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.
