In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1070
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VINCENT MERRILL,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cr-00114-1 — John Z. Lee, Judge.
____________________
ARGUED DECEMBER 14, 2021 — DECIDED JANUARY 18, 2022
____________________
Before SYKES, Chief Judge, and HAMILTON and ST. EVE,
Circuit Judges.
HAMILTON, Circuit Judge. Appellant Vincent Merrill
pleaded guilty to producing and possessing child
pornography. He appeals the denial of his motion to
withdraw his pleas. He argues that he received ineffective
assistance from his former attorneys in the form of an
erroneous explanation of the elements of the production
offense. As explained below, Merrill’s attorneys’ advice was
2 No. 21-1070
sound, and in any event he has not shown prejudice from the
supposedly erroneous advice. We therefore affirm Merrill’s
convictions.
I. Facts and Procedural History
Merrill pressured several young girls, each twelve or
thirteen years old, to take and send him sexually explicit
photographs of themselves. In each case, he met the child on
an internet chat site and engaged her in text-message
conversations that became sexual. Central to this appeal are
his interactions with a child, Minor A, who began chatting
online with Merrill when she was thirteen and Merrill was
twenty-five. By text message, Merrill asked many times for
sexually explicit “pics.” In response, Minor A texted him
photographs matching his descriptions. Over about eight
months, Merrill persuaded Minor A to take at least six
sexually explicit photographs of herself and to send them to
him in text messages. He knew that she was younger than
eighteen years old.
Merrill was indicted in February 2016 for two counts of
producing child pornography, both involving Minor A,
18 U.S.C. § 2251(a); two counts of receiving child
pornography, involving Minor A and another minor victim,
18 U.S.C. § 2252A(a)(2)(A); and one count of possessing child
pornography of Minor A and four other minor victims,
18 U.S.C. § 2252A(a)(5)(B). He eventually pleaded guilty to
one count each of producing and possessing child
pornography with respect to Minor A. His written plea
agreement included transcripts of several text-message
exchanges in which he asked Minor A for sexually explicit
photographs and she sent them. The agreement specified that
Merrill “knowingly used, persuaded, induced and enticed
No. 21-1070 3
Minor A to engage in sexually explicit conduct that involved
lascivious exhibition of Minor A’s genitalia, for the purposes
of having Minor A take a photograph of the sexually explicit
conduct.”
At the change of plea hearing, the district court placed
Merrill under oath and engaged in a thorough colloquy under
Rule 11 of the Federal Rules of Criminal Procedure. Merrill
testified that he had read the plea agreement, discussed it
with defense counsel, and understood it. The government
recited the factual basis as set forth in the plea agreement,
including: “At defendant’s direction Minor A took
photographs of herself that involved the lascivious exhibition
of her genitals . … And then she sent those photographs to the
defendant via text message at his direction.” When asked
whether the government’s facts were accurate, Merrill
replied: “Yes I did do that. I just don’t remember because it
was so long ago. But … it says I did it because it was on my
phone.” Defense counsel interjected to explain that, based on
his conversations with Merrill, “it’s not that he doesn’t
remember anything about the offense. It’s that he doesn’t
remember certain details.” The judge asked Merrill whether
he remembered “soliciting photographs and possessing the
types of photographs that are set forth in the plea agreement.”
Merrill confirmed that he did.
Days before the scheduled sentencing hearing, new
counsel appeared for Merrill. His new counsel moved to
withdraw his guilty pleas. Merrill’s motion and supplemental
affidavit asserted that his two former attorneys, Pablo
deCastro and Summer McKeivier, “never explained to him
what it means to produce child pornography under the law”
and “never explained what the elements of the production
4 No. 21-1070
charge were or what the government was required to prove
to establish his guilt.” He argued that these omissions
constituted ineffective assistance and caused him to plead
guilty unknowingly and involuntarily. (He made other
arguments but has not pursued them in this appeal.)
The district court held an evidentiary hearing at which
Merrill and attorneys deCastro and McKeivier all testified.
Merrill swore that neither attorney had ever explained to him
the elements of the production charge. Moreover, he
continued, they both said that he could be found guilty of
production solely because he “asked for the photo and
received the photo and it was on my phone,” and that he
would not have pleaded guilty if he had not believed that
“merely having and asking for the photo made me guilty of
production.”
Merrill’s former lawyers each testified to having explained
to Merrill the differences among the three charges and how
the evidence established each element of the production
charge. Specifically, each told Merrill that he could be
convicted of production based on proof that he had asked the
minors to take and send the sexually explicit photographs and
that the minors had done so at his request. They had also
discussed the text-message transcripts on the phone with
Merrill (although he did not receive copies of the transcripts)
and explained how the government could use them to prove
each element of the production charge.
The district judge denied Merrill’s motion to withdraw his
pleas. The judge credited the attorneys’ testimony and found
that Merrill’s contrary assertions that his lawyers never ex-
plained the elements of the production charge were “simply
not credible.” The judge also observed that Merrill’s assertion
No. 21-1070 5
that he received ineffective assistance was undermined by his
testimony at the change-of-plea hearing that he was satisfied
with their representation and that he had read and under-
stood the plea agreement.
II. Analysis
Merrill renews his ineffective-assistance argument on
appeal and adds that the district judge overlooked a legal
error in deCastro’s and McKeivier’s advice. He does not
challenge the district judge’s credibility findings or dispute
either attorney’s testimony. Rather, Merrill maintains that
both attorneys were “flatly wrong” when they told him that
he could be convicted under § 2251(a) based on evidence that
a minor, at his request, took and sent him sexually explicit
photographs. According to Merrill, his attorneys failed to tell
him that the government would also need to show that he
asked to see the minors’ bodies for the purpose of producing
images. He implies that, as a result, he pleaded guilty when
he otherwise would not have. (Although Merrill seems to seek
withdrawal of his pleas to both production and possession,
his appellate arguments address only the production count.)
We review the denial of Merrill’s motion to withdraw his
pleas for abuse of discretion, though factual findings, includ-
ing whether a plea was entered knowingly and voluntarily,
are reviewed for clear error. See United States v. Barr, 960 F.3d
906, 917 (7th Cir. 2020). Under Federal Rule of Criminal Pro-
cedure Rule 11(d)(2)(B), once a court accepts a guilty plea, the
defendant may withdraw it only for a “fair and just reason.”
Ineffective assistance of counsel that leads to the involuntary
or unknowing entry of a guilty plea can be such a reason. See
Barr, 960 F.3d at 917–18. In assessing whether a defendant re-
ceived ineffective assistance, this court applies the familiar
6 No. 21-1070
standard of Strickland v. Washington, 466 U.S. 668 (1984), ask-
ing whether the attorney’s performance was objectively un-
reasonable and whether, but for the deficient performance,
the defendant would not have pleaded guilty. See Barr,
960 F.3d at 918.
A. Performance
Merrill fails to demonstrate deficient performance by his
former attorneys. The record shows that they gave him sound
advice. Merrill is correct that he may be convicted under
§ 2251(a) only if he acted for the purpose of producing a visual
depiction of sexually explicit conduct. United States v. Fifer,
863 F.3d 759, 768 (7th Cir. 2017). But the fact that Merrill
demanded Minor A take and send him sexually explicit
photographs was sufficient to show that his purpose was, at
least in part, to induce the production of those images. It need
not have been his only purpose. See id. Merrill has never
suggested that he had any other purpose, and we recently
upheld a conviction under § 2251(a) based on similar facts.
United States v. Fredrickson, 996 F.3d 821, 825 (7th Cir. 2021)
(“From the moment Fredrickson persuaded [a minor] to
record and send him sexually explicit videos, he committed a
federal crime [under § 2251(a)] … .”).
Merrill also argues that his former lawyers performed
deficiently because, no matter whether and how the attorneys
explained the offense of production, they failed to ensure that
Merrill understood. He believed—wrongly, he now says—
that he could be convicted if a minor merely sent him an
explicit photograph at his request, and did not understand
that the government had to prove that the minor also took the
photograph at his request.
No. 21-1070 7
We need not wade into the distinction between asking a
minor to take and send photographs and asking her to send
already existing photographs. Merrill admitted to asking
Minor A to take and send photographs. At the change-of-plea
hearing, he testified that he had read and understood his plea
agreement, which specified that he knowingly induced Minor
A to “take,” not just send, an explicit photograph. Merrill later
swore that, at the time he pleaded guilty, he did not in fact
understand the elements of the production charge, but he has
not met the “heavy burden” on defendants who wish to
contradict their own sworn statements. United States v. Smith,
989 F.3d 575, 582 (7th Cir. 2021). As we have noted repeatedly,
“a motion that can succeed only if the defendant committed
perjury at the plea proceedings may be rejected out of hand
unless the defendant has a compelling explanation for the
contradiction.” United States v. Peterson, 414 F.3d 825, 827
(7th Cir. 2005). Judge Lee handled the motion to withdraw
carefully and thoroughly. He did not abuse his discretion in
rejecting Merrill’s assertions.
B. Prejudice
Merrill’s ineffective-assistance arguments also fail because
he cannot show prejudice. Even if he were correct that his
lawyers did not adequately explain the production charge, he
would need to show a “reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty … .” Lee v.
United States, 137 S. Ct. 1958, 1965 (2017), quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
Merrill’s argument that no such showing is required is
without merit; he was not deprived of counsel or otherwise
subjected to a structural error. See Greer v. United States, 141 S.
Ct. 2090, 2100 (2021) (omission of element from jury
8 No. 21-1070
instructions or plea colloquy is not structural error); Neder v.
United States, 527 U.S. 1, 8 (1999) (“[W]e have found an error
to be ‘structural,’ and thus subject to automatic reversal, only
in a ‘very limited class of cases.’”).
To show prejudice, the best Merrill can do is point to
statements in his motion to withdraw and at the evidentiary
hearing swearing that he would not have pleaded guilty if he
had fully understood the charge. Such “post hoc assertions
from a defendant about how he would have pleaded but for
his attorney’s deficiencies” are not, alone, grounds for
withdrawing his pleas. Lee, 137 S. Ct. at 1967. In addition, as
explained above, the government’s evidence of production
was sufficient for a conviction. To the extent Merrill suggests
that the minors sent him only existing photographs already in
their possession, this assertion lacks any support in the
record. One text-message exchange described a real-time
photo shoot directed by Merrill. On a different occasion,
Merrill demanded “nude pics” and told Minor A to “go to the
bathroom and send some,” suggesting she needed privacy to
take the pictures—at that time.
Merrill argues that the court erred in accepting his pleas in
the first place because he said at his change-of-plea hearing
that he remembered only asking the minors to send photo-
graphs. In his view, this testimony demonstrates that he did
not remember asking anyone to take pictures, and so he must
have misunderstood the elements of the offense—he would
not have intentionally pleaded guilty to something that he did
not remember doing.
The argument mischaracterizes the change-of-plea
testimony by taking a piece out of context. Merrill actually
testified that he knew the facts set forth in the plea agreement
No. 21-1070 9
were accurate even though he lacked an independent
recollection of some details. After Merrill said, “yes I did do
that. I just don’t remember it because it was so long ago,” his
attorney clarified: “I don’t think he is trying to say he doesn’t
remember the offense in general. I think he is saying, he
doesn’t remember specific details and takes—accepts as true
the evidence that’s been presented from his phone, and helps
him fill in the details in his memory … .” Merrill did not
dispute this characterization. The judge, with commendable
care, questioned Merrill further and confirmed that he indeed
remembered “engaging in the conduct the government
describe[d].”
Finally, Merrill appears to argue that his former lawyers
were obliged to list for him each element of his offense in the
abstract—that is, without reference to the government’s
evidence or his own conduct. He criticizes their approach of
describing the production charge by explaining how the text
messages could prove each element. This rather fine
distinction, which would require courts to micromanage
counsel’s work, has no support in case law. The Sixth
Amendment right to counsel does not require defense counsel
to discuss with their clients irrelevant hypothetical or abstract
questions. Far better to focus on the evidence against the
particular defendant and the government’s theories and
defenses available in the particular case.
The judgment of the district court is AFFIRMED.