In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2823
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
P ATRICK M. M C K IBBINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 5—Robert W. Gettleman, Judge.
A RGUED M AY 5, 2011—D ECIDED S EPTEMBER 6, 2011
Before M ANION, W OOD , and W ILLIAMS, Circuit Judges.
W OOD , Circuit Judge. On his way to a park in the
suburbs of Chicago, Patrick McKibbins was arrested.
McKibbins thought that he was going to meet “Ashley,”
with whom he had been chatting online for several
months. To his surprise, “Ashley” was a local police officer,
not a teenager. After his detention hearing, McKibbins
called his family and asked them to remove and
conceal some electronics in his bedroom. McKibbins was
2 No. 09-2823
convicted of three crimes in conjunction with these
events; two related to sexual activity with minors, and
one for obstruction of justice.
On appeal, McKibbins argues that the district court
abused its discretion by admitting unduly prejudicial
propensity evidence in violation of Federal Rule of Evi-
dence 404(b). Specifically, McKibbins identifies two
groups of photographs that he thinks should have been
excluded: (1) four images of suspected child pornography,
and (2) over 200 nonpornographic “profile” pictures of
mostly “young looking” women. We find the images to
be direct evidence on the obstruction count and thus do
not reach the Rule 404(b) argument. That said, we agree
with McKibbins that the district court erred by failing
to consider whether the danger of unfair prejudice
from these images substantially outweighed its probative
value, as it was required to do by Rule 403. In the end,
however, we find this error harmless, and affirm.
I
On November 22, 2007, McKibbins was surfing the
internet and ended up in a chat room dedicated to the
subject “Chicago.” There, he sent an instant message
to “Ashley,” who was actually a police officer posing as
a 15-year-old girl; McKibbins was 40 at the time. After
several hours of chatting, at times in sexually explicit
terms, McKibbins asked when he could meet “Ashley,”
who said she lived in a suburb of Chicago. McKibbins
offered to drive down from his home in Milwaukee,
but “Ashley” canceled that meeting. Over the next few
No. 09-2823 3
weeks “Ashley” and McKibbins engaged in five addi-
tional chats. Like the first, these later chats were at
times sexually explicit, and McKibbins masturbated in
front of a webcam at least one time. Over the course of
these online conversations, the officer sent McKibbins a
photograph of an approximately 15-year-old girl in a
cheerleading uniform. The transmittal identified the girl
as “Ashley” and matched the image “Ashley” had used
as a profile picture for the chat room. In reality, the
picture was that of another police officer from her high
school days.
These chats eventually culminated with a second plan
to meet in person, this time on January 3, 2008, at a park
near “Ashley’s” house. That afternoon, while being fol-
lowed by federal agents, McKibbins left his house, drove
to the Chicago area, and called an undercover phone
number to talk to a police officer posing as “Ashley.” The
phone call confirmed the meeting, and so McKibbins
left the highway, parked his car, and proceeded toward
the park. McKibbins was arrested on the way, however,
and a search incident to arrest turned up two boxes
of condoms in his pocket. Though local police officers
spearheaded the online investigation, McKibbins was
taken into custody by the federal agents who had
tracked his trip across state lines.
A few days later, McKibbins appeared for a detention
hearing, at which he learned that the government had
obtained a search warrant allowing agents to search and
seize his computer and other electronic storage devices.
He also learned that the officers might be going to his
4 No. 09-2823
home that afternoon. With a sense of urgency, McKibbins
made several calls to family members with whom he
lived in Milwaukee. (McKibbins lived in his mother’s
house.) In the first call, McKibbins emphasized his
concern that the government would take his computer.
Though he said that he was “just taking precautions” and
did not “think there’s anything on the computer” he
admitted that he would “play around on the computer,”
which is why he asked his brother to “get that damn
computer” out of his bedroom and hide it in the crawl-
space behind a closet. McKibbins also asked his brother
to give a number of CDs and floppy disks located near
his gerbil cage to a family member named John. In the
second call, McKibbins briefly spoke with his mother
and then with John. John, however, was worried that
touching anything in McKibbins’s bedroom might
make him an accessory to some crime; he presciently
implored McKibbins to stop trying to have people “get
rid of that thing” because “they’re gonna figure you’re
trying to hide something if you do that.” McKibbins
responded: “I don’t really want them, basically, to have my
computer.” McKibbins again said he had not “done”
anything on the computer other than “receive[] shit.”
He was particularly worried about his chat room history
and instant messages he had sent to other young, poten-
tially minor, women. As he did in the first call,
McKibbins tried to persuade John to hide the disks near
his gerbil cage, which included games and a CD labeled
“Cat Women.” John refused to touch anything. In a
third call, McKibbins again asked his mother to give the
Cat Women disc to John. All these efforts were unsuccess-
No. 09-2823 5
ful: the government agents executed the warrant and
seized the computer, CDs, and floppy disks.
These events led to a three-count indictment against
McKibbins for (1) knowingly attempting to persuade a
minor to engage in sexual activity, 18 U.S.C. § 2422(b);
(2) travel in interstate commerce for the purpose of en-
gaging in a prohibited sexual act with a minor, id. at
§ 2423(b); and (3) obstruction of justice for attempting
to destroy his electronics with the intent to deprive
the government of its use, id. at § 1512(c). Before trial,
through a motion in limine, the government revealed
its plan to introduce two sets of evidence from the materi-
als seized at McKibbins’s house: first, it wanted to use
four pictures of suspected child pornography; and
second, it intended to introduce over 150 “profile”
pictures of mostly young women. Many of the photo-
graphs in the latter group were cached on McKibbins’s
computer as head-shots of women with whom he had
chatted online either through a website called PalTalk
or via instant messages sent on Yahoo! Messenger.
McKibbins opposed the motion, arguing that the
images were propensity evidence barred by Rule 404(b),
and in any event were unfairly prejudicial. The district
court initially allowed the images on three alternative
bases: (1) as direct evidence on the obstruction charge;
(2) as evidence that was “inextricably intertwined” with
the obstruction charge; or (3) as evidence of McKibbins’s
intent or motive, which are acceptable alternate
purposes recognized by Rule 404(b). Thereafter, the
government introduced nine more profile images, which
the district court admitted. In so doing, the court relied
6 No. 09-2823
on its first rationale alone—that the evidence was
“directly related to what [McKibbins] attempted to de-
stroy.” Just before trial, the government sought to intro-
duce yet another 100-picture batch of profile images
of young women. It found these on the Cat Women CD.
In granting this motion, the district court rejected
McKibbins’s argument that the images were cumulative,
ruling instead that “[b]ecause it’s an obstruction
charge, everything he’s tried to obstruct and the volume
of the stuff he’s trying to obstruct goes to his motive.”
Also on the hard drive and Cat Women CD were copies
of the cheerleading picture, but McKibbins has not chal-
lenged the introduction of that photograph.
The case went to the jury, which convicted McKibbins
on all three counts. This appeal followed.
II
The only issue before us is whether the district court
abused its discretion in admitting the images found at
McKibbins’s house and, if so, whether that error was
nonetheless harmless. Because we have disapproved of
the “inextricably intertwined” rationale, United States v.
Gorman, 613 F.3d 711, 719 (7th Cir. 2010), and the district
court did not focus on it much, we ignore it. In fact,
McKibbins concedes that the district court admitted
the suspected child pornography and profile pictures as
direct evidence of the obstruction charge. The question
then becomes whether the district court was right to
categorize those images in this way, or if it instead
needed to treat them as images of prior bad acts under
No. 09-2823 7
Rule 404(b). Because we find that the district court did
not abuse its discretion by deeming the images evidence
on the obstruction count, we do not reach the question
whether the evidence could have come in under
Rule 404(b) (although we see this as a much closer call), as
Rule 404(b) is not concerned with direct evidence of a
charged crime. See United States v. Adams, 628 F.3d 407,
414 (7th Cir. 2010).
Under section 1512(c), the government had to prove
that McKibbins “corruptly” altered, destroyed, mutilated,
or concealed the images on his computer, CDs, and disks,
and that he did so with the intent to impair the objects’
“integrity or availability for use in an official proceeding.”
18 U.S.C. § 1512(c). The intent element is important here
because the word “corruptly” is what “serves to separate
criminal and innocent acts of obstruction.” United States v.
Matthews, 505 F.3d 698, 705 (7th Cir. 2007). In Arthur
Anderson, LLP v. United States, 544 U.S. 696 (2005), the
Supreme Court emphasized the government’s burden in
proving intent for an obstruction offense under section
1512(c). Without a showing of a willful, corrupt mens rea
that has a nexus to an official proceeding, the govern-
ment cannot meet its burden. See id. at 704-08; see also,
e.g., United States v. Aguilar, 515 U.S. 593, 598-600
(1995); Matthews, 505 F.3d at 707-08.
The district court’s theory was that everything on the
computer was direct evidence of obstruction because
it demonstrated why McKibbins worked so hard to get
one of his family members to destroy or hide the
electronic storage media. We think this is a fair reading of
8 No. 09-2823
the phone calls described above. The timing of the
phone calls is especially revealing. McKibbins made these
somewhat frantic calls after a detention hearing that
focused heavily upon whether he could be given bail
in exchange for his computer, and in which he found out
that the government was planning to execute a search
warrant for the electronics that day. Given the nature
of McKibbins’s courtship with the officer posing as
“Ashley,” he had every reason to be worried, as he
must have known that the government would find addi-
tional incriminating images or chats on his computer.
This evidence of obstruction was helpful even though,
given the nature of the government’s sting operation
and the obvious manner in which McKibbins tried
to conceal the electronics, the government had ample
probative evidence—including transcripts of the phone
calls, the chat logs, and the cheerleader picture on the
hard drive and Cat Women CD—of McKibbins’s
“corrupt intent” even apart from the profile images or the
suspected child pornography.
The Federal Rules of Evidence do not limit the govern-
ment to the “most” probative evidence; all relevant evi-
dence is admissible and the Rules define relevance
broadly as evidence “having any tendency to make the
existence of any fact . . . more probable or less probable.”
F ED. R. E VID. 401; id. at R ULE 402; see generally Old Chief
v. United States, 519 U.S. 172, 178-79 (1997) (discussing
the relation between Rules 401 and 402). The images
introduced meet this broad standard and drive home
McKibbins’s mens rea. Especially telling are McKibbins’s
admissions that he had been “receiving shit” online and
No. 09-2823 9
his numerous references during the phone calls to
instant message conversations with other women he
suspected were under-age. The suspected pornography
and profile pictures could have related precisely to
these concerns. With these facts in the record, and the
Supreme Court’s emphasis in Arthur Anderson on the
government’s burden in proving the intent element
under the obstruction statute, we cannot conclude the
district court abused its discretion here.
McKibbins resists this conclusion by pointing to
United States v. Black, where we explained that section
1512(c) does not “require proof of obstruction, as distinct
from intent to obstruct, in order to convict.” By this
we meant that the statute does not include a “material-
ity” requirement, because denying the importance or
materiality of a piece of evidence is itself a form of ob-
struction. 625 F.3d 386, 389 (7th Cir. 2010). The
relevant intention is directed at making the gov-
ernment’s job harder in proving its case, not at actually
succeeding in that effort. Thus, the government was not
required to prove that anything related to the two sex-
offense charges turned up on the hard drive, CDs, or
disks. See id.; United States v. Senffner, 280 F.3d 755, 762
(7th Cir. 2002). McKibbins is right, then, that it was not
mandatory for the government to prove materiality, but
that does not mean that the converse—that it would be
error for the government to demonstrate materiality—is
true. The more material the evidence, the stronger the
inference of intent will be, and the district court was
entitled to allow this evidence on those grounds. In fact,
in some instances, demonstrating materiality might be
10 No. 09-2823
necessary to show a “corrupt” mens rea. If, for example,
documents are routinely destroyed after a given time,
then a suspect’s following that standard policy even in
the shadow of an official proceeding might seem innocu-
ous, unless the government could tell a convincing story
that the destroyed information was material.
But, as McKibbins points out, even if the images are
direct evidence, the court still had an obligation to
evaluate the evidence under Rule 403, which is incorpo-
rated into the Rule 404(b) analysis. See United States v.
Hicks, 635 F.3d 1063, 1069 (7th Cir. 2011). This was the
main thrust of McKibbins’s opposition to the motion in
limine filed by the government. Under Rule 403, the
district court should exclude evidence when its “proba-
tive value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.”
F ED. R. E VID. 403. Because all probative evidence is to
some extent prejudicial, we have consistently em-
phasized that Rule 403 balancing turns on whether the
prejudice is “unfair.” See, e.g., United States v. Hanna, 630
F.3d 505, 511 (7th Cir. 2010); United States v. Zawada, 552
F.3d 531, 535 (7th Cir. 2008).
The district court conducted no weighing of the
evidence—or if it did, it said nothing about this—even
after admitting it as direct evidence or as relevant to
intent under Rule 404(b). This was error. When presented
with an objection regarding unfair prejudice, we have
been clear that a court must balance probative value
No. 09-2823 11
against unfair prejudice. See, e.g., United States v. Moore,
641 F.3d 812, 822-23 (7th Cir. 2011). Had the district court
admitted the evidence on Rule 404 grounds without any
further elaboration, it would have been more difficult to
identify the error as harmless. See, e.g., United States v.
Ciesiolka, 614 F.3d 347, 356-58 (7th Cir. 2010); States v.
Beasley, 809 F.2d 1273, 1278-80 (7th Cir. 1987).
As direct evidence of obstruction, however, this evi-
dence was unobjectionable. See United States v. Cooper,
591 F.3d 582, 590 (7th Cir. 2010) (applying harmless
error analysis to evidentiary errors). McKibbins has not
shown how the profile images caused significant
prejudice to his case; though the number was great, and
we realize that cumulative evidence can itself risk unfair
prejudice under Rule 403, see Old Chief, 519 U.S. 179-80
(noting that cumulative evidence can be unfairly prejudi-
cial), most of the profile photographs are benign. We
can assume that the four “suspected” child pornography
photographs were prejudicial in the literal sense. In
this posture, however, it is hard to see how they were
unfairly prejudicial on the obstruction charge, given
that the cheerleading photo was located alongside
these images and McKibbins was worried about the fact
that he had been “receiving shit” online. More than the
profile pictures, the images that might have depicted
child pornography were powerful evidence of McKib-
bins’s motive for obstruction.
In any harmless error analysis, we also consider the
evidence the government had on the case generally.
United States v. Ochoa, 229 F.3d 631, 640 (7th Cir. 2000).
12 No. 09-2823
Here, the other evidence was overwhelming. For the
obstruction charge, the government had the actual
phone conversations along with the warnings from
McKibbins’s family that he could be creating more trouble.
The close temporal proximity between the detention
hearing and his ill-conceived phone calls bolstered its
case as well. For the incitement and travel charges, the
government had months of instant messages, which
were at times sexually explicit, and a seven-minute
video of McKibbins masturbating into a webcam for
“Ashley.” McKibbins actually drove down to Illinois
from Milwaukee with federal agents conducting sur-
veillance of the trip, and the government caught
McKibbins ready for his tryst with condoms. This
evidence convinces us that any error from admitting the
pictures did not affect his substantial rights and there-
fore must be disregarded as harmless. F ED. R. C RIM .
P. 52(a).
III
While we find the error harmless and affirm
McKibbins’s conviction, we note in closing that the gov-
ernment could have made this case much simpler. It
was unnecessary to flood the jury with the profile photo-
graphs; instead, the prosecutors could have made the
point with a sample. This is not, we emphasize, a limita-
tion on the government’s discretion to try its case. We
are making a more practical point: when juries are con-
fronted with an avalanche of images in a case otherwise
supported by such strong evidence, we are more likely
No. 09-2823 13
to worry that the line between fair and unfair prejudice
has been crossed and that the government is just trying
to prove the defendant is a “bad guy.” This is especially
true when, as here, the government argues that porno-
graphic images convey an intent to molest a child. We
have too often seen cases where the government blurs
the line between possession of images and the more
serious crimes charged in the indictment. See, e.g., United
States v. Chambers, 642 F.3d 588 (7th Cir. 2011). As we
have noted, these issues require special attention in
cases involving sex crimes generally, and even more so
in cases involving crimes against minors, where the
nature of the crime makes the propensity inference
difficult to resist. See, e.g., United States v. Courtright, 632
F.3d 363, 370 (7th Cir. 2011); United States v. Cunningham,
103 F.3d 553, 556-57 (7th Cir. 1996). Compare F ED. R.
E VID. 413-14 (permitting propensity evidence for certain
sex crimes). In addition, we observe that a limiting in-
struction would have been useful here to clarify precisely
what the photographs were being used for. That kind of
guidance would have steered the jury away from the
propensity inference it might otherwise have used.
The judgment of the district court is A FFIRMED.
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