In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2880

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CARL A. COURTRIGHT, III,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:07-cr-30179—David R. Herndon, Chief Judge.

ARGUED OCTOBER 29, 2010—DECIDED JANUARY 13, 2011

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Carl Courtright was convicted

of production, possession, and receipt of child pornography and sentenced to life plus ten years in prison.

Courtright now appeals his conviction, claiming that

evidence of a prior sexual assault was erroneously admitted at trial and that certain jury instructions were

improper. While we agree that the evidence of Courtright’s prior sexual assault was admitted erroneously and
2 No. 09-2880

that some of the jury instructions may have been incorrect, reversal is unnecessary because these errors were

harmless. As such, we affirm Courtright’s conviction.

I. BACKGROUND

Courtright fashions himself as something of an

amateur photographer. Unfortunately, the subjects of his

photographs are underage girls engaged in various

sexual activities. Courtright first took up his hobby in

1998, when he met a fifteen-year-old girl, L. Miller,

through his roommate. After forging a friendship with

Miller, Courtright persuaded Miller to pose for explicit

photographs. As part of Courtright’s photo shoot, he

directed Miller into various poses and took pictures of

her exposed breasts and genitalia. At one point during

the shoot, Courtright told Miller that he had some

medical knowledge and needed to examine her. He then

inserted his fingers into her vagina. After this conduct

came to light, Courtright pled guilty to aggravated sexual

abuse pursuant to ILCS 5/12-16(a)(2). As a result of that

conviction, Courtright had to register as a sex offender.

In 2007, the Illinois Attorney General began a probe

of social networking sites to determine whether registered

sex offenders were active users. This investigation

revealed that Courtright had an account on Myspace.com.

Officers used the Myspace.com records to learn Courtright’s IP address, which they fed into a database of

addresses found to have offered child pornography

for distribution on the Internet. The IP address Courtright used to check his Myspace.com account matched
No. 09-2880 3

To Catch a Predator was an NBC television program that 1

tracked sexual predators as they used the Internet to engage in

explicit communications with apparent minors. Each episode

typically culminated with the predator arriving at the home

of the presumed minor, often carrying alcohol and contraceptives in a ubiquitous brown bag. The predator was greeted

first by a “decoy”—an adult actor who appeared underage—and

then by host Chris Hanson and a television crew. See Comment, Loren Rigsby, A Call for Judicial Scrutiny: How Increased

Judicial Discretion Has Led to Disparity and Unpredictability in

Federal Sentencing for Child Pornography, 33 Seattle U. L. Rev.

1319, 1338 (2010).

one used to download child pornography through a filesharing program called Limewire. Officers used this

information to obtain a warrant to search Courtright’s

residence, where he lived with his parents.

During the search of Courtright’s home, officers found

several computers and computer equipment. A forensic

preview of a laptop found in Courtright’s bedroom

showed that the hard drive contained child pornography

images downloaded through Limewire. In subsequent

interviews, Courtright admitted that he was the only

user of Limewire in the home and of the laptop found in

his bedroom. He went on to state, somewhat ironically,

that he downloaded the images after watching an episode

of To Catch a Predator. He claimed that he was curious 1

about how pornographic images were disseminated and

that, after satisfying his curiosity, he immediately deleted

the images.

A more detailed analysis of the computers seized from

Courtright’s home revealed a large inventory of images
4 No. 09-2880

depicting child pornography, many of which were not

deleted. Some of the images were found on a desktop that was password-protected for Courtright’s sole

access, while others were found on a laptop that Courtright had already conceded was for his lone use. The

computers’ records also showed that, on multiple occasions, the pornographic images were opened around the

same time that Courtright’s online bank account or social

networking profile was accessed. An analysis of the

image files showed that the majority of them were downloaded off of the Internet, while eleven others were transferred to the hard drive directly from a Hewlett-Packard

camera. The same girl was depicted in each of the

camera photos, but she was not readily identifiable—her

face was obscured and bandages were applied to identifying marks.

Officers later identified the mystery girl as S.J., a

fourteen-year-old who lived with her father in the

garage of a residence owned by Courtright’s parents.

During a teary interview, S.J. recounted the events that

led to the photos being taken. She told officers that

Courtright first bought her gifts and let her sleep in a

bedroom he often occupied in the adjacent house. After

the two became acquainted, Courtright offered to give

her lotion rubs and massages, going so far as to rub

lotion on her buttocks while telling her to “think of him

as a doctor” on one occasion.

S.J. claimed that Courtright eventually asked her to

pose for explicit photos. After initially rebuking Courtright’s advances, S.J. agreed. At Courtright’s direction,
No. 09-2880 5

S.J. sat in a director’s chair and posed in various stages

of undress while Courtright took pictures of her. For

one photo, Courtright told S.J. to spit on her hand and

masturbate. S.J. told officers that Courtright also put his

fingers in her vagina during the shoot, telling her that

he knew “medical stuff” and needed to “examine” her.

Officers later confronted Courtright with this information. While he admitted to owning a Hewlett-Packard

camera, he denied ever taking photos of S.J. and had no

explanation for how the photos got onto his hard drive.

Based on information from Courtright’s computers,

officers also learned that Courtright had been ordained

as a minister by an online company. He used this status

to create an online ministry and then manufactured fake

donation checks. Courtright deposited the checks into

an account and then used the sums to make a number

of large purchases.

On February 18, 2009, Courtright was charged with one

count of production of child pornography, two counts of

possession of child pornography, one count of receipt of

child pornography, and one count of bank fraud. Prior

to trial, the government filed a notice indicating that it

planned to introduce evidence of Courtright’s prior

sexual assault of L. Miller and of Courtright’s status as

a registered sex offender. Courtright conceded that his

status as a sex offender was intertwined and admissible,

and the district court admitted it on that basis. But

Courtright objected to the admission of his prior sexual

assault. The district court ultimately agreed with the

government and, after determining that the evidence
6 No. 09-2880

was relevant and not unduly prejudicial, admitted it

pursuant to Rule 413.

The trial began on March 2, 2009, and lasted five days.

On the first day of testimony, the district court gave

an erroneous elements instruction to the jury, to which

the government objected. On the following day, the

district court recognized the problem and corrected the

elements instruction, despite Courtright’s argument

that the initial instruction was correct.

During the remainder of the trial, the government called

fourteen witnesses. The witnesses included forensic

experts and investigating officers who had participated

in the investigation, who testified to the contents of the

hard drives and Courtright’s statements to law enforcement, respectively. S.J. also testified as to all of the

details she had previously told officers, with one exception—she did not state that Courtright had inserted his

fingers into her vagina during the photo shoot. S.J.’s

father testified that Courtright had asked him about

taking photographs of S.J. Courtright’s cellmate testified

that Courtright had admitted to taking pictures of a

young girl. Finally, L. Miller testified about the details

of Courtright’s prior sexual assault, with the district

court giving a limiting instruction before and after her

testimony. Courtright presented no witnesses.

Following closing arguments, the jury found Courtright

guilty of all counts. The district court sentenced him to life

plus 120 months’ imprisonment for the production

count, 240 months’ imprisonment for the possession

counts, 480 months’ imprisonment for the receipt count,
No. 09-2880 7

and 360 months’ imprisonment for the fraud count.

Courtright timely appealed his conviction.

II. ANALYSIS

On appeal, Courtright argues that the district court

made a number of errors warranting a new trial. He

claims that evidence of his prior sexual assault was erroneously admitted, that a number of the jury instructions were improper, and that the cumulative effect of

these errors deprived him of a fair trial. We will

address each argument in turn.

A. Prior Bad Act

Courtright’s first claim is that the district court erred

when it admitted evidence of his prior sexual assault.

We review a district court’s interpretation of the rules of

evidence de novo and its decision to admit evidence for

an abuse of discretion, United States v. Rogers, 587 F.3d

816, 819 (7th Cir. 2009), mindful that evidentiary errors

do not require reversal if they were harmless, United

States v. Taylor, 604 F.3d 1011, 1016 (7th Cir. 2010).

The district court admitted the prior sexual assault

pursuant to Federal Rule of Evidence 413. Rule 413 provides, in relevant part:

In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of

the defendant’s commission of another offense or

offenses of sexual assault is admissible, and may
8 No. 09-2880

be considered for its bearing on any matter to

which it is relevant.

Fed. R. Evid. 413(a). In admitting the evidence, the

district court interpreted the word “accused” broadly,

holding that Rule 413 is triggered when a defendant has

been verbally accused of sexual assault during the course

of an investigation into a separate offense. Courtright

takes issue with this interpretation of Rule 413, arguing

that Rule 413 applies only when a party has been charged

with an “offense of sexual assault” in the indictment.

We do not agree with the district court’s reading of

Rule 413. The district court’s interpretation was based

on the fact that Rule 413 uses the word “accused” instead

of “charged” to indicate when it is triggered. The government defends the district court’s reading by noting that,

because the rule drafters use the word “charged” elsewhere, the use of the word “accused” in this instance

should be given broader effect. We believe the government makes too much of this distinction—at the time

Rule 413 was drafted (and today), the word “accused” was

often used in a technical sense to describe someone

who was charged with a crime. See Black’s Law Dictionary

22-23 (6th ed. 1990) (defining “accuse” as “to bring a formal

charge against a person”); Webster’s Third New International

Dictionary 14 (1986) (defining “accuse” as, among other

things, “to charge with an offense judicially or by public

process”). There is nothing in the text or committee notes

of Rule 413 to indicate that the word “accused” was used

in a broader fashion.
No. 09-2880 9

The more difficult question is whether Courtright was 2

indeed charged with an “offense of sexual assault.” Rule 413

defines “offense of sexual assault” quite expansively, stating

that it includes a crime “that involved . . . contact, without

consent, between any part of the defendant’s body or an

object and the genitals or an anus of another person.” We

can imagine an argument that Courtright’s charge of

production of child pornography “involved” a sexual assault

because S.J. initially reported that Courtright touched her

vagina during the photo shoot. Cf. United States v. Julian, 427

F.3d 471, 486 (7th Cir. 2005) (noting the possible breadth of

the “involved” language). But neither side made this argument, so we need not address it today. 

We find additional support for this reading of Rule 413

in nearby Rule 412. Rule 412 permits the admission of

a victim’s sexual behavior by the accused in certain

limited circumstances. The committee notes to Rule 412

specify that, for this Rule, “accused” is meant in a

broader, “non-technical sense,” and that there is “no

requirement that there be a criminal charge pending

against the person or even that the misconduct would

constitute a criminal offense” before evidence of a

victim’s sexual behavior can be admitted. Fed. R. Evid.

412 advisory committee’s note. Rule 413 provides no

similar clarification for the use of the word “accused,” nor

do the rest of the rules.

We therefore conclude that Rule 413 uses the term

“accused” in the more narrow, technical sense generally

invoked throughout the federal rules. See 23 Charles 2

Alan Wright & Michael W. Graham, Federal Practice and
10 No. 09-2880

Procedure § 5413, at 549-50 (Supp. 2010) (“Since [Rule 413]

does not employ the language of Revised Rule 412, it

seems reasonable to suppose that the words are used in

the technical sense; that is, the evidence of other sexual

crimes is only admissible against a criminal defendant

and only if the crime charged is sexual assault.”).

So we are left with the district court’s admission of

evidence pursuant to an erroneous interpretation of

Rule 413. “[A]n error of law is, by definition, an abuse

of discretion.” Almonacid v. United States, 476 F.3d 518,

521 (7th Cir. 2007). But this error would be harmless, and

no new trial would be necessary, if the evidence was

admissible under another rule. United States v. Albiola, 624

F.3d 431, 437 (7th Cir. 2010). The government argues

that the error was harmless because the evidence was

also admissible pursuant to Rule 404(b). Evidence is

admissible under Rule 404(b) if:

(1) the evidence is directed toward establishing

a matter in issue other than the defendant’s propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough

and close enough in time to be relevant to the

matter in issue; (3) the evidence is sufficient to

support a jury finding that the defendant committed the similar act; and (4) the evidence has

probative value that is not substantially outweighed by the danger of unfair prejudice.

United States v. Stotler, 591 F.3d 935, 941 (7th Cir. 2010).

The government claims that the first prong is satisfied

because the prior bad act evidence was admissible to
No. 09-2880 11

prove Courtright’s intent, motive, or identity. We agree

that the evidence was at least probative of Courtright’s

motive. L. Miller’s testimony shows that, in the past,

Courtright engaged in sexually explicit contact with an

underage girl. This prior instance of sexual misconduct

tends to establish a motive for the crime against S.J.:

Courtright may have induced S.J. to take the pictures so

that he could again achieve sexual gratification with a

minor. See United States v. Sebolt, 460 F.3d 910, 917 (7th

Cir. 2006) (finding that prior bad acts toward a young

victim may show that a defendant has a sexual interest

in that age group and therefore provide evidence of a

motive to commit future sexually motivated crimes

against children); United States v. Cunningham, 103 F.3d

553, 556 (7th Cir. 1996) (“Most people do not have a

taste for sexually molesting children. As between two

suspected molesters, then, only one of whom has a

history of such molestation, the history establishes a

motive that enables the two suspects to be distinguished.”).

The government also claims that the second and third

prongs are satisfied, and we agree. Admittedly, there was

one distinction between the two crimes—in the first,

Courtright actually sexual assaulted the victim during the

course of the photo shoot, while in the second he only

encouraged her to touch herself in an explicit manner

while taking the photographs. But the two crimes are

still similar in important respects. In both crimes, the

perpetrator took time to develop a relationship with the

victims, bought gifts for them, and engaged in sexually

explicit acts with them under the auspices of providing medical advice. In addition, although there was
12 No. 09-2880

a nine-year gap between the assault of L. Miller and

the photo shoot with S.J., Courtright was incarcerated—and thus incapacitated—for a large part of that

time. Finally, Courtright was found guilty by a jury of

the prior bad act.

The government finally argues that the last prong is

satisfied because the district court found the evidence

probative, analyzed it under Rule 403, and determined

that any prejudice could be cured via a limiting instruction. But, as Courtright correctly points out, the trial

court conducted a Rule 403 prejudice analysis on the

premise that the evidence was being admitted under

Rule 413. Rule 413 expressly allows the government to

use prior bad acts to show that a defendant acted in

conformity therewith—in other words, for propensity

purposes. Accordingly, a Rule 413 prejudice analysis

is limited and focuses on other sources of prejudice.

Rogers, 587 F.3d at 823.

Unlike a prejudice analysis for Rule 413, a Rule 404(b)

prejudice determination also evaluates whether the

evidence will be improperly used by the jury as proof

of propensity. Id. The risk of a jury using the evidence

for this purpose is particularly high where, as here, the

prior bad act may establish an addiction to something—like pyromania, drug use, or sexual gratification

through the assault of minors—and thus a motive to

commit that crime again. Cunningham, 103 F.3d at 556.

Especially in sex crimes, motive and propensity often

dovetail, and a court must be careful “about admitting

under the rubric of motive evidence that the jury is
No. 09-2880 13

likely to use instead as a basis for inferring the

defendant’s propensity.” Id. at 557. The government does

not address this propensity problem in its brief, and “we

are not in the business of formulating arguments for the

parties.” United States v. McClellan, 165 F.3d 535, 550

(7th Cir. 1999). Accordingly, the government’s Rule 404(b)

argument is incomplete and waived.

But even assuming the prior bad act evidence was not

admissible, reversal is unnecessary if the error had no

effect on the outcome of the trial. United States v. Conner,

583 F.3d 1011, 1025 (7th Cir. 2009). We are convinced

that is the case here. Courtright’s status as a sex offender

was already before the jury, and thus the likelihood

that the prior bad act testimony from L. Miller had any

effect on the jury is negligible. More importantly, the

evidence of Courtright’s guilt was overwhelming. See

United States v. Dennis, 497 F.3d 765, 769-70 (7th Cir.

2007) (finding harmless error when there was abundant

evidence of the defendant’s guilt). The images of S.J.,

along with numerous other images of child pornography

and data on the bank fraud scheme, were found on two

computers at Courtright’s home. Courtright admitted

that one of the computers was his, and only Courtright

had access to the second. Courtright also stated to law

enforcement that he had downloaded a number of the

child pornography images found on his hard drives.

Furthermore, S.J. testified that Courtright took the pictures of her, her father testified that Courtright asked

about taking pictures of S.J., and Courtright’s cellmate

testified that Courtright confessed to taking pictures of a

young girl. Finally, Courtright called no witnesses and
14 No. 09-2880

offered no evidence of his innocence, lending further

support to a finding of harmless error. See United States

v. Taylor, 522 F.3d 731, 735 (7th Cir. 2008).

B. Jury Instructions

Courtright’s second claim on appeal is that a number

of the jury instructions were erroneous. Courtright

did not object to these instructions at trial, so we review

for plain error. United States v. Noel, 581 F.3d 490, 499

(7th Cir. 2009). To establish plain error, Courtright must

show that there was an actual error, that the error was

plain, that the error “affect[ed] the defendant’s substantial rights,” and that the error “seriously affect[ed]

the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Canady, 578 F.3d 665, 670

(7th Cir. 2009). Plain error review of jury instructions is

“particularly light handed,” and we will reverse only if

the error was of such a “great magnitude that it probably

changed the outcome of the trial.” United States v.

Moore, 115 F.3d 1348, 1362 (7th Cir. 1997).

Courtright first takes issue with the initial elements

instruction, which was given as a preliminary instruction at the beginning of the trial. That instruction

informed the jury that the government had to prove an

additional element for the production and possession

counts—namely that the “defendant had been previously

convicted of a sex offense in which a minor was the

victim” for the production count and that the “defendant

had a prior conviction . . . relating to aggravated sexual

abuse, sexual abuse, or abusive sexual conduct involving
No. 09-2880 15

a minor . . . or the production, possession, receipt, mailing,

sale, [or] distribution . . . of child pornography” for the

possession count. The government realized the additional elements were erroneous and objected. Courtright

countered that the instruction was appropriate, but the

district court corrected the instruction the following day.

We need not determine whether the initial elements

instruction was erroneous because Courtright has

waived this claim. A defendant waives an objection to a

jury instruction when he affirmatively approves the

instruction at issue. United States v. DiSantis, 565 F.3d

354, 361 (7th Cir. 2009). By opposing the government’s

initial objection to the elements instruction and indicating that the instruction was correct, we conclude

that Courtright approved the initial instruction and

thus foreclosed any appellate review.

Courtright next claims that the corrected jury instruction was erroneous. The argument goes: because the

initial instruction provided that the government had to

show that Courtright engaged in child molestation in

the past, the jury believed that Courtright had actually

engaged in child molestation. Without a clear explanation of the differences between the initial instruction

and the corrected instruction, Courtright claims that this

erroneous belief persisted throughout the trial. We find

this argument unpersuasive for a number of reasons.

First, as discussed above, Courtright sanctioned the

very instruction that produced this purported belief.

Second, and more importantly, an error is not plain

unless it was extraordinary—so “obvious, crucial, and
16 No. 09-2880

egregious that we may and should correct it even though

no objection was made below.” Backwater, Inc. v. PennAmerican Ins. Co., 448 F.3d 962, 965 (7th Cir. 2006). We

do not believe that the district court’s omission of

specific advice regarding the differences between the

initial preliminary instruction and the corrected preliminary instruction clears this hurdle.

Courtright finally claims that the limiting instructions

given before and after L. Miller’s testimony were erroneous, not just because her testimony should not have

been considered by the jury at all, but also because the

language of the instructions improperly suggested

that Courtright was presently charged with a crime of

sexual assault and that he was a child molester. We

need not determine whether these instructions were

erroneous for the simple reason that any error flowing

from them had no effect on the outcome of the trial. See

United States v. Peters, 435 F.3d 746, 754 (7th Cir. 2006). As

we have already noted, the evidence of Courtright’s

guilt was overwhelming, and he has not established that

the jury’s consideration of his prior offense had an appreciable impact on the verdict. Accordingly, we find

that Courtright has failed to establish that the instructions were plainly erroneous.

C. Cumulative Error

Courtright’s final claim on appeal is that, even if each

of the individual errors was harmless, taken together

the errors were so prejudicial as to deprive him of due

process. For Courtright to demonstrate cumulative
No. 09-2880 17

error, he must show that there were at least two errors

committed during the course of the trial and those

errors “so infected the jury’s deliberation that they denied

[him] a fundamentally fair trial.” United States v. Avila,

557 F.3d 809, 821-22 (7th Cir. 2009).

At the end of the day, the only errors Courtright

has established are the admission of his prior sexual

assault of L. Miller under Rule 413 and possibly the jury

instructions related to that admission. Even if we

assume that these interrelated errors suffice to qualify

as two independent errors, reversal is appropriate only

if “the errors, considered together, could not have been

harmless.” Alvarez v. Boyd, 225 F.3d 820, 825 (7th Cir.

2000). Again, there was abundant evidence of Courtright’s guilt, so L. Miller’s testimony and the related jury

instructions could not have had any appreciable impact

on the jury’s verdict. Courtright’s claim of cumulative

error thus fails. See Avila, 557 F.3d at 822.

III. CONCLUSION

For the foregoing reasons, we AFFIRM Courtright’s

conviction.

1-13-11