In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1597
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ONALD J. M C G UIRE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 716-1—Rebecca R. Pallmeyer, Judge.
A RGUED N OVEMBER 9, 2010—D ECIDED D ECEMBER 2, 2010
Before P OSNER, T INDER, and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. The defendant was convicted
by a jury of traveling in interstate and foreign com-
merce for the purpose of having sex with a minor, and
was sentenced to 25 years in prison. His appeal argues
that while he indeed had sex with minors on trips that
crossed state and national boundaries, sex was not the
purpose of the travel. He further argues that the judge
should have excluded the testimony of other minors,
besides the one whom he was charged with molesting,
2 No. 09-1597
under Rule 403 of the Federal Rules of Evidence, on
the ground that the additional testimony was unduly
prejudicial. He does not challenge his sentence.
McGuire was a prominent Jesuit priest who in 1983
had begun serving as the spiritual director of Mother
Teresa’s order of nuns—the Missionaries of Charity—and
as her confessor. A resident of Canisius House, in
Evanston, Illinois, a dwelling for Jesuit priests, he led
retreats all over the world modeled on the spiritual exer-
cises of Saint Ignatius of Loyola, the founder of the
Jesuit order. In 1997, when his molestation of a boy
named Dominick began, he was elderly—67—and suf-
fering from a long list of diseases, including diabetes
and asthma, and disabilities resulting from frequent
surgeries. He recruited boys such as Dominick to accom-
pany him on his travels to the retreats, explaining that
he needed the boys to carry his bags, to provide him
with medications, physical therapy, and massages, and
to wash his feet.
He used the boys for sex as well. Dominick was a father-
less child of 13 who became the defendant’s ward.
From 1997 to 2001 the defendant engaged in frequent
sexual activity with Dominick, often on trips to retreats;
the details of the activity need not detain us. He engaged
in similar acts with the four other boys who testified,
and indeed with many more. His sexual predation
(which had begun long before—perhaps decades be-
fore—his molestation of Dominick began) involved the
following modus operandi: sleeping in the same bed
with the boys; receiving massages from them that began
No. 09-1597 3
innocently but evolved into sexual fondling of him that
he commanded them to perform; displaying porno-
graphic movies and magazines to “educate” the boys
about sex and the “beauty of the human form”; eliciting
confessions that they had masturbated and threatening
to expose as a masturbator any boy who complained
about molestation; and insistence that complaint would
be futile because no one would believe that a priest of
the defendant’s prominence was a pedophile.
The defendant’s religious superiors began to be suspi-
cious of him as early as 1991, though he was not de-
frocked until 2008. In 1991 they ordered him not to
travel with anyone under the age of 18. In 1995
the threshold was raised to 21 and in 2001 to 30. In 2000
they forbade his having his young assistants stay with
him at Canisius House. He continued to travel with
boys after being forbidden to do so. His defense at trial
was that Dominick had concocted a false claim of sexual
molestation in the hope of obtaining money.
The defendant was charged with violating 18 U.S.C.
§ 2423(b), which is one of four closely related provisions
of the federal criminal code. The four are as follows:
18 U.S.C. § 2421: Whoever knowingly transports
any individual in interstate or foreign commerce, or
in any Territory or Possession of the United States,
with intent that such individual engage in prostitu-
tion, or in any sexual activity for which any person
can be charged with a criminal offense, or attempts
to do so, shall be fined under this title or imprisoned
not more than 10 years, or both.
4 No. 09-1597
18 U.S.C. § 2423(a): Transportation with intent to
engage in criminal sexual activity.—A person who
knowingly transports an individual who has not
attained the age of 18 years in interstate or foreign
commerce, or in any commonwealth, territory or
possession of the United States, with intent that the
individual engage in prostitution, or in any sexual
activity for which any person can be charged with a
criminal offense, shall be fined under this title and
imprisoned not less than 10 years or for life.
18 U.S.C. § 2423(b): Travel with intent to engage in
illicit sexual conduct.—A person who travels in
interstate commerce or travels into the United States,
or a United States citizen or an alien admitted
for permanent residence in the United States who
travels in foreign commerce, for the purpose of en-
gaging in any illicit sexual conduct with another
person shall be fined under this title or imprisoned
not more than 30 years, or both.
18 U.S.C. § 2423(c): Engaging in illicit sexual conduct
in foreign places.—Any United States citizen or alien
admitted for permanent residence who travels in
foreign commerce, and engages in any illicit sexual
conduct with another person shall be fined under
this title or imprisoned not more than 30 years, or both.
Section 2421 is the original Mann Act, as amended in
minor respects. Section 2423(a), intended to protect
minors from sexual predation, mirrors the Mann Act but
imposes more severe penalties. Section 2423(b), the provi-
sion under which the defendant was prosecuted, was
No. 09-1597 5
added to expand the protection of minors still further;
it punishes travel in interstate commerce even if no
minor is transported, if the purpose of the travel is sex
with a minor. (Prosecutors frequently use this section to
prosecute persons who cross state lines to rendezvous
with minors whom they meet in online chat rooms.
See, e.g., United States v. Buttrick, 432 F.3d 373 (1st Cir.
2005).) Section 2423(c) was added to punish persons who
travel in foreign commerce and have sex with a minor in
the course of the trip regardless of what the defendant
intended when he set out on it.
It is apparent that if, as the jury found, the defendant
had molested Dominick on their travels, he violated
sections 2421, 2423(a), and 2423(c). E.g., United States v.
Bonty, 383 F.3d 575, 578 (7th Cir. 2004); United States v.
Snow, 507 F.2d 22, 23 (7th Cir. 1974); United States v. Hitt,
473 F.3d 146, 150 (5th Cir. 2006). But inexplicably the
government charged the defendant only with violating
section 2423(b), which requires that the travel be for
the purpose of engaging in illegal sexual activity. This
charging decision (which the government’s lawyer was
unable to explain to us at the oral argument) enabled the
defendant to argue that the purpose of his trips was
merely to conduct retreats; sex was not the purpose
but a welcome byproduct (if the government’s evidence
was believed) of the opportunities that the retreats
created, as the boys were more vulnerable when far
from home and the defendant’s molestation of them
was less likely to be detected by his religious superiors,
who as we know had suspected him for many years of
6 No. 09-1597
being a child molester yet had taken no effective steps
to protect young boys from him.
The courts have had trouble dealing with cases in
which the travel prosecuted under section 2423(b) may
have had dual purposes, only one of which was to have
sex with minors. The statute says “the” purpose must
be sex rather than “a” purpose, but in United States v.
Vang, 128 F.3d 1065, 1068 (7th Cir. 1997), we approved
a jury instruction which said that sex didn’t have to be
“the sole purpose” of the travel, though it did have to be
“a dominant purpose, as opposed to an incidental one. A
person may have more than one dominant purpose
for traveling across a state line.” To speak of multiple
dominant purposes is not idiomatic, but given the evi-
dence in Vang the precise wording of the instruction
hardly mattered. Other cases, too, fasten on “dominant,”
but then define it down to mean “significant,” “efficient
and compelling,” “predominat[ing],” “motivating,” not
“incidental,” or not “an incident” to the defendant’s
purpose in traveling. E.g., United States v. Julian, 427
F.3d 471, 485 (7th Cir. 2005); United States v. Hitt, supra,
473 F.3d at 152; United States v. Hayward, 359 F.3d 631, 637-
38 (3d Cir. 2004); United States v. Meacham, 115 F.3d 1488,
1495-96 (10th Cir. 1997); United States v. Campbell, 49
F.3d 1079, 1083-84 (5th Cir. 1995); United States v. Ellis,
935 F.2d 385, 390 (1st Cir. 1991); United States v. Bennett,
364 F.2d 77, 79 (4th Cir. 1966).
These verbal formulas are strained; the courts turn
handsprings trying to define “dominant” as if it were a
statutory term, see, e.g., United States v. Miller, 148 F.3d
No. 09-1597 7
207, 212-13 (2d Cir. 1998), which it is not. It would be
better to ask whether, had a sex motive not been
present, the trip would not have taken place or would
have differed substantially. See, e.g., United States v.
Snow, supra, 507 F.2d at 24; United States v. Farley, 607
F.3d 1294, 1335 (11th Cir. 2010); United States v. Meacham,
supra, 115 F.3d at 1495-96.
We can place the blame for judicial preoccupation
with the word “dominant” on the Supreme Court, which
in Mortensen v. United States, 322 U.S. 369, 374 (1944), a
Mann Act case, said that engaging in forbidden sexual
activity “must be the dominant purpose of such
interstate movement.” That was dictum, because the
sole purpose of the movement in question was to give
several prostitutes an innocent vacation—that is, one in
which they would not be plying their trade. There
were not multiple purposes, of which one was sexual,
so there was no occasion to identify a dominant purpose.
But later cases, ignoring Justice Holmes’s admonition to
think things not words, have tended to treat “dominant
purpose” as if it were the language of the Mann Act
itself, and, later still, as if it were the language of the
statutes, including 18 U.S.C. § 2423(b), that restate
and extend the Act; and from the cases the term
entered jury instructions. (The evolution of “dominant
purpose” is considered at length in our opinion in United
States v. Vang, supra, 128 F.3d at 1070-72.) The Fourth
Circuit stated sensibly in United States v. Bennett, supra,
364 F.2d at 77, 78 n. 4, that “the ‘dominant motive’ test
seems completely inappropriate in any case involving
8 No. 09-1597
multiple purposes, some of which were legitimate but
one of which is proscribed by [section] 2421,” and equally
by section 2423(b). But the defendant does not challenge
the jury instructions, so the only question is whether
the jury was unreasonable in convicting him.
To answer the question we need to be clear about the
meaning of the statutory term “travels”; that will get us
further than worrying the word “dominant.” To say that
a sexual predator “travels” in interstate or foreign com-
merce to a retreat is not a full description of the travel
in this case. He travels in interstate or foreign commerce
to a retreat in the company of a boy he intends to mo-
lest—that is the full description. The purpose of the
travel so understood is to engage in illegal sexual conduct.
See United States v. Meacham, supra, 115 F.3d at 1495-96;
United States v. Ellis, supra, 935 F.3d at 390-91.
At the oral argument we put the following hypothetical
case to the defendant’s lawyer. A man who travels fre-
quently abroad on business has two assistants. One is an
older woman. The other is young and beautiful. He needs
only one of the assistants to accompany him; they are
equally competent; but he chooses to take the young
woman because he hopes to have sex with her. The pur-
pose of his travel is business; but the purpose of his
travel with this assistant rather than the other one is
sex—legal sex, in the example, but that’s not the point;
the point is that the purpose of his choosing this partic-
ular way to travel is sex rather than business. Cf. United
States v. Snow, supra, 507 F.2d at 24; United States v.
Meacham, supra, 115 F.3d at 1495-96. The defendant’s
No. 09-1597 9
lawyer was unable to distinguish the present case from
our hypothetical case.
It would be different if in that case the traveling busi-
nessman had only one assistant, the beautiful young
woman. He hopes that he might have sex with her on
the trip, yet he would have made the same trip, taking
her with him, even if he had had no such designs. In
that event sex would not have been the purpose of the
trip with her, but a possible bonus that could however
have played no part in his decision to take the trip—he
was ordered to take it and needed, for purely business
reasons, to take the assistant with him. Compare Hansen
v. Haff, 291 U.S. 559, 563 (1934) (“if the purpose of the
journey was not sexual intercourse, though that be con-
templated, the statute is not violated”), with Ghadiali v.
United States, 17 F.2d 236, 237 (9th Cir. 1927) (the de-
fendant “had a right to cause [his secretary] to be trans-
ported in interstate commerce in the discharge of her
secretarial duties without transgressing the provisions
of the law; but if, in addition to the secretarial duties,
it was also his purpose to have sexual intercourse with
her, and, entertaining such purpose, transported her in
interstate commerce, he would be guilty”).
After 1991 the defendant was forbidden to travel with
minors to his retreats—and all the trips with Dominick
took place after that. If a trip has dual purposes, one
licit but intended to bolster an illicit sexual purpose, the
sexual purpose is “the” purpose, in a reasonable sense
of the word. Suppose a salesman employed by Sears
Roebuck is directed by Sears to travel to Singapore to
10 No. 09-1597
sell clothes dryers there. Instead he travels to Bangkok
because he wants to patronize child prostitutes. He
sells some clothes dryers in Bangkok in the intervals
between his visits to the child prostitutes and alters
the invoices to make it seem that the sales occurred in
Singapore. The purpose of his travel would be sex rather
than business, though business would be transacted
during the trip. See United States v. Snow, supra, 507 F.2d at
24; United States v. Meacham, supra, 115 F.3d at 1495-96;
United States v. Farley, supra, 607 F.3d at 1335; United States
v. Bredimus, 234 F. Supp. 2d 639, 646 (N.D. Tex. 2002),
affirmed, 352 F.3d 200 (5th Cir. 2003). The defendant in
our case had, so far as appears, broad latitude con-
cerning the number and location of the retreats he led,
and he configured his travels to optimize his sexual
activity.
We turn to the defendant’s objection to the testimony
by the four other boys (like Dominick, adults when they
testified) whom he molested. The district judge was
concerned about the possibility of undue prejudice and
helpfully placed on the record her pretrial discussion of
the issue with counsel, facilitating appellate review.
The testimony was admissible as evidence of the defen-
dant’s modus operandi (and thus not excludable under
Rule 404(b) of the Federal Rules of Evidence, see United
States v. Zahursky, 580 F.3d 515, 524-25 (7th Cir. 2009))
and it was also admissible under Rules 413 and 414 as
evidence of the defendant’s previous crimes of sexual
assault and child molestation, demonstrating a pro-
pensity to commit such crimes. E.g., United States v. Rogers,
587 F.3d 816, 821 (7th Cir. 2009).
No. 09-1597 11
Like other evidence, such testimony is subject to the
limitations that Rule 403 places on evidence that is
unduly prejudicial, confusing, or repetitious. Id. at 822-23.
The judge was concerned lest the jury be overwhelmed
by profoundly disturbing and highly emotional testi-
mony of numerous witnesses, which would deflect the
jurors from careful consideration of the only actual issue
they had to decide, which was whether the defendant
had traveled with Dominick for the purpose of sexually
abusing him. On the basis of the striking similarities
among the experiences of each of the victims, the judge
tentatively ruled that she would allow the government
to call one witness whom the defendant had abused
besides Dominick, while reserving decision on four
others until after the defendant’s cross-examination of
Dominick. In the end she allowed testimony by three
others.
The evidence was material because the defense was
that Dominick was a liar. Although the defendant him-
self did not testify, the defense presented more witnesses
than the government—witnesses who testified to the
defendant’s sterling character. The evidence of the other
boys established the defendant’s propensity for, and
modus operandi of, molestation of young boys and by
doing so bolstered Dominick’s testimony.
The defendant particularly objects to the boys’ testi-
mony about the shame and fear that dissuaded them
from telling their parents or others about what he had
done to them until they had grown up and escaped his
control. But this testimony was invited by the brutal cross-
12 No. 09-1597
examination of Dominick by the defendant’s lawyer and
by the argument that Dominick’s failure to tell anyone
about what the defendant was doing to him until
2005, long after the sexual molestation had ceased (the
defendant molested boys, and eventually boys become
men), indicated fabrication. This argument entitled the
government to elicit in redirect examination the reasons
Dominick and the other boys had not revealed the de-
fendant’s acts soon after they occurred. See United States
v. Hensley, 574 F.3d 384, 389-90 (7th Cir. 2010); United
States v. Plumman, 409 F.3d 919, 928-29 (8th Cir. 2005);
United States v. Powers, 59 F.3d 1460, 1464, 1467 (4th Cir.
1995).
A FFIRMED.
12-2-10