UNITED STATES of America, Plaintiff-Appellant, v. Michael STOUT, a/k/a Michael Pletz, Defendant-Appellee.
No. 06-6353.
United States Court of Appeals, Sixth Circuit.
Argued: July 19, 2007. Decided and Filed: Dec. 20, 2007.
509 F.3d 796
Our decision in Ernst & Whinney accords with this conclusion. In Ernst & Whinney, as in this case, a third party sought disclosure of documents pertaining to a grand jury investigation. 921 F.2d at 84. The difference in that case, however, is that the third party properly sought to obtain the documents by obtaining a subpoena duces tecum. Id.
V.
Although the district court may have erred in deciding that the documents at issue were matters occurring before the grand jury, we find that the decision not to force disclosure of the documents was correct. We do not rely on the court‘s mistaken statement of a standard that this Court unwittingly modified, but find that because Wayne County failed to make use of a proper method for compelling documents, they should not be disclosed. We thus AFFIRM the decision of the district court.
ARGUED: Terry M. Cushing, Assistant United States Attorney, Louisville, Kentucky, for Appellant. Joseph E. Blandford, Jr., Landward House, Louisville, Kentucky, for Appellee. ON BRIEF: Terry M. Cushing, Jo E. Lawless, Monica Wheatley, Assistant United States Attorneys, Louisville, Kentucky, for Appellant. Joseph E. Blandford, Jr., Landward House, Louisville, Kentucky, for Appellee.
Before: KENNEDY, GIBBONS, and McKEAGUE, Circuit Judges.
KENNEDY, J., delivered the opinion of the court, in which GIBBONS, J., joined. McKEAGUE, J. (804-08), delivered a separate dissenting opinion.
OPINION
KENNEDY, Circuit Judge.
I. Factual Background
Stout‘s criminal history is, quite frankly, revolting. In May 2001, Stout pleaded guilty to three counts of a state indictment. The first two counts charged him with “installing a hidden camera in the home of family friends,” and videotaping their 14-year old daughter in the shower. United States Trial Mem., 2; see also Dist. Ct. Mem. Op. & Order (hereinafter “Dist. Ct. Op.“), 1-2, 2006 WL 2927505, Oct. 12, 2006. The third count charged him with first degree sexual abuse of his 6-year old stepdaughter. Id. In September 2001, the Boone County Circuit Court sentenced Stout to 10 years imprisonment for each of the first two counts and 5 years imprisonment for the third count. The court, however, granted a defense motion for 5 years of probation contingent on 180 days actual jail time and lifetime registration as a sex offender. The 180-day sentence apparently ran from, at latest, the date of Stout‘s guilty plea, because in November of 2001 Stout moved to Louisville and his probation supervision was transferred.
During the summer of 2005, Stout‘s probation officer received a tip that Stout possessed child pornography. On August 8, 2005, several probation officers and a Louisville police officer visited Stout‘s residence. He consented to a search of his computer, which revealed evidence that it had been used to view pornographic web pages. Stout denied responsibility, claiming that his coworkers and girlfriend might have viewed the pages. His girlfriend confirmed the explanation that the computer was available to others.
The officers seized the computer. Forensic examination revealed 37 sexually explicit photographs that the government alleges are of minors.1 The government indicated that the images were recovered from the “unallocated space of the computer‘s memory,” from which it concluded that they were viewed during Internet browsing, but were not downloaded and saved by the viewer. The images were of teenage girls in sexually suggestive poses, none of whom were under the age of 12, and all of whom were alone in the photographs. It appears from the record that there were additional similar (but legal) erotic images of women over the age of 18 on Stout‘s computer in the same unallocated space.
II. Procedural History
Stout was indicted by a federal grand jury on June 21, 2006. The government filed a pretrial memorandum indicating its intent to introduce evidence of the first two counts of Stout‘s state court conviction at trial to demonstrate Stout‘s “knowledge and intent to receive and possess child pornography, as well as lack of mistake or accident.”2 United States Trial Mem., 9 (citing United States v. Hall, No. 98-6421, 2000 WL 32010, at *3-4 (6th Cir. Jan. 4, 2000) (unpublished disposition)). Stout filed a motion in limine under
After jury selection, but before the jury was sworn, the district court granted Stout‘s motion. United States Br. 2-3, 7-8. The government filed this timely appeal under
ANALYSIS
I. Jurisdiction
We have jurisdiction of this appeal pursuant to
An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.
II. Prior Bad Acts
Prior bad acts, including prior convictions, can be admitted under
The standard of review of a district court‘s
a. Probative Value
To convict Stout, the government must show that he possessed pornographic images that he knew were of children.
Actual knowledge in a child pornography case is often, undoubtedly, difficult to show when the persons depicted are teenagers. The prior bad act evidence in this case can demonstrate (although admittedly somewhat weakly) that Stout had knowledge of the subject matter outside of the ordinary ken. Having produced and (presumably) viewed the pornographic images of one child, he is more likely to identify children as children in other pornographic images. The probative value is not strong—but that is not the test. All relevant evidence is admissible, subject to specific restrictions in the Federal Rules.
The district court recognized the proper probative value of Stout‘s prior convictions. It noted, “[w]hile the proffered evidence is certainly probative, its value and relevance is narrowly consigned to the intent and knowledge elements of the charges.” Dist. Ct. Op. at 6. It went on to explain that the other elements of the crime, actual possession and receipt of the images, were not implicated by this evidence.
The government argues that the district court did not “look at the evidence in the light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect.” United States v. Perry, 438 F.3d 642, 648 (6th Cir. 2006) (quoting United States v. Zipkin, 729 F.2d 384, 389 (6th Cir. 1984)). Maximizing its probative value, it argues, means considering its value vis-a-vis the other evidence available to the government to prove its case in chief. The district court found otherwise. It cautioned against misconstruing the government‘s argument that the prior bad acts evidence is “critical” to suggest that it has any greater probative value. The district court concluded that “[w]hile it is likely true that the [prior bad act] evidence is subjectively critical to this case under the 404(b) analysis, those circumstances do not make the evidence objectively more probative.” Dist. Ct. Op. at 7. We find that the district court‘s conclusion is correct.
While it is true that the government‘s need for the evidence should be weighed along with its probative value to determine whether it should be admitted under
The district court acknowledged the government‘s need for the prior bad act evidence since evidence of Stout‘s intent and knowledge to receive or possess child pornography was slight. At the hearing for the motion in limine, however, the district court considered the availability of other means of proof, such as the testimony of Stout‘s ex-wife that on prior occasions she had discovered evidence in the Internet history files on the computer that Stout had been searching for child pornography, to prove his intent in a less prejudicial manner. J.A. at 57-58, 69. We find that the district court gave due weight to the
b. Danger of Unfair Prejudice
We also agree with the district court‘s analysis as to the danger of unfair prejudice and conclude that it was within its discretion to find that, despite the probative value of the prior bad acts evidence in this case, suppression is appropriate. Therefore, because “[t]he reverberating clang of those accusatory words would drown out all weaker sounds [and] the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.” Shepard v. United States, 290 U.S. 96, 104 (1933) (Justice Cardozo writing on common law evidentiary doctrine prior to the adoption of the Federal Rules of Evidence). As the experienced district court judge here noted after two hearings on the issue and after viewing the evidence:
The prior bad acts evidence is potentially prejudicial because it is both inflammatory and distracting. It is more lurid and frankly more interesting than the evidence surrounding the actual charges. Any jury will be more alarmed and disgusted by the prior acts than the actual charged conduct. As a consequence, the jury is likely to pay undue attention to it.... [T]here is a strong possibility that the jury will be improperly distracted from the primary evidence at hand.
The potential for distraction and unfair prejudice is greater than normal because the actual evidence of possession is so limited. The impression of Stout—surreptitiously filming a 14-year-old girl in her shower—will predominate this trial, not the stored still-life computer images that actually occasioned the current charges.... There is a high probability that the jury would improperly consider the prior bad acts evidence as propensity evidence, and an equally high probability of conviction because of the improper use of that evidence.
Dist. Ct. Op. at 8. The district court properly concluded that the unfair prejudice of the evidence of surreptitious filming—both because it demonstrated bad character and propensity—was significant.
There is a further reason why we consider evidence of these acts unfairly prejudicial, a reason that is illustrated by the Congressional addition of Rules 413, 414, and 415 to the Federal Rules of Evidence. Congress added these rules over the near-unanimous (save the representative of the Department of Justice) objection by the judges, academics, and practitioners who compose the Advisory Committee on Evidence Rules. See
In a pair of cases, the Eighth Circuit demonstrated the difference between admission under
The Eighth Circuit reversed and ordered a new trial. It found that there was no relevant purpose for which the evidence could be admitted under
These cases reflect Congress’ intention to allow this sort of evidence into criminal trials only in certain circumstances. These rules are tightly tailored in their treatment of these often incendiary acts: in cases where Congress did not specifically provide for its admission, the “unique stigma” of this evidence might sometimes tip the scale, and the evidence will be suppressed. The public regards sexually-based offenses as particularly heinous. Sex offenders are required to register in the communities in which they live because of the perceived danger that they will act in conformity with their prior bad acts. In this respect, admission of prior convictions for sex crimes under
We disagree with the dissent that a limiting instruction informing the jury that Stout‘s prior conviction should only be considered as evidence of his knowledge and intent to receive and possess child pornography—and not for propensity purposes—would mitigate any danger of unfair prejudice. The district court considered Stout‘s prior conviction to be overwhelmingly and unfairly prejudicial because of its inflammatory nature and the high probability that the jury would use it to improperly convict Stout of the current charges based on a propensity inference. A limiting instruction would be insufficient to guard against unfair prejudice in this case. The district court indicated as much by stating that while in many cases courts can find “a rationale or method of allowing use of [the prior bad acts,]... [h]ere the circum-
c. Response to Government‘s Citation to Authority
Notably, each of the cases cited by the government confirms the deference we give to the district court under an abuse of discretion standard, because each cited opinion affirms the district court‘s ruling. See, e.g., United States v. Cummins, 969 F.2d 223 (6th Cir. 1992); United States v. Thomas, 893 F.2d 1066, 1070-71 (9th Cir. 1990); United States v. Campbell, 18 Fed. Appx. 355 (6th Cir. 2001) (unpublished disposition). But see United States v. Sebolt, 460 F.3d 910, 915-18 (7th Cir. 2006) (affirming trial court‘s admission of prior bad acts evidence, but finding a pair of children‘s underwear was unduly prejudicial and was wrongfully admitted). In cases where an appellate court does reverse a district court‘s suppression order, it is generally due to error in the first step of the
III. Res Gestae
Finally, the government contends that the district court erred by concluding that the prior bad act evidence was not res gestae and thus was inadmissible under
CONCLUSION
The crux of the issue on appeal is this: the prior bad acts in this case were significantly worse than the acts charged and the probative value of the evidence was relatively slight. In the words of the district court, the prior bad act evidence was, “frankly, creepier” than the charged conduct. Dist. Ct. Op. at 11. Therefore, we find that the district court was within its “broad discretion” to exclude the evidence.
It is important to note, again, the procedural posture at the time this appeal was taken. The trial in this case has still not occurred. As we understand the district court‘s order, the government is prohibited from presenting documentary evidence or eliciting testimony concerning Stout‘s prior conviction during its case in chief only. Trials are uncertain creatures, however, and it is possible that circumstances might change. Therefore, we understand the
AFFIRMED.
McKEAGUE, Circuit Judge, dissenting.
Because I believe that the district court‘s exclusion of Stout‘s prior conviction for surreptitiously videotaping a showering 14-year-old girl was based on an erroneous application of the law and a faulty balancing of the considerations found in
While the majority is correct that a district court‘s
A. Errors in the Probative Value Determination
The district court first erred in its determination of the probative value of the defendant‘s prior conviction.1 According to the district court:
the prior acts are indeed “critical,” but only for the reason that the government‘s evidence connecting Stout to the actual possession and receipt, though clearly sufficient for conviction, is slight.... While it is likely true that the 404(b) evidence is subjectively critical to this case under the 404(b) analysis, those circumstances do not make the evidence objectively any more probative.
Dist. Ct. Op. at 7. Later in its opinion, the district court indicated that the “potential for... unfair prejudice is greater than normal because the actual evidence of possession is so limited.” Id. at 8. From these quotations, it is apparent that in determining the probative value of Stout‘s prior conviction, the district court believed that the government‘s need for the evidence decreased its probative value, while increasing the danger of unfair prejudice. However, the district court‘s determination—and the majority‘s affirmance of that determination—are both contrary to law.
It is well-established that “an important indication of probative value of evidence is the prosecution‘s need for the evidence in proving its case.” United States v. Vance, 871 F.2d 572, 576 (6th Cir. 1989); see also United States v. Ray, 189 Fed. Appx. 436, 445 (6th Cir. 2006), cert. denied,
Of particular relevance to the instant case is the Tenth Circuit‘s decision in United States v. Rodriguez, 192 F.3d 946 (10th Cir. 1999). In Rodriguez, the defendant was charged with possession of marijuana, and the district court excluded expert testimony regarding the valuation of the seized narcotics under
Applying this precedent to the instant case, the district court erred by stating that the government‘s need did “not make the evidence objectively any more probative.” Dist. Ct. Op. at 7. The district court exacerbated its error by actually placing the prosecutor‘s need for the evidence on the unfair prejudice side of the decisional scale. Likewise, the majority‘s statement that “the need for the evidence does not make the evidence more likely to prove that which it is offered to prove,” Maj. Op. at 800-01, is erroneous and irreconcilable with our prior decisions. See, e.g., Vance, 871 F.2d at 576 (stating that “[a]n important indication of probative value of evidence is the prosecution‘s need for the evidence in proving its case.“); see also United States v. Smith, 194 F.3d 1315, 1999 WL 970300, at *5 (6th Cir. 1999) (unpublished table decision) (same).
Additionally, I believe that the district court‘s conclusion that the probative value of Stout‘s prior conviction is “limited” because it only illustrates his “prior interest in minor girls and suggest[s] his intent to knowingly receive child pornography” is incorrect. Dist. Ct. Op. at 12. I cannot understand how the fact that a piece of evidence is directly related to elements of the charged offense renders its probative value “limited,” especially when it is the primary evidence capable of speaking to those elements. A piece of evidence need not prove every element of an offense to be highly probative. Where a defendant‘s prior convictions are offered to prove “an element of the crime... they have significant probative value.” United States v. Tan, 254 F.3d 1204, 1212 (10th Cir. 2001) (finding the exclusion of defendant‘s prior DUI convictions to be an abuse of discretion because it was offered to prove the malice element of second degree murder); see also United States v. Long, 328 F.3d 655, 663 (D.C. Cir. 2003) (affirming the district court‘s decision to admit evidence of defendant‘s prior uncharged possession of child pornography in the defendant‘s trial for child pornography and related sex offenses because such evidence was probative of the disputed elements of possession and intent).
As with the drug possession charges in Rodriguez, the critical issue at trial in this case will be Stout‘s knowledge and intent to possess and receive child pornography. Given the inherent difficulty in proving the inner-workings of an individual‘s mind, it is unsurprising that Stout‘s prior conviction for videotaping a showering young girl is
In accord with the authorities previously cited, the importance of Stout‘s prior conviction to proving the government‘s case does not minimize its probativeness as the district court stated; rather, it “magnifie[s]” it. Rodriguez, 192 F.3d at 950-51. Combining this highly probative evidence with Rule 403‘s policy favoring admissibility and our requirement that in reviewing Rule 403 decisions “we look at the evidence in a light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect,” United States v. Perry, 438 F.3d 642, 648 (6th Cir. 2006) (internal quotation marks omitted), to be substantially outweighed in this case, the danger of unfair prejudice would have to be exceedingly great. It is not.
B. Errors in the Unfair Prejudice Determination
The errors of the district court and the majority are not limited to the probative value side of the Rule 403 balance; they also pervade the determination of unfair prejudice. While I concede that Stout‘s prior conviction is prejudicial, it is not unfairly so.
1. Prior Bad Acts Need Not be Less Disturbing than the Charged Offense
Aside from mistakenly placing the government‘s need for the evidence on the unfair prejudice side of the scale, the court erred by stating that Stout‘s prior act was unfairly prejudicial because it involved a more disturbing crime than those charged in the instant case. According to the district court, this case is unlike other decisions where prior bad acts were admitted because there the “prior bad acts evidence was evidence of a similar or lesser crime (or even a less disturbing non-criminal behavior) than the crime charged,” whereas here “the prior bad acts evidence is more disturbing and, frankly, creepier than the actual crime charged.” Dist. Ct. Op. at 11.
I find the Seventh Circuit‘s decision in Sebolt to be particularly instructive on this point. The defendant in Sebolt was charged with possession of child pornography and the district court admitted the following prior bad acts to prove knowledge and intent: (1) his prior molestation of a young relative; (2) his trip to Wisconsin to have sex with another minor; (3) his failed attempts to molest other children; and (4) his possession of young boy‘s underwear. Sebolt, 460 F.3d at 914. On appeal, the Sebolt court found no abuse of discretion in the admission of defendant‘s prior actual molestations and attempted molestations because such a history “provided strong evidence of his motive to
I can conceive of no principled reason why evidence of actual child molestation and attempted child molestation is less prejudicial and admissible in a child pornography prosecution, while surreptitiously videotaping—but never touching or attempting to touch a child—is unfairly prejudicial and inadmissible. Given that the evidence of prior molestations admitted in Sebolt was more disturbing than the charge of child pornography it was offered to prove, I believe that it undercuts the position taken by the district court and the majority. I agree with the Sebolt court and would hold that a prior bad act is not unfairly prejudicial simply because it is more lurid or “creepier” than that charged in the instant case. See generally United States v. Cummins, 969 F.2d 223, 226 (6th Cir. 1992) (finding no abuse of discretion under Rule 403 where the district court admitted evidence of defendant‘s prior drug dealing in his trial for suborning perjury even though drug dealing is a more severe crime than inducing one to lie).
2. Failure to Consider Alternative Means of Reducing Prejudicial Effect
Next, the district court erred by failing to consider the use of a limiting instruction to reduce any unfair prejudice resulting from the defendant‘s prior conviction. Throughout the district court‘s opinion, it addressed the admissibility of Stout‘s prior conviction as a zero-sum game; admit the evidence in toto or exclude it in toto. Such an attitude is reflected in the district court‘s statements that the prior bad act will “predominate this trial,” Dist. Ct. Op. at 8, and improperly become “a focus point of the case.” Dist. Ct. Op. at 11. At no point before excluding the evidence did the district court consider its ability to reduce any unfair prejudice by the use of a limiting instruction under
In this case, a properly crafted limiting instruction informing the jury that Stout‘s prior conviction should only be considered as evidence of his knowledge and intent to possess and receive child pornography—and not for propensity purposes—would militate against any danger of unfair prejudice. At the very least, the district court
C. Conclusion
As the foregoing analysis illustrates, errors of law pervaded the district court‘s loading of the decisional scales for the