United States v. Mark McGill , 754 F.3d 452 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3490
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARK J. MCGILL,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 CR 770 — Joan B. Gottschall, Judge.
ARGUED MAY 21, 2013 — DECIDED JUNE 13, 2014
Before POSNER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. By the government’s account,
Mark McGill spent most of his free time in his apartment and
rarely socialized except with Jacob “Jake” Elliott. Elliott had
befriended McGill in 2006 after they met through an acquain-
tance who shared their sexual attraction to young boys. It was
Elliott who introduced McGill to child pornography, yet
during their three-year friendship, he had never known McGill
2 No. 12-3490
to give child pornography to anyone, not even when Elliott
took him to a 2008 gathering arranged specifically for partici-
pants to swap child pornography. Elliott, on the other hand,
regularly attended these events and was using the Internet to
distribute child pornography, including photos he took of
himself sexually assaulting a young boy.
Elliott was arrested in 2009 and, when offered hope of
leniency, became an FBI informant. He targeted McGill, who,
after weeks of pestering, allowed Elliot to bring a USB flash
drive to his apartment to copy child pornography from his
computer. For this indulgence McGill was charged with
distributing child pornography in addition to possession. See 18
U.S.C. § 2252A(a)(2), (a)(5)(B). At trial he sought to raise
entrapment as a defense to the distribution count, but prosecu-
tors convinced the judge not to instruct the jury on that
defense. McGill was found guilty of both crimes, and on appeal
he argues that refusing to give an entrapment instruction was
reversible error. We agree with him.
I.
The question before us is whether a rational jury could have
found in favor of McGill on the issue of entrapment. In
answering that inquiry, we look at the trial evidence in the
light most favorable to McGill. See United States v. Pillado, 656
F.3d 754, 758 (7th Cir. 2011); United States v. Díaz-Maldanado,
727 F.3d 130, 136 (1st Cir. 2013); United States v. Theagene, 565
F.3d 911, 917–18 (5th Cir. 2009); United States v. Glover, 153 F.3d
749, 752 (D.C. Cir. 1998).
The FBI had executed a search warrant at Elliott’s residence
in June 2009 and found thousands of images of child pornogra-
No. 12-3490 3
phy. Those images include Elliott’s photos of himself abusing
a young boy. When Elliott was told (quite accurately) that life
imprisonment was a genuine possibility, he agreed to help
investigators gather evidence against fellow members of
“boylovers,” a group interested in child pornography featuring
young boys.
Elliott’s cooperation, which mostly involved meeting or
telephoning suspects, led to the arrests of several men, includ-
ing McGill, then 24 years old. Before trial McGill notified
prosecutors that he intended to raise an entrapment defense,
though only on the distribution count. The government
responded by moving in limine to prevent McGill from arguing
entrapment or eliciting evidence supporting that affirmative
defense. The district court denied the government’s motion but
reserved for trial a decision whether to instruct the jury on
entrapment.
At trial Elliott was the government’s star witness. He
testified that he and McGill belonged to “boylovers,” whose
members mostly interacted online but occasionally met in
person. Elliott conceded, however, that he hadn’t mentioned
McGill when the FBI first asked him to name others in the
group. For some time the two had been socializing in person at
least twice monthly, yet McGill’s name as a possible target did
not surface until, by chance, he telephoned Elliott during a
June 2009 meeting with agents.
After that the investigation of McGill began in earnest. Over
the next three weeks, Elliott repeatedly telephoned him
probing his activities and asking for child pornography. In the
first of these fifteen recorded calls, McGill disclaimed any
4 No. 12-3490
interest in acquiring more child pornography and said he felt
uncomfortable even discussing the subject of child pornogra-
phy with anyone but Elliott. McGill proposed that they simply
“hang out,” but Elliott steered the conversation back to child
pornography. He said that fear of being caught had led him to
discard his stash, which now he wanted to replace. Another
“boylover,” Elliott prompted, already had promised to provide
copies of his files. McGill said he possibly could help, though
he quickly added that the other member’s collection likely was
much larger. As this conversation wound down, McGill
repeated that Elliott was the only person he trusted to converse
with about child pornography.
McGill’s unease around other people, even other
“boylovers,” is evident throughout the recordings. On one
occasion Elliott left a message proposing that the group meet;
McGill did not respond, and when Elliott called again pushing
for a gathering, McGill balked. In particular he opposed
Elliott’s plan to bring along someone new. McGill voiced
reluctance to mingle with unfamiliar faces, and although he
finally he agreed to tag along, he later canceled and went
camping.
Elliott reacted by calling and pressuring McGill to attend
a “boylovers” meeting. The group should assemble—ideally,
he suggested, at McGill’s apartment. McGill rebuffed the idea,
saying he was uncomfortable hosting anyone but Elliott.
McGill suggested that just the two of them meet somewhere
for a beer or to play frisbee golf. Elliott countered that he first
wanted to stop by McGill’s apartment with a flash drive and
copy the child pornography on his computer. McGill relented.
No. 12-3490 5
Yet when that day arrived, McGill called to cancel, saying
he was sick. Elliott, perhaps thinking he was lying, pushed to
stop by anyway. McGill refused. At Elliott’s prodding, though,
he agreed to call later in the day if he felt better. When McGill
did not call, Elliott did. McGill acquiesced to the visit, and
Elliott brought along a flash drive that they used to copy
McGill’s collection of child pornography.
In the days after, Elliott continued calling McGill urging
him to attend a party (actually, an FBI sting) with others
interested in child pornography. McGill rejected the invitation.
During one telephone conversation, he elaborated on his social
anxiety and said that being with more than a couple of people
makes him uncomfortable. Even Elliott’s visit, he added, had
caused him to experience a near panic attack. This information
did not surprise Elliott; at trial he conceded knowing that
McGill was a “loner” who regularly conversed with him but
no one else outside of family.
Elliott’s work to ensnare McGill yielded hours of recorded
conversations devoted mostly to subjects other than child
pornography. As Elliott conceded at trial, the two discussed
topics ranging from music and politics to the supernatural and
roommate troubles. He also admitted that McGill wasn’t the
one who turned their conversations to child pornography.
Elliott’s objective, he conceded, was persuading McGill to
distribute child pornography.
The district court, after hearing this evidence, refused
McGill’s request to instruct the jury on his defense of entrap-
ment to the distribution count. The court accepted McGill’s
argument that the government had not proved he was predis-
6 No. 12-3490
posed to distribute child pornography. On the other hand, the
court reasoned, neither was there evidence that McGill was
induced to give Elliott copies of the files on his computer. The
court characterized the pressure exerted by Elliott as “pretty
nil” and “nothing out of the ordinary.” McGill had been
“willing to do this for Mr. Elliott,” the court added, though
“not for anybody else.” After the jury returned guilty verdicts,
McGill moved for a new trial on the ground that withholding
the entrapment instruction deprived him of a fair trial. That
motion was denied.
McGill’s act of sharing his files with Elliott increased the
high end of his guidelines imprisonment range by more than
6 years, and his conviction for distribution subjected him to a
5-year statutory minimum. See 18 U.S.C. § 2252A(b)(1). Under
U.S.S.G. § 2G2.2, which applies to convictions for both posses-
sion and distribution, McGill would have received upward
adjustments of 2 levels because children depicted were
younger than 12, id. § 2G2.2(b)(2); 4 levels because some
images depict violence, id. § 2G2.2(b)(4); 2 levels because a
computer was used, id. § 2G2.2(b)(6); and 5 levels because of
the large number of images, id. § 2G2.2(b)(7)(D). The base
offense level for distribution, however, is 22 rather than 18.
Id. § 2G2.2(a). McGill had no criminal history, so sharing his
child pornography with Elliott increased his guidelines
exposure from a range of 108 to 135 months (Total Offense
Level 31 × Criminal History Category I) to a range of 168 to 210
months (Total Offense Level 351 × Criminal History
1
Whenever a child-pornography prosecution involves
(continued...)
No. 12-3490 7
Category I). Had McGill pleaded guilty just to possession, as
it seems he was willing to do, his imprisonment range likely
would have dropped to 78 to 97 months (Total Offense
Level 28 × Criminal History Category I).
The prosecutor insisted that it was McGill’s idea to share
his child pornography with Elliott, not Elliott’s idea. Thus, the
prosecutor argued, a prison sentence within the guidelines
range would be appropriate. McGill’s lawyer countered that
the statutory minimum would be adequate punishment.
1
(...continued)
distribution, there is, by default, a further increase of at least
2 levels. U.S.S.G. § 2G2.2(b)(3)(F). That upward adjustment
would have bumped McGill’s total offense level to 37 and his
imprisonment range to 168 to 210 months, nearly twice the
range for possession. The district court did not apply this 2-
level increase, however, because the government, citing our
decision in United States v. Tenuto, 593 F.3d 695, 697 (7th Cir.
2010), asserted that impermissible “double counting” would
result from giving this increase in a prosecution for distribu-
tion. We take no position concerning the government’s reading
of Tenuto. We note, however, that five circuits have rejected
double-counting objections to the application § 2G2.2(b)(3)(F)
in prosecutions for distribution of child pornography.
See United States v. Clark, 2014 WL 289460, at *1 (6th Cir. Jan. 28,
2014); United States v. Reingold, 731 F.3d 204, 227–28 (2d Cir.
2013); United States v. Chiaradio, 684 F.3d 265, 282–83 (1st Cir.
2012); United States v. Frakes, 402 F. App’x, 332, 335–36 (10th
Cir. 2010); United States v. Fugit, 296 F. App’x 311, 312–13 (4th
Cir. 2008).
8 No. 12-3490
Defense counsel spoke only briefly and suggested that the
district court would benefit more from hearing directly from
McGill, who before sentencing had submitted to a
psychosexual evaluation. The psychologist concluded, in part,
that from a young age McGill had become fixated on sexual
activity initiated by another boy who was a couple of years
older than he was. The psychologist had found McGill to be
remorseful and believed his explanation that he distributed
child pornography only because he did not want to turn down
Elliott, his friend and the person who introduced him to child
pornography.
During his allocution McGill recalled the beginning of his
involvement with the “boylovers” group when he was 17 years
old, explaining that his “intention from the start was to find
somebody … that I could talk to about my problems that
wouldn’t treat me like I was a monster.” He was “so terrified
to seek help from those who might actually provide it,” said
McGill, that he dug himself “much deeper into the problem
that I sought to fix.” McGill acknowledged being selfish and
immature, and indifferent “to the lives of the children who
were devastated to create the images he possessed.” He
expressed deep remorse for the “pain and anguish” experi-
enced by his victims and their families.
The district judge, who earlier in the sentencing proceeding
had said that McGill never would have distributed child
pornography “if the Government hadn’t set him up to do it,”
sentenced McGill to 108 months. In explaining that below-
range term, the judge emphasized her disagreement with the
2-level upward adjustment for use of a computer, see U.S.S.G.
§ 2G2.2(b)(6), and, impressed by the sincerity of McGill’s
No. 12-3490 9
remorse, suggested that he should receive significant credit for
acceptance of responsibility whether or not § 3E1.1 technically
applied. “I’m not sure,” the judge remarked, “that anybody
has ever come to terms with what he did in the way Mr. McGill
has.” The judge decided that McGill deserved a break equiva-
lent to 4 offense levels, which effectively reduced his total
offense level to 31 (from 35) and placed him in the same
imprisonment range of 108 to 135 months that he would have
faced with only a conviction for possession. Had the judge
given McGill that same break without his conviction for
distribution, his imprisonment range effectively would have
been 70 to 87 months.
II.
On appeal McGill challenges the district court’s rejection of
his jury instruction on entrapment. Entrapment occurs when
the government coerces a defendant into committing an illegal
act he was not otherwise predisposed to commit. See United
States v. Russell, 411 U.S. 423, 434–35 (1973); Sherman v. United
States, 356 U.S. 369, 372 (1958); Pillado, 656 F.3d at 763. The
defense of entrapment recognizes that a goal of law
enforcement is to prevent crime, not to tempt citizens to
engage in criminal activity. See Sherman, 356 U.S. at 372; United
States v. Hollingsworth, 27 F.3d 1196, 1200 (7th Cir. 1994) (en
banc).
An entrapment instruction is warranted if the evidence
would permit a jury to find that the defendant was not
predisposed to commit the crime and that the government
induced him to do so. See Pillado, 656 F.3d at 763; United States
v. Santiago-Godinez, 12 F.3d 722, 728 (7th Cir. 1993). Although
10 No. 12-3490
more than a scintilla of evidence of entrapment is needed
before instruction on the defense becomes necessary, the
defendant need only point to evidence in the record that would
allow a rational jury to conclude that he was entrapped.
See United States v. Haddad, 462 F.3d 783, 789–90 (7th Cir. 2006);
United States v. Blassingame, 197 F.3d 271, 280 (7th Cir. 1999).
Whether a defendant was entrapped typically is a question for
the jury. See Mathews v. United States, 485 U.S. 58, 63 (1988);
United States v. Plowman, 700 F.3d 1052, 1057 (7th Cir. 2012).
The district court identified nothing in the record suggest-
ing that McGill was predisposed to distribute child pornogra-
phy, and on this point we agree. In the first place, the govern-
ment’s investigation turned up no evidence that McGill ever
before had distributed child pornography. The government
concedes as much, but asserts that McGill never shied away
from situations in which child pornography was distributed,
and that his very possession of child pornography is evidence
of a predisposition to distribute. We are not persuaded.
Concerning the government’s first point, McGill’s behavior
in situations when others around him were sharing child
pornography belies an inference that he himself was predis-
posed to distribute. The government points to McGill’s use of
file-sharing applications to acquire child pornography, but so
what? These applications, although designed to promote
sharing, also permit a user to exclude outsiders from gaining
access to files on the user’s computer.2 The government offered
2
For a useful discussion of the how these applications permit
(continued...)
No. 12-3490 11
no evidence that McGill had unlocked his files even while he
had file-sharing applications on his computer. Moreover, in
Elliott’s very first recorded phone call to McGill, the defendant
was explicit that he would not again use file-sharing applica-
tions. The government also makes much of McGill’s attendance
at a party where other men were distributing child pornogra-
phy. But McGill took nothing to that party (and brought nothing
home), and the next time Elliott pushed him to attend a similar
gathering, McGill declined.
The government’s other premise, that McGill’s possession
of child pornography is evidence of a predisposition to
distribute, proves too much. Possession and distribution are
very different crimes; the government’s long history of
prosecuting drug offenses surely makes this evident, as
possession of a controlled substance generally is a misde-
meanor but distribution, even of small amounts, is a felony.
See 21 U.S.C. §§ 841(a)(1), 844(a); Abuelhawa v. United States, 556
U.S. 816, 822 (2009) (describing history of statutory designation
of drug crimes as misdemeanors or felonies); United States v.
Swiderski, 548 F.2d 445, 450–51 (2d Cir. 1977) (joint purchase of
cocaine punishable only as misdemeanor possession, not
felony distribution). The government is not free to induce
2
(...continued)
users to restrict the files they share, see United States v. Handy,
2009 WL 151103, at *2 (M.D. Fla. Jan. 21, 2009). See also Note,
Maggie Muething, Inactive Distribution: How the Federal
Sentencing Guidelines for Distribution of Child Pornography Fail to
Effectively Account for Peer-to-Peer Networks, 73 Ohio St. L.J.
1485, 1489 & nn.23–26 (2012).
12 No. 12-3490
more-serious crimes simply because the target already commit-
ted a lesser crime. See Sherman, 356 U.S. at 376 (explaining that
entrapment occurs when government “beguiles” defendant
into engaging in crimes that “he otherwise would not have
attempted”); see also United States v. Swiderski, 539 F.2d 854,
857–59 (2d Cir. 1976) (drug users entitled to entrapment
instruction on distribution charge); United States v. Watson, 489
F.2d 504, 507–09 (3d Cir. 1973) (drug user entitled to entrap-
ment instruction on distribution charge); United States v. Cardi,
478 F.2d 1362, 1367 (7th Cir. 1973) (jury properly instructed on
entrapment in prosecution of drug user for distribution).
The government rejoins that sending Elliott after McGill
ensnared only an unwary criminal, and at oral argument made
much of the statement in Sherman, 356 U.S. at 372, that “a line
must be drawn between the trap for the unwary innocent and
the trap for the unwary criminal.” See also Russell, 411 U.S. at
436. But the ranks of the “unwary innocent” are not limited to
those whose lives are crime free. See, e.g., Sherman, 356 U.S. at
376; United States v. Luisi, 482 F.3d 43, 58 (1st Cir. 2007) (mem-
ber of La Casa Nostra who previously engaged in drug
trafficking was entitled to entrapment instruction on cocaine-
trafficking charges); United States v. Ewbank, 483 F.2d 1149, 1151
(9th Cir. 1973) (“The fact that appellant here was involved in
the drug culture, according to his own admission being a user,
does not establish that he was also a predisposed seller or
distributor within the meaning of the crime of which he was
convicted.”); accord United States v. Isnadin, 742 F.3d 1278, 1297,
1301–02 & n.31 (11th Cir. 2014) (approving jury instructions
permitting jury to find entrapment to some, but not all,
charged crimes); United States v. Mitchell, 67 F.3d 1248, 1252–57
No. 12-3490 13
(6th Cir. 1995) (same). McGill was not innocent of posses-
sion—and never claimed to be—but before his August 2009
meeting with Elliott he was, as far as the government can say,
innocent of the crime of distributing child pornography.
Despite finding no evidence of predisposition, the district
court refused to instruct the jury on entrapment because the
court did not think that McGill had pointed to evidence of
government inducement. Here we part ways with the district
judge. Government exploitation of friendship can constitute
improper inducement. See, e.g., Sherman, 356 U.S. at 371–73
(majority op.); id. at 383 (Frankfurter, J., concurring); Sorrells v.
United States, 287 U.S. 435, 439–40 (1932); United States v.
Poehlman, 217 F.3d 692, 702 (9th Cir. 2000); United States v.
Gamache, 156 F.3d 1, 11 (1st Cir. 1998); United States v. Nations,
764 F.2d 1073, 1080 (5th Cir. 1985); United States v. McLernon,
746 F.2d 1098, 1113–14 (6th Cir. 1984). Assessing an entrapment
defense involves a subjective inquiry, see Pillado, 656 F.3d at
764–66; United States v. Stallworth, 656 F.3d 721, 726 (7th Cir.
2011), meaning that a defendant is entitled to argue that he was
particularly susceptible to inducement, see, e.g., United States v.
Sandoval-Mendoza, 472 F.3d 645, 656 (9th Cir. 2006); United
States v. Nunn, 940 F.2d 1148, 1149 (8th Cir. 1991); United States
v. Newman, 849 F.2d 156, 165 (5th Cir. 1988); accord McLernon,
746 F.2d at 1115.
Elliott himself characterized McGill as a loner with few
other friends, living in near isolation. And the jury had before
it McGill’s confession to Elliott of his social anxiety. Elliott
alone could have traded on McGill’s insecurities to make the
number of telephone calls that he did in a brief period of time.
14 No. 12-3490
The jury heard many of those conversations, and Elliott
conceded that whenever McGill innocently turned the discus-
sion to one of many subjects unrelated to child pornography,
as he often did, Elliott would do his best to steer McGill back
to the single objective of the FBI’s investigation: convincing
him to download child pornography for Elliott, his friend.
We conclude that this record provided a sufficient basis for
a rational jury to infer that Elliott exploited his unique connec-
tion with McGill to induce the defendant to distribute child
pornography. At trial and now on appeal the government has
been emphatic that McGill, not Elliott, instigated the distribu-
tion crime during their very first recorded telephone conversa-
tion. McGill offered to share his files with Elliott, the govern-
ment insists, without being directly asked. But this gloss on the
telephone conversation is not the only one that is reasonable.
By the time McGill “offered” his files to Elliott, he already
knew that Elliott had arranged to obtain a third party’s
collection. And that collection, McGill was quick to add, was
far superior to his own. As we see it, that sequence, along with
McGill’s observation about the third party’s collection of child
pornography, would allow a rational jury to conclude that
McGill’s overture was intended to protect a friendship with
one of the few people with whom he was comfortable. The real
test came when Elliott—so it seems—surprised McGill by
accepting his gesture of friendship, and after that at every turn
McGill stalled on delivering the goods. A rational, properly
instructed jury could have seen things differently than the
government and concluded that McGill’s vulnerability and fear
of losing Elliott’s friendship left him particularly susceptible to
government inducement. Indeed, the district judge seems to
No. 12-3490 15
have found this inference compelling, as she made known her
belief that the government had exploited McGill’s friendship
with Elliott.
The existence of competing inferences is precisely why the
issue of entrapment should have been submitted to the jury.
The question is not whether the government’s take strikes us
as logical or even probable, but simply whether “there exists
evidence sufficient for a reasonable jury to find” in the defen-
dant’s favor. Mathews, 458 U.S. at 63; see Pillado, 656 F.3d at
766–68. An evidentiary foundation for a defensive theory,
“however tenuous” that foundation might seem, compels
submitting the defense to the jury. See United States v. Kokenis,
662 F.3d 919, 929 (7th Cir. 2011) (internal quotation marks and
citation omitted); see also United States v. Sawyer, 558 F.3d 705,
710 (7th Cir. 2009); United States v. VanAllen, 524 F.3d 814, 823
(7th Cir. 2008). The evidence before the jury in this case easily
clears that minimal hurdle.
McGill’s conviction on the distribution count is REVERSED,
and that count is REMANDED for further proceedings. On
remand the government must proceed without delay if it elects
to retry McGill on that count. McGill’s sentence on the posses-
sion count is VACATED; that concurrent sentence is linked to
his conviction for distribution and, on remand, must be
reconsidered in conjunction with the disposition of the distri-
bution charge.