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United States v. Gillis

United States Court of Appeals, Eleventh Circuit

September 13, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DANE GILLIS, Defendant-Appellant.

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:15-cr-00226-CEM-GJK-1

          Before JILL PRYOR, ANDERSON, and HULL, Circuit Judges.

          PER CURIAM

         After a jury trial, Defendant Dane Gillis appeals his convictions for: (1) attempting to knowingly induce or entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b) (Count 1); (2) solicitation of another to commit the crime of federal kidnapping under 18 U.S.C. § 1201(a), in violation of 18 U.S.C. § 373 (Count 2); and (3) knowingly transmitting a communication containing a threat to kidnap, in violation of 18 U.S.C. § 875(c) (Count 3). On appeal, Gillis argues that (1) the government failed to present sufficient evidence to support his § 2422(b) conviction in Count 1, and (2) the district court deprived him of his constitutional right to present a defense by prohibiting the testimony of his proposed expert witnesses. Gillis also contends that his § 373 solicitation conviction in Count 2 must be vacated because § 1201(a) kidnapping does not categorically satisfy the use-of-force element in § 373.

         After careful review of the record and the parties' briefs, and with the benefit of oral argument, we affirm in part and reverse in part. We first recount the evidence and procedural history in this case.

         I. TRIAL EVIDENCE

         The three charges arose from Gillis's online communications with an undercover agent from September 1-16, 2015. These communications involved two separate intended victims: (1) M.O., Gillis's coworker; and (2) the undercover agent's fictional 11-year-old daughter.

         In late August 2015, Gillis posted an ad on the Orlando, Florida, "personals" section of the website Craigslist under the "casual encounters" subsection. The ad stated: "Looking for a guy or a group who [are] into extremely taboo scenes. Hi risk and reward for the right sadistic Pervert."

         On September 1, 2015, Gillis's ad caught the attention of Special Agent Rodney Hyre, with the Federal Bureau of Investigation's ("FBI") Violent Crimes Against Children Task Force. Agent Hyre was reviewing ads on Craigslist to identify individuals who might be soliciting sexual activity with children. Posing undercover as the father of an 11-year-old girl, Agent Hyre replied to Gillis's ad. Agent Hyre identified himself as a "40 yo[] dad perv with 11 yo daughter" who was interested in meeting "like minding people."

         Shortly thereafter, Gillis, who at the time was 58 years old, responded, "Tell me more . . . i know a 40 yo that needs to be schooled." Gillis then sent Agent Hyre a picture of victim M.O. and asked "Any pics?" In response, Agent Hyre sent Gillis a photograph of his supposed daughter (actually a childhood photograph of a fellow law enforcement officer), with the message "sweet for 11. don't you think." Over the next two and a half weeks, Gillis and Agent Hyre carried on a conversation in which they discussed (1) a plan to kidnap and rape Gillis's coworker M.O., and (2) a plan for Gillis to meet and engage in sexual activity with Agent Hyre's fictional 11-year-old daughter.

         Regarding the kidnapping plan, Gillis told Agent Hyre that he was "looking to snag [M.O.] and use her a[s] a sex slave." During the course of the conversation, Gillis sent Hyre three more pictures of M.O. and explained that M.O. was his coworker, that she was "unwilling and unknowing," and that kidnapping her would require "some strategic planning . . . manpower etc."

         Gillis stated that the kidnapping would have to take place early in the morning, around 4:30 a.m., because of his and M.O.'s respective work schedules. Gillis asked Agent Hyre if he had any friends, specifically "someone with experience," that would be interested in assisting with the kidnapping plot. Gillis explained that they would "[n]eed help," "a van," and "a place to keep [M.O.] for at least 24 hours," and recommended that they "hood and[/]or blindfold her" and wear masks themselves. Gillis described the types of sexual acts he wanted to perform on M.O. and described her as "a goody 2 shoes flirt that NEEDS to be taught a lesson." Gillis told Agent Hyre that he was "open to any 'ending' scenario when it [comes] to her."

         Regarding the minor daughter, Gillis told Agent Hyre early on in the conversation that he would "love to meet [Agent Hyre's] girl" and asked when he could meet her. At one point during the conversation, Agent Hyre asked Gillis for clarification about whether Gillis was "interested in my 11 yo girl or just older," to which Gillis responded, "Right now im only interested in your 11 yo . . . the other we can talk about." As their plans to meet progressed, Gillis asked Agent Hyre what types of sexual acts the daughter would be willing to perform. When Agent Hyre told Gillis that "[s]he will do whatever you say" and asked what Gillis would like to do to the girl, Gillis told Hyre that he would like to do "a little of everything," including oral sex and vaginal penetration.

         Gillis and Hyre initially planned to meet on September 10, 2015, but Gillis backed out at the last minute. The following day, Agent Hyre reached out to Gillis again, and they resumed discussions about both the plan to kidnap M.O. and the plan for Gillis to have sex with Agent Hyre's fictional daughter. Gillis explained that he backed out of the first meeting with Agent Hyre and the daughter because he was "a little nervous," having "[n]ever been with a young one" before, and was concerned that Agent Hyre might be setting him up. Agent Hyre reassured Gillis that he was not being set up, and they then planned a second rendezvous in which Gillis and Agent Hyre would meet first to "show we are real" and then Agent Hyre would take Gillis back to his house to meet the fictional daughter.

         As they were planning this second meeting, Gillis asked Agent Hyre seven times for more pictures of the daughter and requested that Agent Hyre dress her in "a short skirt no underwear" for their meeting. When Agent Hyre sent Gillis a second picture, Gillis commented: "Looks [like] she has some tasty little titties . . . is she still all smooth down below?" Ultimately, they arranged to meet at a Gander Mountain parking lot in Lake Mary, Florida-about an hour's drive from Gillis's home in Leesburg, Florida-on September 16, 2015.

          On the day of this second planned meeting, Gillis drove to the Gander Mountain parking lot in Lake Mary. Another FBI agent posed as the 11-year-old's father and waited in a tan Buick, while Agent Hyre and a third agent conducted surveillance from the other side of the parking lot. Gillis flashed his headlights, and the agent posing as the father tapped his brake lights. After approaching Gillis's car and confirming his identity, the agent asked him, "Do you want to go to the house?" and Gillis answered, "Sure." The agents then arrested Gillis and advised him of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). Gillis waived his rights and agreed to talk to the agents.

         In a post-Miranda interview, Gillis admitted: (1) that he had been emailing with the father of an 11-year-old girl; (2) that those conversations centered on his having sex with the daughter; and (3) that he had driven an hour from Leesburg for no other reason than to "have sex with the little girl." Gillis admitted that "for approximately the last two years" he had "fantasized about having sex with children." A subsequent search of Gillis's computer revealed sexually suggestive photographs of prepubescent girls and his internet search history showed that, since 2011, Gillis repeatedly sought out pornographic images of preteen girls.

         Regarding the plot to kidnap M.O., Gillis first told agents during his post-Miranda interview that her name was Jamie Johnson and gave a detailed story about how she had broken his heart. Gillis admitted he had been posting on Craigslist for the past couple of years and had 10 to 20 conversations with people about helping him to kidnap and hurt Jamie Johnson. When the agents confronted Gillis with the victim's true name, Gillis admitted that M.O. was the person he had been sending pictures of and "talking about kidnapping and raping and possibly killing." Gillis explained that they were coworkers but had no romantic relationship. Gillis admitted that, two weeks prior, M.O. had rejected him and told him she was leaving the restaurant where they worked together and going to work at another restaurant.

         Further investigation revealed that Gillis had been trying for months to find someone to help him kidnap and rape M.O. Between February and August 2015, without M.O.'s knowledge, Gillis engaged in sexually explicit communications about kidnapping and raping M.O. and sent photographs of M.O. to numerous Craigslist users. Additionally, around the time he was messaging Agent Hyre in September 2015, Gillis conducted several internet searches containing the words "rape" and "kidnap."

         II. PROCEDURAL HISTORY

         In a superseding indictment, a federal grand jury charged Gillis with: (1) attempting to knowingly induce or entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b) (Count 1); (2) solicitation of another to commit the crime of federal kidnapping under 18 U.S.C. § 1201(a), in violation of 18 U.S.C. § 373 (Count 2); and (3) knowingly transmitting a communication containing a threat to kidnap, in violation of 18 U.S.C. § 875(c) (Count 3). Gillis pled not guilty and the case proceeded to a jury trial.

         At trial, the government presented evidence and testimony detailing the facts outlined above. Gillis then presented several witnesses and testified in his own defense. Generally speaking, Gillis testified that his entire online conversation with Agent Hyre was merely role-playing and fantasy, and he never actually intended to do any of the acts he described with respect to either M.O. or the fictional 11-year-old. Although the district court ruled that Dr. James Herriot, Gillis's expert witness, could testify about internet communication generally, Gillis ultimately chose not to call him at trial.

         The jury found Gillis guilty on all three counts. The district court sentenced him to 365 months imprisonment on Count 1, 240 months on Count 2, and 60 months on Count 3, all to run concurrently.[1]

         III. SUFFICIENCY OF THE EVIDENCE

         On appeal, Gillis challenges the sufficiency of the evidence to support his § 2422(b) conviction in Count 1 for attempting to induce or entice a minor to engage in sexual activity.[2] Gillis argues, among other things, that: (1) his Craigslist advertisement itself evidenced no intent to induce a minor to engage in sexual activity; (2) Agent Hyre introduced the notion of sex with a minor into the conversation; (3) Gillis abandoned the first planned meeting with the minor, demonstrating an abandonment of any intent to engage in sexual activity with the minor; and (4) in setting up the second meeting, Gillis only sought to meet with the father of the fictional minor to "discuss the possibility of future illicit activity."

         Section 2422(b) proscribes knowing attempts to induce or entice a minor to engage in sexual activity, stating:

Whoever, using the mail or any facility or means of interstate or foreign commerce, . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or 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 and imprisoned not less than 10 years or for life.

18 U.S.C. § 2422(b). To prove that a defendant violated § 2422(b) by attempting to induce a minor to engage in sexual activity, the government must show that the defendant (1) had the specific intent to induce a minor to engage in sexual activity, and (2) took a substantial step toward the commission of that offense. United States v. Lee, 603 F.3d 904, 913-14 (11th Cir. 2010); United States v. Yost, 479 F.3d 815, 819 (11th Cir. 2007). This Court has held that a defendant may be convicted under § 2422(b) even if he attempted to exploit only a fictitious minor and communicated only with an adult intermediary. See Lee, 603 F.3d at 912-13; see also United States v. Murrell, 368 F.3d 1283, 1286-87 (11th Cir. 2004).

         Ample evidence supports Gillis's conviction on Count 1. At trial, the evidence showed that Gillis engaged in a two-week online conversation with a person he believed to be the parent of a minor daughter, during which he discussed in detail plans to meet and engage in sexual activity with the daughter. Though Gillis is correct that Agent Hyre initiated discussion of the fictional minor, Gillis's responses as the conversation progressed demonstrated his sexual interest in the daughter and intent to induce the daughter, through her father, to engage in sexual activity.

         Furthermore, Gillis cancelled the first meeting because he was "nervous" and feared he was being set up, not because he was no longer interested in engaging in sexual activity with the minor daughter. Indeed, Gillis's subsequent comments to Agent Hyre in planning the second meeting show he remained interested in engaging in sexual activity with the daughter and anticipated doing so after first meeting the father. And Gillis took a substantial step toward consummating that plan when he drove nearly an hour from his home to Lake Mary for that meeting. See Murrell, 368 F.3d at 1288 (defendant's two-hour travel to meet a minor for sex was corroborative of criminal intent).

          Other evidence corroborated Gillis's intent, including (1) Gillis's admission, during his post-Miranda interview, that he traveled to the Gander Mountain parking lot for the purpose of engaging in sex with a minor, (2) Gillis requested that the minor daughter be wearing a particular outfit without underwear, and (3) the wealth of prepubescent images and search terms found on Gillis's computer. Although Gillis testified that Agent Hyre's account of the post-Miranda interview was inaccurate and that he had no sexual interest in children, the jury was free to disbelieve that testimony and consider it as substantive evidence of his guilt. United States v. Bacon, 598 F.3d 772, 776 (11th Cir. 2010).

         For all of these reasons, we conclude that sufficient evidence supported Gillis's § 2242(b) conviction in Count 1.

         IV. EXPERT WITNESSES

         Even if the evidence was sufficient, Gillis alternatively contends that the district court deprived him of his Fifth and Sixth Amendment rights to present a defense on all three counts (1) by limiting the testimony of Dr. Herriot, his expert witness, and (2) by prohibiting Dr. Susan Sullivan, his other expert, from testifying at all. In order to review this claim, we outline the pretrial proffers about the testimony of these two expert witnesses and the district court's rulings thereon.

         Prior to trial, Gillis disclosed James W. Herriot, Ph.D., a sexologist, and Susan Sullivan, Ph.D., a clinical psychologist, as proposed experts on sexual communication and behavior on the internet and Gillis's own psychosexual makeup, respectively. In separate motions, the government moved to exclude both experts' testimony, and the district court held hearings on both motions.

         A. Daubert Hearing as to Dr. Herriot's Testimony

         At the Daubert[3] hearing, Dr. Herriot testified that he had an undergraduate degree in computer science from Stanford University and that he earned his Ph.D. from the Institute for Advanced Study of Human Sexuality ("IASHS") in 1996 and had been on the faculty at IASHS ever since. Dr. Herriot stated that he was a member of the American College of Sexologists and was certified as a sexologist through that organization. Dr. Herriot explained that he wrote his Ph.D. dissertation on sexual communication on the internet. As part of his research, Dr. Herriot "analyzed about 20 million keystrokes worth of communication" on "interactive or nearly interactive forum, like sexual material."

         Dr. Herriot testified that since his dissertation, he had done additional research regarding sexual communications on the internet and had also "kept up with the field." Regarding this additional research, Dr. Herriot stated that he had conducted "about 100" interviews related to sexual communications on the internet. Dr. Herriot opined that there is "much that goes on in sexual communication [on the internet] that's not obvious at first glance," and understanding such communications can be counterintuitive. According to Dr. Herriot, "[t]here's a kind of space between what goes on in our minds and what we actually do in real life," and the internet "opens up an in-between space" where people engage in fantasy role playing that involves "a combination of fact and fiction." Dr. Herriot further explained that the internet creates a phenomenon called the "online disinhibition effect," in which a person's "identity becomes decoupled from their . . . online behavior" and they behave differently online than they would in the real world.

         When asked about Gillis specifically, Dr. Herriot stated that he could not "divine or know anything about [Gillis's] motivation" in this case because he is not a psychologist, but could "say . . . something about the overall context" of online communications. On cross-examination, Dr. Herriot admitted that: (1) his dissertation had never been published in an academic journal; (2) his study was based predominantly on internet message-board postings that did not involve realtime communication between users; and (3) his paper did not discuss the topic of role playing on the internet. Dr. Herriot stated that he later expanded his research to chat rooms and instant messaging as well, but never published any of his results. Dr. Herriot also admitted that, although he was a "professor" at IASHS, he did not teach any classes there, had not published any articles on human sexuality, and was merely a resource for doctoral students.

          Following the hearing, the district court issued a written order granting in part the government's motion to exclude Dr. Herriot's testimony. The district court noted that Gillis sought to introduce Dr. Herriot's testimony on two separate, but related, topics: (1) "how the internet works and how people are able to communicate and socialize on the internet" and (2) "the internet sub-culture for fantasy role-playing and sexual communications." As to the first topic, general discussion of the internet and communication, the district court found that Dr. Herriot was qualified to testify as an expert and that his testimony was reliable and relevant. The district court therefore permitted Gillis to offer Dr. Herriot's testimony on this topic.

         As to the second topic, fantasy role playing and sexual communications online, the district court found that Gillis failed to disclose more than "an overview of the general genre of testimony that Dr. Herriot will offer and assurances that Dr. Herriot has opinions pertinent to that category of inquiry." The district court further found that although Dr. Herriot based his expertise on social science research and experience, he "provided little information in regards to the interviews and studies he conducted," and his studies were not randomized or peer reviewed and occurred nearly two decades ago. Similarly, to the extent that Dr. Herriot purported to rely on "academic literature," he failed to identify those sources, and the district court was unable to assess their credibility. In addition, Dr. Herriot did not specify any single opinion he intended to introduce at trial, and the general proposition he intended to offer-that some information people communicate anonymously over the internet is false-was within the common knowledge of laypersons. The district court therefore precluded Dr. Herriot from testifying on the topic of fantasy role playing and sexual communications online.

         B. Later Hearing as to Dr. Sullivan's Testimony

         Gillis represented that Dr. Sullivan had "performed a psychosexual evaluation" of Gillis and would testify about her opinions on Gillis's "psychosexual makeup" and "sexual development." During the hearing, defense counsel provided copies of Dr. Sullivan's expert report to the government and the district court. However, it does not appear that the report itself was made a part of the district court record. Though Dr. Sullivan apparently was available, she did not testify at the hearing. Accordingly, we have few details regarding the contents of Dr. Sullivan's proposed testimony, other than that she would testify about Gillis's "psychosexual makeup" and "sexual development."

         At the hearing regarding Dr. Sullivan's proposed testimony, the government argued that Gillis's disclosure of Dr. Sullivan was untimely and inadequate. The district court expressed concern that Dr. Sullivan's proposed testimony was based solely on her clinical interview with Gillis and would essentially allow Gillis to testify through self-serving hearsay without his being subject to cross-examination.

         Gillis responded that, in addition to interviewing him, Dr. Sullivan had also performed several widely accepted psychological tests. Gillis also proffered that Dr. Sullivan would testify, based on her evaluation, that Gillis "doesn't have an interest in prepubescent children." The district court took the government's motion to exclude Dr. Sullivan's testimony under advisement and allowed the parties to file supplemental briefing on the issue.

         On the first day of trial, the district court granted the government's motion to exclude Dr. Sullivan's testimony. The district court concluded that Dr. Sullivan would simply be "relaying what [the] defendant told her," and that the true purpose of her proposed testimony was to "present opinion testimony from an expert concluding that the defendant did not have the requisite intent to commit the [enticement] offense" in Count 1 because he was not attracted to prepubescent girls.

         C. Analysis

         Gillis does not argue that the district court abused its discretion in excluding Dr. Sullivan's testimony and part of Dr. Herriot's testimony under the Federal Rules of Evidence and Daubert. Rather, Gillis asserts that, even if technically inadmissible under the rules governing expert testimony, the experts' testimony should have been admitted because it was necessary to negate the subjective intent element of all three charged offenses and to rebut the Federal Rule of Evidence 404(b) evidence of his internet search history. Gillis submits that the excluded expert testimony would have placed in context his online communications and shown he was engaging in fantasy role play and had no intent to do these crimes. By not allowing him to present that expert testimony, Gillis contends that the district court deprived him of his constitutional right to present a defense.

         The Constitution grants criminal defendants the implicit right to present evidence in their favor. United States v. Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004) (citing U.S. Const. amends. V & VI). In evaluating a defendant's claim that his constitutional right to present a defense was violated, we examine (1) whether the right was actually violated, and (2) if so, whether that error was harmless beyond a reasonable doubt. Id. at 1362-63.

         Among other things, a defendant "must generally be permitted to introduce evidence directly pertaining to any of the actual elements of the charged offense," as well as evidence that "could make the existence of one or more of the elements of the charged offense . . . more or less certain." Id. at 1363. Notably, this general principle does not give the defendant an "unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653 (1988). But, "the fact that a particular rule of evidence requires the exclusion of certain evidence is not dispositive, as particular applications of a generally valid rule may unconstitutionally deny a defendant his rights under the Compulsory Process or Due Process Clauses." Hurn, 368 F.3d at 1363 n.2.

         Although Gillis does not challenge the district court's exclusion of his experts' testimony under the Rules of Evidence or Daubert, whether that ruling was correct is relevant to whether Gillis's constitutional right to present a defense was violated. Accordingly, we address whether the district court abused its discretion in excluding the testimony of Gillis's experts before determining whether that exclusion violated Gillis's constitutional rights.

         Federal Rule of Evidence 702 governs the admissibility of expert testimony. Fed.R.Evid. 702; United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc). Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. In determining whether to admit expert testimony under Rule 702, district courts must consider if: (1) the expert is qualified to give competent testimony about the matters he intends to address; (2) the methodology the expert employed to reach his conclusions is sufficiently reliable under Daubert; and (3) the testimony will assist the trier of fact, through the application of scientific, technical, or other specialized expertise, to understand the evidence or determine a fact in issue. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998).

         In Daubert, the Supreme Court explained that a district court faced with a proffer of expert testimony must assess whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts in issue. Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796. Many factors may bear on that inquiry, including: (1) whether the theory or technique has been or can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential error rate; and (4) whether the theory or technique is widely accepted. Id. at 593-94, 113 S.Ct. at 2796-97. The Supreme Court emphasized that the Rule 702 inquiry is "a flexible one," the ultimate goal of which is to determine the evidentiary relevance and reliability of the proposed expert testimony. Id. at 594-95, 113 S.Ct. at 2797.

          Even if an expert's proposed testimony satisfies Rule 702 and Daubert, the testimony must also comply with other limitations contained in the Rules of Evidence. Of relevance here, Rule 704(b) provides:

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Fed.R.Evid. 704(b). In other words, an expert may not opine on the defendant's intent. See United States v. Augustin, 661 F.3d 1105, 1123 (11th Cir. 2011). However, an expert may, consistent with Rule 704(b), give testimony "that supports an obvious inference with respect to the defendant's state of mind if that testimony does not actually state an opinion on [the] ultimate issue, and instead leaves this inference for the jury to draw." Id. (internal quotations and alteration omitted).

         Here, the district court did not abuse its discretion in excluding Dr. Herriot's and Dr. Sullivan's testimony under Daubert and the evidentiary rules governing expert testimony.[4] As to Dr. Herriot, the district court thoroughly explained in its order why Dr. Herriot's proposed testimony about fantasy and role playing in online sexual communications did not satisfy Rule 702 and Daubert. Among other things, the district court found that: (1) Dr. Herriot's research was conducted nearly 20 years ago using a different online medium; (2) his studies were not randomized, peer-reviewed, or published; (3) he was not able to specifically identify the academic literature on which he purported to base his opinions; (4) he did not demonstrate sufficient experience in the field of online sexual communications; and (5) his primary conclusion-that not all communications on the internet are truthful-was within the knowledge of laypersons. Given these infirmities, we have no trouble concluding the district court properly excluded Dr. Herriot's proposed testimony about online sexual communications. See Frazier, 387 F.3d at 1259; Harcros Chems., 158 F.3d at 562.

         We likewise have little trouble concluding the district court did not abuse its discretion in excluding Dr. Sullivan's proposed testimony. See Frazier, 387 F.3d at 1259. The district court determined that Dr. Sullivan's proffered opinion that Gillis was not sexually attracted to prepubescent girls was simply a thinly veiled attempt by the defense to offer an expert opinion that Gillis lacked the requisite intent for the enticement offense in Count 1. We see no clear error in the district court's determination that Dr. Sullivan's proffered testimony would do more than "leave[ an] inference for the jury to draw," and instead veered into the impermissible territory of offering an opinion on Gillis's mental state. See Augustin, 661 F.3d at 1123 (internal quotation marks omitted); Fed.R.Evid. 704(b).

         It is unsurprising, therefore, that Gillis does not contest the admissibility aspect of the district court's rulings. Accordingly, to show he was deprived of his constitutional right to present a defense, Gillis must demonstrate a compelling reason for making an exception to the expert witness rules in this case to allow the two experts' testimony. See Knight v. Dugger, 863 F.2d 705, 729 (11th Cir. 1988) (explaining that a conviction may be reversed based on the exclusion of evidence where there is either a clear error by the trial court in its evidentiary rulings or "compelling reasons for exceptions" to the rules of evidence). This he has not done. Given that the district court did not err in rejecting Dr. Herriot's and Dr. Sullivan's testimony, the mere fact that their testimony would have been helpful to Gillis's defense does not provide a compelling reason for admitting that testimony despite its failure to satisfy Daubert and the rules of evidence.[5] See id. That is particularly so here, where Gillis chose to testify at trial and was able to present his fantasy role playing argument to the jury.

         V. 18 U.S.C. § 373 CONVICTION

         Gillis challenges his Count 2 conviction for solicitation of another to commit the crime of federal kidnapping under 18 U.S.C. § 1201(a), in violation of 18 U.S.C. § 373. Section § 373 provides that:

[w]hoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned . . . .

18 U.S.C. § 373(a) (emphasis added). To be convicted under § 373, the defendant (1)must solicit another person to "engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force," and (2)must solicit "such other person to engage in such conduct" under circumstances strongly corroborative of that intent.[6] Id.

         The actual, real-world conduct that Gillis solicited was a kidnapping by physical violence, including hooding, blindfolding, and snagging the victim M.O., putting her in a van, and then using her as a sex slave. The actual conduct Gillis solicited clearly "constitut[ed] a felony that ha[d] as an element the use . . . of physical force" against the victim. 18 U.S.C. § 373(a). Nonetheless, Gillis contends § 373's elements text permits only the use of the categorical approach, which requires blindness to his actual conduct. Gillis argues our panel has no choice in this matter because it is bound by our elements-clause precedent in United States v. McGuire, 706 F.3d 1333 (11th Cir. 2013).[7]

         More specifically, Gillis contends that: (1) our McGuire precedent holds that the text of the elements clause in 18 U.S.C. § 924(c) requires that we apply the categorical approach; (2) the text of § 373 has an identical elements clause, which means McGuire requires the categorical approach here too; (3) the elements clause in § 373 modifies "felony," not "conduct"; (4) under the categorical approach, we must look to the least culpable acts by which § 1201(a) federal kidnapping can be committed; (5) the least culpable act of the § 1201(a) federal kidnapping Gillis solicited is "confinement"; and (6) kidnapping by confinement can be accomplished without the use, attempted use, or threatened use of physical force.[8]See Moncrieffe v. Holder, 569 U.S. 184, 190-91, 133 S.Ct. 1678, 1684 (2013).

          The government disagrees and argues a conduct-based approach applies because: (1) the § 373 text twice refers to the "conduct" the defendant was soliciting someone to engage in; (2) even though the elements clause follows "felony," the § 373 text refers to "conduct constituting a felony," not "an offense that is a felony" as in § 924(c)(3)(A); (3) § 373 requires consideration of the actual conduct that the defendant solicited and only then asks if that conduct constitutes a felony that has physical force as an element; and (4) the look-back problems of assessing a prior conviction that spawned the categorical approach do not apply here.

         As a threshold issue, we must decide whether, under the prior panel precedent rule, McGuire binds us to apply the categorical approach to the text of § 373. To do that, we review McGuire in detail.

         A. Our McG ...


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