998 F.3d 344
8th Cir.2021Background
- In March–April 2019 an undercover agent, posing as a pimp, told Terrance Nordwall the advertised girls were 14–15 years old after Nordwall responded to an online ad.
- Within two weeks before the planned meeting, Nordwall’s phone showed four internet searches for sexual content involving 15-year-old/teen girls.
- Nordwall traveled from Minnesota to a prearranged meeting place in Iowa on April 5; was stopped by law enforcement and found with condoms and recent cash withdrawals; his phone contained the cited searches.
- Nordwall was indicted for attempted sex trafficking of children (18 U.S.C. §§ 1591(a)(1), 1594(a)), attempted enticement of minors (§ 2422(b)), and travel with intent to engage in illicit sexual conduct (§ 2423(b)).
- At trial the government offered the four internet searches; Nordwall objected under Fed. R. Evid. 403 and 404(b); the district court admitted them for intent/knowledge with limiting instructions; Nordwall testified alternative motives for travel.
- The jury convicted on all counts; Nordwall appealed the admission of the searches; the Eighth Circuit affirmed, holding the district court did not abuse its discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility under Fed. R. Evid. 404(b) — whether prior internet searches are "other acts" admissible to prove intent | Searches were not probative of material issue and served only as improper propensity evidence | Searches showed intent/knowledge relevant to motive for interstate travel and attempts to engage in sex with minors | Admissible under 404(b): relevant to intent, similar in kind and time, supported by evidence, and not unfairly prejudicial |
| Exclusion under Fed. R. Evid. 403 — whether probative value was substantially outweighed by unfair prejudice | Prejudicial nature of sexual-search evidence rendered it inadmissible under Rule 403 | Probative value on intent was high; limiting instructions reduced prejudice | District court did not abuse discretion under Rule 403; probative value outweighed any unfair prejudice |
Key Cases Cited
- United States v. Walker, 393 F.3d 842 (8th Cir. 2005) (abuse-of-discretion standard for evidentiary rulings)
- United States v. Johnson, 860 F.3d 1133 (8th Cir. 2017) (Rule 404(b) as rule of inclusion and admissibility framework)
- United States v. Anderson, 879 F.2d 369 (8th Cir. 1989) (articulating multi-factor Rule 404(b) test)
- United States v. Sykes, 977 F.2d 1242 (8th Cir. 1992) (temporal proximity can support admissibility under 404(b))
- United States v. Tyerman, 701 F.3d 552 (8th Cir. 2012) (treating unchallenged evidentiary sufficiency as conceded)
- United States v. Johnson, 439 F.3d 884 (8th Cir. 2006) (reversing admission where evidence was used solely as propensity proof)