
Geasland’s counsel made it out to be, but it seemed to him that the search warrant was
issued without probable cause as Geasland maintained. R. 38 at 7, 12‐–13. He pointed
out that Leppert was a concerned citizen whose name and address were known to the
police, and she had given them a “vivid and disturbing account, rich in detail” pointing
to the commission of a crime by Geasland. R. 38 at 9. Yet, as Geasland pointed out, the
police had not corroborated Leppert’s statement in any way; nor had they presented
Leppert to the judge who issued the warrant, which would have permitted him to
evaluate her credibility. R. 38 at 10–12. However, even if probable cause was lacking,
the magistrate judge reasoned, the good faith exception to the exclusionary rule
articulated in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984), applied so as to
render the fruits of the search admissible against Geasland. In the magistrate judge’s
view, the warrant was not so lacking in probable cause as to foreclose Terpstra from
reasonably relying on the warrant’s issuance. Terpstra had met with Leppert and had
determined her to be credible. Moreover, although Terpstra had not so noted in the
2
Prior to being charged by federal authorities, Geasland was detained in the
Grant County jail for a period of 21 days, apparently without being charged by local
authorities and without being given access to an attorney. His initial detention was the
subject of a motion to dismiss the federal case against him for outrageous government
conduct. The district court denied that motion. Geasland does not raise it in this appeal.
No. 16‐3047 Page 6
warrant application, he had checked the sex offender registry and confirmed that
Geasland had a prior conviction for child molestation. R. 38 at 14–15. In view of these
circumstances, it would not have been clear to Terpstra that the warrant was invalid.
R. 38 at 15.
Judge Peterson adopted the magistrate judge’s recommendation to deny the motion
to suppress. He was confident that had Terpstra included Geasland’s confirmed status
as a sex offender in the warrant application, there would have been probable cause to
issue the warrant. R. 56 at 2. Absent corroboration of that point in the application,
however, Judge Peterson agreed with Magistrate Judge Crocker that the warrant had
been issued without probable cause. R. 56 at 2. But he also agreed that the good faith
exception rescued the results of the search from exclusion at trial: the warrant was not
so lacking in probable cause as to foreclose Terpstra from relying on the warrant’s
issuance. Focusing solely on the information that had been presented to the judge who
issued the warrant, Judge Peterson was satisfied that Terpstra reasonably could have
thought the warrant to be valid. R. 56 at 3–4. Pointing to our decisions in Gramenos v.
Jewel Cos., Inc., 797 F.3d 432 (7th Cir. 1986), and United States v. Decoteau, 932 F.2d 1205
(7th Cir. 1991), which had sustained a warrantless arrest and automobile search based
on uncorroborated witness statements, the judge reasoned that the warrant application
in this case was not “plainly deficient.” R. 56 at 4. “Leppert’s sworn statement was filled
with factual detail that made it facially plausible” notwithstanding the lack of
corroboration. R. 56 at 4. And the fact that Terpstra met with Leppert, had the
opportunity to question her, and evaluated her credibility indicated that he relied on the
warrant’s issuance in good faith. R. 56 at 4.
With his motion to suppress having been denied, Geasland opted to plead guilty.
His plea agreement reserved the right to appeal the denial of the suppression motion.
In advance of sentencing, Judge Peterson determined that Geasland was subject to a
mandatory 10‐year term of imprisonment in view of his prior state conviction for sexual
assault of a minor. The enhanced minimum term is triggered, inter alia, by a defendant’s
prior conviction under a state law “relating to aggravated sexual abuse, sexual abuse, or
abusive sexual contact involving a minor or ward.” § 2252(b)(2).
The issue as presented to the district court was straightforward: was the state
offense of which Geasland had been convicted fully equivalent to one of the federal
statutory sexual abuse crimes set forth in Chapter 109A of Title 18, in the sense that the
essential elements of the two offenses matched. Neither party considered whether, short
of complete equivalence, the state conviction might still qualify as a predicate offense
under an alternative rationale; implicitly, the parties had agreed that an element‐by‐
element comparison of the state and federal statutes would render a yes‐or‐no answer.
No. 16‐3047 Page 7
That agreement rendered it unnecessary for the court to hypothecate generic federal
offenses of a kind specified by section 2252(b)(2) and to compare the elements of
Geasland’s state conviction to such a generic offense. R. 73 at 4–5. It also obviated any
need to consider whether the state law underlying his conviction might “relate[ ] to” a
sexual abuse offense even if the elements of the state offense did not in all respects
match those of the federal offense (be it statutory or generic). R. 73 at 3–4.
On that understanding, the court undertook a categorical analysis comparing the
elements of Geasland’s 1984 conviction in Wisconsin for first degree sexual assault, see
Wis. Stat. § 940.225(1)(d), with the elements of the federal crime of abusive sexual
contact, see 18 U.S.C. § 2244(a)(5). The Wisconsin statute provided that one was guilty of
first degree sexual assault if he “[h]a[d] sexual contact or sexual intercourse with a
person 12 years of age or younger.” § 940.225(1)(d) (1984). “Sexual contact” was defined
as
any intentional touching by the complainant or defendant, either directly
or through the clothing by the use of any body part or object, of the
complainant’s or defendant’s intimate parts if that intentional touching is
either for the purpose of sexually degrading[,] or for the purpose of
sexually humiliating the complainant or sexually arousing or gratifying
the defendant or if the touching contains the elements of actual or attempted
battery under s. 940.19(1).
Wis. Stat. § 940.225(5)(a) (emphasis ours).
Thus, as Geasland emphasized to the district court, one could commit first degree
sexual assault by intentionally touching, through clothing, an intimate body part of a
person 12 years or younger under circumstances constituting actual or attempted
battery. “Intimate parts” were defined to include the “breast, buttock, anus, groin,
scrotum, penis, vagina or pubic mound of a human being.” Id. § 939.22(19). And the
Wisconsin battery statute proscribed “caus[ing] bodily harm to another by an act done
with intent to cause bodily harm to that person or another without the consent of the
person so harmed.” Wis. Stat. § 940.19(1). “Bodily harm,” finally, was defined as
“physical pain or injury, illness, or any impairment of physical condition.” Wis. Stat.
§ 939.22(4). In sum, under Wisconsin law, one could commit first degree sexual assault
by intentionally touching the intimate body part of a person 12 years old or younger
with the aim of causing pain, and absent any intent to sexually degrade or humiliate the
victim or to sexually arouse or gratify the defendant. In theory, as Geasland points out,
kicking a child in the groin or the buttocks with an intent to cause pain might constitute
such an offense. Cf. State v. Olson, 335 N.W.2d 433, 436–37 (Wis. Ct. App. 1983) (twisting
and pulling minor victim’s penis); State v. Bonds, 477 N.W.2d 265, 267 (Wis. 1991)
No. 16‐3047 Page 8
(comparable statutory provision covering adult victims) (twisting victim’s nipple). As
Judge Peterson observed, the statute thus had a “somewhat unconventionally broad
scope.” R. 73 at 3.
But, as Judge Peterson went on to conclude, the state statute in actuality was no
broader in the range of conduct it reached than the federal statute covering abusive
sexual contact with a minor. Section 2244(a)(5) makes it a crime for someone within
federal jurisdiction to “knowingly engage[ ] in or cause[ ] sexual contact with or by
another person, if to do so would violate—subsection (c) of section 2241 of this title, had
the sexual contact been a sexual act[.]” Section 2241(c) in turn makes it a crime to cross
state lines “with intent to engage in a sexual act with a person who has not yet attained
the age of 12 years.” Section 2246(3) defines “sexual contact” to mean “the intentional
touching, either directly or through the clothing, of the genitalia, anus, groin, breast,
inner thigh, or buttocks of any person within an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person.” (Emphasis ours.) Thus,
setting aside the jurisdictional elements of the federal statutes, one commits aggravated
sexual contact if he, inter alia, touches the (clothed or unclothed) genitalia, anus, groin
breast, inner thigh, or buttocks of a person under the age of 12 with the intent to abuse
that person. Judge Peterson pointed out that there is surprisingly little case law on what
“abuse” means in this context, but looking to common definitions, he concluded that in
the context of sexual abuse it means touching an intimate body part that is “wrongful”
or “harmful”; the term thus serves to distinguish touching that takes place for innocent
or helpful purposes (as by a physician) from touching for an improper purpose,
including inflicting pain. R. 73 at 6–8. And so Judge Peterson concluded that the federal
statute was equivalent to the 1984 version of the state statute in the sense that it reaches
a non‐sexual battery upon an intimate body part. R. 73 at 8.
One important distinction between the two statutes went unnoticed by the parties
and by the district court. Whereas the state sexual assault statute was addressed to
victims aged 12 and under, section 2245(a)(5), with its cross‐reference to section 2241(c),
applies to victims 11 and under. Thus, there is a mismatch between the two statutes to
the degree that one could have violated the Wisconsin statute, but not the federal
statute, by wrongfully touching a 12‐year‐old. That distinction is highlighted by
Geasland on appeal, but it was not one that was raised or addressed below.
Absent the determination that Geasland’s prior conviction qualified as a crime
related to abusive sexual contact of a minor, the range of imprisonment advised by the
Sentencing Guidelines would have been 51 to 63 months; with that determination, the
judge was required to impose a minimum term of no less than 10 years (which became
the Guidelines range by default). Judge Peterson concluded that a term longer than the
No. 16‐3047 Page 9
statutory minimum was not warranted, and he thus ordered Geasland to serve a prison
term of 120 months.
II.
Geasland contends on appeal that the district court erred in denying his motion to
suppress the evidence seized in the search of his apartment, because the warrant
application so obviously failed to establish probable cause to believe that Geasland was
engaged in criminal activity that Terpstra and the other officers who executed the
search warrant could not in good faith have believed otherwise. He also challenges the
district court’s finding that he was subject to the mandatory 10‐year minimum term,
reasoning that his prior state conviction cannot be treated as a predicate offense for
purposes of the enhanced minimum term in view of the age mismatch between the state
and federal statutes proscribing abusive sexual contact with a minor.
A. Denial of motion to suppress
We review the denial of Geasland’s motion to suppress the evidence seized in the
search of his apartment, which is premised on an undisputed set of facts, de novo. E.g.,
United States v. Reed, 744 F.3d 519, 522 (7th Cir. 2014) (district court’s application of
Leon’s good faith exception to exclusionary rule subject to plenary review). The
government concedes for purposes of this appeal that the warrant authorizing the
search was not supported by probable cause. The question, then, is whether the
evidence is nonetheless rendered admissible by Leon’s good faith exception to the
exclusionary rule. Leon holds generally that the fruits of a search should not be
suppressed when officers have reasonably relied on the issuance of a warrant by a
detached and neutral judicial officer in executing the search. 468 U.S. at 920–22, 104
S. Ct. at 3419–20. Reliance on the warrant is deemed reasonable unless (1) the issuing
judge was misled by information in the warrant application that the warrant affiant
knew to be false or would have known was false but for his reckless disregard for the
truth; (2) the judge wholly abandoned his neutral and detached role in issuing the
warrant; or (3) the warrant was so deficient on its face that the officers executing the
warrant could not reasonably presume the warrant to be valid. Id. at 923, 104 S. Ct. at
3421. The third exception to reliance on the warrant is the one relevant here, as there is
no suggestion that the judge who issued the warrant abandoned his role as an
independent decisionmaker or that Terpstra provided him with false information in
seeking the warrant. Geasland’s contention is that the warrant was deficient on its face
because it would have been obvious to any reasonable police officer that the
uncorroborated information Terpstra submitted in support of the warrant did not
establish probable cause to believe that Geasland was involved in criminal activity.
No. 16‐3047 Page 10
Geasland reasons that the law was clear at the time of the search that an
uncorroborated statement from a citizen informant was insufficient to supply probable
cause for the search of his apartment. Given prior precedents which have found
probable cause wanting when the government has relied on the uncorroborated
statement of an informant, e.g., United States v. Koerth, 312 F.3d 862, 867 (7th Cir. 2002),
Geasland argues that the officers executing the search warrant on his residence could
not in good faith have believed that the warrant was supported by probable cause. He
distinguishes the Gramenos and Decoteau cases cited by Judge Peterson which sustained
an arrest and automobile search, respectively, partly on the particular facts of those
cases but also on the broad ground that they did not involve the search of a defendant’s
home, the sanctity of which is a prime focus of the Fourth Amendment, see, e.g., Groh v.
Ramirez, 540 U.S. 551, 559, 124 S. Ct. 1284, 1290 (2004).
As the point is not disputed, we will proceed from the premise that the warrant
authorizing the search of Geasland’s apartment was not supported by probable cause.
Leppert’s statement certainly provided a specific, coherent, and facially plausible
account of criminal conduct on Geasland’s part and gave the authorities reason to
believe that evidence of that conduct would be found in a search of the apartment.3 And
given Leppert’s status as a citizen informant (a point to which we return below) her
statement went a long way, if not all of the way, to establishing probable cause for the
search. Yet Terpstra did next to nothing in the warrant application to corroborate
Leppert’s account, notwithstanding any number of points that could readily have been
verified, including in particular Geasland’s status as a registered sex offender and
Leppert’s status as a tenant in the apartment below Geasland’s.4 Terpstra, of course,
later testified that he did confirm Geasland’s status as a sex offender—a point that
appears to be undisputed—but because he inexplicably failed to disclose that in his own
affidavit, the confirmation lends no support to the warrant or his reliance upon the
warrant. See, e.g., Koerth, 312 F.3d at 866 (where affidavit is sole evidence presented to
judicial officer who issued warrant, “the warrant must stand or fall solely on the
contents of the affidavit”) (quoting United States v. Roth, 391 F.2d 507, 509 (7th Cir.
1967)). The sole respect in which Terpstra’s affidavit corroborates Leppert’s account is
3
For purposes of this appeal, there is no dispute that the facts as Leppert
recounted them reasonably suggested that Geasland was engaged in criminal
activity—specifically, the possession of child pornography. The issue as presented to us
is limited to the lack of corroboration of Leppert’s statement.
4
The record indicates that the owner of the two‐flat operated a business around
the corner from that building.
No. 16‐3047 Page 11
in verifying that a two‐unit residence existed at the address she referenced and that the
lower apartment was currently vacant.5 That extremely limited confirmation did not
meaningfully corroborate the substance of Leppert’s statement.
Proceeding from the premise that probable cause was lacking, we must ask whether
Terpstra and the other officers who conducted the search nonetheless could have relied
in good faith upon the issuance of the search warrant. Specifically, as we noted above,
we must consider whether, as Geasland maintains, it would have been obvious to any
reasonable police officer that probable cause was absent.
“Probable cause is a practical, nontechnical inquiry that asks whether there is a fair
probability, given the totality of the circumstances, that evidence of a crime will be
found in a particular place.” United States v. Orozco, 576 F.3d 745, 748 (7th Cir.2009). It is
“a fluid concept—turning on the assessment of probabilities in particular factual
contexts,” Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 2329 (1983), and as our
colleagues in the Tenth Circuit have observed, “the value of informantsʹ tips in
establishing probable cause is as varied as the myriad of fact situations in which they
arise.”J.B. v. Washington County, 127 F.3d 919, 929 (10th Cir. 1997).
As we noted in Koerth, where an informant’s tip supplies the basis for a search
warrant, the totality‐of‐the‐circumstances inquiry encompasses multiple factors,
including: (1) the extent to which the police have corroborated the informantʹs
statements; (2) the degree to which the informant has acquired knowledge of the events
through firsthand observation; (3) the amount of detail provided; and (4) the interval
between the date of the events and the police officerʹs application for the search
warrant. 312 F.3d at 866. A court should also consider whether the informant personally
appeared and presented an affidavit or testified before the issuing judge, allowing him
or her to evaluate the informant’s knowledge, demeanor, and sincerity. Id.
Several of these factors suggest that it would have been reasonable to think that
Leppert’s account supplied probable cause to search Geasland’s apartment, as both the
magistrate judge and district judge pointed out below. First, Leppert was not repeating
rumor or hearsay in her statement but rather self‐incriminating remarks that Geasland
himself had made to her; his statements would have been admissible against him at
trial. Fed. R. Evid. 801(d)(2)(A); see, e.g., United States v. Maholias, 985 F.2d 869, 877 (7th
5
Terpstra represented that the averments of his affidavit were made on his own
knowledge, so we agree with the government that his affidavit is reasonably construed
to mean that he had confirmed and/or knew that the subject premises were as described
in the affidavit.
No. 16‐3047 Page 12
Cir. 1993). Second, Leppert’s statement was specific and straightforward as to the
details of Geasland’s criminal activity, his criminal history, and the circumstances under
which he had disclosed these details to Leppert. Third, Leppert was describing events
which had taken place barely two days prior, so there was no reason to doubt her
recollection.
The two remaining factors, on the other hand, obviously weaken the case for
probable cause. Terpstra, as we have already discussed, did nothing to meaningfully
corroborate Leppert’s story, notwithstanding the fact that he had the opportunity and
means to do so. Moreover, Leppert herself was not presented as a witness to the judge
who issued the warrant, such that there was an opportunity for the judge himself to
evaluate her credibility.
As Geasland points out, there are multiple cases from this court (pre‐dating the
search of his apartment) which either held or assumed that probable cause was lacking
in the absence of information affirmatively speaking to an informant’s credibility. See
generally United States v. Glover, 755 F.3d 811, 816 (7th Cir. 2014) (“Cases that test the
sufficiency of affidavits for warrants obtained based on informants are highly fact‐
specific, but information about the informant’s credibility or potential bias is crucial.”);
see also, e.g., United States v. Bell, 585 F.3d 1045, 1049–52 (7th Cir. 2009); United States v.
Peck, 317 F.3d 754, 756–57 (7th Cir. 2003); Koerth, 312 F.3d at 867–68; cf. United States v.
Searcy, 664 F.3d 1119, 1123 (7th Cir. 2011) (“given the fact that the informant’s previous
dealings with the police led to three arrests in the past six months, and, as the
magistrate judge in the current case noted, because the informant faced criminal
prosecution for furnishing false information to police, the informant’s information was
sufficiently reliable to compensate for its lack of detail”). If Leppert had been an
anonymous tipster or the sort of informant with a monetary or penal interest in helping
herself by inculpating others, we agree that such cases might have made it obvious that
the search in this case was not supported by probable cause, the issuance of a warrant
notwithstanding.
But this is where Leppert’s status as a citizen informant with direct knowledge of
criminal activity becomes important. For purposes of the probable cause inquiry, our
case law has generally drawn a distinction between anonymous tips, on the one hand,
and information provided by an eyewitness or victim to a crime. As we explained in
Jenkins v. Keating, 147 F.3d 577, 585 (7th Cir. 1998), which dealt with probable cause to
arrest:
“When an officer has ‘received his information from some
person—normally the putative victim or an eyewitness—who it seems
reasonable to believe is telling the truth,’ he has probable cause” to arrest
No. 16‐3047 Page 13
the accused perpetrator. Gramenos v. Jewel Companies, Inc., 797 F.2d 432,
439 (7th Cir.1986) (quoting Daniels v. United States, 393 F.2d 359, 361 (D.C.
Cir.1968)); see also Tangwall v. [Stuckey], 135 F.3d [510] at 519 [(7th Cir.
1998)] (quoting Gramenos); United States v. Decoteau, 932 F.2d 1205, 1207
(7th Cir. 1991); Gerald M. v. Conneely, 858 F.2d 378, 381 (7th Cir.1988)
(citation omitted). Thus, when a supermarket security guard witnesses an
individual shoplifting, and the police arrest the individual based on the
guardʹs report, qualified immunity shields the arresting officers fro m §
1983 liability. See Gramenos, 797 F.2d at 439. Similarly, if a rape victim
positively identifies her attacker to a police officer more than two months
after the assault occurred, and that officer, in turn, relays the identification
to a second officer who then makes the arrest, both officers are entitled to
qualified immunity from suit under § 1983. See Tangwall, 135 F.3d at 520.
So long as a reasonably credible witness or victim informs the police that
someone has committed, or is committing, a crime, the officers have
probable cause to place the alleged culprit under arrest, and their actions
will be cloaked with qualified immunity if the arrestee is later found
innocent. See id. (“Because the law is clear that a believable victimʹs single
identification can provide the basis for probable cause, a reasonable officer
would thus have believed that Tangwallʹs arrest was constitutionally valid
at that point in time.”).
See Matthews v. City of E. St. Louis, 675 F.3d 703, 706–07 (7th Cir. 2012); McBride v. Grice,
576 F.3d 703, 707 (7th Cir. 2009) (per curiam); see also J.B. v. Washington County, supra,
127 F.3d at 929–30 (“[C]ourts traditionally have distinguished between anonymous
tipsters, whose motives and bases of knowledge are unknown to the investigating
officers, and ordinary citizens who identify themselves and report crimes to the police.
Although the courts have eschewed rigid rules, the probable cause case law emphasizes
the importance of corroboration of some amount of the anonymous tipsterʹs
information in establishing probable cause, while presuming the reliability of citizen
informants.”) (citations omitted).
A similar distinction can be drawn with informants who themselves are implicated
in criminal activity. In contrast to citizen informants, informants who have been
arrested or who have been accused of wrongdoing have a motive to cast blame
elsewhere and secure credit for cooperating with the authorities. See United States v.
Olson, 408 F.3d 366, 370–01 (7th Cir. 2005) (“Joseph was not just an informant, but a
newly‐arrested informant, and as such merits a greater dose of skepticism when
assessing his credibility) (citing Williamson v. United States, 512 U.S. 594, 607–08, 114
No. 16‐3047 Page 14
S. Ct. 2431, 2439 (1994) (Ginsburg, J., concurring in part & concurring in judgment) (“A
person arrested in incriminating circumstances has a strong incentive to shift blame or
downplay his own role in comparison with that of others, in hopes of receiving a
shorter sentence and leniency in exchange for cooperation.”)).
Like an eyewitness to a crime, Leppert gave a report of criminal activity—admitted
to her by the perpetrator himself—that Terpstra had reason to think was reliable. She
came forward voluntarily. She supplied her name and address to Terpstra. She gave a
statement in her own hand that was specific, detailed, and plausible. Certain aspects of
the account gave it an air of authenticity, including Leppert’s discussion of the terms
“pedophile” and “hebephile” (the latter term being one with which most people would
not be familiar) and that Geasland used a private online network to view pictures of
naked children (a common modus operandi in the world of child pornography that the
typical layperson would not be likely to know). There was nothing internally
inconsistent or implausible in Leppert’s account (with the possible exception of
Geasland’s candor) that would have given Terpstra reason to question her veracity. A
number of the details she recounted (including Geasland’s prior conviction) could
easily be checked and proven true or false. Terpstra, of course, had the opportunity to
question Leppert and, per his affidavit, found her to be credible. See Decoteau, 932 F.2d
at 1207 (“[I]f it seems reasonable to the police to believe that the eyewitness was telling
the truth, they need not take any additional steps to corroborate the information
regarding the crime before taking action.”); Beauchamp v. City of Noblesville, Ind., 320
F.3d 733, 743 (7th Cir. 2003) (“in crediting the complaint of a reasonably believable
witness or putative victim, the police are under no constitutional obligation to exclude
all suggestions that the witness or victim is not telling the truth”).
Geasland points out that Leppert, in contrast to the security guard in Gramenos,
whose eyewitness account of shoplifting was deemed to supply probable cause for an
arrest, did not face a risk comparable to discharge if her statement proved false. See 797
F.2d at 439 (“The chance that the complainant is pursuing a grudge, a risk in believing
an unknown witness, is small in an institutional setting. The guard who pursues a
private agenda may be fired and disgraced …”); Edwards v. Cabrera, 58 F.3d 290, 294 (7th
Cir. 1995). That is a fair point. But we cannot say that the distinction would have
precluded the police from relying on Leppert’s account. Having come forward on her
own initiative, identified herself to the authorities, and put her accusations in writing,
Leppert put her reputation if not her liberty on the line. As we have said, multiple
aspects of her statement were readily subject to verification, and at a minimum, she
exposed herself to a misdemeanor charge of obstructing a police officer in the event
such efforts proved her account to be false. See Wis. Stat. § 946.41(1) & (2)(a). Moreover,
No. 16‐3047 Page 15
in signing her written statement, Leppert expressly certified that her report was true.
Even if the certification (as opposed to a sworn oath) did not expose her to additional
legal consequences in the event her statement were fabricated, she might well have
thought so. Terpstra, in turn, might reasonably have believed the certified written
statement would carry more weight in the probable cause analysis than an uncertified
written or oral statement.
Certainly one can postulate reasons for Leppert to have falsely accused Geasland of
a crime, as Geasland has suggested. Someone in Leppert’s position, having discovered
her neighbor’s status as a convicted sex offender, might have wanted him removed
from the apartment above hers and concocted the story about his consumption of child
pornography toward that end. But there was nothing to indicate that Leppert was
pursuing a personal agenda in reporting Geasland. (Indeed, it is not hard to imagine
that she might have had Geasland evicted by their landlord had she simply reported his
status as a sex offender. Geasland told her that no one else in town was aware of his
past.) Her statement was facially plausible, and she would have to have been quite
clever to give such a detailed account. In the absence of clues casting doubt upon her
account, the police were not obliged to affirmatively rule out the possibility that she
was lying.
A second distinction with Gramenos also proves to be immaterial. Gramenos dealt
with an arrest rather than the search of a residence, and, as noted earlier, the sanctity of
one’s home lies at the core of the privacy protected by the Fourth Amendment. See Groh,
540 U.S. at 559, 124 S. Ct. at 1290. But taking a person into police custody is as grave an
intrusion upon his liberty and privacy as a search of his home, so we do not discount
the value of arrest precedents in this context. See Payton v. New York, 445 U.S. 573, 585,
100 S. Ct. 1371, 1379 (1980).
Under all of these circumstances, probable cause to search Geasland’s apartment
was not so clearly absent that Terpstra and the other officers could not in good faith rely
on the issuance of the warrant. By no means do we mean to endorse Terpstra’s failure to
include some meaningful corroboration of Leppert’s statement in the application for the
warrant. But given Leppert’s status as a citizen informant and the detailed and plausible
account she had given to Terpstra, we do not believe good‐faith reliance upon the
warrant was precluded.
B. Prior state conviction
The district court determined that Geasland was subject to a mandatory 10‐year
prison term under section 2252(b)(2), in view of his prior conviction in Wisconsin state
court for first degree sexual assault. Section 2252(b)(2) is one of several like sentencing
No. 16‐3047 Page 16
enhancements found in statutes proscribing the sexual exploitation of minors and the
possession, transportation, and distribution of child pornography. See §§ 2252(b)(1);
2252A(b)(1) & (2). An enhanced term is mandated when the defendant, as relevant here,
has a prior conviction pursuant to a state law “relating to aggravated sexual abuse,
sexual abuse, or abusive sexual contact.” § 2252(b)(2). The language following the
phrase “relating to” corresponds closely with the captions of several offenses set forth
in Chapter 109A of the federal criminal code criminalizing various forms of sexual
abuse. Section 2244(a)(5), in particular, proscribes abusive sexual contact with a child
under the age of 12. The parties in this case agreed below that this federal statute was
the one most similar to the Wisconsin statute under which Geasland had been convicted
previously and consequently was the benchmark against which the state offense should
be evaluated.
As the district court did in this case, courts generally apply the categorical approach
set forth in Taylor v. United States, 495 U.S. 575, 599–602, 110 S. Ct. 2143, 2158–60 (1990),
in deciding whether a defendant’s prior conviction in state court was for an offense
“relating to” one of the types of offenses set forth in section 2252(b)(2) and like
enhancements. See United States v. Osborne, 551 F.3d 718, 721 (7th Cir. 2009). That
approach in the current context requires the court first to identify the federal offense
with which the state conviction is to be compared, and then examine the elements of the
state statute under which the defendant was convicted to see whether they correspond
with the elements of the federal offense; the aim of the comparison is to determine
whether the state offense reaches conduct that the federal offense does not. See id. If the
state statute contains alternative elements, such that some forms of the offense may
qualify as predicates when compared with the federal offense while other forms do not,
then the court pursuant to a modified categorical approach is permitted to look at a
limited category of documents (including for example the indictment or information) in
order to ascertain with what form of the offense the defendant was charged. See
Descamps v. United States, 133 S. Ct. 2276, 2283–85, 2293 (2013); Shepard v. United States,
544 U.S. 13, 125 S. Ct. 1254 (2005); Osborne, 551 F.3d at 721. But regardless of whether the
court is engaging in a categorical or modified categorical approach, the relevant inquiry
focuses on the offense of conviction and its elements, not the particular facts underlying
the conviction. Id. Consequently, in examining Geasland’s 1984 conviction for first
degree sexual assault, it matters not what the age of his victim was or the particular way
in which he abused her. What matters is what the Wisconsin statute required to be
proven, and whether the offense as Wisconsin defined it was broader than the
corresponding federal offense.
No. 16‐3047 Page 17
As we detailed above, Judge Peterson, after comparing the elements of the state
offense with the federal offense of abusive sexual contact set forth in section 2244(a)(5),
found that they were equivalent. Geasland has pointed out on appeal, however, that
there is actually a mismatch between the state and federal offenses with respect to how
old the victim of the offense can be. Applying plain error review, however, we conclude
that it is not clear, in retrospect, that the difference in the maximum age of the victim
forecloses the conclusion that the state conviction was pursuant to a state law “relating
to” abusive sexual contact with a minor.
At this point, there is no dispute that the Wisconsin offense of which Geasland was
convicted is broader than its federal counterpart to the extent that the victim of the state
offense could be as old as 12, whereas the federal statute caps the victim’s age at 11. The
age mismatch between the two statutes is obvious, in retrospect, and it would be
dispositive for purposes of the plain error analysis assuming that there necessarily must
be 1:1 correspondence between the elements of the state and federal offenses.6 That
indeed was the parties’ and the court’s operating assumption below. In contending that
the offenses diverged, Geasland focused on the type of conduct prohibited and made no
mention of the victim’s maximum age; his argument was that the state offense as
defined was broader than the federal offense in that the former reached the touching of
an intimate body part that was committed without an intent either to sexually gratify
the abuser or to humiliate the victim. But the district court was satisfied that the statutes
matched in the type of conduct they proscribed, in that both reached the touching of
intimate body parts with an intent to cause pain. Even so, given that the state offense
included a set of victims that the federal offense does not—namely, 12‐year‐olds—then
the two are not fully equivalent. If full equivalence is required, and there is no other
potential offense equivalent to Geasland’s state conviction, then he was not subject to
the 10‐year statutory minimum prison term and necessarily was prejudiced by the
district court’s error in finding that he was.
But as we shall explain in a moment, the age mismatch may not inevitably foreclose
the statutory enhancement. To establish plain error entitling him to relief, then,
Geasland must convince us that there is no alternative rationale pursuant to which
section 2252(b)(2) might have required him to be sentenced to a term of no less than 10
6
There are other federal statutes that reach the sexual abuse of minors aged 12
and over, but those statutes contain requirements that the Wisconsin statute did not. See
18 U.S.C. §§ 2241(c) (use of force, threat, or drug or intoxicant); 2242(2) (person
incapable of understanding or undertaking act); 2243(a) (offender at least four years
older than minor).
No. 16‐3047 Page 18
years. Absent such a showing, Geasland cannot establish that the error with respect to
the age mismatch did not affect his substantial rights. See, e.g., United States v. Prude, 489
F.3d 873, 880–81 (7th Cir. 2007) (on plain error review defendant bears burden of
showing that his substantial rights were affected in the sense that the result of the
proceeding would have been different but for the error).
Recognizing the disadvantage at which plain error review places him, Geasland
contends at the outset that because he argued below that there is a fatal mismatch
between the state and federal offenses, he did not forfeit the argument over the age
divergence notwithstanding his omission to raise that particular point with the district
court. We disagree. Although, as Geasland points out, we have been willing to treat as
preserved an argument that was made below but given “a new twist” on appeal, United
States v. Billups, 536 F.3d 574, 578 (7th Cir. 2008), his argument as to the age mismatch is
more than a modest expansion upon or variant of his challenge in the district court. As
presented to the district court, the parties’ arguments presumed that a full element‐by‐
element match between the Wisconsin offense and section 2244(a)(5) was required; and
because the district court agreed with the government that the state law underlying
Geasland’s conviction was no broader than the federal offense in the sort of abusive
conduct proscribed, the court (understandably) found it unnecessary to consider (a)
whether the state offense might be one “relating to” the federal offense even if the
former were broader in one respect than the latter, or (b) whether the relevant federal
comparator ought to be a generic offense rather than one of the statutory sexual abuse
offenses set forth in Chapter 109A. Had the age mismatch been argued, then the
government no doubt would have pursued these possibilities (as it does now in
defending the sentence) and the district court would have addressed them. We, in turn,
would have the benefit of a fully developed record on these possibilities (i.e., lower
court findings and rationale for us to review). This makes clear how Geasland’s failure
to argue the age point significantly altered the proceeding below and why, as in any
other case where the defendant pursues an objection on appeal that he did not make
below, our analysis should be confined to one for plain error. See, e.g., United States v.
Faruki, 803 F.3d 847, 856 (7th Cir. 2015).
Thus, given his forfeiture, Geasland must demonstrate not only that the district
court committed error, but that the error was plain in the sense that it is obvious in
retrospect, that it affected his substantial rights in that he would not have been subject
to the statutory enhancement absent the error, and that the error seriously impugns the
fairness, integrity, or public reputation of the proceedings. See United States v. Brown,
— F.3d. —, 2017 WL 3205805, at *6 (7th Cir. July 28, 2017) (elements of plain error);
United States v. Seifer, 800 F.3d 328, 329–30 (7th Cir.) (per curiam) (defendant has burden
No. 16‐3047 Page 19
on plain error review to show, inter alia, that error affected his substantial rights), cert.
denied, 136 S. Ct. 430 (2015); Prude, supra, 489 F.3d at 880–81 (to establish that error
affected his substantial rights, defendant must show that result of proceeding would
have been different but for error). Two aspects of section 2252(b)(2) make Geasland’s
burden on plain error review particularly difficult.
First, section 2252(b)(2) indicates that the state conviction must be one “relating to”
to a federal sexual abuse offense. The words “relating to,” are consistently recognized as
broad in meaning. E.g., Mellouli v. Lynch, 135 S. Ct. 1980, 1990 (2015); Dist. of Columbia v.
Greater Washington Bd. of Trade, 506 U.S. 125, 129, 113 S. Ct. 580, 583 (1992). Consistent
with that language, we have said that the state offense in question must be similar to
one of the sexual abuse crimes identified in Title 18, Osborne, 551 F.3d at 721, adding
that “[s]imilar is not necessarily identical,” as the federal statutes have jurisdictional
elements that the state laws do not, and there are forms of sexual abuse that the federal
statutes do not reach that the states have recognized as criminal, id. See also, e.g., United
States v. Sinerius, 504 F.3d 737, 743 (9th Cir. 2007) (identical “relating to” language found
in 18 U.S.C. § 2252A “mandates the enhancement for any state offense that stands in
some relation, bears upon, or is associated with th[e] generic [sexual abuse] offense”)
(citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S. Ct. 2031, 2037
(1992)); United States v. Colson, 683 F.3d 507, 511–12 (4th Cir. 2012) (collecting cases).7
7
We are mindful of the Supreme Court’s admonition in Mellouli that “relating
to” should not be given an overly broad meaning. In that case, the alien petitioner had
been ordered deported based on the Board of Immigration Appeals’ finding that his
misdemeanor conviction for possessing drug paraphernalia was pursuant to a state law
“relating to” a controlled substance as defined by federal statute. See 8 U.S.C.
§ 1227(a)(2)(B)(i). But the petitioner had been convicted of using a sock to conceal tablets
containing one of nine drugs classified as controlled substances under state law but not
on the federal narcotics schedules. Under those circumstances, the Supreme Court
thought it would stretch the meaning of “relating to” beyond the breaking point to say
that the petitioner had been convicted under a state law relating to a controlled
substance simply because he had used drug paraphernalia—the sock—to hide pills not
categorized as controlled substances by federal law. 135 S. Ct. at 1990. As other courts
have said, the relatively unique facts of Mellouli do not counsel against a broad reading
of the phrase “relating to” as used in section 2252(b)(2) and similar statutory sentencing
enhancements. See United States v. Bennett, 823 F.3d 1316, 1322–25 (10th Cir.) (collecting
cases), cert. denied, 137 S. Ct. 319 (2016).
No. 16‐3047 Page 20
This leads the government to argue there that although the state offense of which
Geasland was convicted in 1984 reached minors as old as 12, it relates to the federal
offense of abusive sexual contact notwithstanding the fact that the latter offense does
not reach victims over the age of 11. The sort of conduct reached by the two statutes is
the same; the Wisconsin statute simply reached a slightly broader class of victims by
including 12‐year‐olds. The government’s argument is not implausible: other circuits
have concluded that sexually abusive conduct reached by state statutes may be
considered related to the federal offenses even though not actually criminalized by
federal statute. Cf. United States v. Bennett, supra n.7, 823 F.3d at 1321–25 (state offense of
sexual exploitation of child, including possession of sexually exploitative materials, was
offense “relating to” possession of child pornography, for purposes of section
2252A(b)(2), notwithstanding possibility that state law might punish visual depictions
that would fall outside federal definition of child pornography); United States v. Sullivan,
797 F.3d 623, 640–41 (9th Cir. 2015) (state offenses of sexual intercourse and oral
copulation with a minor under 16 years of age were crimes “relating to” sexual abuse of
a minor for purposes of sections 2251(e) and 2252(b)(2) , notwithstanding lack of mens
rea element, in that they pose risk of physical or psychological harm in light of age of
victim); United States v. Sonnenberg, 556 F.3d 667, 670–71 (8th Cir. 2009) (state statute
proscribing lascivious acts with children was one “relating to” sexual abuse of minor for
purposes of section 2252(a)(2) and 2252(b)(1) notwithstanding fact state offense did not
require physical contact with victim); United States v. Hubbard, 480 F.3d 341, 347 (5th Cir.
2007) (state law criminalizing attempt to make lewd or indecent proposals to child
under age of 16 to have unlawful sexual relations or sexual intercourse was one
“relating to” sexual abuse of minor for purposes of section 2252A(b)(1))
notwithstanding fact that putative victim of offense was actually adult detective and
physical contact with victim was not required). Although none of these cases addresses
a mismatch in age, we have a hard time saying that a modest mismatch in age
forecloses the notion that the state offense relates to the federal offense whereas a
mismatch in the range of abusive conduct reached by the two statutes does not. We are,
after all, talking about 12‐year‐olds, who are still well shy of the age of majority and are
as vulnerable to sexual exploitation and injury as younger children. Cf. United States v.
Shannon, 110 F.3d 382, 387–88 (7th Cir. 1997) (en banc) (treating sexual intercourse with
13‐year‐old as crime of violence), abrogated on other grounds by Begay v. United States, 553
U.S. 137, 128 S. Ct. 1581 (2008).
Geasland contends that the government’s “close enough” approach to the problem
is irreconcilable with the categorical comparison of offenses that Taylor and its progeny
call for. We appreciate the point that if one is looking for a sufficiently close relationship
between the state and federal offenses rather than a 1:1 correspondence of their
No. 16‐3047 Page 21
elements, the inquiry is significantly altered. Nonetheless, the inquiry is still categorical
in the sense that it focuses on the nature of the offenses rather than the details of the
defendant’s prior crime. Presumably, the “relating to” language of section 2252(b)(2)
suggests that the relevant federal offense should be treated as an illustrative example of
a particular category of abusive conduct; the question then becomes whether the
defendant’s prior conviction, as the State defined it, falls into the same category even if
not all elements of the state offense match those of the illustrative federal offense. See,
e.g., United States v. Mateen, 806 F.3d 857, 860–63 (6th Cir. 2015) (holding that court must
follow categorical approach which eschews consideration of facts underlying
defendant’s prior conviction, but concluding in light of section 2252(b)(2)’s “relating to”
language that state law proscribing non‐consensual touching of another person’s
erogenous zone for purposes of sexual arousal or gratification constituted law relating
to sexual abuse, notwithstanding state cases expansively defining erogenous zones to
include arm, shoulder, stomach, mouth and male chest), cert. denied, 136 S. Ct. 1688
(2016); United States v. Barker, 723 F.3d 315, 320–24 (2d Cir. 2013) (per curiam) (holding
that court must follow categorical approach, but concluding in view of section
2252(b)(2)’s “relating to” language that state statutory rape offense may trigger
enhancement if the offense by its nature relates to sexual abuse of a minor “as that
phrase is ordinarily understood,” even if relevant state statute lacks as element a
significant age disparity between perpetrator and victim or other aggravating factor
found elsewhere in federal law); United States v. Spence, 661 F.3d 194, 200 (4th Cir. 2011)
(embracing traditional categorical and modified categorical approaches as useful in
determining whether defendant’s prior state conviction triggered enhanced sentence
under section 2252A(b)(2), but reasoning in light of “relating to” language that state
offense “does not need to satisfy a narrow definition of sexual abuse in order to qualify
as a predicate offense”). As other courts have pointed out, in using the “relating to”
language, Congress likely recognized that the various States have defined sexual abuse
offenses differently and nonetheless intended for the statutory sentencing enhancement
to apply when a defendant’s prior state conviction is of the same nature as the offenses
it listed as predicates for the enhancement without necessarily matching each element
of the federal offense. See United States v. Allen, 750 F.3d 209, 213 (2d Cir. 2014).
All of this serves to highlight the magnitude of the burden that Geasland must carry
in establishing that his conviction clearly is not one that relates to abusive sexual contact
with a minor. Even when the court is following a categorical approach, the breadth of
section 2252(b)(2)’s “relating to” language and the room it leaves for state crimes to
qualify as predicates without full equivalence with the corresponding federal offense
increases the likelihood that any error committed by the district court in deeming
Geasland’s offense to be such a predicate is not obvious. Cf. United States v. Thomas, 835
No. 16‐3047 Page 22
F.3d 730, 734 (7th Cir. 2016) (unsettled nature of legal question prevents any error from
amounting to plain error).8
Compounding the problem for Geasland is a second possibility: Even if his state
offense does not relate to the offense defined by section 2244(a)(5), it might relate to a
generic offense of abusive sexual contact with a minor. We have yet to use generic
offenses for purposes of determining whether a defendant is subject to a sentencing
enhancement pursuant to section 2252(b)(2) or a like provision. In Osborne, for example,
we thought it “best” to use the federal statutory offenses as the comparators. 551 F.3d at
721. For its part, the Supreme Court has deemed it “more than a coincidence” that
section 2252(b)(2) uses nearly the same terminology—“aggravated sexual abuse, sexual
abuse, or abusive sexual contact involving a minor or ward”—that is employed to
caption the offenses defined in Chapter 109A. Lockhart v. United States, 136 S. Ct. 958,
964 (2016). Yet, the Court has left open the question “[w]hether the terms in § 2252(b)(2)
are given their ‘generic’ meaning or are defined in light of their federal counterparts.”
136 S. Ct. at 968 (citations omitted). A number of our sister circuits, however, have
referenced generic offenses in deciding whether a defendant’s prior state conviction
triggers enhanced penalties under section 2252(b)(2); indeed, we are in a minority of
circuits that do not do so. See United States v. Johnson, 681 F. App’x 735, 741 (11th Cir.
2017) (non‐precedential decision) (Martin, J., concurring) (noting that Seventh Circuit is
a “notable exception” to majority practice of referencing generic offenses). Yet, we have
never definitively ruled out the possibility of looking to generic offenses for purposes of
section 2252(b)(2), so it is at least possible that we might look beyond the crimes set
forth in Chapter 109A, particularly given that we are currently among a minority of
courts that do not do so. See United States v. Rezin, 322 F.3d 443, 449 (7th Cir. 2003)
8
We take Geasland’s point as to the degree of uncertainty that the statute’s
“relating to” language introduces into the categorical analysis and the foundation that
uncertainty lays for an argument that the statute is unconstitutionally vague. See Johnson
v. United States, 135 S. Ct. 2551 (2015) (holding residual clause of Armed Career
Criminal Act unconstitutionally vague). But we are aware of no court decision holding
the language found in section 2252(b)(2) indeed to be unconstitutionally vague, and the
mere possibility that such an argument can be made does not demonstrate that it was
plainly erroneous to apply the enhancement to Geasland. See United States v. Caldwell,
655 F. App’x 730, 733 (11th Cir. 2016) (non‐precedential decision) (rejecting as a matter
of first impression vagueness challenge to “relating to” language of sections 2252(b)(1)
and 2252A(b)(1)); Holmes v. Grondolsky, 2017 WL 2435283, at *3 (D. Mass. June 1, 2017)
(likewise rejecting vagueness challenge to section 2252A(b)(1)).
No. 16‐3047 Page 23
(suggesting generic approach “seems more apt” in context of section 2252(b)(2)),
overruled on other grounds by Lockhart, 136 S. Ct. 958.
The government suggests that it is likely if not inevitable that we would describe a
generic federal offense of abusive sexual contact with a minor in such a way as to reach
12‐year‐old victims. Perhaps so. Certainly other circuits have shown a willingness to do
so. See, e.g., United States v. Baron‐Medina, 187 F.3d 1144, 1147 (9th Cir. 1999) (conduct
reached by state statute proscribing the touching of the body of a minor 14 years of age
or younger with lewd or lascivious intent “indisputably falls within the common,
everyday meanings of the words ‘sexual’ and ‘minor’” and thus corresponds to generic
offense of sexual abuse of minor for purposes of 8 U.S.C. § 1101(a)(43)(A)).
Geasland rightly retorts that before we can be satisfied that his offense relates to a
generic offense involving the sexual abuse of a minor, we must be able to articulate
what each of the elements of the generic offense is, not just the maximum age of the
minor victim, so that the elements of his Wisconsin conviction can be compared with
the elements of the generic offense. The government has not attempted to do so, beyond
citing a strain of Ninth Circuit precedent in which the court identified three elements
comprising the sexual abuse of a minor: conduct that is abusive, sexual, and involves a
minor. See United States v. Farmer, 627 F.3d 416, 421 (9th Cir. 2010) (citing United States v.
Medina–Villa, 567 F.3d 507, 513 (9th Cir. 2009)). Whether, in practice, even the Ninth
Circuit defines sexual abuse of a minor so broadly is open to question. See, e.g., United
States v. Caceres‐Olla, 738 F.3d 1051, 1056 (9th Cir. 2013) (indicating that an age
difference of at least four years between the perpetrator and the victim is an element of
sexual abuse of a minor). Moreover, it is possible that the generic offense would not be
as expansive in the conduct it reaches as section 2244(a)(5) is—it might be limited to
contact that is made with an intent to sexually arouse or gratify the perpetrator or to
humiliate the victim and exclude touching that is otherwise “abusive.”
But this is a not a harmless error case in which it would be the government’s burden
to nail down all such details; it is a plain error case in which it is Geasland’s burden to
rule out each possibility under which his offense could be deemed to constitute abusive
sexual contact with a minor. See Fed. R. Crim. P. 52(b); e.g., United States v. Vonn, 535
U.S. 55, 58–59, 62–63, 122 S. Ct. 1043, 1046, 1048 (2002); United States v. Seifer, supra, 800
F.3d at 329–30. Beyond poking a hole here and there in the government’s rationale and
articulating reasons why we might not, as a matter of jurisprudential policy, adopt a
generic approach to section 2252(b)(2), Geasland has not undertaken a comprehensive
analysis demonstrating that sexual abuse of a minor, under any common and
reasonable understanding, necessarily would exclude the state offense of which he was
convicted. It is not obvious to us that it would.
No. 16‐3047 Page 24
To end where we began, it is clear in retrospect that there is a mismatch in age
between the state sexual assault offense of which Geasland was convicted and section
2244(a)(5). But it is not obvious that despite the mismatch, the state offense could not be
deemed one “relating to” the offense set forth in section 2244(a)(5) or, alternatively, to a
generic offense involving abusive sexual contact with a minor. Consequently, any error
applying the enhanced 10‐year minimum term specified by section 2252(b)(2) was not
plain.
III.
Because the police relied in good faith on the issuance of a warrant to search
Geasland’s apartment, the district court did not err in admitting the results of that
search, even assuming that probable cause to support the search was lacking. Nor did
the court plainly err in concluding that Geasland’s prior conviction in Wisconsin for
first degree sexual assault subjected him to a minimum 10‐year term of imprisonment
pursuant to section 2252(b)(2).
AFFIRMED.