United States v. Matthew Hensley ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1204
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ATTHEW H ENSLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 06 CR 168—Philip P. Simon, Judge.
A RGUED A PRIL 9, 2009—D ECIDED JULY 23, 2009
Before M ANION, R OVNER, and W OOD , Circuit Judges.
M ANION , Circuit Judge. Government agents created a
fictitious online personality named “Jennifer Sanchez,”
who represented herself as a 13-year-old girl. Matthew
Hensley, using multiple online personas, attempted to
cajole Jennifer into having sex with him. A meeting
place was arranged. However, while en route, Hensley
noticed law enforcement near the meeting place and left
the scene. Officers arrested Hensley the next day. A jury
2 No. 08-1204
convicted him of attempting to solicit a minor for sex in
violation of 18 U.S.C. § 2422(b). The district court sen-
tenced him to 125 months’ imprisonment. Hensley
appeals both his conviction and sentence. We affirm.
I.
The sting that caught Matthew Hensley was part of a
wider law-enforcement effort targeting Internet sexual
predators. The operation used personnel from several
state and federal agencies, including the Immigration
and Customs Enforcement (“ICE”) and the Secret Service.
The plan was to first entice sexual predators over the
Internet using agents passing themselves off as minors,
and then to nab them when they arrived at Will Park
in Valparaiso, the spot where the fictitious minors would
tell the perpetrators to meet them for the trysts. The take-
downs—approximately ten to twelve of them—were all
scheduled to occur on the same day, August 18, 2006,
and involved well over 100 law enforcement officers.
ICE agents Demetrius Flowers and Melissa Chan partici-
pated in the operation. They posed as a thirteen-year-
old girl named “Jennifer Sanchez” and created an online
Yahoo profile for her with the screen name jen_indy_13
(hereinafter “Jen”). Beginning August 7, 2006, Agent
Flowers, under the guise of that screen name, visited
the Indiana section of several Yahoo chat rooms.
That same day, Hensley, using the screen name
MattyMac99, struck up a one-on-one conversation with Jen
in one of the chat rooms. Both parties revealed their
No. 08-1204 3
age, sex, and location. Upon discovering that Jen was
thirteen years old, Hensley responded, “oh what the
hell i’d still fuck you.” Later, Hensley, informing Jen
that he had sex on his mind, attempted to find out
where she lived and what hours her mom worked. He
also asked her what was the most she had ever done with
a guy before, when she might want to have sex, if she
would let him kiss her, what her number was, and when
they could meet.
While Hensley was talking to Jen as MattyMac99, he
also was conducting two other one-on-one conversations
with her using the screen names MaverickMatt4 and
Mark_Thompson24. With each screen name, Hensley was
pretending to be a different person. At the time, the
government did not know that all three screen names
were the same person. As MaverickMatt4, Hensley pre-
tended to be a 19-year-old male living an hour north of
Indianapolis. He again requested that Jen give her
age—she reaffirmed that she was thirteen—and then
asked her pointed questions about her sex life, including
whether a guy had ever “fe[lt] you up” and if she had
ever masturbated.
As Mark_Thompson24, Hensley pretended to be a 21-
year-old male living in downtown Indianapolis. Hensley
told Jen he was “horny” and wanted “to get to know
[her] with [her] clothes off.” He also asked her if she
would come hang out with him and “help [him] out”
by performing various sex acts with him. Hensley
later asked Jen for her bra size and fantasized about
having sex with her.
4 No. 08-1204
Hensley continued conversing with Jen the next day.
Using the screen name NIPSCO26, he posed as a fifteen-
year-old girl and questioned Jen repeatedly about her age
to make sure she was thirteen and not just “do[ing] some
trapping work.” He also used the screen name
Mark_Thompson24 to encourage her further to have
sex with him, going so far as to offer to pick her up that
night. When Jen expressed fear about getting pregnant,
Hensley told her that she would not get “preggers” if they
had sex after her period or engaged in coitus interruptus.
The next evening, using the screen name MattyMac99,
Hensley was at it again. He engaged Jen in another highly
sexualized conversation and attempted to arrange a
meeting with her. During their next conversation,
Hensley continued to push for a meeting with Jen. He
talked about the possibility of her becoming his girlfriend
and attempted to devise a plan for her to meet him
at Valparaiso University.
Although the meeting at Valparaiso University did not
happen, Hensley kept pressing Jen to meet him. He also
continued to groom Jen for a sexual encounter. On one
occasion, Hensley, using the screen name NIPSCO26,
contacted Jen and—again pretending to be a fifteen-year-
old girl—told Jen how “she” loved having sex with
older men because they were more experienced than
younger guys. He also told Jen that thirteen was old
enough to have sex and appealed to the lack of concern by
“her” dad, a doctor, in order to show Jen that her fears
of pregnancy and sexually transmitted diseases were
overblown.
No. 08-1204 5
After a phone conversation on August 18, Hensley
agreed to meet Jen near her house around 3:00 p.m. later
that day. As the time for the rendezvous approached, a
uniformed police officer stationed near the designated
meeting place observed Hensley drive past his parked
squad car. Hensley did not stop, and the officer made
no attempt to arrest him. During a chat session that night,
Jen asked Hensley why he had not stopped by that day.
Hensley replied that there were cops everywhere, that
he could be arrested for coming to see her, that she was
too young for him, and that a guy his age hanging out
with a girl her age would not look good.
Agents arrested Hensley at his home the next day. They
also executed a search warrant, seizing a computer from
Hensley’s living area in the home’s basement. Upon
examining that computer, forensic experts discovered
that the screen names Hensley used to contact Jen origi-
nated from it. They also found that someone had at-
tempted to delete those screen names from the computer.
Hensley was charged in a one-count indictment with
attempting to solicit a minor for sex in violation of 18
U.S.C. § 2422(b). At trial, the government introduced
evidence of Hensley’s prior online relationship with T.G.,
a minor from California. Prior to T.G.’s testimony, the
district court gave the following instruction:
The testimony that you’re about to hear from this
witness . . . will be evidence of acts that the Defendant
may have committed other than those that are
charged in the indictment. You should consider this
evidence only on the issue of the Defendant’s intent,
6 No. 08-1204
and you should consider this evidence only for this
limited purpose and for no other purpose.
T.G. testified that she first met Hensley in an Internet
chatroom when she was 12. After she conversed with him
for awhile, Hensley moved to sexual topics, such as
the first time T.G. “got sexual” and if she knew how to
masturbate. Although T.G. initially told Hensley she was
14, she later divulged her true age on her thirteenth
birthday. Despite knowing her real age, Hensley continued
to talk with T.G. about sexual subjects. Later, after ex-
changing phone numbers, they began engaging in
phone sex. T.G. also testified that, although Hensley
never came to visit her, he had told her he was going to
make preparations to fly out to see her.
The jury convicted Hensley, and the court proceeded
to sentencing. Under the guidelines manual effective
November 2006, Hensley’s base offense level was 24. See
U.S.S.G. § 2G1.3(a) (Nov. 2006). Although Hensley’s
sentencing hearing was originally scheduled for
October 2007—when the November 2006 guidelines
manual was in effect—it was postponed until Janu-
ary 2008 at the request of the government. At the January
2008 hearing, the district court calculated the advisory
guidelines using the guidelines manual effective
November 2007. That version contained Amendment
701, which raised Hensley’s offense level under U.S.S.G.
§ 2G1.3 from 24 to 28, thereby increasing his sentencing
range (after two two-level enhancements) from 78-97
months to 121-151 months. See U.S.S.G. § 2G1.3(a)(3)
(Nov. 2007). The mandatory minimum sentence under
No. 08-1204 7
18 U.S.C. § 2422(b) was 120 months’ imprisonment, and
the district court sentenced Hensley to 125 months’
imprisonment. Hensley appeals his conviction and sen-
tence.
II.
On appeal, Hensley first argues that the district court
erred in admitting evidence of Hensley’s online relation-
ship with T.G. We review the evidentiary decisions of
the district court for an abuse of discretion. United States v.
Prieto, 549 F.3d 513, 523 (7th Cir. 2008). Rule 404(b) of the
Federal Rules of Evidence provides that “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in con-
formity therewith.” Such evidence is admissible, how-
ever, where offered for a purpose other than showing
propensity, such as to establish intent, knowledge, lack of
mistake, motive, or opportunity. Fed. R. Evid. 404(b);
United States v. Vargas, 552 F.3d 550, 554 (7th Cir. 2008).
According to this court’s four-part test, a district court
determining the admissibility of “other acts” evidence
under Rule 404(b) as well as Rules 402 1 and 4032 must
consider whether:
1
Federal Rule of Evidence 402 provides that “[a]ll relevant
evidence is admissible” and “[e]vidence which is not relevant
is not admissible.”
2
Federal Rule of Evidence 403 states that relevant evidence
nevertheless “may be excluded if its probative value is sub-
stantially outweighed by the danger of unfair prejudice.”
8 No. 08-1204
(1) the evidence is directed toward establishing a
matter in issue other than the defendant’s propensity
to commit the crime charged; (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
evidence has probative value that is not substantially
outweighed by the danger of unfair prejudice.
United States v. Diekhoff, 535 F.3d 611, 617 (7th Cir. 2008)
(quoting United States v. Simpson, 479 F.3d 492, 498 (7th
Cir. 2007)).
Hensley concedes that the government established
the second and third elements of the four-part test—the
similarity and temporal proximity of Hensley’s relation-
ship with T.G. and the evidence sufficient to establish it.
Those concessions are significant, as the other two ele-
ments are easily met.3 Regarding the first, the district
3
Notwithstanding his concession of similarity, Hensley argues
that the acts are unrelated. This is so, says Hensley, because
18 U.S.C. § 2422(b) incorporates state law (“Whoever, using . . .
any facility or means of interstate . . . commerce . . . knowingly
persuades [a minor] to engage in . . . any sexual activity for
which any person can be charged with a criminal offense”), and
the state-law offenses underlying the charged § 2422(b) offense
and what could have been charged under § 2422(b) for Hensley’s
online relationship with T.G. are not the same. According to
Hensley, the conduct at issue at trial is punishable as child
solicitation, Ind. Code § 35-42-4-6, whereas his online involve-
(continued...)
No. 08-1204 9
court found that the evidence was relevant to show both
Hensley’s intent and knowledge, and we agree. From
the very outset of the trial, Hensley put his intent to
solicit sex from a minor and his knowledge that Jen was a
minor at issue. During opening argument, Hensley’s
attorney argued that he “had every reason to believe
the person at the other end of this computer was not
13 years of age.” 4 Throughout the trial, Hensley continued
3
(...continued)
ment with T.G. only would have amounted to vicarious
sexual gratification, Ind. Code § 35-42-4-5.
Even assuming Hensley had not conceded similarity (he did),
we would nevertheless reject that argument. Our case law does
not require such a narrow rendering of similarity. See Vargas,
552 F.3d at 555 (“We have repeatedly held in the context of
Rule 404(b) that similarity is relevant only insofar as the acts
are sufficiently alike to support an inference of criminal
intent. . . . The prior acts need not be duplicates of the one for which
the defendant is now being tried. This test is not unduly rigid,
and the term ‘similarity’ has been loosely interpreted and
applied.” (internal citation and quotations omitted) (alteration
in original)). The relevant similarity here is, as Hensley himself
acknowledges in his brief, that in both instances he was at-
tempting to persuade a minor to engage in sexual activity.
4
Hensley’s attorney came perilously close to opening the door
to the T.G. evidence under Fed. R. Evid. 404(a)(1) when he
appeared to advance an entrapment defense, claiming during
opening statements that “Hensley ha[d] no history as a predator
of any kind whatsoever” and asking government witnesses
questions about Hensley’s predisposition to commit the
(continued...)
10 No. 08-1204
to advance his argument that he did not believe Jen
was underage. While cross-examining the government’s
witnesses, Hensley’s attorney attempted to leave the
jury with the impression that he would not have inter-
acted with Jen had he really believed she was 13. And, at
closing, he similarly contended that Hensley had “every
reason to believe” that Jen was 18. The evidence about
T.G., of course, was highly relevant to showing the oppo-
site; it demonstrated that Hensley had no qualms
about pursuing a sexual relationship with a person he
knew was a minor.
The relevance of the T.G. evidence to rebut Hensley’s
defense of lack of knowledge also strongly supports
weighing the fourth factor, the balancing of the probative
value with unfair prejudice, in favor of admissibility.
While the evidence was prejudicial, it was not unfairly
so. Furthermore, the district court’s limiting instruction,
given prior to T.G.’s testimony, provided a bulwark
against any unfair prejudice. See United States v. Hearn,
534 F.3d 706, 713 (7th Cir. 2008) (noting that “such
limiting instructions are effective in reducing or elim-
inating any possible unfair prejudice from the intro-
duction of Rule 404(b) evidence”) (internal quotation
marks omitted). We therefore see no abuse of discretion
4
(...continued)
offense. However, Hensley wisely withdrew reliance on that
defense later during trial, and the government does not
advance any argument for the admissibility of the T.G.
evidence under Rule 404(a)(1).
No. 08-1204 11
in the district court’s decision to admit the evidence of
Hensley’s prior relationship with T.G.
Moreover, even without the evidence concerning
Hensley’s relationship with T.G., a reasonable jury
easily could have found that Hensley was guilty of at-
tempting to persuade Jen to engage in sexual activity
with him in violation of § 2422(b). See Vargas, 552 F.3d at
558. The government presented evidence that Hensley
had numerous online and phone conversations with
Jen—during which Jen made it crystal clear that she
was underage—about meeting for sex. It also presented
evidence that Hensley arranged a meeting place and time
and traveled to the meeting place; that Hensley left the
area after seeing law enforcement officers nearby and
attempted to destroy the evidence on his computer of
his chats with Jen; and that Hensley, in his final online
conversation with Jen, admitted that he could be arrested
for coming to see her, that she was too young for him,
and that he did not stop to see her because there were
“cops everywhere.” Thus, had any unfair prejudice re-
sulted from the evidence of Hensley’s relationship with
T.G., it would not merit reversal because the other evi-
dence of Hensley’s guilt was overwhelming. See Fed. R.
Crim. P. 52(a).
Hensley next contends that the government failed to
present sufficient evidence to show that he took a “sub-
stantial step” towards the completion of the § 2422(b)
offense, as is necessary for an attempt conviction.
United States v. Coté, 504 F.3d 682, 687 (7th Cir. 2007).
Ordinarily, our review of a challenge to the sufficiency
12 No. 08-1204
of the evidence is quite deferential, looking only at
whether “evidence exists from which any rational trier
of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Hach,
162 F.3d 937, 942 (7th Cir. 1998). That standard, by
itself, presents “a nearly insurmountable hurdle to the
defendant.” Id. (quoting United States v. Teague, 956 F.2d
1427, 1433 (7th Cir. 1992)). Hensley’s trouble is com-
pounded, however, because he did not raise this issue
in his motion for judgment of acquittal in the district court.
Hence, under the plain error standard, he faces the
even more difficult task of showing that a “manifest
miscarriage of justice will occur if his conviction is not
reversed.” United States v. Irby, 558 F.3d 651, 653 (7th Cir.
2009). “Put another way, reversal is warranted only if
the record is devoid of evidence pointing to guilt, or if
the evidence on a key element was so tenuous that a
conviction would be shocking.” Id. (internal quotations
omitted).
Hensley falls far short of meeting that standard. He
relies almost exclusively on United States v. Gladish,
536 F.3d 646 (7th Cir. 2008). In that case, this court held
that sex talk alone does not amount to a “substantial step.”
536 F.3d at 650. But there is much more than mere talk
here. Not only did Hensley “groom” Jen for sex by con-
versing with her using multiple online personas, see
United States v. Zawada, 552 F.3d 531, 535 (7th Cir. 2008);
United States v. Brand, 467 F.3d 179, 203 (2d Cir. 2006),
and arrange a meeting place and time to meet her,
Gladish, 536 F.3d at 649 (citing cases), he actually traveled
to the meeting place, being deterred from the encounter
No. 08-1204 13
only by the presence of law enforcement. As we stated
in Gladish, that is more than enough for a jury to find a
“substantial step.” See id.Hensley makes much of his last phone call to Jen before
he traveled to meet her, during which he told her he
was not sure sex was a good idea and asked if it was
alright if they just hung out together. Hensley claims
this shows he did not intend to meet her for sex. How-
ever, a jury was entitled from the evidence to conclude
that Hensley’s intent was otherwise—that he wanted
sex, and not just to “hang out.” Even a cursory reading
of the transcripts of the conversations between Hensley
and Jen reveals that Hensley had sex on his mind and
was interested in much more than a platonic relation-
ship with Jen. Indeed, Hensley went so far as to use one
of his multiple personas (as a 15-year-old girl) to test Jen
in order to make sure she was not a government agent.
That Hensley took such precautions strongly suggests a
desire for sex rather than simple friendship. Furthermore,
the jury heard other evidence showing Hensley’s con-
sciousness of guilt: Hensley’s attempted destruction of
the incriminating chat profiles after he noticed police
near the prearranged meeting place, as well as Hensley’s
last conversation with Jen wherein he told her there
“were cops everywhere” and he could be arrested for
coming to see her. From that evidence, a reasonable jury
could find that Hensley intended to have sex with Jen
when he went to meet her. Thus, Hensley has failed to
show that upholding his conviction will result in a mani-
fest miscarriage of justice.
14 No. 08-1204
Lastly, Hensley challenges the district court’s calcula-
tion of his advisory guidelines range using the November
2007 guidelines manual, instead of the November 2006
version. We have previously rejected such a challenge in
United States v. Demaree, 459 F.3d 791 (7th Cir. 2006),
wherein we held that a district court can apply a change
in the Guidelines that expands a defendant’s advisory
guidelines range without offending the Ex Post Facto
Clause. Hensley acknowledges Demaree but argues that
an exception should be made to its rule in this case. Such
an exception is warranted, Hensley contends, because
here the government, and not Hensley, asked for the
continuance of the sentencing hearing that led to the
application of the more stringent advisory guidelines.
We fail to see how that fact is significant. As we re-
marked in Demaree,
A judge who said he was persuaded by the insight
that informed the new guideline to give a sentence
within the range established by it could not be thought
to be acting unreasonably. . . . [W]henever a law or
regulation is advisory, the judge can always say not
that he based his sentence on it but that he took the
advice implicit in it. A judge is certainly entitled to
take advice from the Sentencing Commission.
Id. at 795. The same holds true here. Regardless of who
sought the continuance,5 the district judge was entitled to
5
Hensley does not argue that the government intentionally
delayed the sentencing so the amendment would take effect.
There is no reason for the government to do such a thing, since
(continued...)
No. 08-1204 15
take into account the change in the Guidelines when
fashioning a sentence. No error was committed therefore
in the calculation of Hensley’s advisory guidelines range.
Because Hensley makes no further challenge to his sen-
tence, we will not disturb it.
III.
The district court did not abuse its discretion in admit-
ting evidence of Hensley’s prior relationship with T.G.
as probative of Hensley’s knowledge that Jen was a
minor and his intent to solicit sex from her. The court’s
limiting instruction adequately prevented any unfair
prejudice stemming from that decision and, at any rate,
the other evidence against Hensley was overwhelming
and more than sufficient to support the jury’s finding
that Hensley attempted to solicit a minor for sex in viola-
tion of 18 U.S.C. § 2422(b). Hensley’s final argu-
ment—that the district court erred in calculating his
advisory guidelines range because it used the Novem-
ber 2007 guidelines manual instead of the guidelines
manual effective November 2006—is foreclosed by our
decision in Demaree. We therefore A FFIRM Hensley’s
conviction and sentence.
5
(...continued)
under the logic of Demaree, the government can bring guide-
line changes to the attention of the district court before they
take effect. See id.7-23-09