*1 by the court’s sua likely prejudiced summary judgment on al-

sponte grant remand so that we grounds,

ternative the record develop further

Plaintiff can can consider all the

and the district summary judg- Bennett, 410 F.3d at 816.

ment. See

CONCLUSION reasons, we AFFIRM foregoing

For the court’s decision as Count Two, Three,

One, toas Counts REVERSE Four, pro- REMAND for further and opinion. with this

ceedings consistent America,

UNITED STATES

Plaintiff-Appellant,

Timothy SIMS, Thomas Defendant-

Appellee.

No. 11-2331. Appeals, States Court of

Sixth Circuit. 6, Dec. 2012.

Argued: and Filed: Feb. 2013.

Decided Rehearing En Banc

Rehearing April

Denied 2013.* * Judge grant rehearing for the reasons stated in her dissent. White would *2 2252(a)(4)(B) (b)(2),

§ and and that he at- tempted produce pornography child 2251(a) (e). § violation of 18 U.S.C. and trial, however, Four pled Sims guilty possession charges. The dis- trict court then entered an order evidence of Sims’s possession por- of child nography from his trial. The brought this inter- locutory appeal. We vacate and remand. I.

Some of facts of this case are still dispute, yet since the case has not been fact, however, tried. One undisputed that Sims possessed images of a seven (referred B.M.) year-old girl to here as engaged in sexual girl’s conduct. The mother, Mast, images Andrea sent the Totten, Mark A. ARGUED: United undisputed Sims. Also is that pos- Sims Office, Attorney’s States Grand Rapids, sessed two disks containing at least 90 Michigan, Appellant. Jeffrey for J. images pornography. images O’Hara, Grand Rapids, Michigan, Ap- for pre- both post-pubescent and chil- Totten, pellee. ON BRIEF: Mark A. acts, variety dren in a of sexual Mekaru, Daniel Y. United States Attor- including bondage rape. Finally, Office, ney’s Rapids, Michigan, Grand for admits that surrepti- on three occasions he O’Hara; Appellant. Jeffrey Rap- J. Grand (referred tiously year-old girl filmed a 13 ids, Michigan, Appellee. M.P.) through to here as her bedroom window. Sims took the video from outside WHITE, Before: KETHLEDGE and bedroom, girl’s emerged after she had LUDINGTON, Judges; Circuit District from the shower. Each video focuses Judge.** buttocks, girl’s pubic area and but she KETHLEDGE, J., delivered the engage activity. sexual At court, LUDINGTON, D.J., in which made, the time the videos were Sims lived WHITE, 836-37), joined. J. (pgs. M.P., sister, C.P., her older her separate dissenting opinion. delivered a mother, Sonya Lund. videos, Citing the the government OPINION charged production Sims with attempted KETHLEDGE, Judge. Circuit of child pornography. In October Timothy charged Sims was set also Sims with go charges to trial on pornography, citing images that he of B.M. pornography images child in violation of 18 and the found on the two disks. U.S.C. ** Ludington, Michigan, sitting by designation. The Honorable Thomas L. Judge States District for the Eastern District images. Specifi- the excluded in limine to relevance of filed a motion

Sims thereafter that Sims’s acknowledged cally, from trial the exclude pre- “possession pornographic of a sexu- messages text possessed, that he *3 M.P.’s older relevant to pubescent girls him and is evidence al nature between sister, filming him and B.M.’s intentions in proving general and e-mails between [his] the motion as granted teenaged mother. The court But the court dis- victim[.]” the value, pornography and text mes- to the adult the evidence’s counted pornog- it as to the child sages, filming but denied intent in reasoning that Sims’s raphy and e-mails. at trial. not be a critical issue M.P. would Thus, concluded that all of the the court however, trial, Sims days Four before distinguish be- subject images did —it possession the counts. Un- pled guilty analysis, in or discuss the tween them its oath, he admitted that he had received der at all—should be excluded plea admissions B.M., a images of seven Rule 403. under con- sexually explicit year-old, engaged received the duct. He admitted that he II. B.M. her mother. And he

images of from possessing the two disks admitted argues that the government The pornography. by excluding all evi district court erred The then moved on to evidentia- possession related to Sims’s ry Only attempted-produc- matters. the We review the district pornography. trial; and imme- tion counts remained for an abuse of discretion. court’s decision diately accepted after the Sims’s court Stout, 796, 509 F.3d 799 charges, the guilty plea possession (6th Cir.2007). government moved for leave to introduce matter, the court’s As an initial plea Sims’s admissions at trial as evidence government came after the opinion written of his intent to create child appeal notice of event that filed its —an through her when he filmed M.P. nude juris court of normally divests the district objected, arguing bedroom window. diction over the case. But a district both irrele- plea that his admissions were jurisdiction to take actions retains limited further ar- prejudicial. vant and Without appeal.” the Inland Bulk “in aid of gument, the court ruled Sims’s state- Co., 332 Engine v. Cummins Co. Transfer they because ments were inadmissible (6th Cir.2003). 1007, This class 1013 prejudicial probative.

were more defined, narrowly of actions is but includes clarify sought then that memorializes opinion issuance of an meant to exclude whether the court also days made before. Id. an oral them- child-pornography images the here, what we have so we include That is that, prior selves—evidence to Sims’s opinion our consideration guilty plea, the court had ruled admissible. appeal. this The court said that it did mean to exclude them, images the were because its view Rule a district court Under “not relevant” to the pro relevant evidence if its “may exclude charges. substantially outweighed by bative value is the danger following: a notice a of one or more of government promptly filed issues, later, prejudice, confusing [or] the court unfair the appeal. Three misleading jury[.]” it Fed.R.Evid. 403. entered a written in which Thus, evidence under changed position its Rule, must was “weigh only a district court relevant to an issue—Sims’s in- tent —that important would not be at proper probative value trial. against, things, unfairly other among The court’s and conclusion prejudicial effect.” United States v. were incorrect. To convict Sims of at- (6th Cir.2012). Parkes, 668 F.3d tempted production of child pornography, not need to prove Here, excluded all videos of were actually M.P. las- por evidence of Sims’s (If were, civious. they pre- Sims would admissions, nography, plea his including sumably facing actual-production be an themselves, and Andrea Mast’s charge.) say To defendant must *4 expected Sims asked her testimony that to take a step substantial towards committing take of sexually explicit images B.M. for an offense does not mean that he must distinguish him. The court not be did actually Thus, commit the offense. as best evidence, types tween these different tell, we can the court thought district the instead all evidence in gross. the substantial-step required great- element a does; showing actually er than it and that The was court’s based faulty premise led the court to conclude upon charged the elements of the offense. this “pivotal element would be the To attempted production convict Sims of issue” at trial. government child pornography, the must Instead, agrees, pivot- as even Sims “the beyond show two a things reasonable al issue is Br. intent.” Sims at 23. The first, specifically doubt: that Sims intend charged intent element of the offense re- ed to create child when he pornography quires the to prove that Sims filmed M.P. her through nude bedroom specifically intended to obtain a lascivious window; second, that he took a sub image when he stood outside M.P.’s bed- stantial step towards the creation of child room window with a camera. video Prov- 2251(a), § pornography. See 18 U.S.C. ing that Sims intent might had that be (e); Khalil, United 279 F.3d States more difficult Although than it seems. the (6th Cir.2002). 368 Sims contests both videos focus on area and pubic M.P.’s but- elements; but the court district seemed to tocks, government says even the the im- that, matter, think a practical only as the ages only are “borderline lascivious.” second disputed element will be at trial. Thus, might even someone like Sims not “apparent The court Sims’s reasoned that realistically expect not thus intend— —and defense” to the i.e., footage, to obtain por- lascivious child counts “is that the of M.P. videos do not a nography, filming girl toweling when off depiction the lascivious vic event, after a shower. In any difficult or area, pubic required by tim’s as statute!.]” not, prove the must Sims’s Op. at the thought 836. And thus court beyond intent a reasonable doubt. The “pivotal at trial will issue [Sims’s] therefore, erred, court when it dis- apparently not [Sims] be whether was mo of intent evi- probative counted value video, tivated to create such a but whether its under Rule 403. balancing he did some overt act was a substan tial step committing towards crime of district court also found that producing images highly prejudi- minor be of a excluded evidence would (internal sexually explicit Id. to extent we large agree: conduct[.]” cial Sims. To a omitted). (like B.M.) quotation depicting marks Hence the children who M.P., much or younger describing concluded that the excluded evidence are 836 still be made decisions should But those pro- mother of B.M.’s involvement in the first instance. of her depictions by the district pornographic

ducing being to pressed a toddler that the court was depicting reality is daughter, or adult, inflam- present fly, would after by an here on the raped make decision if has little that itself matory posses- detail plead guilty Sims chose in- Sims’s value with trial. A only four sion counts evidence is to that means such tent. And considering process .for more deliberate See unfairly prejudicial. large a extent reliable yield a more might issues these Bilderbeck, result. Cir.1999) (“unfair (6th prejudice [] to exclude court’s decision The district tendency suggest undue mean[s] to Sims’s all evidence related consider- improper decision based vacated, the case ations”). reasoning here— But proceedings further consis- remanded for where it decid- at the particularly opinion. with this tent evidence—did subject ed to exclude prejudice between always distinguish *5 that is fair. prejudice is unfair and that WHITE, Judge, N. Circuit HELENE Sanders, 95 generally See dissenting. Cir.1996). (6th Evidence I find no basis on respectfully I dissent. detail, for exam- inflammatory that lacks that the to conclude which simply shows but that more ple, the evi- abused its discretion might pornography, is a consumer majority finds fault at issue. might at all. It unfairly prejudicial not be the real the court’s conclusion with to show that Sims primarily instead tend intent but at trial will not be Sims’s issue image when he to obtain a lascivious hoped step a substantial towards whether he took through her window. filmed M.P. nude which pornography, the creation would be fair. prejudice That kind of court’s under- was based on the conclusion point. It is clear leads to a third Which defense “is standing apparent that Sims’s value of the evidence at that the of M.P. do not that the videos The same is here not uniform. issue pubic depiction of the victim’s lascivious unfairly prejudicial true of the evidence’s area, majori- required by as statute.” im- that Sims effect. Evidence ty concludes that raped, example, ages being of toddlers gov- were incorrect because conclusion extreme- modestly probative but might be to show that the required ernment is not But the balance between ly prejudicial. conduct, lascivious actually depicted videos prejudicial effect probative value and attempted to create videos only that Sims might well be reversed such conduct. But depicting plea admissions at his some of Sims’s own misapprehend the elements court did not that the hearing —admissions offense; rather, simply separate as a sought to admit specifically upon posture based made they soon as were item of evidence as time. If in fact Sims does the case at the event, the court’s decisions made. In and con- challenge his intent not intend the different kinds of whether to admit image an hoped that he to secure cedes more here needs to be evidence at issue conduct, sexually explicit M.P. they during were individualized whether that is a sufficient it matters not that fol- and in the plea What matters is charge. defense lowed. he his intent. If the contest changes of his defense and he takes nature M.P. position that he filmed accidental- capture

ly, or did not intend to did, or her for

he intended to film artistic only, the court can and should

purposes However, ruling. on this

reconsider

record, I find no abuse of discretion. INC.,

YELLOWBOOK Plaintiff-

Appellant, BRANDEBERRY; M. American

Steven Directories, Inc.,

Telephone

Defendants-Appellees.

No. 11-4267. of Appeals,

United States Court

Sixth Circuit.

Argued: Jan. 2013.

Decided and Feb. 2013. Filed: