United States v. Dan Waeckerle, Jr.

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 24-1941 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAN R. WAECKERLE, JR., Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 3:22-cr-30050 — Staci M. Yandle, Chief Judge. ____________________ ARGUED FEBRUARY 18, 2026 — DECIDED OCTOBER 26, 2026 ____________________ Before SCUDDER, JACKSON-AKIWUMI, and PRYOR, Circuit Judges. JACKSON-AKIWUMI, Circuit Judge. Dan Waeckerle had a sexually inappropriate relationship with an underage girl. A jury found him guilty of soliciting obscene material from a minor, transferring obscene matter to a minor, sexual exploi- tation of a minor, and committing a felony involving a minor while required to register as a sex offender. On appeal, Waeckerle challenges the sufficiency of the evidence for the 2 No. 24-1941 soliciting and transferring charges. He also challenges one of the district court’s evidentiary rulings and the court’s replace- ment of a juror during deliberations. Finding no errors, we affirm the judgment of conviction. I. In 2021, a fifteen-year-old girl told her parents that she and Waeckerle, a family friend, had exchanged inappropriate text messages. She admitted that some of the messages were sex- ually explicit, and that she and Waeckerle had sent each other lewd images and videos. The minor’s parents reported Waeckerle to the police. In an interview with police, Waeckerle admitted to texting with the minor. A search of Waeckerle’s cell phone uncovered messages indicating that he had asked the minor to take—and send him—sexually explicit pictures and videos of herself. Waeckerle’s phone also contained messages indicating that he had sent the minor a picture of a penis. But police were unable to recover any of the actual images or videos. Waeckerle de- leted the media he exchanged with the minor from his cell phone. Waeckerle also told the minor in a text message to “make sure [she] delete[d] everything” from her cell phone, and the minor testified that she complied to prevent her mother from discovering the inappropriate content. A federal grand jury returned a four-count superseding indictment against Waeckerle. Count I charged Waeckerle with soliciting an obscene visual depiction of a minor in vio- lation of 18 U.S.C. § 2252A(a)(3)(B)(i). Count II charged trans- ferring obscene matter to a minor in violation of 18 U.S.C. § 1470. Count III charged sexual exploitation of a mi- nor in violation of 18 U.S.C. § 2251(a) and (e). And in Count No. 24-1941 3 IV, Waeckerle was charged with committing a felony involv- ing a minor while required to register as a sex offender in vi- olation of 18 U.S.C. § 2260A. Before trial, the government moved to prohibit Waeckerle from referring to, introducing evidence of, or questioning any witness about the minor’s past sexual behavior. The govern- ment brought its motion pursuant to Rule 412 of the Federal Rules of Evidence, which generally prohibits a party from of- fering evidence “to prove that a victim engaged in other sex- ual behavior” or “to prove a victim’s sexual predisposition.” Fed. R. Evid. 412(a)(1)–(2). Waeckerle responded by filing a notice of intent to admit evidence of the minor’s alleged prior history of exchanging sexually explicit images with other men. He reasoned that such evidence fell within the exception to Rule 412 for “evidence of specific instances of a victim’s sexual behavior” that is “offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence.” Id. 412(b)(1)(A). Additionally, Waeckerle argued, excluding the evidence “would violate [his] constitu- tional rights,” triggering another of Rule 412’s exceptions. Id. 412(b)(1)(C). The district court disagreed with Waeckerle on both fronts and granted the government’s motion to exclude. Waeckerle’s trial began on a Tuesday. During jury selec- tion, the court advised the jury that the trial would be over by Thursday. But that did not happen. The jury began deliberat- ing on Thursday morning, and it did not reach a verdict by the end of the day. On Thursday afternoon, it became clear the jury would have to return the following day. One of the jurors told the court that she could not resume deliberations the next morning because she had to go to a funeral. The court informed the parties that it was inclined to excuse the juror 4 No. 24-1941 because nobody had “anticipated the conflict.” Waeckerle ob- jected, raising for the first time the prospect that the alternate jurors might have seen him shackled. But the court overruled his objection, excused the funeral-bound juror, and replaced her with an alternate. Deliberations resumed on Friday morning. By midday, the jury reached a verdict of guilty on all counts. The court sen- tenced Waeckerle to 485 months’ imprisonment and a lifetime of supervised release, plus a fine and special assessment. Waeckerle now appeals. II. Waeckerle raises four claims in his appeal. First, that there was insufficient evidence for the jury to find him guilty on Counts I and II, the charges for soliciting and transferring ob- scene material to a minor. Second, that the district court erred by excluding evidence of the minor’s prior sexual history and her sexual propensity. Third, that the court erred by excusing a juror during deliberations so she could attend a funeral. And fourth, that the court erred by seating an alternate juror with- out first asking if that alternate had seen Waeckerle shackled. We consider each argument in turn. A. Sufficiency of the evidence We begin with Waeckerle’s claim that his conviction on Counts I and II cannot stand. Before reaching the merits, we note the parties’ disagreement over how best to characterize this claim. Waeckerle says we are reviewing the district court’s denial of a motion for judgment of acquittal. The gov- ernment, on the other hand, contends that this is a sufficiency of the evidence challenge. No. 24-1941 5 Ultimately, the parties’ disagreement is immaterial, be- cause the standard of review for a district court’s denial of a motion for a judgment of acquittal is, practically speaking, the same as that for a sufficiency of the evidence challenge. United States v. Sorensen, 134 F.4th 493, 497 (7th Cir. 2025). “[W]e re- view the evidence presented at trial in the light most favora- ble to the government and draw all reasonable inferences in its favor.” Id. at 498 (quoting United States v. Anderson, 988 F.3d 420, 424 (7th Cir. 2021)). “We will overturn [Waeckerle’s] conviction only if, after reviewing the record in this light, we determine that no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” Id. (quoting Anderson, 988 F.3d at 424). Recall that Count I charged Waeckerle with soliciting “an obscene visual depiction of a minor engaging in sexually ex- plicit conduct,” and Count II charged him with “knowingly transfer[ring] obscene matter to another individual who has not attained the age of 16 years.” 18 U.S.C. §§ 2252A(a)(3)(B)(i), 1470. Convicting Waeckerle on each count required the government to prove various ele- ments. On appeal, Waeckerle questions only whether the gov- ernment proved that the material he solicited and transferred was “obscene.” The statutes under which Waeckerle was prosecuted do not define the word obscene. We therefore look to the Su- preme Court’s definition in Miller v. California, 413 U.S. 15 (1973). In Miller, the Court explained that obscene material is that “which, taken as a whole, appeal[s] to the prurient inter- est in sex, which portray[s] sexual conduct in a patently offen- sive way, and which, taken as a whole, do[es] not have serious literary, artistic, political, or scientific value.” Id. at 24. 6 No. 24-1941 Waeckerle argues that because the government did not ad- mit the images or videos he exchanged with the minor, the jury could not determine whether that media was obscene. And without a jury’s finding that the media met the legal def- inition of obscenity, Waeckerle says, the government did not meet its burden of proof. Essentially, Waeckerle’s position is that a defendant can only be found guilty of soliciting or transferring obscene media if the government admits that ma- terial into evidence at trial. Waeckerle is correct to point out that in almost all prose- cutions for soliciting or transferring obscene material to a mi- nor, the government offers and a factfinder reviews the of- fending material to determine whether it is obscene as a mat- ter of law. But it’s also true that “[c]rimes may be proved en- tirely by circumstantial evidence.” United States v. Moore, 115 F.3d 1348, 1364 (7th Cir. 1997) (quoting United States v. Town- send, 924 F.2d 1385, 1390 (7th Cir. 1991)). Indeed, we previ- ously rejected “an implication that circumstantial evidence is weaker than direct evidence.” United States v. Godinez, 7 F.4th 628, 639 (7th Cir. 2021) (citation omitted). In so doing, we re- affirmed that “[c]ircumstantial evidence is not less probative than direct evidence … .” Moore, 115 F.3d at 1364 (citing United States v. Grier, 866 F.2d 908, 923 (7th Cir. 1989)). That’s why our circuit’s pattern instructions direct juries to “con- sider both direct and circumstantial evidence,” and that’s why the instructions make clear that “[t]he law does not say that one is better than the other.” The William J. Bauer Pattern Criminal Jury Instructions of the Seventh Circuit at 12 (2025 ed.). The question, then, is whether this is the rare case where circumstantial evidence will suffice for a factfinder to make an No. 24-1941 7 obscenity determination. On the record before us, the answer is yes—the jury had ample circumstantial evidence to find be- yond a reasonable doubt that Waeckerle solicited and trans- ferred obscene material to a minor. Consider the evidence the government introduced to prove Waeckerle’s guilt on Count I, the solicitation charge. Waeckerle sent the minor a text message stating that she “should go to the bathroom and show [him her] pussy.” The minor testified that after receiving Waeckerle’s message, she filmed herself masturbating with her “bare vagina” shown and sent him the video. The next day, Waeckerle sent the mi- nor a message stating, “When you can send me a pic of your tits.” The minor responded with a photo, to which Waeckerle replied, “Good girl.” The day after that, Waeckerle asked the minor if she was “able to play with [her]self right now,” to which she responded, “Yes.” He replied, “[S]how daddy,” prompting her to send him several videos of herself mastur- bating with a hairbrush. Later, Waeckerle sent the minor a message stating, “Mmm your [sic] going to really love your new toy. It’s going to feel alot [sic] better than that old hair- brush.” The jury saw each of these text messages. The messages were contained in logs recovered from Waeckerle’s and the minor’s cell phones, and the government introduced those logs into evidence. Viewing the messages and the minor’s trial testimony in the light most favorable to the verdict, we con- clude that a jury could find that the images and videos Waeck- erle solicited satisfied the Miller test for obscenity. The gov- ernment presented sufficient evidence for the jury to find Waeckerle guilty beyond a reasonable doubt of soliciting ob- scene material from a minor. 8 No. 24-1941 Waeckerle’s conviction on Count II, the transferring charge, is also sound. Waeckerle admitted to police that he sent the minor a picture of a penis. The government presented Waeckerle’s recorded statement, which contained his admis- sion, to the jury. On the stand, the minor testified that Waeck- erle sent her a picture of a penis that was “white” and “erect.” And the text messages admitted into evidence indicated Waeckerle sent the minor a picture of an erect penis: Waeck- erle asked, “Can you get a picture without getting caught,” sent her an image, and the minor replied that she “want[ed] it inside of [her].” Viewing this evidence in the light most favorable to the verdict and drawing all reasonable inferences in the govern- ment’s favor, we cannot say it was impossible for the jury to find that Waeckerle sent an obscene image to the minor. See Sorensen, 134 F.4th at 498 (“We will overturn a conviction only if … we determine that no rational trier of fact could have found the essential elements of the offense beyond a reasona- ble doubt.” (citation omitted)). As we noted some time ago, albeit in a non-precedential order, a photograph of an erect penis may be considered obscene. See, e.g., United States v. Rogers, 474 F. App’x 463, 468 (7th Cir. 2012); accord United States v. Salcedo, 924 F.3d 172, 179 (5th Cir. 2019) (“[W]e previ- ously characterized an image of an erect penis as an ‘obscene picture’ without further discussion.”). And the government presented sufficient circumstantial evidence for the jury to conclude beyond a reasonable doubt that Waeckerle had sent such a photo to the minor. Consequently, there is no basis for reversing Waeckerle’s conviction for transferring obscene ma- terial to a minor. No. 24-1941 9 B. Evidentiary ruling We next consider Waeckerle’s challenge to the district court’s evidentiary ruling. The court barred Waeckerle from eliciting testimony from the minor about prurient messages she allegedly exchanged with other men. This evidence, the court found, did not fall within any of Rule 412’s exceptions. On appeal, Waeckerle insists this ruling was in error. Had he been allowed to question the minor about her sexual history, he argues, he could have established that “the ‘obscene’ im- ages were not made at his request and that the victim had them on her devices from previous interactions with other men and then shared them on her own with [him].” Moreo- ver, Waeckerle asserts, his cross examination of the minor would have “impeach[ed] her credibility on whether it was in fact [him] who sent her an obscene image or one of the other men she was having online, sexual conversations with.” According to Waeckerle, our review of the district court’s evidentiary decision should be de novo, rather than for abuse of discretion. See United States v. Groce, 891 F.3d 260, 266 (7th Cir. 2018) (“Usually we review evidentiary decisions for abuse of discretion.” (citation omitted)). He says that the court’s decision violated his constitutional right to present a complete defense. Granted, Rule 412 permits trial courts to admit “evidence whose exclusion would violate the defend- ant’s constitutional rights.” Fed. R. Evid. 412(b)(1)(C). And if a trial court’s exclusion of evidence infringes on a criminal de- fendant’s constitutional rights, we may review that ruling de novo. See, e.g., Groce, 891 F.3d at 266–68. In Waeckerle’s case, however, the trial record demonstrates that the district court’s decision did not infringe upon his constitutional rights. See id. 10 No. 24-1941 The broad line of questioning the district court allowed Waeckerle to pursue on cross examination permitted him to vindicate his Sixth Amendment Confrontation Clause rights. In a cross examination spanning nearly forty pages of the trial transcript, Waeckerle asked probing questions about the mi- nor’s sexual knowledge, interests, and attention-seeking be- havior. Waeckerle also questioned the minor about lies re- lated to her sexual past that she told her parents and advo- cates at a center for children who have been sexually abused. Thus, even though Waeckerle could not question the minor about her sexual history with other men, he “had a chance to impeach [her] credibility.” Id. at 268. This means “any consti- tutional concerns vanish.” Id. Given that the district court’s evidentiary ruling raises no constitutional concerns, our review of Waeckerle’s remaining evidentiary argument is for abuse of discretion. See Groce, 891 F.3d at 266. The district court found that the evidence Waeck- erle sought to introduce (about prurient messages the minor exchanged with other men) was not offered to prove that someone else “was the source of the semen, injury, or other physical evidence” at issue in his prosecution. Fed. R. Evid. 412(b)(1)(A). Moreover, the court found that the evidence was “not probative to the charges in this case and [was] clearly prejudicial.” We will affirm this evidentiary ruling “unless the record contains no evidence on which the district court ration- ally could have based its ruling.” United States ex rel. Streck v. Eli Lilly & Co., 152 F.4th 816, 852 (7th Cir. 2025) (citation mod- ified). Put differently, Waeckerle’s burden is to show that “the district court resolved the matter in a way that no reasonable jurist would, or its decision was fundamentally wrong, arbi- trary, or fanciful.” Id. (citation modified). No. 24-1941 11 Waeckerle has failed to meet his burden. For starters, the district court’s ruling kept irrelevant evidence from the jury. See Fed. R. Evid. 403. That did not violate the Constitution. See, e.g., United States v. Beavers, 756 F.3d 1044, 1052 (7th Cir. 2014) (“[T]he Constitution does not require the admission of irrelevant evidence (or other types of evidence whose rele- vance is outweighed by other important considerations).”). Even setting aside the minor’s testimony, other trial evidence rendered irrelevant whether the minor had exchanged sex- ually explicit media with individuals besides Waeckerle. The government presented logs from Waeckerle’s own cell phone—with his telephone number on them—showing that he solicited obscene images and videos from the minor. The government presented those same cell phone logs, plus Waeckerle’s admission to sending the minor a photo of a pe- nis, to show that it was Waeckerle who transferred an obscene image to the minor. There is nothing Waeckerle could have introduced that would have undermined the government’s evidence that it was he who solicited and transferred the ob- scene material at issue. Moreover, we cannot say it was unreasonable for the court to find that Waeckerle’s proposed evidence did not fall within Rule 412’s exception for “semen, injury, or other physical ev- idence.” Again, Waeckerle sought to introduce evidence—tes- timony and text messages—of the minor’s sexual history with other men. The district court found that this evidence “d[id] not constitute physical evidence contemplated by Rule 412.” The court gave the term “physical evidence” its natural mean- ing—it found that testimony and text messages are not in the same universe of “physical evidence” as “semen” and “in- jury.” We cannot say the court’s approach was “fundamen- tally wrong,” United States v. Purnell, 701 F.3d 1186, 1189 (7th 12 No. 24-1941 Cir. 2012), or “manifestly erroneous,” General Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997). On review for abuse of discre- tion, an error of that magnitude is required for us to disturb the district court’s evidentiary ruling. C. Excusing a juror Waeckerle’s next claim is that the district court abused its discretion by replacing a juror during deliberations. The fed- eral rules permit a trial court to replace a juror with an alter- nate even after deliberations have begun. See Fed. R. Crim. P. 24(c)(3). On appeal, we review such a decision for abuse of discretion. See, e.g., United States v. Turner, 836 F.3d 849, 865 (7th Cir. 2016) (citing United States v. Warner, 498 F.3d 666, 690 (7th Cir. 2007)). “If the district court has a ‘legitimate basis for th[e] decision [to replace a juror], there is no abuse of discre- tion.’” Id. (alterations in original) (quoting Warner, 498 F.3d at 690). Conversely, “[a] district court abuses its discretion when ‘no legitimate basis for the court’s decision can be found in the record, and the appellant shows that the juror’s dismissal prejudiced his case.’” United States v. Edwards, 34 F.4th 570, 586 (7th Cir. 2022) (quoting United States v. Pineda, 743 F.3d 213, 217 (7th Cir. 2014)). The district court had a legitimate basis for dismissing the juror during deliberations. The parties and the court antici- pated that deliberations would end on Thursday. When it be- came clear deliberations would extend to Friday, the schedule change created a conflict for the juror who had to attend a fu- neral. We see no abuse of discretion in the court’s decision to excuse a juror who needed to attend a funeral on a day she had been told she would no longer be serving jury duty. No. 24-1941 13 Turner is on point. There, we held that the district court did not abuse its discretion by dismissing a juror who notified the court that he could not deliberate the following day be- cause he had to attend a funeral. See Turner, 836 F.3d at 865– 66. True, the juror in Turner declared that he would not return for deliberations, while the juror in this case did not make such a definitive statement. But that distinction is immaterial. What is important is that here, as in Turner, the district court’s reason for dismissing the juror was because attending a fu- neral would prevent her from deliberating. A juror’s inability to attend deliberations provides a legitimate reason for a court to dismiss that juror. Cf. id. at 865 (“[T]here is hardly anything that would make a juror less able to serve than his failure to show up.” (citation modified)). Therefore, the district court did not abuse its discretion by replacing the funeral-bound juror with an alternate. D. Seating an alternate Waeckerle’s final claim is about the district court’s deci- sion to replace the dismissed juror with an alternate. The al- ternate, Waeckerle posits, may have seen him shackled. We see two overlapping arguments in Waeckerle’s briefs. One is that the district court erred by seating the alternate without first asking whether that juror had seen Waeckerle in shackles. The other argument is that the alternate was irreparably prej- udiced by seeing Waeckerle shackled, so the district court erred by not dismissing the alternate. Either way, our review is for abuse of discretion. See United States v. Sababu, 891 F.2d 1308, 1333–34 (7th Cir. 1989) (district court’s decision to voir dire juror); United States v. Lorefice, 192 F.3d 647, 654 (7th Cir. 1999) (district court’s decision to dismiss juror). 14 No. 24-1941 Neither of Waeckerle’s arguments can succeed. The dis- trict court heard argument from both parties before deciding to seat the alternate. During argument, Waeckerle could only speculate as to what the alternate may have seen. Having de- termined that there was no clear indication the alternate saw Waeckerle shackled, the court decided further inquiry was unnecessary. We cannot say the district court’s course of ac- tion was unreasonable. “[A]n abuse of discretion occurs only when no reasonable person could take the view adopted by the trial court.” United States v. Torres, 807 F.3d 257, 261 (7th Cir. 2015). The district court did not abuse its discretion by electing not to dismiss the alternate either. Here, we can assume for argument’s sake that the alternate saw Waeckerle shackled. But that’s a necessary, not sufficient, element of Waeckerle’s claim. Under our caselaw, he must also show that the judge’s refusal to dismiss the alternate who saw him in shackles prej- udiced him. United States v. Traeger, 289 F.3d 461, 472 (7th Cir. 2002); see also id. at 473 (endorsing idea that the “mere fact that a juror had a brief view of a defendant in custody is not suffi- cient to establish prejudice warranting a new trial”). Waeck- erle has failed to make that showing, which precludes us from finding in his favor on this issue. * * * For the reasons explained above, the conviction is AFFIRMED.