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    UNITED STATES of America, Plaintiff-Appellee, v. Lindell LUCK, Defendant-Appellant.
    No. 15-5746
    United States Court of Appeals, Sixth Circuit.
    Argued: March 9, 2017
    Decided and Filed: March 31, 2017

      ARGUED: Jeffrey B. Lazarus, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Kevin G. Ritz, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee. ON BRIEF: Jeffrey B. Lazarus, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Kevin G. Ritz, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.

      Before: CLAY, SUTTON, and GRIFFIN, Circuit Judges.
   OPINION

GRIFFIN, Circuit Judge.

Charged with possession and distribution of child pornography, defendant Lin-dell Luck sought, unsuccessfully, to force the government to stipulate to the child-pornographic nature of the material recovered from his laptops. On appeal, he contends that the district court’s refusal to force the stipulation violated the Supreme Court’s decision in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), which enforced a similar stipulation for felon status in felon-in-possession cases. We disagree. Overlooked in defendant’s presentation is an important caveat from Old Chief. “[0]ur holding,” Old Chief said, “is limited to cases involving proof of felon status,” id. at 183 n.7, 117 S.Ct. 644 — an explicit limitation that this court has relied on in rejecting previous attempts to expand Old Chief. We do so again, and hold that, in light of the explicit limitation on Old Chiefs, holding, as well as the material distinctions between felon status and the nature of the images in child pornography cases, the district court did not err in refusing to force the government to stipulate. Finding no reversible error in defendant’s remaining claims on appeal, we affirm.

I.

In August 2012, agents with the FBI Crimes Against Children Task Force discovered someone at 3425 Porters Gap Road in Halls, Tennessee, was using the Internet to download and share child pornography. They sought a search warrant for the home, which they executed on October 24, 2012. When they arrived, lead agents Aaron Thompson and Keith Melan-con introduced themselves to the homeowner, Donnie Luck, and asked that he gather the other family members in the living room. There, agents told Donnie, his wife, Lynne Luck, and their twenty-one-year-old, live-in son (and defendant here), Lindell Luck, the reason for their visit. According to Thompson, they told the Lucks they were free to leave while they executed the search warrant, but that they would like to ask them some questions. Although Donnie and Lynne did not recall being told they could leave, everyone agreed to answer questions.

Agents began with a round of general investigative questions- until an answer to one question caught Thompson’s attention: Lindell indicated that he had used something called a peer-to-peer file sharing network — the type of computer program that agents knew was used to download and share the pornographic material from 3425 Porters Gap Road. When agents heard this, they asked to speak with Lindell privately, offering to spare Lindell from having to answer embarrassing questions in front of his parents. Lindell and his parents agreed, and he and the agents departed to a nearby bedroom.

Once everyone got settled, Lindell divulged that he had viewed child pornography when he was younger. He told agents that a friend downloaded files onto his laptop using a peer-to-peer network, and also gave him a thumb drive with child pornography. The laptop, however, was not. in the house because it was being repaired for viruses. Agents asked if they could have a look at his online activity, and Lindell agreed. After their conversation ended, Lindell rejoined his mother and father in the living room.

Meanwhile, the agents’ search progressed to defendant’s bedroom, where they found another laptop that the family failed to disclose during the initial round of questioning. They asked to speak with Lindell again, and he agreed. Confronted with the latest discovery, Lindell changed his story. He told agents that he had viewed child pornography as recently as a week and a half ago, describing the type of peer-to-peer network he used to do so. He also clarified that he put child pornography on the thumb drive, not his friend. Agents asked if he would like to put his latest statement in writing. He agreed, but not before agents advised him of his right to remain silent, that any statement he made was completely voluntary, and that he did not have to give a statement. He dictated the following statement to agent Thompson:

I, Lindell “Logan” Luck, am giving this statement freely and voluntarily without threats or force from Law Enforcement. I have been advised of my right to refuse such statement and remain silent. I have requested Special Agent Thompson to write this statement as I tell it in my words.
I began looking at child pornograph [sic] when I was younger with a friend, Col-ton, and it grew into a habit. I do not get sexual gratification from it. I do it to relieve stress because it gives me a sense of control in my life. I want to stop but I’ve never been able to stop on my own from looking at it. I’m sorry for putting everyone though what I’ve put them through — my family.

After reviewing Thompson’s transcription for accuracy, Lindell signed the statement. The search ended a short while later.

According to Lindell, he has no memory of anything that occurred during the search, a consequence, he says, of the medications he was taking that “pretty much make [him] turn into a zombie anywhere between an hour and a half to two hours” after he wakes up.

The fruits of the search resulted in a three-count indictment against Lindell for distributing and possessing child pornography, in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(B). In the lead up to trial, the parties filed three motions that are at issue in this appeal.

First, defendant filed a motion to suppress the statements he gave to agents, contending that they were the product of “custodial interrogation” without the required Miranda warnings. He alternatively argued that the statements were involuntary under the Due Process Clause. The district court disagreed with both contentions and denied the motion.

Defendant also filed a motion to require the government to stipulate that the images recovered from his laptops depicted child pornography, thereby obviating the need to show them to the jury. The district court denied the motion, holding that “[t]he Government is entitled to prove its case free from any obligation to stipulate to the [e]vidence.”

Finally, the government filed a motion in limine to exclude evidence of Lindell’s physical and mental health and learning disability. Deferring decision on the motion until trial, the district court granted the motion after defendant made an offer of proof about what Lynne would say regarding defendant’s medical history and its lasting effects. The district court ruled that her testimony was inadmissible because, although probative in some respects, it raised a “significant risk of confusion about what the case is about.”

At trial, defendant also attempted to put Donnie on the stand for the sole purpose of invoking his Fifth Amendment right against self-incrimination in response to questions about whether he viewed or downloaded child pornography. Over defendant’s objection, the district court prevented him from doing so, finding that it would have “no probative value at all.”

At the close of trial, the jury found defendant guilty as charged, and the district court sentenced him to 78 months in prison.

II.

Defendant first argues that his statements to agents were inadmissible for two alternative reasons: one, he was “in custody” when agents questioned him without first advising him of his rights; and two, the agents used coercive conduct that rendered his statements involuntary under the Due Process Clause. In resolving these claims, we “review! ] the district court’s factual findings for clear error and its legal conclusions de novo.” United States v. Binford, 818 F.3d 261, 267 (6th Cir. 2016).

A.

Law enforcement officials are required to advise a person of their Miranda rights before engaging in “custodial interrogation.” See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As the quoted phrase implies, this requirement applies “only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ ” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). In determining whether a person is “in custody” for purposes of Miranda, courts look to “the objective circumstances of the interrogation ... to determine how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action[.]” United States v. Panak, 552 F.3d 462, 465 (6th Cir. 2009) (internal quotation marks and citation omitted). The ultimate inquiry is whether, under the totality of the circumstances, the interviewee’s freedom of movement was restrained to a degree associated with formal arrest. Id. If so, he is “in custody” for purposes of Miranda. Guiding the inquiry are four, non-exhaustive factors: “(1) the location of the interview; (2) the length and manner of the questioning; (3) whether there was any restraint on the individual’s freedom of movement; and (4) whether the individual was told that he or she did not need to answer the questions.” United States v. Hinojosa, 606 F.3d 875, 883 (6th Cir. 2010).

Under the totality of the circumstances, defendant was not “in custody.” To begin, defendant was questioned in his home, a fact that typically weighs against being “in custody.” Panak, 552 F.3d at 466. As for “the length and manner of the questioning,” Hinojosa, 606 F.3d at 883, agents interviewed defendant for roughly an hour, in two separate 20-to-30 minute sessions — not lengthy by our standards. See Mathiason, 429 U.S. at 495, 97 S.Ct. 711. During that -time, agents spoke to defendant in a calm, conversational manner, never becoming aggressive or brandishing their weapons. Nor was defendant’s “freedom of movement” restrained in any significant way. After agents asked to speak with defendant separately, defendant and his parents acquiesced, and he voluntarily accompanied them to a nearby bedroom. During each session, agents kept the door open and did not block the exit, positioning themselves either in a chair, on the floor, or standing across the room. Although agents did not tell defendant he was free to leave, they did inform him that he did not have to provide a statement. They also informed the entire family at the start of the search that they were free to leave the home. Defendant stresses that he was “a 21-year-old kid who never lived outside of his parents’ home, who ha[d] severe learning disabilities, and [who] was coming off sleeping medications from the night before,” but none of these facts, except maybe age, see J.D.B. v. North Carolina, 564 U.S. 261, 277, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011), are relevant under the objective “custody” inquiry, and the fact that he was a twenty-one-year-old adult does not weigh in his favor. Taken together, nothing about the objective circumstances of the interrogations indicate that a reasonable person in defendant’s position would suspect he was under arrest or otherwise not free to leave.

Defendant’s remaining arguments to the contrary are unpersuasive. First, he argues that the district court relied too heavily on the location of the questioning. We agree with defendant that location is not decisive in the custody analysis. The team with the home-field advantage will not necessarily win the sporting contest, but it is also called a home-field advantage for a reason — individuals are more comfortable speaking up and asserting themselves in the familiar confines of their home. See Panak, 552 F.3d at 466 (“[A]ll individuals, the meek and the brazen alike, generally will find it easier to exercise such control on their home turf than at the station house.”). And, contrary to defendant’s concern, the district court recognized that location is not conclusive of custody, observing that law enforcement agents can easily turn the home into an inhospitable setting by, for instance, arriving in large numbers, using a show of authority like brandishing weapons, or engaging in aggressive questioning. See id. (recognizing that these circumstances “may transform one’s castle into an interrogation cell”). As discussed above, however, none of these circumstances are present in this case.

Defendant also argues that the district court did not rely heavily enough on Donnie and Lynne’s account of what happened in the living room and whether they felt free to leave. We agree that the firsthand perceptions of individuals who are not the interviewee are relevant when setting the scene of the interrogation, see Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), but defendant is wrong to rely on Donnie and Lynne’s subjective assessment of their ability to leave to support the proposition that a reasonable person in Lindell’s position would not have felt free to leave. Their actual mindset is no more relevant than that of the interviewee. See Yarborough v. Alvarado, 541 U.S. 652, 667-69, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). Moreover, the focus of the inquiry is on a reasonable person in the defendant’s shoes. United States v. Galloway, 316 F.3d 624, 629 (6th Cir. 2003). Because Donnie and Lynne were not present during either interview, their account of the objective circumstances of what happened in the living room has only marginal relevance in the analysis.

For these reasons, we conclude that defendant was not “in custody” for purposes of Miranda.

B.

Defendant also argues that, regardless of whether he was in custody, his statements to agents were involuntary under the Due Process Clause.

This court uses a three-part inquiry to determine whether a confession is involuntary under the Due Process Clause. We ask: first, whether the police activity was “objectively coercive”; second, whether that coercion was “sufficient to overbear the defendant’s will”; and third, whether the coercive conduct was “the crucial motivating factor in the defendant’s decision to offer the statements.” Binford, 818 F.3d at 271 (quoting United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999)).

Defendant argues that he was under the influence of sleep medications at the time of the interrogation, rendering him especially vulnerable to the agents’ interrogation and making the agents’ conduct objectively coercive. There are two problems with this argument — one factual, one legal. First, the agents gave a different factual account. Agent Thompson testified that he did not get the sense that defendant was under the influence of any drugs, alcohol, or medication. And Agent Melancon did not get the impression that defendant, who he says provided clear statements and spoke in complete sentences, was in a zombie-like daze. Moreover, while his parents testified about defendant’s lethargic demeanor on a typical morning, they never actually described defendant’s demeanor on October 24, 2012. In any event, the district court credited the agents’ version of events, a ruling we will not disturb absent “a definite and firm conviction that the trial court committed a clear error of judgment.” United States v. Miner, 774 F.3d 336, 348 (6th Cir. 2014); see also United States v. Johnson, 732 F.3d 577, 582 (6th Cir. 2013) (credibility determinations reviewed for clear error). Defendant offers no reason why the district court’s credibility determination was clearly erroneous.

Second, even if defendant’s cognitive or volitional capacity was impaired, that “is never, by itself, sufficient to warrant the conclusion that his confession was involuntary for purposes of due process; some element of police coercion is always necessary.” United States v. Newman, 889 F.2d 88, 94 (6th Cir. 1989). According to Agent Thompson and Agent Melancon, there was no coercion. They spoke in conversational tones, did not threaten defendant or yell at him, and told him he did not have to provide a statement if he did not want to. Defendant was not arrested or otherwise prevented from leaving the agents’ presence. These circumstances amply demonstrate that defendant’s statements were not the product of police coercion. See Mahan, 190 F.3d at 423 (holding that a statement given under similar circumstances was not involuntary). Defendant does not challenge their account or otherwise argue that the agents’ conduct was overbearing or objectively coercive— nor could he, since he testified he has no recollection of the events of October 24, 2012.

But defendant has an answer for this shortcoming. He contends that because the government failed to record his statements — in violation of a recent Department of Justice policy encouraging the use of recording devices for some interrogations — this court should draw an adverse inference from that fact for purposes of the due process analysis. There are two problems with this argument, as well; again, one factual and one legal. First, the 2014 policy did not exist at the time agents questioned defendant, and, by its own terms, it only applies to individuals who have been arrested. Dep’t of Justice, Attorney General Holder Announces Significant Policy Shift Concerning Electronic Recording of Statements (May 22, 2014), https://www.justice.gov/opa/pr/attorney-general-holder-announees-significant-policy-shift-concerning-electronic-recording (accessed March 27, 2017). Defendant was not “in custody,” much less arrested. Thus, even if there is merit to the suggestion, there is no factual basis to endorse it in this case.

But defendant’s argument has a more fundamental flaw: “[A] violation by the government of its internal operating procedures, on its own, does not create a basis for suppressing [statements].” Unit ed States v. Myers, 123 F.3d 350, 355-56 (6th Cir. 1997). In other words, that the Department of Justice happened to conclude, in its professional judgment, that it was wise policy to encourage recording of interviews does not mean the new technique is now required in order to comport with due process. As with Mr. Herbert Spencer’s Social Statics, the Constitution does not enact the internal operating procedures that happen to be in vogue at the Department of Justice, or any other government agency. See Lochner v. New York, 198 U.S. 45, 75, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (Holmes, J., dissenting).

For these reasons, the district court did not err in holding that defendant’s statements were voluntary under the Due Process Clause.

III.

Defendant also challenges three evidentiary decisions. First, whether the government was forced to stipulate to the child-pornographic nature of the images recovered from defendant’s computers. Second, whether the district court erred in excluding evidence of his prior medical history and learning disability. And third, whether the district court erred in prohibiting Donnie Luck from taking the stand in order to invoke his Fifth Amendment privilege against self-incrimination. We review such decisions for an abuse of discretion. United States v. Odeh, 815 F.3d 968, 982 (6th Cir. 2016); United States v. Clark, 988 F.2d 1459, 1464 (6th Cir. 1993).

A.

Defendant argues that the district court erred in denying his motion to stipulate to the nature of the images recovered from his laptops.

As a general rule, a “defendant has no right to selectively stipulate to particular elements of the offense.” United States v. Boyd, 640 F.3d 657, 668 (6th Cir. 2011) (quoting United States v. Hebeka, 25 F.3d 287, 291 (6th Cir. 1994)) (internal quotation marks omitted). Twenty years ago, the Supreme Court carved out an exception: the government cannot refuse a defendant’s offer to stipulate to his felon status in federal felon-in-possession prosecutions. Old Chief, 519 U.S. at 191-92, 117 S.Ct. 644. The reason, the Court said, was because the general rule has “virtually no application when the point at issue is ... dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him.” Id. at 190, 117 S.Ct. 644. Because the nature of a prior conviction is not an element of the felon-in-possession offense and the fact of a prior conviction is “entirely outside the natural sequence of what the defendant is charged with thinking and doing to commit the current offense,” “[p]roving [felon] status without telling exactly why that status was imposed leaves no gap in the story of a defendant’s subsequent criminality.” Id. at 191, 117 S.Ct. 644. Lacking any justification to apply the general rule, the Court held that a district court abuses its discretion when it refuses to accept a stipulation regarding felon status in felon-in-possession prosecutions. Id. at 191-92, 117 S.Ct. 644.

Since then, defendants have sought to expand Old Chief's, exception beyond the issue of felon status. See Odeh, 815 F.3d at 982 (prior conviction in naturalization fraud prosecution); Boyd, 640 F.3d at 669 (serious bodily injury in carjacking prosecution); United States v. Owens, 159 F.3d 221, 225-26 (6th Cir. 1998) (witness bias in gambling conspiracy prosecution). This court has consistently rejected such requests, relying on the explicit disclaimer in Old Chief's, footnote 7 that “[its] holding is limited to cases involving proof of felon status.” Old Chief, 519 U.S. at 183 n.7, 117 S.Ct. 644; see, e.g., Odeh, 815 F.3d at 982 (“Because this case does not involve a prosecution under the felon-in-possession statute, the Old Chief exception does not apply.” (citing Old Chief 519 U.S. at 183 n.7, 117 S.Ct. 644)); Boyd, 640 F.3d at 668 (“The Court explicitly limited its holding ‘to cases involving proof of felon status.’ ” (quoting Old Chief, 519 U.S. at 183 n.7, 117 S.Ct. 644)).

This case involves yet another request to expand Old Chief, this time in the context of images depicting child pornographic material. As the parties point out, this court has rejected similar requests on at least two occasions, though only in unpublished decisions. See United States v. Mellies, 329 Fed.Appx. 592, 599-600 (6th Cir. 2009); United States v. Caldwell, 181 F.3d 104, at *6 (6th Cir. 1999) (unpublished table decision). Defendant argues we “should not follow” these prior decisions. He contends that Mellies and Caldwell are distinguishable because, given the type of material at issue in those cases (CDs, magazines, and films), “the jury had no way of confirming the items in question were in fact child pornography, and presenting the contents to the jury held high probative value.” Not so here, defendant says, because the file names of the digital images established that they were child pornography.

This argument fails on several levels. First and foremost, Mellies and Caldwell are consistent with our published authority that has rejected attempts to expand Old Chief on the basis that the Supreme Court limited its holding to the specific element and offense at issue in that case. See Caldwell, 181 F.3d at *6 (“The Supreme Court recognized an exception to this general rule only for stipulations to prior convictions as an element of an offensef.]”); Mellies, 329 Fed.Appx. at 599 n.10 (“[T]he Supreme Court unambiguously limited its holding in Old Chief to ‘cases involving proof of felon status.’ ” (quoting Old Chief, 519 U.S. at 183 n.7, 117 S.Ct. 644)); see also, e.g., Odeh, 815 F.3d at 982 (“Because this case does not involve a prosecution under the felon-in-possession statute, the Old Chief exception does not apply.” (citing Old Chief, 519 U.S. at 183 n.7, 117 S.Ct. 644)). Although Mellies and Caldwell are not binding on us, published cases like Odeh are. In light of the practice of this circuit to reject attempts to expand Old Chief as a matter of law, any factual nuances between this case and Mellies and Caldwell are simply irrelevant.

Furthermore, defendant’s analysis of Mellies and Caldwell is faulty. He contends that publishing the actual images was necessary in Mellies and Caldwell because, given the format of the materials at issue, it was impossible for the jury to determine their illegal nature without seeing the actual images. In contrast, he argues, the jury in this case could determine their nature from the file names. But this reasoning belies the basic premise in these cases: by entering the requested stipulation, there is no need to admit the actual images or other evidence to establish that element. Regardless of how else the material in Mellies and Caldwell could have been identified as child pornography, it was the stipulation — not some other evi-dentiary means — that would have sufficed to prove that the images depicted child pornography.

But defendant insists that Mellies and Caldwell are only persuasive authority, which allows us to decide the issue differently as a matter of first impression. That is true; but even if we were writing on a blank slate, critical differences between the felon-status element in felon-in-possession cases and the child-pornographic image element in child pornography cases make it abundantly clear that Old Chief's rationale does not apply in this context. There are at least three material distinctions.

First, the keystone in Old Chief's holding was the fact that felon status was outside the natural sequence of concrete events that the prosecution has an interest in presenting with robust evidence and a coherent, unbroken narrative. See Old Chief, 519 U.S. at 190, 117 S.Ct. 644. Unlike felon status, however, the pornographic nature of the image in a child pornography case plays a vital role in the government’s narrative of the concrete events comprising the charged offense. And removing a central chapter in the government’s tale, Old Chief recognized, risks leaving the jurors puzzled, or worse, ready to “penalize the party who disappoints them.” Id. at 188-89, 117 S.Ct. 644.

Second, in stark contrast to felon status, the images in a child pornography prosecution have multiple utility, tending to establish both the fact that they are pornographic and the fact that defendant acquired and distributed the images knowing they depicted child pornography. Old Chief recognized the persuasive power of this type of evidence, observing that “a piece of evidence may address any number of separate elements, striking hard just because it shows so much at once[.]” Id. at 187, 117 S.Ct. 644.

And finally, Old Chief recognized that “the evidentiary account of what a defendant has thought and done can accomplish what no set of abstract statements ever could, not just to prove a fact but to establish its human significance, and so to implicate the law’s moral underpinnings and a juror’s obligation to sit in judgment.” Id. at 187-88, 117 S.Ct. 644. Unlike the felon-in-possession offense, child pornography cases are especially susceptible to a wide range of strong emotional responses, including disbelief that a defendant would commit the act in question. Showing the actual images paints a portrait far more vivid than a sanitized stipulation, thereby establishing for the jury “its human significance,” and in the process “implicating the law’s moral underpinnings and a juror’s obligation to sit in judgment.” Id.

In sum, none of the major justifications for abandoning the general rule for felon status stipulations are present. To the con-' trary, this case implicates all the traditional justifications Old Chief gave for adhering to the general rule that “a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it.” Id. at 186-87,117 S.Ct. 644.

For all these reasons, the district court did not err in refusing to force the government to stipulate to the nature of the images recovered from defendant’s devices.

B.

Defendant next argues that the district court erred in excluding evidence of his prior medical history and learning disability under Federal Rule of Evidence 403. See Fed. R. Evid. 403 (providing that otherwise relevant evidence is inadmissible “if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence”).

During his case-in-chief, defendant sought to present testimony from his mother regarding his medical history and learning disability. Outside the jury’s presence, Lynne proffered testimony about defendant’s diagnosis with leukemia at age eight, his three years of chemotherapy, and how one round of chemotherapy went wrong, causing lasting side effects on his joints, memory, and ability to read and write. After hearing the proffer, the district court ruled that her testimony was probative in two respects (how the statements to agents were made and whether he knowingly possessed child pornography), but that the probative value was outweighed by the “significant risk” of juror confusion. The court explained:

The fact that he took Benadryl and melatonin is in the record already. What its impact was on him is certainly appropriate. He could probably even have why he took it, because he had knee and ankle pain. There’s no prejudice in that coming in, no unfair prejudice.
If we go back through his history of treatment for leukemia when he was 8 years old and three years of chemotherapy, which is, when, from 8 to 11, and procedures that were not handled correctly, that has a very high risk of unfair prejudice; and it’s not at issue in this case.

The court concluded, “I’m afraid it becomes the elephant in the room; and all they look at is the elephant.”

Defendant argues the district court abused its discretion in excluding Lynne’s testimony. Not only did the district court apply the wrong legal standard, defendant says, it also miseharacterized Lynne’s testimony as being about “procedures that were not handled correctly. As for the first claim, a contextual reading of the transcript demonstrates that the district court was aware of the correct legal standard. Several lines after stating that the probative value was “outweighed” by unfair prejudice (not “substantially outweighed”), the district court stated: “It’s a significant — there’s a significant risk of confusion about what the case is about.” (Emphasis added.) While not a verbatim recitation of Rule 408, the district court’s reasoning reflects an understanding of the governing legal framework. And as for the second claim — the district court’s characterization of Lynne’s testimony — while the primary purpose of Lynne’s testimony might have been to highlight defendant’s current mental and physical state, she did not limit her proffer to that evidence. Instead, she testified about the entire series of unfortunate events that befell defendant as a child. In this context, the district court’s concern about the case becoming about “procedures that were not handled correctly” was well-founded.

Defendant also contends that the district court did not adequately explain why the risk of confusion justified exclusion in this case. But the ruling was self-explanatory: the case was about whether, and under what circumstances, defendant confessed to agents on October 24, 2012. The fact that defendant was treated for leukemia in 2001 had no bearing on that issue. As the district, court stated, what was relevant was the fact that defendant was taking medications that may have affected his state of mind on the day of the search, not the entire back story as to why he was taking them. Defendant was able to put in evidence regarding his state of mind on the day of the search, including the side effects of his medications.

The same goes for the evidence of defendant’s learning disability. Although this evidence was certainly relevant to the circumstances under which he confessed to authorities, we cannot say the evidence was so probative that the district court committed a clear error of judgment in excluding it because of “a significant risk” of juror confusion. In fact, the rationale for the district court’s decision makes sense: while the mere fact that he had a learning disability was potentially relevant, the entire back story as to why he had the learning disability was not. Defendant sought to present the entire saga to the jury, medical history and all. It was in this context that the district court reasonably concluded that the proffered evidence would present a significant risk of juror confusion: “I don’t think it’s appropriate for the case to be about the defendant’s history of medical treatment, which is what we’re going to have if we go down' this road.”

Moreover, even assuming the district court abused its discretion in excluding evidence of defendant’s learning disability, the error, if any, was harmless. A non-constitutional evidentiary error is harmless if the government can “show by a preponderance of the evidence that the error did not materially affect the verdict.” United States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015) (emphasis omitted). The government makes that showing here. The learning disability evidence had no bearing on whether defendant committed the offenses, only the circumstances under which he made statements to authorities. Setting aside his statements, the government presented evidence that a laptop found in defendant’s bedroom, which was password-protected with his username, contained peer-to-peer software and child pornography. There was similar evidence for defendant’s second laptop. The government also presented evidence that someone at defendant’s address was using the Internet and peer-to-peer networks to share child pornography files. This wealth of unim-peached evidence that defendant possessed and distributed child pornography using his laptops supplies this court with “a fair assurance that the outcome of [the] trial was not affected by [any] evidentiary error.” United States v. Johnson, 440 F.3d 832, 847 (6th Cir. 2006) (quoting McCombs v. Meijer, Inc., 395 F.3d 346, 358 (6th Cir. 2005)).

C.

Finally, defendant appeals the district court’s ruling prohibiting Donnie Luck from taking the stand in order to invoke his Fifth Amendment privilege against self-incrimination.

The practice of calling a witness for the sole purpose of invoking the right against self-incrimination is “so imbued with the ‘potential for unfair prejudice’ that a trial judge should closely scrutinize any such request.” United States v. Vandetti, 623 F.2d 1144, 1147 (6th Cir. 1980) (quoting United States v. Maffei, 450 F.2d 928, 929 (6th Cir. 1971)). This close scrutiny is required for a variety of reasons, not the least of which is the concern that the jury will improperly infer guilt from the exercise of the privilege, id. at 1148, which in turn “creates potential for collusion between the witness and defendant[,]” United States v. Ballard, 280 Fed.Appx. 468, 471 (6th Cir. 2008). This potential for collusion “is particularly problematic when the defendant and witness have a personal or familial relationship!.]” Id.

Defendant admits that the purpose of having Donnie take the stand was to plant the idea that he, not Lindell, was the perpetrator. Because the law forbids the very purpose for which defendant sought to use Donnie’s testimony, see id. at 470 (“[A] jury is ‘not entitled to draw any inferences from the decision of a witness to exercise his constitutional privilege.’ ” (quoting Bowles v. United States, 439 F.2d 536, 541 (D.C. Cir. 1970))), allowing Donnie to take the stand would have served no useful evidentiary purpose. Given the absence of probative value in having Donnie take the stand, and the heightened potential for collusion given the father-son relationship, we have no difficulty in holding that the district court exercised sound discretion in prohibiting Donnie from taking the stand for the sole purpose of pleading the Fifth.

Defendant raises several arguments to the contrary, but they do not compel a different conclusion. Defendant first argues that the district court failed to adequately consider the prejudice to his case in not putting Donnie on the stand. But the court did address this issue by observing that the jurors would have been forbidden from drawing the very inference he hoped they would draw from his testimony. Defendant may have been unable to present what he considered favorable evidence, but because the law forbade the jury from considering Donnie’s testimony for the primary purpose defendant sought to use it, any relevance was outweighed by the risk of unfair prejudice to the government.

Defendant also argues that the district court’s decision violated his Sixth Amendment right to compulsory process. This argument is misplaced. “A defendant’s right to compel testimony yields to a witness’s assertion of his or her Fifth Amendment privilege when the claimed privilege is grounded on a reasonable fear of prosecution.” United States v. Highgate, 521 F.3d 590, 593 (6th Cir. 2008). Defendant does not argue that his father’s invocation was not grounded in a reasonable fear of prosecution.

Finally, defendant claims that affirming the district court on this issue will have a “chilling effect” on trial counsel, discouraging them from preparing their witnesses before trial. This argument does not give us pause. For one, it is difficult to imagine trial counsel will stop preparing their witnesses for trial on the off chance that they might disclose their desire to invoke their Fifth Amendment right. And two, to the extent defendant claims attorneys will be tempted to abandon their duty of candor under this regime, needless to say, this court will not fashion legal rules on the premise that attorneys might violate their professional responsibilities. Cf. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (stating that law presumes that counsel will fulfill their role in the adversary system).

IV.

For these reasons, we affirm defendant’s convictions.


source: Caselaw Access Project

author: POSNER, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael PETERSON, Defendant-Appellant.
    Nos. 16-2493, -2494
    United States Court of Appeals, Seventh Circuit.
    Submitted February 2, 2017
    Decided February 14, 2017

      ■Robert A. Anderson, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
    Michael Peterson, Pro Se (Case No. 16-2493).
    Before WOOD, Chief Judge, and POSNER and KANNE, Circuit Judges.
   POSNER, Circuit Judge.

In 2006 Michael Peterson was convicted of distributing crack cocaine, see 21 U.S.C. § 841(a)(1), for which he served eight years in prison. In January 2014, fewer than two weeks after his release and the start of his term of supervised release, Peterson was arrested for drunk driving while outside the judicial district without permission. His probation officer did not seek revocation at that time, and for nearly two years afterward Peterson took positive steps toward reestablishing his life: He started a business, got married, and began caring for his new stepson.

But in November 2015 Peterson encountered a long-term adversary at a bar. According to Peterson the two men engaged in a verbal altercation (who started it or what it was about remains undetermined), but a surveillance video shows Peterson pursuing his adversary as he left the bar armed with a pistol lent him by a friend “as a means of defense.” (Why Peterson pursued him is another undetermined feature of the case.) Out on the street the other man attacked Peterson with a knife, seriously wounding him. Though his borrowed gun was in his waistband, Peterson didn’t attempt to use it but instead hid it under a garbage can after fleeing two police officers who had observed the attack.

Arrested and later charged with being a felon in possession of a gun in violation of 18 U.S.C. § 922(g), Peterson pleaded guilty and was sentenced to 48 months’ imprisonment, 9 months below the guidelines imprisonment range calculated by the district judge. The judge revoked Peterson’s supervised release, the terms of which he’d violated by having been armed, and replaced it with a 6-month term of imprisonment to run consecutively to the 48-month term for the illegal possession. See 18 U.S.C. § 3583(e)(3). .

Peterson filed notices of appeal from both the revocation of supervised release and his new conviction, but his appointed counsel advises us that both appeals are frivolous, and therefore seeks to withdraw from representing his client, citing Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We invited Peterson to respond to counsel’s motion, but he has not done so. Counsel represents that he consulted Peterson and confirmed that he neither wants his guilty plea set aside nor wishes to contest the revocation of supervised release. Left to consider only whether a nonfrivolous argument could be made against the procedural or substantive reasonableness of his client’s prison terms, counsel concluded that any challenge to the length of those terms would be futile because the district judge had correctly calculated both the guidelines range and the policy-statement range applicable to the revocation of supervised release, see U.S.S.G. §§ 7B1.1(a)(2), 7B1.4, had treated the ranges as advisory, had evaluated Peterson’s arguments in mitigation and applied the sentencing factors set forth in 18 U.S.C. § 3553(a), and finally had imposed a prison sentence below the applicable guidelines and policy-statement ranges. See United States v. Jones, 774 F.3d 399, 404-05 (7th Cir. 2014); United States v. Neal, 512 F.3d 427, 438 (7th Cir. 2008).

Counsel further notes that challenging the judge’s decision to run Peterson’s two prison terms consecutively — which counsel considers to be Peterson’s major complaint about the sentence — would conflict with the Sentencing Commission’s advice that consecutive terms be imposed when revocation of supervised release is the result of a new prison sentence. See U.S.S.G. § 7B1.3(f) and Application Note 4; United States v. Taylor, 628 F.3d 420, 423-24 (7th Cir. 2010). Moreover, both sentences that the judge imposed on Peterson were below their guideline ranges.

Counsel’s motion to withdraw is granted and the appeals are dismissed.


author: WOOD, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Vincente A. JIMENES, Defendant-Appellant.
    No. 16-3191
    United States Court of Appeals, Seventh Circuit.
    Argued February 8, 2017
    Decided March 23, 2017

      Katherine Legge, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.
    Nathaniel A. Nieman, Attorney, Moline, IL, for Defendant-Appellant.
    Before WOOD, Chief Judge, FLAUM, Circuit Judge, and CONLEY, Chief District Judge.

       Of the Western District of Wisconsin, sitting by designation.

   WOOD, Chief Judge.

After pleading guilty to three federal drug and money-laundering offenses, Vincente Jimenes was sentenced to 151 months’ imprisonment and five years’ supervised release. In this appeal, he contends that his constitutional rights were violated by the use, for Sentencing Guidelines purposes, of a state misdemeanor conviction that was obtained without the use of a Spanish interpreter. The district court reviewed the record of the conviction and was satisfied that enough informal translation took place to support a conclusion that his guilty plea was knowing. It did not need to go that far, however, because this was not the time nor place for a collateral attack on that conviction. We therefore affirm Jimenes’s sentence.

I

Because Jimenes’s appeal is limited to his sentence,. we restrict our discussion accordingly. Before his initial sentencing hearing, which took place in July 2016, a probation officer calculated that his total offense level was 33 and his criminal history category was II, for purposes of the Sentencing Guidelines. Jimenes challenges only the criminal history calculation.

The probation officer took into account a 2012 conviction for a class A misdemeanor offense for driving with a suspended license. (Two other charges — a petty offense for a headlamp that was out and a business offense for having no insurance — were dismissed when Jimenes pleaded guilty to the misdemeanor.) Illinois law provided that the suspended-license charge could lead to imprisonment for less than one year or conditional discharge not to exceed two years. 730 ILCS 5/5-4.5-55(a), (d). On November 21, 2012, the state judge sentenced Jimenes to conditional discharge for 24 months, plus a fine of $500.

But Jimenes did not manage to stay out of trouble for the requisite two years. Instead, he became involved in a cocaine conspiracy, for which he was charged in federal court with conspiracy to distribute at least five kilograms of cocaine (ending June 2, 2015), conspiracy to launder proceeds (ending July 24, 2014), and money laundering to conceal drug proceeds (ending July 22, 2014). Because Jimenes committed the latter two offenses while he was still under the conditional-discharge sentence of the state court, the probation officer applied Guideline 4Al.l(d), which requires the addition of two criminal history points “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” This gave Jimenes a total of three criminal history points — one for the underlying state offense and two under 4Al.l(d) — and thus landed him in Criminal History Category II, with a recommended sentencing range of 151-188 months. The district court gave Jimenes the lowest guidelines sentence: 151 months. Absent the state misdemean- or, his Criminal History Category would have been I, with an accompanying guidelines range of 135-168 months.

II

This would all be straightforward but for one problem: Jimenes represents that he cannot read or speak English, and there is no indication that there was a qualified Spanish interpreter present at the state-court proceeding. Even for a Class A misdemeanor, Illinois law requires the court to “determine whether the accused is capable of understanding the English language and is capable of expressing himself in the English language so as to be understood directly by counsel, court or jury.” 725 ILCS 140/1. Moreover, we have held that “a criminal defendant lacking a basic understanding of the English language has a due process right to an interpreter to enable him to understand what is said at trial and to communicate with counsel.” Mendoza v. United States, 755 F.3d 821, 828 (7th Cir. 2014). But on the other hand, Mendoza held that this right did not go so far, for instance, as to require that an interpreter be at the defense table for every minute of the trial. Id.

If Jimenes were alleging that he was deprived of proper interpretation services in the federal proceeding now before us, we would have a different case. But what he is doing is raising a collateral attack on a state-court conviction that has been used to increase his criminal-history score. We must turn for guidance, therefore, not to the Due Process Clause or to any of our own earlier decisions, but instead to the Supreme Court’s decision in Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994).

In Custis, the Court considered the question “whether a defendant in a federal sentencing proceeding may collaterally attack the validity of previous state convictions that are used to enhance his sentence under the [Armed Career Criminal Act, 18 U.S.C. § 924(e)].” 511 U.S. at 487, 114 S.Ct. 1732. It answered that question unambiguously: “We hold that a defendant has no such right (with the sole exception of convictions obtained in violation of the right to counsel) to collaterally attack prior convictions.” Id. This is a narrower rule than the one we had adopted in United States v. Mitchell, 18 F.3d 1355 (7th Cir. 1994), just three months earlier. There, we had indicated the possibility of a challenge not only if the defendant’s rights under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), were violated, but also if a conviction “lack[ed] constitutionally guaranteed procedures plainly detectable from a facial examination of the record.” Mitchell, 18 F.3d at 1360-61. Jimenes would like us to resurrect the Mitchell formulation, but we are not free to do so in light of the Supreme Court’s more restrictive view. See United States v. Arango-Montoya, 61 F.3d 1331 (7th Cir. 1995) (recognizing that Custis limited Mitchell).

The Custis Court stressed that the Armed Career Criminal Act itself left no door open for this kind of collateral attack on the predicate convictions that trigger it. Instead, it focused on the simple fact of the conviction. Elsewhere in the Gun Control Act of 1968, the Court found language indicating that what counts as a conviction of a crime is determined in accordance with the law of the convicting jurisdiction. 511 U.S. at 491, 114 S.Ct. 1732. Thus, if a person in Jimenes’s shoes were to return to the state court and have the conviction expunged, a later federal proceeding could not take it into account.

Custis squarely rejected the invitation to extend the ability to mount a collateral attack on a prior conviction used for sentencing enhancement beyond the right to have appointed counsel. In so doing, it rejected the defendant’s efforts to argue that he had been denied effective assistance of counsel, that his guilty plea was not knowing and intelligent, and that he had not adequately been advised of his trial rights. Id. at 496, 114 S.Ct. 1782. We see no distinction between these arguments and Jimenes’s assertion that he did not adequately understand the prior state court proceeding because of a language barrier. We also see nothing that would justify a distinction between the Armed Career Criminal Act and the Sentencing Guidelines for this purpose. For both the statute and the Guidelines, the inquiry is over once the fact of the conviction is established. In neither case is there any rule that would require an exhaustive examination of every prior conviction to see if it is vulnerable to some kind of challenge.

Two final points are important here. First, Jimenes does not argue that his fundamental right to counsel was violated, even though he proceeded pro se in the state court. His state conviction did not result in incarceration, and under Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), prior misdemeanor convictions may be used as sentencing enhancers even if the defendant did not have counsel, as long as the sentence did not include imprisonment. Id. at 746-47, 114 S.Ct. 1921. This is true even if the enhanced sentence in the later proceeding does result in imprisonment. Id.

Second, even if we are reading Custis too narrowly, and we were to look for the kind of “plainly detectable” error described in Mitchell, we would have trouble finding such error here. The transcript of the state-court proceeding is in the record, and in four different places over just two pages it contains this notation: “Spanish-speaking discussion was held off the record.” True, we do not know what was said in those discussions, nor do we know anything about the ability of the speaker to convey accurately the substance of the court’s comments in English. The record refers to an “unidentified speaker” who tells the court a few pertinent things, such as “[h]e got proof of insurance.” On the other hand, at the end, when the court asks whether “he” (Jimenes) has any questions, the unidentified speaker rather oddly answers, “All right. Thank you.”

More than that would certainly be required if that were the record of his conviction in the district court. But it té not. The best we can say is that we have no idea how much, or how little, Jimenes understood in the state court proceeding. He signed a “Waiver of Attorney,” and he signed a “Plea of Guilty and Waiver of Jury,” both of which are written only in English. This murky record does not reveal the kind of “plainly detectable” flaw the Supreme Court found in a Gideon violation, or that we had in mind in Mitchell.

The district court, upon reading the state-court transcript, went directly to the merits of Jimenes’s challenge and found that “it is clear from the transcript ... that, albeit not an official court reporter, it’s on the record that he was allowed time for interpretation off on the side in order to enter a knowing plea.” As we have said, we are not so confident that the record permits this inference. But that does not matter, given Custis.

Jimenes’s final argument is that the government has waived its right to rely on Custis, because it has raised this point for the first time on appeal. At worst, however, we would regard this as forfeiture of the argument, and we are not inclined to hold the government to that aspect of its litigation strategy. It prevailed, after all, in the district court, and is now simply defending the court’s decision on a different ground. Moreover, Custis has important implications for the operation of the Sentencing Guidelines and for the relations between federal and state courts — a fact that also argues against a finding of forfeiture.

Once we establish that this is not the proper time or place for Jimenes to challenge his 2012 state-court conviction, both the single criminal-history point he received directly for that offense, plus the two additional points he received because he committed his present crimes while he was conditionally discharged for the state crime, are beyond dispute. He does not otherwise attack his federal sentence of 151 months. We therefore Affirm the judgment of the district court.


author: HAMILTON, Circuit Judge.

text:
    Sherry ANICICH, Plaintiff-Appellant, v. HOME DEPOT U.S.A., INC., et al., Defendants-Appellees.
    No. 16-1693
    United States Court of Appeals, Seventh Circuit.
    Argued January 10, 2017
    Decided March 24, 2017
    Amended April 13, 2017
    Rehearing and Rehearing En Banc Denied April 26, 2017

      Jason M. Metnick, Attorney, Meltzer, Purtill & Stelle LLC, Kristin Nicole Bar-nette, Attorney, Kralovec, Jambois & Schwartz, Chicago, IL, for Plaintiff-Appellant.
    Benjamin Josef Galloway, Attorney, McVey & Parsky, Chicago, IL, for Defendant-Appellee Home Depot U.S.A., Inc.
    Scott Berends, Attorney, Charles William Busse, Jr., Attorney, Busse Busse & Grasse, Chicago, IL, for Defendants-Ap-pellees Grand Service LLC, Grand Flower Growers, Incorporated.
    Before WOOD, Chief Judge, and ROVNER and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

This tragic case tests the scope of Illinois employers’ tort liability for intentional torts committed by their supervisory employees against other employees where the employer has been negligent. Plaintiffs complaint alleges that the defendants jointly employed as a supervisor a man with a known history of sexually harassing, verbally abusing, and physically intimidating his female subordinates. The complaint also alleges that the joint employers failed to take reasonable steps in response to female employees’ complaints and to misbehavior that more senior managers observed.

The supervisor’s treatment of one subordinate, Alisha Bromfield, included verbally abusing her while throwing things, controlling and monitoring her both during and outside her work hours, and requiring her to come with him on business trips. After five years of that treatment, he used his supervisory authority to require Alisha to come on a personal trip with him — to an out-of-state family wedding — by threatening to fire her or cut her hours if she refused. She went. After the wedding, he killed and raped her.

Alisha’s mother, acting as the administrator of the estates of Alisha and Alisha’s unborn daughter, has sued the employers. The defendant-employers persuaded the district court that they had no duty to control this supervisor’s behavior. We respectfully disagree. Illinois law permits recovery from employers whose negligent hiring, supervision, or retention of their employees causes injury. The unusually detailed complaint plausibly states such claims. We believe the Illinois courts would apply this general principle to the claims arising from Alisha’s murder.

I. Factual and Procedural Background

The defendant-employers moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. By that strategic choice, they have asked us to treat the allegations in the complaint as true and to give the plaintiff the benefit of any reasonable and favorable inferences from those. allegations. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). In its general outline, the complaint’s story is all too familiar: defendants employed as a supervisor a man with a history of sexually harassing his young female subordinates. He fixated on one. He began making advances on her and calling her his girlfriend. His behavior escalated over time, from such inappropriate comments to verbal abuse, public outbursts, throwing and slamming objects, and finally, to deadly violence.

In its specifics, the complaint’s story is tragic, ending in the deaths of Alisha and her unborn daughter at the hands of Brian Cooper, a regional manager for the defendant-employers. The three defendants are Home Depot U.S.A., Inc., Grand Service, LLC, and Grand Flower Growers, Inc., which managed garden centers for Home Depot stores. Am. Compl. ¶ 9. All three defendants jointly employed Brian Cooper as a regional manager. ¶ 11.

Cooper had a history of sexually harassing his young female subordinates. He fixated for a while on a recent high school graduate named Jessica. ¶ 18. He would introduce her as his girlfriend, make comments about his genitals to her, and rub himself against her. ¶ 19. He once required her to ride alone with him from Joliet to Chicago while he made such comments. ¶ 20. Jessica complained to her group leader, who told her that other employees had complained about Cooper and that even the group leader herself felt uncomfortable working with him. ¶ 21. Cooper became increasingly loud and abusive with Jessica, yelling and swearing at her. ¶ 22. Ultimately, Jessica quit her job. ¶ 23.

Cooper then shifted his attention to Alisha Bromfield. Alisha was a teenager when she began working for the defendants in 2006, and she worked seasonally for them until her death in 2012. ¶ 14. Cooper’s behavior toward her at first resembled his behavior towards Jessica. He would call her his girlfriend. ¶ 27. He started swearing and yelling at her, calling her names like “bitch,” “slut,” and “whore” in front of customers. ¶¶ 26, 34. These outbursts came to include throwing and slamming things. ¶ 39.

Cooper became increasingly controlling of Alisha’s time away from work. If she was going to spend a lunch break with a man, he sometimes denied her lunch breaks. ¶ 33. Once, when she asked him for a day off, he called her a “whore.” ¶ 34. He started calling and texting her outside of work, pretending he wanted to talk about a work-related issue in order to get her attention, to monitor her, and to pressure her to spend time with him alone. ¶ 38. And he required Alisha to come with him on business trips, once insisting that they share a hotel room. ¶ 46. In her last year working for the defendants, and the last year of her life, Alisha became pregnant. Cooper reacted angrily. ¶ 36.

Cooper’s behavior toward female subordinates in general and Alisha in particular was known to more senior management. Throughout her time working for the defendants, Alisha complained repeatedly about Cooper to other supervisors and managers in the defendants’ hierarchies. ¶ 37. She told her group leader that she did not want to be left alone with him. ¶ 27. One Home Depot manager saw Alisha crying after Cooper denied her a break. ¶ 33. Another sent Cooper home after he called Alisha a “slut” and a “whore” in front of customers. ¶ 35. Grand ordered him to take anger management classes, but he did not complete the course. He confronted his human resources manager about the requirement, and was ordered to attend additional anger management classes, but neither employer followed up to make sure he did so. ¶ 42. Defendants’ managers told Alisha that they knew about Cooper’s behavior. ¶ 39. Yet he remained Alisha’s supervisor. ¶ 30.

In 2012, when Alisha was about seven months pregnant, Cooper 'began asking her to go to his sister’s wedding in Wisconsin with him. ¶¶ 49, 51. She refused. Then, invoking the authority the defendants had entrusted to him as a supervisor, he told her he would fire her or reduce her hours if she did not go. ¶¶ 49-50. She went. After the wedding, Cooper took Alisha to the hotel room he had rented for the two of them. He asked her, again, to be in a relationship with him. She refused, again. ¶ 53. Cooper strangled her to death. He then raped her corpse.

Plaintiff Sherry Anicich is Alisha Brom-field’s mother. She is the administrator of the estates of both Alisha and her unborn daughter. ¶¶ 1, 93. In her capacity as administrator, Anicich sued Home Depot and Grand in state court in Illinois. Defendants removed the case to federal court based on diversity jurisdiction under 28 U.S.C. §§ 1332 and 1441.

The defendants then moved to dismiss the complaint under Rule 12(b)(6) for failure to state a claim. The district court granted the original motions but correctly gave the plaintiff leave to amend. See, e.g., Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510, 519 (7th Cir. 2015) (where Rule 12(b)(6) motion is granted, plaintiff should ordinarily be given at least one opportunity to amend complaint), citing Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1024 (7th Cir. 2013), among other cases. The plaintiff filed her amended complaint, which we use for our account of the facts. The amended complaint alleges the defendants were negligent and that their negligence caused Alisha’s death at Cooper’s hands. The defendants again moved to dismiss on the ground that they did not owe a duty of care to Alisha. The district court agreed and dismissed the complaint, again granting leave to amend. Anicich v. Home Depot, U.S.A., Inc., No. 14 C 7125, 2016 WL 930655, at *5 (N.D. Ill. Mar. 11, 2016). The plaintiff chose to appeal, without trying to amend further.

II. Analysis

We review de novo the district court’s decision to dismiss, “construe [the complaint] in the light most favorable to the nonmoving party, accept well-pleaded facts as true, and draw all inferences in [that party’s] favor.” Reynolds, 623 F.3d at 1146, quoting Reger Development, LLC v. National City Bank, 592 F.3d 759, 763 (7th Cir. 2010). Applying that standard, we reverse.

Illinois tort law controls this case. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). There is no Illinois case directly on point, but there are a number of indications from related situations involving attempts to hold employers liable for a wide range of torts committed by their employees. Our task as a federal court interpreting state law is “to determine how the state’s highest court would rule.” Rodas v. Seidlin, 656 F.3d 610, 626 (7th Cir. 2011). We base our predictions on the decisions of the state’s highest court, and we consider decisions of intermediate appellate courts unless there is good reason to doubt the state’s highest court would agree with them. Id.

The general rule in Illinois tort law is that one person has no duty to prevent the criminal acts of another. Simmons v. Homatas, 236 Ill.2d 459, 338 Ill.Dec. 883, 925 N.E.2d 1089, 1099 (2010). But Illinois courts recognize several exceptions that limit the general rule. We focus on one: employers have a duty to act reasonably in hiring, supervising, and retaining their employees. Van Horne v. Muller, 185 Ill.2d 299, 235 Ill.Dec. 715, 705 N.E.2d 898, 904 (1998) (“Illinois law recognizes a cause of action against an employer for negligently hiring, or retaining in its employment, an employee it knew, or should have known, was unfit for the job so as to create a danger of harm to third persons.”); Platson v. NSM, America, Inc., 322 Ill.App.3d 138, 255 Ill.Dec. 208, 748 N.E.2d 1278, 1284 (2001) (“[P]laintiff has alleged sufficient facts to establish a possibility of recovery for negligent supervision.”).

To recover for a breach of that duty, a plaintiff must prove that: (1) the defendant-employer knew or should have known that an employee had a particular unfitness for his position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the hiring, retention, or failure to supervise; and (3) that this particular unfitness proximately caused the plaintiffs injury. Van Horne, 235 Ill.Dec. 715, 705 N.E.2d at 904; Platson, 255 Ill.Dec. 208, 748 N.E.2d at 1284. The proximate causation element is satisfied when the employee’s particular unfitness “rendered the plaintiffs injury foreseeable to a person of ordinary prudence in the employer’s position.” Platson, 255 Ill.Dec. 208, 748 N.E.2d at 1284.

Home Depot and Grand offer three reasons why the plaintiff did not state a claim under that theory. First, they believe that allowing this case to go forward would extend Illinois law and that such an extension would create new and unjustifiable burdens for employers. See Simpkins v. CSX Transportation, Inc., 358 Ill.Dec. 613, 965 N.E.2d 1092, 1098 (2012) (“the magnitude of the burden of guarding against the injury” is one factor in whether a duty existed). Second, they argue that those rules apply only when the employee is on the employer’s premises or using the employer’s chattel, and that neither was true when Cooper killed Alisha. See Restatement (Second) of Torts § 317(a) (Am. Law Inst. 1965); O’Rourke v. McIlvaine, 385 Ill.Dec. 782, 19 N.E.3d 714, 721-22 (2014) (applying § 317 to a negligent hiring and retention claim). Finally, they contend that Alisha’s injury was not foreseeable to a person of ordinary prudence in the employer’s position. We address those concerns in turn.

A. Burden of the Duty

Defendants believe that they have no obligation to fire or demote employees because of their “usage of inappropriate language, or sexual misconduct.” We should not create that obligation, they argue, because the resulting burdens would be intolerable.

The problem with that argument is that the defendants already have that obligation, independent of this case and even independent of Illinois tort law. “Hostile or abusive work environments are forms of sex discrimination actionable under Title VII of the Civil Rights Act of 1964.” Lapka v. Chertoff, 517 F.3d 974, 982 (7th Cir. 2008). Sexual harassment is also actionable under the Illinois Human Rights Act. 775 Ill. Comp. Stat. 5/2-102(D); Sangamon County Sheriff’s Dep’t v. Illinois Human Rights Comm’n, 233 Ill.2d 125, 330 Ill.Dec. 187, 908 N.E.2d 39, 41 (2009).

Under these statutes, employers can be held liable for failing to discipline harassing employees. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (employers are vicariously liable for hostile environments created by supervisors unless they can show they “exercised reasonable care to prevent and correct promptly any sexually harassing behavior”); EEOC v. Management Hospitality of Racine, Inc., 666 F.3d 422, 434-35 (7th Cir. 2012) (affirming jury verdict for plaintiff, in part because there was sufficient evidence to find that defendants’ sexual harassment policy did not prevent and promptly correct harassment); Smith v. Sheahan, 189 F.3d 529, 535 (7th Cir. 1999) (reasonable jury could conclude that defendant did not remedy harassment when it failed to discipline harasser); Mansker, No. 1999SF0356, 2004 WL 3372598, at *2 (Ill. Hum. Rts. Comm’n Apr. 7, 2004) (finding employer liable when it had notice of sexual harassment and “did not take actions to correct the working environment”); see also Heath, No. 2003CF1052, 2004 WL 4229510, at *1 (IL Dep’t Hum. Rts. Aug. 1, 2004) (dismissing in part a charge of discrimination because the employer investigated, suspended, and finally discharged the harassing co-worker). The plaintiff does not ask us to impose any new obligations on employers to oversee their supervisory employees, and we do not do so by allowing this case to proceed.

B. On the Employer’s Premises

The Restatement (Second) of Torts provides that employers have “a duty to exercise reasonable care” to control employees who are acting outside the scope of their employment if the employees are on the employers’ premises or using the employers’ chattels. Restatement (Second) of Torts § 317(a) (Am. Law Inst. 1965). (As examples of chattels that could be used in such torts, consider motor vehicles, power tools, or weapons.)

Illinois has adopted that rule and has used it to limit employers’ liability for negligent hiring, supervision, or retention. See O’Rourke, 385 Ill.Dec. 782, 19 N.E.3d at 721, citing Hills v. Bridgeview Little League Ass’n, 195 Ill.2d 210, 253 Ill.Dec. 632, 745 N.E.2d 1166, 1179 (2000); Escobar v. Madsen Construction Co., 226 Ill.App.3d 92, 168 Ill.Dec. 238, 589 N.E.2d 638, 639-40 (1992) (explaining that cases holding employers liable for negligent hiring and supervision “fall within the purview” of § 317). The requirement is intended not to be arbitrary or formalistic but to limit recovery to injuries which “occurred by virtue of the servant’s employment.” Doe v. Boy Scouts of America, 378 Ill.Dec. 667, 4 N.E.3d 550, 561 (2014), quoting Carter v. Skokie Valley Detective Agency, Ltd., 256 Ill.App.3d 77, 195 Ill.Dec. 138, 628 N.E.2d 602, 604 (1993).

In particular, Illinois applies this rule to avoid holding an employer liable simply because the tortfeasor and the victim know each other through work. See MacDonald v. Hinton, 361 Ill.App.3d 378, 297 Ill.Dec. 162, 836 N.E.2d 893, 901-02 (2005) (premises requirement not met where murderer befriended victim through work); see also Carter, 195 Ill.Dec. 138, 628 N.E.2d at 605-06 (murderer’s negligent employment not the cause of victim’s death, even though victim let him into her car because “she trusted him because she knew him from work”). In Escobar, for example, the defendant employed as a foreman a carpenter with a history of verbal abuse and violent confrontation, both on and off the defendant’s worksites. 168 Ill.Dec. 238, 589 N.E.2d at 638. One night, the carpenter got into a fight with a co-worker in a bar; the next morning, he shot the co-worker. Id., 168 Ill.Dec. 238, 589 N.E.2d at 638-39. The Illinois appellate court affirmed summary judgment for the employer, reasoning that the employment and the assault were not sufficiently connected. Id., 168 Ill.Dec. 238, 589 N.E.2d at 639. The tortfeasor “was not on Madsen’s job site, not doing Madsen’s work, and not using Madsen’s gun.” Id., 168 Ill.Dec. 238, 589 N.E.2d at 640. The employment only “provided a condition” for the attack. Id., 168 Ill.Dec. 238, 589 N.E.2d at 639.

Cooper was not on the defendants’ premises when he killed Alisha, nor did he use their chattels. But he used something else the defendants gave him: supervisory authority over Alisha. He threatened to fire her or reduce her hours if she did not go with him to his sister’s wedding. Am. Compl. ¶¶ 49-50. He thus threatened to take what the Supreme Court calls “tangible employment actions.” Ellerth, 524 U.S. at 761, 118 S.Ct. 2257. He could do that only because the defendants made him Alisha’s supervisor. See id. at 762, 118 S.Ct. 2257 (“Tangible employment actions fall within the special province of the supervisor.”).

We believe that § 317(a) should be satisfied by a tortfeasor’s use of supervisory authority. We predict that the Illinois Supreme Court would agree, for two reasons: because supervisory authority is in this respect analogous to a chattel, and because other grounds support holding employers liable in tort for misuse of supervisory power.

1. The Analogy Between Chattels and Authority

We see no principled reason to hold employers liable for the tortious abuse of their chattels but not for the tortious abuse of supervisory authority. Defendants’ argument asks us to predict that Illinois courts would treat entrustment with keys or with a truck as more serious than entrustment with control over others’ livelihoods. Cf. Carter, 195 Ill.Dec. 138, 628 N.E.2d at 605 (claim for willful and wanton hiring supported where security guard used his passkey to enter plaintiffs apartment and assault her), discussing Easley v. Apollo Detective Agency, Inc., 69 Ill.App.3d 920, 26 Ill.Dec. 313, 387 N.E.2d 1241, 1243 (1979); Malorney v. B & L Motor Freight, Inc., 146 Ill.App.3d 265, 100 Ill.Dec. 21, 496 N.E.2d 1086, 1088-89 (1986) (question of fact for the jury existed in negligent hiring case, where employer equipped driver with truck in which he raped hitchhiker).

Formalistic adherence to the literal terms of § 317(a) would also produce odd, even arbitrary, results. In Kigin v. Woodmen of the World Ins. Co., 185 Ill.App.3d 400, 133 Ill.Dec. 524, 541 N.E.2d 735, 737 (1989), for example, an Illinois appellate court held that the plaintiff stated a claim against the operator of a youth camp for the actions of a camp counselor. The counselor, a 41-year-old man, gave alcohol to a 15-year-old female camper, took her to a remote area of the campground, and sexually molested her. Id., 133 Ill.Dec. 524, 541 N.E.2d at 736. The Kigin court noted that the attack took place on the defendant’s premises, bringing it within the terms of § 317(a). Id. We think it unlikely that the result would have been different if the attacker had taken his victim across the property line of the campground. The employer knew that the counselor had gone “off into the woods at 11:30 at night alone with [a] 15-year-old girl[] after plying” her with alcohol. Id., 133 Ill.Dec. 524, 541 N.E.2d at 737. The employer’s obligation to act on that information surely does not change depending on whether the counsel- or crossed a property line when he took his victim away.

Both entrustment with a chattel and entrustment with supervisory authority set employees apart from the general public. Both can enable tortious conduct. In both situations, employers have the ability and incentive to consider and monitor the employees whom they are trusting and how that trust is used. Injuries caused by using a chattel and injuries caused by abusing supervisory authority both occur “by virtue of the [tortfeasor’s] employment,” and not because the tortfeasor and victim merely know each other through their work. Doe, 378 Ill.Dec. 667, 4 N.E.3d at 561.

2. Supervisory Authority as a Ground for Tort Liability

Principals can often be held liable for the misuse of authority they delegate, whether or not they are negligent. Restatement (Second) of Agency § 219(2)(d) (Am. Law Inst. 1957) (“A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless ... the servant purported to 'act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.”). Such vicarious liability rules have traditionally been confined to cases where the employee acts within the scope of his employment or purports to act on the principal’s behalf. See Restatement (Second) of Agency § 219 cmt. a (Am. Law Inst. 1957) (“The conception of the master’s liability to third persons appears to be an outgrowth of the idea that within the time of service, the master can exercise control over the physical activities of the servant.”).

But more recently, the law has moved toward holding employers vicariously liable for their supervisory employee’s intentional torts committed outside the scope of their employment but by abusing their supervisory authority, subject to an affirmative defense. The shift can be seen in the Supreme Court’s decision in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). The issue was whether and how an employer can be vicariously liable under Title VII of the Civil Rights Act of 1964 for supervisors’ sexual harassment of their subordinates. Id. at 754, 118 S.Ct. 2257.

The Supreme Court answered those questions by applying the last clause of the Restatement (Second) of Agency § 219(2)(d), holding masters liable for their servants’ torts when the servants are “aided in accomplishing the tort by the existence of the agency relation.” Id. at 759-60, 118 S.Ct. 2257. The Court explained that a supervisor is “beyond question” aided by the agency relation when he takes tangible employment action against a subordinate. Id. at 760, 118 S.Ct. 2257. A tangible employment action is “a significant change in employment status,” such as firing or reduced hours and compensation. Id. at 761, 118 S.Ct. 2257, citing Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993) (“A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.”). If a supervisor takes tangible employment action against an employee, the employer is vicariously liable. Id. at 762-68, 118 S.Ct. 2257.

But what if the supervisor only threatens to take tangible employment action but does not actually take it because the threat has worked? Ellerth answered that question by adopting a two-step holding: an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with authority over the employee. However, if no tangible employment action is taken, an employer may raise an affirmative defense by proving both that the employer exercised reasonable care to prevent and corrected promptly any sexually harassing behavior, and that the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 524 U.S. at 765, 118 S.Ct. 2257.

Ellerth drew on general principles of agency and tort law to interpret a federal statute, Title VII. That development of the law was then made more general in the Restatement of Employment Law, which applies the Ellerth framework beyond the sexual harassment context to intentional torts committed “by the tortious abuse or threatened abuse of a supervisory or managerial employee’s authority.” Restatement of Employment Law §§ 4.03(c) & 4.06 (Am. Law Inst. 2015). Thus expanded to the more general tort and agency law that was itself the foundation of Ellerth, the Ellerth framework fits the facts alleged in the complaint here. Cooper’s threats to fire Alisha or cut her hours were exactly what the Ellerth court addressed: threats to take tangible employment actions that were not carried out, because the threat worked. Under the principles of the Restatement of Employment Law, Anicich would be able to pursue a claim under §§ 4.03 and 4.06.

There is good reason to think that the Illinois Supreme Court would adopt those principles. It has already adopted § 219 of the Restatement (Second) of Agency, which lies at the root of the Ellerth framework. See Wright v. City of Danville, 174 Ill.2d 391, 221 Ill.Dec. 203, 675 N.E.2d 110, 118 (1996) (citing § 219). And that court often looks to the Restatements of the Law for advice and guidance. See Hudson v. City of Chicago, 228 Ill.2d 462, 321 Ill.Dec. 306, 889 N.E.2d 210, 216 (2008) (“This court then adopted the exceptions to claim-splitting set forth in section 26(1) of the Restatement (Second) of Judgments (1982).”); Olson v. Etheridge, 177 Ill.2d 396, 226 Ill.Dec. 780, 686 N.E.2d 563, 569 (1997) (“[W]e hereby adopt the vesting rule set forth in section 311 of the Second Restatement [of Contracts].”); Cult Awareness Network v. Church of Scientology International, 177 Ill.2d 267, 226 Ill.Dec. 604, 685 N.E.2d 1347, 1353 (1997) (“We regard the Restatement [ (Second) of Torts]’s treatment of the favorable termination requirement as more balanced than our appellate court’s interpretation.”). It might find the Restatement of Employment Law persuasive.

But we need not and do not hold here that the Illinois Supreme Court would adopt that framework. The Ellerth vicarious liability framework is harder on employers than Illinois’s traditional negligent retention tort. For example, it places the burden on employers to show non-negligence rather than on plaintiffs to show negligence, and it applies whether or not the employer should have known that the supervisor was unfit for his position. We discuss it to show that our holding is (1) part of a broader trend toward recognizing employer liability for supervisors’ intentional torts committed outside the scope of employment; and (2) only an incremental shift, when there are good grounds to go much further. We confine ourselves to predicting that intentional torts committed by the abuse of a supervisory employee’s authority satisfy the requirements of the Restatement (Second) of Torts § 317(a), and thus that Anicich’s complaint states a claim for negligent hiring, supervision, or retention.

C. Foreseeability

To succeed on a claim for negligent hiring, supervision, or retention, the plaintiff must demonstrate that the employee’s “particular unfitness ... rendered the plaintiffs injury foreseeable to a person of ordinary prudence in the employer’s position.” Van Horne, 235 Ill.Dec. 715, 705 N.E.2d at 906. In this context, foreseeability is ordinarily a question of fact for a jury to decide. Platson, 255 Ill.Dec. 208, 748 N.E.2d at 1284, citing Nowak v. Coghill, 296 Ill.App.3d 886, 231 Ill.Dec. 15, 695 N.E.2d 532, 537 (1998).

Cooper’s “particular unfitness” was his harassing, controlling, and aggressive behavior toward his female subordinates. Defendants suggest two reasons why Alisha’s injuries were not foreseeable from that conduct. First, Cooper’s violent attack on Alisha was a radical break from even his most offensive prior behavior: even if a reasonable employer could have foreseen violence, they argue, they could not have foreseen murder. Second, a reasonable employer could not have predicted violence at all since Cooper had not made explicit threats and had not yet hit anyone. We conclude that both arguments present factual issues that cannot be decided on a Rule 12(b)(6) motion to dismiss.

“In order to satisfy the foreseeability component, it is not necessary that a defendant must have foreseen the precise nature of the harm or the exact manner of occurrence; it is sufficient if, at the time of the defendant’s action or inaction, some harm could have been reasonably foreseen.” Regions Bank v. Joyce Meyer Ministries, Inc., 383 Ill.Dec. 767, 15 N.E.3d 545, 552 (2014); see also Rowe v. State Bank of Lombard, 125 Ill.2d 203, 126 Ill.Dec. 519, 531 N.E.2d 1358, 1369 (1988) (“[W]here a plaintiffs injury results from the same risk, the existence of which required the exercise of greater care, unfore-seeability of what exactly could develop and the extent of the injury or loss will not limit liability.”). Illinois courts can and have applied that rule to find foreseeable harms disproportionate to more predictable harms.

In Platson, for example, an employee assaulted an intern — he grabbed her, pulled her to the floor, and forced himself on top of her before she escaped. The complaint alleged that the employer knew its employee “would rub and massage plaintiffs shoulders and intentionally brush his body against hers.” 255 Ill.Dec. 208, 748 N.E.2d at 1282, 1284. The court reversed dismissal of the complaint.

And in Rowe, the court determined that the plaintiffs evidence presented a genuine issue of material fact: the landlord in that case knew that master keys to the property were missing and that burglaries without forced entry had been committed. 126 Ill.Dec. 519, 531 N.E.2d at 1369. Based on that knowledge, an ex-employee obtaining a key, entering the property, and shooting two people — killing one — was foreseeable. Id., 126 Ill.Dec. 519, 531 N.E.2d at 1360, 1369. The magnitude of the harm Cooper inflicted on Alisha does not by itself render the harm unforeseeable.

We are left with the question whether “some harm” was foreseeable to a person of ordinary prudence. The district court said that as a matter of law the answer is no. In reviewing that decision, we reiterate that this is a question' of fact; judgment calls made from the perspective of ordinary, prudent people are jury questions. We are therefore skeptical at the outset of the district court’s effort to resolve this point as a matter of law. We ultimately disagree with and reverse that decision. If the plaintiff can prove her allegations at trial, a reasonable jury could find that “some harm” was foreseeable.

The plaintiffs amended complaint is unusually detailed — much more detailed than required by Federal Rule of Civil Procedure 8. The amended complaint recounts how Cooper’s behavior escalated: from private inappropriate comments and touching, to workplace retaliation, to continual harassment and monitoring, and finally to public outbursts, verbal abuse, and physical intimidation. Hearing such evidence, a reasonable jury could easily find that the employers could and should have foreseen that Cooper would take the small further step to violence.

The defendants and the district court emphasize that Cooper never made explicit threats and never physically harmed anyone before his fatal attack on Alisha. The district court’s opinion all but requires such a history to support an inference of reasonable foreseeability. See Anicich, 2016 WL 930655, at *5 (“[T]here are no allegations of a prior pattern of violence from which it can be inferred that Cooper’s attack was reasonably foreseeable to defendants.”). We find no support in Illinois law for such a bright-line rule on this issue of fact. Cf. Platson, 255 Ill.Dec. 208, 748 N.E.2d at 1286 (employee’s assault on plaintiff was foreseeable where employer knew plaintiff was the “object” of “inappropriate physical advances”).

The defendants’ argument also assumes that none of Cooper’s alleged behavior was implicitly threatening. That is incorrect. Anyone who saw Cooper, for example, “throwing and slamming items in the garden center and ... parking lot while screaming obscenities,” Am. Compl. ¶ 39, could have easily concluded that Cooper either was dangerous because he had lost control of himself or was trying to frighten Alisha.

Every life lost to brutality is unique, each family’s hell a private one. We do not diminish that truth when we repeat that Alisha’s story is an old story that has been told too many times. Its ending is both shocking and predictable. Alisha’s family is entitled to try to prove its truth.

For these reasons, we REVERSE the judgment of the district court in favor of defendants and REMAND for further proceedings consistent with this opinion.

      . The complaint does not explain the relationship between Grand Service and Grand Flower, but they appear to be part of the same corporate structure. We refer to the two companies collectively as "Grand.” The issue of joint employment was not part of the defendants’ motions to dismiss or the district court’s decision and is beyond the scope of this appeal.

      . Cooper was found guilty of first-degree intentional homicide and third-degree sexual assault. He was sentenced to two consecutive life terms without the possibility of parole.

      . Grand argues that we lack appellate jurisdiction because plaintiff filed her notice of appeal before the district court entered its final judgment of dismissal with prejudice. The argument overlooks Federal Rule of Appellate Procedure 4(a)(2), which provides that a notice of appeal filed “after the court announces a decision ... but before the entry of the judgment” is treated as "filed on the date of and after the entry.” See also Albiero v. City of Kankakee, 122 F.3d 417, 420 (7th Cir. 1997) (applying that rule to a notice of appeal filed before time to file a new complaint expired). We have jurisdiction over this appeal.

      . Home Depot asserts in its brief that Illinois businesses employ "thousands” of such people. We hope this insult to the character of Illinois workers and to the judgment of their managers was just an ill-advised exaggeration. For its part, Grand frames the case in terms of whether it had am obligation to control Alisha’s behavior. This offensive assumption that the victim’s behavior was the problem is at best flatly contrary to the Rule 12(b)(6) standard.

      .The district court appears to have believed the issue was a question of law. That view is understandable. Reasonable foreseeability must be proved as a matter of fact on a claim to recover for negligent hiring, supervision, or retention, but reasonable foreseeability is one of the factors in deciding whether a defendant has a duty to a plaintiff, and duty is treated as a question of law. See Simpkins, 358 Ill.Dec. 613, 965 N.E.2d at 1096-97. Some of the plaintiff's theories of recovery, and the defendants’ responses, required considering the latter question. But the plaintiff's theory of negligent hiring, supervision, or retention does not. An employer's duty to exercise reasonable care to control his employee under certain conditions is well-established in Illinois law. See, e.g., Kigin, 133 Ill.Dec. 524, 541 N.E.2d at 736 ("Even when an employee is acting outside the scope of his employment, his employer may still have a duty to exercise reasonable care to control him ... under certain conditions.”).

      . Detailed complaints have become a prudent course for plaintiffs, however, given the range of ways in which federal courts apply the new pleading standards imposed under Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). See Runnion, 786 F.3d at 520.

      . In what might be described generously as excessive zeal by advocates, Grand’s brief minimizes Cooper's behavior as "rude” and "mean to inanimate objects,” Grand Br. 22, and even characterizes Cooper’s final and fatal trip with Alisha as a "date.” Id. at 17. Home Depot told the district court that Cooper had "made a few'mistakes.” See Anicich, 2016 WL 930655, at *4 n.5.

      . See Sabric v. Martin, No. 3:09-2237, 2012 WL 1952197 (M.D. Penn. May 30, 2012) (woman murdered by co-worker who previously harassed, intimidated, isolated, stalked, belittled, and tried to control her); People v. Farley, 46 Cal.4th 1053, 96 Cal.Rptr.3d 191, 210 P.3d 361 (2009) (defendant became obsessed with coworker, and stalked, harassed, and threatened her for years; after she obtained a TRO, he shot eleven co-workers, including her, killing seven of them); In re Civil Commitment of Martin, 661 N.W.2d 632 (Minn. App. 2003) (man who propositioned woman, verbally abused her, showed up to her workplace, and twice broke into her family’s home apprehended while plotting to kill her); Carnes v. Tremco Mfg. Co., 30 S.W.3d 172 (Ky. 2000) (woman harassed then murdered by a co-worker); Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998) (woman killed following months of harassment by defendant, who repeatedly called her home and workplace, drove up and down her street, and left graffiti near her home and workplace calling her a "bitch”); State v. Zanter, 535 N.W.2d 624 (Minn. 1995) (woman sexually assaulted and bludgeoned to death after being harassed at work for more than a year); State v. Walsh, 495 N.W.2d 602 (Minn. 1993) (woman murdered by co-worker after receiving harassing phone calls from him for several months and repeatedly discovering him on her property uninvited); State v. Landin, 472 N.W.2d 854 (Minn. 1991) (woman killed by co-worker whose romantic advances she rebuffed, following a campaign of harassment and threats; murderer punched a door at work, dented victim’s locker, set off firecrackers near her home, made prank phone calls, and left threatening notes); State v. Apanovitch, No. 49772, 1986 WL 9503 (Ohio App. 1986) (woman raped and murdered by painter she had hired who made numerous advances on her, showed up at odd times, and called her a "nice piece of ass").
      According to the Bureau of Labor Statistics, around sixty people per year have been intentionally and fatally injured by their co-workers in recent years. Create Customized Tables, Bureau of Labor Statistics, https://data.bls.gov/ cgi-bin/dsrv?fw (search "All U.S.”; "Fatalities by primary source of injury”; "Event or exposure — Homicides (Intentional injury by other person)”; and "Co-worker or work associate of injured or ill worker”) (last visited Mar. 21, 2017). Those numbers likely understate cases like Alisha’s because they include only victims engaged in legal work activities at the time of the killings. Bureau of Labor Statistics, Chapter 9: Occupational Safety and Health Statistics, Handbook of Methods 16, https://www. bls.gov/opub/hom/pdl/homch9.pdf.