EFTA00598999.pdf

Westlaw Delivery Summary Report for DOYLE,LEA Dateffime of Request: Thursday, March 3, 2011 12:32 Eastern Client Identifier: EPSTEIN Database: FEDFIND Citation Text: 627 F.3d 622 Lines: 352 Documents: Images: 0 The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters, West and their affiliates. EFTA00598999 wgithw Page I 627 F.3d 622 (Cite as: 627 F.3d 622) C 21 I II Protection 211k13 k. Protection of health and morals. United States Court of Appeals, Most Cited Cases Seventh Circuit. Purpose of defendant's travel in interstate or UNITED STATES of America, Plaintiff-Appellee, foreign commerce to lead retreats in the company v. of a boy he intended to molest was to engage in il- Donald J. McGUIRE, Defendant-Appellant. legal sexual conduct, as required to convict defend- ant of traveling for the purpose of having sex with a No. 09-1597. minor; although defendant's trip to retreat had dual Argued Nov. 9, 2010. purpose, defendant had broad latitude concerning Decided Dec. 2, 2010. the number and location of the retreats held, and he Background: Defendant was convicted, following configured his travels to optimize his sexual activ- a jury trial, in the United States District Court for ity. 18 U.S.C.A. § 2423(b). the Northern District of Illinois, Rebecca R. Pall- [2] Criminal Law 110€=372(7) meyer, J., of traveling in interstate and foreign commerce for the purpose of having sex with a 110 Criminal Law minor. Defendant was sentenced to 25 years in pris- I I0XVII Evidence on. Defendant appealed. I I0XVII(F) Other Offenses 110k372 Acts Part of Series Showing Sys- Holdings: The Court of Appeals, Posner, Circuit tem or Habit Judge, held that: 1101372(7) k. Incest, rape, and other (1) purpose of defendant's travel was to engage in sex offenses. Most Cited Cases illegal sexual conduct, Testimony of adult witnesses concerning their (2) testimony of adult witnesses concerning their childhood sexual assault by defendant was admiss- child abuse by defendant was admissible. ible, in defendant's prosecution for travel in inter- Affirmed. state or foreign commerce for the purpose of having sex with a minor, as evidence of defendant's modus West Headnotes operandi and as evidence of defendant's previous crimes of sexual assault and child molestation, [1] Commerce 83 €=82.10 demonstrating a propensity to commit such crimes. 18 U.S.C.A. § 2423(b); Fed.Rules Evid.Rules 83 Commerce 404(b), 413, 415, 28 U.S.C.A. 8311 Application to Particular Subjects and Methods of Regulation [3] Criminal Law 110 4C=338(7) 831I(J) Offenses and Prosecutions 83k82.5 Federal Offenses and Prosecu- 110 Criminal Law [ions I I0XVII Evidence 83k82.10 k. Offenses involving activ- 110XVII(D) Facts in Issue and Relevance ity unlawful under state law. Most Cited Cases I 10k338 Relevancy in General I 10k338(7) k. Evidence calculated to Infants 211 €=13 create prejudice against or sympathy for accused. Most Cited Cases 211 Infants Probative value of testimony of adult witnesses O 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00599000  Page 2 627 F.3d 622 (Cite as: 627 F.3d 622) concerning their childhood sexual assault by de- Mother Teresa's order of nuns-the Missionaries of fendant, including their testimony about the shame Charity-and as her confessor. A resident of Canisi- and fear that dissuaded them from telling their par- us House, in Evanston, Illinois, a dwelling for Je- ents or others about what he had done to them until suit priests, he led retreats all over the world they had grown up and escaped his control, was not modeled on the spiritual exercises of Saint Ignatius outweighed by danger of undue prejudice in de- of Loyola, the founder of the Jesuit order. In 1997, fendant's prosecution for travel in interstate or for- when his molestation of a boy named Dominick eign commerce for the purpose of having sex with a began, he was elderly-67-and suffering from a long minor; evidence was material because defense was list of diseases, including diabetes and asthma, and that victim was a liar, evidence established defend- disabilities resulting from frequent surgeries. He re- ant's propensity for and modus operandi of molesta- cruited boys such as Dominick to accompany him tion of young boys, and testimony about the same on his travels to the retreats, explaining that he and fear that witnesses had suffered was invited by needed the boys to carry his bags, to provide him the brutal cross-examination of victim by defend- with medications, physical therapy, and massages, ant's lawyer as to why victim had not come forward and to wash his feet. sooner. 18 U.S.C.A. § 2423(b); Fed.Rules Evid.Rule 403, 28 U.S.C.A. He used the boys for sex as well. Dominick was a fatherless child of 13 who became the de- •622 Julie B. Porter, Assistant U.S. Attorney fendant's ward. From 1997 to 2001 the defendant (argued), Office of the United States Attorney, engaged in frequent sexual activity with Dominick, Chicago, IL, for Plaintiff-Appellee. often on trips to retreats; the details of the activity need not detain us. He engaged in similar acts with Susan Kister, Attorney (argued), St. Louis, MO, for the four other boys who testified, and indeed with Defendant-Appellant. many more. His sexual predation (which had begun long before-perhaps decades before-his molestation •623 Before POSNER, TINDER, and HAMILTON, of Dominick began) involved the following modus Circuit Judges. operandi: sleeping in the same bed with the boys; receiving massages from them that began inno- cently but evolved into sexual fondling of him that POSNER, Circuit Judge. he commanded them to perform; displaying porno- The defendant was convicted by a jury of trav- graphic movies and magazines to "educate" the eling in interstate and foreign commerce for the boys about sex and the "beauty of the human purpose of having sex with a minor, and was sen- form'; eliciting confessions that they had masturb- tenced to 25 years in prison. His appeal argues that ated and threatening to expose as a masturbator any while he indeed had sex with minors on trips that boy who complained about molestation; and insist- crossed state and national boundaries, sex was not ing that complaint would be futile because no one the purpose of the travel. He further argues that the would believe that a priest of the defendant's prom- judge should have excluded the testimony of other inence was a pedophile. minors, besides the one whom he was charged with molesting, under Rule 403 of the Federal Rules of The defendant's religious superiors began to be Evidence, on the ground that the additional testi- suspicious of him as early as 1991, though he was mony was unduly prejudicial. He does not chal- not defrocked until 2008. In 1991 they ordered him lenge his sentence. not to travel with anyone under the age of 18. In 1995 the threshold was raised to 21 and in 2001 to McGuire was a prominent Jesuit priest who in 30. In 2000 they forbade his having his young as- 1983 had begun serving as the spiritual director of O 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00599001  Page 3 627 F.3d 622 (Cite as: 627 F.3d 622) sistants stay with him at Canisius House. He contin- citizen or alien admitted for permanent residence ued to travel with boys after being forbidden to do who travels in foreign commerce, and engages in so. His defense at trial was that Dominick had con- any illicit sexual conduct with another person cocted a false claim of sexual molestation in the shall be fined under this title or imprisoned not hope of obtaining money. more than 30 years, or both. The defendant was charged with violating 18 Section 2421 is the original Mann Act, as U.S.C. § 2423(b), which is one of four closely re- amended in minor respects. Section 2423(a), inten- lated provisions of the federal criminal code. The ded to protect minors from sexual predation, mir- four are as follows: rors the Mann Act but imposes more severe penal- ties. Section 2423(b), the provision under which the 18 U.S.C. § 2421: Whoever knowingly transports defendant was prosecuted, was added to expand the any individual in interstate or foreign commerce, protection of minors still further; it punishes travel or in any Territory or Possession of the United in interstate commerce even if no minor is transpor- States, with intent that such individual engage in ted, if the purpose of the travel is sex with a minor. prostitution, or in any sexual activity for which (Prosecutors frequently use this section to prosecute any person can be charged with a criminal of- persons who cross state lines to rendezvous with fense, or attempts to do so, *624 shall be fined minors whom they meet in online chat rooms. See, under this title or imprisoned not more than 10 e.g., United States v. Burnt*, 432 F.3d 373 (1st years, or both. Cir.2005).) Section 2423(c) was added to punish persons who travel in foreign commerce and have 18 U.S.C. § 2423(a): Transportation with in- sex with a minor in the course of the trip regardless tent to engage in criminal sexual activity.-A of what the defendant intended when he set out on person who knowingly transports an individual it. who has not attained the age of 18 years in inter- state or foreign commerce, or in any common- It is apparent that if, as the jury found, the de- wealth. territory or possession of the United fendant had molested Dominick on their travels, he States, with intent that the individual engage in violated sections 2421, 2423(a), and 2423(c). E.g., prostitution, or in any sexual activity for which United States v. Bonty, 383 F.3d 575, 578 (7th any person can be charged with a criminal of- Cir.2004); United States v. Snow, 507 F.2d 22, 23 fense, shall be fined under this title and im- (7th Cir. 1974); United States v. Hitt, 473 F.3d 146, prisoned not less than 10 years or for life. 150 (5th Cir.2006). But inexplicably the govern- ment charged the defendant only with violating sec- 18 U.S.C. § 2423(b): Travel with intent to en- tion 2423(b), which requires that the travel be for gage in illicit sexual conduct.-A person who the purpose of engaging in illegal sexual activity. travels in interstate commerce or travels into the This charging decision (which the government's United States, or a United States citizen or an ali- lawyer was unable to explain to us at the oral argu- en admitted for permanent residence in the ment) enabled the defendant to argue that the pur- United States who travels in foreign commerce, pose of his trips was merely to conduct retreats; sex for the purpose of engaging in any illicit sexual was not the purpose but a welcome byproduct (if conduct with another person shall be fined under the government's evidence was believed) of the op- this title or imprisoned not more than 30 years, or portunities that the retreats created, as the boys both. were more vulnerable when far from home and the 18 U.S.C. § 2423(c): Engaging in illicit sexual defendant's molestation of them was less likely to conduct in foreign places.-Any United States be detected by his religious superiors, who as we O 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00599002  Page 4 627 F.3d 622 (Cite as: 627 F.3d 622) know had suspected him for many years of being a tion with the word "dominant" on the Supreme child molester yet had taken no effective steps to Court, which in Mortensen v. United States, 322 protect young boys from him. U.S. 369, 374, 64 S.Ct. 1037, 88 L.Ed. 1331 (1944) , a Mann Act case, said that engaging in forbidden The courts have had trouble dealing with cases sexual activity "must be the dominant purpose of in which the travel prosecuted under section such interstate movement." That was dictum, be- 2423(b) may have had dual purposes, only one of cause the sole purpose of the movement in question which was to have sex with minors. The statute was to give several prostitutes an innocent vaca- says "the" purpose must be sex rather than "a" pur- tion-that is, one in which they would not be plying pose, but in United States v. Vang, 128 F.3d 1065, their trade. There were not multiple purposes, of 1068 (7th Cir. 1997), we approved*625 a jury in- which one was sexual, so there was no occasion to struction which said that sex didn't have to be "the identify a dominant purpose. But later cases, ignor- sole purpose" of the travel, though it did have to be ing Justice Holmes's admonition to think things not "a dominant purpose, as opposed to an incidental words, have tended to treat "dominant purpose" as one. A person may have more than one dominant if it were the language of the Mann Act itself, and, purpose for traveling across a state line." To speak later still, as if it were the language of the statutes, of multiple dominant purposes is not idiomatic, but including 18 U.S.C. § 2423(b), that restate and ex- given the evidence in Vang the precise wording of tend the Act; and from the cases the term entered the instruction hardly mattered. Other cases, too, jury instructions. (The evolution of "dominant pur- fasten on "dominant," but then define it down to pose" is considered at length in our opinion in mean "significant," "efficient and compelling," United States v. Vang, supra, 128 F.3d at 1070.72.) "predominat[ing]," "motivating," not "incidental," The Fourth Circuit stated sensibly in United States or not "an incident" to the defendant's purpose in v. Bennett, supra, 364 F.2d at 77, 78 n. 4, that "the traveling. E.g., United States v. Julian, 427 F.3d `dominant motive' test seems completely inappro- 471, 485 (7th Cir.2005); United States R Hitt, priate in any case involving multiple purposes, supra, 473 F.3d at 152; United States v. Hayward, some of which were legitimate but one of which is 359 F.3d 631, 637-38 (3d Cir.2004); United States proscribed by [section] 2421," and equally by sec- v. Meacham, 115 F.3d 1488, 1495-96 (10th tion 2423(b). But the defendant does not challenge Cir. 1997); United States v. Campbell, 49 F.3d the jury instructions, so the only question is wheth- 1079, 1083.84 (5th Cir.1995); United States v. El- er the jury was unreasonable in convicting him. lis, 935 F.2d 385, 390 (1st Cir.1991); United States v. Bennett, 364 F.2d 77, 79 (4th Cir.1966). [ I] To answer the question we need to be clear about the meaning of the statutory term "travels"; These verbal formulas are strained; the courts that will get us further than worrying the word turn handsprings trying to define "dominant" as if it "dominant." To say that a sexual predator "travels" were a statutory term, see, e.g., United States v. in interstate or foreign commerce to a retreat is not Miller, 148 F.3d 207, 212-13 (2d Cir. 1998), which a full description of the travel in this case. He it is not. It would be better to ask whether, had a travels in interstate or foreign commerce to a retreat sex motive not been present, the trip would not in the company of a boy he intends to molest-that is have taken place or would have differed substan- the full description. The purpose of the travel so un- tially. See, e.g., United States v. Snow, supra, 507 derstood is to engage in illegal sexual conduct. See F.2d at 24; United States v. Farley, 607 F.3d 1294, United States v. Meacham, supra, 115 F.3d at 1335 (11th Cir.2010); United States v. Meacham, 1495-96; United States v. Ellis, supra, 935 F.2d at supra, 115 F.3d at 1495.96. 390.91. We can place the blame for judicial preoccupa- O 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00599003  Page 5 627 F.3d 622 (Cite as: 627 F.3d 622) *626 At the oral argument we put the following travel with minors to his retreats-and all the trips hypothetical case to the defendant's lawyer. A man with Dominick took place after that. If a trip has who travels frequently abroad on business has two dual purposes, one licit but intended to bolster an assistants. One is an older woman. The other is illicit sexual purpose, the sexual purpose is "the" young and beautiful. He needs only one of the as- purpose, in a reasonable sense of the word. Suppose sistants to accompany him; they are equally com- a salesman employed by Sears Roebuck is directed petent; but he chooses to take the young woman be- by Sears to travel to Singapore to sell clothes dryers cause he hopes to have sex with her. The purpose of there. Instead he travels to Bangkok because he his travel is business; but the purpose of his travel wants to patronize child prostitutes. He sells some with this assistant rather than the other one is sex- clothes dryers in Bangkok in the intervals between legal sex, in the example, but that's not the point; his visits to the child prostitutes and alters the in- the point is that the purpose of his choosing this voices to make it seem that the sales occurred in particular way to travel is sex rather than business. Singapore. The purpose of his travel would be sex Cf. United States v. Snow, supra, 507 F.2d at 24; rather than business, though business would be United States v. Meacham, supra, 115 F.3d at transacted during the trip. See United States v. 1495.96. The defendant's lawyer was unable to dis- Snow, supra, 507 F.2d at 24; United States v. tinguish the present case from our hypothetical Meacham, supra, 115 F.3d at 1495-96; United case. States v. Farley, supra, 607 F.3d at 1335; United States v. Breditnus, 234 F.Supp.2d 639, 646 It would be different if in that case the travel- 2002), affirmed, 352 F.3d 200 (5th ing businessman had only one assistant, the beauti- Cir.2003). The defendant in our case had, so far as ful young woman. He hopes that he might have sex appears, broad latitude concerning the number and with her on the trip, yet he would have made the location of the retreats he led, and he configured his same trip, taking her with him, even if he had had travels to optimize his sexual activity. no such designs. In that event sex would not have been the purpose of the trip with her, but a possible We turn to the defendant's objection to the bonus that could however have played no part in his testimony by the four other boys (like Dominick, decision to take the trip-he was ordered to take it adults when they testified) whom he molested. The and needed, for purely business reasons, to take the district judge was concerned about the possibility assistant with him. Compare Hansen R Haff, 291 of undue prejudice and helpfully placed on the re- U.S. 559, 563, 54 S.Ct. 494, 78 L.Ed. 968 (1934) cord her pretrial discussion of the issue with coun- ("if the purpose of the journey was not sexual inter- sel, facilitating appellate review. course, though that be contemplated, the statute is not violated"), with Ghadiali v. United States, 17 [2][3] The testimony was admissible as evid- F.2d 236, 237 (9th Cir.1927) (the defendant "had a ence of the defendant's modus operandi (and thus right to cause [his secretary] to be transported in in- not excludable under Rule 404(b) of the Federal terstate commerce in the discharge of her secretari- Rules of Evidence, *627 see United States v. Za- al duties without transgressing the provisions of the hursky, 580 F.3d 515, 524.25 (7th Cir.2009)) and it law; but if, in addition to the secretarial duties, it was also admissible under Rules 413 and 414 as was also his purpose to have sexual intercourse evidence of the defendant's previous crimes of with her, and, entertaining such purpose, transpor- sexual assault and child molestation, demonstrating ted her in interstate commerce, he would be a propensity to commit such crimes. E.g., United guilty"). States v. Rogers, 587 F.3d 816, 821 (7th Cir.2009). But like other evidence, such testimony is subject After 1991 the defendant was forbidden to to the limitations that Rule 403 places on evidence O 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00599004  Page 6 627 F.3d 622 (Cite as: 627 F.3d 622) that is unduly prejudicial, confusing, or repetitious. F.3d 1460, 1464, 1467 (4th Cir.1995). Id. at 822.23. The judge was concerned lest the jury be overwhelmed by profoundly disturbing and AFFIRMED. highly emotional testimony of numerous witnesses, C.A.7 (111.),2010. which would deflect the jurors from careful consid- U.S. v. McGuire eration of the only actual issue they had to decide, 627 F.3d 622 which was whether the defendant had traveled with Dominick for the purpose of sexually abusing him. END OF DOCUMENT On the basis of the striking similarities among the experiences of each of the victims, the judge tentat- ively 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 defend- ant himself 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 defend- ant's propensity for, and modus operandi of, mo- lestation of young boys and by doing so bolstered Dominick's testimony. The defendant particularly objects to the boys' testimony 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-examination of Dominick by the defendant's lawyer and by the argument that Dominick's failure to tell anyone about what the de- fendant was doing to him until 2005, long after the sexual molestation had ceased (the defendant mo- lested boys, and eventually boys become men), in- dicated fabrication. This argument entitled the gov- ernment to elicit in redirect examination the reasons Dominick and the other boys had not revealed the defendant's acts soon after they occurred. See United States v. Hensley, 574 F.3d 384, 389.90 (7th Cir.2009); United States v. Pi:unman, 409 F.3d 919, 928-29 (8th Cir.2005); United States v. Powers, 59 O 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00599005