United States v. Erik Zahursky ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1151
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
E RIK D. Z AHURSKY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:06-cr-00109-RL-APR-1—Rudy Lozano, Judge.
A RGUED M AY 8, 2009—D ECIDED S EPTEMBER 1, 2009
Before C UDAHY, M ANION, and T INDER, Circuit Judges.
T INDER, Circuit Judge. A jury convicted Erik D. Zahursky
of attempting to coerce or entice a minor under the age
of eighteen to engage in sexual activity in violation of
18 U.S.C. § 2422(b). The district court sentenced him to
262 months’ imprisonment and 20 years’ supervised
release. Zahursky appeals his conviction and sentence.
He challenges the denial of his motion to suppress evi-
dence obtained pursuant to a warrantless search of his
2 No. 08-1151
vehicle, the admission at trial of certain evidence under
Federal Rule of Evidence 404(b), and the application of
a two-level enhancement under U.S.S.G. § 2G1.3(b)(2)(B)
for unduly influencing a minor. We affirm Zahursky’s
conviction, but vacate his sentence and remand for
resentencing.
I. Background
On June 2, 2006, someone using the screen name
“Gracepace101” (“Gracepace”) contacted “Sad_Shelly200”
(“Shelly”) in an adult internet chat room in Yahoo!. Shelly
was the screen name of a fictitious fourteen-year-old girl
created by Special Agent Ryan Moore, a member of the
Electronic Crime Squad of the United States Secret Ser-
vice. Shelly’s Yahoo! profile which could be viewed
by other persons in the chat room included a photo of a
young girl. Moore checked the Yahoo! profile for Gracepace
and learned that Gracepace’s real name was Erik D.
Zahursky.
In the first chat session, Zahursky initiated contact with
“ur a cutie—[b]ummer i am old enough to be ur daddy.”
Shelly asked Zahursky how old he was, and he answered
“34.” He said that he was looking for ladies, but most
were too far away, taken, too old or too young, but added
that “i have [d]one a 14 year ol[d].” Zahursky asked
Shelly if she was sexually active and whether she liked
“older men.” He stated that she was “lil young to be
intimate with” unless she didn’t mind. Zahursky asked
Shelly where she lived and offered to meet with her to
engage in sexual activity, saying: “woul[d] u like to
No. 08-1151 3
[h]ave sex wit[h] me?” Shelly asked about his previous
sexual encounters and whether the women were “like
me?” Zahursky responded, “One was, s[h]e is now 18.”
The chat session continued for almost two hours with
Zahursky explaining what he wanted them to do to each
other sexually. About midway through the chat session,
Zahursky suggested that he and Shelly meet and “play
at [yo]ur house w[h]ile mommy is at work?” He cautioned
that they would have to be discreet “because of society’s
view of age.” Shelly asked about “the other girl like me.”
Zahursky reiterated that she was eighteen years old
and said the last time he saw her she was fifteen. A few
minutes later, Zahursky emailed Shelly, stating that “to
initiate [yo]u into womanhoo[d] would be an honor.” He
also expressed an interest in a threesome involving
two ladies.
Moore, posing as Shelly, had numerous chats and
email communications with Zahursky almost daily from
June 2 to June 21, 2006. In their chats and emails, Zahursky
gave detailed descriptions of the sexual activities in
which he wanted to engage with Shelly. His sexual in-
tentions were clear. On June 10, Zahursky emailed
Shelly that he would try to visit her the last two weeks
of July.
On June 13, Zahursky emailed Shelly about having a
threesome with two girls. He said that he was on the
internet a few days before and “found another 14-year-old
lady who might be interested in a 3-some.” He discussed
the sexual activities that the three of them could do
together. Shelly wrote back to Zahursky, stating that she
4 No. 08-1151
had figured out how they could get together—she would
tell her mom that she was staying over with her friend
Lindsey. In an instant message later that evening,
Shelly asked Zahursky if he really wanted to be with her
since she was inexperienced, and he said, “yes—we can
experience each other—want to be with an old man?
Another girl your age?” Shelly wrote, “sure, but I’m only
14, are you sure you still want me?” Zahursky replied, “the
other girl is 14.” He added that “Holly” was asking
whether Shelly liked her. The next day, Zahursky
emailed Shelly that the other fourteen-year-old was
“Holly1989cutie” (“Holly”).
Subsequently, he emailed Shelly that he hoped they
could get together and that Holly could join them. He
also suggested that Shelly’s friend Lindsey might like to
join them for “a sleep over for a week.” Shelly emailed
Zahursky on June 18 indicating that Lindsey was inter-
ested in joining them but would be away in July, so they
had to meet in June. In another chat session, Shelly told
Zahursky that Lindsey wanted to know if he had “any
experience with girls our age, because she wants to
know if you know how to treat us so it won’t hurt.”
Zahursky wrote back “I won’t hurt you. I have had one
at 14.” Shelly questioned, “For real?” and Zahursky
replied, “Yes.”
Zahursky and Shelly arranged to meet on June 21 at a
Starbucks in Valparaiso, Indiana. He told her that he
drove a gold Mercury Sable and described the clothing
he would be wearing to their meeting. When Zahursky
said he did not have enough money for a hotel room,
No. 08-1151 5
Shelly suggested that they stay with Lindsey in her
sister’s dorm room. Subsequent emails and chats disclose
that Zahursky and Shelly agreed to spend a few days
together in the dorm room.
On June 19, Zahursky sent an email to Lindsey, using
Shelly’s email account, discussing his sexual intentions
for the three of them. He asked whether he should bring
condoms. Later that afternoon in a conversation about
their meeting, Zahursky asked Shelly, “u want me to
bring con[d]oms?” Shelly asked about hooking up “with
the other girl that you met.” Zahursky said that the
other girl’s screen name was “Holly1989cutie.” Later he
mentioned Holly again, saying that he was trying “to get
a meet” for the three of them. Shelly asked if Zahursky
was going to bring the K-Y stuff since it was her first
time and she didn’t want it to hurt. He said that he
would check a pharmacy for K-Y warming lube. In a
June 20 instant message, Shelly again asked if Zahursky
was going to bring the K-Y. He responded that he had
to check the pharmacy and that he would have the lube.
On June 21, Zahursky drove from his home in Lexington,
Illinois, across state lines to the Starbucks in Valparaiso.
He was driving a Mercury Sable and wearing the
clothing he had described to Shelly. When he arrived at
Starbucks, he went inside where he was approached by
Moore and other agents who asked him to step outside.
The agents took Zahursky into custody, patted him
down, and handcuffed him in the parking lot. Moore
knew from Zahursky’s conversations with Shelly that
Zahursky had discussed the use of condoms and had said
6 No. 08-1151
that he would bring some form of K-Y warming lubricant
to his meeting with Shelly. However, no condoms or K-Y
lubricant were found on Zahursky’s person.
Meanwhile, Secret Service Agent Richard Bardwell had
begun to search Zahursky’s vehicle located outside of
Starbucks. In the glove box, Bardwell found a coin purse
that contained three condoms. From the trunk, he recov-
ered a duffel bag that contained lubricant and more
condoms. The agents searching the vehicle also found a
printed copy of directions from Zahursky’s residence
in Illinois to the Starbucks in Valparaiso and a printed
email message between Zahursky and Shelly. No war-
rant to search Zahursky’s vehicle had been obtained.
Then the agents transported Zahursky to the Valparaiso
police station where he was interviewed by Moore and
another agent. Prior to any questioning about the
offense, the agents advised Zahursky of his Miranda
rights. Zahursky waived them and gave a recorded state-
ment. During the interview, Zahursky stated that he was
in Valparaiso to meet Shelly and Lindsey, two fourteen-
year-old girls with whom he had on-line correspondence
and with whom he intended to engage in sex. He also
gave written consent to search his vehicle. At some
point during the interview, however, the agents had told
Zahursky about some of the items they had found in his
car. It is unclear whether this occurred before or after
Zahursky gave his consent to search the vehicle.
Zahursky was tried by a jury. The district court, over
the defendant’s objection, admitted three pieces of evi-
dence under Rule 404(b). The first was testimony by a
No. 08-1151 7
young lady (who we will refer to as “SS”) that she had
sexual intercourse with Zahursky on two occasions five
years earlier when she was fourteen or fifteen years old.
The second piece of evidence was an internet chat on
June 14, 2006, between someone using the Gracepace
screen name and someone with the screen name
“Xanthery.” The person using the Gracepace name asked
Xanthery if she would “ever consi[d]er [h]aving sex with
an ol[d]er guy—like maybe me?” Xanthery’s response
was, “would you ever have sex with someone my age??”
The reply was, “i have—14.”
The third piece of Rule 404(b) evidence was several
internet chats from June 11 through 15, 2006, between
Zahursky and someone with the screen name
“Holly1989cutie.” On June 11 Holly identified herself as
a fourteen-year-old female and asked if Zahursky
liked younger girls. He said yes and offered to teach
Holly how to have sexual intercourse and receive oral
sex. Holly asked Zahursky if he had been with girls her
age, and he answered yes, a fourteen-year-old. He sug-
gested that while Holly’s mom was at work, they could
have a few sessions and continue at a hotel. He described
the sexual things he wanted them to do to each other.
Later that day, he sent Holly a message, saying that he
couldn’t wait to touch her all over. On June 13, Zahursky
sent Holly an instant message, stating that he may
have found another fourteen-year-old girl who would
like to join them in a threesome. He said he wanted the
three of them to get together for a few days and get
acquainted sexually. Zahursky sent a similar message
a few hours later, this time indicating that the other
8 No. 08-1151
fourteen-year-old’s screen name was “Sad_Shelly200.”
On June 15, he sent Holly a message saying that he
could come over while her mom was at work so they
could get to know each other and that she could spend
the night or a couple of days with him “playing naughty.”
Following the admission of the Rule 404(b) evidence,
the district court gave the jury limiting instructions. The
court instructed that SS’s testimony and the chats
between Gracepace101 and Holly1989cutie could be
considered “only on the question of intent, motive,
absence of mistake and modus operandi” and “only for
this limited purpose.” The court also instructed the
jury that the evidence of the chat between Gracepace101
and Xanthery could be considered “only on the question
of intent, motive and absence of mistake” and only for
such limited purpose.
Zahursky testified at trial. He claimed that he talked
to minors in adult chat rooms to use “reverse psychology”
to get them to leave the chat rooms. He alleged that he
was about to cut off the chats with Shelly when he sus-
pected she was a cop, which made him curious, so he
went to meet her to confirm his suspicions. He denied
that he was going to the Starbucks to meet Shelly and
have sex with her.
The jury convicted Zahursky of attempting to coerce
or entice a minor under the age of eighteen to engage in
sexual activity in violation of 18 U.S.C. § 2422(b) as
charged.
Before sentencing, a probation officer prepared a
Presentence Investigation Report (“PSR”). The PSR calcu-
No. 08-1151 9
lated Zahursky’s offense level based on the charged offense
and one “pseudo count” based on the internet chats
with Holly1989cutie. Under the Guidelines in effect at the
time of sentencing, the base offense level for a § 2422(b)
conviction was 28. The PSR did not apply a two-level
enhancement for the charged offense under U.S.S.G.
§ 2G1.3(b)(2)(B) for unduly influencing a minor because
an undercover officer was used, but did apply the en-
hancement for the pseudo count. The PSR also added
two levels under U.S.S.G. § 2G1.3(b)(3) for use of a com-
puter and two levels under U.S.S.G. § 3C1.1 for obstruc-
tion of justice. Accordingly, the adjusted base offense
level for the charged offense was 32, and the adjusted
offense level for the pseudo count was 34. Applying
U.S.S.G. § 3D1.4, one point each was added for the
charged offense and the pseudo count to the higher
adjusted base offense level, resulting in a combined
adjusted offense level of 36.
At sentencing, the district court concluded that the
PSR properly calculated Zahursky’s offense level and
criminal history category. However, the court increased
his criminal history category by three points, based on
his prior criminal acts not resulting in conviction in
violation of § 2422(b). In doing so, the court relied on the
“many instances” of internet chats in which Zahursky
attempted to solicit sex from individuals he believed
were minors. The court also relied on his statutory rape
of a minor. This put Zahursky in criminal history category
II. Given that criminal history category and an offense
level of 36, the Guidelines range was 210 to 262 months.
The court sentenced Zahursky to 262 months’ imprison-
10 No. 08-1151
ment and 20 years’ supervised release. This appeal fol-
lowed.
II. Analysis
Zahursky makes three arguments on appeal. He first
challenges the denial of his motion to suppress the evi-
dence found during the warrantless search of his vehi-
cle. Second, he contends that the district court erred
in admitting evidence pursuant to Rule 404(b). Third, he
argues that the court erred in applying a two-level en-
hancement under U.S.S.G. § 2G1.3(b)(2)(B) for unduly
influencing a minor.
A. Search of Zahursky’s Vehicle
Zahursky contends that the district court erred in
denying his motion to suppress the evidence found
during the search of his vehicle. We review the district
court’s determination of probable cause de novo. United
States v. Scott, 516 F.3d 587, 589 (7th Cir. 2008).
A warrantless search is per se unreasonable under the
Fourth Amendment subject to a few well-established
exceptions. Arizona v. Gant, 129 S. Ct. 1710, 1716 (2009). The
agents lacked a warrant to search Zahursky’s car, so the
government must show by a preponderance of the evi-
dence that the search fell within one of the recognized
exceptions to the warrant requirement. United States v.
Basinski, 226 F.3d 829, 833 (7th Cir. 2000). One of the
exceptions is the automobile exception first recognized
No. 08-1151 11
in Carroll v. United States, 267 U.S. 132 (1925). Under
this exception, where there is probable cause to believe
that a vehicle contains contraband or evidence of a
crime, law enforcement may conduct a warrantless
search of the vehicle. Id. at 153-56; see also United States
v. Pittman, 411 F.3d 813, 817 (7th Cir. 2005).
“Probable cause” exists where based on a totality of
the circumstances “there is a fair probability that contra-
band or evidence of a crime will be found in a particular
place.” Illinois v. Gates, 462 U.S. 213, 238 (1983); see Scott,
516 F.3d at 589. It requires a probability, not absolute
certainty, that contraband or evidence of a crime will
be found. United States v. Farmer, 543 F.3d 363, 377 (7th
Cir. 2008); see also United States v. Sidwell, 440 F.3d 865,
869 (7th Cir. 2006) (stating that “probable cause requires
only a probability or a substantial chance that evidence
may be found”); United States v. Funches, 327 F.3d 582, 586
(7th Cir. 2003) (indicating that probable cause does not
require “evidence demonstrating that it is more likely
than not” that evidence may be found). In determining
whether there is probable cause to search, law enforce-
ment officers may draw reasonable inferences from the
facts based on their training and experience. See, e.g.,
United States v. Reed, 443 F.3d 600, 603 (7th Cir. 2006).
Zahursky argues that when the agents began searching
his car they lacked probable cause to believe that contra-
band or evidence of a crime would be in the vehicle. The
district court found it was reasonable for the agents to
believe that Zahursky had condoms and lubricant and
found further that “when the agents discovered that
12 No. 08-1151
[Zahursky] was not carrying the condoms and lubricant
on his person, a reasonable officer would have probable
cause to search the car he drove because it was the
only other area available to Defendant to store the con-
doms and lubricant.” The implication is that probable
cause to search the car did not exist until the agents
discovered no condoms and lubricant on Zahursky’s
person.
We conclude, however, that the record establishes that
probable cause to search the vehicle existed even before
the discovery that Zahursky didn’t have any condoms
or lubricant on his person. First, the agents knew that
Zahursky was the man they wanted. He arrived at
Starbucks, the designated meeting place, in the make
and color of car that he had described in his chats with
Shelly. He was wearing the clothing he had told Shelly
he would be wearing, and the agents could observe that
his physical appearance fit the one he had described to
Shelly. The agents also knew from the internet chats
and email messages with Shelly that Zahursky planned
to bring condoms and lubricant with him. Thus, they
had probable cause, based on Zahursky’s own state-
ments, to believe that Zahursky had these items, which
would be evidence of a crime, see 18 U.S.C. § 2422(b), with
him when he met Shelly on June 21.
Furthermore, it was reasonable to believe that Zahursky
would have left these items in his car instead of taking
them into Starbucks. He surely wasn’t going to use the
condoms and lubricant inside Starbucks. Zahursky and
Shelly had planned only to meet at the Starbucks
No. 08-1151 13
before going to Lindsey’s sister’s dorm room where they
planned to engage in sexual activity. It seems just as
probable, if not more probable, that Zahursky would
leave these items safely in his car until he reached his
end destination rather than carrying them—need-
lessly—into a public coffee shop. Perhaps he would have
a condom or two and some lubricant on his person. But
based on his chats and emails with Shelly, it was rea-
sonable to believe that Zahursky would have a collec-
tion of condoms and lubricant with him. He did, after all,
anticipate repeated and continuous sexual activity with
Shelly (and Lindsey) rather than one, brief sexual en-
counter. So, even if incriminating evidence had been
found on his person, that would not negate the proba-
bility that more of the same would be found in his car.
Moreover, as the government argues, the agents had
probable cause to search the car for evidence of the
crime other than condoms and lubricant. They could
search, for example, for evidence of Zahursky’s trip from
Lexington, Illinois, to Valparaiso, Indiana. Using a “means
of interstate . . . commerce” is an element of the offense.
There was a fair probability that the agents would find
some evidence of Zahursky’s interstate travel in his
car—perhaps a map and/or directions, or a toll or gas
receipt. These types of things likely would be found in a
vehicle that had been driven some distance (150 miles
based on Zahursky’s testimony) and across state lines.
And, as we know, the agents did find a printout of direc-
tions from Zahursky’s house in Illinois to the Starbucks
in Valparaiso.
14 No. 08-1151
Zahursky further contends that none of the policy
justifications for the automobile exception apply in his
case. The automobile exception is justified by a vehicle’s
“ready mobility” which makes “immediate intrusion”
necessary to prevent the destruction of evidence. United
States v. Washburn, 383 F.3d 638, 641 (7th Cir. 2004). The
second justification for the exception is the individual’s
lesser expectation of privacy in a vehicle. Id. Zahursky
maintains that there was no threat that his car would
be moved or become mobile—it had been seized and
was to be impounded—so the first justification is inap-
plicable. His argument is foreclosed by Washburn.
The defendant in Washburn had exited his van and,
when he returned was surrounded by officers with their
weapons drawn and ordered to the ground. The officers
obtained the keys to the van and searched it. The defen-
dant moved to suppress the evidence found in that
search. The district court concluded that the automobile
exception applied and that the search was valid. Id. at 640-
41. On appeal, the defendant argued that the auto-
mobile exception was inapplicable because his van had
lost its mobility at the time of the stop and he lacked
access to his van at the time of the search. Id. at 641. We
held that as long as the van “was inherently, even if not
immediately, mobile, the application of the automobile
exception was still valid based on the diminished ex-
pectation of privacy in one’s vehicle.” Id.; see also United
States v. Matthews, 32 F.3d 294, 299 (7th Cir. 1994) (stating
that “the mobility of the vehicle is not essential to the
application of the automobile exception. . . . [T]he dimin-
ished expectation of privacy alone is sufficient to
No. 08-1151 15
conduct a search on probable cause.”). The defendant’s
lack of access to the vehicle at the time of the search
did not matter because the van was still inherently
mobile. Washburn, 383 F.3d at 641.
Similarly here, the agents had arrested Zahursky, placed
him in custody and seized his car. Thus, at the time of
the search, Zahursky no longer had access to his car.
Still, his car was inherently mobile and he had a lesser
expectation of privacy in it. Therefore, the automobile
exception applied, and Zahursky’s lack of access didn’t
matter. In addition, the agents had no reason to know
that Zahursky traveled alone or that an accomplice
would not have some means of mobilizing the vehicle.
Zahursky complains that there were no unforeseeable
or exigent circumstances that would have prevented the
agents from obtaining a search warrant for the vehicle.
True enough, but Zahursky offers nothing to suggest
that the agents were required to obtain a search warrant
here. And given the application of the automobile ex-
ception to the warrant requirement, they were not.
Finally, Zahursky challenges the scope of the search,
asserting that the condoms and lubricant were not in
plain view. Where law enforcement agents have probable
cause to search a vehicle, they may search all areas in
the vehicle in which contraband or evidence of criminal
activity might be found, including closed containers,
packages, compartments, and trunks. See United States
v. Ross, 456 U.S. 798, 818-19 (1982); Scott, 516 F.3d at 589.
Therefore, the agents could lawfully search the glove
compartment and trunk. It was reasonable to believe
16 No. 08-1151
that condoms might be found in the coin purse and
duffel bag; thus, upon finding the purse and bag, the
agents could lawfully search those items as well. It also
was reasonable to believe that lubricant might be found
in the duffel bag which likely contained Zahursky’s
clothes and personal effects for his overnight visit with
Shelly.
In sum, the agents had probable cause to search
Zahursky’s car. Therefore, the search was justified under
the automobile exception to the warrant requirement
and the district court did not err in denying the motion
to suppress evidence found in the vehicle. (Because we
find that probable cause to search Zahursky’s vehicle
existed and thus that the automobile exception applied,
we need not consider whether the search was justified
as an inventory, the other exception relied on by the
district court.)
B. Admission of Rule 404(b) Evidence
Zahursky’s second challenge on appeal is to the trial
court’s admission of evidence under Rule 404(b). The
court admitted evidence of Zahursky’s internet chats
with Xanthery and Holly and allowed SS to testify. We
review the admission of Rule 404(b) evidence for an
abuse of discretion. United States v. Lee, 558 F.3d 638, 647
(7th Cir. 2009). Evidence is admissible under Rule 404(b) if:
(1) the evidence is directed toward establishing a
matter in issue other than the defendant’s propen-
sity to commit the crime charged;
No. 08-1151 17
(2) the evidence shows that the other act is similar
enough and close enough in time to be relevant to
the matter in issue;
(3) the evidence is sufficient to support a jury
finding that the defendant committed the similar
act; and
(4) the probative value of the evidence is not sub-
stantially outweighed by the danger of unfair
prejudice.
Id.
Zahursky argues that the district court erred in ad-
mitting evidence of the Xanthery chats because there
was insufficient evidence that he conducted the chats.
While Zahursky’s parents and sister also had access to
the computer on which the Xanthery chats were found,
the evidence established that it was more likely than
not Zahursky himself who engaged in those chats.
Zahursky had access to his mother’s computer and used
it often, as demonstrated by the Shelly and Holly chats.
The Xanthery chats occurred on June 14 during the
same time frame that Zahursky admitted he was
chatting with Shelly. Zahursky’s admission to con-
ducting the Shelly chats supports the inference that he
conducted the Xanthery chats as well. The Xanthery
chats also coincided with the timing of the Holly chats.
The Xanthery chats and Holly chats were conducted by
someone using the Gracepace screen name—which was
created and used by Zahursky. The similarities in
content between the Shelly chats and the Xanthery chats
as well as the Holly chats support the inference that the
same person was conducting those chats. In addition,
18 No. 08-1151
Zahursky stated in his chats with Shelly that he had
thirty online sex meets. He even told her that he had “done
a 14-year-old”—the same claim made by the person
who chatted with Xanthery. And Zahursky’s chats with
Shelly revealed his sexual interest in young girls. All of
this evidence was more than sufficient to support a jury
finding that Zahursky engaged in the Xanthery chats.
Zahursky claims that segments of the Holly and
Xanthery chats were not probative of his motive, intent,
or lack of mistake but gave unnecessary, shocking, repul-
sive and sexually explicit details. Zahursky’s knowl-
edge and intent were at issue. See 18 U.S.C. § 2422(b).
So was his motive. See United States v. Sebolt, 460 F.3d
910, 917 (7th Cir. 2006) (“establishing motive tends to
prove a crime was committed”). “Prior instances of
sexual misconduct with a child victim may establish a
defendant’s sexual interest in children and thereby
serve as evidence of the defendant’s motive to commit
a charged offense involving the sexual exploitation of
children.” Id. In both the Holly and Xanthery chats,
Zahursky admitted to having had sex with a fourteen-year-
old. And, in the Holly chats Zahursky clearly expressed
his sexual interest in fourteen-year-old girls. Zahursky’s
admission to having had sex with a fourteen-year-old
and the sexually explicit nature of the Xanthery and
Holly chats make them probative as to his intent and
motive in chatting with Shelly and then meeting her
at Starbucks.
The revelations of the girls’ ages in the chats make the
chat evidence probative as to Zahursky’s knowledge
No. 08-1151 19
and absence of mistake. Holly told Zahursky that she was
fourteen. Zahursky wrote Holly that he may have
found another fourteen-year-old girl who might join
them in a threesome and later identified the girl to Holly
as none other than Shelly. Thus, this chat evidence is
probative of Zahursky’s knowledge that his target for
sexual activity was a minor under the age of eighteen.
The evidence is also probative as to the absence of any
mistake on Zahursky’s part regarding Shelly’s age.
Zahursky next argues that the probative value of the
Holly and Xanthery chats was substantially outweighed
by excessively prejudicial details. He claims that the
chats were cumulative evidence of his character. That
evidence may be highly prejudicial does not compel its
exclusion; the evidence must be unfairly prejudicial.
Sebolt, 460 F.3d at 917. “Evidence is unfairly prejudicial
only if it will induce the jury to decide the case on an
improper basis, commonly an emotional one, rather
than on the evidence presented.” United States v. Harris,
536 F.3d 798, 809 (7th Cir. 2008) (quotation omitted). We
give special deference to the district court’s decision to
admit evidence under Rule 403; we second-guess the
district court’s judgment “[o]nly in an extreme case.” Id.
(quotation omitted). Rule 403 provides for the exclusion
of relevant evidence where “its probative value is sub-
stantially outweighed by the danger of unfair
prejudice . . . or needless presentation of cumulative
evidence.” Fed. R. Evid. 403; see Harris, 536 F.3d at 809.
Zahursky has not shown that the district court erred in
its implicit determination that the probative value of the
20 No. 08-1151
chat evidence was not substantially outweighed by the
danger of unfair prejudice or its cumulative nature.
Zahursky denied going to meet Shelly with the intent
to have sex with a minor. Without question, the chats
were sexually explicit and detailed. In the chats with
Holly, Zahursky wrote openly and graphically about
his sexual fantasies and instructed Holly about sex and
pleasuring men. The sexually explicit nature of the
chat transcripts; Zahursky’s open, graphic, and detailed
discussions of his sexual fantasies; and his instructions
to Holly about how to please men made this evidence
highly probative. We see no reason to second-guess the
district court’s assessment that the “prejudicial” details
were not unfairly prejudicial.
Lastly, Zahursky submits that SS’s testimony was
highly prejudicial because it was cumulative of infor-
mation in the Shelly, Holly, and Xanthery chats; his
confessions which were introduced into evidence; and
his testimony on cross-examination. He also claims that
SS’s testimony inflamed the jury’s emotions. However,
SS’s testimony was not merely cumulative; it came from
a victim of Zahursky. Thus, SS’s testimony was highly
probative of Zahursky’s intent and motive in chatting
with and meeting Shelly. SS’s testimony also showed
that Zahursky intended to follow through with his plan
to engage Shelly in sexual activities with him. Finally,
it corroborated the accuracy of some of the critical vouch-
ing of his experience with an underage girl contained
in the Shelly and Holly chats, thus further identifying
Zahursky as the participant in those chats.
No. 08-1151 21
The Holly chats, Xanthery chats, and SS’s testimony
were admissible to rebut Zahursky’s claims at trial as to
why he chatted with Shelly about sex—to get minors to
leave adult chat rooms; and why he drove to the
Starbucks—not for coffee and not to meet Shelly for
sex, but out of curiosity as to whether she was a college
student or cop. This evidence also was admissible to
rebut Zahursky’s denial that he intended to have sex
with a minor. Accordingly, this evidence was admissible
to prove Zahursky’s motive, intent, knowledge, and
absence of mistake.
While this Rule 404(b) evidence might appeal to the
jury’s emotions (and surely didn’t give anyone a
favorable impression of Zahursky), the district court gave
a limiting instruction, both after the jury heard the
Rule 404(b) evidence and then again in the final jury
instructions. “Absent any showing that the jury could
not follow the court’s limiting instruction, we presume
that the jury limited its consideration of the testimony
in accordance with the court’s instruction.” Lee, 558 F.3d
at 649 (quotation omitted). Zahursky has not shown
that the jury could not follow the court’s limiting instruc-
tion. We therefore can assume that this instruction re-
moved any unfair prejudice from the admission of the
Rule 404(b) evidence. See United States v. Vargas, 552
F.3d 550, 557 (7th Cir. 2008) (“[W]e assume that limiting
instructions are effective in reducing or eliminating
unfair prejudice.”).
In short, the district court did not abuse its discretion
in admitting any of the Rule 404(b) evidence.
22 No. 08-1151
C. Unduly Influencing a Minor Under U.S.S.G.
§ 2G1.3(b)(2)(B)
Last is Zahursky’s contention that the district court
erred in applying an enhancement for unduly influ-
encing a minor under U.S.S.G. § 2G1.3(b)(2)(B). Under
§ 2G1.3(b)(2)(B), which is applicable to the offense of
conviction, the base offense level is increased by
2 offense levels if “a participant otherwise unduly influ-
enced a minor to engage in prohibited sexual conduct.”
We review the district court’s interpretation and applica-
tion of the Sentencing Guidelines de novo. United
States v. Abbas, 560 F.3d 660, 662 (7th Cir. 2009). We
review its factual findings for clear error. United States
v. Pira, 535 F.3d 724, 730 (7th Cir.), cert. denied, 129 S. Ct.
583 (2008).
In United States v. Mitchell, 353 F.3d 552 (7th Cir. 2003),
we considered whether § 2A3.2(b)(2)(B)(ii) was ap-
plicable to sting operations where no illicit sexual
conduct occurred. Section 2A3.2(b)(2)(B)(ii) provides for
an enhancement if “a participant otherwise unduly influ-
enced the victim to engage in prohibited sexual conduct.”
We held that § 2A3.2(b)(2)(B)’s enhancement “cannot
apply where the offender and victim have not engaged
in illicit sexual conduct.” Mitchell, 353 F.3d at 557. We
found that both the plain language of the Guideline
and the commentary supported this conclusion. Id. at 556-
57. And we reasoned that “[w]here no prohibited
sexual conduct has occurred, there has been no undue
influence.” Id. at 559. Therefore, we concluded that
§ 2A3.2(b)(2)(B)(ii) did not apply “in the case of an
No. 08-1151 23
attempt where the victim is an undercover police officer.”
Id. at 554.
The “unduly influenced the victim to engage in prohib-
ited sexual conduct” language in § 2A3.2(b)(2)(B)(ii) is
substantially the same as the “unduly influenced a
minor to engage in prohibited sexual conduct” language
of § 2G1.3(b)(2)(B). Therefore, Mitchell’s reasoning
should control here and leads to the conclusion that
§ 2G1.3(b)(2)(B) cannot apply where the defendant and
the minor have not engaged in prohibited sexual con-
duct. Zahursky asserts that the district court thus erred in
applying the Guideline because the record contains no
evidence that he engaged in prohibited sexual conduct
with Holly.
The government argues that “offense” as used in
§ 2G1.3(b)(2) includes not only the offense of conviction
but also any other conduct that may be considered
relevant conduct under the Guidelines. It asserts that if
Zahursky’s rape of SS and the two internet chats with
Holly and Xanthery are considered relevant conduct, then
they are part of the offense for purposes of § 2G1.3(b)(2).
(The government does not go so far as to argue that all
of this should be considered relevant conduct under the
Guidelines.) According to the government, the question
becomes whether Zahursky was successful in unduly
influencing SS, Holly, or Xanthery. The answer, the gov-
ernment submits, is “yes,” because (1) there is no ques-
tion that Zahursky unduly influenced SS, and (2) there is
evidence in the Holly chats of a meeting between
Zahursky and Holly.
24 No. 08-1151
Putting aside the question of whether Zahursky’s rapes
of SS could be considered relevant conduct—and we
doubt that they would since these events happened
approximately five years earlier—the fact is that they
were not considered relevant conduct. The PSR treated
only the Holly chats as relevant conduct. The rapes of
SS and the Xanthery chats were treated as “Conduct
Other Than Relevant.” Furthermore, the § 2G1.3(b)(2)(B)
enhancement was applied to the pseudo count
which was based only on the internet chats with
Holly1989cutie, not on any conduct with SS. Thus, the
enhancement was not based on the undue influence of
SS. And, it seems that using the SS evidence to
justify application of § 2G1.3(b)(2)(B) would amount to
impermissible double counting because the district court
increased Zahursky’s criminal history category on the
basis of the uncharged conduct with SS. See, e.g., United
States v. Blum, 534 F.3d 608, 612 (7th Cir.) (indicating
that impermissible double-counting occurs when the
district court imposes upward adjustments within the
same Guidelines range that are premised on the same
conduct), cert. denied, 129 S. Ct. 589 (2008).
Turning to Holly, we disagree that the Holly chats
contain any evidence of a meeting between Zahursky
and the person who used the Holly screen name. At oral
argument, the government stated that a fair reading of
the Holly chats supports the finding that Zahursky and
Holly agreed to meet. Our reading of the Holly chats
reveals talk about a possible meeting sometime in the
future, but no evidence that an actual meeting ever
took place. And even if we were to infer that there was
No. 08-1151 25
a meeting between Zahursky and Holly, the evidence
provides no basis for inferring that there was any
sexual contact between them. Nor does the record
disclose who Holly is, that she is a minor, or even that
she is a real person. Holly claimed to be fourteen, but
nothing in the record corroborates the claim. Holly may
have been an undercover agent posing as a young girl
in internet chat rooms much like Agent Moore.
The district court thus erred in applying the enhance-
m ent for unduly influen cing a m inor under
§ 2G1.3(b)(2)(B). So we must decide whether that error
was harmless.
An error is harmless only “when the government has
proved that the district court’s sentencing error did not
affect the defendant’s substantial rights (here-liberty).”
Abbas, 560 F.3d at 667 (quotations and citations omitted).
The government bears the burden of proving harmless
error and does so by showing that “the Guidelines
error did not affect the district court’s selection of the
sentence imposed,” which “is not the same thing as
proving that the sentence was reasonable.” Id.
We have found sentencing errors harmless in a few
cases. See id. at 666-67 (collecting cases). For example, in
Abbas, we concluded that a sentencing error was
harmless because the sentencing judge said that she
would have imposed the same sentence even if the Guide-
line at issue—U.S.S.G. § 2C1.1—did not apply. Id. at 667.
Similarly, in United States v. Anderson, 517 F.3d 953 (7th
Cir. 2008), we found that the error in calculating the
sentencing range was harmless because the district court
26 No. 08-1151
explicitly stated that it believed the sentence imposed
was reasonable and would impose the same sentence
even if its Guidelines calculations were incorrect. Id. at
965. And, under the version of the Guidelines which
would have applied on remand, the sentencing range
would have been the same as the range that the
district court had used anyway. Id. at 966. The common
thread in both Anderson and Abbas is that the sentencing
court firmly indicated that it would impose the same
sentence regardless of any sentencing error.
We have no firm assurance from the district court in
this case that it would impose the same sentence even if
its application of the two-level enhancement under
§ 2G1.3(b)(2)(B) was erroneous. The government says
there is no reason to think that the undue influence en-
hancement affected the court’s sentencing determination.
True, the court found that Zahursky’s criminal history
category substantially under-represented the seriousness
of his criminal history and did not reflect the likelihood
that he would commit further crimes. The court also
stated that it believed that Zahursky should receive a
sentence substantially greater than that recommended in
the Guidelines for his offense level and criminal history
category. Therefore, the court used a criminal history
category II in calculating the Guideline range, resulting
in a range of 210 to 262 months. The court sentenced
Zahursky to 262 months, at the upper end of the range.
However, the court also said that it was “trying to give
the defendant the benefit of the doubt.”
The district court’s statements in this case do not ap-
proach the firm assurances that we had in the cases
No. 08-1151 27
where we have found a sentencing error harmless. To be
sure, the district court believed a substantial sentence,
one that was greater than provided in the recommended
range, was appropriate. But we are unconvinced that the
court would have imposed the same sentence had it not
improperly calculated Zahursky’s Guideline range. An
error in calculating the Guidelines range is “significant.”
Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597
(2007); see also United States v. Dean, No. 08-3287, 2009 WL
2341676, at *6 (7th Cir. July 31, 2009) (stating that “the
district court . . . is required to calculate, in the course
of arriving at the sentence, the appropriate guidelines
sentencing range”). It is possible that the sentence would
have been the same, but it is not certain. Therefore,
we must remand for resentencing.
III.
For the foregoing reasons, we A FFIRM the appellant’s
conviction,V ACATE his sentence, and R EMAND for resen-
tencing consistent with this opinion.
9-1-09