In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 13-3095

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SRINIVASA ERRAMILLI,

Defendant-Appellant.

____________________

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.

____________________

ARGUED SEPTEMBER 10, 2014 — DECIDED JUNE 10, 2015

____________________

Before WOOD, Chief Judge, and EASTERBROOK and TINDER,

Circuit Judges.

TINDER, 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 behind 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 husband (who was coincidentally blind in the eye closest to 
2 No. 13-3095

him), and when the woman appeared to fall asleep, he fondled her inner thigh. It is this latter incident that led to Erramilli’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, Erramilli argues that his prior acts should have been excluded 

and that, even if they were properly admitted, the jury instruction on their use was improper. We disagree; therefore, 

we affirm.

I. BACKGROUND

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

Las 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. Vincent is blind in his right eye, so the 

Dominos generally sit on the right side of the plane, allowing 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 the center aisle. Vincent 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 get 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 posi-
No. 13-3095 3

tion as the plane took off and eventually 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 accidental, so she moved a little closer to the window and 

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, then 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. Thinking that was strange, she closed her eyes 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 inner thigh. Then, as Susan put it, she “lost control.”

Susan 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, Susan told Vincent what happened and asked for the authorities. 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 this 
4 No. 13-3095

time, he was sweating profusely. He also said something 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 arrived 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. Susan told her story to the police, and later, the FBI.

On November 1, 2011, a grand jury returned an indictment 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 Erramilli under 18 U.S.C. § 2244(a)(2), based on the 

contact that occurred while Susan was asleep. However, the 

government voluntarily dismissed that count during trial, 

after concluding that there was insufficient evidence that Erramilli 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. § 2244(b), which 

proscribes “knowingly engag[ing] in sexual contact with another person without that other person’s permission.” This 

charge was based on the contact that occurred after Susan 

awoke but without her permission.
No. 13-3095 5

The government filed a motion in limine under Federal 

Rule of Evidence 413, asking the district court to admit evidence of two prior sexual assaults committed by Erramilli. In 

response, Erramilli argued that such evidence should be excluded under Federal Rule of Evidence 403 because its probative 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 offenses,” and it directed the government to “limit its presentation to evidence that is necessary to convey the essential 

facts underlying the two prior offenses” and “limit emotional testimony from the prior victims.”

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 Detroit 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 playing, 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 who it 

was. It was Erramilli. The woman took a few minutes to process 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. 13-3095

Next, the government presented the testimony of a former FBI agent who interviewed Erramilli following an incident 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 positioned against the window, but eventually she removed the 

pillow. At that point, Erramilli reached forward to touch her 

breast. The woman clamped down on his arm with her elbow, 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 pled guilty to 

abusive sexual contact in the U.S. District Court for the Eastern District of Michigan.

After the parties rested and made their closing arguments, the court instructed the jury on the law governing the 

case. With respect to the testimony regarding Erramilli’s prior acts, the court instructed the jury as follows:

You have heard testimony that the defendant 

committed crimes other than the ones charged 

in the indictment. Before using this 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 evidence for the following purposes: Motive, intent, knowledge, absence of mistake, lack of 

accident, and propensity to commit sexual assault. Keep in mind that the defendant is on 
No. 13-3095 7

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 jury instruction on the use of 

those assaults was improper. We address each argument in 

turn.

A. ADMISSIBILITY

“A district court’s interpretation of the rules of evidence 

is reviewed de novo, and its decision to admit or exclude evidence is reviewed for an abuse of discretion.” United States v. 

Foley, 740 F.3d 1079, 1086 (7th Cir. 2014). In this case, the district court admitted Erramilli’s prior sexual assaults under 

Federal Rule of Evidence 413.

Generally, evidence of prior crimes cannot be used to 

support a propensity inference, that is, “to prove a person’s 

character in order to show that on a particular occasion the 

person acted in accordance with the character.” Fed. R. Evid. 

404(b)(1). Such evidence may only be used for other purposes, such as proving “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack 

of accident.” Fed. R. Evid. 404(b)(2). However, “[i]n a criminal case in which a defendant is accused of a sexual assault, 

the court may admit evidence that the defendant committed 
8 No. 13-3095

any other sexual assault,” and “[t]he evidence may be considered 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 sexual assault cases, evidence of a defendant’s prior sexual assaults 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 fact [of consequence] more or less probable than it would 

be without the evidence,” Fed. R. Evid. 401. And the court 

may exclude the evidence “if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading 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 before 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 requires only that the evidence have “any tendency to make a 

fact more or less probable than it would be without the evi-
No. 13-3095 9

dence,” 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 another such assault in 2011.

Second, Erramilli’s prior sexual assaults were relevant to 

prove that he knowingly engaged in “sexual contact,” which 

is required for a conviction under 18 U.S.C. § 2244(b). In order to prove that element of the offense, the government had 

to establish that Erramilli intentionally touched Susan Domino’s inner thigh “with an intent to abuse, humiliate, harass, 

degrade, or arouse or gratify the sexual desire of any person.” 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 substantially outweighed by the danger of unfair prejudice. After 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 but 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 discretion because the probative value of Erramilli’s prior sexual 

assaults was substantial and the danger of unfair prejudice 

was low.
10 No. 13-3095

At trial, Erramilli pursued two avenues of defense. First, 

he argued that Susan’s account of what happened was incredible 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 testimony that she was sexually assaulted. See United 

States v. McGuire, 627 F.3d 622, 627 (7th Cir. 2010) (“The evidence was material because the defense was that [the victim]

was a liar. ... The evidence of the other boys established the 

defendant’s propensity for, and modus operandi of, molestation of young boys and by doing 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 gratification. In fact, he suggested 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 of 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 differences are insignificant and that the offenses are overwhelmingly similar. True, the prior offenses were committed 

against younger women, and they involved Erramilli reaching 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 substantial probative value.
No. 13-3095 11

Erramilli’s argument is similar to that made by the defendant in United States v. Julian, 427 F.3d 471 (7th Cir. 2005), 

in which the defendant was charged with conspiring to travel in foreign commerce for the purpose of engaging in illicit 

sexual conduct with children based on his involvement in 

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 

pedophiles.” 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 appeal, Julian argued that the probative value of this prior assault was slight because it involved his stepson rather than 

unrelated children, and it did not take place in foreign commerce. Id. at 485. We disagreed, finding that while the prior 

offense “was distinguishable from the 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 innocent as the defense made it out to be.” Id. at 488. Similarly, 

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 that his prior assaults had little probative 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 factor for a court to consider in weighing the possibility that the 
12 No. 13-3095

risk of unfair prejudice to the defendant posed by evidence 

of his prior offense might counsel against admission pursuant to Rule of Evidence 403.” Id. In Julian, the prior 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 balance, 

and we cannot say that the court abused its discretion in doing so.

Finally, we note that the danger of unfair prejudice was 

low in this case. “Because Rule 413 identifies [the] propensity inference as proper, the chance that the jury will rely on 

that inference can no longer be labeled as ‘unfair’ for purposes 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 appalled by a prior crime the defendant committed rather than 

persuaded that he committed the crime charged,” or “because they think the defendant is a bad person generally deserving of punishment.” Id. at 822–23. But the 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 admitted 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 two 
No. 13-3095 13

prior offenses” and “limit emotional testimony from the prior victims.” And at the close of the case, the district court instructed the jury to “[k]eep in mind that the defendant is on 

trial here for abusive sexual contact, not for the other 

crimes.” In light of the nature of the prior assaults, the manner in which the evidence was presented, and the jury instructions, a jury would have been unlikely to use the evidence for an improper purpose.

In sum, Erramilli’s prior sexual assaults were admissible 

under Rule 413 because they were relevant to prove his propensity to commit the charged offense, as well as the requisite intent for that offense, and the district court did not 

abuse its discretion in refusing to exclude the evidence under Rule 403.

B. JURY INSTRUCTION

“We review de novo whether a challenged jury instruction fairly and accurately summarized the law, but the trial 

court’s decision to give a particular instruction is reviewed 

for an abuse of discretion.” United States v. Lawrence, --- F.3d 

----, 2015 WL 3463089, at *8 (7th Cir. Jun. 2, 2015). “The district 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) (internal quotation marks omitted). “We will reverse only if the 

instructions, taken as a whole, misled the jury.” Lawrence, 

2015 WL 3463089, at *8.

Before trial, the government proposed the following jury 

instruction regarding the use of Erramilli’s prior sexual assaults:
14 No. 13-3095

You have heard evidence that the defendant 

committed crimes other than the ones charged 

in the indictment. Before using this 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 evidence on any matter to which it is relevant. 

Keep in mind that 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 developed by a 

committee appointed by this court. See Committee on Federal 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_Instr/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 incorporates Rule 413’s statement that such evidence may be 

considered “on any matter to which it is relevant.”

Concerned that the jury might use his prior sexual assaults for an improper purpose, such as convicting him because he is a bad person, Erramilli asked the district court to 

re-insert the admonition from the pattern 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 be 
No. 13-3095 15

considered “on any matter to which it is relevant,” it could 

not be considered “for any other purpose.” Instead, the district 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 

the 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 because it left open the possibility that the jury might use the 

evidence for an improper purpose. But the jury was instructed to keep in mind that Erramilli was “on trial here for abusive 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 evidence 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 relevant 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 instruction the way it did.

III. CONCLUSION

The district court did not abuse its discretion in admitting Erramilli’s prior sexual assaults under Rule 413 or in instructing the jury regarding those prior assaults. Therefore, 

Erramilli’s conviction is AFFIRMED.