In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1597

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DONALD J. MCGUIRE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 CR 716-1—Rebecca R. Pallmeyer, Judge.

ARGUED NOVEMBER 9, 2010—DECIDED DECEMBER 2, 2010

Before POSNER, TINDER, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge. The defendant was convicted

by a jury of traveling in interstate and foreign commerce for the purpose of having sex with a minor, and

was sentenced to 25 years in prison. His appeal argues

that while he indeed had sex with minors on trips that

crossed state and national boundaries, sex was not the

purpose of the travel. He further argues that the judge

should have excluded the testimony of other minors,

besides the one whom he was charged with molesting,
2 No. 09-1597

under Rule 403 of the Federal Rules of Evidence, on

the ground that the additional testimony was unduly

prejudicial. He does not challenge his sentence.

McGuire was a prominent Jesuit priest who in 1983

had begun serving as the spiritual director of Mother

Teresa’s order of nuns—the Missionaries of Charity—and

as her confessor. A resident of Canisius House, in

Evanston, Illinois, a dwelling for Jesuit priests, he led

retreats all over the world modeled on the spiritual exercises of Saint Ignatius of Loyola, the founder of the

Jesuit order. In 1997, when his molestation of a boy

named Dominick began, he was elderly—67—and suffering from a long list of diseases, including diabetes

and asthma, and disabilities resulting from frequent

surgeries. He recruited boys such as Dominick to accompany him on his travels to the retreats, explaining that

he needed the boys to carry his bags, to provide him

with medications, physical therapy, and massages, and

to wash his feet.

He used the boys for sex as well. Dominick was a fatherless child of 13 who became the defendant’s ward.

From 1997 to 2001 the defendant engaged in frequent

sexual activity with Dominick, often on trips to retreats;

the details of the activity need not detain us. He engaged

in similar acts with the four other boys who testified,

and indeed with many more. His sexual predation

(which had begun long before—perhaps decades before—his molestation of Dominick began) involved the

following modus operandi: sleeping in the same bed

with the boys; receiving massages from them that began
No. 09-1597 3

innocently but evolved into sexual fondling of him that

he commanded them to perform; displaying pornographic movies and magazines to “educate” the boys

about sex and the “beauty of the human form”; eliciting

confessions that they had masturbated and threatening

to expose as a masturbator any boy who complained

about molestation; and insistence that complaint would

be futile because no one would believe that a priest of

the defendant’s prominence was a pedophile.

The defendant’s religious superiors began to be suspicious of him as early as 1991, though he was not defrocked until 2008. In 1991 they ordered him not to

travel with anyone under the age of 18. In 1995

the threshold was raised to 21 and in 2001 to 30. In 2000

they forbade his having his young assistants stay with

him at Canisius House. He continued to travel with

boys after being forbidden to do so. His defense at trial

was that Dominick had concocted a false claim of sexual

molestation in the hope of obtaining money.

The defendant was charged with violating 18 U.S.C.

§ 2423(b), which is one of four closely related provisions

of the federal criminal code. The four are as follows:

18 U.S.C. § 2421: Whoever knowingly transports

any individual in interstate or foreign commerce, or

in any Territory or Possession of the United States,

with intent that such individual engage in prostitution, or in any sexual activity for which any person

can be charged with a criminal offense, or attempts

to do so, shall be fined under this title or imprisoned

not more than 10 years, or both.
4 No. 09-1597

18 U.S.C. § 2423(a): Transportation with intent to

engage in criminal sexual activity.—A person who

knowingly transports an individual who has not

attained the age of 18 years in interstate or foreign

commerce, or in any commonwealth, territory or

possession of the United States, with intent that the

individual engage in prostitution, or in any sexual

activity for which any person can be charged with a

criminal offense, shall be fined under this title and

imprisoned not less than 10 years or for life.

18 U.S.C. § 2423(b): Travel with intent to engage in

illicit sexual conduct.—A person who travels in

interstate commerce or travels into the United States,

or a United States citizen or an alien admitted

for permanent residence in the United States who

travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another

person shall be fined under this title or imprisoned

not more than 30 years, or both.

18 U.S.C. § 2423(c): Engaging in illicit sexual conduct

in foreign places.—Any United States citizen or alien

admitted for permanent residence who travels in

foreign commerce, and engages in any illicit sexual

conduct with another person shall be fined under

this title or imprisoned not more than 30 years, or both.

Section 2421 is the original Mann Act, as amended in

minor respects. Section 2423(a), intended to protect

minors from sexual predation, mirrors the Mann Act but

imposes more severe penalties. Section 2423(b), the provision under which the defendant was prosecuted, was
No. 09-1597 5

added to expand the protection of minors still further;

it punishes travel in interstate commerce even if no

minor is transported, if the purpose of the travel is sex

with a minor. (Prosecutors frequently use this section to

prosecute persons who cross state lines to rendezvous

with minors whom they meet in online chat rooms.

See, e.g., United States v. Buttrick, 432 F.3d 373 (1st Cir.

2005).) Section 2423(c) was added to punish persons who

travel in foreign commerce and have sex with a minor in

the course of the trip regardless of what the defendant

intended when he set out on it.

It is apparent that if, as the jury found, the defendant

had molested Dominick on their travels, he violated

sections 2421, 2423(a), and 2423(c). E.g., United States v.

Bonty, 383 F.3d 575, 578 (7th Cir. 2004); United States v.

Snow, 507 F.2d 22, 23 (7th Cir. 1974); United States v. Hitt,

473 F.3d 146, 150 (5th Cir. 2006). But inexplicably the

government charged the defendant only with violating

section 2423(b), which requires that the travel be for

the purpose of engaging in illegal sexual activity. This

charging decision (which the government’s lawyer was

unable to explain to us at the oral argument) enabled the

defendant to argue that the purpose of his trips was

merely to conduct retreats; sex was not the purpose

but a welcome byproduct (if the government’s evidence

was believed) of the opportunities that the retreats

created, as the boys were more vulnerable when far

from home and the defendant’s molestation of them

was less likely to be detected by his religious superiors,

who as we know had suspected him for many years of
6 No. 09-1597

being a child molester yet had taken no effective steps

to protect young boys from him.

The courts have had trouble dealing with cases in

which the travel prosecuted under section 2423(b) may

have had dual purposes, only one of which was to have

sex with minors. The statute says “the” purpose must

be sex rather than “a” purpose, but in United States v.

Vang, 128 F.3d 1065, 1068 (7th Cir. 1997), we approved

a jury instruction which said that sex didn’t have to be

“the sole purpose” of the travel, though it did have to be

“a dominant purpose, as opposed to an incidental one. A

person may have more than one dominant purpose

for traveling across a state line.” To speak of multiple

dominant purposes is not idiomatic, but given the evidence in Vang the precise wording of the instruction

hardly mattered. Other cases, too, fasten on “dominant,”

but then define it down to mean “significant,” “efficient

and compelling,” “predominat[ing],” “motivating,” not

“incidental,” or not “an incident” to the defendant’s

purpose in traveling. E.g., United States v. Julian, 427

F.3d 471, 485 (7th Cir. 2005); United States v. Hitt, supra,

473 F.3d at 152; United States v. Hayward, 359 F.3d 631, 637-

38 (3d Cir. 2004); United States v. Meacham, 115 F.3d 1488,

1495-96 (10th Cir. 1997); United States v. Campbell, 49

F.3d 1079, 1083-84 (5th Cir. 1995); United States v. Ellis,

935 F.2d 385, 390 (1st Cir. 1991); United States v. Bennett,

364 F.2d 77, 79 (4th Cir. 1966).

These verbal formulas are strained; the courts turn

handsprings trying to define “dominant” as if it were a

statutory term, see, e.g., United States v. Miller, 148 F.3d
No. 09-1597 7

207, 212-13 (2d Cir. 1998), which it is not. It would be

better to ask whether, had a sex motive not been

present, the trip would not have taken place or would

have differed substantially. See, e.g., United States v.

Snow, supra, 507 F.2d at 24; United States v. Farley, 607

F.3d 1294, 1335 (11th Cir. 2010); United States v. Meacham,

supra, 115 F.3d at 1495-96.

We can place the blame for judicial preoccupation

with the word “dominant” on the Supreme Court, which

in Mortensen v. United States, 322 U.S. 369, 374 (1944), a

Mann Act case, said that engaging in forbidden sexual

activity “must be the dominant purpose of such

interstate movement.” That was dictum, because the

sole purpose of the movement in question was to give

several prostitutes an innocent vacation—that is, one in

which they would not be plying their trade. There

were not multiple purposes, of which one was sexual,

so there was no occasion to identify a dominant purpose.

But later cases, ignoring Justice Holmes’s admonition to

think things not words, have tended to treat “dominant

purpose” as if it were the language of the Mann Act

itself, and, later still, as if it were the language of the

statutes, including 18 U.S.C. § 2423(b), that restate

and extend the Act; and from the cases the term

entered jury instructions. (The evolution of “dominant

purpose” is considered at length in our opinion in United

States v. Vang, supra, 128 F.3d at 1070-72.) The Fourth

Circuit stated sensibly in United States v. Bennett, supra,

364 F.2d at 77, 78 n. 4, that “the ‘dominant motive’ test

seems completely inappropriate in any case involving
8 No. 09-1597

multiple purposes, some of which were legitimate but

one of which is proscribed by [section] 2421,” and equally

by section 2423(b). But the defendant does not challenge

the jury instructions, so the only question is whether

the jury was unreasonable in convicting him.

To answer the question we need to be clear about the

meaning of the statutory term “travels”; that will get us

further than worrying the word “dominant.” To say that

a sexual predator “travels” in interstate or foreign commerce to a retreat is not a full description of the travel

in this case. He travels in interstate or foreign commerce

to a retreat in the company of a boy he intends to molest—that is the full description. The purpose of the

travel so understood is to engage in illegal sexual conduct.

See United States v. Meacham, supra, 115 F.3d at 1495-96;

United States v. Ellis, supra, 935 F.3d at 390-91.

At the oral argument we put the following hypothetical

case to the defendant’s lawyer. A man who travels frequently abroad on business has two assistants. One is an

older woman. The other is young and beautiful. He needs

only one of the assistants to accompany him; they are

equally competent; but he chooses to take the young

woman because he hopes to have sex with her. The purpose of his travel is business; but the purpose of his

travel with this assistant rather than the other one is

sex—legal sex, in the example, but that’s not the point;

the point is that the purpose of his choosing this particular way to travel is sex rather than business. Cf. United

States v. Snow, supra, 507 F.2d at 24; United States v.

Meacham, supra, 115 F.3d at 1495-96. The defendant’s
No. 09-1597 9

lawyer was unable to distinguish the present case from

our hypothetical case.

It would be different if in that case the traveling businessman had only one assistant, the beautiful young

woman. He hopes that he might have sex with her on

the trip, yet he would have made the same trip, taking

her with him, even if he had had no such designs. In

that event sex would not have been the purpose of the

trip with her, but a possible bonus that could however

have played no part in his decision to take the trip—he

was ordered to take it and needed, for purely business

reasons, to take the assistant with him. Compare Hansen

v. Haff, 291 U.S. 559, 563 (1934) (“if the purpose of the

journey was not sexual intercourse, though that be contemplated, the statute is not violated”), with Ghadiali v.

United States, 17 F.2d 236, 237 (9th Cir. 1927) (the defendant “had a right to cause [his secretary] to be transported in interstate commerce in the discharge of her

secretarial duties without transgressing the provisions

of the law; but if, in addition to the secretarial duties,

it was also his purpose to have sexual intercourse with

her, and, entertaining such purpose, transported her in

interstate commerce, he would be guilty”).

After 1991 the defendant was forbidden to travel with

minors to his retreats—and all the trips with Dominick

took place after that. If a trip has dual purposes, one

licit but intended to bolster an illicit sexual purpose, the

sexual purpose is “the” purpose, in a reasonable sense

of the word. Suppose a salesman employed by Sears

Roebuck is directed by Sears to travel to Singapore to
10 No. 09-1597

sell clothes dryers there. Instead he travels to Bangkok

because he wants to patronize child prostitutes. He

sells some clothes dryers in Bangkok in the intervals

between his visits to the child prostitutes and alters

the invoices to make it seem that the sales occurred in

Singapore. The purpose of his travel would be sex rather

than business, though business would be transacted

during the trip. See United States v. Snow, supra, 507 F.2d at

24; United States v. Meacham, supra, 115 F.3d at 1495-96;

United States v. Farley, supra, 607 F.3d at 1335; United States

v. Bredimus, 234 F. Supp. 2d 639, 646 (N.D. Tex. 2002),

affirmed, 352 F.3d 200 (5th Cir. 2003). The defendant in

our case had, so far as appears, broad latitude concerning the number and location of the retreats he led,

and he configured his travels to optimize his sexual

activity.

We turn to the defendant’s objection to the testimony

by the four other boys (like Dominick, adults when they

testified) whom he molested. The district judge was

concerned about the possibility of undue prejudice and

helpfully placed on the record her pretrial discussion of

the issue with counsel, facilitating appellate review.

The testimony was admissible as evidence of the defendant’s modus operandi (and thus not excludable under

Rule 404(b) of the Federal Rules of Evidence, see United

States v. Zahursky, 580 F.3d 515, 524-25 (7th Cir. 2009))

and it was also admissible under Rules 413 and 414 as

evidence of the defendant’s previous crimes of sexual

assault and child molestation, demonstrating a propensity to commit such crimes. E.g., United States v. Rogers,

587 F.3d 816, 821 (7th Cir. 2009).
No. 09-1597 11

Like other evidence, such testimony is subject to the

limitations that Rule 403 places on evidence that is

unduly prejudicial, confusing, or repetitious. Id. at 822-23.

The judge was concerned lest the jury be overwhelmed

by profoundly disturbing and highly emotional testimony of numerous witnesses, which would deflect the

jurors from careful consideration of the only actual issue

they had to decide, which was whether the defendant

had traveled with Dominick for the purpose of sexually

abusing him. On the basis of the striking similarities

among the experiences of each of the victims, the judge

tentatively ruled that she would allow the government

to call one witness whom the defendant had abused

besides Dominick, while reserving decision on four

others until after the defendant’s cross-examination of

Dominick. In the end she allowed testimony by three

others.

The evidence was material because the defense was

that Dominick was a liar. Although the defendant himself did not testify, the defense presented more witnesses

than the government—witnesses who testified to the

defendant’s sterling character. 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 Dominick’s testimony.

The defendant particularly objects to the boys’ testimony about the shame and fear that dissuaded them

from telling their parents or others about what he had

done to them until they had grown up and escaped his

control. But this testimony was invited by the brutal cross-
12 No. 09-1597

examination of Dominick by the defendant’s lawyer and

by the argument that Dominick’s failure to tell anyone

about what the defendant was doing to him until

2005, long after the sexual molestation had ceased (the

defendant molested boys, and eventually boys become

men), indicated fabrication. This argument entitled the

government to elicit in redirect examination the reasons

Dominick and the other boys had not revealed the defendant’s acts soon after they occurred. See United States

v. Hensley, 574 F.3d 384, 389-90 (7th Cir. 2010); United

States v. Plumman, 409 F.3d 919, 928-29 (8th Cir. 2005);

United States v. Powers, 59 F.3d 1460, 1464, 1467 (4th Cir.

1995).

AFFIRMED.

12-2-10