*1 (9th INS, 842, F.3d v. Cir. Labor (internal America,
2002) UNITED STATES quotation marks and cita- omitted). Plaintiff-Appellee, analysis, Under this “the tions hardship relative to the mov- greater the v. probability the less of success ing party, CURTIN, Kevin Eric Defendant- (internal quotation Id. must be shown.” Appellant. omitted). marks and citations No. 04-10632. by analysis Na As indicated Appeals, United States Court of claims, darajah’s corpus we con habeas Ninth Circuit. probability has shown a clude that he merits. The success on the balance of 19, Argued and Submitted 2005. Oct. releasing Nadarajah. also favor hardships 25, Submission Vacated Oct. 2005. undisputed There is evidence the record 21, March Resubmitted 2006. deteriorating, that his health is a deterio by ration that is exacerbated continu April Filed 2006. Therfefore, ing grant detention. we release, subject motion for to conditions to by
be set ICE.
VII sum, conclude that general by relied upon gov-
detention statutes do not authorize
ernment indefinite deten- analysis
tion. examined When under the Court,
prescribed by Supreme Nadara- unreasonable,
jah’s unjustified, detention is violation federal law. ICE its discretion in denying parole
abused
during pendency of these proceedings.
Therefore, judgment we reverse the of the denying Nadarajah’s petition
district court corpus. grant
for a writ of habeas We release, subject
motion for immediate
terms and conditions to be set delegate
appropriate Attorney Gen-
eral.
REVERSED. *3 III, Potter, NV, Esq., Vegas,
Cal J. Las for appellant Kevin Eric Curtin. Bogden, Daniel J. United States Attor- ney; Nancy Koppe, J. Assistant United NV, extensively Curtin discussed sex Attorney, Vegas, re- Las States conversation, Christy saying during States of America. spondent United “spend that he love for her to night” hoped “get the show and after Christy room.” told “I want Curtin If happy.... make were mastur- sex, bating fantasizing I’d love about you.” He sex with added WALLACE, J. CLIFFORD Before: just just give “could make out I could TROTT, and PAMELA STEPHEN S. just RYMER, you oral or we could fool around.” Judges. Circuit ANN Christy Finally, plans made meet Curtin *4 WALLACE, Judge: Circuit alley in the of a casino bowling Vegas Las conviction and appeals from his Curtin Sunday, 15. At p.m. February at 2:00 on across state lines traveling for sentence conversation, the end the Curtin asked act engage in a sexual with a intent to with Christy try sleeping night, naked that to 2423(b), § minor, in violation of 18 U.S.C. my moving and to face “imagine between facility of an interstate to at- and of use your legs licking you. Imagine my and engage minor to in persuade to a tempt tongue penetrating you.” 2422(b). § sex, in violation of 18 U.S.C. day, Christy The an next Curtin sent jurisdiction to 28 U.S.C. pursuant We have “I how message saying email can’t tell part, § affirm in in 1291. reverse We Sunday. looking much I’m forward to trial. part, remand for a new and great have a time.” The going We’re to day had detective and later Curtin I. during another which Curtin contin- “chat” 11, 2004, February the afternoon of On having explicit ued to make references Metropolitan Depart- Police Vegas Las Christy. Curtin sex concluded Michael Castaneda was ment Detective and confirming meeting “chat” by their as 14- on the Internet acting undercover telling would her to Christy he introduce year-old using name “chris- girl the screen niece, adding, as his Penn and Teller chat channel tinel3.” Castaneda entered caught, get “Let’s not ever.” received “ltgirlsexchat” and an in- labeled Curtin, Sunday, police officer whose who On that message stant from used the in the sent to Curtin waited picture screen name “M-42SOCAL.” decoy, bowling alley as a dressed detective, “Christy,” and The Curtin Christy clothes that indicated she through messaging instant “chatted” to ten enforce- wearing. Eight other law They four hours. ex- approximately present. were also Curtin ment officers in the changed photos early conversation. alley and p.m. at 1:45 bowling entered the picture Curtin a a fe- Castaneda sent decoy area where walked towards officer, when taken she was police male past He her sitting. walked officer was his years old. said name fourteen Curtin her past and walked and then turned “Kenny” forty-two and that he was her time. Curtin again, looking at each old, divorced, Anaheim, living in years and decoy was then left the area where the Christy He he was California. told bowling sitting went to back of and Vegas Friday, planning to travel to Las digital his alley, personal he used where go February 13 and invited her request law enforce- At the Sunday, assistant. and Teller” show on Febru- “Penn officers, ap- security guard casino ment Christy agreed. ary 15. enticement, and asked for proached Curtin identifica- violation of 18 U.S.C. 2422(b). guard § tion. showed the a United Curtin filed Curtin two motions subsequently and left the passport States asking limine the district court exclude alley area of the casino. bowling digital the stories found on his assistant from The court evidence. district denied alley bowling ap- Curtin reentered the these motions limine. On the second proximately 2:05 He p.m. looked around trial, day offered two of again and walked to the area where stories, “My Little and Sister” “Love decoy After than a sitting. officer was less World,” operandi, for the to show modus minute, her, he moved even closer to look- intent, preparation, knowledge. They and ing in direction the entire time. He her objection. were admitted over Curtin’s stopped the officer and behind she turned engineer who extracted the “hi” stories he said him. Whether said digital from the assistant testified “hi” in disputed. return is both stories were about a father having bowling alley He then left the start- young daughter van, ed into a getting point which law daughter’s enjoyment experience. stopped enforcement officers asked However, government sought when the him for identification. He was detained *5 story, introduce a third Busy “Melanie’s police rights and advised of his under Mi- Day,” the district court stopped ques- the rights, randa. After Curtin waived these tioning. govern- The court the allowed agreed speak he to with the law enforce- to general questions ment ask without ad- statement, voluntary ment officers. stories, mitting the such whether they as he that car by stated he had traveled to all related to sex between a minor and an meetings. for Vegas explained Las He However, adult. recognizing highly the bowling alley that he at the to meet a stories, prejudicial of nature the the court female he friend had met on the internet. story held the could be entered into He to using admitted the screen name and only intent, evidence if it tied into email Curtin’s Christy. used contact address to knowledge, preparation, or operan- Curtin modus explained that he often chat enters di. play[s]” rooms and “role as if is en- he gaged type in “daddy/daughter” conversa- government The then asked court to tions, he expected Christy and that to be a a preliminary legal make determination
thirty- forty-year-old to woman pretending admissibility about the of remaining girl. be a government argued stories. The
Curtin by was then arrested the Las Busy Day” “Melanie’s was admissible to Vegas police. Upon searching his van and intent, general operandi, show modus room, hotel police digital seized his assis- preparation, knowledge and because had tant laptop computer. and digital The as- language similar that used Curtin in sistant contained over 140 stories about Christy, namely, his email to language con- having adults sex lap- with children. The cerning oral and a child masturbating. top contained a list chat channels that government argued “Missing The Big Curtin accessed in past, had as aswell Brother,” which discussed how the adult pictures girls whose names matched not sex, did want to hurt the during child some of those his “chat” list. intent, was also for oper- admissible modus andi, preparation, knowledge. and
Curtin was indicted on one The count of trav- el with intent to similar engage arguments a sexual act made with juvenile, stories, with a regard violation of 18 U.S.C. seventeen other § 2423(b), and Molested,” one count of such Being coercion titles as “I’m “The Interest,” Girl,” may take this kind evidence “Re- You “A Relative Good Kids,” question whether defendant strictions,” “Teaching the the intent. actually possessed “Mommy Juice.” may also it on additional You take morning, renewed Curtin following questions question go which of the sto- objection to the admission intent, practiced in this al- whether he preju- ries, highly were arguing that leged methodology conduct consistent to show being admitted dicial tending that he had or literature held that if The district court propensity. he to commit the prepared show that part government could cite is, knowledge, acts that he had permissible to one of the story that related how commit act or that the act Federal Rule of Evidence purposes under was illegal.... 404(b), admit the court would Rule then So, reasons, only, those four story general to show intent. the entire offering to show that the Government being un- court admitted to The district literature; in- possessed this defendant they were to read the stories because able method, tent, preparation, and knowl- prob- disturbing. thought “I about so edge. it for that may And take I overnight want to address because lem purpose. overwhelming versus prejudice relative right. Again, you have a constitutional the first purpose. read You would want to right. You have that as bit of the second. That’s little far right to protect possess the defendant’s confirming [defense get, which could it or any kind of literature and to read It tendency has a counsel’s] statement. not read it. jury.” and overwhelm the overwhelm this kind of evi- You must allow *6 However, argument, more the dis- after the you, generally, against dence to bias limiting give to in- agreed trict court of question ultimate on the defendant admit five of the stories: struction to must not do that. guilt or innocence. You (which involved incest “My Little Sister” year-old of impregnation the a nine II. (which girl), “Love for the involved World” that the five stories Curtin contends incest), (same), “Daddy’s “Restrictions” evidence, in- were inadmissible character (same), Busy and “Melanie’s Lessons” of propensity troduced to show violation (which eleven-year-old an Day” involved 404(b) Evi- Rule of Federal Rules of the others, with, initiating among her girl that the government responds dence. The teacher). and her father Rule parameters of fall outside the stories given was as limiting The instruction 404(b) inextricably inter- they are because follows: the Alterna- charged with crimes. twined nor con- person charged
A cannot be the sto- tively, argues that government the that read or victed literature Rule under properly ries admitted they possess. why giv- I’m that That’s 404(b) Curtin’s intent. prove you the instruction. ing A. the
But the Government has obli- beyond a reasonable the gation prove, argues government The doubt, “inextricably had the inter the defendant admitted stories were the They may giving offer the rise to wrongful pos- intent. with facts twined” therefore against literature to show indictment Curtin session such scope within the acts” evidence “other that.... 1090 404(b). man, (9th 788, Cir.2002), novo We review de the 298 F.3d Rule the
question the evidence was with- charged of whether defendant was with importing 404(b). 1,500 Rule marijuana. United scope pounds the See over His de- 1203, DeGeorge, 380 F.3d States v. fense was that he tricked into was trans- (9th Cir.2004). marijuana the porting govern- the chief cooperating ment This witness. witness categories may of evidence Two at length prior drug testified about runs “inextricably intertwined” with considered that Beckman had on his made behalf. admitted charged offense therefore testimony We held the witness’s was 404(b). First, to Rule evi regard without “inextricably intertwined” with may acts if prior dence of be admitted offense, charged because was “intended part transac evidence “constitutes to establish relationship [the witness’s] as the crimi tion that serves basis for the Beckman [and] to show that the relation- 1220, DeGeorge, nal at charge.” 380 F.3d ship ongoing....” was Id. quoting States v. United Vizcarra-Mar (9th Cir.1995). tinez, 1006, 1012 66 F.3d The fact that was in posses Curtin v. Montgomery, United States 384 F.3d sion of stories with detailing sex children 1062(9th 1050, Cir.2004), that a we held time “Christy” he went to meet report detailing individual to support insufficient the introduction of “inextricably was fraudulent acts inter 404(b). without regard stories Rule conspiracy twined” with the underlying charged Curtin was traveling across charge because acts themselves com lines engage state with intent to in a sexu Therefore, prised conspiracy. the re minor, al act attempting and with port regard was admissible without to persuade a minor engage sex. The 404(b). Similarly, Rule States v. United possession or content of stories was (9th Lillard, Cir.2003), 354 F.3d part not a “transaction” led to that the concluded defendant’s theft of Second, present charges. the admis shipment, cocaine from a which itself required sion of stories was not for the conspiracy, basis for the “inextri prosecution to story.” “offer a coherent cably conspiracy intertwined” with the prosecution would have had no diffi charge. culty in presenting evidence, all relevant *7 including conversations, the “chat” Cur-
Second, prior may act evidence be tin’s admission that was he “M-42S0 404(b) regard admitted without to Rule CAL,” and Curtin’s at behavior the meet necessary “when it to in order [is] do so to ing place, without the admission of the permit prosecutor the to offer a coherent Thus, stories. the were not stories “inex comprehensible story and regarding the tricably charged intertwined” with the DeGeorge, the commission of crime.” 380 crimes. 1220, Vizcarra-Martinez, F.3d at quoting 66 jury F.3d at 1012-13. “A is entitled to B.
know background the circumstances and of alternative, In the a the charge. expected criminal It cannot be that to in contends the are make its decision a stories admissible void—without 404(b) time, under Rule of knowledge place, regardless circum and whether they inextricably stances of acts which form are the the basis of intertwined with the the charge.” Daly, United States v. 974 crime. We review a district court’s admis 1217(9th 404(b) 1215, Cir.1992), F.2d quoting sion of evidence under Rule for an Moore, 289, v. United States 735 F.2d 292 of abuse discretion. States United v. (8th Cir.1984). (9th Romero, Cir.2002). 683, United v. Beck- States 282 F.3d 688 a and a The priest to deter sex between child. four-part a test
We use ruling court deferred on the motion. is admissible under evidence mine whether 404(b). Spillone, States v. Rule United trial, permitted police At the court Cir.1989). (9th First, 514, F.2d Shymanovitz’s at testify officer that sup must evidence “there be sufficient seized, among things, she other con- house that jury’s finding doms, the defendant surgical the port gloves, children’s under- Second, wear, sexually explicit magazines. the other Id. and [act].” committed detail, great officer in over The testified [in must not be too remote [act] “the other objections, the defense counsel’s about Third, admitted Id. 519. when time].” magazines. of four contents of these She intent, prior act must be prove “the jury magazines told the that the contained Finally, prior Id. “the act must similar.” photographs of sex explicit homosexual prove in a material introduced order photographs described the Id. The main issue case.” element contents of two articles detail. element: whether lies the third here subsequently articles entered two possession similarity is between the there 1155. into evidence. Id. at crime with which the stories and the Shymanovitz and this ad- appeal Both charged. is Curtin reading whether material at is- dress objected to admission of the sto- Curtin 404(b). under sue admissible Rule court, relying in the district on Guam ries Shymanovitz concluded in that We 1154(9th F.3d Cir. Shymanovitz, 157 v. magazine articles failed constitute 1998) (as amended). Shymanovitz was 404(b) “[P]ossession Rule “bad act.” guidance counselor who middle-school reading simply lawful material not sexually physically abus- charged contemplated by Rule type conduct boys supervi- under his ing several 404(b).” Additionally, Id. at 1159. trial, gov- Id. at Prior to sion. 1155. ma- possession reading of lawful held sought magazine to introduce two ernment criminal terial was similar actual sexually explicit magazines from articles conduct, thus third failing the criterion home, Shymanovitz’s arguing found Spillone simply no .“[T]here test. intent. establishing were relevant to separates that a the act of gulf doubt wide presumably fiction- The articles were both descriptions or stories possessing written from act of depicted al stories. One between criminal conduct about son, committing the Id.1 depicted the other offenses described.” father while Enomoto, Barapind v. 400 F.3d 751 n. 8 argues dissent case differs 1. The Cir.2005) (en banc) Shymanovitz (9th curiam). (per at issue from because crimes subjective case intent. did not involve *8 dissent's of cases like United The discussion Shymanovitz slightly dif- even if involves But (9th McCollum, 1419, v. 732 F.2d 1425 States facts, distinguish legal rule does not ferent its 84), the admission of Cir.19 which involve specific intent crimes and other between prove prior criminal convictions to similar government’s theory, the crimes. "Under McCollum, intent, point. equally is In off against child molester would case an accused prior allowed admission of conviction copy stronger Nabokov's be Lolita, if he owned of robbery negate de the defendant’s armed to any would be murder defendant acting hypnosis. relation fense of under The possession a collec- unfortunate to have in his ” ship prior crime the act between the mysteries.... Shyma- Agatha tion of novitz, Christie charged obviously closer in is far McCollum’s Shyma- simply, Put F.3d at 1159. it is case in case than in Curtin's. Curtin's replete language with that dictates novitz reading material that may volves otherwise lawful appeal. We the outcome of this controlling similar the crime with which he ignore its effect on this case. See is not to similarity, Shymanovitz issue of On the method as to ear-mark charged offense the rest of our case In conforms with law. the handiwork of the accused and that are Vizcarra-Martinez, the defendant was so unusual and distinctive as to be like a (internal charged conspiracy possess with signature.” Id. at n. 9 punc- omitted). with reason to believe it would chemical tuation and citation of “[U]se methamphetamine. rare, used to make 66 F.3d modus operandi evidence is and the district court 1009. The admitted evi- specific similarities must be and detailed in pos- clearly dence that Vizcarra-Martinez was particular set the apart offense personal-use session of a amount of meth- from general body of such offenses.” amphetamine at the time of his arrest. Id. simply “We We reversed. cannot assume in evidence this case is not ... that Vizcarra-Martinez’s use of meth- sufficiently specific detailed and to fall amphetamine prove tended to that he exception. within the The stories did not in knew that the chemical his possession specific describe methods of committing in methamphetamine would be used the first offense with which Curtin was manufacturing process.” Vizcarra-Mar- charged: traveling across state borders to tinez, at 1015. 66 F.3d The cases which Rather, have sex with a minor. the stories 404(b) we have allowed Rule evidence mostly explicit descriptions involved in stronger show a much connection between Thus, cest. the stories do not reveal a act,” the “other which is often a crime in relevant operandi modus to commit the itself, charged and the In crime. United crime, charged and are inadmissible. The Vo, (9th 1010, States v. 413 F.3d 1018-19 issue is with regard closer charge Cir.2005), where defendant was facility use of an attempt interstate charged possession methamphet- persuade a minor to engage sex. The distribute, amine with intent to we allowed government argued that language prior the admission of a conviction for the stories was similar language drug selling. prior “Vo’s conviction was by used Curtin in his “chat” conversations. knowledge evidence of drug his traffick- We conclude that Shymanovitz forecloses ing and in general. distribution The con- acceptance our government’s posi viction familiar tended show that Vo was tion. The conduct with which Curtin was illegal drugs distribution of and that charged, and language that Curtin his actions this case were not an acci- used, “hardly can be construed as either dent or a mistake.” Id. at 1019. distinctive or remarkable in the universe of
Shymanovitz recognize does a nar sexual against offenses minors.” Id. exception row operandi” for “modus Compare evi United States v. Dhingra, 371 (9th dence: involving Cir.2004) (as evidence acts the de F.3d 566-67 amend ed) fendant nearly are “so 404(b) identical in (allowing introduction of Rule being charged. Essentially, government However, arrest. nev- possession here seeks to introduce of material argued er physical posses- relevance based on conduct, type one describes of criminal event, any sion. this is a fallacious dis- minors, namely prove incest with intent to tinction because the stories were saved as conduct, type commit another of criminal computer. documents to Curtin's handheld crossing namely state borders to have sex In the absence of evidence to the con- *9 impermissible with a minor. This is under trary, planned we should not infer that Curtin our caselaw. to "use” the stories or had the stories in argues length The dissent also at that Cur- simply mind carrying because he was tin's case is different because Curtin was ac- computer at the time of his arrest. tually possession in of the stories at the time fire), set on and that later “[i]n where both swastika operandi evidence modus Id. at instances, paraphernalia. un- other skinhead 885- a minor Dhingra contacted distinguished Shymanovitz: “Key years over mes- 86. We [instant the of 18 age der Shymanovitz reasoning the soliciting [in ] of to our was purpose for the sexual senger] ... not meet, testimony the that the rele- arranged to and at fact activity, any proving in to of the engage to sexual vant elements meeting attempted coercion.”). the crime for which defendant was convict- activity by persuasion and ” Id. government and at 887 n. 25. The the stories ed.... The similarities between that, together, read not or thus contends when conduct were distinctive Curtin’s “Shymanovitz Allen stand and the to ad- enough render the stories unusual principle that relevant literature is admis- evidence.2 operandi missible as modus prove sible to intent.” United States relies (9th Allen, However, Cir.2003), government’s comparison the v. F.3d 870 First, Allen, to Allen does day. not distinguish Shymanovitz. In save the into violating many of the items admitted evidence charged were defendants in Allen involved more than the possession of federally rights on the basis protected reading material. The defendants were the intro- of religion. and We allowed race poses in “Heil Hitler” suprema- participants active of “skinhead and white duction large evidence,” and had with and burned including photographs posed color cist Shymanovitz, Second, in swastikas), unlike swastika. (e.g., tattoos the defendant’s literature, reading there is no indication group photographs Nazi-related Third, in Allen in fictional. (e.g., material including of the defendants some Shy- case, and in issue in this standing before a evidence at poses and “Heil Hitler” assertion, propensity, and dence introduced to show Contrary we have 2. dissent’s at highly prejudicial evidence that. literature off limits in character not "made relevant length argues Nor we the evi- law.” do at Ninth Circuit matter The dissent "hamstring!] capability the rule of law necessary refute Curtin’s testi- dence was cope see this Circuit with adults who mony "aggressive of his defense” intent prey.” pointed adult, as sexual As out attempts distinguish children above, to meet an rely prosecution may this case the actually Shymanovitz testified. because Curtin presence in a chat room called on Curtin’s However, were offered for the stories “Itgirlsexchat,” "chat” conversations opin- express we no impeachment, on which themselves, he was Curtin’s admission that we that the stories ion. Nor do believe "M-42SOCAL,” Curtin’s behavior at the strength necessary given the of other evidence meeting place. event, government. by the In introduced solely it because evidence is not admissible lawfully-possessed lit- of otherwise terms Wholly apart necessary helpful. may be erature, operandi evidence and inex- modus effect, prejudicial we have held that from its tricably evidence remain admissi- intertwined reading possession of material mere "[t]he Here, however, jury “to was asked ble. activity particular type that describes one infer from behavior on occasion some- likely more nor less makes neither person thing of a and then to about the nature intentionally engage defendant would probably person that how infer from to meet the and thus fails conduct described would behaved on another occasion Shymano- relevancy Rule 401.” test of under the two when the connection between Here, vitz, the materials F.3d 1158. thefjury] people is that believes occasions possession told stories of incestuous Curtin's type way act both of a certain the same al., he different from those acts that were sexual Stephen Saltzburg et times.” 1 A. Feder- They 404.02[9](8th intending perpetrate. was accused § al Rules of Evidence Manual guilt, ed.2002). evidence were offered as substantive Without more of a connection be- crimes, simply admission in hold that their tween the literature and accused case was an abuse of discretion. evi- the literature is no more than character *10 1094
manovitz,
extremely prejudicial.
danger
Fi-
prejudice
was
the
of unfair
to Curtin.
in
nally,
possible
However,
it is
the evidence
Curtin
specifically
did not
Allen
have been admissible under
distinctly
argument
make a Rule 403
in his
“inextricably
exception
intertwined”
the
opening
appeal,
brief.
arguments
“[0]n
holding
Our
here is con-
outlined above.
by
party
not raised
a
in its opening brief
Shymanovitz.
The district
by
trolled
Marsh,
are
v.
deemed waived.” Smith
194
.by
an
court
abuse of discretion
committed
1045,
(9th Cir.1999) (citation
1052
F.3d
admitting the stories.
omitted);
FAA,
see also
v.
Greenwood
28
(9th Cir.1994).
971,
F.3d
977
argu-
The
C.
event,
any
ment
is waived.
for the
to argue
fails
The
say
reason we
same
cannot
that the error
error
thus the
is ordi
harmless
issue
harmless,
say
was
we cannot
that the ad-
narily
See United States v.
waived.
Vare mission of the
on
materials
Curtin’s PDA
(9th
la-Rivera,
1174,
279 F.3d
1180
Cir.
unduly prejudicial.
was not
2002).
however,
may,
We
consider harm
sponte
lessness
unusual
sua
“those
IY.
cases in
which
harmlessness
argues
govern
Curtin
that the
beyond
error is clear
serious debate and
failure
request
copy
ment’s
of the
proceedings
further
are certain to repli
surveillance video
from
casino violated
original
cate the
result.” United States v.
process
due
him to
spolia
entitled
(9th
Gonzalez-Flores,
1093,
418 F.3d
1100
instruction.
disagree.
tion
We
gov
The
Cir.2005).
certainty
court’s
as to
“[T]he
duty
ernment’s
preserve
evidence arises
...
harmlessness
error
“possesses]
when
evidence
an exculpa
(cita
particular importance.” Id. at 1101
tory value that
apparent
before the
omitted).
if
“[E]rror
tions
is harmless we
evidence was destroyed,
of such
and[is]
can say with fair assurance
it did
nature that the defendant would be unable
effect, injurious
have a substantial
comparable
to obtain
by
evidence
other
defendant,
jury’s
decision-making
on
reasonably
means.”
available
California
process.”
Runnels,
Arnold v.
421 F.3d
Trombetta,
479, 489,
v.
467 U.S.
104 S.Ct.
(9th Cir.2005) (citations
859,
omitted).
2528,
(1984).
Curtin contends in his dis brief trict court failed to instruct adequately that the district court its abused dis cretion pursuant to Rule what constitutes a by admitting step. substantial probative stories because the court value of district instructed accord with the substantially outweighed stories is jury prepa- model instructions “mere *11 pull eyes to wool over step.” See ers not a substantial ration was jurors delegated to ensure that our laws § 5.3 Instr. 9th Cir. Jury Model Crim. It faithfully implemented. seems that are (2003). adequately covered fairly This now relevancy law of is more con- Echeverry, v. States the issue. See United protecting predator’s sexual Cir.1985) (“So cerned (9th 1451, 1455 759 F.2d to what do to children obscene manuals on and ade- fairly the instructions long as protecting upon the real children than with presented, cover the issues quately they practice perversions, their as whom or those formulation of instructions judge’s this case illustrates. a matter discre- language is choice tion.”). explanation to the his jury for Curtin’s “christy trip Internet behavior with 13” and PART; IN REVERSED AFFIRMED he Vegas to Las was that intended to act PART; IN REMANDED. her, fantasy out an incestuous sexual expected that he her be an adult TROTT, but dissenting: Judge, Circuit his un- pretend would to be innocent who Century, walls During the 20th the four Although his spoiled daughter. he called family’s provided of a home substantial fantasy “daddy daughter,” he de- sexual marauding preda- sexual protection from a minor. “daughter” nied that the prowl for children and unsus- tors on belief, intent worthy If this would defeat minors assault. Locked doors pecting case, prosecution’s required which normally safeguard and windows could engage of an intent a minor proof invasion, from as well as shelter dwelling However, activity. sexual Curtin unlawful parents’ children from harm. vulnerable person the time antici- had on his of his malls, and parks, playgrounds, Distant “christyl3” pated encounter with obscene surrounding yards school sidewalks ambiguity to tending literature without preferred hunting the child molester’s object fantasy that the of his incest prove Now, No the Internet grounds. longer. child, My respected not an adult. was a us, cunning it allows sexual upon is that the court colleagues conclude district to enter bedrooms repeatedly vultures litera- admitting inculpatory erred where, by of immature children seductive matter ture because—as a law—-it was means, calculating unwary children Therefore, I disagree. not relevant. security of their are enticed leave the respectfully dissent. unspeakable and to into homes venture Moreover, the them- dangers. invaders invisibly, only on appearing selves do so developed against Kevin The evidence screen, by unsuspecting video unseen Vegas Po- Metropolitan the Las Curtin provides site. case an ex- adults on This on Department its face suggests lice gen- frightful of this situation which ample dangerous predatory pedophile who he is a yet familiar with the dark side erations electronically to enter the Internet uses recog- Internet been slow juvenile immature female the homes his nize. danger. them in order to lure into victims the walls of our homes breached With M.O., operandi, modus involv- Curtin’s Internet, next best defense by the our and enticement ing “grooming” calculated Unfortunately, this case reveals the law. police work this well known to the who Here, the laws the rules of evidence prey Curtin contacted detail. protect itself upon society “Itgirlsexchat,” which relies a chat called through room evidence, which, place deviancy porous are now as is a according from cruel talk homes, people go to our the Internet where allowing walls of lawbreak- *12 girls. Q.1 they little The evidence reveals as far person, sex with Now as this told family cover planned they that he that you also were fourteen. He, his time with his victim. for Uncle Right. A.
Kevin, introduce her as his “niece.” would else, Q. they you tell anything Did who addition, if he asked her she work- they lived with anything or like police get guys with the in order “to ing that? 14-year-old girls.”
who make out with Uhm, A. I ... I’m hesitating not to aspects government’s These of the evi- you un- give information. It not subjec- would portray dence seem to go exchanges to on usual and do intent required by charges tive filed many, many, many with people. him against and a keen awareness Uhm, and it ... it is unusual doing. unlawful nature of what he was point attempt where this is the first wait, protests, you But he what see and I’ve actually any- had to meet you my exchanges what read on that, But one. because of it’s diffi- “ehristyl3” get. you is not what I’m not for say cult me to which and person predator juve- online trolling an for naive which thing done at time. and which niles, my to true intent —hard discern I don’t ... I’m ... in- So I’m not though sexually it may be—is to hook-up uh, tending to vague. just, be I I hanging with mature females who are out can’t remember who said what. juvenile chat posing rooms as minors. you Q. don’t Kristy So remember if merely I’m a “lonely divorcee looking [sic] told that she her [sic] lived with an older may place woman who have a and anything mother father or like go,” place to because I do not my have that? just game own. It’s of role playing. but, uhm, A. I believe she said that “[N]ormally thing it this sort of would again, that would be ... if that fantasy. daddy/daughter be Sort of like (laughing). case I know along My those lines.” real intent was to sounding if, I’m like all these and’s up thirty year-old forty hook with a role case, ... but if were the playing pretending 14-year- woman uh, be part would on fantasy, old who was in actualizing interested such be, It it. wouldn’t uhm ... I would an incestuous sexual fantasy, certainly not uh, expect ... rephrase let me course, But “my a minor. first I expect anyone that. would who’s anyone time.” “I haven’t ever kissed but participating thing this sort of And, my wife since—in years.” by fifteen their place have own one where way, “no one a picture ever sends go back ... do Moreover, actually
what look like.” playing.... role everything “ehristyl3” I wrote to appear makes it that I understood her to just
be a minor? It was a lie. Q. And what were kinda some uh, things that, says How I she unsophisticated did she know— I or has not though certainly has done? “christyl3” am—that Uhm, an though older woman even she said A. she had said that didn’t she she was explained fourteen? As I experience whatsoever police: guys. Uhm, again which is a Curtin, Here, 1. This ty. conversation was between responding questions Las Curtin is Vegas Metropolitan Department Police Detec asked Detective Castaneda. Castaneda, agent tive special and FBI Flaher- known, uhm, that it wasn’t a 14- adds to thing. And fairly common (Both my girl. idea of However ... my year-old whole credence because, uhm, once) a, fantasy ... of talking at uh, know, completely, I’m not ... no, go Keep Q.__Oh, ahead. going with what’s conversant goin'. today, know of but don’t with kids Uhm, I people deal with all of the A. girls who haven’t 14-year-old experience never my time has *13 know, or, you least kissed someone uh, is, an been that who someone or fooled around somewhat attractive who’s ... who person themself, not even
saved kissed and, uh, ... anything, not done uh for a who bad first-timer had Not uh, the, Uhm, picture the ... in anyone years. but his wife fifteen kissed 14-year- this attractive was sent was protestations cover of Curtin’s uh, who, ... never uh had girl old notwithstanding, criminal intent” fed- “no anyone, but was anything with done charged him one prosecutors eral uh, bed suddenly, jump to into willing of travel with intent to count interstate 42-year- a strange ... with a ... bed minor, a in a act with beyond engage Riverside is sexual person old from 2423(b), § could anything imagine that I would and one violation of U.S.C. uh, see, know, ... You I could be. facility to of the use of an interstate count uh, I an Internet connection could see persuade engage a minor to unlawful if it along lines went on those conduct, in violation 18 U.S.C. sexual and months and months and months 2422(b). charges required gov- § Both a grew ... an attach- you months and prove beyond a reasonable ernment a thing. sort of What ment with the doubt that Curtin acted intent beyond any it level of credence brings age person eighteen under engage actually a 14- possibly me that it’s years in behavior. To unlawful sexual you’ve got year-old girl is concluding court in its instruc- quote the girl 14-year-old going innocent who’s jury: tions to the to, know, you jump into bed with some found In order for the defendant be uh, talking to him for two guy, after 2423(b)], the Government guilty [§ led to believe days. That’s what me following each of the ele- prove must that it way no earth that there’s ments, beyond a reasonable doubt: ... First, facility used a the defendant here, But, mean, coming had Q.2 you commerce. means of interstate idea, way no no of knowin’ that 14-year-old girl named wasn’t a Am I Kristy right? Other [sic]. Second, in- knowingly the defendant may ... you think it
than what induce, entice, or persuade, tended as far as what fantasy, but Christy engaging in sexual into coerce about, right am I y’all talked prosecuted activity for which he could be sayin’ way had no the state of Nevada. under the laws of knowin’? Third, Christy believed defendant saying that there is right A. You are years.... of 16 age not attained the way that I could have had no concrete Agent Flaherty ques- Curtin. point Special tioned At this 2. the laws of the sessions,
Under state of Neva- old after two chat especially a da, pretty girl. statement, an offense to commit statutory it is As he said in his Mary beyond her Poppins naivety was sexual Nevada law seduction. defines any level of easy credence. It was so statutory seduction ordinary sexual as and uncredible that he even wondered if intercourse, intercourse, sexual anal event, it could have police. been cunnilingus, by or fellatio committed concerned, he was not because when he person years age or older with a left to go Vegas, California to Las he person age years. under the of 16 work, going to find and at the time Nevada,
he left California to travel he had no having intentions of relations subsequent may [D]efendant’s conduct minor, irrebuttably shown by you question be considered or the the fact that he did not so much as talk the defendant’s intent at the time he *14 to person. the This meeting was the communicated on the Internet or trav- litmus test of his true intentions in this in eled interstate commerce. hazy nebulous and situation. clearly He fact that Christy [T]he was an under- and without question passed this test. agent posing cover 14-year-old as a girl calmly When simply he and walked that and no actual minor child was vic- away, police the why. wanted to know in timized this case is not a defense He told them. clearly unequivo- He
cally explained that he did not talk to person this because he stopped by the II Suncoast with hope the and intentions of trial, Prior to the it became clear that meeting an older woman. HAD HE only disputed in issue this case would MINOR, BEEN THERE A TO MEET subjective be Curtin’s intent: did he in- AS THE IS CRUX OF THIS INDICT- up tend to hook with a year-old 30 to 40 MENT, THEN HE WOULD HAVE woman who liked pretend to she was a INTRODUCED HIMSELF AT THAT having child incestuous sex with her dad- POINT.
dy, or with a pubescent minor? Curtin ... Curtin’s intentions try were to to went so far as to file a motion to dismiss year meet a 30-40 old woman who had the indictment on ground that been fantasizing. It is not even “undisputed and uncontested facts” made close....
it patently obvious As the defendant’s intent was not to credible, had “no suggest evidence to minor, have sex with a nor to entice a subjective [Curtin’s] minor, intentions were to nor to travel interstate to have Vegas minor, travel to Las to have with sex with a ... this case must be minor”: case, dismissed. the instant the de- fendant did not think he dealing was possess
Curtin did not an intent to with a minor. police knew there year have sex with a 14 girl old when he not a [was] minor and in fact there was got car into his Vegas; drove to Las not a minor. the overwhelming points evidence added.) (Emphasis way. other voluntary statement, His given minutes after he stopped by was Thus, the line was drawn Curtin. police, shows thought this. He it His defense awas matter of record. The easy, all too that no 14 year old was trial would be about intent and what was going just hop into bed with a 42 year Curtin’s mind during undisputed his adults, daughters, and the “christyl3.” This was with child with conduct parallel issue, subjective intentions. content stories Curtin’s issue: exchanges opening target. email with his I extract for Curtin said his As counsel statement, representative examples: some- two thought was “[Curtin] dealing with age he one LOVE for the WORLD they play a situation would role daughter.” a dad Counsel much like Story An Erotic what-was-in-Curtin’s- concluded jury by telling the that “this mind theme morning, “Good brothers and sisters. crime that is a situation where type splendid day the Lord It’s has blessed To thoughts.” to look at the with; ... us course, not be
prevail, Curtin would satisfy jury going speak frankly, bluntly; that his “I’m upon called telling. had to raise and tell some truths that was true. All he do is need defense friends, single you, mind And I don’t of a want reasonable doubt any- the kids the next room or juror. send thing else might because Ill your enough If child is old shocked. saying, I’m or she understand what he fan- aggressive Confronted Curtin’s you. hear it are along must These sexually play dad- tasy intent defense—to *15 children learn. TRUTHS even must incest, not with minor but dy/daughter around; children, call the and gather So facing the traditional with an adult —and to the re- listen truth has been the daunting proof, burden of me.” vealed to PDA, contained on Curtin’s offered stories world, digital today’s parents spe- assistant.” These sto- “In “personal or have to pursuant duty offered Fed.R.Evid. their ries were cial towards children. Gone 404(b) equally appropriate pur- days two pretend for are the when we could (1) prove to that Curtin harbored poses: facts of children ‘innocent’ the subjective by children, made intent unlawful Today’s they the before turn life. (2) law, to ten, rebut Curtin’s defense grade, some before even first in daughter daddy/daughter sexual the many ... And of them know what is an be a fantasy pretending adult already developed an interest that beginning, govern- From the child. the may feel uncomfortable parents some put on the court that ment was notice discomfort, I That matter with. properly in stories order tonight; to address and what going am admitted, com- story each would have to do, it, just must to not overcome but you port admissibility of Fed. conditions doing joy to find true work 404(b) as the R.Evid. well Lord, by teaching your chil- properly probative limitations prejudice sex, versus prac- true dren the JOY of when found Fed.R.Evid. 403. love. you ticed with those truly up parents For it is was the of the material on What content healthy right: their into a steer children approxi- PDA? It consisted of Curtin’s all, it on matters of sex. After outlook mately containing graphic de- stories only gift from the not a beautiful Not scriptions of sexual acts with minors. Lord; very it is of those source PDA about single Curtin’s themselves.” precious children playing with adults. daddy/daughter role the responsibili- “I will talk first about stories admitted evidence are built many say that ty of fathers. I must having around daddies sexual relations -disgrace very out there fathers ...” “Well Yes, meaning of the word. there are Margaret, “Oh what am I going to do many though who behave as their role you? You didn’t him let do child, more, begetting ends at you?” still hold did to an old-fashioned sense of ‘duties’ that “Well, he tried put his hand on me providing groceries here, is limited to ev- but I stopped him.” ery week. THAT is not way “Very good Margie. Maybe I can bring up a child! Especially your you trust you after all. What did tell daughters! Daughters need their father him?” a strong presence, to be very proto- him, “I told that if he didn’t keep his type manly image. of a hands where belonged, he’d have to go I home. don’t like
Men, to tell him that your YOU, daughters need to be Daddy, really he’s a boy. nice How the FIRST MAN IN THEIR LIVES!” come I can’t himlet touch Daddy?” me I’m talking “And any halfway “Because I’m you’ll go afraid too far.” here, measures friends. “Too far?” sayI you When must be the man first “I guess just I’ll have to you. show in your daughter’s I just life mean that! here, my Come and sit on lap.” Think about it: precious Your girl, little mean, Daddy. “Ok You like I’m not you who loves more than anything supposed to Billy’s sit on lap?” too, you world ... love her don’t you? Oh, “Uhuh. go wait. First change you?” DON’T your dress, into red top.” love, “Then MATCH that gentlemen! “The SHORT Daddy?” one Be not life; the first MAN in her “Uhuh.” Yes, be the first MALE in her life! Daddy! “But You told me never to exactly
mean what thinking. are wear that one.” *16 want to be her first f ... k!” I’ll you
“Uhuh. show Iwhy don’t want you wearing it.” you so, [Exhibit 7b] “If say Daddy.” “I Margie?” do. And Restrictions Daddy?” “Yes An Story Erotic “Don’t any nylons, wear pantyhose either.” “Margaret?” Daddy.” “Ok Daddy?” ‘Yes “You were sitting out long there a
time, Billy, with you?” weren’t [Exhibit 7c] Daddy.” “Yes To illustrate the material similarities be- Daddy.” ‘Yes tween the stories in Curtin’s PDA and the you “Did you?” let him kiss escalating salacious enticements he made (cid:127) “Only on the Daddy.” cheek 13,” on line to “christy “groom- known as good. “That’s Did he do anything ing,” here representative are some exam- else?” ples of his email conversations with her. “Well, put he his arm around me.” They show an adult planning to initiate a him, stopped
‘You you?” didn’t young virgin into the world of adult sex:3 3. reading For ease of the format has been modified. The content of the conversation is that I’m 14? You don’t mind Christy: mind I’m 42? youDo
Curtin: I heard that it hurts the first Christy: No, Christy: not all. Also, you get pregnant time. can an you Have ever been Curtin: easy.... real guy? older There are can do to things Curtin: No, I’m if that is virgin, still a Christy: that. stop asking. you’re
what Well, you what want Curtin: I’d to make out with me? love do Or, just out or I we could make Curtin: that weird?
you. Is just you oral or we could give could
just fool around. me Christy: you gave Would hurt if youDo masturbate? Curtin: oral sex? No, never Christy: have.... No, at all. Curtin: you urges? Do never get Curtin: you do mean?
Christy: What sleep Christy: bring What should I horny? never You feel Curtin: in, my jeans shirt be my pj’s or will okay? No. Is that Christy: okay? I Nothing. you want don’t
Curtin: sleep anything. you yet? have periods Do Curtin: my under- Christy: Really? Not even Christy: Yes. that be a little uncomfort- wear? Won’t just logged looked at I on and Curtin: able? it’s sexy so your picture. You’re No, sleep, toway that’s best Curtin: horny. get hard to believe don’t up, two bodies. all cuddled naked pretty. I think that I’m Christy: don’t just Okay, you say if Christy: so. are, and I think think Curtin: it would be uncomfortable. think you’re sexy. if it is. Try tonight and tell me Curtin: Christy: Thanks. my moving face between imagine And *17 you. my licking Imagine
your legs and you. tongue penetrating how I do or Christy: What should Mom Dad come Christy: I can’t. far I go? should should—how tell me and check on me and night you far as probably go I’ll Curtin: they up with time that cover me all the go. want to I So would see my blanket. happy. I Christy: you want make why. me naked and would ask too. you happy, I want make Curtin: naked, I Plus, saw my if dad me and fantasiz- you masturbating If were be so embarrassed. sex, with I’d love to have sex ing about not, I you’re But since don’t want you. you’re ready you past anything push hurt, right? ... It Christy: won’t
for.'... unaltered. No, No, you it won’t hurt. Curtin: won’t feel dumb. The
Curtin: I
only thing something ask is if feels good, tell me. And if something feels you thought my about bad, Have just Curtin: tell me. I you want to make your legs, licking you? head between good. feel so Christy: Yes. Kind curious what that Christy: Okay, I will. like.
will feel you yourself Have touched
Curtin: there? going I’m good Curtin: to make it so Christy: Only taking while a shower to you. going you I’m to get to come and Am I myself. weird? [sic] come and come. No, just thought you might I Curtin: Christy: you it hurt if that? Will do me, thinking have when about about— No, Curtin: it will I’m good. feel real thinking going about we’re to do [sic]. going you. Remember, to hurt I
promised. Christy: Okay. I get a little excited did, by way. I I Curtin: looked at when I think you being my about your myself picture played first.... it thinking about what would feel—what you. would be like to have sex with I’m going Curtin: to love sucking on sexy. You are so breasts, your your body naked in front Christy: me, Really? moving You did? licking you down and putting my tongue you. Curtin: Yes.... you I good. Curtin: want to make feel so you’ve want this to the best ever
felt. you Curtin: I’d.love for put my d ... Christy: Really? You’re so nice. your k in mouth. you Would do that?
Christy: to, If want me I think I will. you get Curtin: Can undressed? smiley Curtin: face. Christy: way. My No- little sister I’ll Curtin: show how to do that to my comes in and out of room a lot and guy Smiley drive a nuts. face. she would tell Dad Mom or did Christy: To do what? not have on. clothes job. Curtin: guy’s Give a blow Put a d Curtin: Rats. your ... k in mouth. Christy: Why? you going What Christy: Really? going You are have me do? give job? teach me how to my blow If Play yourself.... Curtin: *18 girlfriends only knew, they would be Oh, Christy: I have done never jealous. kind of stuff. Smiley Curtin: Sure. face. Curtin: I hoping you’d know. just
start. No It big thing.... would be case, Under the circumstances of this sexy. especially given defense, the nature of the Christy: I’m were the stories Curtin’s PDA going to feel so dumb when of sexual we are alone because won’t what contact with minors relevant? Certainly. know to do. by anyone’s logic The stories consisted
1103
tendency to make
IV
any
having
“evidence
fact that is of conse-
the existence
Guam
respect my colleagues,
all
With
action
of the
to the determination
quence
(9th
Shymanovitz,
v.
to the establishment First, specific intent crimes unlike the issue, that is- especially when disputed charged, the combi- with which Curtin was of mind the actor’s state sue involves in Shymanovitz general- nation of crimes — ascertaining that only means of and the ly activity with minors— unlawful sexual by drawing inferences mental state is entirely type different of mens required an from conduct. required intent here. specific rea from the States, 681, v. Huddleston United 485 U.S. Shymano- charged One of the crimes (1988). 1496, 685, 771 99 L.Ed.2d 108 S.Ct. vitz, “not include penetration,” “sexual did act any requirement the defendant PDA these in his possession Curtin’s 1157, id. at intent,” just the time his person on his at stories engaged pen- in sexual defendant have “christylS” intended encounter clear- crime, The other with the victim. etration subjec- thoughts and his ly illuminates his minor, required sexual contact with carry daddy/daughter tive intent to out than intentional rather touching that was juvenile, with a escapades initiation sexual Moreover, purpose the actual accidental. question of Any lingering an adult. doing touching was immate- person de- relevancy put to rest Curtin’s Judge explained, Reinhardt rial. As fantasy all a directed that it was fense contact charges based sexual [T]he between an adult.4 The similarities prove require the email conversations “grooming” solicitous Shymanovitz’ part was any touching on readily the content of the stories intentional, person that a reasonable apparent.5 touching to be for a could construe purpose. However, sexual did not ad- the district court stories, five, actual taking great pur- mit all 140 Shymanovitz’s Whether alleged in the exercise of its discretion victims was pose touching care however, gratification, main issue and to arousal or their use to the sexual restrict actually aroused or whether he was prejudice. undue possible eliminate portion that was similar government may case in offer in its 4. The "christyl3.” rebutting expected defense. See evidence an enticement of chief Curtin’s infra 1000, Halbert, F.2d 1004 United States v. majority opinion does not take V. The Part Necoechea, 1981); (9th Rather, Cir. United States v. majority analysis. issue with this Cir.1993); (9th 986 F.2d 1280 n. law, reading mate- as a matter of asserts that Henderson, 135, v. 111 F.2d United States dissimilar categorically irrelevant and rial is (4th Cir.1983). 401 and purposes of Fed.R.Evid. for the below, 404(b). this unwarranted As set forth judge re- that the trial 5. The record shows flawed, contrary legally assertion is *19 government go through each quired the congressional intent. identify sought to admit and it by touching prove guilt any the is gratified charges immaterial his on of the offenses, including charges the to the brought against Accordingly, him. it is sexual contact. In- improper on based unlikely highly that the in- stead, category in the latter question the magazines troduced the to address the person whether a reasonable of cases is argued they issues it were relevant touching to be for could construe during prosecutor’s closing argu- test, under purpose. such ments. statute, objective an sexual contact Id. at 1156. short, subjective one. In not a is the contrast, testify Curtin did at the issue, touching that character of the is at trial, tendering energetic an defense that purpose not the intentional touch- his intent was to with an couple adult Accordingly, government’s er. cur- female, juvenile. Shymanovitz’s not a de- justification admitting rent and sole nothing fense had do intent or challenged goes, evidence once state of mind. again, proof to the an element imma- terial to the offense. Third, pos- the stories were in Curtin’s added). (emphasis at 1158 Id. session when he entered the casino in or- to meet in target. Shyma- der Not so Second, the in Shymanovitz defense novitz. alleged touching pen- not that accompanied by any etration were not req- Thus, given that the evidence under mind,
uisite state but the acts (1) scrutiny Shymanovitz pro- not charged happened. as crimes never “His (2) case, any bative of issue in the argued boys counsel that the and some of Shymanovitz’s defense, relevant to factual parents had allegations concocted the appropriate panel it was for the to con- ” against Moreover, him.... Id. at 1154. clude as a matter of law that it was not Shymanovitz properly pursuant received to Rule 401 or ... never testified at trial that he be- 404(b). simply The evidence failed Rule lieved sexual conduct with minors and, therefore, relevancy 401’s definition of legal. testimony Nor was there to indi- 404(b). also failed Rule The evidence did knowledge cate that he somehow lacked consequence not illuminate “a fact of fellatio, familiarity of or anal inter- action,” determination of the and was noth- course, or general aspects other of ho- ing more than an attempt to slime the Moreover, mosexual sex. neither knowl- defendant. Id. at 1154(referring to the edge illegality of the conduct of prosecutor’s “untempered provocative which he knowledge was accused nor evidence).6 references” to the specific the nature of the acts identified by recognized We the limited reach of prosecutor Shy- an constituted ele- Allen, important, ment of the offense. More manovitz United States v. (9th Cir.2003). knowledge in way such no tend to F.3d 870 The defendants majority places great significance 6. The majority's ization best illustrates the failure to Shymanovitz appreciate our statement that “there is the fact "offense de- simply gulf separates no doubt that a Shymanovitz specific wide scribed” was not a Thus, possessing descriptions act specific written or sto- intent crime. because intent issue, reading ries about criminal conduct from the act of was not an material admitted (Em- committing the offenses described.” to show intent would never be relevant. added.) Here, phasis law, From that statement the ma- subsequent as illustrated case issue, jority reading asserts that material specific reading can never where intent mate- over-general- be relevant crime. This rial can be relevant. *20 intimidating porting three-year-old charged god-daughter in Allen were rights illegal for interfering person’s housing purposes. Gillespie with a sexual color, in of inapposite alleged on account of race or violation since the homosexual satisfy § In the 42 U.S.C. 3631. order to conduct did not tend to establish a vio- requirement showing Here, of a of ra- lation statute’s statutes in issue. animus, offered, cial and the skinhead evidence tended to estab- admitted: lish racial we Skillman’s animus and that he might act on his beliefs. Skillman also supremacist
... skinhead and white
evi-
contends that
the skinhead references
dence, including
photographs
color
were cumulative to other animus evi-
(e.g.,
their tattoos
swastikas and other
dence,
3,
including Exhibit
the business
symbols
supremacy),
of white
Nazi-re-
card with the
poem
racist
found in his
literature, group photographs in-
lated
wallet as
Becky’s
well as Milum’s and
cluding
(e.g.,
of the
in
some
defendants
testimony on
prior
Skillman’s
race state-
poses
standing
“Heil Hitler”
before
ments. We conclude this
was
evidence
later
on
large swastika
set
“needless[ly]”
in light
cumulative
fire),
(e.g.
paraphernalia
and skinhead
difficulty in establishing
requi-
boots,
swastikas,
combat
arm-bands with
site racial animus and Skillman’s theo-
registration
Aryan
form
that,
ry-of-defense
he
passive
was mere
Congress).
Nations World
bystander at
the crime. The district
(1)
Id. at
The district court ruled
885-886.
court’s evaluation under Rule 403 and
potentially inflammatory
that this
evidence
the admission
evidence was not an
proving
was relevant
the defendants’
abuse of discretion.
(2)
motive,
plan,
intent and
its
added).
prejudicial potential
substantially
(emphasis
did not
On
the Allen defendants chal-
intent and those that do
we
lenged
ruling
difficulty
the trial
had no
explaining why Shymano-
court’s
vitz,
ground
unfairly
Gillespie,
inapposite:
the evidence was
like
was
prejudicial.
disagreed,
in
relying
large
We
The defendants cite to our decision
measure on our
decision United States
Shymanovitz,
Guam v.
udicial
question
not material to the
of whether
the crime
the elements
any
for
of
of
(un-
of that
relates to and is
was convicted
content
which the defendant
minors).
alleged
to the conduct of the
crimi-
activity with
Id.
similar
sexual
lawful
contrast,
thereby satisfying
requirements
the skinhead
1157-60.
at
nal' —
404(b). Third,
major-
of Rules 401 and
evidence here was
supremacy
and white
that “the evidence at issue
ity’s
intent
assertion
proving
the element
relevant
of
245(b)(2)(B).
in Shymanovitz
op-
in this case and
§§
[as
241 and
More-
in both
extremely prejudi-
over,
heavy
posed to Allen was
light
government’s
]
in
animus,
cial,”
distinguishable,
ap-
fails to
and thus
proving racial
burden of
operate.
how the rules of evidence
preciate
not an abuse
conclude
Prejudice
separate
is a
basis for exclusion
to admit the evidence.
discretion
independent analysis
an
un-
requires
Allen,
887,
(emphasis
n. 25
F.3d
341
it is determined
der Fed.R.Evid. 403 after
added).
is relevant and
that an offer of evidence
My colleagues attempt unconvincingly
—
Weisgram Marley,
admissible.
v.
528
See
distinguish
Allen on the basis
believe—to
440,
9,
1011, 145
453 n.
120 S.Ct.
U.S.
the ev-
insignificant
differences between
(2000).
by my
As admitted
L.Ed.2d 958
in
here.
idence
Allen and the evidence
colleges,
prejudice
argument
(1) that “the evidence in
They point out
waived
Curtin and is not an issue be-
possession
involved more than the
Allen
fore us.7
material,” including photographs
reading
Ultimately,
majority’s
reasons
showing some of the defendants as active
(2)
inadequate, espe-
poses,
distinguishing
in “Heil Hitler”
Allen are
participants
in
“lit-
may
cially
light
in
not
when viewed
the Nazi literature
Allen
have
(3)
“fictional,”
in
erary”
approved
evidence
Skillman on
that “the evidence
been
case,
in
Allen
The evidence in
Shymanovitz
in this
was ex- which
relied.
Skill-
tremely
apparently
op-
“poem containing
as
man included a
racial
prejudicial,”
in
epithets”
to the evidence Allen.
on the back of business card
posed
segregate
did not
pocket.
Skillman’s
We
utterly
minor
are
in-
These
differences
Allen,
holding
out of our
the Nazi litera-
inapposite.
sufficient
to render Allen
Although
possession.
ture
literature
First, that Allen
in addi-
involved evidence
per
special protection
se has no
in this
reading
inconsequential,
tion to
material is
the First
context
evidence—under
as each “offer of evidence is to be evaluat-
my colleagues
Amendment
otherwise —
independently
ed
under the Federal Rules
effectively
made relevant
literature
of Evidence and the relevant case law.”
categorically off-limits as
source of evi-
Bertoli,
F.Supp.
United States v.
854
person’s subjective
dence as to a
intent.
(D.N.J.1994)
part
vacated in
on unre-
(3d Cir.1994).
grounds,
way
relevancy
lated
7. The
dies of humankind.
supremacy
of Nazi and white
skinhead litera-
"extremely prejudicial"
ture is
hard
Or, maybe
testimony
8.
of a woman with
comprehend
directly
as the movement is
asso-
played daddy/daughter.
whom he had
edge,
judge’s]
daddy/daughter
understanding
[the
incest
playing
role
human conduct and motivation.
the dis-
adults —not minors—and
female
trict court had excluded the stories as
added).
Id., §
(emphasis
*22
attempt-
“irrelevant.” Curtin would have
“sting”
In Internet
cases such as this
to admit the stories into evidence
ed
involving
entrapment,
claims of
the issue
an
demonstrate that he intended to meet
of what a defendant’s state of mind was
doubt,
adult.
a
a convicted Curtin
Without
immediately prior to his contact with a
appeal
would assert on
that the content of
target purporting
a
sexual
to be minor is
subjective
light
the stories shed
on his
routinely
point
a serious
of contention.
ju-
it
put
intent and—as counsel
to the
“predisposition,”
We call the issue one of
“thoughts”
rors —his
as he communicated
primarily
question
and it
a
of fact.
In
“christyl3,”
inter-
with
and as he traveled
Poehlman,
v.
United States
1109 “nig- federally protected right to African-Americans as their oc- peatedly said, The court gers.” cupy property. important Context is Magleby’s argu- turn to Mr. determining We now whether a has true threat lyrics are ment that irrelevant been made. prejudicial. the ad-
unfairly Although lyrics
mission to the Screwdriver certainly harmful Ma- song was to Mr. necessity demonstrating case, proba- gleby’s conclude that its context in which the cross was burned outweighed prejudicial tive value its ef- lyrics renders the Screwdriver and other evidence both of probative fect. This hostility presence evidence of toward the Magleby’s racial Mr. animus under in- country African-Americans 3631(h) § under U.S.C. of his intent And, § trinsic violation to a 241. § 241. 18 U.S.C. Viefhaus, only way jury could Viefhaus, v. United States F.3d properly message determine the con- (10th Cir.1999), we held that veyed by Magleby’s cross-burning Mr. alleged context which an threat and the foreseeable effect it *24 a probative made of whether “true Henrys on the was to cir- examine the Viefhaus, exists. Id. at 398. In threat” in which cross-burning cumstances making was the defendant convicted of conceived, planned, was and executed. interalia, against, threats African-Amer- We fine that the district court did Jews, icans, and federal law enforcement abuse its discretion admitting answering on an machine The “hotline.” song lyrics into evidence. asserted that he as a defendant defense added). intent make a requisite lacked the (emphasis Id. at that 1319 note upheld true threat. We the admission of part Magle- of the evidence used to show inflammatory racially items as relevant by’s subjective intent was the circumstance to the defendant’s intent. movie, that he a “Mississippi had watched
Burning,” to the Id. prior cross-burning. at 1313. Viefhaus, As the defendant in Mr. did Indeed, in contexts rou- similar we have Magleby having denies in- requisite tinely surrounding held that circumstances 3631(a) 42 §
tent and 18 under U.S.C. alleged an crime become more relevant lyrics § 241. The U.S.C. to the Screw- when the makes his intent a defendant song, driver as well as the evidence Larry Take disputed issue. the case of lyrics Mr. knew the could Magleby al- McCollum. McCollum claimed that them, along sing probative are of a an though gave he entered bank and First, under his intent these sections. $100,000 employee demanding a note he 3631(a) § requires that government intent” had “no criminal to commit rob- beyond prove a reasonable doubt bery acting involuntarily he was because Magleby targeted Henrys Mr. be- hypnosis. dis- under the influence The their lyrics cause of race. The and Mr. prior trict a court admitted conviction Magleby’s familiarity with are them robbery armed to counter his defense probative his racial burn- animus in affirmed, holding lack of We intent. Second, 241, § ing the cross. under follows: prove beyond must rea- case, In ... the defense conceded Magleby doubt that Mr. had the sonable performed acts all specific intent to McCollum “oppress, threaten prosecution. key Henrys enjoyment charged by intimidate” the in the The 1110 Brunson, 110, issue, v. F.2d 657
issue, disputed United States indeed (7th Cir.1981), said, in- acted with our whether McCollum 115 sister circuit was Where the mental to rob the bank. tent appellant’s The contentions remainder undisputed inferred from state unpersuasive. Appellant equally are acts a defendant is crucial overt complains judge that the trial erred acts issue, past criminal has evidence of evidence of admitting Government’s insufficiently prej- generally been found allegedly criminal con appellant’s prior to warrant exclusion. udicial after relating counterfeiting ap duct McCollum, 1419, 732 F.2d States v. United conduct on the pellant had admitted that 1425(9th Cir.1984) added); (emphasis evidence, previ stand. The as stated Verduzco, 1022 v. 373 F.3d United States ously, offered and admitted re was (9th Cir.2004) and af- (quoting McCollum appellant’s buttal to main defense that firming the of evidence of other similar use he did not intend the counterfeit use acts counter an affirmative criminal de- money anyone. admis to defraud duress). fense clearly purposes prop sion for such respect my col- the utmost With necessary both intent er because they seem moved to brush McCol- leagues, element of the and because of crime assumption aside their lum appellant’s chosen Fed.R.Evid. defense. PDA incest materials on Curtin’s Weidman, 404(b); States v. 572 United reading material.” This “otherwise lawful (7th 1199, Cir.1978), F.2d cert. de Obscenity, at best. premise doubtful nied, 821, 439 U.S. S.Ct. ap- which is described as work which 113; Semak, v. L.Ed.2d United States and which peals prurient interest *25 (6th 1142, Cir.1976); 536 F.2d 1145 sexual conduct in a of- patently describes Onori, 938, v. 535 F.2d way, judged by United States fensive and which when 943(5th Cir.1976). community contemporary standards lacks artistic, political, literacy, serious or scien- added). (Emphasis value, protected by tific is n'ot the First California, Amendment. Miller v. 413 English Regi- As was the case of said 15, 24-25, 2607, U.S. 93 S.Ct. 37 L.Ed.2d Gill, (1963) (Crim. 841, 1 na v. W.L.R. 846 (1973). I leave it the reader will to App.): whether “Love for the decide World” and accused, by The either the cross-exami- “Restrictions” are otherwise lawful read- prosecution nation of or the witnesses However, material. if ing even behalf, on or aby evidence called lawful, way to be seen as this fact no two, place combination of must be- them the scope renders outside of Rule fore court such material as makes 404(b). 404(b) on Rule its covers face duress issue fit proper a live to be crimes, All wrongs, “other or acts.” rele- But, jury. left to he has once suc- presumptively extrinsic are vant acts ad- this, doing ceeded in then for it is missible, subject Rule act 403. The destroy such a Crown defence possession reading material falls within jury’s manner as to leave in the minds Rule, whether lawful not—so long no doubt that reasonable accused the act of possession as relevant. cannot grounds be absolved on the apposite. Bottom line? McCollum is alleged compulsion. use precedents discussing The Hearst, (quoted in v. United States other evidence to establish criminal intent (9th Cir.1977)). 1331, 1336 2 literally intent are n. where is denied endless. F.2d purposes what jury Y which the could not consider them. have concluded that the My colleagues I elaborate. court “abused” its discretion in district with, begin To the district court was Far it. admitting this evidence. from acutely aware of the Shymanovitz case. fact, the district court’s conduct is a model trial, Long before the brought defense judicial making, decision appropriate it to the court’s attention in a “motion in reading of the record reveals. close exclude,” limine to a motion that was not my colleagues’ Because conclusion that government successful. The [C.R. 22] re- court abused its discretion is the district sponded 8, in writing July on 2003: record, reproduce with the inconsistent Shymano relies Guam v. Defendant of it in parts (excruciating) relevant detail. vitz for the contention pos that “mere speaks The record for itself better than session of fictional reading material that adjectives. characterization and In sum- a particular type describes of activity mary, taking great we see is a court what likely not make it more or [would] less protect the law and to care follow that a defendant intentionally en rights of the defendant. court: gage in the conduct described.” De Limine, 4, fense Motion in p. lines 25-27 Allen,
(1) Shymanovitz considered (June 2004). However, Shymanovitz Allen, (2) accepted legal guidance our can be distinguished present from the that Shymanovitz and determined case based on the Ninth Circuit’s statu distinguishable, tory interpretation and the differences (3) five required stories admit- Shyma- between the relevant statute in factually
ted similar to the facts novitz and the statutes the Defendant is approach of the defendants to and 34], violating. accused of [C.R. “christyl3,” enticement of consistent distinction, To demonstrate the asserted with relevant law interpreting case relied on Allen: government 404(b). Rule expanded Ninth Circuit has fur- [T]he (4) blocked the from intro- *26 “[key]” ther that reasoning our [in stories,
ducing approximately 135 Shymanovitz fact that ] was the the tes- redundant, they because were in- timony proving any was not relevant to flammatory, unduly prejudicial, of the elements of the crime for which the defendant was convicted.” United (5) request acceded to the defense’s Allen, States v. 870, 887, n. 25 F.3d highlight particularly damaging (9th Cir.2003).... By the above reason- stories, parts of the Circuit, ing of the Ninth this court clear- (6) ruled after careful consideration— ly may admit possession literature required by and as Fed.R.Evid. purpose prov- of the defendant for the probative 403—that value of ing an It can element of the crime. these stories was not undermined presumed that the more fundamental potentially unduly prejudicial their charged, the element is to the crime effect, and weighs more the balance in favor of (7) 404(b) gave multiple cautionary instructions admission because [Fed.R.Evid.] “rule of inclusion.” United States v. jury required by as Fed. is (9th Ayers,
R.Evid. 105 as what the stories 924 F.2d Cir. 1991).[C.R. prove, were admissible to including 34] story sex between an adult and Day Two of the trial. about Next, go to we Day One from the de- minor. testimony on After “christyl3” corresponded who tective you going to ask thought I had were questioned and who the defendant parts of specific questions specific about arrest, government called his him after show, assuming it that tended computer expert who as a witness (sic) it, and intent that read debtor FBI and who had recov- for the worked correspond your alleged intent stories from Curtin’s disputed ered the operandi, modus for him or his attempt- then PDA. When knowledge. entirety of one of these ed to offer thought you going were That’s what evidence, the district court inter- stories in do. vened, following occurred outside That— MS. KOPPE: jury: presence Because, otherwise, if THE all COURT: [story] That came off MS. KOPPE: generally you’re doing offering these PDA? the Defendant’s you’re just stating purpose, Yes, anoth- off the—this is WITNESS: foundation. don’t have sufficient were— n the 144 stories er one of Well, Honor, your that is MS. KOPPE: Documents to Go going problem what we’re to do. The get through
we need to them this wit- the one ness because he’s who did the is the title of that What MS. KOPPE: PDA. examination of the on the story, if could look second going to use another witness to We’re page? testify to them because he scanned them Busy Day (pho- Melanie’s WITNESS: and someone else— netic). right. THE COURT: All Then all Honor, we would Your MS. KOPPE: is, they need to ask this witness are to admit for modus move PDA, you’ve already and what intent, and knowl- operandi, preparation, asked, opened, do have to be un- edge. zipped— for the defen- MR. POTTER [counsel Right. MS. KOPPE: Honor, object I would Your dant]: they’re THE COURT:—before trans- motion ex- [to would renew the same ferred. talking clude the that —-we’re stories] about— just admitting But I was MS. KOPPE: him through them because he’s the one problem. THE I do have COURT: *27 objection, who found them. That’s— ready grant I’m about you’d If over to the side- Counsel. come Well, THE COURT: then I have a just bar a moment. problem you because have not done suf- (Sidebar p.m.) you’ve 03:26:24 ficient I think done foundation. (indiscernible) enough this witness with THE I had [from COURT: understood meth- knowledge, to tie it into intent pretrial go- what discussions] od, preparation. is, ing to do order to facilitate foundation, particular was to introduce You need to have a witness on the stand parts. with, you go through who here is the intent; him relates to here’s problem your asking I no section have about, something language it a that shows common generally story what is the e-mails; something you’ve Then foundation, with the here’s established the actually present— shows method that’s in which I think appropriate, case it’s subject instruction, limiting Right. MS. KOPPE: admitted. allegedly THE this case. COURT:— required That’s for the foundation. MR. POTTER: only thing I would appropriate I think it would then in, like, point out is that sexual assault mean, I to admit the document. can or, cases sexual type abuse where — before, subject showing admit it cases, they bring prior when in the bad proceed foundation and then to— acts—and what the courts have looked Okay. MS. KOPPE: at is the type same of abuse and the THE point particu- out those factors, COURT:— same kind of if age it’s or if lar areas. it’s— I can move MS. KOPPE: for condi- THE Right. COURT: tional once he admission them identi- convenience, MR. meaning POTTER: — them, fies if that’s— opportunity. don’t We have that here. Subject THE to further foun- COURT: (Indiscernible). These stories are com- dation. different, pletely your Honor. govern- for the [counsel MS. STANISH And, THE They COURT: are. it, expedite perhaps just And to ment]: course, either on voir dire or out of the introduce them as a bulk exhibit. These presence jury you point can (indiscernible)— all PDA came off the out and I can rule. Establishing— MS. KOPPE: Subject THE to establishing COURT: spite pres- what’s read outside the I require. the foundation that jury, ence of the there’s insufficient Right. particular story, you MS. KOPPE: foundation for that point that out them. [sic] Well, my gut MR. POTTER: is the in, coming testifying exhibit it’s—he’s as Well, Honor, your MS. KOPPE: Coun- to what his belief is. sel, all, argued first of opening in his The entire exhibit doesn’t need to come that this all fantasy about and these very in because the exhibit doesn’t show are all about the defendant’s fantasies. what we talked about. These stories are THE I COURT: understand. under- dealing not even the same act. stand. mean, prepubescent-type these are MS. KOPPE: And this shows what his stories, at least some them are. are and this shows his intent. fantasies THE COURT: Yeah. argued Counsel he never had intent MR. POTTER: completely And that’s to have sex with a child. (indiscernible)— goes This to show that he has intent. THE COURT: I think I’d have to over- They show—certain [sic] the stories if, only if, you rule that can show— things show other But— well. example, you show here’s common if language to what he used in his e-mail. THE I’m agree COURT: inclined to *28 you general that one or a few or a shoiv, you can example, Or that if for about, testimony generally, that here is common method. This is— they’re yet, don’t know this but story you here’s a that describes how —we cultivate, generally just exactly and that’s how he there are a hundred-and- did it here. they some-odd stories and all deal fact, purpose offered for the establish- deal with sex be- of them
with—none ing adults. intent. two tween getting No, I into Right. was I think the KOPPE: THE COURT: then MS. actually. objective prejudicial. It’s It good. that mean, say on his PDA he They goes all deal with—I let’s THE COURT: —I your asking that general comput- on his problem no has 100 and over kind right witness just isn’t of—this has 500 stories that deal with er he it. ask sex between adults. Honor, Imay Your STANISH:
MS. say there are other stories there Or let’s hopefully that can suggestion a make fantasizing that sex between deal with posing clarify this without expedite adults, role-playing them two one of jury? problem just minor. You could as well take PDA located on the The documents just to read sto- inference he likes The docu- obviously possession. in his ries, all. that’s speak for themselves. ments can it into a you It’s because tie me, Honor, your per- that It seems intent, go- I’m not particular otherwise this is to have a haps way to resolve story. preju- ing to let him read the It’s by your Hon- determination preliminary inflammatory. dicial. It’s docu- to each these respect or with Well, I understand MS. STANISH: ments. you’re saying. what That would be legal deter- preliminary That would be 404(3)[sic] I ruling, more of a as under- your Honor is to whether mination as it, to prejudice. stand contents satisfies the that the satisfied just and that know But so I’m clear 404(b). Honor, go, your what direction to you I care whether THE COURT: don’t particular intent that’s involved you just assume that do it out—I would establish, course, that he offense is to presence of the do outside crossed the state lines order to have you it in fine. Or can do jury. That’s a minor. intent[sic] with but, jury, again, you presence clearly, THE COURT: understand each one in. must tie you my ruling. given think I’ve ask, you generally, the going I’m to let you’re just saying doing what If them, admitting without question even PDA here’s some stories and it shows relate to sex all of these stories be- do they that were between adult and mi- you and a minor. I’ll let tween an adult nors, them, admit the whole bulk that to question. ask them, prejudice outweighs the rel- in, story you want the must you But if is, portion; evant it relates to his story, regarding respect ask with intent. that deal with parts particular those ask, generally, But if want to before intent, method— admitted, they’re pertain do all Well, Honor, your can I STANISH: MS. (indiscernible) question. that kind of sex my this then? It’s understand- suggest read these stories —each ing I’ve admit And want to one —and if with a minor. story involves sex particularly jury them so that the has story, that ques- right You can ask to read the entire darned THE COURT: in, it, tion. you’ve got portions to tie it you’ve said, particular objectives told being STANISH: And MS. four is, Okay? Honor, me it’s your each—then each offeredfor. *29 Okay. knowledge; you here’s how culti-
MS. STANISH: young person, vate a method. can either do you THE And COURT: subsequent, with this witness or (indiscerni- knowledge MS. KOPPE: Or particular portions those to reach ble). it in first I admit the entire tie before assuming THE But it COURT: doesn’t story. intent, you’re offering and all it for is you And do MS. STANISH: you’ll tell me that. But hopefully you’ll Honor, your whether we do preference, says have a witness that this talks about jury in of the or— front with a minor. okay with me. THE COURT: It’s words, maybe you haven’t done other You’ll also tell me that there is a witness do that. You yet the homework to even that will tell us that’s all what these in, just generally. them wanted to, including stories relate the ones No, KOPPE: we have looked MS. admitting we’re not here. So that oth- and, know, picked we through them (indiscernible) time, erwise the same the 21 stories— stuff, having reading the stuff. Right. THE COURT: your MS. I agree, STANISH: Honor. KOPPE: —that were— MS. THE COURT: So— they because Hopefully THE COURT: 404(b), course, MS. But STANISH: objectives. related to one of those four require doesn’t that. is, Right. And intent MS. STANISH: course, view, my pre- at least in I might suggest, just Another solution for which these are purpose dominant smooth, go really, make this is I’ve seen I think I admissible. And understand instance, cases, posses- where there’s do, in your say Honor now to that these photographs sion or a number of of de- fact, relate to intent. genitalia, fendant’s for instance. bigger prejudice; Your concern is one of in bring And we’re allowed to because in bringing that we’re not but eliciting it does relate to the issue of bring sampling we can of the stories inducing the minor. just deal with the intent issue. THE Right. COURT: you’re telling THE So what COURT: anything me is there isn’t these sto- But MS. STANISH: because there’s so ries that relate to method or com- 404(3)[sic] many concerns— —the (indiscernible)— language mon THE couple. COURT: You do a No, I’m saying MS. STANISH: just in a put MS. STANISH: —then we that. I’m do saying all of them have your Honor satisfied if few. Would common the intent issue. put just a fewer I un- number? honestly, prepared this Koppe And Ms. derstand we could'— n part They more than I did. case all, though, deal with intent. Others No, THE I discuss COURT: didn’t even purposes have other for which that. could be offered. Okay. MS. STANISH: wasn’t sure— just trying up I’m to come with a solu- problem THE I have a COURT:
tion— all them. Well, THE can ask COURT: then trying par- MS. STANISH: was story. respect the witness with to this to— something else to do don me? Hopefully got it’s *30 Sister, about, contains lan- My Little problem / have a don’t
THE COURT: engaging old long you year as do what a nine guage them as about all with hurting to do. sex at first you I ask and about the sex Yes, right. All sir. the nine— but Ms. STANISH: brother, correct?
THE COURT: With sorry? I’m MS. KOPPE: consulting with After MS. STANISH: be a little more THE COURT: Just agree Potter, parties I think the Mr. me, between please. Sex complete a prelim- done as would be best that this and her brother. nine-year-old girl to each one. inary legal determination jury to taint the want don’t We Yes. MS. KOPPE: point. sorry. I’m Go ahead.
THE COURT: that it did not hurt. The fact you. Thank THE COURT: fact that it hurt at KOPPE: The MS. p.m.) at 03:43:13 (Jury out stop told that it will first. She was a lot better. hurting and that it will feel okay, says then it’s it’s These —these—these And that she THE WITNESS: are— starting good. exhibits to feel those You can leave THE COURT: language the defendant That’s similar you your retrieve notes. there and the sex Christy he told used when slowly would take it
would—he really good. it would feel Now, for you. Thank THE COURT: story, which is Love For The next record, going up to take we’re World— to each of these stories. respect Honor, go- Your are we MR. POTTER: marked sections that relate you’ve If at a time go through them one ing objectives those four for any one of or— it, offering outside you’re which for jury, as foundation
presence of go going THE We’re COURT: proffer. its at a time. through them one Honor, we would Your MS. KOPPE: too, just you if had might helpful, It state, story does show initially, each page you have told us on which —if children. engage sex with intent assuming we have the marked —I’m Because, generally, it’s a THE COURT: though well, they do same format even — child. story of sex between an adult and numbers, though they page even correct, your Hon- That’s MS. KOPPE: be- pages between the don’t occur —there or. items. tween the various me Okay. THE You’ll tell COURT: if you intend to have us—to relate Did them do not involve [sic] one of example, are which items—for us rather, but, description sex actual particular to have a witness read going method, cultivat- simply example, of for the parts, leaving the entire exhibit descrip- ing a child rather than actual jury? between adult and child. tion they do have I think that Honor, MS. KOPPE: Your MS. KOPPE: things in them. other already admitted and testified Do public MR. POTTER: have a *31 copier, by chance? ahead and tell us go THE Just COURT: THE copy COURT: We do have a ma- relay marked that parts you have which chine, problem of course. The is wheth- us you’ve content that told particular highlighting er or not the would show about. I through copy, suppose. on a What I could have a witness MS. KOPPE: highlighting? color is the But content that I was read them. at the bottom of
speaking about started Blue. MS. KOPPE: 4. It’s marked 4 page that’s marked THE COURT: Blue. that show Would top, goes through and it towards Then, up copier? on a It does. story I marked 5. The don’t part that’s course, can provide we take them and see what— you copy a xerox of each of these over So, page THE 4. Uh-huh. COURT: the evening recess. my copy. marked that on Okay. I’ve way. MS. KOPPE: That’s fine. Either Potter, evening, way That Mr. over the All right. MR. POTTER: if, course, can review them to see fact, pur- foundational they support the you’re offering which it. pose for just you’ve THE COURT:—and as been Honor, if we can KOPPE: Your MS. and, doing, identify purpose story. I’m come back to the second foundation, respect telling without us through my- going to need to look particular paragraphs, you which will self. give by way copy provide us we’ll Okay. THE COURT: tonight. (Indiscernible) expedite MS. STANISH: Okay. MS. KOPPE: it. you’ll just THE If tell me the COURT: Honor, Your Ms. Stanish MS. KOPPE: purpose general foundational and what probably just suggested, has this would story, just you parts of the did with it, morning if in the expedite thing first is, hurt, story; the first did felt provide your
we both Honor and defense good, et cetera. portions of highlighted counsel with the Honor, Okay. skip- Your MS. KOPPE: these stories. moment, story ping the second for the THE have that COURT: You don’t Busy Day— Melanie’s here? THE COURT: Uh-huh. highlighted por- I MS. KOPPE: do have language con- MS. KOPPE: —there’s tions, copies I that are but don’t have cerning masturbating, a child as the de- your and for highlighted for both Honor fendant wanted this child to masturbate. counsel. language
There’s also of the adult —it’s actually telling her her how father — sufficient, language also pretty THE Is that Mr. she is. There’s COURT: Potter, you parents perform a little time to of her oral or do need both her, talks look at them? sex on and the defendant on her. performing about oral sex probably MR. I need to look POTTER: And— them, if— but don’t know And, this is the again, THE COURT: keep going through KOPPE: I can MS. general you intent talked about before. it. that, it hurt? I says suppose It also did general This is intent as KOPPE: MS. operandi prepara- good. modus a little then it felt And it well as but may tion— call you talks more about it moles- Okay. tation, abuse, THE COURT: can call it don’t knowledge. way family. And think it that in this about MS. KOPPE: —and are. parts where those give can Girl, which story, This The Good is the give You’ll us in the it to THE COURT: *32 story, next is where the defendant— provide. copy going we’re to form of the me, chat excuse the defendant his Okay. MS. KOPPE: talked how he was to be willing about marked, They’re I as- THE COURT: Christy ready until patient and wait sume. have him. to sex with story, your In that same MS. KOPPE: person thing This talks about same Honor, girl is oral given the little also girl. I believe she’s 14 at the and grandfa- by grandfather sex her fooling time. And talks about around how is. pretty talks about she ther also sex, which the having without defendant story, the next which is called Going to also discussed. Big Brother. Missing intent, goes operandi, It toward modus Again, I’m to as- going THE COURT: preparation, knowledge. and intent on of these general each sume Pregnant The story next should be No. me you tell otherwise. unless (phonetic). story This contains lan- right. story That’s This MS. KOPPE: guage similar to used the defen- talks about— concerning dant oral chats sex. is this one MR. Which one POTTER: It also talks about how the defendant now? being talking about how naked is Missing Big This is KOPPE: MS. being more than comfortable clothed. big engaging brother in— The Brother. like, In this story, girl is looks and the talks about how big brother girl 14. her her clothing crazy. [sic] drivers It’s too And it talked girl wearing any not abrasive. about oral It talks about her panties underneath skirt. It’s one sex as well. things the defendant talked about. goes operandi, And modus in- toward how
It about when he had sex talked tent, knowledge. preparation, and her, he didn’t to hurt her with want The story, Language A Relative —ex- and he wanted to like it during sex her me, Interest, cuse A Relative has lan- continuously would be com- so much she guage concerning had defendant —the him. The talked ing defendant back spoken Christy imagining about his good make it how he would feel about tongue sliding along inside her. girl. little This language has similar that re- intent, also for we offer but as And that sex, garding clearly oral and it’s awith operandi, preparation, modus well for child as well. knowledge. and intent, goes It towards modus operandi, Molested, story is I’m Being The next preparation, knowledge. and talks about sex for children and it also Restrictions, story, The has the father how can called hurting and it be child, telling daughter, who is a his good it felt abuse when sexy, barely she’s that she should wear happened, girls, it after it asking for clothes, father. that she should walk around it involved sex their cute, naked, sexy again, basically, good that sex feels that she’s adoles- way of seduc- girls. talks about—it shows cent seducing
ing methodology a—it’s It goes operandi, towards modus intent. child, basically. And it girls, also has one of the after- descriptions of the There are several wards, telling her dad that it good. feels getting daughter engage father intent, It goes operandi, towards modus him, by bit. basically, bit knowledge, and preparation. intent, operandi, modus goes It towards story My language Sister And I has knowledge. preparation, sex, engaging about oral oral sex with Taste, A story The next is Matter Of trying a minor and please her. The story about—it has a and that talks defendant talked about how he would description giving male oral sex and Christy times, orgasm numerous good during to feel wanting the minor and this talks about that as well. 12 in this girl oral sex. I believe the *33 goes preparation, It knowledge, towards story. intent, operandi. modus talking Starting page on 12 where she’s fairly long per- There’s a description of giving oral sex to her father and about forming oral sex on the minor. And anyone that it than else. she does better part says then there’s a where the minor And the defendant said in his chats that hurts, if stop, it have to and he that. Christy he would teach how to do promises to do so. well, It it talks more about also talks — that. goes operandi,
And that towards modus intent, preparation, knowledge. and story (pho- MS. KOPPE: The Now Kids Kids, story, Teaching netic), The has a This contains that statements sex is to introduce children into lesson how fun everyone, especially young girls. for chil- parents talking sex. It’s to their her, good, The father it feels real tells dren. girl doesn’t it? The then has sex with It three sons and looks like there are her older brother and tells him it felt daughters. two The oldest son is really good; language all that the defen- youngest girls 11. And the two are is Christy. dant said he would do with front young. age don’t see their That in- goes knowledge, also towards page but it will be in here. tent, operandi, modus motive. parents The decide it’s time for the kids story Getting The Hand also Out Of sex, to learn about and there’s method- being contains statements about sex fun ology they of how seduce the children young feeling good. for girls and And engaging into in sex. goes knowledge, that towards intent. intent, goes knowledge, op- It modus story story The next is—that also talks sex, erandi. It also talks about oral sex, about oral which the defendant also which the defendant talked about talked about. chats. story My Daughter Peeping The On story Mommy The next called is Juice year stating a 14 that she’s not has old (phonetic). story And that has a conver- young engage too in sexual inter- chil- teaching sation with mother her course. telling dren about sex and them that it It a statement that sex is fun contains good will feel before she has them en- gage part says, young girls in it. where it and also how sex feels There’s teaching give basically graphic language. oral This is It’s her how and
good story like it’s children young having man. And it looks her sex to a sex It having parents sex with her. their and with each other. grandfather intent, motive, knowledge. and goes to everyone had sex with After has each story Horny has a discussion other, Nieces them mother sits down their ten-year-old girls and fa- between they any- tells them that can never tell concerning the—will en- whether ther what in their house. they one do coming is their uncle who gage with statutory explains to them what She visit. they is. them that what rape She tells girls they tells the The father is, fact, statutory engage rape talking about it careful when should be parents go tells the kids that their would with chil- people some think sex because if jail they anyone, anyone if tell may wrong and their uncle be dren is in their happens knows what house. story also contains of them. The one She also tells them because of this enjoy the young girls the idea crime, type goes if her father their—if good that it feels to them. jail, goes father then —he certainly knowledge that shows This don’t people peo- killed because like it’s illegal a crime and there ple type who commit this of crime. that, and who believe people are Playing And the final Adult motive and intent as well. shows It Games With Little Sister. contains *34 story (phonetic) Heck Of A a The Job descriptions manipulating children guy a story about who meets twins who into in acts. engaging sexual They eight years or old. are seven nev- mother, adult, The starts the manip- are, they say exactly er for sure how old ulation and the rest of the kind of young; they’re eight. or but seven and manipulation, escalates that it’s a bit engages to their and goes And he house get of a of how to methodology these well, it’s first a store and then at in— engage kids to in sexual acts. house, engages in in steps their order part they There is where talk also basically methodology it’s a of se- to— fantasies, basically, about our of sex— into in sex ducing engaging them having they children sex and how him. going coming to be true [sic] because of intent, knowledge And it shows mo- happening what’s to their children. It operandi preparation. dus also intent, This shows modus operandi, talks about oral sex on a female that’s motive, knowledge, preparation. to the similar discussions defendant give THE Okay. COURT: Can we those had in the chats. Paula run and ask her to them and story, Consent, contains discus- hopefully part the blue will show rape of consent concerning sion versus through give you so copy. that —we’ll having young girls sex. And the —con- but, course, already copies You though tains the basic idea that even be copy markings. this will young age girl is below the con- Okay? sent, if, fact, consents, she how can it rape. called that shows if purposes be And And then of demon- —for defendant’s intent. objection stration to the Court Court, Lessons, jury comes in story, before the tomor- Daddy’s The next talks only morning, your It if about how sex hurts at first. row make has objection; is, just descriptions simply of oral on a man. this one purpose, ried around with him go particular everywhere not to that he does whatever, if isn’t there or language went and when he was committing this bring you’ll make before crime, they show his intent.
jury back. you, very Thank
Anything further? reconvene, please, much. tomor- We’ll (phonetic) In Allen the Ninth Circuit morning row at 9:00. found that the literature in that case did added). (emphasis go to an element of specif- the crime and Thus, that the trial the record reveals ically distinguished that case from Shi- judge correctly required monowitz because it said that the [sic] that the stories ad- to demonstrates five go stories that case not did to an factually mitted were similar to the defen- element of the crime. “ehristyl3.” dants interaction These only go stories not to an element issue, Day began Three on the same of the crime—-intent is one of the most continuing rely with counsel for Curtin important crime, elements of the actual- Shymanovitz and Rule 403 to block the ly- goes to the element of the crime —-it govern- introduction of the stories. The that the defendant himself attacking, as follows: responded ment pretty much the element the defen- Honor, all, KOPPE: Your first of MS. attacking. dant is And the defendant far argument as as Mr. Potter’s possessed these stories. 404(b) are, themselves, legal, articles Honor, far your As these stories require that the other acts does prejudicial they are not more than are illegal just acts or even bad acts. It probative. They’re clearly probative. requires that be other acts show one of the elements listed
404(b). *35 stories, them, every single These one of The court continued to be concerned
proves Every single intent. one them go about the number of that stories should They shows the defendant’s intent. all jury: They talk all about sex with children. Now, THE the issue I COURT: last talk about intent to have sex with chil- I wanted to address is sure don’t want dren. impose upon jury feeling to the the that The fact that possessed the defendant they have to read this entire book. How over 140 of these stories and carried many stories was this? him, go directly them around with against his that he had no in- Honor, MS. KOPPE: Your that was defense children, tent engage sex with going stories. We’re to narrow it anything down— n that was not he wanted to do.
THE to limit it going COURT: You’re to— down The the is one who has im- defendant 12. MS. KOPPE: —to fantasy mersed in this himself defense. THE half of it. That’s COURT:—-about The saying is the one who is defendant one, still, helpful I didn’t have I but it’s number it’s the intent. never had said, that intent. potentially I redundant —like after you get past story the first it’s And these the stories —and defendant possessed potentially biasing. and that the car- also defendant that, minimum, you do at a jury But if don’t words, the we want In other
limit, says four issues— on the stand who put to these a witness themselves intent, preparation, methodology, highlighted portions those we have not to overem- trying knowledge relate to the four intend- the stories —and of all in the context evidence this phasize purposes. ed evidence. other it, mean, generally, and tell if we admit very clear to make it want to simply through jury you’ve got to search the type must not let jury, you the pur- for those intended stories these the defendant. you against bias evidence prejudicial we’ve allowed the poses, then right possess has a constitutional He redundancy of effect of the volume must, may, only take you But such. purposes. four outweigh the proffered four reasons. it for the caused the having point, At this five, to be reduced
number of stories ... it be But wouldn’t THE COURT: whether to a final issue: court addressed minimum, you at a appropriate, more entirety of jurors to read permit testify I have witness to have the just highlighted “snippets,” story, or each mean, leaving it for marked in blue—I story going of each particular parts finally to decide whether jury intent. The directly to the defendant’s highlighted really proof of these four elements. previously had “snippets” been court prosecution. in blue portions marked of these But have said, purpose? Yes. For what stories blue? So, my I had in question last intent, they relate to either To show that intro- assuming that I let head is method, knowl- preparation, or or total, duce, story, maybe the the first ' edge. was, one, much as I which second read, snippets other than the could stories,9 question I did have
the other doing going to be MR. POTTER: We’re overnight. then, that— snippets, my resolved in mind quite I still haven’t you admit the I should let as to whether would not be read- THE COURT: We stories, other rest of the other entire leaving snippets. We would be ing just snippets. than snippets in jury it for the to find the *36 I purposes for which one—for the
those relevant; one, two, three— tell them are problematic I think it’s STANISH: MS. I think that’s— MR. POTTER: Flaherty on say, Agent the put, to let’s four, THE five stories. COURT:— re- say portion and have her this stand they’re getting If the MR. POTTER: purpose— to this lates story snippets and then the then whole you think it THE But don’t COURT: mean, they’re getting I now emphasize. minimum, if at a proper, be more drawn they’re getting ... their attention my do that. That would you don’t something. way. it that to you that do preference, the sto- highlighted the material that makes colleagues’ district court My claim that the 9. sup- object not to read the stories” is Curtin does not "was unable ries relevant. clearly ported by The court had snippets. the record. the entire in lieu of use of the copies "snippets” which and read the its own mean, the of what you They may possession I make decision tent. offer of such it passed relevant and whether literature to show that. four elements.
muster of these crimes, example, For all most state or And, now, going give I if we’re to federal, have, minimum, think at a at least two story, they the whole then should them I’ll you elements. instruct at the end of stories. be blank the case on what the elements of these added). crimes are. And the Government must (emphasis them, prove every beyond one of a rea- resolved, having The been issues sonable doubt. jurors10 preinstructed court then But most all crimes have a minimum of to per pur- Fed.R.Evid. 105 as the limited One, two elements: some conduct that’s pose they for which could use this evidence statute; specified hear, and number jury was about to an instruction two, wrongful state of mind or intent. jurors more than which heard once: simplest going example THE I’m to can think of is COURT: allow the act, murder. an prosecution reopen to their examination There is homicide. intent, And They wrongful for a few additional minutes. want there’s wrongful additional proffer taking person’s some exhibits. of another life. And, therefore, going give you intent, I’m you If you don’t have that haven’t respect brief instruction these If you’re committed the crime. involved you, initially, I gave and, exhibits. the same in an in your accident car unfortu- yesterday. going give I’m nately, instruction someone loses their life in that you accident, explain the official version and then you guilty are not of murder. briefly. homicide, sure, There is a to be but testimony You are to hear that about And, there wrongful is no intent. there- PDA fore, defendant had articles on his convicted, you’re charged, nor charged relate to other acts not here. alleged committing nor a criminal may civilly, act. You be sued in court testimony instruct that the is be- Therefore, course. there are two ele- ing pur- admitted for the limited ments. pose of being considered on the intent,
question of the defendant’s meth- may You take this kind of evidence on od, preparation, or knowledge, and for question of whether the defendant no other Let purpose. explain me actually possessed the intent. just briefly.
instruction may You also take it on the additional have, goodness, all thank We a constitu- questions go question which right tional to have whatever literature intent, practiced whether he al- homes, PDAs, we want our on our leged methodology conduct consistent computers. our tending with literature he had or A person charged prepared cannot be nor convict- show that he to commit the is, knowledge, ed of literature that acts or that he had read *37 they possess. why giving you That’s I’m how to commit the act or that the act illegal. the instruction.
But obligation Again, prosecution the Government has the the does not have to doubt, prove, beyond to a reasonable show that a defendant knew an act was that wrongful illegal, the defendant had the in- that the act simply he committed Allen, 10. As did the court in 341 F.3d at n. 24. limits in relevant literature off the wrongful knew it or that made that he wrongful They don’t law. the intent. Circuit as a matter of
he had Ninth illegal. that it was prove to he knew 404(b), a rule of inclu- Ironically, Rule that tending to show he But evidence sion, categories of references at least three illegal may may not tend it was or knew “acts” the inner work- encompassing other that he had the intent. to show motive, intent, ings of the mind: reasons, So, only, those four for been knowledge. Once it has established to that the offering show Government offered serves one of evidence literature; in- possessed this defendant purposes, Advisory the relevant these method, tent, and knowl- preparation, make it clear that Committee notes you take it for that edge. may only And “only” justifying the conditions exclusion purpose. the evidence those described in Rule of are right. you have a constitutional Again, of prejudice, 403: unfair confusion the is- right. want You have that You would to sues, jury, delay, undue misleading the right possess to protect the defendant’s time, presentation or needless of waste to read it or any kind of literature and cumulative evidence: read it. not (b). Note Subdivision second not allow kind of evidence You must this 404(b) sentence Rule submitted to the defen- you, generally, against to bias Congress began words question guilt on the ultimate or dant “This does not exclude the subdivision innocence. You not do that. must evidence when offered”. The Commit- conclusion, finally, repeat, I’ll the offi- language tee amended this read “It cial instruction. admissible”, may, however, be the words testimony You are about hear Advisory in the used Committee possessed types of ar- defendant various draft, ground on formula- PDA regarding on his other acts ticles properly greater placed emphasis tion charged not here. admissibility did the final than Court testimony that the is be- instruct No. Report version. House 93-650. pur- admitted for the limited ing (b). rule Note Subdivision This being by you on pose of considered crimes, provides of other evidence intent, of the meth- question defendant’s wrongs, or acts is not admissible to od, preparation, knowledge or and for no may prove character but be admissible purpose. other specified purposes for other such as hope understand the instruction. proof motive. that, I’ll permit prosecution With Although your sees no ne- committee again today. proceed itself, cessity amending the rule it YI anticipates that the use discretion- respect to ary “may” word the ad- colleagues’ opinion My stands crimes, missibility wrongs, evidence proposition that a trial court questionable acts is intended to confer no simply involving has discretion in case arbitrary on the trial judge. discretion pedophilia to admit sexual litera- obscene Rather, anticipated it is that with re- ture, though even the literature —as it (1) spect permissible uses for such evi- light on probative does sheds here — dence, may intent, judge the trial exclude subjective defendant’s relevant (2) only on basis of those considerations primary rebuts a defendant’s defense of *38 403, i.e., prejudice, My colleagues criminal mens rea. set forth Rule no
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CONCLUSION UNITED STATES of Plaintiff-Appellee, with Shymano- This case combination vitz hamstrings the improperly capability v. cope rule of law this Circuit GARCIA-BELTRAN, Filimon adults who see children as sexual with Defendant-Appellant. Congress prey. protect- has enacted law behavior, minors from but ing this No. 05-30434. misinterpreted the Rules of Evidence to Appeals, States Court of United inordinately the law make difficult to en- Ninth Circuit. justification, holding force. Without jurors handcuffs when confronted with “no 18, Nov. 2005.* Submitted defenses, turning such into intent” trials April Filed 2006. said, she equivalent of “he said” conun- My jurors experience drums. is that situations,
confronted these want evidence,
context, corroborating and other which
pertinent helps information them conflicting
sort out claims assertions.
Why? prejudicial, Not because it is but relevant, it is whether it cuts for
because * 34(a)(2). unanimously panel R.App. finds this suit- P. This case Fed. argument. able for oral See decision without