A second-year law student posted an ad on Craigslist asking parents to "sell me your teenage daughter" and then was surprised when he was caught, convicted and thrown in jail. Do you think he skipped the semester when they covered criminal law first year?
The Underlying Offense
Harry McMillan is the law student who sought sex online from minors, and he engaged in a negotiation with Chief Andrews, a member of the Illinois Attorney General's Task Force on Internet Crimes Against Children and the U.S. Secret Service's Southern Illinois Cyber Crimes Task Force, though McMillan thought he was communicating with "Mike," the father of a teenage girl willing to have sex. Though he feared "Mike" might be a police officer, Officer Andrews (as "Mike") told him "I don't want to go to jail either."
The two agreed to meet, with the "daughter" -- a female state agency employee that presumably looked very young. They met at a theater, and once there the "daughter" excused herself to the restroom. McMillan asked for nude photos of the daughter, which Mike handed to him. As he opened the envelope, "Mike" a/k/a Officer Andrews arrested him. The search incident to arrest led to the Officer finding two condoms, and a search of McMillan's computer showed his communications with another one of Officer Andrews' online undercover personas -- Kellie, a 14-year old girl. The communications with Kellie were sexually explicit.
A jury convicted McMillan for violating 18 U.S.C. § 2422 for coercing a minor to engage in criminal sexual activity. McMillan appealed his conviction.
McMillan challenged his conviction on several grounds, the two main arguments being that (1) § 2422 only applies if the communication is directly with a minor; and (2) that evidence of the "Kellie" emails was admitted in error. Regarding the statutory construction of § 2422, the court took the same view as seven other circuits -- that is communication could be between adults, with one adult trying to persuade the minor.
With regard to the evidentiary question, McMillan argued that the admission of the "Kellie" emails under Federal Rule of Evidence 404(b). Because McMillan's argument on defense was that he only communicated with "Mike" because he himself was a victim of sexual abuse, and he wanted to confront a would-be child molester, he opened the door to the admission of the "Kellie" evidence. The problem was that the district court was not explicit in its findings. The court noted that the "limited number" of "Kellie emails" and the "directness of their evidence" would have led the district court to admit the evidence. Even if admitted in error, the court found the error harmless.
It's hard to believe that McMillan's version of events is true, especially in light of the jury's findings. Let this be a lesson -- if you want to confront would-be child molesters, leave the investigating and confrontation to law enforcement. Lower courts should also be more explicit in explaining their reasons for admitting certain evidence, especially rules of evidence such as 404(b), which courts have expressed concerned with.
- Conviction Reversed: Roger Loughry Wins FRE 403 Objection Appeal (FindLaw's U.S. Seventh Circuit Blog)
- U.S. v. Alayeto, 10-2037 (FindLaw's U.S. Seventh Circuit Blog)
- U.S. v. Conner, No. 07-3527 (FindLaw's U.S. Seventh Circuit Blog)