### In the 

# United States Court of Appeals
For the Seventh Circuit

____________________ No. 13

- 3095

U NITED S TATES OF A MERICA , Plaintiff

- Appellee

,

v.

S RINIVASA E RRAMILLI , Defendant

- Appell ant

.

____________________
Appeal from the United States District Court for the
Northern District of Illinois

, Eastern Division.
No. 1:11

- cr

- 00778

- 1

— Joan Humphrey Lefkow

, Judge

.

____________________

A RGUED S EPTEMBER 10, 2014

— D ECIDED J UNE 10, 2015

____________________

Before W OOD , Chief Judge

, and E ASTERBROOK and T INDER , Circuit Judges

.
T INDER , Circuit Judge

. Srinivasa Erramilli has been caught three times fondling unsuspecting women on airplanes. Once in 1999 and once in 2002, he took a window seat b ehind a young woman , and when she appeared to fall asleep, he reached forward and fondled one of her breasts. Then, in 2011, he took a middle seat between a woman and her hu sband (who was coincidentally blind in the eye closest to2 No. 13

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him), and when the woman appeared to fall as leep, he fo ndled her inner thigh. It is this latter incident that led to E rramilli’s conviction for abusive sexual contact in this case. At trial, the government introduced evidence of his prior acts pursuant to Federal Rule of Evidence 413. On appeal, Err amilli argues that his prior acts should have been excluded and that, even if they were properly admitted, the jury i nstruction on their use was improper. We disagree; therefore,
we affirm.

I. BACKGROUND
In June 2011, Susan and Vincent Domino took a trip to

L as Vegas for their thirty

- fourth wedding anniversary. On June 14, their trip came to an end, and they boarded their return flight to Chicago on Southwest Airlines. Because of Southwest’s open boarding policy, the Dominos were free to
choose their seats. Vi ncent is blind in his right eye, so the Dominos generally sit on the right side of the plane, allo wing him to see the flight attendants when drinks are served. This time was no exception: the Dominos sat toward the back of the plane, on the right side of t he center aisle. Vi ncent took the aisle seat, as he thought he might need to use the restroom during the flight. Susan was tired and thought she might be getting sick; she chose the window seat so she could lay her head against the side of the plane and ge t some

rest.
Meanwhile, Erramilli had been in Las Vegas on business and had booked the same return flight to Chicago. The flight was full, and Erramilli was the last to board, so he took the only seat available to him: the seat between the Dominos. By that time, Susan had crossed her left leg over her right and was leaning against the window. She remained in that pos i-No. 13

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tion as the plane took off and eventua lly she succeeded in falling asleep. At some point after takeoff, however, she felt something brush against her leg, and she jolted awake. Not seeing anything suspicious, she assumed the contact was a ccidental, so she moved a little closer to the window an d went back to sleep. A little later, Susan was awakened once more when she felt some pressure on her upper thigh, “like somebody was kneading it.” She turned, bumped Erramilli’s knee, and said, “Oh, excuse me.” Erramilli said nothing in response; instead, he folded his arms on the seatback tray in front of him and put his head down. A little drowsy and still unsure of what was happening, Susan curled up again and tried to go back to sleep.
As the plane approached Chicago, Susan ordered a cup of coffee, the n she leaned back in her seat and closed her eyes. She began to wonder whether someone had been touching her leg during the flight, and she opened her eyes to find that Erramilli had turned his legs toward her. Thin king that was strange, she closed her eye s again for a moment and then reopened them. At that point, Erramilli reached his left hand across his body and, while concealing it with a newspaper, slid his hand up her shorts and squeezed her i nner thigh. Then, as Susan put it, she “lost control.”

Susa n turned and struck Erramilli, then she called him a “pig” and a “pervert.” He asked what she was doing, and she responded, “You know what you were doing.” Erramilli said, “I don’t know what you are talking about.” Then, S usan told Vincent what happened an d asked for the author ities. Erramilli pleaded with them not to call the authorities, saying that his wife and two children were waiting for him and that they could “settle this in a civil matter.” By this4 No. 13

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time, he was sweating profusely. He also said some thing to the effect of, “I thought you liked it.” Eventually, Vincent pressed the flight attendant call button, but the plane was already descending into Chicago, and the flight attendants could not immediately come to their aid. As soon as the plane arriv ed at the gate, Erramilli got up and tried to exit, but Vincent blocked him in. Then, a flight attendant arrived and escorted the three of them into the jetway, where they met with officers from the Chicago Police Department. S usan told her story to the po lice, and later, the FBI.
On November 1, 2011, a grand jury returned an indic tment against Erramilli, charging him with two counts of abusive sexual contact under 18 U.S.C. § 2244, which applies to acts committed on aircraft pursuant to 49 U.S.C. § 46506(1 ). Under the statute, “the term ‘sexual contact’ means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(3). The first count of the indictment charged Er r amilli under 18 U.S.C. § 2244(a)(2), based on the contact that occurred while Susan was asleep. However, the government voluntarily dismis sed that count during trial, after concluding that there was insufficient evidence that E rramilli made contact with Susan’s inner thigh (or any other area listed in the statute) while she was asleep. The second count charged Erramilli under 18 U.S.C. § 224 4(b), which proscribes “knowingly engag[ing] in sexual contact with a nother person without that other person’s permission.” This charge was based on the contact that occurred after Susan awoke but without her permission.No. 13

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The government filed a motion in li mine under Federal Rule of Evidence 413, asking the district court to admit ev idence of two prior sexual assaults committed by Erramilli. In response, Erramilli argued that such evidence should be e xcluded under Federal Rule of Evidence 403 because its pr obative value was substantially outweighed by the danger of unfair prejudice. The district court disagreed and granted the government’s motion. However, the court cautioned that “the proper focus of the trial must be the underlying conduct that supports the instant offense, rather than the prior o ffenses,” and it directed the government to “limit its prese ntation to evidence that is necessary to convey the essential facts underlying the two prior offenses” and “limit emotio nal testimony from the prior victim s.”
At trial, the government presented testimony regarding Erramilli’s prior acts. First, one of his prior victims testified that on August 30, 1999, when she was twenty

- seven years old, she was seated next to a window on a flight from D etroit to Chicago. At some point during the flight, she placed her right arm on the armrest and leaned her head against the window, hoping to take a nap. Then, she felt a hand reach between her right arm and her body, grazing the side of her breast. At first, she thought it must have been a child pla ying, but then it happened again, and she grew suspicious. Then it happened a third time, only the contact with her breast was more substantial and obviously intentional. This time, she grabbed the hand and turned around to see wh o it was. It was Erramilli. The woman took a few minutes to pr ocess things, then she went to the back of the plane to tell the flight attendants what happened. Ultimately, Erramilli pled guilty to an Illinois battery charge.6 No. 13

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Next, the government presented the testimony of a fo rmer FBI agent who interviewed Erramilli following an inc ident that occurred on a flight from San Jose to Detroit on February 6, 2002. During the interview, Erramilli explained that although he had been upgraded to first class, he took a window seat behind an eighteen

- year

- old woman in coach. The woman was initially resting her head on a pillow pos itioned against the window, but eventually she removed the pillow. At that point, Erramilli reached forward to touch her
breast. The woman cl amped down on his arm with her e lbow, which Erramilli took to mean that she wanted him to touch her. Erramilli admitted to the FBI agent that he was
excited when he touched the woman’s breast and that he had “a little bit of an erection.” Ultimately, he pl ed guilty to
abusive sexual contact in the U.S. District Court for the Eas tern District of Michigan.
After the parties rested and made their closing arg uments, the court instructed the jury on the law governing the case. With respect to the testimony regar ding Erramilli’s pr ior acts, the court instructed the jury as follows:
You have heard testimony that the defen dant
committed crimes other than the ones charged in the indictment. Before using this evidence, you must decide whether it is more likely than

no t that the defendant did the crimes that are not charged in the indictment. If you decide that he did, then you may consider this ev idence for the following purposes: Motive, i ntent, knowledge, absence of mistake, lack of accident, and propensity to commit sexual a ssault. Keep in mind that the defendant is onNo. 13

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trial here for abusive sexual contact, not for the
other crimes.

After deliberations, the jury returned a guilty verdict on the sole remaining count of abusive sexual contact under 18 U.S.C. § 2244(b) . Erramilli was sentenced to nine months’ imprisonment and one year of supervised release.

II. DISCUSSION
On appeal, Erramilli argues that the district court abused its discretion in admitting the evidence of his prior sexual assaults and that the court’s jur y instruction on the use of those assaults was improper. We address each argument in

turn.

A. A DMISSIBILITY

“A district court’ s interpretation of the rules of evidence
is reviewed de novo , and its decision to admit or exclude ev idence is reviewed for an abuse of discretion. ” United States v. Foley , 740 F.3d 1079, 1086 (7th Cir. 2014). In this case, the di strict court admitted Erramilli’s prior sexual assaults under
Federal Rule of Evidence 413.
Generally, evidence of prior crimes cannot be used to support a pr opensity inference, that is, “ to prove a person’ s character in order to show that on a particular occasion the person acted i n accordance with the character.” Fed. R. Evid. 404(b)(1). Such evidence may only be used for other purpo ses, such as proving “ moti ve, opportunity, intent, prepar ation, plan, knowledge, identity, absence of mistake, or lack
of accident. ” Fed. R. Evid. 404(b)(2). However, “[i] n a crim inal case in which a defendant is accused of a sexual assault, the court may admit evidence that the de fendant committed8 No. 13

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any other sexual assault ,” and “[t] he evidence may be co nsidered on any matter to which it is relevant. ” Fed. R. Evid. 413(a). Thus, “[e] vidence that tends to show that a criminal defendant has a propensity to commit crimes ordinarily is excluded from trial, but Rule 413 makes an exception where past sexual offenses are introduced in sexual assault cases. ” Foley , 740 F.3d at 1086.
Although the propensity inference is permissible in sex ual assault cases, evidence of a defendant’s prior sexu al a ssaults remains subject to Federal Rules of Evidence 401, 402,
and 403. United States v. Rogers , 587 F.3d 816, 820 (7th Cir. 2009). The evidence is admissible only if it is relevant, Fed. R. Evid. 402, meaning that it must have a “tendency to make
a fa ct [of consequence] more or less probable than it would be without the evidence,” Fed. R. Evid. 401. And t he court may exclude the evidence “ if its probative value is substa ntially outweighed by a danger of

... unfair prejudice, confu sing the issues, mislead ing the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. ” Fed. R.
Evid. 403.
Erramilli makes a feeble attempt to argue that his prior sexual assaults were not relevant, but they were relevant for at least two purposes. First, they were relevant as propensity evidence, because “ the simple fact that [he] had done it b efore makes it more likely that he did it again. ” Rogers

, 587
F.3d at 821. Erramilli complains that his prior assaults had several distinguishing characteristics and were committed long before 2011, but these arguments go to the probative value of the prior assaults, not their relevance. Rule 401 r equires only that the evidence have “ any tendency to make a fact more or less probable than it would be without the ev i-No. 13

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den ce ,” and the fact that Erramilli sexually assaulted women who were trying to sleep while onboard aircraft in 1999 and 2002 tends to make it more probable that he committed a nother such assault in 2011.
Second, Erramilli’s prior sexual assaults were relevan t to prove that he knowingly engaged in “sexual contact,” which is required for a conviction under 18 U.S.C. § 2244 (b). In o rder to prove that element of the offense, the government had to establish that Erramilli intentionally touched Susan Do mino’s inner thigh “ with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any pe rson .” 18 U.S.C. § 2246(3). At trial, Erramilli argued that the government failed to prove the “sexual arousal” element, and he also suggested that his touching of Susan’s leg was accidental. The fact that he was admittedly motivated by sexual desire when he committed the prior assaults tends to prove otherwise. Thus, those prior assaults were relevant to prove his intent in this case.

Erramilli also argues that his prior sexual assaults should have been excluded because their probative value was su bstantially outweighed by the danger of unfair prejudice. A fter determining that the evidence is admissible under Rule

413

, “ the district court is required to consider whether it
should exclude the evidence under Rule 403. ” Foley , 740 F.3d

at 1088. “ Our role on appeal, however, is not to apply the Rule 403 balancing test de novo b ut to review the district

court’ s decision for an abuse of discretion. ” Id. In this case,
we cannot conclude that the district court abused its discr etion because the probative value of Erramilli’s prior sexual assaults was substantial and the danger of unfair prejudice
was low.10 No. 13

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At trial, Erramilli pursued two avenues of defense. First, he argued that Susan’s account of what happened was i ncredible and that he simply never touched her inner thigh. This position made the use of Erramilli’s past sexual assaults highly probative as propensity evidence because it bolstered
Susan’s tes timony that she was sexually assaulted. See United
States v. McGuire

, 627 F.3d 622 , 627 (7th Cir. 2010) (“ The ev idence was material because the defense was that [the victim]
was a liar.

... The evidence of the other boys established the
defendant’ s propensit y for, and modus operandi of, molest ation of young boys and by doin g so bolstered [the victim’s] testimony. ”). Second, Erramilli argued that the government failed to prove that the contact he made with Susan’s leg was intended for sexual arousal or gratifi cation. In fact, he su ggested that any contact was merely accidental. The evidence of Erramilli’s past sexual assaults was highly probative of his intent because it had a tendency to refute this defense.
Erramilli attempts to minimize the probative value o f his prior sexual assaults by pointing out several ways in which they were different from what he did to Susan Domino, but we agree with the district court’s conclusion that the diffe rences are insignificant and that the offenses are overwhel mingly simila r. True, the prior offenses were committed against younger women, and they involved Erramilli reac hing forward to touch the breast of a woman seated in front of him rather than reaching across his body to touch the inner thigh of a woman seated beside him, but all three offenses were crimes of opportunity in which Erramilli furtively groped unsuspecting women who were seated near him on airplanes. The offenses need not be identical to have su bstantial probative value.No. 13

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Erramilli’s argument is similar to that made by the d efendant in United States v. Julian , 427 F.3d 471 (7th Cir. 2005), in which the defendant was charged with conspiring to tra vel in foreign commerce for the purpose of engaging in illicit
sexual conduct with children based on his involvement i n the operation of a hotel in Mexico that catered to pedophiles. At trial, Julian claimed that he understood the hotel to be a legitimate business “ that was friendly to gay tourists rather than an illegitimate enterprise making children available to pedoph iles. ” Id. at 488. To prove his knowledge and intent with respect to the hotel’s illegitimate activity, the district court allowed the government to introduce Julian’s prior conviction for molesting his eleven

- year

- old stepson. On a ppeal, Julian argued tha t the probative value of this prior a ssault was slight because it involved his stepson rather than unrelated children, and it did not take place in foreign co mmerce

. Id. at 485. We disagreed, finding that while the prior
offense “ was distinguishable from t he charged offense in a number of respects, a jury might reasonably infer from the prior conviction that Julian was a pedophile and in turn
surmise that his involvement with [the hotel] was not as i nnocent as the defense made it out to be. ” Id. at 488. Sim ilarly, a jury could reasonably infer from Erramilli’s prior sexual assaults that he received sexual gratification from furtively groping women on airplanes, making it more likely that he committed the assault charged in this case.
Erramilli also argues th at his prior assaults had little pr obative value because they occurred nine and eleven years before the charged offense. Rule 413 “establishes no time limit on the admissibility of prior offenses .” Julian , 427 F.3d

at 487. “ That said, the date of the prior offense remains a fa ctor for a court to consider in weighing the possibility that the12 No. 13

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risk of unfair prejudice to the defendant posed by evidence of his prior offense might counsel against admission purs uant to Rule of Evidence 403. ” Id. In Julian , the pr ior sexual assault occurred twelve years before the charged offense, longer than either of the prior sexual assaults admitted in
this case. The district court relied on Julian in concluding that the age of the prior assaults did not tip the Rule 403 balanc e, and we cannot say that the court abused its discretion in d oing so.
Finally, we note that the danger of unfair prejudice was
low in this case. “ Because Rule 413 identifies [the] propens ity inference as proper, the chance that the jury will rely on
that inference can no longer be labeled a s ‘unfair’ for pu rposes of the Rule 403 analysis. ” Rogers , 587 F.3d at 822. It is true that there remain improper uses of prior sexual assaults
admitted under Rule 413. Id. For example

, “ a jury might use
such evidence

... to convict a defendant because it is a ppalled by a prior crime the defendant committed rather than persuaded that he committed the crime charged ,” or “ b ecause they think the defendant is a bad person generally d eserving of punishment. ” Id. at 822

– 23. But t he prior assaults in this case were not so appalling as to be likely to incite the jury to an emotional decision. Indeed, the child molestation
admitted in Julian would have been more likely to do so. The mere fact that the prior offense sought to be admit ted was a sexual assault cannot be enough to tip the scales in favor of exclusion under Rule 403; if that were the case, Rule 403
would swallow Rule 413.
Moreover, the government complied with the district court’s admonition to “limit its presentation to evidence that is necessary to convey the essential facts underlying the twoNo. 13

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prior offenses” and “limit emotional testimony from the pr ior victims.” And at the close of the case, the district court i nstructed the jury to “[k]eep in mind that the defendant i s on trial here for abusive sexual contact, not for the other crimes.” In light of the nature of the prior assaults, the ma nner in which the evidence was presented, and the jury i nstructions, a jury would have been unlikely to use the ev idence for an impro per purpose. In sum, Erramilli’s prior sexual assaults were admissible under Rule 413 because they were relevant to prove his pr opensity to commit the charged offense, as well as the requ isite intent for that offense, and the district court did not
abuse i ts discretion in refusing to exclude the evidence u nder Rule 403.

B. J URY I NSTRUCTION

“ We review de novo whether a challenged jury instru ction fairly and accurately summariz ed the law, but the trial

court’ s decision to give a particular instruction is reviewe d
for an abuse of discretion. ” United States v. Lawrence

, --- F.3d

---- , 2015 WL 3463089, at *8 (7th Cir. Jun. 2, 2015). “The di strict court is afforded substantial discretion with respect to the precise wording of instructions so long as the final result, read as a whole, completely and correctly states the law. ”
United States v. Marr , 760 F.3d 733, 743 (7th Cir. 2014) (inte rnal quotation marks omitted). “ We will reverse only if the instructions, taken as a whole, misled the jury. ” Lawrence

, 2015 WL 346308 9, at *8.
Before trial, the government proposed the following jury instruction regarding the use of Erramilli’s prior sexual a ssaults:14 No. 13

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You have heard evidence that the defendant committed crimes other than the ones charged in the indictment. Before using t his evidence, you must decide whether it is more likely than
not that the defendant did the crimes that are not charged in the indictment. If you decide that he did, then you may consider this ev idence on any matter to which it is relevant. Keep in mind th at the defendant is on trial here for abusive sexual contact, not for the other

crimes.
This proposed instruction generally tracks the language of
the instruction for other

- acts evidence admitted under Rule 404(b) from the pattern jury instructions develop ed by a committee appointed by this court. See Committee on Fede ral Criminal Jury Instructions for the Seventh Circuit, Pattern Criminal Jury Instructions of the Seventh Circuit 3.11 (2012),
available at http:// www. ca7. uscourts. gov/Pattern_Jury_In str/7th_crimina l_jury_ instr.pdf. However, consistent with the commentary to the pattern, instead of identifying permissible purposes
for which the evidence may be used under Rule 404(b), it i ncorporates Rule 413’s statement that such evidence may be
consid ered “on any matter to which it is relevant.”
Concerned that the jury might use his prior sexual a ssaults for an improper purpose, such as convicting him b ecause he is a bad person, Erramilli asked the district court to

re

- insert the admonition from the pa ttern instruction that the evidence may not be considered “for any other purpose.” Thus, if Erramilli had his way, the jury would have been told that while the evidence of his prior sexual assaults could beNo. 13

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considered “on any matter to which it is relevant ,” it could not be considered “for any other purpose.” Instead, the di strict court decided to alleviate that risk of improper use by modifying the instruction to identify the specific purposes for which the prior acts were relevant. The court instructed
th e jury that the evidence could be used “for the following purposes: Motive, intent, knowledge, absence of mistake, lack of accident, and propensity to commit sexual assault.” The court declined to instruct the jury that the evidence
could not be used “for any other purpose.”
Erramilli argues that this was an abuse of discretion b ecause it left open the possibility that the jury might use the evidence for an improper purpose. But the jury was instruc ted to keep in mind that Erramilli was “on trial here for a b usive sexual contact, not for the other crimes.” And beyond relevance, Rule 413 imposes no limits upon the purposes for which prior sexual assaults may be used in sexual assault cases. Indeed, the district court did more than was necessary by identifying the particular purposes for which the ev idence was relevant. Erramilli’s proposed instruction would have only served to confuse the jury by first stating that the evidence may be considered on any matter to which it is re levant and then purporting to limit the purposes for which the evidence may be considered. As a result, we cannot say that the district court abused its discretion in crafting the i nstruction the way it did.

III. CONCLUSION

The district court did not abuse its discretion in admi tting Erramilli’s prior sexual assaults under Rule 413 or in i nstructing the jury regarding those prior assaults. Therefore,
Erramilli’s conviction is A FFIRMED

.