                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-1516

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellant,
                                  v.

S TEPHEN L. R OGERS,
                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 06 CR 540—Milton I. Shadur, Judge.



  A RGUED D ECEMBER 12, 2008—D ECIDED N OVEMBER 18, 2009




 Before C UDAHY, F LAUM and W OOD , Circuit Judges.
  W OOD , Circuit Judge. In 1994, Congress altered the
longstanding ban on propensity evidence in criminal trials
so that, in trials for sexual assault, similar conduct is
admissible “for its bearing on any matter to which it is
relevant.” FED. R. E VID. 413. This appeal asks how
this modification affects a district court’s analysis
under F ED. R. E VID. 403, the catch-all provision ex-
cluding evidence that is relevant under Rule 401 but
unduly prejudicial.
2                                             No. 08-1516

  The government wants to use Rule 413 evidence
against Stephen Rogers in his trial for attempting to
entice a minor to engage in sexual activity and for using
the Internet to attempt to transfer obscene material to a
minor. The prosecutors therefore offered for admission
two instances of similar conduct: a 2001 Illinois con-
viction for solicitation of a minor, and sexually explicit
Internet conversations Rogers had with a 14-year-old girl
in 2005. The district court excluded the evidence under
Rule 403 and the government appeals. Because the
record causes us to doubt whether the district court
fully appreciated the legal relation between Rules 413
and 403, we reverse its exclusion of the evidence and
remand for a new determination.


                            I
  Rogers has an unfortunate habit of chatting with
minor girls on the Internet. In 2005, he used the Internet
to initiate chats with a 14-year-old girl in Wisconsin. In
addition to frequently raising the topic of sex, Rogers
encouraged the girl to send him pictures of herself, which
she did. These pictures included a closely cropped
picture of the 14-year-old’s genitalia and a picture of
her naked breasts. In addition, Rogers repeatedly urged
the girl to meet him for a sexual encounter. As a result
of this conduct, the government charged Rogers with
knowingly receiving child pornography, in violation of
18 U.S.C. § 2252A(a)(2)(A), and persuading a minor to
engage in sexually explicit conduct for the purpose of
producing child porn, in violation of 18 U.S.C. § 2251(a).
No. 08-1516                                             3

  In 2006, Rogers again used the Internet to strike up a
conversation with someone whom he believed was a
minor girl; this time, however, he was chatting with a
police officer pretending to be a 13-year-old girl named
“Emily.” Over the course of two months, Rogers used
email and instant messenger to persuade “Emily” to meet
him for sex. Rogers arranged dates, times, and places to
meet, but he never showed up at any of the arranged
meetings. He continued, however, to have sexually
explicit communications with “Emily.” He also emailed
“Emily” a cell phone picture of a hand holding an erect
penis. For this conduct, the government charged Rogers
with attempting to entice a minor to engage in sexual
activity, 18 U.S.C. § 2442(b), and using the Internet to
attempt to transfer obscene material to a minor, 18 U.S.C.
§ 1470.
  Rogers has one prior conviction for using the Internet
to persuade someone whom he believed was a minor to
have sex. In 2001, Rogers initiated a chat-room conversa-
tion with “Loren,” a police officer pretending to be a 15-
year-old girl. Rogers arranged to meet “Loren” at her
house for sex, and the police arrested Rogers as he
walked toward the address supplied by the officer.
Rogers pleaded guilty in state court to indecent solicita-
tion of a child in violation of 720 ILCS 5/11.
  In the lead-up to Rogers’s trial for his 2005 and 2006
conduct, the government filed a motion to admit evidence
of the 2001 conviction. During a hearing on January 31,
2008, the district court orally denied the motion. The
judge found that, while the 2001 conviction falls within
Rule 413, the danger of unfair prejudice to Rogers from
4                                             No. 08-1516

inferences based on his propensity to commit this sort of
crime substantially outweighs the minimal probative
value of the 2001 conviction. The court commented that
the conviction “creates exactly the kind of concern that
propensity evidence is always worried about,” and then
ruled that it would exclude the conviction under Rule 403.
  After this decision, the government filed a superseding
indictment that charged the four counts discussed above.
The latest indictment added the child-pornography
count based on new information provided by the Wis-
consin minor. In response, Rogers asked the court to
bifurcate the trial: he wanted one proceeding for his
interactions with the 14-year-old girl and one for his
interactions with “Emily.” The district court granted his
request. The government then filed its second Rule 413
motion, asking the court to admit evidence of both his
2001 conviction and the 2005 conduct relating to Rogers’s
interactions with the 14-year-old Wisconsin girl. In that
motion, it took the position that the 2005 conduct fell
within the definition of an “offense of sexual assault”
provided by Rule 413(d)(1) and (5), insofar as it went
beyond the mere sending of pictures and included
concrete attempts to meet the minor for purposes of
sexual intercourse. The 2005 conduct, it argued, thus
involved attempted sexual contact with a minor and
qualified as “conduct proscribed by Chapter 109A of title
18, United States Code.” See Doe v. Smith, 470 F.3d 331,
342 & n.20 (7th Cir. 2006). The government made a
similar argument with respect to the conduct underlying
the 2001 conviction.
No. 08-1516                                               5

  During a hearing on February 29, 2008, the district
court denied this second Rule 413 motion. This time, the
district court found that the conduct failed to qualify as
an “offense of sexual assault” under Rule 413 because
the Wisconsin minor willingly participated in the con-
versations. Alternatively, the district court found that the
danger from propensity inferences substantially out-
weighed the minimal probative value and excluded
the evidence under Rule 403. Invoking this court’s juris-
diction over an interlocutory appeal by the United States
from a decision to exclude evidence, see 18 U.S.C. § 3731
¶ 2, the government appeals the exclusion of both the
2001 conviction and the 2005 conduct with the minor.


                             II
  The government challenges the court’s decisions on two
grounds: first, with respect to the 2005 conduct, it argues
that the district court erred by interpreting “offense of
sexual assault” to exclude attempted, non-forcible
sexual contact with a minor; and second, with respect to
both of its proffers, it argues that the district court
abused its discretion by excluding the evidence under
Rule 403 because it failed to recognize that Rule 413
reversed the presumption that prior crimes pose a
danger of unfair prejudice from propensity inferences. We
review a district court’s interpretation of the rules of
evidence de novo and we review its decision to admit or
exclude evidence for abuse of discretion. United States v.
LeShore, 543 F.3d 935, 939, 941 (7th Cir. 2008).
6                                               No. 08-1516

    Rule 413(a) reads as follows:
     In a criminal case in which the defendant is accused
     of an offense of sexual assault, evidence of the defen-
     dant’s commission of another offense or offenses of
     sexual assault is admissible, and may be considered
     for its bearing on any matter to which it is relevant.
Two criteria must be satisfied for this rule to apply: first,
the defendant must be accused of an offense of sexual
assault, and second, the prior act must be an offense of
sexual assault. Rule 413(d) defines an “offense of sexual
assault” to include both “any conduct proscribed by
chapter 109A” of title 18, F ED. R. E VID. 413(d)(1), and an
attempt to engage in either “contact, without consent,
between any part of the defendant’s body or an object
and the genitals or anus of another person” or “contact,
without consent, between the genitals or anus of the
defendant and any part of another person’s body.” FED. R.
E VID. 413(d)(2)-(5). Nobody disputes that the first
criterion is met: the government charged Rogers with an
attempt to entice a minor to engage in sexual activity.
And nobody disputes that the second criterion is
satisfied for the 2001 conviction, as Rogers pleaded guilty
to knowingly soliciting a person he believed to be a minor
to perform an act of sexual penetration. See 720 ILCS 5/11.
  The first question we must address is whether the
district court correctly found that the 2005 conduct does
not qualify as an “offense of sexual assault” because there
No. 08-1516                                                    7

was no “contact, without consent.” 1 (The court did not
rely directly on Rule 413(d)(1), which may have obviated
the need for the focus on consent. As we noted in Doe v.
Smith, supra, “[b]y cross-reference, Chapter 109A of title 18
forbids both ‘sexual acts’ and ‘sexual contact’ with a
minor, as well as attempts to do either of these things.”
470 F.3d at 342 n.20. Consent does not play a role in the
statutory definition of either of “sexual acts” or “sexual
contact.” See 18 U.S.C. § 2246(2) and (3). Neither party
has made anything of this point, however, and so we
proceed to consider the appeal as it has been presented
to us.)
  To reach this conclusion, the district court interpreted
“consent” to mean literal consent rather than legal con-
sent. Under this interpretation, an attempt to have sex with
a minor could be consensual for the purpose of Rule 413 if
the minor willingly participated. Looking at Rogers’s
conversations with the 14-year-old girl in 2005, the district
court decided that they were not “without consent” and
therefore did not qualify under Rule 413. We cannot agree
with the district court’s interpretation of the word “con-
sent.” Rule 413 uses that word without qualifying it as
actual or literal, and nothing suggests that Congress meant
“consent” to mean anything other than its general legal


1
  For the purpose of this appeal, we have assumed that the 2005
conduct could properly be characterized as attempted sexual
contact. We recognize that the line between solicitation and
attempt can be difficult to draw, see United States v. Gladish,
536 F.3d 646, 649-50 (7th Cir. 2008), and United States v. Davey,
550 F.3d 653, 658 (7th Cir. 2008), and we do not mean to fore-
close further attention to that point on remand.
8                                               No. 08-1516

definition. Minors lack the capacity to consent, and so
sexual contact with a minor is always “without consent.”
See Doe v. Smith, 470 F.3d at 345 (holding that a defendant
attempts to assault a minor sexually when he solicits the
child’s acquiescence in the sex act). Attempting to have
sexual contact with the 14-year-old girl therefore
qualifies as an “offense of sexual assault” under Rule 413,
and thus the second criterion of the rule is satisfied for
the 2005 behavior as well.
  But, as the district court recognized, whether Rule 413
evidence is admissible neither begins nor ends with the
text of that rule. Rule 413, after all, is permissive; it
allows, but does not compel, the admission of evidence
falling within its sweep. Accordingly, we must also
consult Rules 401, 402, and 403. Evidence is admissible
only if it is relevant. F ED. R. E VID. 402. In other words,
the evidence must have at least some “tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less
probable than it would be without the evidence.” FED. R.
E VID. 401. Before considering whether evidence is ad-
missible under a more specific rule, such as Rule 413,
courts must consider why the evidence is relevant.
  Here, we see at least three ways Rogers’s prior conduct
makes it more likely that Rogers, by chatting with “Emily,”
was attempting to entice a minor to engage in sexual
activity and to send obscene material to a minor. First, the
evidence helps the government prove that Rogers intended
to send the obscene picture to a minor and intended to
persuade a minor to engage in sexual acts. During the
hearings, Rogers said that he would argue during trial that
No. 08-1516                                               9

he realized that “Emily” was an undercover officer and
that he never intended to meet “Emily” in person. That
Rogers previously had tried to persuade an actual minor
to have sex with him and previously had traveled to
meet someone he believed to be a minor for the purpose
of having sex is relevant because it counters this defense.
  Second, the evidence establishes motive by showing that
Rogers has “a taste for engaging in that crime or a com-
pulsion to engage in it.” United States v. Cunningham, 103
F.3d 553, 556 (7th Cir. 1996). “Prior instances of sexual
misconduct with a child victim may establish a
defendant’s sexual interest in children and thereby serve
as evidence of the defendant’s motive to commit a
charged offense involving the sexual exploitation of
children.” United States v. Sebolt, 460 F.3d 910, 917 (7th
Cir. 2006).
  And third, the simple fact that Rogers had done it before
makes it more likely that he did it again. This so-called
“propensity evidence” is relevant because common
sense suggests that someone with a propensity to do
something is more likely to have done the same thing
again. The evidence, therefore, makes a fact of con-
sequence more or less likely. Old Chief v. United States,
519 U.S. 172, 180-81 (1997); Michelson v. United States,
335 U.S. 469, 475-76 (1948).
  Relevance, in short, is necessary, but not sufficient, for
admissibility. Propensity evidence exemplifies this fact, as
common-law courts traditionally considered the propen-
sity inference relevant but improper. See Michelson, 335
U.S. at 475-76. Rule 404(b) explicitly adopts this common-
law tradition by banning the use of prior conduct to
10                                               No. 08-1516

establish a propensity to commit the crime: “Evidence of
other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in con-
formity therewith.” But Rule 413 alters this general prohi-
bition by permitting the admission of a prior offense
of sexual assault “for its bearing on any matter to which
it is relevant” in a criminal case where the defendant is
accused of sexual assault. The rule expressly allows the
government to use a defendant’s prior conduct to
prove the defendant’s propensity to commit the types
of crime described in the rule. Congress intended, in
passing Rule 413, to provide an exception to Rule 404(b)’s
general bar and to permit the trier of fact to draw infer-
ences from propensity evidence. United States v. Julian,
427 F.3d 471, 486 (7th Cir. 2005); United States v. Hawpetoss,
478 F.3d 820, 823 (7th Cir. 2007).
   We have explicitly said, and both parties agree, that
after a Rule 413 analysis the court must next consider
whether it should exclude the evidence under Rule 403.
See Hawpetoss, 478 F.3d at 824. The question therefore
becomes whether Rule 413’s permission to use pro-
pensity evidence in sexual assault trials affects a court’s
Rule 403 analysis of evidence falling within that rule.
Under Rule 403, a court may exclude evidence “if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.” Evidence poses a danger of “unfair prejudice”
if it has “an undue tendency to suggest decision on an
improper basis, commonly, thought not necessarily, an
No. 08-1516                                              11

emotional one.” FED. R. E VID. 403 advisory committee’s
note.
  The government argues that Rule 413 reverses “any
presumption, applicable in other cases not involving
sexual offense, that evidence of other crimes poses an
unfair prejudice.” But this cannot be right, because it
takes as a premise a presumption that does not exist.
Rule 404(b) bans the use of prior bad acts to show action
in conformity with the past behavior. The rule bans not
the evidence, but the propensity inference. It also says
that other inferences that might be drawn from prior
bad acts, such as intent or motive, are permissible. Rule
404(b) neither creates any presumption nor tells a court
what to do when prior-act evidence gives rise to both a
propensity inference and an intent interference. The
rule instead identifies which inferences are improper
and which are proper. It is Rule 403—not Rule 404—that
gives a court discretion to exclude prior-act evidence if
the danger of the improper inferences substantially
outweighs the probity of the proper ones. Rule 404(b) is
thus nothing more than a rule that bars one particular
inference from prior-act evidence; it is Rule 403 that
gives a court discretion to exclude evidence that is prob-
lematic because it will be difficult to confine it to proper
bounds, because of “the danger of unfair prejudice,
confusion of the issues, or misleading the jury,” or similar
concerns.
  But while we reject the government’s argument, we
nonetheless agree with the broader position that
Rule 413 affects the Rule 403 analysis of past sexual
offenses introduced in sexual assault cases. As we out-
12                                              No. 08-1516

lined above, the danger of unfair prejudice comes from
the risk that a jury will base its decision on improper
inferences. Rule 404(b) identifies the propensity
inference as improper in all circumstances, and Rule 413
makes an exception to that rule when past sexual
offenses are introduced in sexual assault cases. Congress
has said that in a criminal trial for an offense of sexual
assault, it is not improper to draw the inference that the
defendant committed this sexual offense because he has
a propensity to do so. Because Rule 413 identifies this
propensity inference as proper, the chance that the jury
will rely on that inference can no longer be labeled as
“unfair” for purposes of the Rule 403 analysis. While
Rule 403 remains the same, a court’s Rule 403 analysis
of prior conduct differs if the evidence falls under
Rule 404(b) versus Rule 413; in the former analysis, the
rule has decreed that the propensity inference is too
dangerous, while in the latter, the propensity inference
is permitted for what it is worth.
  That said, evidence of prior sexual offenses may still
pose significant dangers against which the district court
must diligently guard. Even if the evidence does not
create unfair prejudice solely because it rests on propen-
sity, it may still risk a decision on the basis of something
like passion or bias—that is, an improper basis. Even
though Congress has made the propensity inference
permissible, it has not said that evidence falling within
Rule 413 is per se non-prejudicial. To the contrary, a jury
might use such evidence, for example, to convict a defen-
dant because it is appalled by a prior crime the defendant
committed rather than persuaded that he committed
the crime charged. See Old Chief, 519 U.S. at 180-81. Or a
No. 08-1516                                           13

jury, uncertain of guilt, may convict a defendant be-
cause they think the defendant is a bad person generally
deserving of punishment. See id. We mention these dan-
gers only as examples; our list does not purport to be
exhaustive. Rule 403 remains an important safeguard
against the admission of prejudicial evidence, and courts
enjoy wide discretion in applying the rule. Julian, 427
F.3d at 487. When exercising that discretion, however,
courts must recognize that, for Rule 413 evidence, the
propensity inference must be viewed differently.
  While the danger of prejudice may well substantially
outweigh the probative value of Rogers’s 2001 con-
viction and 2005 conduct, it is unclear from the record
whether the district court took the approach that we
have outlined here. In excluding the 2001 conviction and
the 2005 conversations, the court expressed concern that
proof of past acts would improperly distract a jury’s
attention away from the charges at hand. The court ex-
plained that the evidence that the government had prof-
fered “increase[s] enormously the danger that the jury
might convict upon—not upon what the actual charges
are here, but because this guy is a terrible guy as
evidenced by this earlier occurrence.” While the court
properly identified an illegitimate and prejudicial form
of inference, it also discussed the substantial danger
posed by “propensity evidence” and stated there was the
“strongest kind of prospect for a jury to be making a
propensity determination.” A decision to exclude evi-
dence based on the prejudicial effect of the propensity
inference would be problematic.
14                                              No. 08-1516

  The court also balanced the dangers of prejudice
against the probative value, which it considered minimal.
The court did not however acknowledge the probative
value of the propensity inference, nor did it explain
what about Rogers’s particular prior sexual offenses
made them more prejudicial than probative. Thus, al-
though the court worked admirably to comply with
Rules 403 and 413, we are not convinced that it fully
appreciated the finely tuned balancing that the Rules
require.
  Although, after conducting the appropriate analysis, the
district court may come to the same conclusion, we con-
clude that we must remand this case so that it can re-
consider its ruling on these two sets of prior-act evidence.
If we thought that a list of “factors” would be helpful
in this process, we would offer one, but, unlike our col-
leagues in the Ninth Circuit, we believe that lists are
unhelpful in the end for this inquiry. See United States
v. LeMay, 260 F.3d 1018 (9th Cir. 2001) (requiring district
courts to consider five enumerated factors); Hawpetoss,
478 F.3d at 825-26 (rejecting LeMay’s approach); United
States v. Kelly, 510 F.3d 433, 437 (4th Cir. 2007) (adopting
our flexible approach). Rule 403 balancing depends on
the context and individual circumstances of each case,
and we prefer not to “cabin artificially the discretion of
the district courts.” Hawpetoss, 478 F.3d at 825.
                            ***
  We R EVERSE the exclusion of the 2001 conviction and
the 2005 conduct and R EMAND for further proceedings
consistent with this opinion.
No. 08-1516                                                15

  C UDAHY, Circuit Judge, concurring. I have no objection
to remanding this matter to apply the rather complex
and finely articulated framework the majority has sup-
plied. On remand, the district court will apparently not
be Judge Shadur, who has recused himself from further
participation in this case. As indicated in his recusal
order, it appears that feelings were running high based
on Judge Shadur’s objection to certain tactics employed
by the government as the case neared trial. It is because
of this background tension that I write separately, not
because of anything written in the majority opinion.
  I believe Judge Shadur’s recusal reflects, at least in part,
his concern that there might be some doubt of his capacity
to rule impartially on matters involving propensity evi-
dence under Rules 413-415. In my view, his recusal on this
account or any other arising in this case was entirely
unnecessary and his impartiality, especially as to propen-
sity evidence, is unquestioned. Many judges hold reserva-
tions about the law they must apply, but, like Judge
Shadur, are able to generally cabin these concerns to
the appropriate forum.
  I categorically reject any suggestion by the government
that Judge Shadur may have clung in an improper way to
his own beliefs about the admissibility of propensity
evidence or used Rule 403 as a vehicle to advance an
agenda. This Court today and others previously have
broadly accepted Rule 403 as a necessary bulwark against
improper inferences to be drawn from evidence
admitted through Rules 413-415. See, e.g. United States v.
LeMay, 260 F.3d 1018, 1026-27 (9th Cir. 2001) (“As long as
16                                                 No. 08-1516

the protections of Rule 403 remain in place to ensure
that potentially devastating evidence of little probative
value will not reach the jury, the right to a fair trial remains
adequately safe-guarded.”); United States v. Enjady,
134 F.3d 1426, 1433 (10th Cir. 1998). Likewise, in ap-
plying Rule 403, Judge Shadur appropriately weighed
prejudicial inferences that this Court today finds within
the scope of Rule 403 balancing in criminal trials for
sexual assault. See Op. at 12-13.
  That written, the foregoing should only be read as an
aside supporting my belief that Judge Shadur properly
discharged his duty to dispassionately preside over this
case until he very conscientiously, but unnecessarily,
exercised his discretion to recuse.




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