United States v. Carl Courtright , 632 F.3d 363 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2880
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C ARL A. C OURTRIGHT, III,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:07-cr-30179—David R. Herndon, Chief Judge.
A RGUED O CTOBER 29, 2010—D ECIDED JANUARY 13, 2011
Before P OSNER, K ANNE, and W ILLIAMS, Circuit Judges.
K ANNE, Circuit Judge. Carl Courtright was convicted
of production, possession, and receipt of child pornogra-
phy and sentenced to life plus ten years in prison.
Courtright now appeals his conviction, claiming that
evidence of a prior sexual assault was erroneously ad-
mitted at trial and that certain jury instructions were
improper. While we agree that the evidence of Court-
right’s prior sexual assault was admitted erroneously and
2 No. 09-2880
that some of the jury instructions may have been incor-
rect, reversal is unnecessary because these errors were
harmless. As such, we affirm Courtright’s conviction.
I. B ACKGROUND
Courtright fashions himself as something of an
amateur photographer. Unfortunately, the subjects of his
photographs are underage girls engaged in various
sexual activities. Courtright first took up his hobby in
1998, when he met a fifteen-year-old girl, L. Miller,
through his roommate. After forging a friendship with
Miller, Courtright persuaded Miller to pose for explicit
photographs. As part of Courtright’s photo shoot, he
directed Miller into various poses and took pictures of
her exposed breasts and genitalia. At one point during
the shoot, Courtright told Miller that he had some
medical knowledge and needed to examine her. He then
inserted his fingers into her vagina. After this conduct
came to light, Courtright pled guilty to aggravated sexual
abuse pursuant to ILCS 5/12-16(a)(2). As a result of that
conviction, Courtright had to register as a sex offender.
In 2007, the Illinois Attorney General began a probe
of social networking sites to determine whether registered
sex offenders were active users. This investigation
revealed that Courtright had an account on Myspace.com.
Officers used the Myspace.com records to learn Court-
right’s IP address, which they fed into a database of
addresses found to have offered child pornography
for distribution on the Internet. The IP address Court-
right used to check his Myspace.com account matched
No. 09-2880 3
one used to download child pornography through a file-
sharing program called Limewire. Officers used this
information to obtain a warrant to search Courtright’s
residence, where he lived with his parents.
During the search of Courtright’s home, officers found
several computers and computer equipment. A forensic
preview of a laptop found in Courtright’s bedroom
showed that the hard drive contained child pornography
images downloaded through Limewire. In subsequent
interviews, Courtright admitted that he was the only
user of Limewire in the home and of the laptop found in
his bedroom. He went on to state, somewhat ironically,
that he downloaded the images after watching an episode
of To Catch a Predator.1 He claimed that he was curious
about how pornographic images were disseminated and
that, after satisfying his curiosity, he immediately deleted
the images.
A more detailed analysis of the computers seized from
Courtright’s home revealed a large inventory of images
1
To Catch a Predator was an NBC television program that
tracked sexual predators as they used the Internet to engage in
explicit communications with apparent minors. Each episode
typically culminated with the predator arriving at the home
of the presumed minor, often carrying alcohol and contracep-
tives in a ubiquitous brown bag. The predator was greeted
first by a “decoy”—an adult actor who appeared underage—and
then by host Chris Hanson and a television crew. See Com-
ment, Loren Rigsby, A Call for Judicial Scrutiny: How Increased
Judicial Discretion Has Led to Disparity and Unpredictability in
Federal Sentencing for Child Pornography, 33 Seattle U. L. Rev.
1319, 1338 (2010).
4 No. 09-2880
depicting child pornography, many of which were not
deleted. Some of the images were found on a desk-
top that was password-protected for Courtright’s sole
access, while others were found on a laptop that Court-
right had already conceded was for his lone use. The
computers’ records also showed that, on multiple occa-
sions, the pornographic images were opened around the
same time that Courtright’s online bank account or social
networking profile was accessed. An analysis of the
image files showed that the majority of them were down-
loaded off of the Internet, while eleven others were trans-
ferred to the hard drive directly from a Hewlett-Packard
camera. The same girl was depicted in each of the
camera photos, but she was not readily identifiable—her
face was obscured and bandages were applied to iden-
tifying marks.
Officers later identified the mystery girl as S.J., a
fourteen-year-old who lived with her father in the
garage of a residence owned by Courtright’s parents.
During a teary interview, S.J. recounted the events that
led to the photos being taken. She told officers that
Courtright first bought her gifts and let her sleep in a
bedroom he often occupied in the adjacent house. After
the two became acquainted, Courtright offered to give
her lotion rubs and massages, going so far as to rub
lotion on her buttocks while telling her to “think of him
as a doctor” on one occasion.
S.J. claimed that Courtright eventually asked her to
pose for explicit photos. After initially rebuking Court-
right’s advances, S.J. agreed. At Courtright’s direction,
No. 09-2880 5
S.J. sat in a director’s chair and posed in various stages
of undress while Courtright took pictures of her. For
one photo, Courtright told S.J. to spit on her hand and
masturbate. S.J. told officers that Courtright also put his
fingers in her vagina during the shoot, telling her that
he knew “medical stuff” and needed to “examine” her.
Officers later confronted Courtright with this informa-
tion. While he admitted to owning a Hewlett-Packard
camera, he denied ever taking photos of S.J. and had no
explanation for how the photos got onto his hard drive.
Based on information from Courtright’s computers,
officers also learned that Courtright had been ordained
as a minister by an online company. He used this status
to create an online ministry and then manufactured fake
donation checks. Courtright deposited the checks into
an account and then used the sums to make a number
of large purchases.
On February 18, 2009, Courtright was charged with one
count of production of child pornography, two counts of
possession of child pornography, one count of receipt of
child pornography, and one count of bank fraud. Prior
to trial, the government filed a notice indicating that it
planned to introduce evidence of Courtright’s prior
sexual assault of L. Miller and of Courtright’s status as
a registered sex offender. Courtright conceded that his
status as a sex offender was intertwined and admissible,
and the district court admitted it on that basis. But
Courtright objected to the admission of his prior sexual
assault. The district court ultimately agreed with the
government and, after determining that the evidence
6 No. 09-2880
was relevant and not unduly prejudicial, admitted it
pursuant to Rule 413.
The trial began on March 2, 2009, and lasted five days.
On the first day of testimony, the district court gave
an erroneous elements instruction to the jury, to which
the government objected. On the following day, the
district court recognized the problem and corrected the
elements instruction, despite Courtright’s argument
that the initial instruction was correct.
During the remainder of the trial, the government called
fourteen witnesses. The witnesses included forensic
experts and investigating officers who had participated
in the investigation, who testified to the contents of the
hard drives and Courtright’s statements to law enforce-
ment, respectively. S.J. also testified as to all of the
details she had previously told officers, with one excep-
tion—she did not state that Courtright had inserted his
fingers into her vagina during the photo shoot. S.J.’s
father testified that Courtright had asked him about
taking photographs of S.J. Courtright’s cellmate testified
that Courtright had admitted to taking pictures of a
young girl. Finally, L. Miller testified about the details
of Courtright’s prior sexual assault, with the district
court giving a limiting instruction before and after her
testimony. Courtright presented no witnesses.
Following closing arguments, the jury found Courtright
guilty of all counts. The district court sentenced him to life
plus 120 months’ imprisonment for the production
count, 240 months’ imprisonment for the possession
counts, 480 months’ imprisonment for the receipt count,
No. 09-2880 7
and 360 months’ imprisonment for the fraud count.
Courtright timely appealed his conviction.
II. A NALYSIS
On appeal, Courtright argues that the district court
made a number of errors warranting a new trial. He
claims that evidence of his prior sexual assault was er-
roneously admitted, that a number of the jury instruc-
tions were improper, and that the cumulative effect of
these errors deprived him of a fair trial. We will
address each argument in turn.
A. Prior Bad Act
Courtright’s first claim is that the district court erred
when it admitted evidence of his prior sexual assault.
We review a district court’s interpretation of the rules of
evidence de novo and its decision to admit evidence for
an abuse of discretion, United States v. Rogers, 587 F.3d
816, 819 (7th Cir. 2009), mindful that evidentiary errors
do not require reversal if they were harmless, United
States v. Taylor, 604 F.3d 1011, 1016 (7th Cir. 2010).
The district court admitted the prior sexual assault
pursuant to Federal Rule of Evidence 413. Rule 413 pro-
vides, in relevant part:
In a criminal case in which the defendant is ac-
cused of an offense of sexual assault, evidence of
the defendant’s commission of another offense or
offenses of sexual assault is admissible, and may
8 No. 09-2880
be considered for its bearing on any matter to
which it is relevant.
Fed. R. Evid. 413(a). In admitting the evidence, the
district court interpreted the word “accused” broadly,
holding that Rule 413 is triggered when a defendant has
been verbally accused of sexual assault during the course
of an investigation into a separate offense. Courtright
takes issue with this interpretation of Rule 413, arguing
that Rule 413 applies only when a party has been charged
with an “offense of sexual assault” in the indictment.
We do not agree with the district court’s reading of
Rule 413. The district court’s interpretation was based
on the fact that Rule 413 uses the word “accused” instead
of “charged” to indicate when it is triggered. The govern-
ment defends the district court’s reading by noting that,
because the rule drafters use the word “charged” else-
where, the use of the word “accused” in this instance
should be given broader effect. We believe the govern-
ment makes too much of this distinction—at the time
Rule 413 was drafted (and today), the word “accused” was
often used in a technical sense to describe someone
who was charged with a crime. See Black’s Law Dictionary
22-23 (6th ed. 1990) (defining “accuse” as “to bring a formal
charge against a person”); Webster’s Third New International
Dictionary 14 (1986) (defining “accuse” as, among other
things, “to charge with an offense judicially or by public
process”). There is nothing in the text or committee notes
of Rule 413 to indicate that the word “accused” was used
in a broader fashion.
No. 09-2880 9
We find additional support for this reading of Rule 413
in nearby Rule 412. Rule 412 permits the admission of
a victim’s sexual behavior by the accused in certain
limited circumstances. The committee notes to Rule 412
specify that, for this Rule, “accused” is meant in a
broader, “non-technical sense,” and that there is “no
requirement that there be a criminal charge pending
against the person or even that the misconduct would
constitute a criminal offense” before evidence of a
victim’s sexual behavior can be admitted. Fed. R. Evid.
412 advisory committee’s note. Rule 413 provides no
similar clarification for the use of the word “accused,” nor
do the rest of the rules.
We therefore conclude that Rule 413 uses the term
“accused” in the more narrow, technical sense generally
invoked throughout the federal rules.2 See 23 Charles
Alan Wright & Michael W. Graham, Federal Practice and
2
The more difficult question is whether Courtright was
indeed charged with an “offense of sexual assault.” Rule 413
defines “offense of sexual assault” quite expansively, stating
that it includes a crime “that involved . . . contact, without
consent, between any part of the defendant’s body or an
object and the genitals or an anus of another person.” We
can imagine an argument that Courtright’s charge of
production of child pornography “involved” a sexual assault
because S.J. initially reported that Courtright touched her
vagina during the photo shoot. Cf. United States v. Julian, 427
F.3d 471, 486 (7th Cir. 2005) (noting the possible breadth of
the “involved” language). But neither side made this argu-
ment, so we need not address it today.
10 No. 09-2880
Procedure § 5413, at 549-50 (Supp. 2010) (“Since [Rule 413]
does not employ the language of Revised Rule 412, it
seems reasonable to suppose that the words are used in
the technical sense; that is, the evidence of other sexual
crimes is only admissible against a criminal defendant
and only if the crime charged is sexual assault.”).
So we are left with the district court’s admission of
evidence pursuant to an erroneous interpretation of
Rule 413. “[A]n error of law is, by definition, an abuse
of discretion.” Almonacid v. United States, 476 F.3d 518,
521 (7th Cir. 2007). But this error would be harmless, and
no new trial would be necessary, if the evidence was
admissible under another rule. United States v. Albiola, 624
F.3d 431, 437 (7th Cir. 2010). The government argues
that the error was harmless because the evidence was
also admissible pursuant to Rule 404(b). Evidence is
admissible under Rule 404(b) if:
(1) the evidence is directed toward establishing
a matter in issue other than the defendant’s pro-
pensity to commit the crime charged; (2) the evi-
dence shows that the other act is similar enough
and close enough in time to be relevant to the
matter in issue; (3) the evidence is sufficient to
support a jury finding that the defendant com-
mitted the similar act; and (4) the evidence has
probative value that is not substantially out-
weighed by the danger of unfair prejudice.
United States v. Stotler, 591 F.3d 935, 941 (7th Cir. 2010).
The government claims that the first prong is satisfied
because the prior bad act evidence was admissible to
No. 09-2880 11
prove Courtright’s intent, motive, or identity. We agree
that the evidence was at least probative of Courtright’s
motive. L. Miller’s testimony shows that, in the past,
Courtright engaged in sexually explicit contact with an
underage girl. This prior instance of sexual misconduct
tends to establish a motive for the crime against S.J.:
Courtright may have induced S.J. to take the pictures so
that he could again achieve sexual gratification with a
minor. See United States v. Sebolt, 460 F.3d 910, 917 (7th
Cir. 2006) (finding that prior bad acts toward a young
victim may show that a defendant has a sexual interest
in that age group and therefore provide evidence of a
motive to commit future sexually motivated crimes
against children); United States v. Cunningham, 103 F.3d
553, 556 (7th Cir. 1996) (“Most people do not have a
taste for sexually molesting children. As between two
suspected molesters, then, only one of whom has a
history of such molestation, the history establishes a
motive that enables the two suspects to be distinguished.”).
The government also claims that the second and third
prongs are satisfied, and we agree. Admittedly, there was
one distinction between the two crimes—in the first,
Courtright actually sexual assaulted the victim during the
course of the photo shoot, while in the second he only
encouraged her to touch herself in an explicit manner
while taking the photographs. But the two crimes are
still similar in important respects. In both crimes, the
perpetrator took time to develop a relationship with the
victims, bought gifts for them, and engaged in sexually
explicit acts with them under the auspices of pro-
viding medical advice. In addition, although there was
12 No. 09-2880
a nine-year gap between the assault of L. Miller and
the photo shoot with S.J., Courtright was incarcer-
ated—and thus incapacitated—for a large part of that
time. Finally, Courtright was found guilty by a jury of
the prior bad act.
The government finally argues that the last prong is
satisfied because the district court found the evidence
probative, analyzed it under Rule 403, and determined
that any prejudice could be cured via a limiting instruc-
tion. But, as Courtright correctly points out, the trial
court conducted a Rule 403 prejudice analysis on the
premise that the evidence was being admitted under
Rule 413. Rule 413 expressly allows the government to
use prior bad acts to show that a defendant acted in
conformity therewith—in other words, for propensity
purposes. Accordingly, a Rule 413 prejudice analysis
is limited and focuses on other sources of prejudice.
Rogers, 587 F.3d at 823.
Unlike a prejudice analysis for Rule 413, a Rule 404(b)
prejudice determination also evaluates whether the
evidence will be improperly used by the jury as proof
of propensity. Id. The risk of a jury using the evidence
for this purpose is particularly high where, as here, the
prior bad act may establish an addiction to some-
thing—like pyromania, drug use, or sexual gratification
through the assault of minors—and thus a motive to
commit that crime again. Cunningham, 103 F.3d at 556.
Especially in sex crimes, motive and propensity often
dovetail, and a court must be careful “about admitting
under the rubric of motive evidence that the jury is
No. 09-2880 13
likely to use instead as a basis for inferring the
defendant’s propensity.” Id. at 557. The government does
not address this propensity problem in its brief, and “we
are not in the business of formulating arguments for the
parties.” United States v. McClellan, 165 F.3d 535, 550
(7th Cir. 1999). Accordingly, the government’s Rule 404(b)
argument is incomplete and waived.
But even assuming the prior bad act evidence was not
admissible, reversal is unnecessary if the error had no
effect on the outcome of the trial. United States v. Conner,
583 F.3d 1011, 1025 (7th Cir. 2009). We are convinced
that is the case here. Courtright’s status as a sex offender
was already before the jury, and thus the likelihood
that the prior bad act testimony from L. Miller had any
effect on the jury is negligible. More importantly, the
evidence of Courtright’s guilt was overwhelming. See
United States v. Dennis, 497 F.3d 765, 769-70 (7th Cir.
2007) (finding harmless error when there was abundant
evidence of the defendant’s guilt). The images of S.J.,
along with numerous other images of child pornography
and data on the bank fraud scheme, were found on two
computers at Courtright’s home. Courtright admitted
that one of the computers was his, and only Courtright
had access to the second. Courtright also stated to law
enforcement that he had downloaded a number of the
child pornography images found on his hard drives.
Furthermore, S.J. testified that Courtright took the pic-
tures of her, her father testified that Courtright asked
about taking pictures of S.J., and Courtright’s cellmate
testified that Courtright confessed to taking pictures of a
young girl. Finally, Courtright called no witnesses and
14 No. 09-2880
offered no evidence of his innocence, lending further
support to a finding of harmless error. See United States
v. Taylor, 522 F.3d 731, 735 (7th Cir. 2008).
B. Jury Instructions
Courtright’s second claim on appeal is that a number
of the jury instructions were erroneous. Courtright
did not object to these instructions at trial, so we review
for plain error. United States v. Noel, 581 F.3d 490, 499
(7th Cir. 2009). To establish plain error, Courtright must
show that there was an actual error, that the error was
plain, that the error “affect[ed] the defendant’s sub-
stantial rights,” and that the error “seriously affect[ed]
the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Canady, 578 F.3d 665, 670
(7th Cir. 2009). Plain error review of jury instructions is
“particularly light handed,” and we will reverse only if
the error was of such a “great magnitude that it probably
changed the outcome of the trial.” United States v.
Moore, 115 F.3d 1348, 1362 (7th Cir. 1997).
Courtright first takes issue with the initial elements
instruction, which was given as a preliminary instruc-
tion at the beginning of the trial. That instruction
informed the jury that the government had to prove an
additional element for the production and possession
counts—namely that the “defendant had been previously
convicted of a sex offense in which a minor was the
victim” for the production count and that the “defendant
had a prior conviction . . . relating to aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving
No. 09-2880 15
a minor . . . or the production, possession, receipt, mailing,
sale, [or] distribution . . . of child pornography” for the
possession count. The government realized the addi-
tional elements were erroneous and objected. Courtright
countered that the instruction was appropriate, but the
district court corrected the instruction the following day.
We need not determine whether the initial elements
instruction was erroneous because Courtright has
waived this claim. A defendant waives an objection to a
jury instruction when he affirmatively approves the
instruction at issue. United States v. DiSantis, 565 F.3d
354, 361 (7th Cir. 2009). By opposing the government’s
initial objection to the elements instruction and in-
dicating that the instruction was correct, we conclude
that Courtright approved the initial instruction and
thus foreclosed any appellate review.
Courtright next claims that the corrected jury instruc-
tion was erroneous. The argument goes: because the
initial instruction provided that the government had to
show that Courtright engaged in child molestation in
the past, the jury believed that Courtright had actually
engaged in child molestation. Without a clear explana-
tion of the differences between the initial instruction
and the corrected instruction, Courtright claims that this
erroneous belief persisted throughout the trial. We find
this argument unpersuasive for a number of reasons.
First, as discussed above, Courtright sanctioned the
very instruction that produced this purported belief.
Second, and more importantly, an error is not plain
unless it was extraordinary—so “obvious, crucial, and
16 No. 09-2880
egregious that we may and should correct it even though
no objection was made below.” Backwater, Inc. v. Penn-
American Ins. Co., 448 F.3d 962, 965 (7th Cir. 2006). We
do not believe that the district court’s omission of
specific advice regarding the differences between the
initial preliminary instruction and the corrected prelimi-
nary instruction clears this hurdle.
Courtright finally claims that the limiting instructions
given before and after L. Miller’s testimony were errone-
ous, not just because her testimony should not have
been considered by the jury at all, but also because the
language of the instructions improperly suggested
that Courtright was presently charged with a crime of
sexual assault and that he was a child molester. We
need not determine whether these instructions were
erroneous for the simple reason that any error flowing
from them had no effect on the outcome of the trial. See
United States v. Peters, 435 F.3d 746, 754 (7th Cir. 2006). As
we have already noted, the evidence of Courtright’s
guilt was overwhelming, and he has not established that
the jury’s consideration of his prior offense had an ap-
preciable impact on the verdict. Accordingly, we find
that Courtright has failed to establish that the instruc-
tions were plainly erroneous.
C. Cumulative Error
Courtright’s final claim on appeal is that, even if each
of the individual errors was harmless, taken together
the errors were so prejudicial as to deprive him of due
process. For Courtright to demonstrate cumulative
No. 09-2880 17
error, he must show that there were at least two errors
committed during the course of the trial and those
errors “so infected the jury’s deliberation that they denied
[him] a fundamentally fair trial.” United States v. Avila,
557 F.3d 809, 821-22 (7th Cir. 2009).
At the end of the day, the only errors Courtright
has established are the admission of his prior sexual
assault of L. Miller under Rule 413 and possibly the jury
instructions related to that admission. Even if we
assume that these interrelated errors suffice to qualify
as two independent errors, reversal is appropriate only
if “the errors, considered together, could not have been
harmless.” Alvarez v. Boyd, 225 F.3d 820, 825 (7th Cir.
2000). Again, there was abundant evidence of Court-
right’s guilt, so L. Miller’s testimony and the related jury
instructions could not have had any appreciable impact
on the jury’s verdict. Courtright’s claim of cumulative
error thus fails. See Avila, 557 F.3d at 822.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM Courtright’s
conviction.
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