In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2329

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES T. MORRIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 07–CR–313–001—J.P. Stadtmueller, Judge.

 

SUBMITTED NOVEMBER 13, 2008—DECIDED DECEMBER 5, 2008

 

Before POSNER, ROVNER, and EVANS, Circuit Judges.

POSNER, Circuit Judge. The defendant pleaded guilty to

attempting to transport a minor (a girl of 15) across state

lines to engage in illegal sexual conduct, in violation of 18

U.S.C. §§ 2423(a), (e), and was sentenced to 10 years in

prison. But he reserved the right to appeal the district

court’s refusal to dismiss the indictment. The ground of his

appeal is that the person he thought was a minor was
2 No. 08-2329

neither a minor nor a law enforcement officer posing as one

but was instead a private citizen. His lawyer has filed an

Anders brief asking us to let him withdraw from representing the defendant because neither that nor any other ground

of appeal is nonfrivolous. Anders v. California, 386 U.S. 738

(1967). We agree, but as the precise issue presented by the

appeal has not arisen before, we shall explain our decision

in this brief opinion.

In October of 2007 the defendant attempted to contact a

minor at the minor’s MySpace page. The minor’s mother,

Mrs. Runningwolf, responded to this unwelcome development by creating her own MySpace page, in which she

pretended to be a 15 year old named “Kandice” (not her

daughter’s name). On October 22, the defendant began

emailing “Kandice” and they began chatting online on

almost a daily basis. He asked her to have sex with him, and

she agreed. On November 2, Mrs. Runningwolf reported

him to the FBI. Two days later he bought a bus ticket for

“Kandice” to travel to meet him, and mailed it to her. The

FBI picked up the ticket and assumed “Kandice” ’s identity

and continued the online chats. On November 19 or thereabouts, the Bureau arrested the defendant.

The case law uniformly holds that the fact that a defendant is mistaken in thinking that the person he is trying to

entice is underage is not a defense to a charge of attempted

illegal sexual contact with a minor. E.g., United States v. Coté,

504 F.3d 682, 687 and n. 6 (7th Cir. 2007), and cases cited

there. The reported cases all involve law enforcement

officers posing as minors, whereas the initial girl impersonator in this case was a private citizen. But we cannot see
No. 08-2329 3

what difference that could make. It is true that Application

Note 1 to the federal sentencing guideline for criminal

sexual abuse of a minor under the age of 16 (U.S.S.G.

§ 2A3.2) mysteriously defines “minor” to include “an

undercover law enforcement officer who represented to a

participant that the officer had not attained the age of 16

years,” and there is no similar reference to an impersonator

who is not a law enforcement officer. But the Sentencing

Commission explained that the purpose of the definition

was merely to “clarify[] that ‘victim’ includes an undercover

police officer who represents to the perpetrator of the

offense that the officer was under the age of 16 years. This

change was made to ensure that offenders who are apprehended in an undercover operation are appropriately

punished.” U.S.S.G. App. C, vol. II, Amendment 592, p. 49

(2003). In other words, the intention was to scotch any

defense of impossibility, United States v. Robertson, 350 F.3d

1109, 1116-19 (10th Cir. 2003)—and rightly so because the

offender’s dangerousness is unrelated to whether the decoy

was a child or an adult. See United States v. DeCarlo, 434 F.3d

447, 457-59 (6th Cir. 2006). The logic of the guideline

definition embraces an impersonator who is not an

officer—and anyway the defendant is not complaining

about his sentence.

The purpose of the law of attempt is to nail a person who

by his conduct has shown that had the attempt not been

interrupted he would very likely have completed the crime

that he attempted. As we explained recently in United States

v. Gladish, 536 F.3d 646, 648 (7th Cir. 2008) (citations omitted), “a person who demonstrates by his conduct that he has

the intention and capability of committing a crime is
4 No. 08-2329

punishable even if his plan was thwarted. The ‘substantial

step’ [required for conviction of attempt] toward completion

is the demonstration of dangerousness, and has been

usefully described as ‘some overt act adapted to, approximating, and which in the ordinary and likely course of

things will result in, the commission of the particular crime.’

You are not punished just for saying that you want or even

intend to kill someone, because most such talk doesn’t lead

to action. You have to do something that makes it reasonably clear that had you not been interrupted or made a

mistake . . . you would have completed the crime. That

something marks you as genuinely dangerous—a doer and

not just” a talker.

There is, we grant, a legitimate concern with

vigilantism—with private citizens conducting stings

without the knowledge or authorization of the authorities.

The vigilantes’ aim might be to blackmail any offender

whom they detect rather than to turn him over to the law

enforcement authorities for prosecution. Cf. United States v.

Nardello, 393 U.S. 286, 287 (1969); United States v. Frost, 139

F.3d 856, 857 and n. 1 (11th Cir. 1998). Or they might botch

their investigation, alerting the offender in time for him to

elude justice. But stings, including private ones, must be

distinguished from entrapment. Stings are schemes for

getting a person who is predisposed to criminal activity to

commit a crime at a time or place in which he can be

immediately apprehended; they are an essential tool of law

enforcement against crimes that have no complaining

victim. Entrapment refers to the use of inducements that

cause a normally law-abiding person to commit a crime,
No. 08-2329 5

and is a defense when the entrapment is conducted by law

enforcement officers or their agents. As we explained in

United States v. Hollingsworth, 27 F.3d 1196, 1200 (7th Cir.

1994) (en banc), “The defendant must be so situated by

reason of previous training or experience or occupation or

acquaintances that it is likely that if the government had not

induced him to commit the crime some criminal would have

done so; only then does a sting or other arranged crime take

a dangerous person out of circulation. A public official is in

a position to take bribes; a drug addict to deal drugs; a gun

dealer to engage in illegal gun sales. For these and other

traditional targets of stings all that must be shown to

establish predisposition and thus defeat the defense of

entrapment is willingness to violate the law without

extraordinary inducements; ability can be presumed. It is

different when the defendant is not in a position without the

government’s help to become involved in illegal activity.

The government ‘may not provoke or create a crime, and

then punish the criminal, its creature.’ Casey v. United States,

276 U.S. 413, 423 (1928) (Brandeis, J., dissenting).”

There is no defense of private entrapment, United States

v. Manzella, 791 F.2d 1263, 1269 (7th Cir. 1986), but that is

of no great consequence in regard to sexual predation

because the concern there is with the sting, not entrapment,

though these are often and confusingly conflated. Thus we

read that “the inexpensive, relatively invisible nature of

[Internet sting operations] . . . permits private entrapment

to become rampant, which is not the case in off-line settings

or with other crimes. On-line vigilantism against

pedophiles, in fact, has taken on unexpected proportions.
6 No. 08-2329

Traditional entrapment rules do not allow consideration of

‘private entrapment.’ Individuals tempted, induced or set

up by anyone besides a state agent cannot raise an entrapment defense to criminal charges. Historically this was not

a problem because most individuals, even if they had the

motivation to entrap others, did not have the resources to

orchestrate a sting while protecting themselves from

retaliation if caught. Private entrapment was therefore a

rare occurrence. The Internet has changed this, for better or

worse, at least for the crimes perpetrated partly on-line.”

Dru Stevenson, “Entrapment by Numbers,” 16 U. Fla. J.L. &

Public Policy 1, 70 (2005). Private sting operations may

become even more common now that there are organizations like “Perverted Justice,” which trains adult volunteers

to pose as children in chat rooms and unmask sexual

predators (see www.perverted-justice.com, visited Nov. 18,

2008), and TV shows like Dateline NBC’s “To Catch a

Predator” (see www.msnbc.msn.com/id/10912603/, visited

Nov. 18, 2008), which popularizes sexual-predation stings.

A private stinger can find himself accused of committing

a crime in his attempt to catch others. There have been child

pornography cases in which the defendant argued (unsuccessfully, however) that he possessed pornography only in

order to help the police catch the real pornographer. See,

e.g., United States v. O’Keefe, 461 F.3d 1338 (11th Cir. 2006)

(the defendant claimed to possess child pornography for

use in a personal crusade against sexual predators); United

States v. Polizzi, 545 F. Supp. 2d 270 (E.D.N.Y. 2008) (the

defendant claimed that he had intended to turn his collection of child pornography over to the police to help children). In an unpublished decision in a case rather like this
No. 08-2329 7

one, the defendant argued “that his intent in sending the

sexually explicit tape to ‘Cathy’ was to elicit a similar tape

from her so he could give the police evidence that would

confirm his suspicions. The ‘private sting operation’ defense

Solomon tendered requires the defendant’s reasonable

belief that he committed the charged conduct while acting

as an agent for law enforcement authority. Solomon conceded he went to the police after he reproduced and mailed

the tape to [’Cathy’]. Thus, he could not reasonably have

believed when he copied and sent the tape that he was

acting as an agent for the police.” United States v. Solomon,

1992 WL 25455, at *2-3 (9th Cir. 1992) (citation omitted).

But if the law wants to deter private sting operations, real

or phony, the way to do that is “by imposing criminal

liability on private parties who encourage crimes (via

solicitation, conspiracy, and complicity),” Richard H.

McAdams, “The Political Economy of Entrapment,” 96 J.

Crim. L. & Criminology 107, 166 (2005), rather than by letting

another guilty person—the object of the successful

sting—get away with his crime. Just as there is no defense

of private entrapment, so there is no exclusionary rule

applicable to evidence obtained improperly by private

persons. United States v. Hall, 142 F.3d 988, 993 (7th Cir.

1998); United States v. Jarrett, 338 F.3d 339, 341-42, 345 (4th

Cir. 2003); United States v. Steiger, 318 F.3d 1039, 1045-46

(11th Cir. 2003).

This case is particularly remote from the concerns with

Internet vigilantism, since the “vigilante” was a mother

seeking to protect her daughter from a sexual predator. It

might have been prudent for her to have notified the FBI as
8 No. 08-2329

soon as she learned that a 48-year-old stranger was trying to

contact her daughter, rather than to conduct her own

investigation, which because she was an amateur at investigation might have scared off the defendant before there was

enough evidence to prosecute him. But even if she was

imprudent or precipitate, that cannot provide him with a

defense.

The motion is granted and the appeal dismissed.

12-5-08