United States v. Donald Zawada ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1012
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ONALD Z AWADA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:06-CR-00120(01)RM—Robert L. Miller, Jr., Chief Judge.
A RGUED O CTOBER 15, 2008—D ECIDED D ECEMBER 18, 2008
Before E ASTERBROOK, Chief Judge, and C OFFEY and W OOD ,
Circuit Judges.
W OOD , Circuit Judge. In this case, as in United States v.
Davey, No. 07-3533 (issued today), we must decide what
it takes to commit the offense of attempting to violate the
statute that prohibits knowingly persuading, inducing,
enticing, or coercing a minor to engage in criminal sexual
activity, see 18 U.S.C. § 2422(b). A jury found Donald
Zawada guilty of attempting to violate both § 2422(b) and
2 No. 08-1012
18 U.S.C. § 1470, which prohibits knowingly transferring
obscene material to a person under the age of 16. There
is ample evidence in the record to support the jury’s
verdict on the latter offense. Our review of the § 2422(b)
conviction on this point is for plain error only, as we
explain later. From that perspective, we have no trouble
concluding that the steps Zawada took to bring about
a forbidden sexual encounter with a minor were sub-
stantial enough to support the attempt conviction. We
therefore affirm.
I
Like Davey, Zawada’s downfall came about through
an Internet sting operation. In May 2006, someone using
the name “plannerdude97” entered a Yahoo! chat room
and made contact with “southbendkelsey13” (to whom
we refer as “Kelsey” for simplicity). Kelsey purported to
be a 13-year-old girl, but in reality “she” was Commander
Mitchell Kajzer of the High Tech Crimes Unit of the St.
Joseph County (Indiana) Prosecutor’s Office. Over the next
three months, Kelsey and “plannerdude97” had nine
conversations using instant messaging; in addition, Kelsey
had three more such conversations with “beckerb003.”
During “her” first conversation with “beckerb003,” Kelsey
learned that he was the same person as “plannerdude97.”
(We therefore refer to “plannerdude97” to include both
screen names.)
At trial, Zawada did not dispute the fact that the online
messages shared between “plannerdude97” and Kelsey
were aimed at enticing Kelsey to engage in sexual activity.
No. 08-1012 3
Nor did he dispute that some of the images that
“plannerdude97” sent to Kelsey, either directly or by use
of a link, were obscene. Instead, he attempted to
persuade the jury that he was not the person associated
with those names. Zawada was 44 years old at the time
of these events, living in Rolling Meadows, Illinois. At one
point during the sting operation, a female officer posing
as Kelsey placed a telephone call to a male believed to
be “plannerdude97.” The tape of that conversation indi-
cates that the man identified himself as Tom or Daniel.
The call lasted eight minutes, but it was not traced to a
particular telephone or address. (Later, a trial witness
who worked with Zawada identified him as the male
speaker.) The police were able to trace the internet protocol
address (“IP address”) for the emails that “plannerdude97”
sent to Kelsey on June 8, 2008. Cmdr. Kajzer learned that
this IP address was registered to SBC Internet, an internet
services provider. He then sent a subpoena to SBC Internet
requesting all account information for the account associ-
ated with that IP address. SBC Internet’s response led
him to 2802 Flicker Lane, in Rolling Meadows. Cmdr.
Kajzer also learned that one name associated with the
Flicker Lane address was that of Donald Zawada.
The Government had additional evidence tying Zawada
to “plannerdude97.” On August 21, 2006, Cmdr. Kajzer
and Special Agent Allen Tiffin of the United States Secret
Service drove to 2802 Flicker Lane and established sur-
veillance there. At approximately 6:40 p.m., a car pulled
into the driveway; the driver was Diane Zawada, and the
passenger was Donald. Diane Zawada gave the officers
permission to look at the desktop computer located inside
4 No. 08-1012
the residence. That computer was connected to the
Internet using a DSL service, and it was equipped with
a router. The officers also took Donald Zawada’s back-
pack, which he had with him in the car. They advised him
of his constitutional rights, and after he waived those
rights, he spoke briefly with the officers and allowed them
to look into the backpack. There they found a laptop
computer, a thumb drive, a network cable card, and a
wireless network card.
A forensic examination of the laptop revealed that
Yahoo! Messenger was installed on it, and that Messenger
had last been accessed on August 21, 2006, the day of
Zawada’s arrest. In addition, located in the Yahoo! direc-
tory on the laptop were the screen names “plannerdude97”
and “beckerb003.” These were the only two screen names
the investigators found. Stored on the computer was an
excerpt of an August 17 online conversation between
“beckerb003” and Kelsey and the Yahoo! member profile
of “southbendkelsey13.” Zawada had also taken the
precaution of installing the program History Kill on his
laptop. As the name suggests, this is a program that
claims to be able securely to delete information from
the computer by overwriting it in a way that makes the
old data unrecoverable. Finally, Cmdr. Kajzer ran a trace
route to determine where the nearest router for
“plannerdude97” and “beckerb003” was located. He
found one a short distance from the Flicker Lane home,
northeast of Naperville, Illinois.
During the on-line conversations, Zawada asked Kelsey
if she wanted to “make a date,” and, if so, whether she
No. 08-1012 5
was using some kind of birth control measure. Kelsey
said that she was interested and offered her telephone
number. That was what prompted the call with the female
officer. During that conversation, Zawada told Kelsey
that he would visit her “one of these days, if not tomor-
row.” They discussed the need to work around both
Zawada’s work schedule and that of Kelsey’s mother. They
also chatted about what they would do once they were
together. In the end, however, they never set a firm time
and place for a meeting, and no meeting ever occurred.
Zawada’s arrest on August 21 brought an end to the
ruse. Interestingly, Cmdr. Kajzer testified that August 21,
2006, was the last time he had a conversation with
either “plannerdude97” or “beckerb003.”
II
We consider first Zawada’s conviction under § 2422(b)
for attempting to entice (etc.) a minor to engage in a
criminal sexual act. As in Davey, supra, there are two
critical questions: first, did Zawada preserve his right
to complain that his actions were not substantial enough
to amount to an attempt to commit the crime, and
second, under the appropriate standard of review, does
the record support a finding of the required substantial
step. This court’s recent decision in United States v. Gladish,
536 F.3d 646 (7th Cir. 2008), provides our starting point.
In Gladish, we held that mere talk in an Internet chat
room is not enough to support a conviction for an
attempt to violate § 2422(b). Instead, more concrete mea-
sures such as making arrangements for meeting the
6 No. 08-1012
(supposed) girl, agreeing on a time and place for a
meeting, making a hotel reservation, purchasing a gift, or
traveling to a rendezvous point, are necessary. See 536
F.3d at 649; see also Davey, No. 07-3533, [sl. op. at 9-10].
Gladish also recognizes that child sexual abuse is often
effectuated through a period of “grooming” and sexualiza-
tion of a relationship. 536 F.3d at 649. We reversed the
conviction for an attempt to entice a minor into a sexual
encounter with directions to acquit, because “hot air is
all the record shows.” Id. at 650.
In supplemental briefs filed after oral argument in this
case, counsel for Zawada argues that Zawada did not
forfeit his right to raise an argument based on Gladish
largely because Gladish had not yet been decided at the
time of trial and also because Zawada argued generally
that the evidence was insufficient to support a convic-
tion. He notes that the jury was instructed that it had to
find a substantial step toward the commission of an act
of enticement. But Zawada’s insufficiency argument
relied almost entirely on his theory that the Government
could not prove that he was the wrongdoer. He did not
focus on the substantial step element. The fact that
Gladish had not been decided does not help him. If any-
thing, the fact that there was an instruction on the “sub-
stantial step” issue demonstrates that the argument was
available had counsel thought to make it. We conclude,
on this record, that Zawada forfeited any argument that
he might have made along the lines discussed in Gladish.
That means that we can consider this question only
through the lens of plain error. Zawada must show (1) that
No. 08-1012 7
there was error, (2) that the error was plain (in the sense of
obvious), (3) that the error affected his substantial rights,
and (4) that, if the first three points are established, the
error seriously affects the fairness, integrity, or public
reputation of the judicial proceedings. See United States v.
Olano, 507 U.S. 725, 730-35 (1993). Although Zawada makes
a valiant effort in his supplemental brief to convince us
that his case meets these demanding criteria, we cannot
agree with him.
Unlike Davey, Zawada never traveled to a pre-assigned
rendezvous point in order to meet Kelsey. But, as we
noted in Gladish, “[t]ravel is not a sine qua non of finding
a substantial step in a section 2422(b) case.” 536 F.3d at
649. Zawada and Kelsey had a relatively concrete con-
versation about making a “date,” and they discussed a
specific date and time of day that they thought would
work. Zawada checked on the intimate detail of Kelsey’s
birth control practices, and he asked her whether he
should bring some kind of protection with him. In the
end, their plans never gelled, but this is somewhat closer
to a substantial step than the “hot air” and nebulous
comments about meeting “sometime” that took place in
Gladish.
Even if we were to conclude that the evidence of
Zawada’s actions falls short of the standard described in
Gladish, we cannot say that it is so wanting that it meets
the second element of the plain error test. Nor can we
say that a conviction resting on the evidence that was
before the jury would amount to a manifest miscarriage
of justice. The jury was properly charged on all elements
8 No. 08-1012
of the offense, including the need to find a substantial step
toward completion of the offense, and it so found. Zawada
talked with Kelsey many times, and the jury might have
viewed those conversations as “grooming” efforts. We
therefore find no plain error with respect to the sub-
stantial step requirement.
Zawada’s primary argument, both before the district
court and on appeal, has always been that the evidence
was not sufficient to show that he was “plannerdude97”
and “beckerb003.” At this stage, however, we must view
the evidence in the light most favorable to the jury’s
verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The
account of the facts that we have already furnished is
enough to show that the jury had ample evidence before
it that permitted it to find that Zawada was the one
chatting with Kelsey. Nothing more need be said.
Zawada also argues that the district court went beyond
the boundaries established by F ED. R. E VID. 403 when it
permitted the Government to introduce the images that
he sent to Kelsey and to publish to the jury the texts of
the instant-message conversations. We see no abuse of
discretion, however. The photographs were relevant to
both the § 2422(b) charge and to the § 1470 charge. With
respect to the former, they helped the Government to
prove that Zawada was trying to entice Kelsey into en-
gaging in unlawful sexual activity. With respect to the
latter, the photographs helped to prove that Zawada was
sending obscene matter to her. While these materials
undoubtedly made a significant impression on the jury,
they were not unfairly prejudicial. See United States v.
No. 08-1012 9
Burt, 495 F.3d 733, 740 (7th Cir. 2007) (“There is a differ-
ence between evidence that brings unfair prejudice and
evidence that is damning.”).
III
Zawada offers no other reason to overturn his convic-
tion under § 1470 other than the identification point that
we have already rejected. We therefore A FFIRM the judg-
ment of the district court.
12-18-08