concurring.
I concur in the result reached by the court today because I agree that even *731excluding the eight photographs at issue in this case there is sufficient evidence to convict Mr. Langley of the two criminal charges. In doing so, however, I leave no inference that I agree with the possibility that under the facts of this case the photographs were admissible. They were not.
As we have seen through the promulgation of Federal Rules of Evidence 413, 414 and 415, Congress can authorize the admissibility of propensity evidence if it wishes. But, it has not done so for the evidence proffered by the government in this litigation. See Fed.R.Evid. 404(b). I concede that trafficking in child pornography and the commission of associated offenses constitute reprehensible crimes. But even so, an accused is entitled to a fair trial, that is one properly employing the rules of evidence. I respectfully submit that such did not occur here.
As the court notes, eight photographs of the same individual were discovered on Langley’s computer during a warrant search of his home. Neither the identity nor the age of the woman imaged were ever established. Nonetheless, the government, citing Federal Rule of Evidence 404(b), proffered the photographs as evidence of Langley’s intent and motive to travel in and use means of interstate commerce to commit crimes involving an identified fifteen-year-old woman. Intent is a specific element of the charged offenses. And, it was the burden of the government to prove this element by proof beyond a reasonable doubt.
Pretrial, Langley made a motion to exclude the photographs of the unidentified female, whose circumstances, relationships and age were and remain undetermined. If Arkansas law applies, the woman Langley sought to contact needed to be “less than sixteen (16) years of age.” Ark.Code Ann. § 5-14-127. If federal law applies, she needed to be an individual “who ha[d] not attained the age of 18 years.” 18 U.S.C. § 2422(b). Thus, if the prosecuting witness was eighteen years old, there was no crime. Likewise, if the unidentified woman was eighteen years old, it was lawful for Langley to maintain the photographs on his computer and the photographs provided no evidence relevant to Langley’s intent to travel to see the fifteen-year-old victim. And, other than the physical existence of the pictures, there is and was no evidence that the unknown woman was under eighteen years at the time the photographs were taken, at the time they came into Langley’s possession, at the time they were seized by the government, at the time they were received in evidence during the government’s case-in-chief at trial, or at the time the government presented them to the jury during its summation with instructions for the jurors to “decide how old she looks.” Tr. at 531. Indeed, at the time they were received in evidence at the trial, the only proof that the woman may have been less than eighteen years old was the visual conclusions of the trial judge and the government’s attorney. In other words, there was no foundational evidence whatever concerning the person in the photographs. Nonetheless, the trial judge overruled Langley’s motion in limine and the eight photographs were received in evidence during the government’s case-in-chief without further discussion, but with an erroneous limiting instruction that I will discuss in a moment.
There was no evidence as to when or where the pictures were taken and the government conceded at oral argument before this court that there is no evidence as to the age or identity of the woman except a concession that she had obviously reached puberty, a fact that the photographs bear out. In this regard the government’s counsel forthrightly stated that the vast majority of child pornography *732seen in criminal charges obviously involves prepubescent children and “if you’re dealing with a child over the age of twelve or thirteen and puberty has hit ... the government does not charge those cases unless you have someone to definitely state the age because it is difficult once a female in particular hits puberty to know exactly what age they are.” Oral Arg. Recording at 27:07. Accordingly, it is clear that the government placed in evidence proof of propensity only and without establishing, under any acceptable burden of proof, that it was unlawful for Langley to possess the pictures or that they were relevant to any properly contestable issue in the case. I concede that this court has stated that “[r]ule 404(b) is a rule of inclusion, prohibiting only evidence that tends solely to prove the defendant’s criminal disposition.” United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir.1995); see also Huddleston v. United States, 485 U.S. 681, 688-89, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). But, I feel certain that Shoffner did not mean that the rule was this inclusive.
Additionally, while the government contends that evidence was offered only to prove Langley’s “intent to travel to meet the fifteen year old,” Oral Arg. Recording at 19:08, it asked for and received the following instruction from the district court.
These [Federal Rule of Evidence 404(b)] photographs ... are admissible only to show [Langley’s] motive, opportunity, intent, preparation, plan, knowledge or absence of mistake or accident.
Tr. at 221-22. But, the photographs addressed no issue in the trial except, possibly, intent. Thus, confusingly for the jury, the instruction was not limited to the purpose for which it was actually offered by the government.
This court has directed that district courts, when ruling and instructing on 404(b) evidence, should not make broad references which merely restate the components of the rule but should specify which component of the rule (here, according to the government, intent and possibly motive) forms the basis of its ruling and why. United States v. Johnson, 439 F.3d 947, 953-54 (8th Cir.2006). Nonetheless, this circuit has never found this error to be a basis for reversal. Id.
Given the almost certain inadmissibility of these photographs coupled with the improvident jury instruction, this case presents a very close question of whether to reverse, or not. I reluctantly choose the latter course, however, given the balance of the evidence in the case, and concur in the result reached by the panel majority.