Doe, John v. Smith, Brady ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3421
JOHN DOE and JANE DOE,
Plaintiffs-Appellants,
v.
BRADY SMITH, DIANNE SHEPARD,
KATHRYN FLETCHER, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 01-C-2184—David G. Bernthal, Magistrate Judge.
____________
ARGUED SEPTEMBER 21, 2005—DECIDED NOVEMBER 28, 2006
____________
Before COFFEY, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. This case involves disturbing
allegations of child molestation committed by a public
school official. John Doe and his mother Jane Doe con-
tend that, while he was enrolled at Franklin Middle
School in Champaign, Illinois, he was repeatedly molested
by the school’s Dean of Students, Brady Smith, and that
Champaign Community Schools Unit District No. 4 and
various school officials were deliberately indifferent to the
abuse. The Does filed this lawsuit under Title VI of the
Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.), Title IX
of the Education Amendments of 1972 (20 U.S.C. § 1681 et
seq.), the Equal Protection and Due Process clauses of the
Fourteenth Amendment to the United States Constitution,
as enforced by 42 U.S.C. § 1983, and various provisions of
2 No. 04-3421
Illinois law. Prior to trial, the district court granted sum-
mary judgment to the school district and the individually
named defendants on the Does’ section 1983 claims. At
trial, a jury found no liability on the remaining claims.
We affirm summary judgment for the defendants on the
Does’ section 1983 claims against the school district and
school officials (with the exception of Brady Smith), because
Titles VI and IX provide adequate statutory recourse for the
alleged discrimination. We also affirm the district court’s
decision to admit John Doe’s criminal history, because it
was relevant to his claim for compensatory damages.
However, we conclude the Does are entitled to a new trial
for three reasons. The trial court erred when it: (1) granted
summary judgment in favor of Brady Smith, because Titles
VI and IX do not shield an alleged child molester from the
prospect of individual liability for his constitutional tort, (2)
excluded Smith’s 2001 conviction for soliciting another
middle school student for sex, and (3) denied the Does’
motion to reconsider admitting a witness’s testimony that
Smith sexually abused him in the late 1970’s. For these
reasons, as discussed more fully below, we reverse and
remand for a new trial on John Doe’s section 1983 claim
against Brady Smith and the Does’ Titles VI and IX claims
against the school district and school officials in their
official capacities.
I. BACKGROUND
John Doe first enrolled at Franklin Middle School in 1993
as a sixth grader.1 The parties do not dispute that Doe was
1
John Doe and the other putative victims are all African
Americans; Smith is Caucasian. The Does contend that Smith
specifically targeted young, underprivileged African American
boys because they were particularly vulnerable and less likely
(continued...)
No. 04-3421 3
a troubled child whose classroom conduct was disruptive at
times. By Doe’s seventh-grade year, Brady Smith, the
school’s Dean of Students, had taken what appeared to be
a benign and constructive interest in the boy, often counsel-
ing Doe about his conduct and grades. In Doe’s eighth-grade
year, however, Smith’s seemingly innocent conduct revealed
his alleged ulterior motive. While supervising schoolchil-
dren before school, Smith would often seek out Doe on the
playground and order him to Smith’s office because he was
a troublemaker.2 At trial, Doe testified that he spent
approximately ninety-five percent of his eighth-grade year
in the dean’s office, rather than in class. Smith never helped
Doe with his homework or studies during these extended
office visits; instead, according to the Does, Smith used the
time to sexually groom John Doe.3
For instance, one Friday in February 1996, while in the
dean’s office, Smith invited Doe to have breakfast with him.
This breakfast invitation, according to Doe, was the begin-
ning of the molestation. At trial, Doe testified in detail
about the first instance of sexual abuse. The two
1
(...continued)
to be believed if they reported the molestation to authorities.
2
Trial Tr. vol 4, 820 (May 10, 2004).
3
Sexual grooming is “the process of cultivating trust with a
victim and gradually introducing sexual behaviors until reach-
ing the point of intercourse.” United States v. Johnson, 132 F.3d
1279, 1283 (9th Cir. 1997). The Does allege that Smith’s sexual
grooming of John Doe included lessening school punishment in
exchange for sexual favors, promising to manipulate the judicial
system in exchange for sexual favors, and enticing Doe with gifts
of food, money and clothing. See generally Doe v. Woodridge Elem.
Sch. Dist. No. 68 Bd. of Educ., 2005 U.S. Dist. LEXIS 7023 (N.D.
Ill. 2005) (sexual grooming may include giving gifts, clothing, and
food, as well as making promises to use authority more leniently).
Smith testified at trial that he spent $4000 to $5000 on gifts for
Doe and other African American male students.
4 No. 04-3421
ate breakfast on a Saturday at a local restaurant and
thereafter ended up at Smith’s home, where they
watched football. At some point during the game, Smith
turned and said that Doe needed “therapy”.4 When Doe
asked what “therapy” meant, Smith pulled down the boy’s
pants, held Doe’s hands behind his back, and performed
oral sex on him. During the ride back to Doe’s home, Smith
instructed Doe that the “therapy” was their secret and
directed him not to tell anyone. The following Monday,
Smith ordered Doe to his office where he again reminded
him not to tell anyone about the weekend’s activities.5
Smith’s attention to Doe persisted throughout Doe’s
eighth-grade year and into high school. It is undisputed
that Smith gave Doe money and often bought him tennis
shoes, video games, and sports tickets. At the end of his
eighth-grade year, Smith told Doe that he needed more
“therapy” to graduate from middle school.6 And, despite
failing every class in the eighth grade, Doe was promoted to
Central High School.
Perhaps the most egregious conduct Doe alleges occurred
on October 4, 1996. Doe had been in an altercation with his
gym teacher and landed himself in juvenile court for
assault. Smith came to court and, according to Doe, before
the hearing:
We went to a little section of the courthouse and he
said I was going to go to juvenile DOC but he could
talk to somebody, the State’s Attorney or somebody
4
The Does presented evidence at trial that Smith often told his
victims that they needed “therapy,” which was a code word for
oral sex. Smith would typically provide “therapy” to the boys while
they were at the dean’s home.
5
Trial Tr. vol 4, 825-28 (May 10, 2004).
6
Trial Tr. vol 4, 833 (May 10, 2004).
No. 04-3421 5
to help me but I had to agree for therapy for him to
keep me out of prison.7
At the hearing, Doe received probation and, at the urg-
ing of Smith and the state’s attorney, the juvenile court
released him into Smith’s custody, with the express under-
standing that Smith would take him to register for school.8
Doe left the courthouse with Smith but, rather than
registering him for school as the court instructed, Smith
took Doe to his home where he again performed oral sex on
him.9
Smith often gave Doe (then 15 years old and without a
driver’s license) the keys to his truck in exchange for
“therapy”. The abusive relationship ended in October 1996
when Doe wrecked Smith’s SUV. Possibly to fend off raised
eyebrows and suspicions of impropriety, Smith reported the
truck stolen, and Doe again found himself in juvenile
detention. While there, Doe told his mother of the abuse
and sent a hand-written letter to the juvenile court judge
stating that he was finally ready to explain why he did
not go to school.10
7
Trial Tr. vol 4, 835 (May 10, 2004).
8
At the hearing, the following exchange took place between the
state’s attorney, the juvenile court judge, and Doe:
State’s attorney: “I also tell you that Mr. Smith has
volunteered to take the minor to school and facilitate his
enrollment today and see that it’s accomplished . . . I
think that’s something that was agreed would be good . . .
since . . . he had been the minor’s dean last year.”
Court: “[John Doe], you are specifically required to go to
school with Mr. Brady Smith today to enroll.”
Def. Trial Ex. 61, Hr’g Tr. 13, 15 (Oct. 4, 1996).
9
Trial Tr. vol 4, 836-37 (May 10, 2004).
10
Pl.’s Trial Ex. 24, John Doe’s Handwritten Letter to the
(continued...)
6 No. 04-3421
Smith was placed on administrative leave while the
local police and the Illinois Department of Children and
Family Services investigated Doe’s allegations. Two weeks
later, in early November 1996, despite an ongoing
police and state agency investigation, Smith returned to
work as the dean. Indeed, the school district’s superinten-
dent called Smith and welcomed him back without imposing
any restrictions on his contact with students.11 In contrast
to the open arms the school district allegedly extended to
Smith upon his return, Doe did not return to school after
reporting the abuse. No attempt was made to inform his
mother of his truancy; no support services were offered; and
his school records were irretrievably lost. In January 1997,
the state decided not to charge Smith with sexually abusing
Doe.
Ultimately, both Smith and Doe were convicted of felo-
nies. Smith was convicted in 2001 for soliciting another
middle school student for a sex act. In 2001, an African
American middle school student reported that, while in
the dean’s office, Smith told the boy he would give him
$10 if the boy agreed to “show himself ” in Smith’s office.
Another middle school student also reported to police that
Smith had propositioned him for sex. Police subsequently
obtained a wiretapped conversation corroborating the
boys’ stories. Smith was initially indicted for aggravated
sexual assault, sexual misconduct, and indecent solicitation.
However, those charges were dropped and Smith received
probation for the remaining solicitation charge. Doe has
amassed three felony drug convictions over the years.
10
(...continued)
Honorable Thomas J. Difanis, Judge, Illinois Circuit Court, Sixth
Judicial Circuit (Oct. 30, 1996).
11
Trial Tr. vol 4, 640-41 (May 10, 2004).
No. 04-3421 7
In 2001, John Doe and his mother sued the Champaign
Community Schools Unit District No. 4, Brady Smith, and
the following school officials in their individual and
official capacities: Michael Cain (the school district’s
assistant superintendent), Kathryn Fletcher (the princi-
pal at Franklin Middle School), Donald Hansen (the
principal at Central High School), and Dianne Shepard (the
dean at Central High School).12 The Does sought relief
under Titles VI and IX, 42 U.S.C. § 1983, as well as state
law.
The district court granted summary judgment to the
defendants on the Does’ section 1983 claims, allowing their
Titles VI and IX claims against the school district and
pendent state law claims against Smith and the district to
stand. Before trial, the district court ruled on several
motions in limine. Two are relevant to this appeal: first, the
district court denied the Does’ motion to exclude John Doe’s
three felony drug convictions; in contrast, the district court
granted the defendants’ motion to exclude Smith’s 2001
conviction for indecent solicitation of a child. Ten days
before the originally scheduled trial date, after hearing
about the Does’ case in the media, another putative victim,
Tyrone B, went to the police and reported that he too was
molested by Smith as an adolescent in the late 1970’s. The
district court denied the Does’ emergency motion to admit
Tyrone B’s testimony because they failed to disclose him as
a potential witness. After the trial was delayed for eleven
months, the Does asked the court to reconsider its earlier
ruling excluding Tyrone B’s testimony; the district court
denied the motion to reconsider.
12
The Does’ claims against the Champaign school officials in their
official capacities are essentially redundant and treated as suits
against the school district itself. See Smith v. Metropolitan Sch.
Dist. Perry Township, 128 F.3d 1014, 1021 n.3 (7th Cir. 1997).
8 No. 04-3421
Four African American men, including John Doe, testified
at trial that Smith sexually groomed and abused them as
students at Franklin Middle School. The defendants
countered that Smith’s actions were benevolent, and the
dean only wanted to help the troubled youths. After a ten-
day trial, the jury found no liability on the Does’ claims.
This appeal followed.
II. ANALYSIS
The Does argue they are entitled to a new trial because
the district court erred when it (A) granted summary
judgment on their section 1983 claims, (B) excluded evi-
dence of Smith’s conviction for soliciting a minor for a sex
act, (C) admitted evidence of John Doe’s three felony drug
convictions, and (D) excluded Tyrone B’s testimony that
Smith molested him in the 1970s. We address the Does’
arguments in turn.13
A. Preemption of the Does’ Section 1983 Claims
John Doe and his mother sued the Champaign School
District, Brady Smith and the individually named school
officials, claiming violations of Titles VI and IX, as well as
the Equal Protection and Due Process clauses of the
Fourteenth Amendment, as enforced by 42 U.S.C. § 1983.
As to their claims brought under Titles VI and IX, the
Does contend that John Doe suffered unlawful race and sex-
based discrimination that interfered with his federally
funded education because Smith specifically targeted
African American boys for sexual grooming and abuse. Title
IX provides in pertinent part that, “no person . . . shall, on
13
Brady Smith, the dean who allegedly molested Doe, has not
responded to this appeal.
No. 04-3421 9
the basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a).14 When a claim for dam-
ages is based on the behavior of a teacher or of some other
employee of the Title IX recipient, the plaintiff must prove
that “an official of the [defendant educational institution]
who at a minimum has authority to institute corrective
measures . . . has actual notice of, and is deliberately
indifferent to, the teacher’s misconduct.” Delgado v. Stegall,
367 F.3d 668, 671 (7th Cir. 2004) (quoting Gebser v. Lago
Vista Indep. School Dist., 524 U.S. 274, 277 (1998)). Title IX
was modeled after Title VI of the Civil Rights Act of 1964
(under which the Does assert discrimination claims as well).
The statutes are parallel except that Title VI prohibits race
discrimination, not sex discrimination, and applies to all
programs receiving federal funds, not only education
programs. See 42 U.S.C. § 2000d et seq.; Gebser, 524 U.S. at
286. Because the two statutes largely operate in the same
manner, both conditioning an offer of federal funding on a
promise by the recipient not to discriminate, our discussion
of the Does’ Title IX claim applies to their Title VI claims as
well. See Cannon v. University of Chicago, 441 U.S. 677,
684-85 (1979).
The Does also assert constitutional claims against the
school district and school officials pursuant to 42 U.S.C.
§ 1983. To state a claim under section 1983, a plaintiff must
14
Although Title IX expressly contemplates the termination of
federal funding as a form of relief for impermissible discrimina-
tion, the Supreme Court has held that Title IX also creates an
implied private right of action for monetary damages. See, e.g.,
Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992);
Cannon v. University of Chicago, 441 U.S. 677, 709 (1979).
10 No. 04-3421
allege two elements: (1) the alleged conduct was committed
by a person acting under color of state law; and (2) the
activity deprived a person of rights, privileges, or immuni-
ties secured by the Constitution or laws of the United
States. Case v. Milewski, 327 F.3d 564, 566 (7th Cir. 2003);
Gomez v. Toledo, 446 U.S. 635, 638 (1980) (citing 42 U.S.C.
§ 1983). Here, the Does contend that the school district
generally turned a blind eye to Smith’s abuse of African
American boys and, as such, the school district denied John
Doe equal protection and substantive due process as the
Fourteenth Amendment requires.15
The district court granted summary judgment in favor
of the defendants on the Does’ section 1983 claims, reason-
ing that those claims were barred by Titles VI and IX. We
review the district court’s legal conclusions de novo, see
Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 974 (7th
Cir. 2004), and affirm the grant of summary judgment in
favor of the school district and individually named school
officials, but reverse summary judgment as to Brady Smith.
The question presented is this: does Title IX of the
Education Amendments of 1972 foreclose a section 1983
suit against (1) a federally funded school for an allegedly
unlawful practice or policy, (2) school officials tasked with
implementing the educational program or policy, or (3)
school personnel who, under color of law, allegedly vio-
lated another’s federally protected rights? In Middlesex
County Sewerage Authority v. National Sea Clammers Ass’n,
453 U.S. 1, 20 (1981), the Supreme Court announced what
has become known as the “sea clammers” doctrine: “When
the remedial devices provided in a particular Act are
15
In Wudtke v. Davel, 128 F.3d 1057, 1063 (7th Cir. 1997), we held
that a violation of a person’s right to bodily integrity, such as in
cases of sexual assault that occurs under color of law, offends the
Fourteenth Amendment’s guarantee of substantive due process.
No. 04-3421 11
sufficiently comprehensive, they may suffice to demonstrate
congressional intent to preclude the remedy of suits under
§ 1983.” The heart of the parties’ dispute here is whether
the sea clammers doctrine precludes the Does’ section 1983
claims against the defendants.
In Delgado, we explored the contours of the sea clammers
doctrine in the context of sexual harassment in a federally
funded school. In that case, a college student, alleging her
professor sexually harassed her, sued her university under
Title IX and the (harassing) university professor under
section 1983. In reversing summary judgment to the
professor, we held that, in enacting Title IX, Congress did
not intend to extinguish the right to sue under 42 U.S.C.
section 1983 in all cases. We note that the district court
here granted summary judgment on the Does’ section 1983
claims before our decision in Delgado, which clarified this
circuit’s precedent regarding Title IX preemption of section
1983 suits. Three principles buttressed our decision in
Delgado and are applicable here.
First, with respect to claims against a recipient of federal
funds, we stated that “Title IX . . . furnishes all the relief
that is necessary to rectify the discriminatory policies or
practices of the school itself.” Delgado, 367 F.3d at 674. To
be sure, the question of whether Title IX preempted a
section 1983 suit against a federally funded education
program was not before us in Delgado because, in that case,
the college student did not assert a section 1983 claim
against her university. Thus, we bring to the fore in this
case what was arguably dicta in Delgado: under the sea
clammers doctrine, there is no parallel right of action under
section 1983 against a federally funded education program
where Title IX provides a sufficient private right of action
for the allegedly unlawful policy or practice. Therefore, we
affirm the district court’s grant of summary judgment to the
school district on the Does’ section 1983 claims against it.
12 No. 04-3421
The second principle of Delgado relates to section 1983
claims against school officials whose alleged liability arises
only to the extent that they were responsible for implement-
ing an unlawful practice or policy. Regarding the effect of a
Title IX claim, there is a crucial line in our case law
between suits against the alleged malefactor who is not
shielded from section 1983 liability, see, e.g., Delgado, 367
F.3d at 674, and suits against school officials implementing
the challenged education practice or policy who are shielded
from individual liability, see, e.g., Boulahanis v. Bd. of
Regents, 198 F.3d 633, 639 (7th Cir. 1999). In the latter
instance, we have held that a section 1983 claim is not
cognizable because Title IX provides comprehensive re-
course (the loss of federal funds) for the discriminatory
practice or policy. “Congress intended to place the burden of
compliance with civil rights law on educational institutions
themselves, not on the individual officials associated with
those institutions.” Waid v. Merrill Area Pub. Schs., 91 F.3d
857, 862 (7th Cir. 1996).
The Does contend the district court erroneously held that
Title IX preempts their section 1983 claims against
defendants-appellees Cain, Fletcher, Hansen, and Shepard.
Importantly, the Does’ claims against these school officials
are essentially identical to their claims against the school
district: specifically with respect to African American boys,
the school district (through the school officials) failed to
follow its sexual harassment policy, resulting in a wide-
spread practice of deliberate indifference toward the
plight of Smith’s victims. Because the Does’ claims
against the school officials relates solely to their implemen-
tation of district policy, we conclude that Title IX provides
sufficient statutory recourse for the discrimination. There-
fore, we affirm the grant of summary judgment in favor of
school officials Cain, Fletcher, Hansen, and Shepard in
their individual capacities.
No. 04-3421 13
The third relevant principle of Delgado is simple enough:
Title IX does not immunize from section 1983 liability a
defendant who uses his position in a federally funded
education program to sexually harass and abuse students.
See Delgado, 367 F.3d at 674. Title IX has two important
anti-discrimination objectives: “to avoid the use of federal
resources to support discriminatory practices” and “to
provide individual citizens effective protection against those
practices.” Cannon, 441 U.S. at 704. “But it is quite other-
wise in a case such as this, in which the malefactor is a
teacher whose malefaction is not a policy or a practice for
which the school could be held liable under Title IX.”
Delgado, 367 F.3d at 674. Title IX does not shield the
malefactor from personal liability for his fed-
eral constitutional tort. “The legislators who enacted
Title IX would be startled to discover that by doing so
they had killed all federal remedies for sex discrimina-
tion by teachers of which the school lacked actual knowl-
edge.” Id. at 674-75.
Ruling on the plaintiffs’ motion for a new trial, the
district court modified its summary-judgment opinion and
held that, under our decision in Delgado, the Does could
maintain their section 1983 claims against Smith. The court
concluded that summary judgment for Smith was nonethe-
less proper because Smith’s abuse was not state action,
which is required to proceed under section 1983. Although
not every action by a state employee occurs under color of
state law, we conclude the district court erred in this case.
“Action is taken under color of state law when it is made
possible only because the wrongdoer is clothed with the
authority of state law.” Hughes v. Meyer, 880 F.2d 967, 971
(7th Cir. 1989) (quoting United States v. Classic, 313 U.S.
299, 326 (1941)) (internal quotation marks omitted).
Smith was arguably clothed with the authority of the
state when, at the October 1996 delinquency hearing, the
juvenile court released Doe to Smith’s custody with the
14 No. 04-3421
express agreement that the dean would take the boy to
register for school. Indeed, the state’s attorney told the
court that releasing Doe to Smith’s custody was a good idea
because Smith “had been the minor’s dean last year.”16 Of
course, Doe alleges that he was never taken to register for
school that day, but was instead taken to Smith’s home for
further abuse. Assuming Doe’s version of the facts is true
(as we must do at the summary-judgment stage), Smith’s
opportunity to molest him that day was made possible
because Smith used his authority as the dean to persuade
the juvenile court judge to release Doe to his custody.
More generally, the Does contend that, while supervis-
ing students on the playground, Smith would often single
Doe out and instruct him to report to Smith’s office, where
allegedly he would isolate and sexually groom Doe. Viewing
the facts in the light favorable to the Does, a jury
could reasonably conclude that Smith was acting under
color of state law when he withheld Doe from class allegedly
to sexually groom him for subsequent abuse. See West By &
Through Norris v. Waymire, 114 F.3d 646, 647 (7th Cir.
1997) (assuming without discussion that a police officer
acted under color of state law when he molested a thirteen
year-old girl while escorting her home after curfew).
Because Title IX does not preempt the Does’ section 1983
claims against Smith and because there is a triable issue of
fact as to whether Smith was acting under color of law
when he allegedly abused Doe, judgment as a matter of law
was improper. Therefore, we reverse the grant of summary
judgment in Smith’s favor. The Does’ section 1983 claims
against him must be reinstated.
16
Def. Trial Ex. 61, Hr’g Tr. 13 (Oct. 4, 1996).
No. 04-3421 15
B. Evidentiary Rulings
1. Admissibility of John Doe’s Felony Drug Con-
victions
In an effort to establish his entitlement to compensa-
tory damages, Doe’s expert testified at trial that Doe
suffered from post-traumatic stress disorder (PTSD) as a
result of Smith’s abuse. The defendants-appellees coun-
tered that, even if he suffered from PTSD, Doe’s three
felony convictions and stint in prison were the life stressors
that caused his PTSD. The district court allowed evidence
of Doe’s convictions to come in for the limited purpose of
informing the jury that “John Doe has been convicted of
three felonies, what the felonies are for, what the sentence
was for each felony and the length of his incarcerations and
probation.” The Does contend that introduction of the felony
convictions was inflammatory and therefore improper under
the Federal Rules of Evidence. We disagree.
We review the district court’s evidentiary rulings for
abuse of discretion, United States v. Wilson, 437 F.3d 616
(7th Cir. 2006), and conclude that the court was not unrea-
sonable in denying the Does’ motion to exclude evidence of
John Doe’s criminal history. First, contrary to the Does’
assertion, the felony convictions were only admitted into
evidence because Doe sought compensatory damages. The
district court properly “agree[d] with Plaintiffs that John
Doe’s criminal history is not relevant to the issue of Defen-
dant’s liability for the civil rights claims in this case.”17
The Does further contend that, even if the convictions
were relevant to the issues of damages, they were racially
inflammatory and only further confused the jury. When
asked at oral argument whether a limiting instruction
was sought regarding Doe’s convictions, his counsel indi-
cated that no such request was made. We have stated that
17
Or. Denying Pl.’s Mot. in Limine (June 24, 2003).
16 No. 04-3421
a limiting instruction is most effective in reducing or
eliminating possible unfair prejudice from the introduction
of evidence of prior bad acts or convictions. See United
States v. Puckett, 405 F.3d 589, 599 (7th Cir. 2005). In this
case, because John Doe’s convictions were admitted to rebut
his claim for compensatory damages and because the Does
failed to seek a limiting instruction to minimize
any prejudice or confusion the evidence may have
caused, we cannot conclude that the district court acted
unreasonably when it admitted the evidence.
2. Admissibility of Brady Smith’s 2001 Conviction
for Indecent Solicitation of a Child
In 2001, five years after Doe was allegedly abused, an
African American male student at Franklin reported to
authorities that Smith asked him to expose himself while
the two were in the dean’s office.18 During a subsequent
investigation, another boy wore a police wire and recorded
conversations in which Smith asked him for oral sex
in exchange for money. Smith was subsequently convicted of
indecent solicitation of a child.
At trial, the district court granted Smith’s motion in
limine to exclude evidence related to the 2001 conviction.
The Does argue on appeal that the district court erred
because the conviction was admissible under Federal
Rule of Evidence 415. In reviewing the trial court’s eviden-
tiary decision for abuse of discretion, see United States v.
Seals, 419 F.3d 600, 606 (7th Cir. 2005), we agree with the
Does that Smith’s 2001 conviction should have been
admitted at trial.
Congress enacted Rule 415, together with Rules 413
and 414, as part of the Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, § 320935,
18
Trial Tr. vol 4, 962 (May 10, 2004).
No. 04-3421 17
108 Stat. 1796, 2135-38. Particularly in sex offense cases,
the rules were designed to supercede the general
exclusionary principle set forth in Rule 404(b). United
States v. Cunningham, 103 F.3d 553, 556 (7th Cir. 1996).
Thus, under Rule 415, in civil cases where a party is alleged
to have committed sexual assault or child molestation,
“evidence of that party’s commission of another offense or
offenses of sexual assault or child molestation is admissi-
ble.”19 Fed. R. Evid. 415(a). The operational definition of
“sexual assault” is set forth in Federal Rule of Evidence
413(d) and is defined as any conduct proscribed under 18
U.S.C. 109(a) or relevant state law.20 Smith was convicted
19
Federal Rule of Evidence 415(a) provides as follows:
In a civil case in which a claim for damages or other
relief is predicated on a party’s alleged commission of
conduct constituting an offense of sexual assault or child
molestation, evidence of that party’s commission of
another offense or offenses of sexual assault or child
molestation is admissible and may be considered as
provided in Rule 413 and Rule 414 of these rules.
20
Precisely, Rule 413(d) provides:
For purposes of this rule and Rule 415, “offense of sexual
assault” means a crime under Federal law or the law of
a State (as defined in section 513 of title 18, United
States Code) that involved—
(1) any conduct proscribed by chapter 109A of title
18, United States Code;
(2) contact, without consent, between any part of
the defendant’s body or an object and the geni-
tals or anus of another person;
(3) contact, without consent, between the genitals
or anus of the defendant and any part of another
person’s body;
(4) deriving sexual pleasure or gratification from
the infliction of death, bodily injury, or physical
(continued...)
18 No. 04-3421
of violating 720 ILCS 5/11-6 of the Illinois Code, which
proscribes soliciting a minor for sex.21 The question is
whether, under Rule 413(d)(5), Smith’s solicitation
amounted to an attempt to engage in the proscribed con-
duct.22 The district court answered this question in the
20
(...continued)
pain on another person; or
(5) an attempt or conspiracy to engage in conduct
described in paragraphs (1)-(4).
By cross-reference, Chapter 109A of title 18 forbids both “sexual
acts” and “sexual contact” with a minor, as well as attempts to do
either of these things. See 18 U.S.C. §§ 2241(c), 2243(a),
2244(a)(1), (a)(3). A “sexual act” consists of vaginal, anal, or oral
sex, as well as touching the genitalia of another for various
purposes, including sexual gratification. See 18 U.S.C. § 2246(2).
“Sexual contact” consists of the intentional touching (directly or
through clothing) of the genitalia, anus, groin, breast, inner thigh,
or buttocks of another for various purposes, including sexual
gratification. See 18 U.S.C. § 2246(3).
21
720 ILCS 5/11-6(a) provides:
A person of the age of 17 years and upwards commits the
offense of indecent solicitation of a child if the person,
with the intent that the offense of aggravated criminal
sexual assault, criminal sexual assault, predatory
criminal sexual assault of a child, or aggravated criminal
sexual abuse be committed, knowingly solicits a child or
one whom he or she believes to be a child to perform an
act of sexual penetration or sexual conduct as defined in
Section 12-12 of this Code.
“Solicit” means to command, authorize, urge, incite,
request, or advise another to perform an act by any
means including, but not limited to, in person, over the
phone, in writing, by computer, or by advertisement of
any kind.
22
For purposes of introducing evidence of child molestation under
Rule 415, a “child” is defined as a minor under the age of 14. Fed.
(continued...)
No. 04-3421 19
negative, concluding that soliciting a minor for a sex act
does not constitute an attempt to commit an offense of
sexual assault. We review the district court’s conclusions of
law de novo. Dunlap v. Hepp, 436 F.3d 739, 741 (7th Cir.
2006).
The Does argue that soliciting a minor for sex necessarily
constitutes a substantial step toward committing sex-
ual assault. There is forceful support in our case law for the
Does’ argument. For instance, in Gattem v. Gonzales, 412
F.3d 758 (7th Cir. 2005), the petitioner was convicted of
indecent solicitation under Illinois law for offering a minor
cigarettes if she would engage in oral sex with him. We
affirmed the Board of Immigration Appeals’s decision that
the petitioner’s solicitation conviction amounted to (not
merely attempt but) an act of sexual abuse because the
petitioner used persuasion or inducement in an effort to
convince the minor to engage in sexually explicit conduct.
Id. at 765. Our holding in Gattem was based upon the
following principle:
[T]here is an inherent risk of exploitation, if not
coercion, when an adult solicits a minor to engage
in sexual activity. Minors as a group have a less
well-developed sense of judgment than adults, and
thus are at greater peril of making choices that are
not in their own best interests.
Id. at 765.
22
(...continued)
R. Evid. 414(d). The Illinois statute under which Smith was
convicted indicates “child” means a person under 17 years of age.
It is unclear from the record in this case whether the boy Smith
solicited in 2001 was under the age of 14. Plausibly, the minor
Smith solicited was over the age of 14 but under the age of 17. In
light of this ambiguity in the record, we discuss the admissibility
of Smith’s 2001 conviction under Rule 415’s parallel provision
pertaining to offenses of sexual assault, which does not include a
limitation on the age of the victim.
20 No. 04-3421
Similarly, in Hernandez-Alvarez v. Gonzales, 432 F.3d
763, 766 (7th Cir. 2005), the petitioner entered an Internet
chat-room and conversed with an adult undercover in-
vestigator, whom he believed to be a fifteen year-old girl.
The petitioner made plans to meet the “minor” for sex, but
was arrested en route to the address the investigator
supplied. In that case, we stated that “solicitation, a
partially completed offense similar to an attempt consti-
tutes sexual abuse of a minor under [8 U.S.C.]
§ 101(a)(43)(A).” Id. at 766 (internal citation omitted).
It is true that Gattem and Hernandez-Alvarez were
immigration cases involving the definition of a sexual
offense for purposes of the Immigration and Nationality
Act, whereas this case requires us to interpret what
constitutes a sexual offense for purposes of the Federal
Rules of Evidence. Beyond the immigration context,
whether soliciting a minor for sex constitutes an attempt to
commit sexual assault (or child molestation for that matter)
is a question of first impression for this Court. We begin our
analysis with the definition of attempt: “the crime of
attempt requires the specific intent to commit a crime and
a substantial step towards the commission of that crime.”
United States v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004).
“A substantial step is something more than mere prepara-
tion, but less than the last act necessary before the actual
commission of the substantive crime.” United States v.
Barnes, 230 F.3d 311, 315 (7th Cir. 2000); see Doe v. City of
Lafayette, 377 F.3d 757, 783 (7th Cir. 2004) (merely think-
ing sexual thoughts about children does not constitute a
substantial step toward sexual abuse).
Our dissenting colleague contends that the act of solicita-
tion cannot constitute an attempt, and that our opinion will
have a deleterious effect on well-settled criminal and civil
law. To the contrary, our decision today is consistent with
our circuit’s precedent as set forth in United States v.
Rovetuso, 768 F.2d 809 (7th Cir. 1985). In Rovetuso, the
No. 04-3421 21
defendants were charged with attempting to interfere with
the testimony of a government witness based upon evidence
that they solicited an FBI informant to murder the witness.
At trial, the court instructed the jury that solicitation may
constitute an attempt to commit the target offense. On
appeal, the defendants attacked the jury instruction and
argued that their convictions “should be reversed since
solicitation alone can never constitute the required substan-
tial step necessary to establish attempt.” Rovetuso, 768 F.2d
at 822. Holding that the jury instruction was a correct
statement of law, we affirmed and reasoned as follows:
The Federal courts have generally rejected a rigid
formalistic approach to the attempt offense. Instead
they commonly recognize that the determination by
their particular conduct [of what] constitutes . . .
[an attempt] is so dependent on the particular facts
of each case that, of necessity, there can be no
litmus test to guide the reviewing courts. Following
this analysis, which we consider the better rea-
soned approach, several federal courts have con-
cluded that a solicitation accompanied by the
requisite intent may constitute an attempt.
Rovetuso, 768 F.2d at 823 (7th Cir. 1985) (quoting United
States v. American Airlines, Inc., 743 F.2d 1114, 1121 (5th
Cir. 1984)) (emphasis added). Thus, as we recognized in
Rovetuso, solicitation may constitute a substantial step
toward the target offense where the solicitation is “strongly
corroborative of the intent to [commit the crime], in other
words, if it went beyond mere asking.” Rovetuso, 768 F.2d
at 823. Whether, given the facts of this case, Smith’s
solicitation amounted to attempt is a question we turn to
next.
Circuits that have addressed whether soliciting a child is
a substantial step toward committing a sexual offense have
reached varying conclusions. For example, in United States
22 No. 04-3421
v. Hayward, 359 F.3d 631 (3rd Cir. 2004), the Third Circuit
held that the defendant’s act of lying on a bed with a
fourteen year-old girl and repeatedly pushing her head
toward his fully clothed penis did not constitute a “substan-
tial step” toward oral sex and was therefore not an at-
tempted “sexual act.” But see Hayward, 359 F.3d at 644-45
(Fuentes, J., concurring in part and dissenting in part)
(stating “the majority’s repeated emphasis on Hayward’s
state of undress is misplaced and misleading” and reasoning
that a substantial step occurred when “the only thing
standing in the way of successful completion of a sexual act
was a layer of fabric”). Similarly, in United States v. Blue
Bird, 372 F.3d 989 (8th Cir. 2004), a fourteen year old girl
testified that the defendant kissed her and fondled her
breasts. Relying on the Third Circuit’s decision in Hayward,
the Eighth Circuit concluded that the evidence was inad-
missible under Rule 413, the rule of evidence pertaining to
criminal cases involving allegations of sexual assault. The
court reasoned that “the fact that he desisted and withdrew
when [the victim] said that she was not interested, indi-
cates that Mr. Blue Bird at most merely solicited some kind
of sexual contact. Without some more substantial step, we
hold that this conduct cannot constitute an attempted
sexual act or an attempt to engage in sexual contact.” Id. at
993 (internal quotation marks omitted).
Oddly, courts have more liberally defined what consti-
tutes a substantial step to commit a sex offense against a
child in so-called cyber-molester cases. In United States v.
Bailey, 228 F.3d 637 (6th Cir. 2000), the Sixth Circuit
upheld a defendant’s conviction for attempting to engage in
sex with a minor where the defendant emailed his tele-
phone number to underage girls and tried to convince them
to meet him for sex. The court reasoned that the substantial
step that strongly corroborated the defendant’s intent to
persuade the minor victims was simply the solicitous emails
he sent to his putative victims. Id. at 640. Likewise, in
No. 04-3421 23
another cyber-molester case, United States v. Murrell, 368
F.3d 1283 (11th Cir. 2004), the Eleventh Circuit held that
a defendant’s electronic solicitation of a government agent,
who the defendant believed to be a minor, constituted a
substantial step to commit a sex act against a child. See
also United States v. Thomas, 410 F.3d 1235, 1246 (10th
Cir. 2005) (finding defendant took a substantial step toward
child molestation by sending solicitous emails to an under-
cover officer posing as a twelve year-old girl).
Applying the principles set forth in Gattem and
Hernandez-Alvarez, we recognize that there is an inherent
risk of exploitation when an adult solicits sex from a minor
who, due to his or her under-developed sense of judgment
and susceptibility to coercion, lacks the capacity to consent.
Therefore, we hold that a defendant attempts to sexually
assault a minor—that is, takes a substantial step toward
committing the crime—when he solicits the child’s compla-
cency in a sex act. In this case, Smith’s solicitous conduct
occurred both when he called a middle school student to his
office and offered the boy $10 to expose himself, and during
subsequent recorded telephone conversations. Although it
is unclear from the record precisely what solicitous conduct
ultimately formed the basis of Smith’s guilty plea, in either
instance, his conduct went beyond thinking about or
planning to have sex with a minor. Unquestionably, calling
the minor to the dean’s office and telling him to expose
himself for money evinces Smith’s intent and substantial
step toward sexual assault.23 The wiretapped conversations
23
The dissent distinguishes the cyber-molester cases, reasoning
that, in those cases, the defendants engaged in substantial travel
to meet their putative victims, whereas Smith did not. We
agree that a defendant’s travel may evince a substantial step;
but we disagree that the defendant’s travel is necessary to
establish a substantial step. Such a bright-line rule would be
(continued...)
24 No. 04-3421
between Smith and a minor also satisfy our attempt
inquiry. Smith’s coded references to sex as “therapy”
corroborate his intent. Further still, Smith made a substan-
tial step toward completing the offense when he identified
his home as the place where the sex would occur and stated
that money would be the form of payment. Smith’s conduct
is analogous to the defendants’ conduct in cyber-molester
cases like Bailey and Murrell. There is no appreciable
difference between attempted child sexual assault using
telephonic means, as in this case, and electronic means, as
in the cyber-molester cases. We therefore conclude that
Smith’s solicitation of a child in 2001 constituted an
attempt to commit a sexual offense against a minor.
The final question in our Rule 415 inquiry is whether the
probative value of admitting Smith’s conviction outweighs
the prejudicial effect. We believe that it does. As Represen-
tative Susan Molinari, the principal House sponsor for
Rules 413-415, commented in her floor statements, “In child
molestation cases . . . a history of similar acts tends to be
exceptionally probative because it shows an unusual
disposition of the defendant—a sexual or sadosexual
interest in children—that simply does not exist in ordinary
people.” Cong. Rec. H8991-92 (Aug. 21, 1994). The school
district contends that, notwithstanding the admissibility of
the conviction against Smith, his conviction does not tend
to establish any of the Does’ claims against it. We disagree.
Smith’s pedophilic conduct is a fact of consequence that is
intertwined with the school district’s potential civil liability.
As we noted in our discussion of their section 1983 claims
against the school district, in order to establish liability, the
Does must prove that some Champaign school official who
23
(...continued)
inapplicable in cases such as here where the defendant’s modus
operandi was to have his minor victims come to him by inviting
them to his home or office for sex.
No. 04-3421 25
at a minimum had authority to institute corrective mea-
sures had actual notice of, and was deliberately indifferent
to, Smith’s misconduct. Simply stated, if Smith did not do
anything wrong, then necessarily the school district cannot
be liable for deliberate indifference. Smith’s conviction was
highly probative of whether Smith’s position as dean
provided him with an opportunity to cultivate the boys’
trust and, also, the conviction tends to discredit the
defendants-appellees’ theory that Smith was merely a
benevolent educator. We therefore conclude that the
prejudicial effect of Smith’s conviction does not outweigh
the probative value to the Does’ case that he was convicted
in 2001 of soliciting sex from another Franklin middle
schooler.24
3. Admissibility of Tyrone B’s testimony
After learning of the Does’ case in the media, Tyrone B,
another putative Smith victim, went to the police and
reported that Smith abused him in the late 1970’s. Tyrone
B described himself as an isolated child from a single-
parent family. According to Tyrone B (who was 10 or 11
years old at the time), Smith (who was then 19 or 20 years
old) cultivated Tyrone B’s trust and friendship by giving
him tennis shoes and appealing to his love of sports.
Eventually, Tyrone B started spending nights at Smith’s
home and in Smith’s bed; more than once Tyrone B would
awake to Smith performing oral sex, attempting to perform
anal sex, or masturbating.
24
This opinion was circulated in advance of publication to all
judges of this court in regular active service pursuant to
Seventh Circuit Rule 40(e). A majority did not favor a rehear-
ing en banc on the question of the admissibility of Smith’s
conviction for indecent solicitation of a child.
26 No. 04-3421
The Does learned of Tyrone B’s statement to police on
June 6, 2003, ten days before trial was originally set to
begin on June 16. Because the period for discovery had
closed, the Does filed an emergency motion to admit Tyrone
B’s statement to police under Federal Rule of Evidence 415.
The trial court sua sponte continued the trial to November
10, 2003; then the court denied the Does’ emergency motion
to admit Tyrone B’s testimony. In November, the trial was
again delayed, this time at Smith’s request. On November
28, the Does asked the court to reconsider its earlier ruling
excluding Tyrone B’s testimony. On December 16, the
district court, without explanation, denied the motion to
reconsider. The trial ultimately occurred in May 2004,
nearly a year after the Does initially sought to introduce
Tyrone B’s testimony.
We conclude that the trial court erred when it excluded
Tyrone B’s testimony from trial. The admissibility of
eleventh-hour witness testimony presents competing
interests of the parties. On the one hand, the discovery of
potential witnesses in a timely fashion is an important
principle of litigation. “The central aim of such rules is to
minimize surprise at trial by requiring disclosure of wit-
nesses in advance of trial.” Tyson v. Trigg, 50 F.3d 436, 445
(7th Cir. 1995). A party against whom an eleventh-hour
witness is offered is undoubtedly disadvantaged to some
degree by the late disclosure. On the other hand, through no
fault of its own, a party may learn of a critical witness only
days prior to trial. Given the competing interests at stake
and given that the trial judge is in the best position to
weigh such interests as they unfold, we have declined to
fashion a hard-and-fast rule regarding the admissibility of
newly discovered witness testimony. Id. Instead, we review
a trial court’s decision to exclude newly discovered testi-
mony for an abuse of discretion and will reverse only if the
court’s ruling was unreasonable. Cincinnati Ins. Co. v.
Flanders Elec. Motor Service, Inc., 131 F.3d 625, 628 (7th
Cir. 1997).
No. 04-3421 27
Federal Rule of Evidence 415(b) states: “A party who
intends to offer evidence under this rule shall disclose the
evidence to the party against whom it will be offered . . . at
least fifteen days before the scheduled date of trial or at
such later time as the court may allow for good cause.”
Notwithstanding our deferential standard of review, there
is a strong argument that, in ruling on the Does’ emergency
motion, the court should have allowed in Tyrone B’s
testimony for good cause. The denial of the emergency
motion to admit is not the sole basis of the Does’ appellate
argument, however; after the trial was delayed for five
months, the Does filed a motion to reconsider the exclusion
of Tyrone B’s testimony. The trial court denied the motion
to reconsider and it is that ruling that we find unreason-
able.
The Does contended that Tyrone B was a crucial witness
because his story bore striking similarities to Smith’s other
victims but, unlike Doe, who was a convicted felon, Tyrone
B was more credible because he held a steady job and went
to the police on his own initiative. Moreover, Tyrone B’s
testimony, dating Smith’s pedophilia as far back as the late
1970’s, provided an important temporal context for this
case. We agree that the evidentiary value of Tyrone B’s
testimony is apparent, and there was good cause for the
Does’ filing delay. As the district court noted, “through no
fault of their own, Plaintiffs did not become aware of this
witness until June 2003.”25 The court nonetheless reasoned
that the testimony should be excluded because the delay
was a violation of its discovery order. To call the Does’
discovery of Tyrone B an eleventh-hour disclosure is
somewhat misleading, however, given the eleven-month
delay between when Tyrone B was disclosed and when trial
eventually took place. Any prejudice to the defendants
25
Or. Denying Pl.’s Mot. to Admit Testimony (September 16,
2003).
28 No. 04-3421
caused by the late disclosure could have been mitigated by
affording the defendants an opportunity to depose Tyrone
B during the eleven-month delay. Therefore, we conclude
that the district court’s denial of the Does’ motion to
reconsider exclusion of Tyrone’s testimony was an abuse of
the court’s discretion.
To be sure, the jury’s verdict would stand if the court’s
evidentiary errors were harmless. United States v. Sutton,
337 F.3d 792, 797 (7th Cir. 2003). “An error will be found
harmful only if it had a substantial and injurious effect
or influence on the jury’s verdict.” Id. (internal quotation
marks omitted). We cannot conclude on this record that the
trial court’s evidentiary rulings were harmless error,
however. The Does’ argument that they are entitled to
a new trial implies that the district court’s exclusion of
Smith’s 2001 conviction and Tyrone B’s testimony preju-
diced their ability to establish their Titles VI and IX claims.
In other words, the Does assume their claims against the
school district failed because the jury did not believe Smith
molested Doe, and they would have successfully carried
their burden of proof had the excluded evidence come in at
trial. However, this assumption is not crystal clear from the
record. There are other elements necessary to establish the
district’s liability (i.e., whether Smith’s molestation ad-
versely affected Doe; whether the district knew of, but was
deliberately indifferent to the abuse; whether Doe was
damaged as a result; and whether the district proximately
caused the damages). Plausibly, their claims may have
failed on one of those elements. For example, the jury may
have believed the district was not aware of the abuse or
that Doe, a convicted felon, did not suffer damages proxi-
mately caused by the district’s indifference. Unfortunately,
the jury was given only a general verdict form, leaving us
without the benefit of its answers to interrogatories about
the case. Two scenarios that would have made the record
clearer for our review are: (1) Doe’s section 1983 claim
No. 04-3421 29
against Smith would have survived summary judgment,
thus requiring the jury to determine implicitly whether
Smith molested Doe; or (2) the verdict form would have
required the jury to determine explicitly whether the sexual
abuse occurred. Neither of these scenarios is what we have
here, and thus we do not know which element(s) of their
Titles VI and IX claims the Does failed to prove by a
preponderance of the evidence. In light of this ambiguity in
the record, we cannot say the district court’s errors were
harmless.
III. CONCLUSION
We AFFIRM the grant of summary judgment to the school
officials as to the Does’ section 1983 claims against them in
their individual capacities. However, because Titles VI and
IX do not preempt individual liability against the malefac-
tor alleged to have committed the misconduct, we REVERSE
the district court’s grant of summary judgment in favor of
Brady Smith on John Doe’s section 1983 claim, and that
claim is reinstated for trial.
We also find prejudicial error in two of the district court’s
evidentiary rulings. The whole of the evidentiary record
paints a compelling picture that, over the course of twenty
years, Smith used his various positions of authority to
groom and abuse his victims sexually. By excluding Tyrone
B’s testimony that he was molested in the late 1970’s and
Smith’s 2001 felony conviction for indecent solicitation of a
child, the jury received an unreasonably fragmented tale of
abuse. Absent this fragmentation of the evidence, there is
a substantial likelihood that the outcome of the trial would
have been different. We therefore REVERSE and REMAND the
case for a new trial on the Does’ Title VI and Title IX claims
against the school district and the school officials in their
official capacities.
30 No. 04-3421
COFFEY, Circuit Judge, concurring in the judgment
remanding the case for a new trial and dissenting with
respect to the Majority’s Opinion, Section I.B.2. entitled
“Admissibility of Brady Smith’s 2001 Conviction for Inde-
cent Solicitation of a Minor.” In my view, Smith’s 2002
conviction for indecent solicitation of a minor over the
telephone does not constitute an “offense of sexual assault”
under Rule 413(d) of the Federal Rules of Evidence. Thus,
I agree with the magistrate judge’s1 conclusion that evi-
dence of Smith’s solicitation conviction was not admissible
in Smith’s civil trial.
In 2001, two African-American students at the Franklin
Middle School in Champaign, Illinois informed the local
police department that Brady Smith, the school’s Dean of
Students, had propositioned them individually (each one on
separate occasions) for sex. The record reflects that one of
the boys told authorities that Smith had offered him $10 if
he would “show himself.” The other boy claimed that Smith
in one instance had asked him for sexual favors (undis-
closed), allegedly stating that the boy “owed him a favor”
because he helped him pass the eighth grade. Based on this
information, the police obtained a wiretap warrant autho-
rizing the installation of a recording device on Smith’s home
telephone. See 725 ILCS 5/108A-1. With the cooperation of
one of the boys, the police recorded a telephone conversation
that corroborated the boy’s story. Smith was subsequently
charged with three crimes: (1) aggravated sexual assault;
(2) sexual misconduct; and (3) indecent solicitation of a
minor. Those charges were later dropped as part of a plea
agreement and Smith agreed to plead guilty to one count of
indecent solicitation of a minor over the telephone, in
violation of 720 ILCS 5/11-6(a).
1
All of the parties to the case signed a waiver pursuant to
28 U.S.C. § 636(c) allowing Magistrate Judge Bernthal to con-
duct “any and all proceedings in [the] case.”
No. 04-3421 31
On July 31, 2001, one of Smith’s alleged victims (identi-
fied as “John Doe”) and his mother (identified as “Jane
Doe”) filed this civil suit seeking to recover monetary
damages in the United States District Court for the Central
District of Illinois. The Does claimed inter alia that Smith
and the Champaign School District violated Title VI of the
Civil Rights Act of 1964, Title IX of the federal Education
Amendments Act of 1972, and the Equal Protection and Due
Process clauses of the Fifth and Fourteenth Amendments to
the United States Constitution. At trial, the Does sought to
introduce in evidence Smith’s 2001 Illinois state conviction
for soliciting a minor for sex. Smith filed a motion in limine
to exclude from evidence any testimony concerning his
Illinois state conviction, arguing that any evidence concern-
ing the 2001 conviction was inadmissible evidence of a
previous “offense of sexual assault”2 under the Federal
Rules of Evidence. See Fed. R. Evid. 413(d), 415. The
magistrate judge3 agreed and granted the defendant-
appellee Smith’s motion, finding that Smith’s previous
conviction under Illinois Statute 720 ILCS 5/11-6(a) did “not
constitute an offense of sexual assault as defined in Rule
413[(d)].”4 The majority would have us reverse the magis-
trate judge’s ruling and goes on to conclude that Smith’s
prior conviction for indecent solicitation of a minor over the
telephone does constitute an attempted “offense of sexual
2
The defendants-appellees also claimed that evidence of
Smith’s 2001 Illinois state conviction was irrelevant and overly
prejudicial under Rules 403 and 404(b) of the Federal Rules of
Evidence.
3
Evidentiary rulings in this case were assigned to Magistrate
Judge David G. Bernthal.
4
Alternately, the magistrate judge concluded that the evidence
of Smith’s conviction was precluded by Rule 404(b). In so find-
ing, the judge concluded that such evidence would be used to
prove “the character of a person in order to show action in
conformity therewith,” which is prohibited by Rule 404(b).
32 No. 04-3421
assault” under Rules 415 and 413(d) and thus admissible at
trial. I disagree.
I. DISCUSSION
In order for a prior criminal conviction to be admissible in
a civil trial in federal court against a person for “conduct
constituting an offense of sexual assault or child molesta-
tion,” it is required that the previous attempt comport with
the definition of an “offense of sexual assault,” as set in the
Federal Rules of Evidence. Fed. R. Evid. 415. According to
Rule 413(d), the “offense of sexual assault” is defined as
(1) any conduct proscribed by chapter 109A of title 18,
United States Code;
(2) contact, without consent, between any part of the
defendant’s body or an object and the genitals or anus of
another person;
(3) contact, without consent, between the genitals or
anus of the defendant and any part of another person’s
body;
(4) deriving sexual pleasure or gratification from the
infliction of death, bodily injury, or physical pain on
another person; or
(5) an attempt or conspiracy to engage in conduct
described in paragraphs (1)-(4).
In contrast, the Illinois statute under which Smith was
convicted in 2001 makes illegal the “indecent solicitation of
a child . . . with the intent of [committing] aggravated
criminal sexual assault, criminal sexual assault, predatory
criminal sexual assault of a child, or aggravated criminal
sexual abuse.” 720 ILCS 5/11-6(a). The majority attempts to
shoehorn Smith’s 2001 conviction for indecent solicitation
of a minor into Federal Rule of Evidence 413(d)’s definition
of a sexual assault by holding “Smith’s solicitation of a child
[over the telephone] . . . constituted an attempt to commit
No. 04-3421 33
a sexual offense against a minor,” and thus was admissible.
Majority Opinion at *24. However, because solicitation per
se cannot constitute an attempt, i.e., without a “substantial
act” in furtherance of the intended crime, and since there is
no evidence in the record to suggest that Smith did any-
thing except converse over the telephone, I disagree. See
infra pp. 34-41.
In support of the majority’s conclusion that solicitation
per se constitutes an “attempt” under Rule 413(d), it cites
two decisions of this court which, although they may be con-
sidered somewhat analogous, are distinguishable. See, e.g.,
Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir. 2005);
Hernandez-Alvarez v. Gonzales, 432 F.3d 763, 766 (7th Cir.
2005). For example, Gattem v. Gonzales was a review of a
removal decision under the Immigration and Naturalization
Act, 8 U.S.C. § 101 et seq. While we held that the peti-
tioner’s prior conviction for solicitation constituted “sexual
abuse,” that decision was made in an immigration case
under 8 U.S.C. § 1101 and 18 U.S.C. § 3509(a)(8), which
defines “sexual abuse” much more expansively than Rule
413(d). Compare 18 U.S.C. § 3509(a)(8), with Fed. R. Evid.
413(d); see Gattem, 412 F.3d at 764-65. As we recognized in
Gattem, 18 U.S.C. § 3509(a)(8), “broadly defines sexual
abuse to include, among other things, the ‘inducement’ of a
child to engage in a sexual act as well as ‘other form[s] of
sexual exploitation of children.’ ”5 Id. at 761-62. In contrast,
Rule 413(d) is more limited in scope and, see supra p. 30,
isn’t nearly as all-inclusive and/or broad as § 3509(a)(8) in
its definition of what constitutes sexual assault and conspic-
uously does not include the terms “persuasion, inducement,
5
Solicitation refers strictly to the “act or instance of requesting
or seeking to obtain something,” while inducement refers to
“persuading or enticing another person to take a certain course of
action.” BLACK’S LAW DICTIONARY 1399, 779 (7th ed. 1999).
34 No. 04-3421
enticement, or coercion.” 18 U.S.C. § 3509(a)(8).6 Thus,
while the solicitation of a sex act over the telephone alone
may conceivably, under certain circumstances, be sufficient
to constitute an attempt to persuade, induce or entice a
minor into a sex act under 18 U.S.C. § 3509(a)(8), the same
cannot be said for Rule 413(d) which requires proof of an
attempt to commit actual sexual assault.
While the cases which the majority relies upon,
Hernandez-Alvarez and Gattem, were not decided under the
Federal Rules of Evidence, the Eighth Circuit has addressed
this precise issue, of whether solicitation of a sex act
amounts to an “attempt” pursuant to Rule 413(d), and has
held that it does not. See United States v. Blue Bird, 372
F.3d 989, 992-95 (8th Cir. 2004). In Blue Bird, a witness for
the government testified that when she was fourteen years
of age she was approached by the defendant, Blue Bird, and
solicited for sex. Id. at 992. Specifically, the girl stated that
while she was resting on a couch, Blue Bird, “held her hand,
rubbed her stomach, pushed her t-shirt up to just below her
breasts, kissed her, and said, ‘Let’s do it.’ ” Id. at 992. The
girl understood these actions and words to be a manifesta-
tion of his intention to engage in a sex act with her. See id.
She responded by telling Blue Bird that she was not
interested and he did nothing more.7 See id. Applying the
Rule 413(d) definition of the “offense [of] sexual assault,”
the Eighth Circuit concluded that while Blue Bird “solicited
some kind of sexual contact . . . [,] [w]ithout some more
6
Similarly, Hernandez-Alvarez was also an immigration case
decided under 8 U.S.C. § 1101; 432 F.3d at 766. Although the
Hernandez-Alvarez panel did not specifically state that it was
deciding the case under the broad definition of “sexual abuse”
contained in 18 U.S.C. § 3509(a)(8), the decision was based
primarily on this court’s previous ruling in Gattem. See id. at 466.
As such, reliance on § 3509(a)(8) may be implied.
7
Like Blue Bird, the record before us reveals that Smith solicited
a minor on the telephone and nothing more.
No. 04-3421 35
substantial step . . . this conduct cannot constitute an
attempted ‘sexual act’ or an attempt to engage in ‘sexual
contact.’ ”(emphasis added).8
I believe that the Eighth Circuit’s approach is well
advised and is the more prudent approach. And, we should
apply similar reasoning in this case. For the Eighth Cir-
cuit’s decision in Blue Bird is much more in line with the
Congressional intent underlying Rules 415 and 413(d) than
that proposed by the majority. While there are federal
statutes, such as 18 U.S.C. § 3509(a)(8) and 18 U.S.C.
§ 2422(b), which criminalize solicitation per se, without an
additional “substantial act,” solicitation per se does not
constitute attempted sexual assault under Rule 413(d).
Numerous authorities, both scholarly and judicial, have
long recognized that “the mere act of solicitation does not
constitute an attempt to commit the crime solicited.”
4 Charles E. Torcia, WHARTON’S CRIMINAL LAW § 672; see
Graham v. People, 55 N.E. 179, 182 (Ill. 1899) (“[M]ere
solicitations do not prove an attempt”); State v. O’Neil, 782
A.2d 209, 216 (Conn. App. Ct. 2001) (“There has been much
debate whether mere solicitation constitutes an attempt . .
. . Most courts will answer ‘no.’ ”) (quoting P. Low, CRIMINAL
LAW 289 (1984)); State v. Otto, 629 P.2d 646, 649 (Idaho
8
The Eighth Circuit also addressed the testimony of another
witness who claimed that Blue Bird had solicited her for sex,
again finding that his actions did not rise to the level of an
attempted or actual sexual assault under Rule 413(d) without
a more “substantial act.” Blue Bird, 372 F.3d at 993. The sec-
ond witness testified that when she was seven years old Blue
Bird, “who was staying at her house, came into her bedroom,
kissed her and attempted to get under her bed covers . . . [but
desisted] when she told him that she was not interested.” Id. at
992. The court again concluded that although “Blue Bird made
sexual overtures to [the witness] . . . none of the acts allegedly
taken by Blue Bird constituted ‘sexual contact’ or a ‘sexual
act.’ ” Id. at 993.
36 No. 04-3421
1981). Under criminal law, an attempt requires something
more than thoughts or words; an attempt requires that the
defendant undertake a “substantial act” in furtherance of
the intended crime, i.e., sexual assault. As this court has
previously held, “[a] substantial step is something more
than mere preparation, but less than the last act necessary
before the actual commission of the substantive crime.”
United States v. Barnes, 230 F.3d 311, 315 (7th Cir. 2000).
The specific state law the defendant-appellee Smith before
us was convicted of violating punishes solicitation only, and
though this solicitation over the phone violated Illinois’
statute prohibiting indecent solicitation of a minor, 720
ILCS 5/11-6(a), it does not fit within the parameters (limits)
of Rule 413(d)’s definition of an “offense of sexual assault.”
Indeed, in the case before us, the evidence in the record
establishes only that Smith solicited a minor for a sex act
over the telephone. Even were we to assume that Smith had
the intent to commit the crime of sexual assault, the record
falls far short of establishing that there was a “substantial
act” in furtherance of the alleged planned and/or intended
crime.9 While I do not condone any of Smith’s actions (in
fact I condemn them), the record is barren of any evidence
which would suggest that Smith did anything in this case
but talk salaciously with and solicit a minor over the
telephone—and words alone do not rise to the level of being
legally sufficient to constitute a “substantial act” in further-
ance of the crime of sexual assault. See, e.g., State v.
Molasky, 765 S.W.2d 597, 602 (Mo. 1989) (en banc) (in order
for solicitation to rise to the level of an attempt, it must be
accompanied by an attenuated substantial act: “An act,
9
Any affirmative acts Smith did undertake, such as picking up
the phone, dialing it, and so forth were acts that occurred in
furtherance of, and in preparation for, the solicitation and do
not constitute substantial acts in furtherance of an “offense of
sexual assault” under Rule 413(d).
No. 04-3421 37
whether it be making a cash payment, delivering a weapon,
[journeying to] a crime scene, waiting for a victim, etc., has
[to have] accompanied the conversation, thus evidencing the
seriousness of purpose, and making the planned crime
closer to fruition.”); see also Ford v. State, 612 So. 2d 1317,
1320 (Ala. Crim. App. 1992) (holding that “solicitation must
be accompanied by an overt act, i.e., ‘a direct movement
toward the commission [of the intended crime] after all the
preparations are made.’ ”).
This point is illustrated by the fact that the Illinois
statute that Smith pleaded guilty to in Illinois State court
essentially criminalizes intent alone. See 720 ILCS 5/11-
6(a). Illinois statute 720 ILCS 5/11-6(a) does not require
that a “substantial act” in furtherance of the intended
sex crime be performed and the record before us is barren
and devoid of any such act. Indeed, such a requirement
would be redundant, for intent in addition to a “substantial
act” in furtherance of the crime would amount to attempted
sexual assault, and thus 720 ILCS 5/11-6(a) would become
superfluous. See, e.g., 4 WHARTON’S CRIMINAL LAW § 672
(stating that in jurisdictions, such as Illinois, that have
statutes that specifically criminalize solicitation, “the
imposition of ‘attempt’ liability . . . would constitute a
circumvention of the . . . legislative intent to the contrary”).
The proposition that mere solicitation should not be
classified as an attempt is further supported by the so-
called “cybermolestor” cases. As the Eighth Circuit pointed
out in Blue Bird, supra, the cybermolestor cases are
distinguishable from cases such as Smith’s. See Blue Bird,
372 F.3d at 993. The defendants in the cybermolestor
cases have, without exception, engaged in something
more than solicitation alone, such as substantial travel
or the like to meet with the intended victim or the predator
has been prosecuted under a statute which specifically
recites and incorporates solicitation as an element of the
crime, such as 18 U.S.C. § 2422(b). See, e.g., United States
38 No. 04-3421
v. Mitchell, 353 F.3d 552, 553-54 (7th Cir. 2003) (defendant
traveled from Indiana to Illinois with the intent to en-
gage in sexual activity with what he thought was a
fourteen-year-old); United States v. Bailey, 228 F.3d 637,
640 (6th Cir. 2000) (defendant prosecuted under 18 U.S.C.
§ 2422(b)).10 The majority misinterprets these decisions
when stating that some “courts have more liberally de-
fined what constitutes a substantial step to commit a sex
offense against a child in so-called cyber-molestor cases.”
Majority Opinion at *23. The reason that courts have
interpreted what constitutes a “substantial step” more
liberally in those cases is that most cybermolestor cases
prosecuted in federal court are brought under statutes such
as 18 U.S.C. § 2422(b), which specifically incorporate
actions that amount to solicitation into the statute. See
Mitchell, 353 F.3d at 553-54; United States v. Murrell, 368
F.3d 1283, 1287-88 (11th Cir. 2004). To support its untena-
ble position, the majority cites to United States v. Murrell
for the proposition that solicitation of a minor for sex over
the internet “constituted a substantial step to commit a sex
act against a child.” Majority Opinion at *23. However,
contrary to the majority’s reading of Murrell, what the
Eleventh Circuit actually held in that case is that, under 18
U.S.C. § 2422(b) (not under Rule 413(d)), the defendant
“took a substantial step toward inducing a minor to
engage in illicit sexual acts, thereby satisfying the sec-
ond element of criminal attempt.” The statutory language
of Rule 413(d) does not encompass crimes of inducement
(unlike 18 U.S.C. § 2422), thus while solicitation alone may
constitute a substantial step toward the commission of an
10
However, Smith was not charged with violating 18 U.S.C.
§ 2422, and even if he were in violation of that statute, based
on the same facts that we have in this case, his acts would not
fit within the parameters of Fed. R. Evid. 413(d)’s definition of
an “offense of sexual assault.”
No. 04-3421 39
offense under § 2422, it does not constitute an attempted
“offense of sexual assault” under Rule 413(d). Murrell, 368
F.3d at 1288 (emphasis added); Fed. R. Evid. 413(d). Just as
this court has refused to read additional terms into a
contract, we are obligated not to read additional lang-
uage into the very specific statutory elements of legisla-
tion such as Rule 413(d)11 simply to accomplish a desired
result. See generally Heller v. Equitable Life Assurance
Society, 833 F.2d 1253, 1257 (7th Cir. 1987) (“In the absence
of a clear, unequivocal and specific contractual requirement
that the insured is obligated to undergo surgery to attempt
to minimize his disability, we refuse to order the same. To
hold otherwise and to impose such a requirement would, in
effect, enlarge the terms of the policy beyond those clearly
defined in the policy agreed to by the parties.”); Jenkins v.
Heintz, 25 F.3d 536, 539 (7th Cir. 1994) (“We [are obligated
to] apply the law as Congress drafted it. We should not
disregard plain statutory language in order to impose on
the statute what we may consider a more reasonable
meaning.”). An attempted “offense of sexual assault” as
defined by Rule 413(d) and inducement under § 2422 are
separate and distinct crimes, each requiring different
elements of proof.
The majority, in an attempt to manufacture a “substantial
act,” states that Smith “called a middle school student to his
office and offered the boy $10 to expose himself.” See
Majority Opinion at *24. In its attempt to have Smith’s
previous conviction fit within the parameters of Rule 413(d),
the majority posits that: “Undoubtedly, calling the minor to
the dean’s office and telling him to expose himself for money
evinces Smith’s intent and substantial step toward sexual
assault.” However, the alleged unsubstantiated acts
11
Which does not include solicitation in its definition of an
“offense of sexual assault.”
40 No. 04-3421
recounted above,12 although most repug-nant, were never
presented to the magistrate judge as a basis for the motion
in limine under review and are completely unrelated to
Smith’s conviction for indecent telephone solicitation of a
child under 720 ILCS 5/11-6(a), and only serve to confuse
the issue. Defendant-appellee Smith’s motion in limine only
concerned the introduction into evidence of Smith’s convic-
tion for indecent solicitation of a minor over the phone in
violation of 720 ILCS 5/11-6(a),13 and our review concerns
only that conviction. Any criminal activities that Smith
allegedly engaged in which are unrelated and not a part of
his conviction under 720 ILCS 5/11-6(a) for indecent
solicitation of a minor have no bearing on whether that
conviction constitutes an attempted “offense of sexual
assault” within the meaning of Rules 413(d) and 415(a) of
the Federal Rules of Evidence.
As stated supra, while we recognize that Smith’s previous
conviction for solicitation of a minor via the telephone is
morally reprehensible, repulsive and indeed constituted a
criminal act in Illinois, it falls short of satisfying the
12
Smith was initially charged with aggravated sexual assault,
sexual misconduct and indecent solicitation. However, in accor-
dance with his plea bargain, the aggravated sexual assault and
sexual misconduct charges were dropped and Smith pleaded guilty
only to one count of indecent solicitation of a child, in violation of
720 ILCS 5/11-6(a). See supra p. *30. Thus, Smith was never
convicted of aggravated sexual assault or sexual misconduct, and
those alleged criminal acts convictions are not before us.
13
The content of the telephone conversation which served as the
basis for Smith’s conviction under 720 ILCS 5/11-6(a) does not
appear in the record on appeal, and this court has no way of
knowing what Smith said to the minor. The record only reveals
that Smith was convicted of violating 720 ILCS 5/11-6(a) which
makes it illegal for “[a] person of the age of 17 years and up-
wards . . . [to] knowingly solicit a child or one whom he or she
believes to be a child to perform an act of sexual penetration or
sexual conduct.”
No. 04-3421 41
definition of an attempted “sexual assault” under Rule
413(d). Had Congress intended to permit the introduction
of evidence concerning previous crimes, such as those that
encompass an attempt to persuade, induce, coerce or entice
a minor into a sex act, into the confines of the definition of
an “offense of sexual assault” it would have specifically
accomplished this by incorporating such language into Rule
413(d). In fact, evidence of the Congressional intent to
include such elements in the definition of sexual assault in
a similar statute is evinced by the plain language of
statutes such as 18 U.S.C. § 3509(a)(8) which specifically
criminalizes the “persuasion, inducement, enticement, or
coercion” of sexual acts with a minor. However, these laws
are much broader and more all-encompassing than Rule
413(d), which conspicuously does not include solicitation in
its definition of “offense[s] of sexual assault.” The omission
of this language in Rule 413(d), reflects the clear intent
of Congress to strictly limit the introduction of potentially
prejudicial information concerning a defendant’s previous
crimes only to the circumstances enumerated in the rule. As
the Supreme Court stated in Barnhart v. Sigmon Coal Co.,
Inc., 534 U.S. 438, 552-53 (2002): It is a general principle of
statutory construction that when Congress has seen fit to
“include particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” Id. As such, the
magistrate judge’s ruling barring the Does from introducing
into evidence Smith’s prior conviction, which was for
solicitation only, was entirely proper.
What’s more, the majority’s conclusion that solicitation
alone is sufficient to establish an attempt could very
well have a deleterious effect on this court’s criminal
jurisprudence were it to become the law of this circuit. For
instance, under the majority’s reasoning, solicitation of
a murder over the telephone would constitute attempted
murder. This would represent an unwarranted expansion of
42 No. 04-3421
criminal law, for the Supreme Court has long defined an
attempt as requiring an “overt act” in furtherance of a
crime. As the Supreme Court stated in Spectrum Sports,
Inc. v. McQuillan, “combination, intention and overt act
may all be present without amounting to a criminal at-
tempt.” 506 U.S. 447, 455 n.7 (1993) (citing Swift and Co. v.
United States, 196 U.S. 375, 387-88 (1905)). It has been
well-settled law in Illinois for over 100 years that “mere
solicitations do not prove an attempt.” Graham v. People, 55
N.E. 179, 182 (Ill. 1899). In enacting a statute such as 720
ILCS 5/11-6(a), the Illinois Legislature implicitly recognized
that solicitation alone should not amount to sexual assault
and, in order to protect minors from predators in an
increasingly technological society, had the insight to
criminalize solicitation alone. It is not our place to expand
the Illinois statute to encompass an attempt to commit
sexual assault, nor should we expand Rule 413(d) beyond
the limits that Congress intended to include solicitation. As
it has been correctly stated time and again, it is this court’s
place to interpret the law as written, not to substitute our
judgment for that of the legislature. See, e.g., Jenkins v.
Heintz, 25 F.3d 536, 539 (7th Cir. 1994). Solicitation per se
is beyond the bounds of an attempted “offense of sexual
assault” pursuant to the clear language of Rule 413(d), and
thus Smith’s 2001 Illinois State conviction for solicitation
was properly excluded by the magistrate judge from
evidence at trial.
No. 04-3421 43
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-28-06