United States v. Curtin

Volume 1 of 2

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-10632
Plaintiff-Appellee, D.C. No.
v.  CR-04-00064-
KEVIN ERIC CURTIN, RCJ/PAL
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, District Judge, Presiding

Argued and Submitted
October 19, 2005—San Francisco, California
Submission Vacated October 25, 2005
Resubmitted March 21, 2006

Filed April 4, 2006

Before: J. Clifford Wallace, Stephen S. Trott, and
Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Wallace;
Dissent by Judge Trott

3669
3672 UNITED STATES v. CURTIN

COUNSEL

Cal J. Potter, III, Esq., Las Vegas, Nevada, for appellant
Kevin Eric Curtin.
 UNITED STATES v. CURTIN 3673
Daniel J. Bogden, United States Attorney; Nancy J. Koppe,
Assistant United States Attorney, Las Vegas, Nevada, for
respondent United States of America.

OPINION

WALLACE, Circuit Judge:

Curtin appeals from his conviction and sentence for travel-
ing across state lines with intent to engage in a sexual act with
a minor, in violation of 18 U.S.C. § 2423(b), and of use of an
interstate facility to attempt to persuade a minor to engage in
sex, in violation of 18 U.S.C. § 2422(b). We have jurisdiction
pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in
part, and remand for a new trial.

I.

On the afternoon of February 11, 2004, Las Vegas Metro-
politan Police Department Detective Michael Castaneda was
acting undercover on the Internet as a 14-year-old girl using
the screen name “christine13.” Castaneda entered a chat chan-
nel labeled “ltgirlsexchat” and received an instant message
from Curtin, who used the screen name “M-42SOCAL.”

The detective, as “Christy,” and Curtin “chatted” through
instant messaging for approximately four hours. They
exchanged photos early in the conversation. Castaneda sent
Curtin a picture of a female police officer, taken when she
was fourteen years old. Curtin said his name was “Kenny”
and that he was forty-two years old, divorced, and living in
Anaheim, California. He told Christy that he was planning to
travel to Las Vegas on Friday, February 13 and invited her to
go to a “Penn and Teller” show on Sunday, February 15.
Christy agreed.
3674 UNITED STATES v. CURTIN
Curtin extensively discussed sex with Christy during this
conversation, saying that he would love for her to “spend the
night” after the show and hoped to “get a room.” Curtin told
Christy “I want to make you happy . . . . If you were mastur-
bating and fantasizing about sex, I’d love to have sex with
you.” He added that they “could just make out or I could just
give you oral sex or we could just fool around.” Finally, Cur-
tin made plans to meet Christy in the bowling alley of a Las
Vegas casino at 2:00 p.m. on Sunday, February 15. At the end
of the conversation, Curtin asked Christy to try sleeping
naked that night, and to “imagine my face moving between
your legs and licking you. Imagine my tongue penetrating
you.”

The next day, Curtin sent Christy an email message saying
“I can’t tell you how much I’m looking forward to Sunday.
We’re going to have a great time.” The detective and Curtin
later that day had another “chat” during which Curtin contin-
ued to make explicit references to having sex with Christy.
Curtin concluded the “chat” by confirming their meeting and
telling Christy he would introduce her to Penn and Teller as
his niece, adding, “Let’s not get caught, ever.”

On that Sunday, the police officer whose picture was sent
to Curtin waited in the bowling alley as a decoy, dressed in
the clothes that Christy indicated she would be wearing. Eight
to ten other law enforcement officers were also present. Cur-
tin entered the bowling alley at 1:45 p.m. and walked towards
the area where the decoy officer was sitting. He walked past
her and then turned and walked past her again, looking at her
each time. Curtin then left the area where the decoy was sit-
ting and went to the back of the bowling alley, where he used
his personal digital assistant. At the request of law enforce-
ment officers, a casino security guard approached Curtin and
asked for identification. Curtin showed the guard a United
States passport and subsequently left the bowling alley area of
the casino.
 UNITED STATES v. CURTIN 3675
Curtin reentered the bowling alley approximately 2:05 p.m.
He looked around and again walked to the area where the
decoy officer was sitting. After less than a minute, he moved
even closer to her, looking in her direction the entire time. He
stopped behind the officer and she turned and said “hi” to
him. Whether he said “hi” in return is disputed.

He then left the bowling alley and started getting into a van,
at which point law enforcement officers stopped and asked
him for identification. He was detained by police and advised
of his rights under Miranda. After Curtin waived these rights,
he agreed to speak with the law enforcement officers. In a
voluntary statement, he stated that he had traveled by car to
Las Vegas for meetings. He explained that he was at the
bowling alley to meet a female friend he had met on the inter-
net. He admitted to using the screen name and email address
used to contact Christy. Curtin explained that he often enters
chat rooms and “role play[s]” as if he is engaged in “daddy/
daughter” type conversations, and that he expected Christy to
be a thirty- to forty-year-old woman pretending to be a girl.

Curtin was then arrested by the Las Vegas police. Upon
searching his van and hotel room, police seized his digital
assistant and laptop computer. The digital assistant contained
over 140 stories about adults having sex with children. The
laptop contained a list of chat channels that Curtin had
accessed in the past, as well as pictures of girls whose names
matched some of those in his “chat” list.

Curtin was indicted on one count of travel with intent to
engage in a sexual act with a juvenile, in violation of 18
U.S.C. § 2423(b), and one count of coercion and enticement,
in violation of 18 U.S.C. § 2422(b). Curtin filed two motions
in limine asking the district court to exclude the stories found
on his digital assistant from evidence. The district court
denied these motions in limine. On the second day of trial, the
government offered two of the stories, “My Little Sister” and
“Love for the World,” to show modus operandi, intent, prepa-
3676 UNITED STATES v. CURTIN
ration, and knowledge. They were admitted over Curtin’s
objection. The engineer who extracted the stories from the
digital assistant testified that both stories were about a father
having sex with his young daughter and the daughter’s enjoy-
ment of the experience. However, when the government
sought to introduce a third story, “Melanie’s Busy Day,” the
district court stopped the questioning. The court allowed the
government to ask general questions without admitting the
stories, such as whether they all related to sex between a
minor and an adult. However, recognizing the highly prejudi-
cial nature of the stories, the court held that the story could
be entered into evidence only if it tied into Curtin’s intent,
knowledge, preparation, or modus operandi.

The government then asked the court to make a preliminary
legal determination about the admissibility of the remaining
stories. The government argued that “Melanie’s Busy Day”
was admissible to show general intent, modus operandi, prep-
aration, and knowledge because it had language similar to that
used by Curtin in his email to Christy, namely, language con-
cerning oral sex and a child masturbating. The government
argued that “Missing Big Brother,” which discussed how the
adult did not want to hurt the child during sex, was also
admissible for intent, modus operandi, preparation, and
knowledge. The government made similar arguments with
regard to seventeen other stories, with titles such as “I’m
Being Molested,” “The Good Girl,” “A Relative Interest,”
“Restrictions,” “Teaching the Kids,” and “Mommy Juice.”

The following morning, Curtin renewed his objection to the
admission of the stories, arguing that they were highly preju-
dicial and were being admitted to show propensity. The dis-
trict court held that if the government could cite a part of the
story that related to one of the permissible purposes under
Federal Rule of Evidence Rule 404(b), then the court would
admit the entire story to show general intent.

The district court admitted to being unable to read the sto-
ries because they were so disturbing. “I thought about this
 UNITED STATES v. CURTIN 3677
problem overnight because I want to address the relative over-
whelming prejudice versus the purpose. I read the first story
and a little bit of the second. That’s as far as I could get,
which is confirming [defense counsel’s] statement. It has a
tendency to overwhelm you and overwhelm the jury.” How-
ever, after more argument, the district court agreed to give a
limiting instruction and to admit five of the stories: “My Little
Sister” (which involved incest and the impregnation of a nine-
year-old girl), “Love for the World” (which involved incest),
“Restrictions” (same), “Daddy’s Lessons” (same), and “Mela-
nie’s Busy Day” (which involved an eleven-year-old girl initi-
ating sex with, among others, her father and her teacher).

The limiting instruction given was as follows:

A person cannot be charged nor convicted of liter-
ature that they read or that they possess. That’s why
I’m giving you the instruction.

But the Government has the obligation to prove,
beyond a reasonable doubt, that the defendant had
the wrongful intent. They may offer possession of
such literature to show that. . . .

You may take this kind of evidence on the ques-
tion of whether the defendant actually possessed the
intent.

You may also take it on the additional questions
which go to the question of intent, whether he prac-
ticed in this alleged conduct methodology consistent
with literature that he had or tending to show that he
prepared to commit the acts or that he had knowl-
edge, that is, of how to commit the act or that the act
was illegal. . . .

So, for those four reasons, only, the Government
is offering to show that the defendant possessed this
3678 UNITED STATES v. CURTIN
literature; intent, method, preparation, and knowl-
edge. And you may only take it for that purpose.

Again, you have a constitutional right. You have
that right. You would want to protect the defendant’s
right to possess any kind of literature and to read it
or not read it.

You must not allow this kind of evidence to bias
you, generally, against the defendant on the ultimate
question of guilt or innocence. You must not do that.

II.

Curtin contends that the five stories were inadmissible
character evidence, introduced to show propensity in violation
of Rule 404(b) of the Federal Rules of Evidence. The govern-
ment responds that the stories fall outside the parameters of
Rule 404(b) because they are inextricably intertwined with the
charged crimes. Alternatively, the government argues that the
stories were properly admitted under Rule 404(b) to prove
Curtin’s intent.

A.

The government argues that the admitted stories were “in-
extricably intertwined” with the facts giving rise to the indict-
ment against Curtin and therefore not “other acts” evidence
within the scope of Rule 404(b). We review de novo the ques-
tion of whether the evidence was within the scope of Rule
404(b). See United States v. DeGeorge, 380 F.3d 1203, 1219
(9th Cir. 2004).

[1] Two categories of evidence may be considered “inextri-
cably intertwined” with a charged offense and therefore
admitted without regard to Rule 404(b). First, evidence of
prior acts may be admitted if the evidence “constitutes a part
of the transaction that serves as the basis for the criminal
 UNITED STATES v. CURTIN 3679
charge.” DeGeorge, 380 F.3d at 1220, quoting United States
v. Vizcarra-Martinez, 66 F.3d 1006, 1012 (9th Cir. 1995). In
United States v. Montgomery, 384 F.3d 1050, 1062 (9th Cir.
2004), we held that a government report detailing individual
fraudulent acts was “inextricably intertwined” with the under-
lying conspiracy charge because the acts themselves com-
prised the conspiracy. Therefore, the report was admissible
without regard to Rule 404(b). Similarly, in United States v.
Lillard, 354 F.3d 850, 854 (9th Cir. 2003), we concluded that
the defendant’s theft of cocaine from a shipment, which was
itself the basis for the conspiracy, was “inextricably inter-
twined” with the conspiracy charge.

[2] Second, prior act evidence may be admitted without
regard to Rule 404(b) “when it [is] necessary to do so in order
to permit the prosecutor to offer a coherent and comprehensi-
ble story regarding the commission of the crime.” DeGeorge,
380 F.3d at 1220, quoting Vizcarra-Martinez, 66 F.3d at
1012-13. “A jury is entitled to know the circumstances and
background of a criminal charge. It cannot be expected to
make its decision in a void—without knowledge of the time,
place, and circumstances of the acts which form the basis of
the charge.” United States v. Daly, 974 F.2d 1215, 1217 (9th
Cir. 1992), quoting United States v. Moore, 735 F.2d 289, 292
(8th Cir. 1984). In United States v. Beckman, 298 F.3d 788,
794 (9th Cir. 2002), the defendant was charged with import-
ing over 1,500 pounds of marijuana. His defense was that he
was tricked into transporting the marijuana by the chief gov-
ernment cooperating witness. This witness testified at length
about prior drug runs that Beckman had made on his behalf.
We held that the witness’s testimony was “inextricably inter-
twined” with the charged offense, because it was “intended to
establish [the witness’s] relationship to Beckman [and] to
show that the relationship was ongoing . . . .” Id.

[3] The fact that Curtin was in possession of stories detail-
ing sex with children at the time he went to meet “Christy”
is insufficient to support the introduction of the stories with-
3680 UNITED STATES v. CURTIN
out regard to Rule 404(b). Curtin was charged with traveling
across state lines with intent to engage in a sexual act with a
minor, and with attempting to persuade a minor to engage in
sex. The possession or content of the stories was not a part of
the “transaction” that led to the present charges. Second, the
admission of the stories was not required for the prosecution
to “offer a coherent story.” The prosecution would have had
no difficulty in presenting all relevant evidence, including the
“chat” conversations, Curtin’s admission that he was “M-
42SOCAL,” and Curtin’s behavior at the meeting place, with-
out the admission of the stories. Thus, the stories were not
“inextricably intertwined” with the charged crimes.

B.

In the alternative, the government contends that the stories
are admissible under Rule 404(b) regardless of whether they
are inextricably intertwined with the crime. We review a dis-
trict court’s admission of evidence under Rule 404(b) for an
abuse of discretion. United States v. Romero, 282 F.3d 683,
688 (9th Cir. 2002).

[4] We use a four-part test to determine whether evidence
is admissible under Rule 404(b). United States v. Spillone,
879 F.2d 514, 518 (9th Cir. 1989). First, “there must be suffi-
cient evidence to support the jury’s finding that the defendant
committed the other [act].” Id. Second, “the other [act] must
not be too remote [in time].” Id. at 519. Third, when admitted
to prove intent, “the prior act must be similar.” Id. Finally,
“the prior act must be introduced in order to prove a material
element of the case.” Id. The main issue here lies in the third
element: whether there is similarity between the possession of
the stories and the crime with which Curtin is charged.

Curtin objected to admission of the stories in the district
court, relying on Guam v. Shymanovitz, 157 F.3d 1154 (9th
Cir. 1998) (as amended). Shymanovitz was a middle-school
guidance counselor who was charged with sexually and physi-
 UNITED STATES v. CURTIN 3681
cally abusing several of the boys under his supervision. Id. at
1155. Prior to trial, the government sought to introduce two
magazine articles from sexually explicit magazines found in
Shymanovitz’s home, arguing that they were relevant to
establishing intent. The articles were both presumably fic-
tional stories. One depicted sex between a father and son,
while the other depicted sex between a priest and a child. The
court deferred ruling on the motion.

At trial, the court permitted a police officer to testify that
at Shymanovitz’s house she seized, among other things, con-
doms, surgical gloves, children’s underwear, and sexually
explicit magazines. The officer testified in great detail, over
defense counsel’s objections, about the contents of four of
these magazines. She told the jury that the magazines con-
tained explicit photographs of homosexual sex and described
the photographs and the contents of the two articles in detail.
The two articles were subsequently entered into evidence. Id.
at 1155.

[5] Both Shymanovitz and this appeal address whether the
reading material at issue was admissible under Rule 404(b).
We concluded in Shymanovitz that the magazine articles
failed to constitute a Rule 404(b) “bad act.” “[P]ossession of
lawful reading material is simply not the type of conduct con-
templated by Rule 404(b).” Id. at 1159. Additionally, we held
that possession of lawful reading material was not similar to
actual criminal conduct, thus failing the third criterion of the
Spillone test. “[T]here is simply no doubt that a wide gulf sep-
arates the act of possessing written descriptions or stories
about criminal conduct from the act of committing the
offenses described.” Id.1
1
The dissent argues that this case differs from Shymanovitz because the
crimes at issue in that case did not involve subjective intent. But even if
Shymanovitz involves slightly different facts, its legal rule does not distin-
guish between specific intent crimes and other crimes. “Under the govern-
ment’s theory, the case against an accused child molester would be
3682 UNITED STATES v. CURTIN
[6] On the issue of similarity, Shymanovitz conforms with
the rest of our case law. In Vizcarra-Martinez, the defendant
was charged with conspiracy to possess a chemical with rea-
son to believe it would be used to make methamphetamine. 66
F.3d at 1009. The district court admitted evidence that
Vizcarra-Martinez was in possession of a personal-use
amount of methamphetamine at the time of his arrest. We
reversed. “We simply cannot assume . . . that Vizcarra-
Martinez’s use of methamphetamine tended to prove that he
knew that the chemical in his possession would be used in the
methamphetamine manufacturing process.” Vizcarra-
Martinez, 66 F.3d at 1015. The cases in which we have

stronger if he owned a copy of Nabokov’s Lolita, and any murder defen-
dant would be unfortunate to have in his possession a collection of Agatha
Christie mysteries . . . .” Shymanovitz, 157 F.3d at 1159. Put simply, Shy-
manovitz is replete with language that dictates the outcome of this appeal.
We may not ignore its controlling effect on this case. See Barapind v.
Enomoto, 400 F.3d 744, 751 n.8 (9th Cir. 2005) (en banc) (per curiam).
The dissent’s discussion of cases like United States v. McCollum, 732
F.2d 1419, 1425 (9th Cir. 1984), which involve the admission of similar
prior criminal convictions to prove intent, is equally off point. In McCol-
lum, we allowed admission of a prior conviction for armed robbery to
negate the defendant’s defense of acting under hypnosis. The relationship
between the prior crime and the act charged is obviously far closer in
McCollum’s case than it is in Curtin’s. Curtin’s case involves otherwise
lawful reading material that is not similar to the crime with which he is
being charged. Essentially, the government here seeks to introduce posses-
sion of material that describes one type of criminal conduct, namely incest
with minors, to prove intent to commit another type of criminal conduct,
namely crossing state borders to have sex with a minor. This is impermis-
sible under our caselaw.
The dissent also argues at length that Curtin’s case is different because
Curtin was actually in possession of the stories at the time of his arrest.
However, the government never argued relevance based on physical pos-
session. In any event, this is a fallacious distinction because the stories
were saved as documents to Curtin’s handheld computer. In the absence
of any evidence to the contrary, we should not infer that Curtin planned
to “use” the stories or had the stories in mind simply because he was car-
rying his computer at the time of his arrest.
 UNITED STATES v. CURTIN 3683
allowed Rule 404(b) evidence show a much stronger connec-
tion between the “other act,” which is often a crime in itself,
and the charged crime. In United States v. Vo, 413 F.3d 1010,
1018-19 (9th Cir. 2005), where the defendant was charged
with possession of methamphetamine with intent to distribute,
we allowed the admission of a prior conviction for drug sell-
ing. “Vo’s prior conviction was evidence of his knowledge of
drug trafficking and distribution in general. The conviction
tended to show that Vo was familiar with distribution of ille-
gal drugs and that his actions in this case were not an accident
or a mistake.” Id. at 1019.

[7] Shymanovitz does recognize a narrow exception for
“modus operandi” evidence: evidence involving acts by the
defendant that are “so nearly identical in method as to ear-
mark the charged offense the handiwork of the accused and
that are so unusual and distinctive as to be like a signature.”
Id. at 1159 n.9 (internal punctuation and citation omitted).
“[U]se of modus operandi evidence is rare, and the similari-
ties must be specific and detailed and clearly set the particular
offense apart from the general body of such offenses.” Id.

[8] The evidence in this case is not sufficiently detailed and
specific to fall within the exception. The stories did not
describe specific methods of committing the first offense with
which Curtin was charged: traveling across state borders to
have sex with a minor. Rather, the stories mostly involved
explicit descriptions of incest. Thus, the stories do not reveal
a relevant modus operandi to commit the charged crime, and
are inadmissible. The issue is closer with regard to the charge
of use of an interstate facility to attempt to persuade a minor
to engage in sex. The government argued that the language in
the stories was similar to the language used by Curtin in his
“chat” conversations. We conclude that Shymanovitz fore-
closes our acceptance of the government’s position. The con-
duct with which Curtin was charged, and the language that
Curtin used, can “hardly be construed as either distinctive or
remarkable in the universe of sexual offenses against minors.”
3684 UNITED STATES v. CURTIN
Id. Compare United States v. Dhingra, 371 F.3d 557, 566-67
(9th Cir. 2004) (as amended) (allowing introduction of Rule
404(b) modus operandi evidence where “[i]n both instances,
Dhingra contacted a minor under the age of 18 years over
[instant messenger] for the purpose of soliciting sexual activ-
ity, arranged to meet, and at the meeting attempted to engage
in sexual activity by persuasion and coercion.”). The similari-
ties between the stories and Curtin’s conduct were not distinc-
tive or unusual enough to render the stories admissible as
modus operandi evidence.2
2
Contrary to the dissent’s assertion, we have not “made relevant litera-
ture off limits in the Ninth Circuit as a matter of law.” Nor do we “ham-
string[ ] the capability of the rule of law to cope in this Circuit with adults
who see children as sexual prey.” As pointed out above, in this case the
prosecution may rely on Curtin’s presence in a chat room called “ltgirlsex-
chat,” the “chat” conversations themselves, Curtin’s admission that he was
“M-42SOCAL,” and Curtin’s behavior at the meeting place.
In terms of otherwise lawfully-possessed literature, modus operandi evi-
dence and inextricably intertwined evidence remain admissible. Here,
however, the jury was asked “to infer from behavior on one occasion
something about the nature of a person and then to infer from that how the
person probably would have behaved on another occasion when the only
connection between the two occasions is that the [jury] believes that peo-
ple of a certain type would act the same way both times.” 1 Stephen A.
Saltzburg et al., Federal Rules of Evidence Manual § 404.02[9] (8th ed.
2002). Without more of a connection between the literature and the
accused crimes, the literature is no more than character evidence intro-
duced to show propensity, and highly prejudicial character evidence at
that.
The dissent argues at length that the evidence was necessary to refute
Curtin’s testimony and “aggressive defense” of his intent to meet an adult,
and attempts to distinguish Shymanovitz because Curtin actually testified.
However, the stories were not offered for impeachment, on which we
express no opinion. Nor do we believe that the stories were necessary
given the strength of other evidence introduced by the government. In any
event, evidence is not admissible solely because it may be necessary or
helpful. Wholly apart from its prejudicial effect, we have held that “[t]he
mere possession of reading material that describes a particular type of
activity makes it neither more nor less likely that a defendant would inten-
tionally engage in the conduct described and thus fails to meet the test of
 UNITED STATES v. CURTIN 3685
The government relies on United States v. Allen, 341 F.3d
870 (9th Cir. 2003), to distinguish Shymanovitz. In Allen, the
defendants were charged with violating federally protected
rights on the basis of race and religion. We allowed the intro-
duction of “skinhead and white supremacist evidence,”
including color photographs of the defendant’s tattoos (e.g.,
swastikas), Nazi-related literature, group photographs includ-
ing some of the defendants (e.g., in “Heil Hitler” poses and
standing before a swastika that they later set on fire), and
other skinhead paraphernalia. Id. at 885-86. We distinguished
Shymanovitz: “Key to our reasoning [in Shymanovitz] was the
fact that the testimony . . . was not relevant to proving any of
the elements of the crime for which the defendant was con-
victed . . . .” Id. at 887 n.25. The government thus contends
that, when read together, “Shymanovitz and Allen stand for the
principle that relevant literature is admissible to prove intent.”

[9] However, the government’s comparison to Allen does
not save the day. First, many of the items admitted into evi-
dence in Allen involved more than the possession of reading
material. The defendants were active participants in “Heil Hit-
ler” poses and had posed with and burned a large swastika.
Second, unlike in Shymanovitz, there is no indication that the
reading material in Allen was fictional. Third, the evidence at
issue in this case, and in Shymanovitz, was extremely prejudi-
cial. Finally, it is possible that the evidence in Allen would
have been admissible under the “inextricably intertwined”
exception outlined above. Our holding here is controlled by
Shymanovitz. The district court committed an abuse of discre-
tion by admitting the stories.

relevancy under Rule 401.” Shymanovitz, 157 F.3d at 1158. Here, the
materials in Curtin’s possession told stories of incestuous sexual acts that
were different from those he was accused of intending to perpetrate. They
were offered as substantive evidence of guilt, and we simply hold that
their admission in this case was an abuse of discretion.
3686 UNITED STATES v. CURTIN
C.

The government fails to argue harmless error and thus the
issue is ordinarily waived. See United States v. Varela-Rivera,
279 F.3d 1174, 1180 (9th Cir. 2002). We may, however, con-
sider harmlessness sua sponte in “those unusual cases in
which the harmlessness of any error is clear beyond serious
debate and further proceedings are certain to replicate the
original result.” United States v. Gonzalez-Flores, 418 F.3d
1093, 1100 (9th Cir. 2005). “[T]he court’s certainty as to the
harmlessness of the error . . . is of particular importance.” Id.
at 1101 (citations omitted). “[E]rror is harmless if we can say
with fair assurance that it did not have a substantial effect,
injurious to the defendant, on the jury’s decision-making pro-
cess.” Arnold v. Runnels, 421 F.3d 859, 867 (9th Cir. 2005)
(citations omitted).

[10] Here, we do not have the requisite level of certainty
that the error was harmless to consider the issue sua sponte.
Most of the sexual activity described in the stories admitted
from Curtin’s PDA was incestuous, a particularly prejudicial
taboo. The admitted stories were so highly disturbing that
even the district court judge stated he was unable to read
them. The issue of harmless error is waived.

III.

Curtin contends in his reply brief that the district court
abused its discretion pursuant to Rule 403 by admitting the
stories because the probative value of the stories is substan-
tially outweighed by the danger of unfair prejudice to Curtin.
However, Curtin did not specifically and distinctly make a
Rule 403 argument in his opening brief. “[O]n appeal, argu-
ments not raised by a party in its opening brief are deemed
waived.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)
(citation omitted); see also Greenwood v. FAA, 28 F.3d 971,
977 (9th Cir. 1994). The argument is waived. In any event, for
the same reason we cannot say that the error was harmless, we
 UNITED STATES v. CURTIN 3687
cannot say that the admission of the materials on Curtin’s
PDA was not unduly prejudicial.

IV.

[11] Curtin argues that the government’s failure to request
a copy of the surveillance video from the casino violated due
process and entitled him to a spoliation instruction. We dis-
agree. The government’s duty to preserve evidence arises
when the evidence “possess[es] an exculpatory value that was
apparent before the evidence was destroyed, and [is] of such
a nature that the defendant would be unable to obtain compa-
rable evidence by other reasonably available means.” Califor-
nia v. Trombetta, 467 U.S. 479, 489 (1984). “Unless a
criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law.” Arizona v. Young-
blood, 488 U.S. 51, 58 (1988). As Curtin failed to show that
the video had any exculpatory value, the district court did not
abuse its discretion in declining Curtin’s request for a spolia-
tion instruction.

[12] Curtin also argues that the district court failed to
instruct adequately on what constitutes a substantial step. The
district court instructed in accord with the model jury instruc-
tions that “mere preparation was not a substantial step.” See
Model Crim. Jury Instr. 9th Cir. § 5.3 (2003). This fairly and
adequately covered the issue. See United States v. Echeverry,
759 F.2d 1451, 1455 (9th Cir. 1985) (“So long as the instruc-
tions fairly and adequately cover the issues presented, the
judge’s formulation of those instructions or choice of lan-
guage is a matter of discretion.”).

AFFIRMED IN PART; REVERSED IN PART;
REMANDED.
3688 UNITED STATES v. CURTIN
TROTT, Circuit Judge, dissenting:

During the 20th Century, the four walls of a family’s home
provided substantial protection from marauding sexual preda-
tors on the prowl for children and unsuspecting minors to
assault. Locked doors and windows could normally safeguard
a dwelling from invasion, as well as shelter parents’ vulnera-
ble children from harm. Distant parks, playgrounds, malls,
and sidewalks surrounding school yards were the child
molester’s preferred hunting grounds. No longer. Now, the
Internet is upon us, and it allows cunning sexual vultures
repeatedly to enter the bedrooms of immature children where,
by seductive and calculating means, unwary children are
enticed to leave the security of their homes and to venture into
unspeakable dangers. Moreover, the invaders themselves do
so invisibly, appearing only on a video screen, unseen by the
unsuspecting adults on site. This case provides an example of
this frightful situation which generations not yet familiar with
the dark side of the Internet have been slow to recognize.

With the walls of our homes breached by the Internet, our
next best defense is the law. Unfortunately, this case reveals
that the laws and the rules of evidence upon which society
relies to protect itself from cruel deviancy are now as porous
as the walls of our homes, allowing lawbreakers to pull the
wool over the eyes of the jurors delegated to ensure that our
laws are faithfully implemented. It seems that the law of rele-
vancy is now more concerned with protecting a sexual preda-
tor’s obscene manuals on what to do to children than with
protecting the real children upon whom they practice their
perversions, as this case illustrates.

Curtin’s explanation to the jury for his Internet behavior
with “christy13” and trip to Las Vegas was that he intended
to act out an incestuous sexual fantasy with her, but that he
expected her to be an adult who would pretend to be his inno-
cent unspoiled daughter. Although he called his sexual fan-
tasy “daddy daughter,” he denied that the “daughter” would
 UNITED STATES v. CURTIN 3689
be a minor. If worthy of belief, this intent would defeat the
prosecution’s case, which required proof of an intent to
engage a minor in unlawful sexual activity. However, Curtin
had on his person at the time of his anticipated encounter with
“christy13” obscene literature tending without ambiguity to
prove that the object of his incest fantasy was a child, not an
adult. My respected colleagues conclude that the district court
erred in admitting this inculpatory literature because — as a
matter of law — it was not relevant. I disagree. Therefore, I
respectfully dissent.

I

The evidence developed against Kevin Curtin by the Las
Vegas Metropolitan Police Department suggests on its face
that he is a dangerous predatory pedophile who uses the Inter-
net electronically to enter the homes of his immature juvenile
female victims in order to lure them into danger. Curtin’s
M.O., or modus operandi, involving calculated “grooming”
and enticement is well known to the police who work this
detail. Here, Curtin contacted his prey through a chat room
called “ltgirlsexchat,” which, according to the evidence, is a
place on the Internet where people go to talk sex with little
girls. The evidence reveals also that he planned a family cover
story for his time with his victim. He, as Uncle Kevin, would
introduce her as his “niece.” In addition, he asked her if she
was working with the police in order “to get guys who make
out with 14-year-old girls.” These aspects of the govern-
ment’s evidence would seem to portray the subjective intent
required by the charges filed against him and a keen aware-
ness of the unlawful nature of what he was doing.

But wait, he protests, what you see and what you read on
my exchanges with “christy13” is not what you get. I’m not
an online predator trolling for naive juveniles, my true intent
— hard to discern though it may be — is to sexually hook-up
with mature females who are hanging out in juvenile chat
rooms posing as minors. I’m merely a “lonely divorcee [sic]
3690 UNITED STATES v. CURTIN
looking for an older woman who may have a place to go,”
because I do not have a place of my own. It’s just a game of
role playing. “[N]ormally in this sort of thing it would be a
fantasy. Sort of like daddy/daughter or along those lines.” My
real intent was to hook up with a thirty to forty year-old role
playing woman pretending to be 14-year-old who was inter-
ested in actualizing such an incestuous sexual fantasy, cer-
tainly not a minor. But of course, this is “my first time.” “I
haven’t ever kissed anyone but my wife since — in fifteen
years.” And, by the way, “no one ever sends a picture of what
they actually look like.” Moreover, everything I wrote to
“christy13” that makes it appear that I understood her to be
a minor? It was just a lie.

How did I know — unsophisticated though I certainly am
— that “christy13” was an older woman even though she said
she was only fourteen? As I explained to the police:

Q.1 Now as far as this person, they told you that
they were fourteen.

A. Right.

Q. Did they tell you anything else, who they lived
with or anything like that?

A. Uhm, I . . . I’m not hesitating to give you infor-
mation. It is not unusual to go on and do
exchanges with many, many, many people.
Uhm, and it . . . it is unusual to the point where
this is the first attempt that I’ve had to actually
meet anyone. But because of that, it’s difficult
for me to say which person and done which
thing and at which time. So I don’t . . . I’m . . .
1
This conversation was between Curtin, Las Vegas Metropolitan Police
Department Detective Castaneda, and FBI special agent Flaherty. Here,
Curtin is responding to questions asked by Detective Castaneda.
 UNITED STATES v. CURTIN 3691
I’m not intending to be vague. I just, uh, I can’t
remember who said what.

Q. So you don’t remember if Kristy [sic] told you
that she lived with her mother and father or any-
thing like that?

A. I believe she said that but, uhm, again, that
would be . . . if that were the case (laughing).
I know I’m sounding like all these if, and’s and
. . . but if that were the case, it would be part
of the fantasy, uh, on it. It wouldn’t be, uhm . . .
I would not expect . . . uh, let me rephrase that.
I would expect anyone who’s participating in
this sort of thing to have their own place where
one would go back and . . . and do the role play-
ing . . . .

...

Q. And what were kinda some of the things that
she says that, uh, she has or has not done?

A. Uhm, she had said that she didn’t have any
experience whatsoever with guys. Uhm, which
again is a fairly common thing. And adds to my
credence to my whole idea of . . . of a, uhm,
fantasy because, you know, I . . . I’m not com-
pletely, uh, conversant with what’s going on
with kids today, but I don’t know of 14-year-old
girls who haven’t at least kissed someone or,
you know, fooled around somewhat or ___,

...

Uhm, the . . . the, uh, the picture that was sent
was this attractive 14-year-old girl who, uh . . .
uh, had never done anything with anyone, but
3692 UNITED STATES v. CURTIN
was willing to suddenly, uh, jump into bed . . .
bed with a . . . a strange 42-year-old person
from Riverside is beyond anything that I would
imagine could be. You know, I . . . uh, I could
see, uh, I could see an Internet connection along
those lines if it went on for months and months
and months and months and you grew a . . . an
attachment and that sort of a thing. What brings
it beyond any level of credence to me that it’s
actually possibly a 14-year-old girl is that
you’ve got this innocent 14-year-old girl who’s
going to, you know, jump into bed with some
guy, uh, after talking to him for two days.
That’s what led me to believe that there’s no
way on earth that it was . . .

Q.2 But, I mean, coming here, you had no idea, no
way of knowin’ that it wasn’t a 14-year-old girl
named Kristy [sic]. Am I right? Other than what
you . . . you think it may be a fantasy, but as far
as what y’all talked about, am I right in sayin’
that you had no way of knowin’?

A. You are right in saying that there is no concrete
way that I could have known, uhm, that it
wasn’t a 14-year-old girl. However . . . (Both
talking at once)

Q. ___. Oh, no, go ahead. Keep goin’.

A. Uhm, I deal with people all of the time and my
experience has never been that someone who is,
uh, an attractive person who’s . . . who saved
themself, not even kissed and not done any-
thing, and, uh, uh . . .
2
At this point Special Agent Flaherty questioned Curtin.
 UNITED STATES v. CURTIN 3693
Not bad for a first-timer who had not kissed anyone but his
wife in fifteen years.

Curtin’s cover story and protestations of “no criminal
intent” notwithstanding, federal prosecutors charged him with
one count of interstate travel with intent to engage in a sexual
act with a minor, in violation of 18 U.S.C. § 2423(b), and one
count of the use of an interstate facility to persuade a minor
to engage in unlawful sexual conduct, in violation of 18
U.S.C. § 2422(b). Both charges required the government to
prove beyond a reasonable doubt that Curtin acted with the
intent to engage a person under the age of eighteen years in
unlawful sexual behavior. To quote the court in its concluding
instructions to the jury:

In order for the defendant to be found guilty of
[§ 2423(b)], the Government must prove each of the
following elements, beyond a reasonable doubt:

First, the defendant used a facility or means of
interstate commerce.

...

Second, the defendant knowingly intended to per-
suade, induce, entice, or coerce Christy into engag-
ing in sexual activity for which he could be
prosecuted under the laws of the state of Nevada.

Third, the defendant believed Christy had not
attained the age of 16 years. . . .

Under the laws of the state of Nevada, it is an
offense to commit statutory sexual seduction.
Nevada law defines statutory sexual seduction as
ordinary sexual intercourse, anal intercourse, cunni-
lingus, or fellatio committed by a person 18 years of
3694 UNITED STATES v. CURTIN
age or older with a person under the age of 16 years.

...

[D]efendant’s subsequent conduct may be consid-
ered by you or the question of the defendant’s intent
at the time he communicated on the Internet or trav-
eled in interstate commerce.

[T]he fact that Christy was an undercover agent
posing as a 14-year-old girl and that no actual minor
child was victimized in this case is not a defense
....

II

Prior to the trial, it became clear that the only disputed
issue in this case would be Curtin’s subjective intent: did he
intend to hook up with a 30 to 40 year-old woman who liked
to pretend she was a child having incestuous sex with her
daddy, or with a pubescent minor? Curtin went so far as to
file a motion to dismiss the indictment on the ground that the
“undisputed and uncontested facts” made it patently obvious
that the government had “no credible evidence to suggest that
[Curtin’s] subjective intentions were to travel to Las Vegas to
have sex with a minor”:

Curtin did not possess an intent to have sex with
a 14 year old girl when he got into his car and drove
to Las Vegas; the overwhelming evidence points the
other way. His voluntary statement, given minutes
after he was stopped by the police, shows this. He
thought it was all too easy, that no 14 year old was
going to just hop into bed with a 42 year old after
two chat sessions, especially a pretty girl. As he said
in his statement, her Mary Poppins naivety was
beyond any level of credence. It was so easy and
 UNITED STATES v. CURTIN 3695
uncredible that he even wondered if it could have
been police. In any event, he was not concerned,
because when he left California to go to Las Vegas,
he was going to find work, and at the time he left
California to travel to Nevada, he had no intentions
of having relations with a minor, as irrebuttably
shown by the fact that he did not so much as talk to
the person. This meeting was the litmus test of his
true intentions in this nebulous and hazy situation.
He clearly and without question passed this test.
When he calmly and simply walked away, the police
wanted to know why. He told them. He clearly and
unequivocally explained that he did not talk to this
person because he stopped by the Suncoast with the
hope and intentions of meeting an older woman.
HAD HE BEEN THERE TO MEET A MINOR, AS
IS THE CRUX OF THIS INDICTMENT, THEN HE
WOULD HAVE INTRODUCED HIMSELF AT
THAT POINT.

. . . Curtin’s intentions were to try to meet a 30-40
year old woman who had been fantasizing. It is not
even close. . . .

As the defendant’s intent was not to have sex with
a minor, nor to entice a minor, nor to travel interstate
to have sex with a minor, . . . this case must be dis-
missed. In the instant case, the defendant did not
think he was dealing with a minor. The police knew
there [was] not a minor and in fact there was not a
minor.

(Emphasis added.)

Thus, the line was drawn by Curtin. His defense was a mat-
ter of record. The trial would be about intent and what was in
Curtin’s mind during his undisputed conduct with “chris-
ty13.” This was the issue, the only issue: subjective inten-
3696 UNITED STATES v. CURTIN
tions. As counsel for Curtin said in his opening statement,
“[Curtin] thought it was someone his age that he was dealing
with and that they would role play in a situation much like a
dad and a daughter.” Counsel concluded on this what-was-in-
Curtin’s-mind theme by telling the jury that “this is the type
of crime that is a situation where you have to look at the
thoughts.” To prevail, of course, Curtin would not be called
upon to satisfy the jury that his defense was true. All he had
to do is raise a reasonable doubt in the mind of a single juror.

III

Confronted with Curtin’s aggressive fantasy intent defense
— to sexually play daddy/daughter incest, not with a minor
but with an adult — and facing the traditional daunting bur-
den of proof, the government offered stories contained on
Curtin’s PDA, or “personal digital assistant.” These stories
were offered pursuant to Fed. R. Evid. 404(b) for two equally
appropriate purposes: (1) to prove that Curtin harbored the
subjective intent made unlawful by law, and (2) to rebut Cur-
tin’s defense that the daughter in his daddy/daughter sexual
fantasy was an adult pretending to be a child. From the begin-
ning, the government was put on notice by the court that in
order for the stories to be properly admitted, each story would
have to comport to the admissibility conditions of Fed. R.
Evid. 401 and 404(b) as well as the probative versus prejudice
limitations found in Fed. R. Evid. 403.

What was the content of the material on Curtin’s PDA? It
consisted of approximately 140 stories containing graphic
descriptions of sexual acts with minors. Not a single story on
Curtin’s PDA was about daddy/daughter role playing with
adults. The stories admitted in evidence are built around dad-
dies having sexual relations with child daughters, not adults,
and the content of the stories parallel Curtin’s email
exchanges with his target. I extract two representative exam-
ples:
 UNITED STATES v. CURTIN 3697
LOVE for the WORLD
An Erotic Story
...

“Good morning, brothers and sisters. It’s a splen-
did day the Lord has blessed us with; . . .

“I’m going to speak frankly, bluntly; and tell some
truths that need telling. And I don’t want any of you,
friends, to send the kids to the next room or anything
else because they might be shocked. If your child is
old enough to understand what I’m saying, he or she
must hear it along with you. These are TRUTHS that
even children must learn. So gather around; call the
children, and listen to the truth that has been
revealed to me.”

“In today’s world, parents have a special duty
towards their children. Gone are the days when we
could pretend children were ‘innocent’ of the facts of
life. Today’s children, before they turn ten, and some
even before first grade, know what sex is . . . And
many of them have already developed an interest
that some parents may feel uncomfortable with. That
discomfort, is the matter I am going to address
tonight; and what you must do, to not just overcome
it, but to find true joy in doing the work of the Lord,
by properly teaching your children the true JOY of
sex, when practiced with those you love.

For it is truly up to the parents to steer their chil-
dren right: into a healthy outlook on matters of sex.
After all, it is not only a beautiful gift from the Lord;
it is the very source of those precious children them-
selves.”

“I will talk first about the responsibility of fathers.
I must say that many fathers out there disgrace the
3698 UNITED STATES v. CURTIN
very meaning of the word. Yes, there are many who
behave as though their role ends at begetting the
child, or still hold to an old-fashioned sense of
‘duties’ that is limited to providing the groceries
every week. THAT is not the way to bring up a
child! Especially your daughters! Daughters need
their father to be a strong presence, the very proto-
type of a manly image.

Men, your daughters need YOU, to be the FIRST
MAN IN THEIR LIVES!”

“And I’m not talking any halfway measures here,
friends.

When I say you must be the first man in your
daughter’s life I mean just that! Think about it: Your
precious little girl, who loves you more than any-
thing in the world . . . you love her too, don’t you?
DON’T you?”

“Then MATCH that love, gentlemen! Be not only
the first MAN in her life; be the first MALE in her
life! Yes, I mean exactly what you are thinking. I
want you to be her first f...k!”

...

[Exhibit 7b]

Restrictions
An Erotic Story

“Margaret?”

“Yes Daddy?”

“You were sitting out there a long time, with
Billy, weren’t you?”
 UNITED STATES v. CURTIN 3699
“Yes Daddy.”

“Yes Daddy.”

“Did you let him kiss you?”

“Only on the cheek Daddy.”

“That’s good. Did he do anything else?”

“Well, he put his arm around me.”

“You stopped him, didn’t you?”

“Well . . .”

“Oh Margaret, what am I going to do with you?
You didn’t let him do any more, did you?”

“Well, he tried to put his hand on me here, but I
stopped him.”

“Very good Margie. Maybe I can trust you after
all. What did you tell him?”

“I told him, that if he didn’t keep his hands where
they belonged, he’d have to go home. I don’t like to
tell him that Daddy, he’s a really nice boy. How
come I can’t let him touch me Daddy?”

“Because I’m afraid you’ll go too far.”

“Too far?”

“I guess I’ll just have to show you. Come here,
and sit on my lap.”

“Ok Daddy. You mean, like I’m not supposed to
sit on Billy’s lap?”
3700 UNITED STATES v. CURTIN
“Uhuh. Oh, wait. First go change into your red
dress, and top.”

“The SHORT one Daddy?”

“Uhuh.”

“But Daddy! You told me never to wear that one.”

“Uhuh. I’ll show you why I don’t want you wear-
ing it.”

“If you say so, Daddy.”

“I do. And Margie?”

“Yes Daddy?”

“Don’t wear any nylons, or pantyhose either.”

“Ok Daddy.”

...

[Exhibit 7c]

To illustrate the material similarities between the stories in
Curtin’s PDA and the escalating salacious enticements he
made on line to “christy 13,” known as “grooming,” here are
some representative examples of his email conversations with
her. They show an adult planning to initiate a young virgin
into the world of adult sex:3

Christy: You don’t mind that I’m 14?
3
For ease of reading the format has been modified. The content of the
conversation is unaltered.
 UNITED STATES v. CURTIN 3701
Curtin: Do you mind that I’m 42?

Christy: No, not at all.

Curtin: Have you ever been with an older guy?

Christy: No, I’m still a virgin, if that is what you’re
asking.

Curtin: Well, what would you want to do with me?
I’d love to make out with you. Is that weird?

...

Curtin: Do you masturbate?

Christy: No, never have. . . .

...

Curtin: Do you never get urges?

Christy: What do you mean?

Curtin: You never feel horny?

Christy: No. Is that okay?

...

Curtin: Do you have periods yet?

Christy: Yes.

Curtin: I just logged on and looked at your picture.
You’re so sexy that it’s hard to believe you don’t get
horny.
3702 UNITED STATES v. CURTIN
Christy: I don’t think that I’m pretty.

Curtin: I think you are, and I think you’re sexy.

Christy: Thanks.

...

Christy: What should I do or how should — how far
should I go?

Curtin: I’ll probably go as far as you want to go.

Christy: I want to make you happy.

Curtin: I want to make you happy, too. If you were
masturbating and fantasizing about sex, I’d love to
have sex with you. But since you’re not, I don’t want
to push you past anything you’re ready for. . . .

...

Christy: I heard that it hurts the first time. Also, that
you can get pregnant real easy. . . .

Curtin: There are things we can do to stop that.

...

Curtin: Or, we could just make out or I could just
give you oral sex or we could just fool around.

Christy: Would it hurt if you gave me oral sex?

Curtin: No, not at all.

...
 UNITED STATES v. CURTIN 3703
Christy: What should I bring to sleep in, my pj’s or
will my jeans and shirt be okay?

Curtin: Nothing. I don’t want you to sleep in any-
thing.

Christy: Really? Not even my underwear? Won’t
that be a little uncomfortable?

Curtin: No, that’s the best way to sleep, all cuddled
up, two naked bodies.

Christy: Okay, if you say so. I just think it would be
uncomfortable.

Curtin: Try tonight and tell me if it is. And imagine
my face moving between your legs and licking you.
Imagine my tongue penetrating you.

Christy: I can’t. Mom and Dad come in at night and
check in on me and tell me all the time that they
cover me up with my blanket. So they would see that
I was naked and would ask me why. Plus, if my dad
saw me naked, I would be so embarrassed.

...

Christy: . . . It won’t hurt, right?

Curtin: No, it won’t hurt.

...

Curtin: Have you thought about my head between
your legs, licking you?

Christy: Yes. Kind of curious what that will feel like.
3704 UNITED STATES v. CURTIN
Curtin: Have you touched yourself there?

Christy: Only while taking a shower to was [sic]
myself. Am I weird?

Curtin: No, I just thought you might have when
thinking about me, about — thinking about we’re
going to do [sic].

...

Curtin: I did, by the way. I looked at your picture
and played with myself thinking about what it would
feel — what it would be like to have sex with you.
You are so sexy.

Christy: Really? You did?

Curtin: Yes. . . .

Curtin: I want to make you feel so good. I want this
to be the best you’ve ever felt.

Christy: Really? You’re so nice.

...

Curtin: Can you get undressed?

Christy: No way. My little sister comes in and out of
my room a lot and she would tell Mom or Dad that
I did not have any clothes on.

Curtin: Rats.

Christy: Why? What were you going to have me do?

Curtin: Play with yourself. . . .
 UNITED STATES v. CURTIN 3705
Christy: Oh, I never have done that kind of stuff.

Curtin: I know. I was hoping you’d start. No big
thing. . . . It would just be sexy.

Christy: I’m going to feel so dumb when we are
alone because I won’t know what to do.

Curtin: No, you won’t feel dumb. The only thing I
ask is if something feels good, tell me. And if some-
thing feels bad, tell me. I just want to make you feel
so good.

Christy: Okay, I will.

...

Curtin: I’m going to make it so good for you. I’m
going to get you to come and come and come.

Christy: Will it hurt if you do that?

Curtin: No, it will feel real good. I’m not going to
hurt you. Remember, I promised.

Christy: Okay. I get a little excited when I think
about you being my first. . . .

Curtin: I’m going to love sucking on your breasts,
your naked body in front of me, and moving down
and licking you and putting my tongue in you.

...

Curtin: I’d love for you to put my d...k in your
mouth. Would you do that?

Christy: If you want me to, I think I will.
3706 UNITED STATES v. CURTIN
Curtin: smiley face.

Curtin: I’ll show you how to do that to drive a guy
nuts. Smiley face.

Christy: To do what?

Curtin: Give a blow job. Put a guy’s d...k in your
mouth.

Christy: Really? You are going to teach me how to
give a blow job? If my girlfriends only knew, they
would be jealous.

Curtin: Sure. Smiley face.

Under the circumstances of this case, and especially given
the nature of the defense, were the stories in Curtin’s PDA of
sexual contact with minors relevant? Certainly. The stories
consisted by anyone’s logic of “evidence having any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Fed. R. Evid. 401. As
acknowledged by the Supreme Court:

Extrinsic acts evidence may be critical to the estab-
lishment of the truth as to a disputed issue, especially
when that issue involves the actor’s state of mind
and the only means of ascertaining that mental state
is by drawing inferences from conduct.

Huddleston v. United States, 485 U.S. 681, 685 (1988).

Curtin’s possession in his PDA of these stories on his per-
son at the time of his intended encounter with “christy13”
clearly illuminates his thoughts and his subjective intent to
carry out his daddy/daughter sexual initiation escapades with
a juvenile, not an adult. Any lingering question of relevancy
 UNITED STATES v. CURTIN 3707
was put to rest by Curtin’s defense that it was all a fantasy
directed at an adult.4 The similarities between the solicitous
“grooming” email conversations and the content of the stories
is readily apparent.5

However, the district court did not admit all 140 stories,
only five, taking great care in the exercise of its discretion to
restrict their use to the main issue and to eliminate possible
undue prejudice.

IV

With all respect to my colleagues, Guam v. Shymanovitz,
157 F.3d 1154 (9th Cir. 1998), does not dictate the outcome
of this case, and its holding does not as a matter of law render
abusive the district court’s exercise of discretion. In the par-
lance of the profession, Shymanovitz is distinguishable.

First, unlike the specific intent crimes with which Curtin
was charged, the combination of crimes in Shymanovitz —
generally unlawful sexual activity with minors — required an
entirely different type of mens rea from the specific intent
required here. One of the crimes charged in Shymanovitz,
“sexual penetration,” did “not include any requirement that
the defendant act with intent,” id. at 1157, just that the defen-
dant have engaged in sexual penetration with the victim. The
4
The government may offer in its case in chief evidence rebutting an
expected defense. United States v. Halbert, 640 F.2d 1000, 1004 (9th Cir.
1981); United States v. Necoechea, 986 F.2d 1273, 1280 n.4 (9th Cir.
1993); United States v. Henderson, 717 F.2d 135, 137 (4th Cir. 1983).
5
The record shows that the trial judge required the government to go
through each story it sought to admit and identify that portion of the story
that was similar to the Curtin’s enticement of “christy13.” See infra Part
V. The majority opinion does not take issue with this analysis. Rather, the
majority asserts that as a matter of law, reading material is categorically
irrelevant and dissimilar for the purposes of Fed. R. Evid. 401 and 404(b).
As set forth below, this unwarranted assertion is legally flawed, and con-
trary to congressional intent.
3708 UNITED STATES v. CURTIN
other crime, sexual contact with a minor, required touching
that was intentional rather than accidental. Moreover, the
actual purpose of the person doing the touching was immate-
rial. As Judge Reinhardt explained,

[T]he charges based on sexual contact require the
government to prove that any touching on Shy-
manovitz’ part was intentional, and that a reasonable
person could construe the touching to be for a sexual
purpose.

Whether Shymanovitz’s actual purpose in touch-
ing the alleged victims was sexual arousal or gratifi-
cation, however, or whether he was actually aroused
or gratified by the touching is immaterial to the
offenses, including the charges based on improper
sexual contact. Instead, the question in the latter cat-
egory of cases is whether a reasonable person could
construe the touching to be for such a purpose. The
test, under the sexual contact statute, is an objective
not a subjective one. In short, it is the character of
the touching that is at issue, not the purpose of the
intentional toucher. Accordingly, the government’s
current and sole justification for admitting the chal-
lenged evidence goes, once again, to the proof of an
element immaterial to the offense.

Id. at 1158 (emphasis added).

Second, the defense in Shymanovitz was not that the alleged
touching and penetration were not accompanied by any requi-
site state of mind, but that the acts charged as crimes never
happened. “His counsel argued that the boys and some of the
parents had concocted the allegations against him . . . .” Id.
at 1154. Moreover, Shymanovitz

. . . never testified at trial that he believed sexual
conduct with minors to be legal. Nor was there testi-
 UNITED STATES v. CURTIN 3709
mony to indicate that he somehow lacked knowledge
of or familiarity with fellatio, anal intercourse, or
other general aspects of homosexual sex. Moreover,
neither knowledge of the illegality of the conduct of
which he was accused nor knowledge of the nature
of the specific acts identified by the prosecutor con-
stituted an element of the offense. More important,
such knowledge would in no way tend to prove his
guilt on any of the charges brought against him.
Accordingly, it is highly unlikely that the govern-
ment introduced the magazines to address the issues
it argued they were relevant to during the prosecu-
tor’s closing arguments.

Id. at 1156.

In contrast, Curtin did testify at the trial, tendering an ener-
getic defense that his intent was to couple with an adult
female, not a juvenile. Shymanovitz’s defense had nothing to
do with intent or state of mind.

Third, the stories were in Curtin’s possession when he
entered the casino in order to meet his target. Not so in Shy-
manovitz.

Thus, given that the evidence under scrutiny in Shy-
manovitz was (1) not probative of any issue in the case, and
(2) not relevant to Shymanovitz’s factual defense, it was
appropriate for the panel to conclude as a matter of law that
it was not properly received pursuant to Rule 401 or 404(b).
The evidence simply failed Rule 401’s definition of relevancy
and, therefore, also failed Rule 404(b). The evidence did not
illuminate “a fact of consequence to the determination of the
action,” and was nothing more than an attempt to slime the
defendant. Id. at 1154 (referring to the prosecutor’s “untem-
pered and provocative references” to the evidence).6
6
The majority places great significance on our statement in Shymanovitz
that “there is simply no doubt that a wide gulf separates the act of possess-
3710 UNITED STATES v. CURTIN
We recognized the limited reach of Shymanovitz in United
States v. Allen, 341 F.3d 870 (9th Cir. 2003). The defendants
in Allen were charged with intimidating or interfering with a
person’s housing rights on account of race or color, in viola-
tion of 42 U.S.C. § 3631. In order to satisfy the statute’s
requirement of a showing of racial animus, the government
offered, and we admitted:

. . . skinhead and white supremacist evidence,
including color photographs of their tattoos (e.g.,
swastikas and other symbols of white supremacy),
Nazi-related literature, group photographs including
some of the defendants (e.g., in “Heil Hitler” poses
and standing before a large swastika that they later
set on fire), and skinhead paraphernalia (e.g. combat
boots, arm-bands with swastikas, and a registration
form for the Aryan Nations World Congress).

Id. at 885-886. The district court ruled (1) that this potentially
inflammatory evidence was relevant to proving the defen-
dants’ motive, intent and plan, and (2) that its prejudicial
potential did not substantially outweigh its probative value as
demanded by Fed. R. Evid. 403.

On appeal, the Allen defendants challenged the trial court’s
ruling on the ground that the evidence was unfairly prejudi-
cial. We disagreed, relying in large measure on our decision
in United States v. Skillman, 922 F.2d 1370 (9th Cir. 1991),

ing written descriptions or stories about criminal conduct from the act of
committing the offenses described.” (Emphasis added.) From that state-
ment the majority asserts that reading material can never be relevant to
any crime. This over-generalization best illustrates the majorities failure
to appreciate the fact that the “offense described” in Shymanovitz was not
a specific intent crime. Thus, because specific intent was not an issue,
reading material admitted to show intent would never be relevant. Here,
as illustrated by subsequent case law, where specific intent is at issue,
reading material can be relevant.
 UNITED STATES v. CURTIN 3711
a race-motivated cross burning case wherein “skinhead” liter-
ature and materials found in Skillman’s garage and on his per-
son at the time of his arrest was used to prove Skillman’s state
of mind at the time of the crime, even though the government
could not establish that Skillman was a skinhead. In Skillman
we said,

Skillman principally relies on United States v. Gil-
lespie, 852 F.2d 475, 479 (9th Cir. 1988), where we
found it was an abuse of discretion to admit evidence
of homosexual conduct of the appellant with his
adoptive father in a case where the appellant was
charged with transporting his three-year-old god-
daughter for illegal sexual purposes. Gillespie is
inapposite since the alleged homosexual conduct did
not tend to establish a violation of the statutes in
issue. Here, the skinhead evidence tended to estab-
lish Skillman’s racial animus and that he might act
on his beliefs. Skillman also contends that the skin-
head references were cumulative to other animus
evidence, including Exhibit 3, the business card with
the racist poem found in his wallet as well as
Milum’s and Becky’s testimony on Skillman’s prior
race statements. We conclude this evidence was not
“needless[ly]” cumulative in light of the difficulty in
establishing the requisite racial animus and Skill-
man’s theory-of-defense that he was a mere passive
bystander at the crime. The district court’s evalua-
tion under Rule 403 and the admission of the evi-
dence was not an abuse of discretion.

922 F.2d at 1374 (emphasis added).

Accordingly, because we perceived in Allen the difference
between cases involving specific intent and those that do not,
we had no difficulty explaining why Shymanovitz, like Gilles-
pie, was inapposite:
3712 UNITED STATES v. CURTIN
The defendants cite to our decision in Guam v. Shy-
manovitz, 157 F.3d 1154 (9th Cir. 1998), to support
their argument that the admission of the skinhead
and white supremacy evidence was unduly prejudi-
cial. In Shymanovitz, we concluded that the district
court abused its discretion by allowing the govern-
ment to introduce testimony about the contents of
magazines found at the defendant’s apartment,
including photographs of men masturbating, ejacu-
lating, using sex toys, and engaging in oral and anal
sex (among other things), to prove the defendant’s
intent in committing sexual acts with minors. 157
F.3d at 1155. Key to our reasoning was the fact that
the testimony was highly prejudicial and was not rel-
evant to proving any of the elements of the crime for
which the defendant was convicted (unlawful sexual
activity with minors). Id. at 1157-60. In contrast, the
skinhead and white supremacy evidence here was
relevant to proving the element of intent in both
§§ 241 and 245(b)(2)(B). Moreover, in light of the
government’s heavy burden of proving racial ani-
mus, we conclude that it was not an abuse of discre-
tion to admit the evidence.

Allen, 341 F.3d at 887, n.25 (emphasis added).

My colleagues attempt — unconvincingly I believe — to
distinguish Allen on the basis of insignificant differences
between the evidence in Allen and the evidence here. They
point out (1) that “the evidence in Allen involved more than
the possession of reading material,” including photographs
showing some of the defendants as active participants in “Heil
Hitler” poses, (2) that the Nazi literature in Allen may not
have been “fictional,” and (3) that “the evidence in this case,
and in Shymanovitz was extremely prejudicial,” apparently as
opposed to the evidence in Allen.
 UNITED STATES v. CURTIN 3713
These minor differences are utterly insufficient to render
Allen inapposite. First, that Allen involved evidence in addi-
tion to reading material is inconsequential, as each “offer of
evidence is to be evaluated independently under the Federal
Rules of Evidence and the relevant case law.” United States
v. Bertoli, 854 F.Supp. 975, 1079 (D.N.J. 1994) vacated in
part on unrelated grounds, 40 F.3d 1384 (3d Cir. 1994). Sec-
ond, I fail to see any material difference between real stories
of sexual perversion and fictional stories of the same ilk. Both
serve to excite sexual criminals and to fuel their perverted
intentions. Moreover, whether a story’s plot is fictional is not
material to the question of whether the content of that story
relates to and is similar to the conduct of the alleged criminal
— thereby satisfying the requirements of Rules 401 and
404(b). Third, the majority’s assertion that “the evidence at
issue in this case and in Shymanovitz [as opposed to Allen]
was extremely prejudicial,” and thus distinguishable, fails to
appreciate how the rules of evidence operate. Prejudice is a
separate basis for exclusion that requires an independent anal-
ysis under Fed. R. Evid. 403 after it is determined that an
offer of evidence is relevant and admissible. See Weisgram v.
Marley, 528 U.S. 440, 453 n.9 (2000). As admitted by my
colleges, the prejudice argument was waived by Curtin and is
not an issue before us.7

Ultimately, the majority’s reasons for distinguishing Allen
are inadequate, especially when viewed in the light of the “lit-
erary” evidence approved in Skillman on which Allen relied.
The evidence in Skillman included a “poem containing racial
epithets” on the back of a business card in Skillman’s pocket.
We did not segregate out of our holding in Allen, the Nazi lit-
erature in his possession. Although literature per se has no
special protection in this context as evidence — under the
7
The majority’s implication that possession of Nazi and white suprem-
acy skinhead literature is not “extremely prejudicial” is hard to compre-
hend as the movement is directly associated with one of the most well-
known tragedies of humankind.
3714 UNITED STATES v. CURTIN
First Amendment or otherwise — my colleagues have effec-
tively made relevant literature categorically off-limits as a
source of evidence as to a person’s subjective intent.

One way to test the relevancy of Curtin’s recent PDA
downloads (and to illustrate the difference between the setting
here and the circumstances in Shymanovitz) is to envision
what we would certainly hold if Curtin’s PDA stories8 were
of role playing daddy/daughter incest with female adults —
not minors — and the district court had excluded the stories
as “irrelevant.” Curtin would have attempted to admit the sto-
ries into evidence to demonstrate that he intended to meet an
adult. Without a doubt, a convicted Curtin would assert on
appeal that the content of the stories shed light on his subjec-
tive intent and — as counsel put it to the jurors — his
“thoughts” as he communicated with “christy13,” and as he
traveled interstate with the stories in his pocket to meet her;
and there is no doubt that we would agree. Why? Because the
stories would have a “tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” Fed. R. Evid. 401. Such stories would corroborate
his claim of adult incest fantasy. How else could he do that
without evidence of “other acts,” as they are called? Con-
versely, the absence of such adult stories coupled with the
presence of stories wherein children are the objects of the sex-
ual appetites of adults is equally relevant to prove the govern-
ment’s case and to confront Curtin’s defense. Relevancy boils
down to what our human experiences tell us, sometimes cal-
led common sense.

As explained in “McCormick on Evidence,” Third Edition,
Hornbook Series, Lawyers Edition,
8
Or, maybe the testimony of a woman with whom he had played daddy/
daughter.
 UNITED STATES v. CURTIN 3715
[H]ow can a judge know whether the evidence could
reasonably affect an assessment of the probability of
the fact to be inferred? In some instances, scientific
research may show that the fact in issue is more
likely to be true (or false) when such evidence is
present than when it is not. Ordinarily, however, the
answer must lie in the judge’s own experience, [the
judge’s] general knowledge, and [the judge’s]
understanding of human conduct and motivation.

Id., § 184 (emphasis added).

In Internet “sting” cases such as this involving claims of
entrapment, the issue of what a defendant’s state of mind was
immediately prior to his contact with a sexual target purport-
ing to be a minor is routinely a serious point of contention.
We call the issue one of “predisposition,” and it is primarily
a question of fact. In United States v. Poehlman, 217 F.3d 692
(9th Cir. 2000), for example, Poehlman, a cross-dresser, was
charged with willingly crossing state lines to have sex with
minors, but it appeared that when first contacted by the gov-
ernment, he was looking for adults with whom to engage in
his “proclivities,” not children. However, the undercover offi-
cer with whom he was corresponding deftly turned Poehl-
man’s prurient interest to children, and he responded
accordingly. In court, charged with a violation of 18 U.S.C.
Section 2423(b), Poehlman relied on his initial interest in
adults to demonstrate a lack of predisposition to involve
minors in his sexual plans, arguing that the government took
advantage of that lawful interest and unlawfully used it to
steer him to children. In concluding that he had indeed been
entrapped, we said, “The government thus played on Poehl-
man’s obvious need for an adult relationship, for acceptance
of his sexual proclivities and for a family, to draw him even
deeper into a sexual fantasy world involving these imaginary
girls.” Id. at 702.

To what evidence did we look to verify a factually fatal
lack of predisposition on Poehlman’s part to target minors?
3716 UNITED STATES v. CURTIN
The same kind of material we now place “off limits” as a mat-
ter of law:

By analogy, the fact that Poehlman willingly crossed
state lines to have sex with minors after his pro-
longed and steamy correspondence with Sharon can-
not, alone, support a finding of predisposition. It is
possible, after all, that it was the government’s
inducement that brought Poehlman to the point
where he became willing to break the law. As in
Jacobson, we must consider what evidence there is
as to Poehlman’s state of mind prior to his contact
with Sharon.

On this score, the record is sparse indeed; it is easier
to say what the record does not confirm than what
it does. The government produced no e-mails or chat
room postings where Poehlman expressed an interest
in sex with children, or even the view that sex with
children should be legalized. Nor did the government
produce any notes, tapes, magazines, photographs,
letters or similar items which disclosed an interest in
sex with children, despite a thorough search of Poe-
hlman’s home. There was no testimony from the
playmates of Poehlman’s children, his ex-wife or
anyone else indicating that Poehlman had behaved
inappropriately toward children or otherwise mani-
fested a sexual interest in them.

United States v. Poehlman, 217 F.3d at 703-704 (emphasis
added).

Thus, the absence in context, and by implication the pres-
ence of child-oriented materials becomes acutely relevant to
a defendant’s material state of mind “prior to his contact”
with the object of his sexual attention, and, as Poehlman
reveals, such evidence is not only admissible, but critical. The
 UNITED STATES v. CURTIN 3717
now-confused dissonance in the law of our circuit on this
issue is regrettable, to say the least.

The circumstances here are analogous to those confronted
by the Tenth Circuit in two cases, United States v. Viefhaus,
168 F.3d 392 (10th Cir. 1999) (per curiam); and United States
v. Magleby, 241 F.3d 1306 (10th Cir. 2001). Viefhaus had
been charged with the use of a telephone to transmit a bomb
threat. To illustrate (as required by the Supreme Court in
Watts v. United States, 394 U.S. 705 (1969)) that the threat
made by Viefhaus was a “true threat” and not just “political
hyperbole,” the court admitted “literature espousing hate and
violence” and “Nazi propaganda” found in his home. Id. at
394-395. In turning away Viefhaus’s challenge to this evi-
dence, the court said, citing United States v. Cox, 957 F.2d
267 (6th Cir. 1992),

When the defendant offers lack of intent as a
defense, even though the government does not have
to prove subjective intent as an element of the
offense, the circumstances surrounding the making
of the calls becomes relevant. The evidence offered
clearly was probative of defendant’s state of mind
and tends to counter his allegation of benign pur-
pose.

...

The only way a jury could properly assess the sin-
cerity of Viefhaus’ beliefs, as well as the likely
effect Viefhaus’ message would have on an objec-
tive listener, was to examine the circumstances in
which the comments were made. Although admis-
sion of this evidence was harmful to Viefhaus, its
probative value outweighed any prejudicial effect.

Viefhaus, 168 F.3d at 397 (sustaining conviction under 18
U.S.C. § 875(c)) (internal citations omitted).
3718 UNITED STATES v. CURTIN
In Magleby the defendant was charged with burning a cross
on the property of an interracial family. Recognizing that
“[d]irect evidence of the defendant’s intent is seldom avail-
able,” and that “[i]ntent can be proven from surrounding cir-
cumstances,” 241 F.3d at 1321, the Tenth Circuit affirmed the
admission in evidence of vile racist song lyrics frequently
sung on occasion by the defendant, which referred repeatedly
to African-Americans as “niggers.” The court said,

We now turn to Mr. Magleby’s argument that the
lyrics are irrelevant and unfairly prejudicial.
Although the admission of the lyrics to the Screw-
driver song was certainly harmful to Mr. Magleby’s
case, we conclude that its probative value out-
weighed its prejudicial effect. This evidence is pro-
bative both of Mr. Magleby’s racial animus under 42
U.S.C. § 3631(a) and of his intent under 18 U.S.C.
§ 241.

In United States v. Viefhaus, 168 F.3d 392 (10th
Cir. 1999), we held that the context in which an
alleged threat is made is probative of whether a “true
threat” exists. Id. at 398. In Viefhaus, the defendant
was convicted of making threats against, interalia,
African-Americans, Jews, and federal law enforce-
ment on an answering machine “hotline.” The defen-
dant asserted as a defense that he lacked the intent
requisite to make a true threat. We upheld the
admission of racially inflammatory items as relevant
to the defendant’s intent.

...

As did the defendant in Viefhaus, Mr. Magleby
denies having the requisite intent under 42 U.S.C.
§ 3631(a) and 18 U.S.C. § 241. The lyrics to the
Screwdriver song, as well as the evidence that Mr.
Magleby knew the lyrics and could sing along with
 UNITED STATES v. CURTIN 3719
them, are probative of his intent under these sections.
First, § 3631(a) requires that the government prove
beyond a reasonable doubt that Mr. Magleby tar-
geted the Henrys because of their race. The lyrics
and Mr. Magleby’s familiarity with them are proba-
tive of his racial animus in burning the cross. Sec-
ond, under § 241, the government must prove
beyond a reasonable doubt that Mr. Magleby had the
specific intent to “oppress, threaten or intimidate”
the Henrys in the enjoyment of their federally pro-
tected right to occupy property. Context is important
in determining whether a true threat has been made.

...

The necessity of demonstrating the context in
which the cross was burned renders the Screwdriver
lyrics and other evidence of hostility toward the
presence of African-Americans in this country intrin-
sic to a violation of § 241. And, as in Viefhaus, the
only way the jury could properly determine the mes-
sage conveyed by Mr. Magleby’s cross-burning and
the foreseeable effect it would have on the Henrys
was to examine the circumstances in which the
cross-burning was conceived, planned, and executed.
We fine that the district court did not abuse its dis-
cretion in admitting the song lyrics into evidence.

Id. at 1319 (emphasis added). I note that part of the evidence
used to show Magleby’s subjective intent was the circum-
stance that he had watched a movie, “Mississippi Burning,”
prior to the cross-burning. Id. at 1313.

Indeed, in similar contexts we have routinely held that cir-
cumstances surrounding an alleged crime become more rele-
vant when the defendant makes his intent a disputed issue.
Take the case of Larry McCollum. McCollum claimed that
although he entered a bank and gave an employee a note
3720 UNITED STATES v. CURTIN
demanding $100,000 he had “no criminal intent” to commit
robbery because he was acting involuntarily under the influ-
ence of hypnosis. The district court admitted a prior convic-
tion for armed robbery to counter his defense of a lack of
intent. We affirmed, holding as follows:

In this case, . . . the defense conceded that McCol-
lum performed all acts charged by the prosecution.
The key issue, indeed the only disputed issue, was
whether McCollum acted with intent to rob the bank.
Where the mental state to be inferred from undis-
puted overt acts of a defendant is the crucial issue,
evidence of past criminal acts has generally been
found insufficiently prejudicial to warrant exclusion.

United States v. McCollum, 732 F.2d 1419, 1425 (9th Cir.
1984) (emphasis added); United States v. Verduzco, 373 F.3d
1022 (9th Cir. 2004) (quoting McCollum and affirming the
use of evidence of other similar criminal acts to counter an
affirmative defense of duress).

With the utmost respect to my colleagues, they seem
moved to brush McCollum aside by their assumption that the
incest materials on Curtin’s PDA were “otherwise lawful
reading material.” This premise is doubtful at best. Obscenity,
which is described as a work which appeals to the prurient
interest and which describes sexual conduct in a patently
offensive way, and which when judged by contemporary
community standards lacks serious literacy, artistic, political,
or scientific value, is not protected by the First Amendment.
Miller v. California, 413 U.S. 15, 24-25 (1973). I will leave
it to the reader to decide whether “Love for the World” and
“Restrictions” are otherwise lawful reading material. How-
ever, even if they were to be seen as lawful, this fact in no
way renders them outside the scope of Rule 404(b). Rule
404(b) on its face covers “other crimes, wrongs, or acts.” All
relevant extrinsic acts are presumptively admissible, subject
to Rule 403. The act of possession of reading material falls
 UNITED STATES v. CURTIN 3721
within this Rule, whether lawful or not — so long as the act
of possession is relevant.

Bottom line? McCollum is apposite.

The precedents discussing the use of other evidence to
establish criminal intent where intent is denied are literally
endless. In United States v. Brunson, 657 F.2d 110, 115 (7th
Cir. 1981), our sister circuit said,

The remainder of appellant’s contentions are equally
unpersuasive. Appellant complains that the trial
judge erred in admitting the Government’s evidence
of appellant’s prior allegedly criminal conduct relat-
ing to counterfeiting after appellant had admitted
that conduct on the stand. The evidence, as stated
previously, was offered and admitted in rebuttal to
appellant’s main defense that he did not intend to use
the counterfeit money to defraud anyone. The admis-
sion for such purposes was clearly proper both
because intent was a necessary element of the crime
and because of appellant’s chosen defense.
Fed.R.Evid. 404(b); United States v. Weidman, 572
F.2d 1199, 1202 (7th Cir. 1978), cert. denied, 439
U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113; United States
v. Semak, 536 F.2d 1142, 1145 (6th Cir. 1976);
United States v. Onori, 535 F.2d 938, 943 (5th Cir.
1976).

(Emphasis added).

As was said in the English case of Regina v. Gill, (1963)
1 W.L.R. 841, 846 (Crim. App.):

The accused, either by the cross-examination of the
prosecution witnesses or by evidence called on his
behalf, or by a combination of the two, must place
before the court such material as makes duress a live
3722 UNITED STATES v. CURTIN
issue fit and proper to be left to the jury. But, once
he has succeeded in doing this, it is then for the
Crown to destroy that defence in such a manner as
to leave in the jury’s minds no reasonable doubt that
the accused cannot be absolved on the grounds of the
alleged compulsion.

(quoted in United States v. Hearst, 563 F.2d 1331, 1336 n.2
(9th Cir. 1977)).
UNITED STATES v. CURTIN 3723
Volume 2 of 2
3724 UNITED STATES v. CURTIN
V

My colleagues have concluded that the district court
“abused” its discretion in admitting this evidence. Far from it.
In fact, the district court’s conduct is a model of appropriate
judicial decision making, as a close reading of the record
reveals.

Because my colleagues’ conclusion that the district court
abused its discretion is inconsistent with the record, I repro-
duce relevant parts of it in (excruciating) detail. The record
speaks for itself better than characterization and adjectives. In
summary, what we see is a court taking great care to follow
the law and to protect the rights of the defendant. The court:

(1) considered Shymanovitz and Allen,

(2) accepted our legal guidance in Allen, and deter-
mined that Shymanovitz was distinguishable,

(3) required that the five stories admitted be factu-
ally similar to the facts of the defendants
approach to and enticement of “christy13,”
consistent with relevant case law interpreting
Rule 404(b).

(4) blocked the government from introducing
approximately 135 stories, because they were
redundant, inflammatory, and unduly prejudi-
cial,

(5) acceded to the defense’s request not to high-
light particularly damaging parts of the stories,

(6) ruled after careful consideration — and as
required by Fed. R. Evid. 403 — that the pro-
bative value of these stories was not under-
 UNITED STATES v. CURTIN 3725
mined by their potentially unduly prejudicial
effect, and

(7) gave multiple cautionary instructions to the
jury as required by Fed. R. Evid. 105 as to what
the stories were admissible to prove, including
what purposes for which the jury could not
consider them.

I elaborate.

To begin with, the district court was acutely aware of the
Shymanovitz case. Long before the trial, the defense brought
it to the court’s attention in a “motion in limine to exclude,”
a motion that was not successful. [C.R. 22] The government
responded in writing on July 8, 2003:

Defendant relies on Guam v. Shymanovitz for the
contention that “mere possession of fictional reading
material that describes a particular type of activity
[would] not make it more or less likely that a defen-
dant would intentionally engage in the conduct
described.” Defense Motion in Limine, p.4, lines 25-
27 (June 30, 2004). However, Shymanovitz can be
distinguished from the present case based on the
Ninth Circuit’s statutory interpretation and the dif-
ferences between the relevant statute in Shymanovitz
and the statutes the Defendant is accused of violat-
ing. [C.R. 34].

To demonstrate the asserted distinction, the government
relied on Allen:

[T]he Ninth Circuit has expanded further that
“[key]” to our reasoning [in Shymanovitz] was the
fact that the testimony was not relevant to proving
any of the elements of the crime for which the defen-
dant was convicted.” United States v. Allen, 341 F.3d
3726 UNITED STATES v. CURTIN
870, 887, n.25 (9th Cir. 2003). . . . By the above rea-
soning of the Ninth Circuit, this court clearly may
admit literature in the possession of the defendant for
the purpose of proving an element of the crime. It
can only be presumed that the more fundamental the
element is to the crime charged, the more the balance
weighs in favor of admission because [Fed. R. Evid.]
404(b) is a “rule of inclusion.” United States v.
Ayers, 924 F.2d 1468, 1472 (9th Cir. 1992). [C.R.
34]

Next, we go to Day Two of the trial. After testimony on
Day One from the detective who corresponded as “christy13”
with the defendant and who questioned him after his arrest,
the government called as a witness a computer expert who
worked for the FBI and who had recovered the disputed sto-
ries from Curtin’s PDA. When the government then attempted
to offer the entirety of one of these stories in evidence, the
district court intervened, and the following occurred outside
the presence of the jury:

MS. KOPPE: That [story] came off of the Defen-
dant’s PDA?

WITNESS: Yes, off the — this is another one of the
144 stories that were — were in that Documents to
Go

...

MS. KOPPE: What is the title of that story, if you
could look on the second page?

WITNESS: Melanie’s Busy Day (phonetic).

MS. KOPPE: Your Honor, we would move to admit
that story for modus operandi, intent, preparation,
and knowledge.
 UNITED STATES v. CURTIN 3727
MR. POTTER [counsel for the defendant]: Your
Honor, I would object and I would renew the same
motion [to exclude the stories] that — we’re talking
about —

THE COURT: I do have a problem. I’m about ready
to grant the objection, Counsel. If you’d come over
to the sidebar just a moment.

(Sidebar at 03:26:24 p.m.)

THE COURT: I had understood [from pretrial dis-
cussions] what you were going to do is, in order to
facilitate the foundation, was to introduce particular
parts.

I have no problem with your asking him generally
what is the story about, is it a story about sex
between an adult and a minor.

I had thought you were going to ask specific ques-
tions about specific parts of it that tended to show,
assuming that the debtor (sic) read it, and intent that
would correspond to your alleged intent for him or
his modus operandi, his knowledge.

That’s what I thought you were going to do.

MS. KOPPE: That —

THE COURT: Because, otherwise, if all you’re
doing is offering these generally and you’re just stat-
ing the purpose, we don’t have sufficient foundation.

MS. KOPPE: Well, your Honor, that is what we’re
going to do. The problem is we need to get them
through this witness because he’s the one who did
the examination of the PDA.
3728 UNITED STATES v. CURTIN
We’re going to use another witness to testify to them
because he scanned them and someone else —

THE COURT: All right. Then all you need to ask
this witness is, are they on the PDA, and what
you’ve already asked, do they have to be opened,
unzipped —

MS. KOPPE: Right.

THE COURT: — before they’re transferred.

MS. KOPPE: But I was just admitting them through
him because he’s the one who found them. That’s —

THE COURT: Well, then I have a problem because
you have not done sufficient foundation. I think
you’ve done enough with this witness (indiscernible)
to tie it into intent and knowledge, method, prepara-
tion.

You need to have a witness on the stand who you go
through with, here is the section that relates to intent;
here’s something that shows common language with
the e-mails; here’s something that shows method
that’s actually present —

MS. KOPPE: Right.

THE COURT: — allegedly in this case. That’s
required for the foundation.

I think it would only be appropriate then to admit the
document. I mean, you can admit it before, subject
to showing that foundation and then proceed to —

MS. KOPPE: Okay.
 UNITED STATES v. CURTIN 3729
THE COURT: — point out those particular areas.

MS. KOPPE: I can move for the conditional admis-
sion of them once he identifies them, if that’s —

THE COURT: Subject to further foundation.

MS. STANISH [counsel for the government]: And to
expedite it, perhaps just introduce them as a bulk
exhibit. These all came off the PDA (indiscernible)
—

MS. KOPPE: Establishing —

THE COURT: Subject to establishing the foundation
that I require.

MS. KOPPE: Right.

MR. POTTER: Well, my gut is the exhibit coming
in, it’s — he’s testifying as to what his belief is.

The entire exhibit doesn’t need to come in because
the very exhibit doesn’t show what we talked about.
These stories are not even dealing with the same act.

I mean, these are prepubescent-type stories, at least
some of them are.

THE COURT: Yeah.

MR. POTTER: And that’s completely (indiscernible)
—

THE COURT: I think I’d have to overrule that if,
and only if, you can show — for example, if you
show here’s common language to what he used in
his e-mail.
3730 UNITED STATES v. CURTIN
Or if you can show, for example, that here is com-
mon method. This is — here’s a story that describes
how you cultivate, and that’s just exactly how he did
it here.

Then you’ve established the foundation, in which
case I think it’s appropriate, subject to the limiting
instruction, to have the story admitted.

MR. POTTER: The only thing I would point out is
that in, like, sexual assault cases where — or, sexual
abuse type cases, when they bring in the prior bad
acts — and what the courts have looked at is the
same type of abuse and the same kind of factors, if
it’s age or if it’s —

THE COURT: Right.

MR. POTTER: — convenience, meaning opportu-
nity. We don’t have that here. (Indiscernible). These
stories are completely different, your Honor.

THE COURT: They are. And, of course, either on
voir dire or out of the presence of the jury you can
point that out and I can rule.

In spite of what’s read outside the presence of the
jury, there’s insufficient foundation for that particu-
lar story, you point that out [sic] them.

MS. KOPPE: Well, your Honor, Counsel, first of all,
argued in his opening that this is all about fantasy
and these are all about the defendant’s fantasies.

THE COURT: I understand. I understand.

MS. KOPPE: And this shows what his fantasies are
and this shows his intent. Counsel argued he never
had the intent to have sex with a child.
 UNITED STATES v. CURTIN 3731
This goes to show that he has intent. They show —
certain [sic] of the stories show other things as well.
But —

THE COURT: I’m inclined to agree with you that
one or a few or a general testimony about, generally,
that they’re — we don’t know this yet, but generally
there are a hundred-and-some-odd stories and they
all deal with — none of them deal with sex between
two adults.

MS. KOPPE: Right. I was getting into that actually.

THE COURT: They all deal with — I have no prob-
lem with your asking that kind of — this isn’t the
right witness to ask it.

MS. STANISH: Your Honor, may I make a sugges-
tion that hopefully can expedite and clarify this with-
out posing a problem for the jury?

The documents were located on the PDA obviously
in his possession. The documents speak for them-
selves.

It seems to me, your Honor, that perhaps a way to
resolve this is to have a preliminary determination by
your Honor with respect to each of these documents.

That would be a preliminary legal determination as
to whether your Honor is satisfied that the contents
satisfies the 404(b).

THE COURT: I don’t care whether you do it out —
I would just assume that you would do it outside the
presence of the jury. That’s fine. Or you can do it in
the presence of the jury, but, again, you must tie
each one in.
3732 UNITED STATES v. CURTIN
I’m going to let you ask, generally, the question even
without admitting them, do all of these stories relate
to sex between an adult and a minor. I’ll let you ask
that question.

But if you want the story in, you must ask with
respect to that story, regarding those particular
parts that deal with intent, method —

MS. STANISH: Well, your Honor, can I suggest this
then? It’s my understanding — and I’ve read these
stories — each story involves sex with a minor.

THE COURT: You can ask that question.

MS. STANISH: And that being said, your Honor,
each — then each story is, in fact, offered for the
purpose of establishing intent.

THE COURT: No, then I think the objective is good.
It’s prejudicial. It goes — I mean, let’s say on his
PDA he has 100 and over on his general computer
he has 500 stories that just deal with sex between
adults.

Or let’s say there are other stories there that deal
with fantasizing sex between two adults, one of them
role-playing a minor. You could just as well take the
inference he just likes to read sex stories, that’s all.

It’s only because you can tie it into a particular
intent, otherwise I’m not going to let him read the
story. It’s prejudicial. It’s inflammatory.

MS. STANISH: Well, I understand what you’re say-
ing. That would be more of a 404(3) [sic] ruling, as
I understand it, as to prejudice.
 UNITED STATES v. CURTIN 3733
But just so I’m clear and that we know what direc-
tion to go, your Honor, the intent that’s involved in
this particular offense is to establish, of course, that
he crossed the state lines in order to have intent [sic]
with a minor.

THE COURT: I understand clearly, and I think I’ve
given you my ruling.

If what you’re doing is just saying here’s some PDA
stories and it shows that they were between adult
and minors, that to admit them, the whole bulk of
them, the prejudice outweighs the relevant portion;
that is, it relates to his intent.

But if you want to ask, generally, before they’re
admitted, do they all pertain to that kind of sex
(indiscernible) question.

And if you want to admit any one of them particu-
larly so that the jury has the right to read the entire
darned story, you’ve got to tie it in, portions of it, to
the particular four objectives you’ve told me it’s
offered for. Okay?

MS. STANISH: Okay.

THE COURT: And you can either do that with this
witness or a subsequent, to reach those particular
portions that tie it in first before I admit the entire
story.

MS. STANISH: And do you have a preference, your
Honor, whether we do this in front of the jury or —

THE COURT: It’s okay with me. In other words,
maybe you haven’t done the homework yet to even
do that. You just wanted them in, generally.
3734 UNITED STATES v. CURTIN
MS. KOPPE: No, we have looked through them and,
you know, we picked the 21 stories —

THE COURT: Right.

MS. KOPPE: — that were —

THE COURT: Hopefully because they related to one
of those four objectives.

MS. STANISH: Right. And intent is, of course, at
least in my view, the predominant purpose for which
these are admissible. And I think I understand your
Honor now to say that these do, in fact, relate to
intent.

Your bigger concern is one of prejudice; that we’re
not bringing in the 156, but we can bring in a sam-
pling of the stories that just deal with the intent
issue.

THE COURT: So what you’re telling me is there
isn’t anything in these stories that relate to method
or any common language to (indiscernible) —

MS. STANISH: No, I’m not saying that. I’m saying
all of them do have in common the intent issue.

And honestly, Ms. Koppe prepared this part of the
case more than I did. They all, though, deal with
intent. Others have other purposes for which they
could be offered.

I’m just trying to come up with a solution —

THE COURT: Well, then you can ask the witness
with respect to this story. Hopefully it’s got some-
 UNITED STATES v. CURTIN 3735
thing else to do with knowledge; here’s how you cul-
tivate a young person, or method.

MS. KOPPE: Or knowledge (indiscernible).

THE COURT: But assuming it doesn’t and all
you’re offering it for is intent, you’ll tell me that. But
hopefully you’ll have a witness that says this talks
about sex with a minor.

You’ll also tell me that there is a witness that will
tell us that’s what all these stories relate to, including
the ones we’re not admitting here. So that otherwise
(indiscernible) the same time, having the stuff, read-
ing the stuff.

MS. STANISH: I agree, your Honor.

THE COURT: So —

MS. STANISH: But 404(b), of course, doesn’t
require that.

Another solution I might suggest, just to make this
go smooth, really, is I’ve seen cases, for instance,
where there’s possession or a number of photographs
of defendant’s genitalia, for instance.

And we’re allowed to bring it in because it does
relate to the issue of eliciting and inducing the
minor.

THE COURT: Right.

MS. STANISH: But because there’s so many — the
404(3) [sic] concerns —

THE COURT: You do a couple.
3736 UNITED STATES v. CURTIN
MS. STANISH: — then we just put in a few. Would
your Honor be satisfied if we put in just a fewer
number? I understand we could —

THE COURT: No, I didn’t even discuss that.

MS. STANISH: Okay. I wasn’t sure —

THE COURT: I have a problem with all of them.

MS. STANISH: I was trying to — pardon me?

THE COURT: I don’t have a problem with all of
them as long as you do what I ask you to do.

Ms. STANISH: Yes, sir. All right.

...

MS. STANISH: After consulting with Mr. Potter, I
think the parties agree that this would be best done
as a preliminary legal determination as to each one.
We don’t want to taint the jury at this point.

...

THE COURT: Thank you.

(Jury out at 03:43:13 p.m.)

...

THE WITNESS: These — these — these exhibits
are —

THE COURT: You can leave those there and you
retrieve your notes.
 UNITED STATES v. CURTIN 3737
...

THE COURT: Thank you. Now, for the record,
we’re going to take up with respect to each of these
stories.

If you’ve marked sections that relate to any one of
those four objectives for which you’re offering it,
outside the presence of the jury, as foundation for its
proffer.

MS. KOPPE: Your Honor, we would state, initially,
that each story does show intent to engage in sex
with children.

THE COURT: Because, generally, it’s a story of sex
between an adult and child.

MS. KOPPE: That’s correct, your Honor.

THE COURT: Okay. You’ll tell me if any one of
them do [sic] not involve actual description of sex
but, rather, is simply method, for example, of culti-
vating a child rather than actual description of sex
between adult and child.

MS. KOPPE: Your Honor, the story that was already
admitted and testified about, My Little Sister, con-
tains language about a nine year old engaging in sex
and about the sex hurting at first but the nine —

THE COURT: With a brother, correct?

MS. KOPPE: I’m sorry?

THE COURT: Just be a little more complete with
me, please. Sex between a nine-year-old girl and her
brother.
3738 UNITED STATES v. CURTIN
MS. KOPPE: Yes.

...

THE COURT: Go ahead. I’m sorry. The fact that it
did not hurt.

MS. KOPPE: The fact that it hurt at first. She was
told that it will stop hurting and that it will feel a lot
better. And that she then says it’s okay, it’s starting
to feel good.

That’s similar to language the defendant used when
he told Christy that the sex would — he would take
it slowly and that it would feel really good.

The next story, which is Love For The World —

MR. POTTER: Your Honor, are we going to go
through them one at a time or —

THE COURT: We’re going to go through them one
at a time.

It might be helpful, too, if you had just told us on
which page — if you have marked — I’m assuming
we have the same format even though — well, they
do have page numbers, even though they don’t occur
between the pages — there between the various
items.

Did you intend to have us — to relate to us which
items — for example, are you going to have a wit-
ness read particular parts, leaving the entire exhibit
for the jury?

MS. KOPPE: I think that they do have other things
in them.
 UNITED STATES v. CURTIN 3739
...

THE COURT: Just go ahead and tell us which parts
you have marked that relay the particular content
that you’ve told us about.

MS. KOPPE: I could have a witness read them. But
the content that I was speaking about started at the
bottom of the page that’s marked 4. It’s marked 4
towards the top, and it goes through the part that’s
marked 5. The story I don’t see what —

THE COURT: So, page 4. Uh-huh. Okay. I’ve
marked that on my copy.

That way Mr. Potter, over the evening, of course,
can review them to see if, in fact, they support the
foundational purpose for which you’re offering it.

MS. KOPPE: Your Honor, if we can come back to
the second story. I’m going to need to look through
that myself.

THE COURT: Okay.

MS. STANISH: (Indiscernible) expedite it.

MS. KOPPE: Your Honor, Ms. Stanish has just sug-
gested, this would probably expedite it, if first thing
in the morning we provide both your Honor and
defense counsel with the highlighted portions of
these stories.

THE COURT: You don’t have that here?

MS. KOPPE: I do have highlighted portions, but I
don’t have copies that are highlighted for both your
Honor and for counsel.
3740 UNITED STATES v. CURTIN
...

THE COURT: Is that sufficient, Mr. Potter, or do
you need a little time to look at them?

MR. POTTER: I probably need to look at them, but
I don’t know if —

MS. KOPPE: I can keep going through it.

MR. POTTER: Do you have a public copier, by
chance?

THE COURT: We do have a copy machine, of
course. The problem is whether or not the highlight-
ing would show through on a copy, I suppose. What
color is the highlighting?

MS. KOPPE: Blue.

THE COURT: Blue. Would that show up on a cop-
ier? It does. Then, of course, we can take them and
provide you a xerox copy of each of these over the
evening recess.

MS. KOPPE: That’s fine. Either way.

MR. POTTER: All right.

...

THE COURT: — and just as you’ve been doing,
identify the purpose and, with respect to foundation,
without telling us particular paragraphs, which you
will give us by way of the copy we’ll provide
tonight.

MS. KOPPE: Okay.
 UNITED STATES v. CURTIN 3741
THE COURT: If you’ll just tell me the foundational
purpose and what general parts of the story, just as
you did with the first story; that is, did not hurt, felt
good, et cetera.

MS. KOPPE: Okay. Your Honor, skipping the sec-
ond story for the moment, the story Melanie’s Busy
Day —

THE COURT: Uh-huh.

MS. KOPPE: — there’s language concerning a child
masturbating, as the defendant wanted this child to
masturbate.

There’s also language of the adult — it’s actually her
father — telling her how pretty she is. There’s also
language that both of her parents perform oral sex on
her, and the defendant talks about performing oral
sex on her. And —

THE COURT: And, again, this is the general intent
you talked about before.

MS. KOPPE: This is general intent as well as modus
operandi and preparation —

THE COURT: Okay.

MS. KOPPE: — and knowledge. And I can give you
where those parts are.

THE COURT: You’ll give it to us in the form of the
copy we’re going to provide.

MS. KOPPE: Okay.

THE COURT: They’re marked, I assume.
3742 UNITED STATES v. CURTIN
MS. KOPPE: In that same story, your Honor, the lit-
tle girl is also given oral sex by her grandfather and
the grandfather also talks about how pretty she is.

Going to the next story, which is called Missing Big
Brother.

THE COURT: Again, I’m going to assume general
intent on each of these unless you tell me otherwise.

MS. KOPPE: That’s right. This story talks about —

MR. POTTER: Which one is this one now?

MS. KOPPE: This is Missing Big Brother. The big
brother engaging in — big brother is 18, it looks
like, and the girl is 14.

It talks about the girl not wearing any panties under-
neath her skirt. It’s one of the things the defendant
talked about.

It talked about how when he had sex with her, he
didn’t want to hurt her during sex and he wanted her
to like it so much she would be continuously coming
back to him. The defendant talked about how he
would make it feel good for this little girl.

And that we offer also for intent, but as well for
modus operandi, preparation, and knowledge.

The next story is I’m Being Molested, and it also
talks about sex for children not hurting and how can
it be called abuse when it felt good and they were
asking for it after it happened, the girls, and it
involved sex with their father.

It also says that, did it hurt? I suppose a little but
then it felt good. And it talks more about you may
 UNITED STATES v. CURTIN 3743
call it molestation, you can call it abuse, we don’t
think about it that way in this family.

This story, The Good Girl, which is the next story,
is where the defendant — excuse me, the defendant
in his chat talked about how he was willing to be
patient and wait until Christy was ready to have sex
with him.

This person talks about the same thing to the girl. I
believe she’s 14 at the time. And talks about fooling
around without having sex, which the defendant also
discussed.

It goes toward modus operandi, intent, preparation,
and knowledge.

The next story should be Pregnant No. 2 (phonetic).
This story contains language similar to that used by
the defendant in chats concerning oral sex.

It also talks about how the defendant was talking
about how being naked is more comfortable than
being clothed.

In this story, the girl talks about how her clothing
drivers [sic] her crazy. It’s too abrasive. And it
talked about oral sex as well.

And goes toward modus operandi, intent, prepara-
tion, and knowledge.

The story, A Relative Language — excuse me, A
Relative Interest, has language concerning — the
defendant had spoken to Christy about imagining his
tongue sliding along inside of her.

This has language similar to that regarding oral sex,
and it’s clearly with a child as well.
3744 UNITED STATES v. CURTIN
It goes towards intent, modus operandi, preparation,
and knowledge.

The story, Restrictions, has the father telling his
daughter, who is a child, that she’s sexy, that she
should wear barely any clothes, that she should walk
around naked, that she’s cute, sexy again, and talks
about — it shows a way of seducing — it’s a meth-
odology of seducing a child, basically.

There are several descriptions of the father getting
his daughter to engage in sex with him, basically, bit
by bit.

It goes towards intent, modus operandi, preparation,
and knowledge.

The next story is A Matter Of Taste, and that story
talks about — it has a description of giving male oral
sex and wanting the minor to feel good during oral
sex. I believe the girl is 12 in this story.

Starting on page 12 where she’s talking about giving
oral sex to her father and that she does it better than
anyone else. And the defendant said in his chats that
he would teach Christy how to do that. It also talks
— well, it talks more about that.

And that goes towards modus operandi, intent, prep-
aration, and knowledge.

This story, Teaching The Kids, has a lesson on how
to introduce children into sex. It’s parents talking to
their children.

It looks like there are three sons and two daughters.
The oldest son is 15, the youngest is 11. And the two
 UNITED STATES v. CURTIN 3745
girls are young. I don’t see their age in the front page
but it will be in here.

The parents decide it’s time for the kids to learn
about sex, and there’s a methodology of how they
seduce the children into engaging in sex.

It goes to intent, knowledge, modus operandi. It also
talks about oral sex, which the defendant talked
about in his chats.

The next story is called Mommy Juice (phonetic).
And that story has a conversation with a mother
teaching her children about sex and telling them that
it will feel good before she has them engage in it.
There’s a part where it says, basically, that sex feels
good to adolescent girls.

It goes towards modus operandi, intent. And it also
has one of the girls, afterwards, telling her dad that
it feels good. It goes towards modus operandi, intent,
knowledge, and preparation.

The story My Sister And I has language about oral
sex, engaging in oral sex with a minor and trying to
please her. The defendant talked about how he
would have Christy orgasm numerous times, and this
story talks about that as well.

It goes towards preparation, knowledge, intent,
modus operandi.

There’s a fairly long description of performing oral
sex on the minor. And then there’s a part where the
minor says if it hurts, you have to stop, and he prom-
ises to do so.

...
3746 UNITED STATES v. CURTIN
MS. KOPPE: The story Now Kids (phonetic), con-
tains statements that sex is fun for everyone, espe-
cially young girls.

The father tells her, it feels real good, doesn’t it? The
girl then has sex with her older brother and tells him
it felt really good; all language that the defendant
said he would do with Christy.

That goes also towards knowledge, intent, modus
operandi, motive.

The story Getting Out Of Hand also contains state-
ments about sex being fun for young girls and feel-
ing good. And that goes towards knowledge, intent.

The next story is — that story also talks about oral
sex, which the defendant also talked about.

The story Peeping In On My Daughter has a 14 year
old stating that she’s not too young to engage in sex-
ual intercourse.

It contains a statement that sex is fun for young girls
and also how sex feels good and teaching her how to
give oral sex to a man. And it looks like it’s her
grandfather having sex with her. It goes to intent,
motive, and knowledge.

The story Horny Nieces has a discussion between
ten-year-old girls and their father concerning
whether the — will engage with their uncle who is
coming to visit.

The father tells the girls that they should be careful
when talking about it because some people think sex
with children is wrong and their uncle may be one of
 UNITED STATES v. CURTIN 3747
them. The story also contains the idea that the young
girls enjoy sex and that it feels good to them.

This certainly shows knowledge that this is a crime
and it’s illegal and that there are people who believe
that, and it shows motive and intent as well.

The story Heck Of A Job (phonetic) is a story about
a guy who meets twins who are seven or eight years
old. They never say for sure exactly how old they
are, but they’re young; seven or eight.

And he goes to their house and engages in — well,
first it’s a store and then at their house, engages in
steps in order to — basically it’s a methodology of
seducing them into engaging in sex with him.

And it shows knowledge and intent, modus operandi
and preparation. It also talks about oral sex on a
female that’s similar to the discussions the defendant
had in the chats.

The story, Consent, contains a discussion of consent
versus rape concerning young girls having sex. And
the — contains the basic idea that even though the
girl is young and below the age of consent, if, in fact,
she consents, how can it be called rape. And that
shows the defendant’s intent.

The next story, Daddy’s Lessons, talks about how
sex only hurts at first. It has descriptions of oral sex
on a man.

This is basically graphic language. It’s the story of
young children having sex with their parents and
with each other.
3748 UNITED STATES v. CURTIN
After everyone has had sex with each other, the
mother sits them down and tells them that they can
never tell anyone what they do in their house.

She explains to them what statutory rape is. She tells
them that what they engage in is, in fact, statutory
rape and tells the kids that their parents would go to
jail if they tell anyone, if anyone knows what hap-
pens in their house.

She also tells them that because of this type of crime,
if her father goes — if their father goes to jail, then
they — he would be killed because people don’t like
people who commit this type of crime.

And the final story is Playing Adult Games With Lit-
tle Sister. It contains descriptions of manipulating
children into engaging in sexual acts.

The mother, the adult, starts the manipulation and
the rest of the story kind of escalates that manipula-
tion, and it’s a bit of a methodology of how to get
these kids to engage in sexual acts.

There is also a part where they talk about our fanta-
sies, basically, of sex — children having sex and
how they were going to be coming [sic] true because
of what’s happening to their children.

This shows intent, modus operandi, knowledge,
motive, and preparation.

THE COURT: Okay. Can we give those to Paula and
ask her to run them and hopefully the blue part will
show through so that — we’ll give you a copy. You
already have copies but, of course, this will be a
copy of the markings. Okay?
 UNITED STATES v. CURTIN 3749
And then if you — for purposes of demonstration to
the Court or objection to the Court, before the jury
comes in tomorrow morning, if you would make
your objection; that is, this one just simply does not
go to that particular purpose, the language isn’t there
or whatever, if you’ll make that before we bring the
jury back.

Anything further? Thank you, very much. We’ll
reconvene, please, tomorrow morning at 9:00.

(emphasis added).

Thus, the record reveals that the trial judge correctly
required the government to demonstrates that the five stories
admitted were factually similar to the defendants interaction
with “christy13.”

Day Three began on the same issue, with counsel for Curtin
continuing to rely on Shymanovitz and Rule 403 to block the
introduction of the stories. The government responded as fol-
lows:

MS. KOPPE: Your Honor, first of all, as far as Mr.
Potter’s argument that the articles are, in themselves,
legal, 404(b) does not require that the other acts be
illegal acts or even bad acts. It just requires that they
be other acts that show one of the elements listed in
404(b).

These stories, every single one of them, proves
intent. Every single one of them shows the defen-
dant’s intent. They all talk about sex with children.
They all talk about intent to have sex with children.

The fact that the defendant possessed over 140 of
these stories and carried them around with him, go
directly against his defense that he had no intent to
3750 UNITED STATES v. CURTIN
engage in sex with children, that that was not any-
thing he wanted to do.

...

The defendant is the one who has immersed himself
in this fantasy defense. The defendant is the one who
is saying I didn’t have the intent. I never had that
intent.

And these stories that the defendant possessed and
that the defendant carried around with him every-
where he went and when he was committing this
crime, they show his intent.

...

In Allen (phonetic) the Ninth Circuit found that the
literature in that case did go to an element of the
crime and specifically distinguished that case from
Shimonowitz [sic] because it said that the stories in
that case did not go to an element of the crime.

These stories not only go to an element of the crime
— intent is one of the most important elements of
the crime, actually — it goes to the element of the
crime that the defendant himself is attacking, pretty
much the only element the defendant is attacking.
And the defendant possessed these stories.

As far as 403, your Honor, these stories are not more
prejudicial than they are probative. They’re clearly
probative.

...

The court continued to be concerned about the number of
stories that should go to the jury:
 UNITED STATES v. CURTIN 3751
THE COURT: Now, the last issue I wanted to
address is I sure don’t want to impose upon the jury
the feeling that they have to read this entire book.
How many stories was this?

MS. KOPPE: Your Honor, that was 21 stories.
We’re going to narrow it down —

THE COURT: You’re going to limit it down to —

MS. KOPPE: — to 12.

THE COURT: — about half of it. That’s helpful but
it’s still, number one, it’s potentially redundant —
like I said, after you get past the first story — and
it’s also potentially biasing.

In other words, we want the jury to limit themselves
to these four issues — intent, methodology, prepara-
tion, and knowledge — and trying not to overempha-
size this evidence in the context of all other
evidence.

I simply want to make it very clear to the jury, you
must not let this type of evidence bias you against
the defendant. He has a constitutional right to pos-
sess such. But you must, and may, only take it for
the four proffered reasons.

At this point, and having caused the number of stories to be
reduced to five, the court addressed a final issue: whether to
permit the jurors to read the entirety of each story, or just
highlighted “snippets,” the particular parts of each story going
directly to the defendant’s intent. The “snippets” had been
previously highlighted in blue by the prosecution. The court
said,
3752 UNITED STATES v. CURTIN
So, the only last question I had in my head is assum-
ing that I let you introduce, in total, the first story,
maybe the second one, which was, as much as I
could read, other than the snippets in the other stories,9
I did have a question overnight.

I still haven’t quite resolved in my mind as to
whether I should let you admit the entire rest of the
other stories, other than just the snippets.

...

MS. STANISH: I think it’s problematic to put, let’s
say, Agent Flaherty on the stand and have her say
this portion relates to this purpose —

THE COURT: But don’t you think it would be more
proper, at a minimum, if you don’t do that. That
would be my preference, that you do it that way.

But if you don’t do that, at a minimum, to put a wit-
ness on the stand who says we have highlighted
those portions of the stories that relate to the four
intended purposes.

I mean, if we admit it, generally, and tell the jury
you’ve got to search through these stories for those
intended purposes, then we’ve allowed the prejudi-
cial effect of the volume and redundancy of the story
to outweigh the four purposes.

...
9
My colleagues’ claim that the district court “was unable to read the sto-
ries” is not supported by the record. The court clearly had its own copies
and read the “snippets” which highlighted the material that makes the sto-
ries relevant. Curtin does not object to the use of the entire story in lieu
of the snippets.
 UNITED STATES v. CURTIN 3753
THE COURT: . . . But wouldn’t it be more appropri-
ate, at a minimum, for you to have the witness testify
that I have marked in blue — I mean, leaving it for
the jury finally to decide whether it really is proof of
these four elements.

But have you marked portions of these stories in
blue? Yes. For what purpose? To show that they
relate to either intent, or method, or preparation, or
knowledge.

...

MR. POTTER: We’re going to be doing the snip-
pets, then, is that —

THE COURT: We would not be reading the snip-
pets. We would be leaving it for the jury to find the
snippets in those one — for the purposes for which
I tell them are relevant; one, two, three —

MR. POTTER: I think that’s —

THE COURT: — four, five stories.

MR. POTTER: If they’re getting the whole story and
then the snippets then emphasize. I mean, now
they’re getting . . . they’re getting their attention
drawn to something.

I mean, you make the decision of what is relevant
and whether it is passed the muster of these four ele-
ments.

And, now, I think if we’re going to give them the
whole story, then they should be blank stories.

(emphasis added).
3754 UNITED STATES v. CURTIN
The issues having been resolved, the court then pre-
instructed the jurors10 as per Fed. R. Evid. 105 as to the lim-
ited purpose for which they could use this evidence the jury
was about to hear, an instruction which the jurors heard more
than once:

THE COURT: I’m going to allow the prosecution to
reopen their examination for a few additional min-
utes. They want to proffer some additional exhibits.

And, therefore, I’m going to give you a brief instruc-
tion with respect to these exhibits. I gave you, ini-
tially, the same instruction yesterday. I’m going to
give you the official version and then explain it
briefly.

You are about to hear testimony that the defendant
had articles on his PDA that relate to other acts not
charged here.

I instruct you that the testimony is being admitted
only for the limited purpose of being considered by
you on the question of the defendant’s intent,
method, preparation, or knowledge, and for no other
purpose. Let me explain the instruction just briefly.

We all have, thank goodness, a constitutional right to
have whatever literature we want in our homes, on
our PDAs, on our computers.

A person cannot be charged nor convicted of litera-
ture that they read or that they possess. That’s why
I’m giving you the instruction.

But the Government has the obligation to prove,
beyond a reasonable doubt, that the defendant had
10
As did the court in Allen, 341 F.3d at 887, n.24.
 UNITED STATES v. CURTIN 3755
the wrongful intent. They may offer possession of
such literature to show that.

For example, most all crimes, state or federal, have,
at a minimum, at least two elements. I’ll instruct you
at the end of the case on what the elements of these
crimes are. And the Government must prove every
one of them, beyond a reasonable doubt.

But most all crimes have a minimum of two ele-
ments: One, some conduct that’s specified in the
statute; and number two, a wrongful state of mind or
intent.

The simplest example I can think of is murder. There
is an act, homicide. And there’s a wrongful intent,
the wrongful taking of another person’s life.

If you don’t have that intent, you haven’t committed
the crime. If you’re involved in an accident in your
car and, unfortunately, someone loses their life in
that accident, you are not guilty of murder.

There is a homicide, to be sure, but there is no
wrongful intent. And, therefore, you’re not charged,
nor convicted, nor alleged with committing a crimi-
nal act. You may be sued in court civilly, of course.
Therefore, there are two elements.

You may take this kind of evidence on the question
of whether the defendant actually possessed the
intent.

You may also take it on the additional questions
which go to the question of intent, whether he prac-
ticed in this alleged conduct methodology consistent
with literature that he had or tending to show that he
prepared to commit the acts or that he had knowl-
3756 UNITED STATES v. CURTIN
edge, that is, of how to commit the act or that the act
was illegal.

Again, the prosecution does not have to show that a
defendant knew an act was illegal, simply that he
committed the act and that he knew it was wrongful
or that he had the wrongful intent. They don’t have
to prove that he knew it was illegal.

But evidence tending to show that he knew it was
illegal may or may not tend to show that he had the
intent.

So, for those four reasons, only, the Government is
offering to show that the defendant possessed this lit-
erature; intent, method, preparation, and knowledge.
And you may only take it for that purpose.

Again, you have a constitutional right. You have that
right. You would want to protect the defendant’s
right to posses any kind of literature and to read it or
not read it.

You must not allow this kind of evidence to bias
you, generally, against the defendant on the ultimate
question of guilt or innocence. You must not do that.

I’ll repeat, finally, in conclusion, the official instruc-
tion.

You are about to hear testimony that the defendant
possessed various types of articles on his PDA
regarding other acts not charged here.

I instruct you that the testimony is being admitted
only for the limited purpose of being considered by
you on the question of the defendant’s intent,
 UNITED STATES v. CURTIN 3757
method, preparation, or knowledge and for no other
purpose.

I hope you understand the instruction. With that, I’ll
permit the prosecution to proceed again today.

VI

My colleagues’ opinion stands for the questionable propo-
sition that a trial court simply has no discretion in a case
involving pedophilia to admit obscene sexual literature, even
though the literature — as it does here — (1) sheds probative
light on a defendant’s relevant subjective intent, and (2)
rebuts a defendant’s primary defense of no criminal mens rea.
My colleagues have made relevant literature off limits in the
Ninth Circuit as a matter of law.

Ironically, Rule 404(b), a rule of inclusion, references at
least three categories of other “acts” encompassing the inner
workings of the mind: motive, intent, and knowledge. Once
it has been established that the evidence offered serves one of
these purposes, the relevant Advisory Committee notes make
it clear that the “only” conditions justifying the exclusion of
the evidence are those described in Rule 403: unfair prejudice,
confusion of the issues, misleading the jury, undue delay,
waste of time, or needless presentation of cumulative evi-
dence:

Note to Subdivision (b). The second sentence of
Rule 404(b) as submitted to the Congress began with
the words “This subdivision does not exclude the
evidence when offered”. The Committee amended
this language to read “It may, however, be admissi-
ble”, the words used in the 1971 Advisory Commit-
tee draft, on the ground that this formulation
properly placed greater emphasis on admissibility
than did the final Court version. House Report No.
93-650.
3758 UNITED STATES v. CURTIN
Note to Subdivision (b). This rule provides that
evidence of other crimes, wrongs, or acts is not
admissible to prove character but may be admissible
for other specified purposes such as proof of motive.

Although your committee sees no necessity in
amending the rule itself, it anticipates that the use of
the discretionary word “may” with respect to the
admissibility of evidence of crimes, wrongs, or acts
is not intended to confer any arbitrary discretion on
the trial judge. Rather, it is anticipated that with
respect to permissible uses for such evidence, the
trial judge may exclude it only on the basis of those
considerations set forth in Rule 403, i.e., prejudice,
confusion or waste of time. Senate Report No. 93-
1277.

The Supreme Court embraced this understanding of Rule
404(b) and its handling of “other acts” in Huddleston v.
United States, 485 U.S. 681 (1998):

Federal Rule of Evidence 404(b)—which applies in
both civil and criminal cases—generally prohibits
the introduction of evidence of extrinsic acts that
might adversely reflect on the actor’s character,
unless that evidence bears upon a relevant issue in
the case such as motive, opportunity, or knowledge.
Extrinsic acts evidence may be critical to the estab-
lishment of the truth as to a disputed issue, especially
when that issue involves the actor’s state of mind
and the only means of ascertaining that mental state
is by drawing inferences from conduct.

Id. at 685 (emphasis added).

Moreover, the Court explicitly embraced the Advisory
Committee’s understanding of the Rule as reflecting the intent
of Congress:
 UNITED STATES v. CURTIN 3759
Petitioner’s reading of Rule 404(b) as mandating a
preliminary finding by the trial court that the act in
question occurred not only superimposes a level of
judicial oversight that is nowhere apparent from the
language of that provision, but it is simply inconsis-
tent with the legislative history behind Rule 404(b).
The Advisory Committee specifically declined to
offer any “mechanical solution” to the admission of
evidence under 404(b). Rather, the Committee indi-
cated that the trial court should assess such evidence
under the usual rules for admissibility: “The determi-
nation must be made whether the danger of undue
prejudice outweighs the probative value of the evi-
dence in view of the availability of other means of
proof and other factors appropriate for making deci-
sions of this kind under Rule 403.” [S]ee also, S Rep
No. 93-1277, p 25 (1974) (“[I]t is anticipated that
with respect to permissible uses for such evidence,
the trial judge may exclude it only on the basis of
those considerations set forth in Rule 403, i.e. preju-
dice, confusion or waste of time”).

Petitioner’s suggestion that a preliminary finding is
necessary to protect the defendant from the potential
for unfair prejudice is also belied by the Reports of
the House of Representatives and the Senate. The
House made clear that the version of Rule 404(b)
which became law was intended to “plac[e] greater
emphasis on admissibility than did the final Court
verison.” The Senate echoed this theme: “[T]he use
of the discretionary word ‘may’ with respect to the
admissibility of evidence of crimes, wrongs, or other
acts is not intended to confer any arbitrary discretion
on the trial judge.” Thus, Congress was not nearly so
concerned with the potential prejudicial effect of
Rule 404(b) evidence as it was with ensuring that
restrictions would not be placed on the admission of
such evidence.
3760 UNITED STATES v. CURTIN
Id. at 688, 689 (internal citations omitted). Thus, the majori-
ty’s exclusionary holding defies not only the clear purpose of
the Rule itself, but the Supreme Court’s authoritative guid-
ance.

This holding is not only legally wrong, but it extinguishes
the discretion of a district court to decide questions of rele-
vancy, inappropriately converting our standard of review from
one that examines for an abuse of discretion into one that
looks at a relevancy decision de novo. Their holding is a twis-
tification of the principle that an error of law necessarily ren-
ders abusive an exercise of discretion based on that error.
Here, there was no error of law. The evidence was relevant,
period; and, as we observed in United States v. Hearst, 563
F.2d at 1337, n.3, “relevance is the essential criterion.” Curtin
had this evidence on his person when he entered the casino
expecting to find “christy13.” An officer testified that Curtin
“had a Palm device, a PDA, and he was looking at — at it.
He was looking at the screen [for five minutes] and he kept
on looking up as if he was trying to verify the time or loca-
tion.” Curtin conceded in his testimony that he personally had
downloaded these stories through a computer to his PDA
because he believed they were “quite erotic.” [Day 4, p. 23]
The particular erotic story that attracted his attention was
about a “17 year-old girl,” and he downloaded them to find
more of the same. [Day 4, p. 56] He caused them to be put
out on his PDA in December, 2003, just two and one-half
months before contacting “christy13.” Curtin conceded
“skimming” some of the downloaded stories.

CONCLUSION

This case in combination with Shymanovitz improperly
hamstrings the capability of the rule of law to cope in this Cir-
cuit with adults who see children as sexual prey. Congress has
enacted a law protecting minors from this behavior, but we
have misinterpreted the Rules of Evidence to make the law
inordinately difficult to enforce. Without justification, this
 UNITED STATES v. CURTIN 3761
holding handcuffs jurors when confronted with “no intent”
defenses, turning such trials into the equivalent of “he said,
she said” conundrums. My experience with jurors is that con-
fronted with these situations, they want context, corroborating
evidence, and other pertinent information which helps them
sort out conflicting claims and assertions. Why? Not because
it is prejudicial, but because it is relevant, whether it cuts for
or against a defendant. As recognized by the Tenth Circuit in
Viefhaus and Magleby, context and circumstances are impor-
tant, and relevant literature can be used to this end — even if
it is obscene. Now, we leave the jury high and dry without rel-
evant evidence to look to in order to ensure the validity of
their verdict. Such a handicap is legally wrong as well as
unwise. At the very least, the district court’s decision regard-
ing the evidence eventually submitted to the jury was far from
abusive. If somehow it is correct that Shymanovitz commands
this result, then Shymanovitz is seriously defective and must
be reconsidered. Thus, I respectfully dissent.