Evidence — undue prejudice — harmless error

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U.S. Court of Appeals for the Seventh Circuit

Criminal

Evidence — undue prejudice — harmless error

In a prosecution under 18 U.S.C. 2422(b), it was harmless error to admit evidence of communications between the defendant and other parties he thought were underage girls.

“Given the limited number of ‘Kellie’ emails that the government used and the directness of their relevance, we cannot say that it is clear that the district court would have opted for exclusion had it looked more carefully at Rule 403. Indeed, our prediction is the opposite: the ‘Kellie’ emails refuted McMillan’s proffered justification for his actions, and so even though they are prejudicial, the balance tips decisively for admission. The government did not get carried away with this evidence, as it has done in some other cases, see, e.g., United States v. Loughry, 660 F.3d 965 (7th Cir. 2011). In fact, the ‘Kellie’ evidence was significantly more limited than the email exchanges in Knope, which upheld the admission of evidence about seven additional minors. In short, although the district court should have weighed the probative value of the ‘Kellie’ evidence against its prejudicial effect, its failure to do so in the circumstances of this case was harmless. These considerations also assure us that the admission of the ‘Kellie’ evidence did not violate McMillan’s due process right to a fair trial.”

Affirmed.

12-1348 U.S. v. McMillan

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Wood, J.