United States v. Dane Gillis (11th Cir. September 2019)

The Federal Docket

October 18, 2019

Solicitation to Commit Crime of Violence/ 18 U.S.C. § 373 – Under the categorical approach, kidnapping under 18 U.S.C. § 1201(a) is not a “crime of violence.”

Expert Witnesses/Right to a Complete Defense – A defendant’s right to present a complete defense is not violated when a trial court limits a sexologist expert’s testimony that does not conform to Rule 702 or Daubert, nor when the trial court prohibits a psychologist from testifying regarding the defendant’s psychosexual makeup and sexual development where such testimony would go to the defendant’s intent or state of mind.

Enticing a Minor/18 U.S.C. § 2422(b) – There is sufficient evidence to convict a defendant for attempt to entice a minor where the defendant travels to meet with a person he believes to be a minor after communicating with her regarding his desire to engage in sexual activity.

Dane Gillis appealed his convictions for attempting to entice a minor to engage in sexual activity under 18 U.S.C. § 2422(b), soliciting another to commit a crime of violence (kidnapping) under 18 U.S.C. § 373, and other related offenses.

On appeal, Gillis argued that there was insufficient evidence to convict him of violating §2422(b), that the trial court violated his right to present a complete defense by limiting his expert’s testimony, and that the underlying crime of federal kidnapping is not a “crime of violence” under 18 U.S.C. § 373.

First, the Court held that there was sufficient evidence to support Gillis’s conviction for attempt to entice a minor. Specifically, the Court noted how Gillis drove two hours to meet a person he believed was a minor, and there was evidence of his intent to engage in sexual activities with her based on his electronic communications with her and the fact that he canceled his first meeting with her because he was “nervous” that he was being set up.

Next, the Court held that the trial court did not deprive Gillis of his right to a complete defense through its rulings regarding the defendant’s experts. Citing a lack of peer review and credibility under Rule 702 and Daubert, the trial court held that the defendant’s proposed sexologist could only testify regarding the way people socialize on the internet but could not testify on the “internet sub-culture for fantasy role-playing and sexual communications.” While Gillis had not challenged the trial court’s ruling on the admissibility of the expert testimony, the Court held that it was indeed inadmissible, and Gillis had not shown a “compelling reason” for making an exception to the rules of evidence to allow inadmissible expert testimony. The same analysis applied to Gillis’s proposed expert on psychology, whose testimony on Gillis’s psycho-sexual development was prohibited because it would have gone to Gillis’s state of mind, which is prohibited under Rule 704.

Finally, the Court held that kidnapping under 18 U.S.C. § 1201(a) is not a “crime of violence” for purposes of solicitation to commit a crime of violence under 18 U.S.C. § 373. The Court first held that the prior precedent rule required applying the categorical approach rather than a conduct-based approach based on the Court’s opinion in United States v. McGuire and the fact that § 373 has an “elements clause” similar to that in § 924(c)(1)(A) and (c)(3)(A). Under the categorical approach, kidnapping was not a “crime of violence” since there are ways to commit the crime that do not require physical force. Accordingly, the Court reversed his conviction under § 373.

Judge Hull issued a length dissent to the majority’s opinion regarding the categorical approach applied to § 373. She argued that the conduct-based approach should apply based on the statute’s inclusion of the word “conduct constituting a felony,” and that Gillis clearly solicited someone to engage in a crime of violence by soliciting them to violently kidnapping them.

Appeal from the Middle District of Florida

Per Curiam Opinion by J. Pryor, Anderson, and Hull

Dissenting and concurring opinion by Hull

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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