Argued September 27, 2013
Appeal from the United States District Court for the Southern District of Illinois. No. 4:10-cr-40062-JPG-01 -- J. Phil Gilbert, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: George A. Norwood, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Benton, IL.
For HARRY WILLIAM MCMILLAN, Defendant - Appellant: Seth M. Lahn, Attorney, INDIANA UNIVERSITY, Maurer School of Law, Bloomington, IN.
Before WOOD, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.
WOOD, Chief Judge.
Harry McMillan was a second-year law student at the Southern Illinois University School of Law when he posted an ad on craigslist entitled " sell me your teenage daughter." The ad went on to solicit sexual acts for pay. He was caught when then-investigator (now Chief) Mike Andrews of the Benton, Illinois, police department spotted the ad while working undercover online. McMillan was charged with one count of violating 18 U.S.C. § 2422(b), which prohibits (among other things) knowingly persuading or enticing a person under the age of 18 to engage in criminal sexual activity. He was convicted after a three-day jury trial. The court sentenced him to 132 months' imprisonment, five years' supervised release, and a $500 fine. On appeal, McMillan contends that the evidence was insufficient to support his conviction and that the court erred in admitting certain evidence. While we find that the district court erred by failing to evaluate some of the evidence under Federal Rule of Evidence 403, we are satisfied that any error was harmless. We therefore affirm McMillan's conviction.
Chief Andrews is a member of the Illinois Attorney General's Task Force on Internet Crimes Against Children, and of the U.S. Secret Service's Southern Illinois Cyber Crimes Task Force. In that capacity, he was trained how to catch people who attempt to use the internet to exploit minors sexually. When Andrews saw McMillan's ad, he responded in the guise of " Mike," a father with a teenage daughter who was willing to engage in sex. Over the next two days, McMillan and Andrews exchanged a number of emails, in which McMillan explored such topics as price, the possibility of a threesome, the availability of nude pictures, the location for a tryst, and the use of condoms. McMillan's emails showed that he was worried that " Mike" might be a police officer, and at one point he wrote to Mike that " i don't want to go to jail either."
A couple of days into the exchange, " Mike" and McMillan agreed that " Mike," McMillan, and the daughter would meet at a local movie theater. (The role of the daughter was played by an adult female who works for a state agency.) The meeting took place as planned on September 22, 2010. As soon as Andrews and the " daughter" entered the theater, the " daughter" went to the restroom. Andrews and McMillan spoke to one another, and McMillan asked for nude pictures of the girl that Andrews had promised to bring. Andrews handed McMillan an envelope, and as McMillan was opening it, Andrews arrested him.
In connection with the arrest, Andrews searched McMillan and found two condoms in his front pocket, along with a receipt for them. Later that evening, the police searched McMillan's residence and recovered his laptop computer. The computer revealed that Andrews had also responded to McMillan's initial craigslist posting using a second persona: that of a 14-year-old girl named " Kellie." McMillan questioned Kellie closely about her sexual experience, asking whether she was " real," if she was a virgin, if she would have sex for money, what sexual acts she had performed, whether she had experienced orgasm, and so on. The laptop search also revealed that McMillan had tried to find " Kellie" on Facebook.
At trial, McMillan admitted that he posted the ad that initially attracted Andrews's attention, but he said that he did so in an attempt to locate a child molester whom he could confront. He had been a victim of sexual abuse as a child himself, and he said that he wanted to ask questions pertinent to his own experience. McMillan also presented testimony about communications between himself and someone called " Just Me," supposedly a 20-year-old man. The two had never met in person, but the defense presented evidence that they had tentatively agreed to meet on September 22, the day of McMillan's arrest. McMillan testified that he purchased the condoms that Andrews found for purposes of his meeting with " Just Me" before he had made the arrangements to meet " Mike" at the theater. The jury was not persuaded: it convicted McMillan, and he has now appealed from that judgment.
McMillan raises several arguments on appeal. First, he contends that he could not, as a matter of law, violate 18 U.S.C. § 2422(b) by having contact only with the adult father of a teenage girl. In his view, the internet contact must be directly between the defendant and the underage person protected by the statute. In addition, he argues that even if communication between two adults falls within the statute, the prosecution here failed to show that he intended to persuade, induce, or entice the minor to engage in the prohibited acts. Finally, he raises two arguments in connection with the admission of the " Kellie" evidence: he asserts that the evidence was not admissible under ...