In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1012

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DONALD ZAWADA,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Indiana, South Bend Division.

No. 3:06-CR-00120(01)RM—Robert L. Miller, Jr., Chief Judge.

ARGUED OCTOBER 15, 2008—DECIDED DECEMBER 18, 2008

Before EASTERBROOK,Chief Judge, and COFFEY and WOOD,

Circuit Judges.

WOOD, Circuit Judge. In this case, as in United States v.

Davey, No. 07-3533 (issued today), we must decide what

it takes to commit the offense of attempting to violate the

statute that prohibits knowingly persuading, inducing,

enticing, or coercing a minor to engage in criminal sexual

activity, see 18 U.S.C. § 2422(b). A jury found Donald

Zawada guilty of attempting to violate both § 2422(b) and
2 No. 08-1012

18 U.S.C. § 1470, which prohibits knowingly transferring

obscene material to a person under the age of 16. There

is ample evidence in the record to support the jury’s

verdict on the latter offense. Our review of the § 2422(b)

conviction on this point is for plain error only, as we

explain later. From that perspective, we have no trouble

concluding that the steps Zawada took to bring about

a forbidden sexual encounter with a minor were substantial enough to support the attempt conviction. We

therefore affirm.

I

Like Davey, Zawada’s downfall came about through

an Internet sting operation. In May 2006, someone using

the name “plannerdude97” entered a Yahoo! chat room

and made contact with “southbendkelsey13” (to whom

we refer as “Kelsey” for simplicity). Kelsey purported to

be a 13-year-old girl, but in reality “she” was Commander

Mitchell Kajzer of the High Tech Crimes Unit of the St.

Joseph County (Indiana) Prosecutor’s Office. Over the next

three months, Kelsey and “plannerdude97” had nine

conversations using instant messaging; in addition, Kelsey

had three more such conversations with “beckerb003.”

During “her” first conversation with “beckerb003,” Kelsey

learned that he was the same person as “plannerdude97.”

(We therefore refer to “plannerdude97” to include both

screen names.)

At trial, Zawada did not dispute the fact that the online

messages shared between “plannerdude97” and Kelsey

were aimed at enticing Kelsey to engage in sexual activity.
No. 08-1012 3

Nor did he dispute that some of the images that

“plannerdude97” sent to Kelsey, either directly or by use

of a link, were obscene. Instead, he attempted to

persuade the jury that he was not the person associated

with those names. Zawada was 44 years old at the time

of these events, living in Rolling Meadows, Illinois. At one

point during the sting operation, a female officer posing

as Kelsey placed a telephone call to a male believed to

be “plannerdude97.” The tape of that conversation indicates that the man identified himself as Tom or Daniel.

The call lasted eight minutes, but it was not traced to a

particular telephone or address. (Later, a trial witness

who worked with Zawada identified him as the male

speaker.) The police were able to trace the internet protocol

address (“IP address”) for the emails that “plannerdude97”

sent to Kelsey on June 8, 2008. Cmdr. Kajzer learned that

this IP address was registered to SBC Internet, an internet

services provider. He then sent a subpoena to SBC Internet

requesting all account information for the account associated with that IP address. SBC Internet’s response led

him to 2802 Flicker Lane, in Rolling Meadows. Cmdr.

Kajzer also learned that one name associated with the

Flicker Lane address was that of Donald Zawada.

The Government had additional evidence tying Zawada

to “plannerdude97.” On August 21, 2006, Cmdr. Kajzer

and Special Agent Allen Tiffin of the United States Secret

Service drove to 2802 Flicker Lane and established surveillance there. At approximately 6:40 p.m., a car pulled

into the driveway; the driver was Diane Zawada, and the

passenger was Donald. Diane Zawada gave the officers

permission to look at the desktop computer located inside
4 No. 08-1012

the residence. That computer was connected to the

Internet using a DSL service, and it was equipped with

a router. The officers also took Donald Zawada’s backpack, which he had with him in the car. They advised him

of his constitutional rights, and after he waived those

rights, he spoke briefly with the officers and allowed them

to look into the backpack. There they found a laptop

computer, a thumb drive, a network cable card, and a

wireless network card.

A forensic examination of the laptop revealed that

Yahoo! Messenger was installed on it, and that Messenger

had last been accessed on August 21, 2006, the day of

Zawada’s arrest. In addition, located in the Yahoo! directory on the laptop were the screen names “plannerdude97”

and “beckerb003.” These were the only two screen names

the investigators found. Stored on the computer was an

excerpt of an August 17 online conversation between

“beckerb003” and Kelsey and the Yahoo! member profile

of “southbendkelsey13.” Zawada had also taken the

precaution of installing the program History Kill on his

laptop. As the name suggests, this is a program that

claims to be able securely to delete information from

the computer by overwriting it in a way that makes the

old data unrecoverable. Finally, Cmdr. Kajzer ran a trace

route to determine where the nearest router for

“plannerdude97” and “beckerb003” was located. He

found one a short distance from the Flicker Lane home,

northeast of Naperville, Illinois.

During the on-line conversations, Zawada asked Kelsey

if she wanted to “make a date,” and, if so, whether she
No. 08-1012 5

was using some kind of birth control measure. Kelsey

said that she was interested and offered her telephone

number. That was what prompted the call with the female

officer. During that conversation, Zawada told Kelsey

that he would visit her “one of these days, if not tomorrow.” They discussed the need to work around both

Zawada’s work schedule and that of Kelsey’s mother. They

also chatted about what they would do once they were

together. In the end, however, they never set a firm time

and place for a meeting, and no meeting ever occurred.

Zawada’s arrest on August 21 brought an end to the

ruse. Interestingly, Cmdr. Kajzer testified that August 21,

2006, was the last time he had a conversation with

either “plannerdude97” or “beckerb003.”

II

We consider first Zawada’s conviction under § 2422(b)

for attempting to entice (etc.) a minor to engage in a

criminal sexual act. As in Davey, supra, there are two

critical questions: first, did Zawada preserve his right

to complain that his actions were not substantial enough

to amount to an attempt to commit the crime, and

second, under the appropriate standard of review, does

the record support a finding of the required substantial

step. This court’s recent decision in United States v. Gladish,

536 F.3d 646 (7th Cir. 2008), provides our starting point.

In Gladish, we held that mere talk in an Internet chat

room is not enough to support a conviction for an

attempt to violate § 2422(b). Instead, more concrete measures such as making arrangements for meeting the
6 No. 08-1012

(supposed) girl, agreeing on a time and place for a

meeting, making a hotel reservation, purchasing a gift, or

traveling to a rendezvous point, are necessary. See 536

F.3d at 649; see also Davey, No. 07-3533, [sl. op. at 9-10].

Gladish also recognizes that child sexual abuse is often

effectuated through a period of “grooming” and sexualization of a relationship. 536 F.3d at 649. We reversed the

conviction for an attempt to entice a minor into a sexual

encounter with directions to acquit, because “hot air is

all the record shows.” Id. at 650.

In supplemental briefs filed after oral argument in this

case, counsel for Zawada argues that Zawada did not

forfeit his right to raise an argument based on Gladish

largely because Gladish had not yet been decided at the

time of trial and also because Zawada argued generally

that the evidence was insufficient to support a conviction. He notes that the jury was instructed that it had to

find a substantial step toward the commission of an act

of enticement. But Zawada’s insufficiency argument

relied almost entirely on his theory that the Government

could not prove that he was the wrongdoer. He did not

focus on the substantial step element. The fact that

Gladish had not been decided does not help him. If anything, the fact that there was an instruction on the “substantial step” issue demonstrates that the argument was

available had counsel thought to make it. We conclude,

on this record, that Zawada forfeited any argument that

he might have made along the lines discussed in Gladish.

That means that we can consider this question only

through the lens of plain error. Zawada must show (1) that
No. 08-1012 7

there was error, (2) that the error was plain (in the sense of

obvious), (3) that the error affected his substantial rights,

and (4) that, if the first three points are established, the

error seriously affects the fairness, integrity, or public

reputation of the judicial proceedings. See United States v.

Olano, 507 U.S. 725, 730-35 (1993). Although Zawada makes

a valiant effort in his supplemental brief to convince us

that his case meets these demanding criteria, we cannot

agree with him.

Unlike Davey, Zawada never traveled to a pre-assigned

rendezvous point in order to meet Kelsey. But, as we

noted in Gladish, “[t]ravel is not a sine qua non of finding

a substantial step in a section 2422(b) case.” 536 F.3d at

649. Zawada and Kelsey had a relatively concrete conversation about making a “date,” and they discussed a

specific date and time of day that they thought would

work. Zawada checked on the intimate detail of Kelsey’s

birth control practices, and he asked her whether he

should bring some kind of protection with him. In the

end, their plans never gelled, but this is somewhat closer

to a substantial step than the “hot air” and nebulous

comments about meeting “sometime” that took place in

Gladish.

Even if we were to conclude that the evidence of

Zawada’s actions falls short of the standard described in

Gladish, we cannot say that it is so wanting that it meets

the second element of the plain error test. Nor can we

say that a conviction resting on the evidence that was

before the jury would amount to a manifest miscarriage

of justice. The jury was properly charged on all elements
8 No. 08-1012

of the offense, including the need to find a substantial step

toward completion of the offense, and it so found. Zawada

talked with Kelsey many times, and the jury might have

viewed those conversations as “grooming” efforts. We

therefore find no plain error with respect to the substantial step requirement.

Zawada’s primary argument, both before the district

court and on appeal, has always been that the evidence

was not sufficient to show that he was “plannerdude97”

and “beckerb003.” At this stage, however, we must view

the evidence in the light most favorable to the jury’s

verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The

account of the facts that we have already furnished is

enough to show that the jury had ample evidence before

it that permitted it to find that Zawada was the one

chatting with Kelsey. Nothing more need be said.

Zawada also argues that the district court went beyond

the boundaries established by FED. R. EVID. 403 when it

permitted the Government to introduce the images that

he sent to Kelsey and to publish to the jury the texts of

the instant-message conversations. We see no abuse of

discretion, however. The photographs were relevant to

both the § 2422(b) charge and to the § 1470 charge. With

respect to the former, they helped the Government to

prove that Zawada was trying to entice Kelsey into engaging in unlawful sexual activity. With respect to the

latter, the photographs helped to prove that Zawada was

sending obscene matter to her. While these materials

undoubtedly made a significant impression on the jury,

they were not unfairly prejudicial. See United States v.
No. 08-1012 9

Burt, 495 F.3d 733, 740 (7th Cir. 2007) (“There is a difference between evidence that brings unfair prejudice and

evidence that is damning.”).

III

Zawada offers no other reason to overturn his conviction under § 1470 other than the identification point that

we have already rejected. We therefore AFFIRM the judgment of the district court.

12-18-08