United States v. Srinivasa Erramilli , 788 F.3d 723 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3095
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SRINIVASA ERRAMILLI,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11-cr-00778-1 — Joan Humphrey Lefkow, Judge.
____________________
ARGUED SEPTEMBER 10, 2014 — DECIDED JUNE 10, 2015
____________________
Before WOOD, Chief Judge, and EASTERBROOK and TINDER,
Circuit Judges.
TINDER, Circuit Judge. Srinivasa Erramilli has been caught
three times fondling unsuspecting women on airplanes.
Once in 1999 and once in 2002, he took a window seat be-
hind a young woman, and when she appeared to fall asleep,
he reached forward and fondled one of her breasts. Then, in
2011, he took a middle seat between a woman and her hus-
band (who was coincidentally blind in the eye closest to
2 No. 13-3095
him), and when the woman appeared to fall asleep, he fon-
dled her inner thigh. It is this latter incident that led to Er-
ramilli’s conviction for abusive sexual contact in this case. At
trial, the government introduced evidence of his prior acts
pursuant to Federal Rule of Evidence 413. On appeal, Erra-
milli argues that his prior acts should have been excluded
and that, even if they were properly admitted, the jury in-
struction on their use was improper. We disagree; therefore,
we affirm.
I. BACKGROUND
In June 2011, Susan and Vincent Domino took a trip to
Las Vegas for their thirty-fourth wedding anniversary. On
June 14, their trip came to an end, and they boarded their
return flight to Chicago on Southwest Airlines. Because of
Southwest’s open boarding policy, the Dominos were free to
choose their seats. Vincent is blind in his right eye, so the
Dominos generally sit on the right side of the plane, allow-
ing him to see the flight attendants when drinks are served.
This time was no exception: the Dominos sat toward the
back of the plane, on the right side of the center aisle. Vin-
cent took the aisle seat, as he thought he might need to use
the restroom during the flight. Susan was tired and thought
she might be getting sick; she chose the window seat so she
could lay her head against the side of the plane and get some
rest.
Meanwhile, Erramilli had been in Las Vegas on business
and had booked the same return flight to Chicago. The flight
was full, and Erramilli was the last to board, so he took the
only seat available to him: the seat between the Dominos. By
that time, Susan had crossed her left leg over her right and
was leaning against the window. She remained in that posi-
No. 13-3095 3
tion as the plane took off and eventually she succeeded in
falling asleep. At some point after takeoff, however, she felt
something brush against her leg, and she jolted awake. Not
seeing anything suspicious, she assumed the contact was ac-
cidental, so she moved a little closer to the window and
went back to sleep. A little later, Susan was awakened once
more when she felt some pressure on her upper thigh, “like
somebody was kneading it.” She turned, bumped Erramilli’s
knee, and said, “Oh, excuse me.” Erramilli said nothing in
response; instead, he folded his arms on the seatback tray in
front of him and put his head down. A little drowsy and still
unsure of what was happening, Susan curled up again and
tried to go back to sleep.
As the plane approached Chicago, Susan ordered a cup
of coffee, then she leaned back in her seat and closed her
eyes. She began to wonder whether someone had been
touching her leg during the flight, and she opened her eyes
to find that Erramilli had turned his legs toward her. Think-
ing that was strange, she closed her eyes again for a moment
and then reopened them. At that point, Erramilli reached his
left hand across his body and, while concealing it with a
newspaper, slid his hand up her shorts and squeezed her in-
ner thigh. Then, as Susan put it, she “lost control.”
Susan turned and struck Erramilli, then she called him a
“pig” and a “pervert.” He asked what she was doing, and
she responded, “You know what you were doing.” Erramilli
said, “I don’t know what you are talking about.” Then, Su-
san told Vincent what happened and asked for the authori-
ties. Erramilli pleaded with them not to call the authorities,
saying that his wife and two children were waiting for him
and that they could “settle this in a civil matter.” By this
4 No. 13-3095
time, he was sweating profusely. He also said something to
the effect of, “I thought you liked it.” Eventually, Vincent
pressed the flight attendant call button, but the plane was
already descending into Chicago, and the flight attendants
could not immediately come to their aid. As soon as the
plane arrived at the gate, Erramilli got up and tried to exit,
but Vincent blocked him in. Then, a flight attendant arrived
and escorted the three of them into the jetway, where they
met with officers from the Chicago Police Department. Su-
san told her story to the police, and later, the FBI.
On November 1, 2011, a grand jury returned an indict-
ment against Erramilli, charging him with two counts of
abusive sexual contact under 18 U.S.C. § 2244, which applies
to acts committed on aircraft pursuant to 49 U.S.C.
§ 46506(1). Under the statute, “the term ‘sexual contact’
means the intentional touching, either directly or through
the clothing, of the genitalia, anus, groin, breast, inner thigh,
or buttocks of any person with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of any
person.” 18 U.S.C. § 2246(3). The first count of the indictment
charged Erramilli under 18 U.S.C. § 2244(a)(2), based on the
contact that occurred while Susan was asleep. However, the
government voluntarily dismissed that count during trial,
after concluding that there was insufficient evidence that Er-
ramilli made contact with Susan’s inner thigh (or any other
area listed in the statute) while she was asleep. The second
count charged Erramilli under 18 U.S.C. § 2244(b), which
proscribes “knowingly engag[ing] in sexual contact with an-
other person without that other person’s permission.” This
charge was based on the contact that occurred after Susan
awoke but without her permission.
No. 13-3095 5
The government filed a motion in limine under Federal
Rule of Evidence 413, asking the district court to admit evi-
dence of two prior sexual assaults committed by Erramilli. In
response, Erramilli argued that such evidence should be ex-
cluded under Federal Rule of Evidence 403 because its pro-
bative value was substantially outweighed by the danger of
unfair prejudice. The district court disagreed and granted
the government’s motion. However, the court cautioned that
“the proper focus of the trial must be the underlying conduct
that supports the instant offense, rather than the prior of-
fenses,” and it directed the government to “limit its presen-
tation to evidence that is necessary to convey the essential
facts underlying the two prior offenses” and “limit emotion-
al testimony from the prior victims.”
At trial, the government presented testimony regarding
Erramilli’s prior acts. First, one of his prior victims testified
that on August 30, 1999, when she was twenty-seven years
old, she was seated next to a window on a flight from De-
troit to Chicago. At some point during the flight, she placed
her right arm on the armrest and leaned her head against the
window, hoping to take a nap. Then, she felt a hand reach
between her right arm and her body, grazing the side of her
breast. At first, she thought it must have been a child play-
ing, but then it happened again, and she grew suspicious.
Then it happened a third time, only the contact with her
breast was more substantial and obviously intentional. This
time, she grabbed the hand and turned around to see who it
was. It was Erramilli. The woman took a few minutes to pro-
cess things, then she went to the back of the plane to tell the
flight attendants what happened. Ultimately, Erramilli pled
guilty to an Illinois battery charge.
6 No. 13-3095
Next, the government presented the testimony of a for-
mer FBI agent who interviewed Erramilli following an inci-
dent that occurred on a flight from San Jose to Detroit on
February 6, 2002. During the interview, Erramilli explained
that although he had been upgraded to first class, he took a
window seat behind an eighteen-year-old woman in coach.
The woman was initially resting her head on a pillow posi-
tioned against the window, but eventually she removed the
pillow. At that point, Erramilli reached forward to touch her
breast. The woman clamped down on his arm with her el-
bow, which Erramilli took to mean that she wanted him to
touch her. Erramilli admitted to the FBI agent that he was
excited when he touched the woman’s breast and that he
had “a little bit of an erection.” Ultimately, he pled guilty to
abusive sexual contact in the U.S. District Court for the East-
ern District of Michigan.
After the parties rested and made their closing argu-
ments, the court instructed the jury on the law governing the
case. With respect to the testimony regarding Erramilli’s pri-
or acts, the court instructed the jury as follows:
You have heard testimony that the defendant
committed crimes other than the ones charged
in the indictment. Before using this evidence,
you must decide whether it is more likely than
not that the defendant did the crimes that are
not charged in the indictment. If you decide
that he did, then you may consider this evi-
dence for the following purposes: Motive, in-
tent, knowledge, absence of mistake, lack of
accident, and propensity to commit sexual as-
sault. Keep in mind that the defendant is on
No. 13-3095 7
trial here for abusive sexual contact, not for the
other crimes.
After deliberations, the jury returned a guilty verdict on the
sole remaining count of abusive sexual contact under 18
U.S.C. § 2244(b). Erramilli was sentenced to nine months’
imprisonment and one year of supervised release.
II. DISCUSSION
On appeal, Erramilli argues that the district court abused
its discretion in admitting the evidence of his prior sexual
assaults and that the court’s jury instruction on the use of
those assaults was improper. We address each argument in
turn.
A. ADMISSIBILITY
“A district court’s interpretation of the rules of evidence
is reviewed de novo, and its decision to admit or exclude evi-
dence is reviewed for an abuse of discretion.” United States v.
Foley, 740 F.3d 1079, 1086 (7th Cir. 2014). In this case, the dis-
trict court admitted Erramilli’s prior sexual assaults under
Federal Rule of Evidence 413.
Generally, evidence of prior crimes cannot be used to
support a propensity inference, that is, “to prove a person’s
character in order to show that on a particular occasion the
person acted in accordance with the character.” Fed. R. Evid.
404(b)(1). Such evidence may only be used for other purpos-
es, such as proving “motive, opportunity, intent, prepara-
tion, plan, knowledge, identity, absence of mistake, or lack
of accident.” Fed. R. Evid. 404(b)(2). However, “[i]n a crimi-
nal case in which a defendant is accused of a sexual assault,
the court may admit evidence that the defendant committed
8 No. 13-3095
any other sexual assault,” and “[t]he evidence may be con-
sidered on any matter to which it is relevant.” Fed. R. Evid.
413(a). Thus, “[e]vidence that tends to show that a criminal
defendant has a propensity to commit crimes ordinarily is
excluded from trial, but Rule 413 makes an exception where
past sexual offenses are introduced in sexual assault cases.”
Foley, 740 F.3d at 1086.
Although the propensity inference is permissible in sexu-
al assault cases, evidence of a defendant’s prior sexual as-
saults remains subject to Federal Rules of Evidence 401, 402,
and 403. United States v. Rogers, 587 F.3d 816, 820 (7th Cir.
2009). The evidence is admissible only if it is relevant, Fed.
R. Evid. 402, meaning that it must have a “tendency to make
a fact [of consequence] more or less probable than it would
be without the evidence,” Fed. R. Evid. 401. And the court
may exclude the evidence “if its probative value is substan-
tially outweighed by a danger of … unfair prejudice, confus-
ing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Fed. R.
Evid. 403.
Erramilli makes a feeble attempt to argue that his prior
sexual assaults were not relevant, but they were relevant for
at least two purposes. First, they were relevant as propensity
evidence, because “the simple fact that [he] had done it be-
fore makes it more likely that he did it again.” Rogers, 587
F.3d at 821. Erramilli complains that his prior assaults had
several distinguishing characteristics and were committed
long before 2011, but these arguments go to the probative
value of the prior assaults, not their relevance. Rule 401 re-
quires only that the evidence have “any tendency to make a
fact more or less probable than it would be without the evi-
No. 13-3095 9
dence,” and the fact that Erramilli sexually assaulted women
who were trying to sleep while onboard aircraft in 1999 and
2002 tends to make it more probable that he committed an-
other such assault in 2011.
Second, Erramilli’s prior sexual assaults were relevant to
prove that he knowingly engaged in “sexual contact,” which
is required for a conviction under 18 U.S.C. § 2244(b). In or-
der to prove that element of the offense, the government had
to establish that Erramilli intentionally touched Susan Dom-
ino’s inner thigh “with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any per-
son.” 18 U.S.C. § 2246(3). At trial, Erramilli argued that the
government failed to prove the “sexual arousal” element,
and he also suggested that his touching of Susan’s leg was
accidental. The fact that he was admittedly motivated by
sexual desire when he committed the prior assaults tends to
prove otherwise. Thus, those prior assaults were relevant to
prove his intent in this case.
Erramilli also argues that his prior sexual assaults should
have been excluded because their probative value was sub-
stantially outweighed by the danger of unfair prejudice. Af-
ter determining that the evidence is admissible under Rule
413, “the district court is required to consider whether it
should exclude the evidence under Rule 403.” Foley, 740 F.3d
at 1088. “Our role on appeal, however, is not to apply the
Rule 403 balancing test de novo but to review the district
court’s decision for an abuse of discretion.” Id. In this case,
we cannot conclude that the district court abused its discre-
tion because the probative value of Erramilli’s prior sexual
assaults was substantial and the danger of unfair prejudice
was low.
10 No. 13-3095
At trial, Erramilli pursued two avenues of defense. First,
he argued that Susan’s account of what happened was in-
credible and that he simply never touched her inner thigh.
This position made the use of Erramilli’s past sexual assaults
highly probative as propensity evidence because it bolstered
Susan’s testimony that she was sexually assaulted. See United
States v. McGuire, 627 F.3d 622, 627 (7th Cir. 2010) (“The evi-
dence was material because the defense was that [the victim]
was a liar. … The evidence of the other boys established the
defendant’s propensity for, and modus operandi of, molesta-
tion of young boys and by doing so bolstered [the victim’s]
testimony.”). Second, Erramilli argued that the government
failed to prove that the contact he made with Susan’s leg was
intended for sexual arousal or gratification. In fact, he sug-
gested that any contact was merely accidental. The evidence
of Erramilli’s past sexual assaults was highly probative of his
intent because it had a tendency to refute this defense.
Erramilli attempts to minimize the probative value of his
prior sexual assaults by pointing out several ways in which
they were different from what he did to Susan Domino, but
we agree with the district court’s conclusion that the differ-
ences are insignificant and that the offenses are overwhelm-
ingly similar. True, the prior offenses were committed
against younger women, and they involved Erramilli reach-
ing forward to touch the breast of a woman seated in front of
him rather than reaching across his body to touch the inner
thigh of a woman seated beside him, but all three offenses
were crimes of opportunity in which Erramilli furtively
groped unsuspecting women who were seated near him on
airplanes. The offenses need not be identical to have sub-
stantial probative value.
No. 13-3095 11
Erramilli’s argument is similar to that made by the de-
fendant in United States v. Julian, 427 F.3d 471 (7th Cir. 2005),
in which the defendant was charged with conspiring to trav-
el in foreign commerce for the purpose of engaging in illicit
sexual conduct with children based on his involvement in
the operation of a hotel in Mexico that catered to pedophiles.
At trial, Julian claimed that he understood the hotel to be a
legitimate business “that was friendly to gay tourists rather
than an illegitimate enterprise making children available to
pedophiles.” Id. at 488. To prove his knowledge and intent
with respect to the hotel’s illegitimate activity, the district
court allowed the government to introduce Julian’s prior
conviction for molesting his eleven-year-old stepson. On ap-
peal, Julian argued that the probative value of this prior as-
sault was slight because it involved his stepson rather than
unrelated children, and it did not take place in foreign com-
merce. Id. at 485. We disagreed, finding that while the prior
offense “was distinguishable from the charged offense in a
number of respects, a jury might reasonably infer from the
prior conviction that Julian was a pedophile and in turn
surmise that his involvement with [the hotel] was not as in-
nocent as the defense made it out to be.” Id. at 488. Similarly,
a jury could reasonably infer from Erramilli’s prior sexual
assaults that he received sexual gratification from furtively
groping women on airplanes, making it more likely that he
committed the assault charged in this case.
Erramilli also argues that his prior assaults had little pro-
bative value because they occurred nine and eleven years
before the charged offense. Rule 413 “establishes no time
limit on the admissibility of prior offenses.” Julian, 427 F.3d
at 487. “That said, the date of the prior offense remains a fac-
tor for a court to consider in weighing the possibility that the
12 No. 13-3095
risk of unfair prejudice to the defendant posed by evidence
of his prior offense might counsel against admission pursu-
ant to Rule of Evidence 403.” Id. In Julian, the prior sexual
assault occurred twelve years before the charged offense,
longer than either of the prior sexual assaults admitted in
this case. The district court relied on Julian in concluding that
the age of the prior assaults did not tip the Rule 403 balance,
and we cannot say that the court abused its discretion in do-
ing so.
Finally, we note that the danger of unfair prejudice was
low in this case. “Because Rule 413 identifies [the] propensi-
ty inference as proper, the chance that the jury will rely on
that inference can no longer be labeled as ‘unfair’ for pur-
poses of the Rule 403 analysis.” Rogers, 587 F.3d at 822. It is
true that there remain improper uses of prior sexual assaults
admitted under Rule 413. Id. For example, “a jury might use
such evidence … to convict a defendant because it is ap-
palled by a prior crime the defendant committed rather than
persuaded that he committed the crime charged,” or “be-
cause they think the defendant is a bad person generally de-
serving of punishment.” Id. at 822–23. But the prior assaults
in this case were not so appalling as to be likely to incite the
jury to an emotional decision. Indeed, the child molestation
admitted in Julian would have been more likely to do so. The
mere fact that the prior offense sought to be admitted was a
sexual assault cannot be enough to tip the scales in favor of
exclusion under Rule 403; if that were the case, Rule 403
would swallow Rule 413.
Moreover, the government complied with the district
court’s admonition to “limit its presentation to evidence that
is necessary to convey the essential facts underlying the two
No. 13-3095 13
prior offenses” and “limit emotional testimony from the pri-
or victims.” And at the close of the case, the district court in-
structed the jury to “[k]eep in mind that the defendant is on
trial here for abusive sexual contact, not for the other
crimes.” In light of the nature of the prior assaults, the man-
ner in which the evidence was presented, and the jury in-
structions, a jury would have been unlikely to use the evi-
dence for an improper purpose.
In sum, Erramilli’s prior sexual assaults were admissible
under Rule 413 because they were relevant to prove his pro-
pensity to commit the charged offense, as well as the requi-
site intent for that offense, and the district court did not
abuse its discretion in refusing to exclude the evidence un-
der Rule 403.
B. JURY INSTRUCTION
“We review de novo whether a challenged jury instruc-
tion fairly and accurately summarized the law, but the trial
court’s decision to give a particular instruction is reviewed
for an abuse of discretion.” United States v. Lawrence, --- F.3d
----, 2015 WL 3463089, at *8 (7th Cir. Jun. 2, 2015). “The dis-
trict court is afforded substantial discretion with respect to
the precise wording of instructions so long as the final result,
read as a whole, completely and correctly states the law.”
United States v. Marr, 760 F.3d 733, 743 (7th Cir. 2014) (inter-
nal quotation marks omitted). “We will reverse only if the
instructions, taken as a whole, misled the jury.” Lawrence,
2015 WL 3463089, at *8.
Before trial, the government proposed the following jury
instruction regarding the use of Erramilli’s prior sexual as-
saults:
14 No. 13-3095
You have heard evidence that the defendant
committed crimes other than the ones charged
in the indictment. Before using this evidence,
you must decide whether it is more likely than
not that the defendant did the crimes that are
not charged in the indictment. If you decide
that he did, then you may consider this evi-
dence on any matter to which it is relevant.
Keep in mind that the defendant is on trial here
for abusive sexual contact, not for the other
crimes.
This proposed instruction generally tracks the language of
the instruction for other-acts evidence admitted under Rule
404(b) from the pattern jury instructions developed by a
committee appointed by this court. See Committee on Feder-
al Criminal Jury Instructions for the Seventh Circuit, Pattern
Criminal Jury Instructions of the Seventh Circuit 3.11 (2012),
available at
http://www.ca7.uscourts.gov/Pattern_Jury_Instr/7th_crimina
l_jury_instr.pdf. However, consistent with the commentary
to the pattern, instead of identifying permissible purposes
for which the evidence may be used under Rule 404(b), it in-
corporates Rule 413’s statement that such evidence may be
considered “on any matter to which it is relevant.”
Concerned that the jury might use his prior sexual as-
saults for an improper purpose, such as convicting him be-
cause he is a bad person, Erramilli asked the district court to
re-insert the admonition from the pattern instruction that the
evidence may not be considered “for any other purpose.”
Thus, if Erramilli had his way, the jury would have been told
that while the evidence of his prior sexual assaults could be
No. 13-3095 15
considered “on any matter to which it is relevant,” it could
not be considered “for any other purpose.” Instead, the dis-
trict court decided to alleviate that risk of improper use by
modifying the instruction to identify the specific purposes
for which the prior acts were relevant. The court instructed
the jury that the evidence could be used “for the following
purposes: Motive, intent, knowledge, absence of mistake,
lack of accident, and propensity to commit sexual assault.”
The court declined to instruct the jury that the evidence
could not be used “for any other purpose.”
Erramilli argues that this was an abuse of discretion be-
cause it left open the possibility that the jury might use the
evidence for an improper purpose. But the jury was instruct-
ed to keep in mind that Erramilli was “on trial here for abu-
sive sexual contact, not for the other crimes.” And beyond
relevance, Rule 413 imposes no limits upon the purposes for
which prior sexual assaults may be used in sexual assault
cases. Indeed, the district court did more than was necessary
by identifying the particular purposes for which the evi-
dence was relevant. Erramilli’s proposed instruction would
have only served to confuse the jury by first stating that the
evidence may be considered on any matter to which it is rel-
evant and then purporting to limit the purposes for which
the evidence may be considered. As a result, we cannot say
that the district court abused its discretion in crafting the in-
struction the way it did.
III. CONCLUSION
The district court did not abuse its discretion in admit-
ting Erramilli’s prior sexual assaults under Rule 413 or in in-
structing the jury regarding those prior assaults. Therefore,
Erramilli’s conviction is AFFIRMED.