from the United States District Court for the Middle District
of Florida D.C. Docket No. 6:15-cr-00226-CEM-GJK-1
JILL PRYOR, ANDERSON, and HULL, Circuit Judges.
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.
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.
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.
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
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."
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.
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."
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."
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.
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.
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.
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.
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.
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
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."
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, 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.
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
SUFFICIENCY OF THE EVIDENCE
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
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."
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
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.
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.
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
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).
of these reasons, we conclude that sufficient evidence
supported Gillis's § 2242(b) conviction in Count 1.
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
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.
Daubert Hearing as to Dr. Herriot's Testimony
Daubert 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."
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.
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.
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.
Later Hearing as to Dr. Sullivan's Testimony
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."
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
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.
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.
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.
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.
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.
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.
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
(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).
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.
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).
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
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.
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).
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. 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.
18 U.S.C. § 373 CONVICTION
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. Id.
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).
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.See Moncrieffe v. Holder, 569
U.S. 184, 190-91, 133 S.Ct. 1678, 1684 (2013).
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
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.