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United States v. Taylor

United States Court of Appeals, Seventh Circuit

January 27, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JEFFREY P. TAYLOR, Defendant-Appellant

Argued: September 12, 2013

Page 435

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:11-cr-112-001 -- Rudy Lozano, Judge.

For United States of America, Plaintiff - Appellee: Philip C. Benson, Attorney, Office of The United States Attorney, Hammond, IN.

For Jeffrey P. Taylor, Defendant - Appellant: Viniyanka Prasad, Attorney, Jennifer Soble, Attorney, Indiana Federal Community Defenders, Inc., Hammond, IN.

Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.

OPINION

Page 436

Sykes, Circuit Judge.

Jeffrey Taylor engaged in sexual acts in front of a webcam during online chats with a law-enforcement officer posing as a 13-year-old girl. For this conduct he was convicted of attempting to use the facilities of interstate commerce to engage in criminal sexual activity with a minor. See 18 U.S.C. § 2422(b). We reversed and ordered an acquittal, holding that " sexual activity" under § 2422(b) requires evidence of physical contact. United States v. Taylor, 640 F.3d 255, 260 (7th Cir. 2011). Taylor was recharged for the same conduct but a different crime: attempting to

Page 437

transfer obscene material to a minor using a means of interstate commerce. See 18 U.S.C. § 1470. A jury convicted him as charged.

In this new appeal, Taylor argues that the Double Jeopardy Clause barred the second prosecution. He also challenges the district court's handling of strikes for cause during jury selection and certain limitations on his cross-examination of two law-enforcement officers. His final claim of error is a challenge to the district court's determination that his conviction for violating § 1470 triggers the registration requirements of the Sex Offender Registration and Notification Act (" SORNA" ). 42 U.S.C. § 16911(5)(A)(ii), (7)(I) (2012) (defining " sex offense" for purposes of the registration regime).

Taylor's double-jeopardy claim is foreclosed by Supreme Court precedent; he has preserved it for further review. The challenge to the composition of the jury fails for two reasons: (1) Taylor used peremptory strikes to remove two of the three jurors about whom he now complains; and (2) he did not object to the third, and the judge did not commit plain error in seating that juror. The judge's evidentiary rulings also were sound; the relevance of the excluded cross-examination was tenuous at best. Finally, a procedural impediment prevents us from reviewing the judge's SORNA ruling.

I. Background

On August 2, 2006, Taylor entered an online chat room and began a conversation with " elliegirl1234." " Ellie" identified herself as a 13-year-old girl from Lafayette, Indiana. Taylor responded that he was 37 and from Logansport. The conversation quickly became graphic as Taylor described his physique and asked whether Ellie had engaged in sexual acts with her boyfriend. Taylor wanted to see Ellie to masturbate in front of a webcam; he asked her whether she had a webcam, but she indicated that she did not. Taylor then turned on his webcam and masturbated in front of it so that Ellie could see.

Taylor and Ellie conversed online on multiple occasions over the next two weeks. The conversations were always sexual in nature. On August 14 the conversation turned to arranging a meeting in person, and Taylor asked Ellie to fantasize about what would happen if the two met. Taylor expressed some concern about meeting in person because he " could go to jail." (In an earlier conversation, he had referred to Ellie as " jailbait." ) During this online chat, Taylor masturbated a second time in front of his webcam so that Ellie could see.

Ellie was not a 13-year-old girl but an online identity assumed by law-enforcement personnel working on a joint federal-state sting operation targeting child sex offenders. One of the investigators used a picture of herself from when she was 15 or 16 to help create the chat-room profile.

Taylor was eventually arrested and convicted of attempting to use the facilities of interstate commerce to engage in criminal sexual activity with a minor. See § 2422(b). We reversed that conviction, holding that the statutory term " sexual activity" --like its close cousin " sexual act" --requires evidence of physical contact. Taylor, 640 F.3d at 257; see also 18 U.S.C. § 2246(2), (3) (2012) (defining " sexual act" and " sexual contact," respectively).[1] Taylor had not attempted to commit a contact offense with Ellie--his actions

Page 438

were limited to the online chat room--so we directed entry of a judgment of acquittal. Taylor, 640 F.3d at 260.

Taylor was again indicted for his August 2006 chat-room conduct, this time on two counts of attempting to transfer obscene material to a minor. See § 1470. He moved to dismiss the new charges on double-jeopardy grounds. The district judge denied the motion, noting that § 1470 and § 2422(b) require proof of different elements. The case proceeded to trial on the new charges.

During voir dire, a number of jurors indicated that either they or an immediate family member had been the victim of a crime or some form of sexual abuse. Prospective juror C.P. disclosed that her daughter had been raped at age 15 by two men, but she gave unequivocal assurances that she could be impartial despite this incident. Taylor challenged C.P. based on her daughter's rape, but the judge declined to strike her for cause, saying that Taylor had to take her at her word that she would not let the incident affect her ability to be fair. Prospective juror P.W. indicated that she too had been raped. The crime occurred about a year before trial, but P.W. unconditionally assured the court that she could remain impartial and would not let her own experience affect her decision in the case. The judge twice denied Taylor's motion to remove P.W. for cause. Taylor responded to these rulings by using peremptory challenges to strike both C.P and P.W. from the panel.

A third prospective juror, R.W., expressed reservations about his ability to be impartial based on a crime against his two daughters, who had been robbed while working at a restaurant. The robber--a former employee of the restaurant--had locked them in a cooler during the robbery. When questioned by the court about his ability to be impartial, R.W. was initially unsure:

Q: Anything about that situation or what occurred that would in any way cause you any bias or prejudice in this case either for or against the ...

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