United States v. McLain
Seventh Circuit Narrows Admissibility of Neuropsychological Evidence Offered to Negate Specific Intent

Introduction

United States v. Auston McLain, No. 23-3384 (decided 30 July 2025), is the latest child-enticement decision from the United States Court of Appeals for the Seventh Circuit. While the panel (Judge Lee, joined by Chief Judge Sykes) ultimately affirmed McLain’s convictions for (1) attempted enticement of a minor, 18 U.S.C. § 2422(b), and (2) travel with intent to engage in illicit sexual conduct, 18 U.S.C. § 2423(b), the opinion goes well beyond a routine sufficiency-of-the-evidence affirmance.

The court sets two notable guideposts:

1. It sharply limits when neurocognitive or other mental-health expert evidence may be admitted to negate the “specific intent” element of child-enticement crimes, emphasising Federal Rules of Evidence 401, 403 and 704(b).
2. It re-endorses Pattern Criminal Jury Instruction 18 U.S.C. § 2422(b) Comment—that the government need not prove the defendant intended to personally engage in sexual activity, only that he intended to persuade, induce, or entice.

Judge Ripple, in dissent, would have reversed, warning against an “over-reliance” on harmless-error doctrine in the face of excluded defence evidence and prosecutorial missteps.

Summary of the Judgment

The Seventh Circuit addressed four clusters of alleged trial error:

1. Exclusion of Defence Experts. The district court barred neuropsychologist Dr. Michael Wilson and neurologist Dr. Napeek Nair. McLain argued their testimony would show stroke-induced decision-making deficits and lack of “predatory” traits, thereby negating specific intent. The panel held the evidence was (a) irrelevant or only marginally probative and (b) substantially outweighed by confusion and prejudice under Rule 403.
2. Exclusion of Hearsay-Related Defence Testimony. McLain was barred from recounting statements made by a prior trafficking victim (“Jay”) and from describing other trafficking cases he had read about. Assuming error, the court found exclusion harmless.
3. Prosecutor’s Rebuttal Remark. The prosecutor told jurors that defence counsel had “two and a half years … to make up the story.” The court criticised the comment but, under the multi-factor misconduct test (Gustafson, 2025), held the single remark did not deny a fair trial.
4. Jury Instruction on Intent. The district court instructed the jury that § 2422(b) does not require proof the defendant intended to engage in sexual activity himself. Relying on United States v. Berg, 640 F.3d 239 (7th Cir. 2011), the panel approved the language.

Finding no individual or cumulative error, the majority affirmed. Judge Ripple dissented, believing the exclusion of Dr. Wilson’s testimony and the prosecutor’s comment warranted reversal.

Analysis

1. Precedents Cited

• United States v. Berg, 640 F.3d 239 (7th Cir. 2011) – confirms the intent element of §2422(b).
• United States v. Cameron, 907 F.2d 1051 (11th Cir. 1990) – foundation for “psychiatric evidence to negate specific intent” analysis.
• United States v. Ricketts, 146 F.3d 492 (7th Cir. 1998) – courts must “vigorously police” psychiatric evidence.
• United States v. Gustafson, 130 F.4th 608 (7th Cir. 2025) – five-factor prosecutorial-misconduct rubric, applied here.
• Griffin v. California, 380 U.S. 609 (1965) – Fifth Amendment bar on commenting on silence.
• Rules of Evidence 401 (relevance), 403 (balancing), 404(a)(2) (character), 704(b) (ultimate-issue mental state), plus pattern jury instructions.

These authorities guided each contested ruling. Notably, the majority leverages Cameron and Ricketts to restrict psychiatric-neutral evidence, while reaffirming Berg to endorse the government’s intent instruction.

2. Court’s Legal Reasoning

The opinion follows a two-step path whenever expert evidence is offered to negate intent:

1. Strict Relevancy Scrutiny. The defendant must forge a “necessary inferential link” between the mental condition and the charged intent. Generalised cognitive deficits—even if real—fail to show why the defendant lacked the intent to persuade a minor.
2. Rule 403 Balancing. Psychiatric proof “carries a substantial risk of jury confusion.” Because jurors may regard expert labels (“severe neurocognitive deficits”) as excuses or diminished capacity—doctrines Congress has disfavoured in general intent crimes—the trial judge may exclude even marginally relevant testimony.

In short, the majority treats such evidence as inherently suspect and re-empowers trial judges to exclude it pre-trial.

On the instruction issue, the panel re-reads Berg not as dicta but as a direct holding. “Intent to entice” equals the intent to persuade someone believed to be a minor, irrespective of who—if anyone—will later perform the sexual act. That reading shields cases where undercover agents pose online as minors.

3. Impact of the Judgment

• Narrower Gateway for Mental-Health Defences.
  Defendants in §2422(b) and similar specific-intent prosecutions (e.g., fraud, terrorism) will face stiffer hurdles when offering neurological or psychiatric testimony. Trial courts can now confidently cite McLain to exclude evidence that (a) merely shows impaired judgement or risk-taking, or (b) risks morphing into “diminished capacity.”
• Reinforcement of Pattern Instruction on §2422(b).
  Jury instructions throughout the Seventh Circuit will likely replicate the language sanctioned here. Prosecutors need prove only an intent to entice, not to have sex. Defence theories that the defendant intended merely to rescue or mentor a minor (or that condoms were for “safety”) remain permissible but will rarely defeat the government’s burden if the digital messages show enticement.
• Guidance on Prosecutorial Boundaries.
  The opinion criticises inflammatory comments but finds no prejudice. It still serves as a cautionary tale: a fleeting remark can survive appeal, yet it risks dissent and may result in future reversals if evidence is weaker.
• Limited Value of “Harmless Error” Dissents.
  Judge Ripple’s dissent joins a growing chorus urging more circumspection before deeming errors harmless when they suppress defence evidence. Future litigants may cite his reasoning to press for greater appellate intervention.

Complex Concepts Simplified

• Specific Intent vs. General Intent. “Specific intent” means the government must prove the defendant had a particular, focused purpose—here, to entice a minor into sexual conduct. Showing general bad behaviour is insufficient.
• Rule 403 Balancing Test. Even relevant evidence can be excluded if its unfair prejudice, confusion, or waste of time substantially outweighs its value. Judges weigh the “plus” and “minus” side of the scale.
• Rule 704(b). An expert may describe mental illness or deficits but may not state a direct opinion that “the defendant lacked intent.” That ultimate decision is reserved for the jury.
• Hearsay Offered for Effect on Listener. An out-of-court statement is not hearsay when it is introduced to show the listener’s state of mind (why they reacted), rather than to prove the statement’s truth.
• Prosecutorial Misconduct Factors (Gustafson). Courts weigh (1) seriousness, (2) invitation, (3) curative instructions, (4) defence opportunity to reply, and (5) strength of the evidence.

Conclusion

United States v. McLain solidifies two doctrinal signposts in child-exploitation litigation:

1. Neuropsychological or other mental-health expert testimony will be admitted to negate specific intent only when it directly illuminates the defendant’s mental state during the offence and survives a searching Rule 403 analysis. General testimony about impaired judgement or non-predatory tendencies is unlikely to clear that bar.
2. The “intent” element of §2422(b) remains persuasive, not participatory. Prosecutors need not show the defendant intended to consummate sex; merely the intent to lure a minor suffices.

While the decision ultimately affirmed McLain’s conviction, it provides prosecutors, defence counsel, and district courts with a more explicit roadmap for handling expert psychiatric evidence, intent instructions, and borderline closing arguments. Judge Ripple’s dissent ensures that the conversation about harmless error and fair-trial safeguards will continue in future cases.