502 F. App'x 453
6th Cir.2012Background
- Keith was convicted of receiving child pornography under 18 U.S.C. § 2252A(a)(2) and possessing child pornography under § 2252A(a)(5)(B).
- After a jury verdict, the government moved to dismiss the possession charge; the district court granted the dismissal and sentenced Keith to 180 months for the receiving charge.
- Keith appeals asserting three challenges: admission of prior-conviction evidence under Rule 404(b)(2); double jeopardy from pursuing both offenses; and the prosecutor’s choice to dismiss one charge after verdict.
- The district court admitted prior-conviction evidence to establish identity and motive, with limiting instructions; the court balanced probative value against unfair prejudice.
- The panel affirms, finding no reversible error on the challenged issues and upholding the district court’s ruling to dismiss the lesser offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior convictions under Rule 404(b) | Keith argues the evidence is irrelevant and prejudicial | Government contends evidence properly shows identity and motive | Admissible for identity and motive; no abuse of discretion in balancing |
| Double jeopardy with charged and lesser-included offenses | Keith claims proceeding on both offenses violated double jeopardy | Government contends lesser included offense may be tried with charged offense; dismissal occurred | Not violated; lesser offense dismissed and Keith sentenced on the charged offense |
| Prosecutor's discretion to dismiss a charge after verdict | Keith asserts district court should make the dismissal decision | Prosecutor appropriately decided after verdict | No plain error; district court’s dismissal decision was proper |
Key Cases Cited
- United States v. Clay, 667 F.3d 689 (6th Cir. 2012) (standard for Rule 404(b) admissibility de novo; weighing probative value against prejudice)
- United States v. Carney, 387 F.3d 436 (6th Cir. 2004) (limits to weighing probative value and prejudice; limiting instructions)
- United States v. Myers, 123 F.3d 350 (6th Cir. 1997) (probative value of 404(b) evidence supported by limiting instructions)
- United States v. Perry, 438 F.3d 642 (6th Cir. 2006) (evidence of prior misconduct to show identity and motivation)
- United States v. Ehle, 640 F.3d 689 (6th Cir. 2011) (double-jeopardy treatment of lesser-included offenses)
- United States v. Avery, 128 F.3d 966 (6th Cir. 1997) (plain-error review; dismissal decisions following verdict)
- United States v. Corp, 668 F.3d 379 (6th Cir. 2012) (plain-error standard for district-court procedural challenges)
- United States v. Jones, 489 F.3d 243 (6th Cir. 2007) (double-jeopardy and multiple-justice theories)
- United States v. Inman, 666 F.3d 1001 (6th Cir. 2012) (plain-error/harmless-error framework)