United States v. Gladish, Brian ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2718
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN E. GLADISH,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:06-CR-00109—Robert L. Miller, Jr., Chief Judge.
____________
ARGUED APRIL 4, 2008—DECIDED JULY 31, 2008
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Before POSNER, KANNE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. A jury convicted the defendant of
having violated two federal statutes: 18 U.S.C. § 1470,
which prohibits knowingly transferring or attempting
to transfer obscene material to a person under 16, and
18 U.S.C. § 2422(b), which, so far as bears on this case,
forbids knowingly attempting to persuade, induce, entice,
or coerce a person under 18 to engage either in prostitu-
tion or in any sexual activity for which one could be
charged with a criminal offense. Section 1470 imposes a
maximum sentence of 10 years in prison; section 2422(b)
imposes a minimum sentence of 10 years and a maximum
of life. The judge sentenced the defendant to 10 years
for the violation of section 1470 and 13 years, rather than
2 No. 07-2718
the advisory guideline sentence of 10 years, for the vio-
lation of section 2422(b), the sentences to run concurrently.
He went above the guidelines range because otherwise
the punishment for the defendant’s violation of section
1470 would be effectively zero, given the 10-year mini-
mum sentence for the section 2422(b) violation and the
fact that 10 years is the maximum sentence for violating
section 1470. The defendant challenges only his convic-
tion for violating section 2422(b).
The defendant, a 35-year-old man, was caught in a sting
operation in which a government agent impersonated a 14-
year-old girl in an Internet chat room called “Indiana
regional romance.” The defendant visited the chat room
and solicited “Abagail” (as the agent called herself) to
have sex with him. The defendant lived in southern
Indiana; “Abagail” purported to live in the northern part
of the state. She agreed to have sex with the defendant
and in a subsequent chat he discussed the possibility of
traveling to meet her in a couple of weeks, but no arrange-
ments were made. He was then arrested.
The defendant of course did not succeed in getting
“Abagail” to have sex with him, and if he had, he would
not have been guilty of a completed violation of section
2422(b) because the agent who called herself “Abagail” was
not a minor. The question (the only one we need answer
to resolve the appeal) is whether the defendant is guilty of
having attempted to get an underage girl to have sex
with him. To be guilty of an attempt you must intend
the completed crime and take a “substantial step” toward
its completion. Braxton v. United States, 500 U.S. 344,
349 (1991); United States v. Coté, 504 F.3d 682, 687-88 (7th
Cir. 2007). But the term “substantial step” cannot be
applied to a concrete case without an understanding of
No. 07-2718 3
the purpose for punishing unsuccessful attempts to com-
mit crimes.
In tort law, unsuccessful attempts do not give rise to
liability. If you plan to shoot a person but at the last
minute change your mind (and you had not threatened
him, which might be actionable), you have not com-
mitted a tort. The criminal law, because it aims at taking
dangerous people out of circulation before they do harm,
takes a different approach. A person who demonstrates
by his conduct that he has the intention and capability
of committing a crime is punishable even if his plan was
thwarted. The “substantial step” toward completion is
the demonstration of dangerousness, and has been
usefully described as “some overt act adapted to, approxi-
mating, and which in the ordinary and likely course of
things will result in, the commission of the particular
crime.” United States v. Manley, 632 F.2d 978, 988 (2d Cir.
1980); see, e.g., United States v. Vigil, 523 F.3d 1258, 1267-
68 (10th Cir. 2008). You are not punished just for saying
that you want or even intend to kill someone, because most
such talk doesn’t lead to action. You have to do something
that makes it reasonably clear that had you not been
interrupted or made a mistake—for example, the person
you thought you were shooting was actually a clothier’s
manikin—you would have completed the crime. That
something marks you as genuinely dangerous—a doer and
not just one of the “hollow men” of T. S. Eliot’s poem,
incapacitated from action because
Between the conception
And the creation
Between the emotion
And the response
Falls the Shadow.
4 No. 07-2718
In the usual prosecution based on a sting operation for
attempting to have sex with an underage girl, the defen-
dant after obtaining the pretend girl’s consent goes to meet
her and is arrested upon arrival, as in United States v.
Gagliardi, 506 F.3d 140, 150 (2d Cir. 2007); United States v.
Coté, supra, 504 F.3d at 688; United States v. Spurlock, 495
F.3d 1011, 1012-13 (8th Cir. 2007), and United States v.
Tykarsky, 446 F.3d 458, 469 (3d Cir. 2006). It is always
possible that had the intended victim been a real girl the
defendant would have gotten cold feet at the last minute
and not completed the crime even though he was in
position to do so. But there is a sufficient likelihood that
he would have completed it to allow a jury to
deem the visit to meet the pretend girl a substantial
step toward completion, and so the visit is conduct
enough to make him guilty of an attempt and not merely
an intent.
Travel is not a sine qua non of finding a substantial step
in a section 2422(b) case. Doe v. Smith, 470 F.3d 331, 345
n. 23 (7th Cir. 2006). The substantial step can be making
arrangements for meeting the girl, as by agreeing on a
time and place for the meeting. United States v. Yost, 479
F.3d 815, 820 (11th Cir. 2007); United States v. Thomas, 410
F.3d 1235, 1246 (10th Cir. 2005); United States v. Bailey, 228
F.3d 637, 639-40 (6th Cir. 2000); cf. United States v. Ramirez,
348 F.3d 1175, 1180-81 (10th Cir. 2003). It can be taking
other preparatory steps, such as making a hotel reserva-
tion, purchasing a gift, or buying a bus or train ticket,
especially one that is nonrefundable. “[T]he defendant’s
initiation of sexual conversation, writing insistent mes-
sages, and attempting to make arrangements to meet” were
described as a substantial step in United States v.
Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007). “Child sexual
No. 07-2718 5
abuse is often effectuated following a period of
‘grooming’ and the sexualization of the relationship.”
Sana Loue, “Legal and Epidemiological Aspects of Child
Maltreatment,” 19 J. Legal Med. 471, 479 (1998); see United
States v. Brand, 467 F.3d 179, 203 (2d Cir. 2006). We
won’t try to give an exhaustive list of the possibilities.
But we disagree with the government’s suggestion that
the line runs between “harmless banter” and a conver-
sation in which the defendant unmistakably proposes
sex. In all the cases cited to us by the government or found
by our independent research there was more than the
explicit sex talk that the government quotes from the
defendant’s chats with “Abagail.” The Goetzke decision,
from which we quoted, goes the furthest in the direction
of the government’s position, but is distinguishable. The
court noted (494 F.3d at 1235, 1237; footnote omitted) that
Goetzke made advances of a sexual nature—telling W
that he was a “cute young man,” suggesting
an exchange of pictures, describing how he liked
giving W a backrub and wanted to rub his “nice butt,”
advising W how to stimulate himself, and expressing
the desire to see W naked and to “put your peter in my
mouth.” Redolent of the fun they had together
riding horses, fishing, and being massaged, the letters
were crafted to appeal to W, flatter him, impress him,
and encourage him to come back to Montana “maybe
this summer” when school was out, by promising
the same kind of fun and a motorcycle of W’s own.
The letters essentially began to “groom” W for a
sexual encounter in the event he returned to
Montana. . . . Because of the allure of the recreational
activities and the prospect of a motorcycle, the
letters fit neatly within the common understanding
6 No. 07-2718
of persuade, induce, or entice. . . . [Goetzke] sent W
letters replete with compliments, efforts to impress,
affectionate emotion, sexual advances, and dazzling
incentives to return to Montana, and proposed that W
return during the upcoming summer. In short,
Goetzke made his move. Indeed, given their prior
relationship and what Goetzke knew of W and their
circumstances, the most substantial steps he realisti-
cally could take were to communicate his affections
and carefully-crafted incentives to W by telephone
and mail, which he did.
Because Goetzke and his intended victim had a prior
relationship, his effort to lure the victim back to Montana
for sex could not be thought idle chatter. But the fact that
the defendant in the present case said to a stranger
whom he thought a young girl things like “ill suck yoru
titties” and “ill kiss yrou inner thighs” and “ill let ya
suck me and learn about how to do that,” while not
“harmless banter,” did not indicate that he would travel
to northern Indiana to do these things to her in person;
nor did he invite her to meet him in southern Indiana or
elsewhere. His talk and his sending her a video of him-
self masturbating (the basis of his unchallenged convic-
tion for violating 18 U.S.C. § 1470) are equally consistent
with his having intended to obtain sexual satisfaction
vicariously. There is no indication that he has ever had
sex with an underage girl. Indeed, since she furnished
no proof of her age, he could not have been sure and
may indeed have doubted that she was a girl, or even a
woman. He may have thought (this is common in Internet
relationships) that they were both enacting a fantasy.
We are surprised that the government prosecuted him
under section 2422(b). Treating speech (even obscene
No. 07-2718 7
speech) as the “substantial step” would abolish any
requirement of a substantial step. It would imply that if
X says to Y, “I’m planning to rob a bank,” X has com-
mitted the crime of attempted bank robbery, even though
X says such things often and never acts. The requirement
of proving a substantial step serves to distinguish people
who pose real threats from those who are all hot air; in
the case of Gladish, hot air is all the record shows. So he is
entitled to an acquittal on the section 2422(b) count,
the effect of which will be to reduce his sentence from
13 years to 10 years.
We add, because it bears on our analysis of the attempt
issue, that the district judge should not have prevented
the psychologist whom the defendant had hired as an
expert witness to testify with respect to the attempt. The
expert’s report states that the defendant seeks sexual
gratification in Internet chat rooms and in watching
pornographic films because he has a “character patho-
logy” that has produced “a pervasive interpersonal appre-
hensiveness with the expectation that others will reject
and disparage him.” The defendant explained to the
psychologist that he uses the Internet to gratify his
sexual desires because “it’s safer and less expensive—it’s
a cheap date and I don’t have to worry about all the
sexually transmitted diseases.” The expert’s report says
that “such a response underscores the emotional and
physical distance he prefers in his adult interpersonal
relationships due to pronounced fear of ridicule and
rejection.” This was support for the “hot air” hypothesis
of Gladish’s conduct.
The judge’s ground for barring the psychologist from
testifying was that Rule 704(b) of the Federal Rules of
Evidence forbids an expert to “state an opinion or infer-
8 No. 07-2718
ence as to whether the defendant did or did not have
the mental state or condition constituting an element of
the crime charged or of a defense thereto. Such ultimate
issues are matters for the trier of fact alone.” But as
the rule itself states, the expert is permitted to
“testify . . . with respect to the mental state or condition” of
the defendant. The psychologist could not have been
permitted to testify that the defendant did not intend
to have sex with “Abagail,” but he could have testified
that it was unlikely, given the defendant’s psychology,
that he would act on his intent. You can sincerely intend
to stop smoking, yet a psychologist might conclude that
you had such poor impulse control that it was exceed-
ingly unlikely that you would stop. That evidence
would not be barred by Rule 704(b). United States v. Cohen,
510 F.3d 1114, 1125-26 (9th Cir. 2007); United States v. Finley,
301 F.3d 1000, 1014-16 (9th Cir. 2002). In fairness to the
district judge, we note that the defendant’s lawyer did not
make as clear as he should have what the intended focus of
the expert’s testimony would be. He said that the expert
would testify that the defendant did not have a “real
intent” to have sex with “Abagail.” But it is reasonably
clear that what the lawyer meant was that the expert would
testify that the defendant was unlikely to have acted on his
expressed intent.
The defendant’s conviction of violating 18 U.S.C.
§ 2422(b) is reversed with instructions to acquit. The
sentence for violating section 1470 will stand.
USCA-02-C-0072—7-31-08