Eleventh Circuit Court of Appeals - Published Opinions

Friday, September 13, 2019

Gillis: Federal Kidnapping Does not Satisfy the Elements Clause in the Federal Solicitation Statute

In United States v. Gillis, No. 16-16482 (Sept. 13, 2019) (per curiam) (Jill Pryor, Anderson, Hull), the Court affirmed the defendant's child enticement conviction but reversed his conviction for soliciting another to commit federal kidnapping.

On the enticement count, the Court found the evidence sufficient.  It rejected his arguments that a Craigslist ad did not show his intent to induce a minor to engage in sexual activity; that an undercover agent introduced that idea into the conversation; the defendant abandoned any intent by canceling the first planned meeting with the minor; and, in setting up the second meeting, he sought only to meet with the fictional father.

The Court also rejected his argument that, even if technically inadmissible under Rule 702, the court deprived him of his Fifth and Sixth Amendment right to present a complete defense by limiting the testimony of his expert and prohibiting another expert from testifying at all.  Although the defendant argued that the testimony was necessary to contextualize his online communications and negate the subjective intent element, that was not a compelling reason to make an exception to the expert witness rules of evidence.  The mere fact that their testimony would have been helpful was not enough.

However, in a lengthy analysis, the Court reversed a solicitation conviction under 18 U.S.C. 373 that was predicated on the federal kidnapping offense in 18 U.S.C. 1201(a), because it concluded that federal kidnapping did not satisfy the elements clause in 373 (which includes the same key language as the elements clause in 924(c)(3)(A) but also additional language not in 924(c)(3)(A)).  The Court concluded that, under its precedent in McGuire which was reinforced by Davis, the categorical approach governed 373; and, under that approach, federal kidnapping did not qualify because it is indivisible and, based on non-far-fetched hypotheticals, may be committed by means of inveiglement and/or decoy and then maintained by pyschological force, which was insufficient.

Judge Hull dissented in part, opining that a conduct-based approach applied based primarily on the text of 373's elements clause, the defendant's real-world conduct involved violent force, and kidnapping by confinement qualified even under the categorical approach, in part because there were no successful prosecutions that did not involve physical force capable of causing pain or injury.