United States v. Bonty, Michael D. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 03-3244, 03-3260, 03-3431 & 03-3432
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL D. BONTY and
CHARLES E. HALL,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Illinois.
No. 02 CR 30116—Michael J. Reagan, Judge.
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ARGUED JUNE 3, 2004—DECIDED SEPTEMBER 7, 2004
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Before BAUER, RIPPLE and MANION, Circuit Judges.
BAUER, Circuit Judge. Michael Bonty and Charles Hall
appeal their convictions for the interstate transportation of
a minor with the intent to commit aggravated sexual
assault under 18 U.S.C. § 2423(a) and 18 U.S.C. § 2. Appel-
lants challenge the propriety of evidentiary rulings made
during trial and argue that there was insufficient evidence
to convict. We disagree and affirm the convictions.
The events giving rise to Bonty’s and Hall’s convictions
occurred on September 27, 2002, when the men, both in
2 Nos. 03-3244, 03-3260, 03-3431 & 03-3432
their thirties, decided to try to pick up teen-age girls at a
shopping mall in St. Louis, Missouri. “Jane Doe 1” and
“Jane Doe 2” were the unfortunate subjects of this plan;
they were thirteen and fifteen years old, respectively. At the
shopping mall Bonty impressed the girls by telling them
that he was a record producer and a friend of popular rap
musicians. Bonty and Hall then invited the girls to cruise
Lindburgh Boulevard—a popular past time for teenagers in
the area. The girls accepted the invitation and the group
left the mall together in Bonty’s car. At that point they
picked up “John Doe,” a friend of the girls, age fifteen.
While they were driving, Bonty suggested they smoke mari-
juana together; everyone agreed. Bonty purchased marijuana
and then drove them across the Mississippi River into Illinois
to his home in East St. Louis. The group gathered in Bonty’s
living room where they listened to music and smoked the
marijuana. During the course of the night on several oc-
casions Bonty asked Jane Doe 1 to have sex with him, she
refused each time. Bonty also asked Jane Doe 2 to have sex
with him; she also refused. Finally Bonty became angry and
tried to forcefully drag Jane Doe 1 into his bedroom; she
successfully resisted him. Bonty then locked the front door
to the house, securing it with a padlock and set the house
alarm. When Bonty attempted to drag Jane Doe 1 into the
bedroom she began crying and vomiting. Bonty went
downstairs and returned with something wrapped in a
towel, which he put to John Doe’s head and told Jane Doe
1 that he would shoot John Doe if she didn’t go in his
bedroom. Jane Doe 1 still refused to go, instead she grabbed
onto Jane Doe 2. Bonty struck Jane Doe 2 so that the girls
were separated and dragged Jane Doe 1 into his bedroom
where he raped her repeatedly over the next three hours.
During that time Hall turned up the stereo so that Jane
Doe 2 and John Doe could not hear what was going on in
the bedroom. After the assault Bonty and Hall ushered the
children out of the house and into Bonty’s car. John Doe
Nos. 03-3244, 03-3260, 03-3431 & 03-3432 3
looked over his shoulder on the way out and saw Bonty and
Hall give each other high-fives, shake hands and laugh.
Bonty drove the victims back to their homes in Missouri
around 4:00 a.m.
Sufficiency of the Evidence
Bonty argues that there was insufficient evidence to sup-
port the jury’s finding that he undertook interstate travel
with the intent of committing aggravated sexual assault.
Hall appeals his conviction for aiding and abetting Bonty,
also claiming insufficiency of evidence. We consider the
evidence in the light most favorable to the government and
will overturn the conviction only “if the record contains no
evidence on which a rational jury could have returned a
guilty verdict.” United States v. O’Hara, 301 F.3d 563, 569
(7th Cir. 2002).
Defendants’ convictions were pursuant to 18 U.S.C.
§ 2423(a). At the close of the trial, the jury was instructed
as to the elements of Section 2423(a):
First: That the defendant did knowingly transport
in interstate commerce, Jane Doe 1, from the
State of Missouri to the State of Illinois;
Second: That the defendant did so with the intent that
Jane Doe 1 engage in sexual activity for which
a person can be charged with a criminal of-
fense, namely: aggravated criminal sexual
assault under Illinois law, as charged in the
superseding indictment; and
Third: That Jane Doe 1 was under the age of eigh-
teen years at the time.
Bonty concedes that he transported Jane Doe 1 across
state lines; he also concedes that he sexually assaulted Jane
Doe 1 later that night; what he contests is the notion that
4 Nos. 03-3244, 03-3260, 03-3431 & 03-3432
at the moment he was crossing into Illinois with Jane Doe
1 he did so with the intent to commit the aggravated sexual
assault. Bonty argues that when he was transporting Jane
Doe 1 he only intended to have consensual sex with her and
that it wasn’t until after the thirteen-year-old unexpectedly
declined his sexual advances that it occurred to him to use
force—at which point they were already in Illinois.
Bonty’s optimistic scenario of the events is not wholly
implausible, and perhaps some jury somewhere might have
arrived at this conclusion. Bonty didn’t get that jury. In-
stead, Bonty’s jury reached the conclusion that, based on
the evidence, he intended to commit rape that night. We do
not believe this finding was irrational.
The government presented evidence demonstrating that
the men picked up the girls at the shopping mall, transported
them into Illinois and ultimately committed aggravated sexual
assault. In the process the government presented evidence
of Bonty’s intent. The government showed the temporal
proximity of the trip across State lines and the assault—
occurring within a few hours of each other. The government
also demonstrated that once the men took the victims to
East St. Louis, they told them they could not leave the
house on foot because the neighborhood was too dangerous,
effectively trapping them there. The government presented
evidence that during the evening, prior to the rape, Bonty
repeatedly told the girls they might as well agree to have
sex with him voluntarily because, “somebody is going to get
fucked tonight.” Finally, the government presented evidence
that Bonty and Hall celebrated the assault after it hap-
pened. It is apparent that the men contemplated that the
sex might not be consensual and that force would be
necessary.
This Circuit has recognized that a defendant may have
more than one purpose in the interstate transportation of
a minor. United States v. Vang, 128 F.3d 1065, 1069-72 (7th
Cir. 1997). It takes little stretch of the imagination to con-
Nos. 03-3244, 03-3260, 03-3431 & 03-3432 5
clude that, in transporting Jane Doe 1 across State lines,
Bonty intended to have sex with her that night either (1)
with her consent or (2) by force. The government need only
prove that a “significant” or “compelling” purpose of the trip—
not the dominant purpose—was to commit aggravated assault.
Id. at 1072. The evidence presented was sufficient to sup-
port this scenario.
Hall makes an additional argument that there is insuffi-
cient evidence to support the charge that he aided and
abetted Bonty. A person aides and abets if he, “knowingly
participated in the transaction”; mere presence at the time
of the crime is not enough to support a conviction. United
States v. Coleman, 179 F.3d 1056, 1061 (7th Cir. 1999). At
trial the government presented evidence showing that Hall
accompanied Bonty to the mall, participated in the cruising
and pot smoking, threatened the children to get them to
remain in the house, turned up the stereo to cover the
sounds of the assault, and celebrated with Bonty after the
fact. Hall argues that the witnesses providing this informa-
tion were not credible (a determination left to the jury) and
that the remainder of the evidence shows only that he
helped Bonty after the fact. Hall fails to convince us that no
rational jury could consider this evidence—viewed in a light
most favorable to the government—and conclude that he
was guilty of aiding and abetting Bonty.
Evidentiary Challenges
Hall challenges two evidentiary rulings made during trial.
We review evidentiary rulings by the trial judge for abuse
of discretion; further, even if error is found, we will not
reverse a verdict if the error was harmless. United States v.
Garcia, 986 F.2d 1135, 1139 (7th Cir. 1993).
Hall first challenges the exclusion of a statement made by
Bonty in which Bonty told FBI Special Agent John Jimenez
that Hall had nothing to do with the events of September
6 Nos. 03-3244, 03-3260, 03-3431 & 03-3432
27. Hall believes this statement should have come in as an
exception to hearsay under Federal Rule of Evidence
804(b)(3) as a “statement against interest.” A statement
against interest is admissible if: (1) the declarant is un-
available to testify at trial; (2) the statement is against the
declarant’s penal interest; and (3) corroborating circum-
stances exist that bolster the statement’s trustworthiness.
United States v. Shukri, 207 F.3d 412, 416 (7th Cir. 2000).
The district court found that Hall could not meet the
second part of this test; we agree. A statement is against
penal interest if it subjects the declarant to criminal lia-
bility. United States v. Butler, 71 F.3d 243, 253 (7th Cir.
1995). Bonty’s statement—that Hall had nothing to do with
the events of September 27—did not tend to implicate
Bonty and was not against Bonty’s penal interest. See, e.g.,
Williamson v. United States, 512 U.S. 594, 600 (1994)
(finding that non-inculpatory statements are not admissible
even if made within a broader context of a generally
inculpatory narrative). Hall believes we should evaluate the
statement in the context of Bonty’s entire interview; this
does not strengthen Hall’s argument. At the time Bonty
made the statement he continued to deny that he sexually
assaulted Jane Doe 1. It is simply not enough that during
the interview Bonty admitted to some facts—that he had
picked up the girls at the shopping mall and taken them to
his home—that “possibly could” lead to criminal liability; to
be inculpatory he must admit to criminal behavior. Butler,
71 F.3d at 253 (“Dixon, though placing himself in the room
where the guns were found, did not admit to anything
remotely criminal”). Similarly, Hall would seek refuge in
the Ninth Circuit’s decision in United States v. Paguio,
where that court held a father’s statement that his son had
nothing to do with making false statements on a loan
application was admissible. 114 F.3d 928, 932-33 (9th Cir.
1997). The case is clearly distinguishable; the Ninth Circuit
allowed in the father’s statement because the inculpatory
Nos. 03-3244, 03-3260, 03-3431 & 03-3432 7
and exculpatory portions of his statement were “not practi-
cally separable,”—the father was taking sole responsibility
for the crime—here Bonty simply made no inculpatory
statement. Id. at 934.
Hall also challenges the admission of testimony regarding
his sexual advances toward Jane Doe 2. He believes that
this testimony should have been excluded under Federal
Rule of Evidence 403 as not probative of any fact in issue
and unduly prejudicial. Specifically, Hall argues that,
because he is a thirty-one-year-old black man, his pro-
positioning a fifteen-year-old white girl inflamed the jury.
Further, he believes that making sexual advances toward
Jane Doe 2 was not probative of whether he aided and
abetted Bonty. The government argues that the statements
were relevant to demonstrate Hall’s intent to participate in
Bonty’s scheme; at trial there was an issue as to whether Hall
knew that the purpose of picking up the girls at the mall
was to later engage in a sexual encounter. The government
further argued that any prejudicial effect of the testimony
was lessened because the testimony only came in once (it
was not repeated) and the jury was instructed not to “be
influenced by any person’s race, color, religion, national
ancestry, or sex.” We find the testimony was relevant and
that the trial court did not abuse its discretion in finding
that, on balance, its probative value outweighed the
prejudicial effect.
AFFIRMED.
8 Nos. 03-3244, 03-3260, 03-3431 & 03-3432
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-7-04