United States v. Jim Thornhill ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30046
Plaintiff-Appellee,
D.C. No.
v. 1:16-cr-00008-
TMB
JIM WAYNE THORNHILL,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, Chief District Judge, Presiding
Argued and Submitted August 7, 2019
Anchorage, Alaska
Filed October 15, 2019
Before: Richard C. Tallman, Sandra S. Ikuta,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Tallman;
Concurrence by Judge N.R. Smith
2 UNITED STATES V. THORNHILL
SUMMARY *
Criminal Law
Affirming a conviction for receipt of child pornography,
the panel held that the district court did not abuse its
discretion when it admitted evidence of the defendant’s prior
Alaska state conviction for sexual abuse of a minor in the
second degree.
The panel held that the prior conviction was within the
scope of Fed. R. Evid. 414 because (1) the term “child
molestation” encompasses both the crime for which the
defendant was previously convicted and the present charge
of receiving/possessing child pornography, and (2) the prior
conviction was relevant as it tended to prove the defendant’s
sexual interest in children and that he used the terms on a
handwritten list to knowingly receive the child pornography.
Applying the balancing test of Fed. R. Evid. 403 to the
Rule 414 evidence, and the factors set forth in United States
v. LeMay, 260 F.3d 1018 (9th Cir. 2001), the panel held that
the probative value of the prior conviction was not
substantially outweighed by its unfair prejudice. With
regard to the district court’s finding that the prior conviction
was helpful/practically necessary to the government’s case,
the panel held that the district court did not err in rendering
this evidentiary decision before all testimony had been
presented at trial.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. THORNHILL 3
Concurring, Judge N.R. Smith wrote that the district
court and the majority ignored the plain language in LeMay
requiring trial judges to reserve judgment as to the necessity
of the proffered evidence until after the other testimony has
been offered, but that the error is harmless.
COUNSEL
Darla J. Mondou (argued), Marana, Arizona, for Defendant-
Appellant.
Andrew J. Klugman (argued) and Jack S. Schmidt, Assistant
United States Attorneys, United States Attorney’s Office,
Anchorage, Alaska, for Plaintiff-Appellee.
OPINION
TALLMAN, Circuit Judge:
Jim Thornhill appeals his jury conviction for receipt of
child pornography in violation of 18 U.S.C. §§ 2252(a)(2)
and (b)(1). The question before us is whether the district
court abused its discretion when it admitted evidence of
Thornhill’s prior Alaska state conviction for sexual abuse of
a minor in the second degree. We conclude that it did not,
and we affirm.
I
In October 2015, the FBI received a “report of harm”
related to a graphic voicemail left on a dating site, which
indicated that the caller was sexually abusing a 10-year-old
girl. The FBI traced the call to a cannery in Juneau, Alaska.
4 UNITED STATES V. THORNHILL
At the cannery, Special Agent Anthony Peterson (“Agent
Peterson”) played the voicemail to other employees, who
identified the voice as Thornhill’s. Employees later found a
Nokia cell phone at Thornhill’s desk, along with handwritten
lists of graphic search terms commonly associated with child
pornography. Agent Peterson subsequently interviewed
Thornhill and obtained a search warrant for the items found
at his work desk. Forensic analysis of the phone ultimately
revealed that over 100 images of child pornography were
received and stored in various file paths on the phone
between November 3, 2014, and December 25, 2014.
Thornhill was indicted on April 20, 2016, for one count
of receipt of child pornography, in violation of 18 U.S.C.
§§ 2252(a)(2) and (b)(1). Before trial, the government
notified Thornhill that it intended to introduce evidence of
his prior Alaska state conviction for sexual abuse of a minor
in the second degree under Federal Rule of Evidence
(“Rule”) 414. Thornhill had previously pleaded guilty and
was convicted of sexually abusing his 11-year-old daughter
in February 2008. Details of the offense included Thornhill
inappropriately touching his daughter over and under her
clothing while she was sleeping on several occasions
between 2004 and 2007. The district court initially
“reserve[d] ruling on this motion until after the Government
[] introduced its other evidence at trial.”
After jury selection, the parties agreed to the following
stipulations:
• That each image was produced involving the actual
use of minors engaged in sexually explicit conduct
and was produced outside of the State of Alaska;
UNITED STATES V. THORNHILL 5
• That Thornhill resided at The Glory Hole, a homeless
shelter in Juneau, Alaska, from September 14, 2014,
through February 18, 2015; and
• That Thornhill owned the black Nokia 520 cell phone
and authored the handwritten lists found at his desk.
Because of these stipulations, many of the witnesses the
government had intended to call were excused from
testifying, and, as a result, the government called only one
witness, Agent Peterson, in the prosecution’s case-in-chief.
Before opening statements, the district court ruled that
Thornhill’s prior conviction for sexual abuse of a minor was
admissible applying the factors we articulated in United
States v. LeMay, 260 F.3d 1018 (9th Cir. 2001).
During Agent Peterson’s testimony, the government
introduced Thornhill’s prior judgment of conviction, and it
was admitted into evidence. Agent Peterson identified the
prior victim as Thornhill’s 11-year-old daughter.
Immediately following the introduction of the prior
conviction (and again at the end of the trial), the district court
read a limiting instruction to the jury. The defense called no
witnesses.
After approximately two days of deliberation, the jury
found Thornhill guilty. He was subsequently sentenced by
the district court to 262 months of imprisonment.
II
A district court’s evidentiary rulings are reviewed for
abuse of discretion. United States v. Curtin, 489 F.3d 935,
943 (9th Cir. 2007) (en banc). We find abuse of discretion
only when we “ha[ve] a definite and firm conviction that the
6 UNITED STATES V. THORNHILL
district court committed a clear error of judgment.” United
States v. Boulware, 384 F.3d 794, 801 (9th Cir. 2004)
(internal quotations omitted).
III
The starting place for our analysis is Rule 414(a), which
provides that “[i]n a criminal case in which a defendant is
accused of child molestation, the court may admit evidence
that the defendant committed any other child molestation.
The evidence may be considered on any matter to which it is
relevant.” Because the term “child molestation”
encompasses both the crime for which Thornhill was
previously convicted, as well as the present charge of
receiving/possessing child pornography, admitting the prior
judgment of conviction falls under the purview of Rule 414.
See Fed. R. Evid. 414(d)(2)(B)–(D); United States v.
Hanson, 936 F.3d 876, 881 (9th Cir. 2019). Additionally,
the prior conviction was relevant because it tended to prove
Thornhill’s sexual interest in children and that he used the
terms on the handwritten list to knowingly receive child
pornography on the Nokia cell phone. See Fed. R. Evid. 401
(“Evidence is relevant if: (a) it has any tendency to make a
fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining
the action.”). Therefore, the district court properly
concluded that Thornhill’s prior conviction was within the
scope of Rule 414.
However, evidence admissible under Rule 414 is still
subject to the balancing test under Rule 403. Rule 403
provides that relevant evidence may be excluded, “if its
probative value is substantially outweighed by a danger of
. . . unfair prejudice . . . .” Thus, “Rule 414 is not a blank
check entitling the government to introduce whatever
evidence it wishes, no matter how minimally relevant and
UNITED STATES V. THORNHILL 7
potentially devastating to the defendant.” LeMay, 260 F.3d
at 1022; see also id. at 1027 (urging district courts to “pay
‘careful attention to both the significant probative value and
the strong prejudicial qualities’” of Rule 414 evidence
(quoting Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d
1258, 1268 (9th Cir. 2000))). To aid in this evaluation, we
have previously suggested that a district court evaluate the
following nonexclusive factors in the application of Rule
403 to Rule 414 evidence:
(1) the similarity of the prior acts to the acts
charged,
(2) the closeness in time of the prior acts to
the acts charged,
(3) the frequency of the prior acts,
(4) the presence or lack of intervening
circumstances, and
(5) the necessity of the evidence beyond the
testimonies already offered at trial.
Id. at 1027–28 (internal quotations omitted). In addition, the
district court is encouraged to “consider other factors
relevant to individual cases.” Id. at 1028; see also id. at 1029
(noting that one other such factor may be “the extent to
which an act has been proved”).
The district court found that LeMay factors one, three,
and five weighed in favor of the government, while factor
two was neutral, and factor four was irrelevant. Thornhill
argues that the district court abused its discretion because the
unfair prejudice caused by the introduction of his prior
8 UNITED STATES V. THORNHILL
conviction substantially outweighed its weak probative
value. He contends that: the acts behind the prior conviction
and his current charge are dissimilar; the stipulations made
by Thornhill eliminated the need for the prior conviction to
connect him to the list and cell phone; the district court was
required to wait until after testimony had been given at trial
to determine admissibility; and the prior conviction was
especially prejudicial because it involved incest.
With regard to the first LeMay factor, Thornhill argues
that his prior conviction for sexual abuse of a minor is
dissimilar to his charge of receipt of child pornography
because the former is a “contact offense,” while the latter is
not. While the district court acknowledged that the two
offenses “differ in degree,” it concluded that “the age of the
victim and the kind of abuse that occurred in the prior act
[was] very similar to the ages of the victims and the kinds of
abuse depicted in the images of child pornography found on
the Nokia cell phone.”
While there is sparse Ninth Circuit caselaw regarding
similarity between sexual abuse of a child and receipt of
child pornography, other circuit courts and district courts
have found sufficient similarity between these two offenses.
See United States v. Spoor, 904 F.3d 141, 154–55 (2d Cir.
2018) (adopting the LeMay factors in a child pornography
trial and upholding the district court’s decision to admit a
prior conviction of sexual abuse of two boys where the boys
“were similar in age to the boys in the videos”); United
States v. Sebolt, 460 F.3d 910, 917 (7th Cir. 2006) (“[T]he
molestations and the evidence supporting the statutory
criminal elements were similar in character, i.e., establishing
[his] sexually deviant mental state . . . .”); United States v.
Brand, 467 F.3d 179, 198 (2d Cir. 2006) (noting in the
analogous Rule 404(b) context that “possession of child
UNITED STATES V. THORNHILL 9
pornography by itself shares a connection or similarity with
pedophilia”); United States v. Olson, No. CR 16-30-BLG-
SPW, 2017 WL 2226555, at *2 (D. Mont. May 19, 2017),
aff’d, 755 F. App’x 716 (9th Cir. 2019) (first LeMay factor
weighed in favor of the government because “[t]he kind of
[sex] abuse that occurred in the alleged prior acts is quite
similar to the kind of abuse depicted in the child
pornography on the computer”). For example, in United
States v. Emmert, the Eighth Circuit held that a district court
did not abuse its discretion when it allowed Rule 414
evidence of prior sexual abuse where the prior “sexual abuse
and [current] child pornography victims were similar in age,
and [the defendant] performed or possessed images
depicting similar explicit acts on each victim.” 825 F.3d
906, 909 (8th Cir. 2016).
We agree with our sister circuits. Here, Thornhill’s prior
conviction involved inappropriate sexual touching of and
contact with his 11-year-old daughter. Agent Peterson
testified regarding a number of the photographs found on
Thornhill’s phone, most of which were pictures of young
girls’ exposed genitalia or of adult men penetrating young
girls. Like the defendant in Emmert, 825 F.3d at 909, the
victim of Thornhill’s prior conviction was similar in age and
of the same gender as the majority of the victims in the
photographs. Moreover, like his prior conviction,
Thornhill’s searches included terms relating to an incestuous
relationship between a father and daughter. 1
1
One could also imagine a more dissimilar set of acts than
Thornhill’s. For example, “[a]t least one military court of appeals has
recognized that acts . . . where the defendant abused someone close to
his age as an adolescent [] are ‘extremely dissimilar’ to abuse perpetrated
as an adult on someone much younger and under the defendant’s parental
10 UNITED STATES V. THORNHILL
Additionally, this case is distinguishable from United
States v. Preston, 873 F.3d 829 (9th Cir. 2017). In the Rule
404(b) context, the Preston court held that although the age
of the victim in the photograph to which the defendant
masturbated was similar to the victim’s age in the charged
act, this finding by the district court did “not adequately
explain or discuss how the act of masturbating to a picture
of a boy in underwear—a non-criminal act—[was] similar to
the crime of real-life sexual abuse of a child.” Id. at 841. It
further held that the district court also abused its discretion
under Rule 403 because “the link between fantasy and intent
[was] too tenuous to be probative.” Id. (internal quotations
omitted). But Thornhill’s prior acts were not just fantasy—
they were actual crimes committed against an 11-year-old
female relative, and are therefore more similar to the charged
offense than the acts in Preston. 2 This factor weighs in favor
of the government.
We must also consider the closeness in time of
Thornhill’s prior acts, the frequency of those prior acts, and
whether there are any intervening circumstances. Thornhill
was convicted in 2008 for acts done to his daughter from
2004–2007, and the defendant was “charged in this case with
control.” United States v. Stern, 391 F. App’x 621, 623 (9th Cir. 2010)
(Paez, J., dissenting) (citation omitted) (contending that evidence that the
defendant “abused his sister when he was a young boy does not suggest
that he is a pedophile, or that he takes advantage of positions of
authority”).
2
The Preston court also explicitly noted, “Where the other acts
offered are specific incidents of prior child molestation—which would
clearly be similar to the charged offense here—Federal Rule of Evidence
414 expressly permits them to be admitted ‘on any matter to which it is
relevant.’” Id. at 841 n.2.
UNITED STATES V. THORNHILL 11
receiving images of child pornography between November
3, 2014, and December 25, 2014.” There is no bright line
rule for precluding evidence that is remote in time. See
United States v. Rude, 88 F.3d 1538, 1550 (9th Cir. 1996).
Indeed, the acts underlying the prior conviction in LeMay
occurred about eleven years beforehand. 260 F.3d at 1029.
Given the caselaw, the district court would have been within
its prerogative to find this factor in favor of the government,
and it did not abuse its discretion in finding that this factor
was neutral. 3 As for the frequency of the prior acts, both the
government and defense counsel represented to the district
court that Thornhill pled guilty to molesting his daughter on
a number of occasions between 2004–2007. Therefore, the
frequency of the prior acts weighs in favor of the
government. And the fourth factor, intervening
circumstances, is not relevant here, as conceded by both
parties.
LeMay provides that the fifth factor is the “necessity of
the evidence beyond the testimonies already offered at trial.”
Id. at 1028 (quoting Glanzer, 232 F.3d at 1268). “Prior acts
evidence need not be absolutely necessary to the
prosecution’s case in order to be introduced; it must simply
be helpful or practically necessary.” Id. at 1029 (alterations
in original). For example, in LeMay, the prior acts evidence
was “helpful or practically necessary” because the defendant
3
The district court also was influenced by the fact that Thornhill had
been in custody for a majority of the years between the prior acts and the
charged acts in this trial. See also Stern, 391 F. App’x at 622 (“The
passage of time” does not weigh in favor of the defendant “because there
is no indication that he had any similar opportunities to offend target
victims of choice, in part because he was incarcerated for a number of
the intervening years.”).
12 UNITED STATES V. THORNHILL
had “attacked the credibility of the [victims] and capitalized
on the lack of eyewitness and expert testimony.” Id.
Thornhill makes two arguments regarding the fifth
LeMay factor. First, he contends that the prior conviction
was not necessary because he stipulated to owning the phone
and writing the terms on the lists found at his desk. Despite
these stipulations, the crux of Thornhill’s defense was that
he did not knowingly receive images of child pornography
on his phone and that somebody else had the phone during
the time when the images were received on his cell phone.
Given that Thornhill was contesting the identity of who
actually downloaded the photographs and his knowing
receipt of the images, the district court did not abuse its
discretion in finding that the prior conviction was
helpful/practically necessary to the government’s case to
establish intent to download and absence of mistake, and
thereby helpful to the jury in concluding that Thornhill was
the downloader. As the district court explained, the prior
conviction was “necessary for the Government’s case,
because it tends to prove the defendant’s sexual interest in
the specific conduct . . . , which in turn makes it more likely
that the defendant sought and knowingly received the images
of child pornography charged in the indictment.” 4 See also
United States v. Woods, 684 F.3d 1045, 1064–65 (11th Cir.
2012) (in a child pornography case, evidence of a prior child
molestation “was probative of [the defendant’s] interest in
child pornography and therefore made it more likely that [the
4
Thornhill also appears to argue that the prior conviction was not
necessary because unlike in LeMay, he was not attacking the credibility
of any victim. But this argument fails because there is nothing in LeMay
suggesting that Rule 414 evidence is admissible only when necessary to
bolster a witness’s credibility.
UNITED STATES V. THORNHILL 13
defendant], and not his ex-wife or roommates, was
responsible for the child pornography found on the two
computers”).
Second, placing emphasis on the “already offered”
language of the fifth LeMay factor, Thornhill argues that the
district court abused its discretion by ruling on the
government’s Rule 414 motion before Agent Peterson’s
testimony had been offered at trial. However, LeMay did not
hold that courts are bound to a lockstep formula; indeed, we
affirmed the decision of the district judge even though he did
not expressly discuss the five factors because “the record
reveals that he exercised his discretion to admit the evidence
in a careful and judicious manner.” 260 F.3d at 1028.
Moreover, the lockstep formula for which Thornhill
advocates is not only contrary to the plain language of Rule
414, which requires only that prior crime evidence be
relevant, but also places an unnecessary burden on the trial
court. As a general matter, district court judges have wide
latitude in deciding when and how to admit evidence at trial.
See Geders v. United States, 425 U.S. 80, 86 (1976) (“The
trial judge must meet situations as they arise,” and “must
have broad power to cope with the complexities and
contingencies inherent in the adversary process.”). And
“[p]retrial motions are useful tools to resolve issues which
would otherwise ‘clutter up’ the trial,” and they “sav[e]
jurors’ time and eliminat[e] distractions.” Palmerin v. City
of Riverside, 794 F.2d 1409, 1413 (9th Cir. 1986); see also
Fed. R. Crim. P. 12(d) (“The court must decide every pretrial
motion before trial unless it finds good cause to defer a
ruling.”).
Forcing judges to wait until the end of testimony at trial
to make such an evidentiary decision is contrary to Rule 414,
which places no temporal limit on such admission, and
14 UNITED STATES V. THORNHILL
would be an unwelcome constraint when we have otherwise
long trusted trial judges to moderate and run their
courtrooms effectively. Cf. Ohler v. United States, 529 U.S.
753, 758 n.3 (2000) (noting that “in limine rulings are not
binding on the trial judge, and the judge may always change
his mind during the course of a trial”); Fed. R. Evid. 611(a)
(“The court should exercise reasonable control over the
mode and order of examining witnesses and presenting
evidence . . . .”).
To be sure, the LeMay court commended the district
judge for his cautious approach in “reserv[ing] the Rule 403
decision until after the prosecution had introduced all its
other evidence, in order to get a feel for the evidence as it
developed at trial . . . .” 260 F.3d at 1028. But this does not
create a bright line rule that all trial judges in every instance
must wait until testimony at trial has already been offered
before ruling on these types of motions. Indeed, in Glanzer,
the case from which the LeMay court draws its five factors,
we did not fault the district court for ruling on the 403
analysis after the government made an offer of proof at the
beginning of trial. 232 F.3d at 1269. And in articulating this
fifth factor, the Glanzer court relied on United States v.
Guardia, in which the district court also rendered its decision
at the motion in limine stage. 135 F.3d 1326, 1328–31 (10th
Cir. 1998) (articulating this factor as “the need for evidence
beyond the testimony of the defendant and alleged victim”).
Although a more complex case might warrant reserving
a final ruling until after testimony had been elicited, this is
not that case. See Glanzer, 232 F.3d at 1269 (emphasizing
the “case-by-case” nature of this type of analysis). In its
initial order on the matter, the district court outlined the law
under Rules 414 and 403, but reserved ruling until it had
more information. Then, before trial, the parties agreed to
UNITED STATES V. THORNHILL 15
stipulate to several facts, which negated the need for many
of the government’s proposed witnesses. The district court
had also reviewed the government’s trial exhibits, the
parties’ trial books and briefs, and the judgment of prior
conviction. The next day (the morning of trial) the district
court ruled on the prior conviction issue, finding it
admissible after weighing all the relevant factors. Given that
the trial had only one witness and 32 exhibits, the fact that
the parties had made numerous stipulations, and the parties’
representations regarding the substance of anticipated
evidence, the district court here was able “to appreciate fully
and to weigh accurately the challenged evidence’s probative
value and its potential for unfair prejudice.” 5 United States
v. Major, 676 F.3d 803, 809 (9th Cir. 2012); United States v.
Charles, 691 F. App’x 367, 370 (9th Cir. 2017). We decline
Thornhill’s invitation to erect an inflexible structural
requirement mandating mid-trial rulings and hold that the
district court did not err in rendering this evidentiary
decision before Agent Peterson testified.
Finally, Thornhill argues that the prior conviction was
unfairly prejudicial because “incest has [] a rare power to
disgust.” Curtin, 489 F.3d at 964 (Kleinfeld, J., concurring)
(internal quotations and alteration omitted). In Curtin, we
held that a district court erred by admitting five stories about
incest written by the defendant without reading the entirety
of the stories first. Although relevant and probative under
Rule 404(b), the content of these stories was “depraved and
patently prejudicial,” and included a story which contained
5
Judge Smith’s concurrence likewise acknowledges that there is no
likelihood the “district court would have ruled differently” mid-trial than
it did pre-trial. Post, at 22. This is especially so where the parties had
stipulated to sufficient evidence to result in calling only one witness at
trial.
16 UNITED STATES V. THORNHILL
“a particularly graphic description” involving bestiality. Id.at 957–58. Because the court did not read the stories prior
to admitting them, the district court was unable to conduct a
proper Rule 403 analysis, and given their highly disturbing
content, it could not be said that the error was harmless. Id.
at 958.
But Curtin is distinguishable. First, the evidence and
testimony elicited at Thornhill’s trial was “sanitized” and
consisted only of his judgment of conviction, the age of the
victim, and the victim’s relationship to Thornhill. United
States v. Sheldon, 755 F.3d 1047, 1050 (9th Cir. 2014) (no
abuse of discretion where the district court allowed in “only
the sanitized record that [the d]efendant had been convicted
of possession of child pornography” and the jury did not hear
“the details of [the d]efendant’s conduct that resulted in the
[prior] conviction”). Second, although incest can have a
“rare power to disgust,” Curtin, 489 F.3d at 964 (Kleinfeld,
J., concurring) (internal quotations omitted), Thornhill had
already stipulated that he wrote the list of handwritten search
terms introduced at trial, which included disturbing
incestuous search phrases involving “daughter” and “dad.”
We also note that immediately after the judgment of
prior conviction was introduced, the district court gave a
limiting instruction, 6 further preventing the potential for
6
The district court instructed the jury:
Ladies and gentlemen, you have heard evidence that
the defendant has previously been convicted of sexual
abuse of a minor in the second degree in violation of
Alaska Statute 11.41.436(a)(2). You may consider that
evidence only as it bears on intent, knowledge, or lack
of mistake, and for no other purpose. You may not
UNITED STATES V. THORNHILL 17
unfair prejudice. See Weeks v. Angelone, 528 U.S. 225, 234
(2000) (“[A] jury is presumed [] to follow its instructions
. . . .” (citation omitted)). We therefore conclude that the
introduction of Thornhill’s prior conviction was not unfairly
prejudicial. See Sebolt, 460 F.3d at 917 (noting that even
where evidence is highly prejudicial, it is not necessarily
unfairly prejudicial).
IV
In sum, the prior conviction was relevant and helpful to
show Thornhill’s knowledge that the child pornography
images were present on the phone, that Thornhill
intentionally downloaded the images, and that those actions
were motivated by his interest in sexual activity involving
children. On balance, the probative value of Thornhill’s
prior conviction was not substantially outweighed by its
unfair prejudice. The district court conscientiously
evaluated the LeMay factors, and its decision does not “lie[]
beyond the pale of reasonable justification under the
circumstances.” United States v. Pineda-Doval, 614 F.3d
1019, 1035 (9th Cir. 2010) (quoting Harman v. Apfel,
211 F.3d 1172, 1175 (9th Cir. 2000)). There was no error in
its admission.
AFFIRMED.
consider that prior conviction as evidence of guilt of
the crime for which the defendant is now on trial.
Although this appears to be the instruction for Rule 404(b) evidence,
rather than Rule 414 evidence, any error in the instruction was likely
harmless given that it limited consideration of Thornhill’s prior
conviction even more than required under Rule 414.
18 UNITED STATES V. THORNHILL
N.R. SMITH, Circuit Judge, concurring:
I agree with the majority that Thornhill’s conviction
should be affirmed. However, I arrive at that conclusion by
a different analysis. I write separately to explain my
reasoning and to express my concern with the majority’s
casual disregard of the non-discretionary language used by
United States v. LeMay, 260 F.3d 1018, 1027–28 (9th Cir.
2001), where that panel articulated the now-familiar five-
factor test applied here by the district court and at issue in
this appeal.
I.
Like my colleagues, I find no error or abuse of discretion
in the district court’s interpretation or application of the first
four LeMay factors. Thus, the decision in this appeal hinges
on the district court’s application of the fifth LeMay factor.
This factor requires a court, in determining the admissibility
of a prior conviction pursuant to Federal Rules of Evidence
414 and 404, to consider the necessity of such evidence in
light of testimonies “already offered at trial.” LeMay,
260 F.3d at 1027–28 (emphasis added). This language
requires that the district court wait to hear the testimony
offered at trial before determining whether to admit evidence
of a prior conviction.
As the majority recognizes, this is not what occurred
here. See Maj. Op. at 5. The district court, in the written
order it issued on the first day of trial, initially reserved
ruling on the issue. Yet, at the start of the second day of
trial—and before the parties had even made opening
statements—the district court announced that it had
UNITED STATES V. THORNHILL 19
sufficient information to rule on the admissibility of
Thornhill’s prior conviction at that time. 1
The majority finds no error in the district court’s course
of action, because it views the LeMay factors as essentially
advisory, a set of principles and considerations that a district
court should consider before ruling on the admissibility of a
prior conviction. The majority asserts that judges ought not
be “forc[ed] to wait until the end of testimony at trial to make
such an evidentiary decision”; that erecting such “an
inflexible structural requirement” would be an “unwelcome
constraint” on trial judges. Maj. Op. at 13–15.
It is true that “district court judges have wide latitude in
deciding when and how to admit evidence at trial.” Maj. Op.
at 13. I also agree that district court judges ought to have
such latitude. However, in deciding that there is no bright-
line rule requiring judges to wait until after other testimony
is offered at trial to make its evidentiary decision in this
context, the majority ignores the plain language of the test
our court outlined in LeMay. In LeMay, we “articulated
several factors that district judges must evaluate in
determining whether to admit evidence of a defendant’s
prior acts of sexual misconduct.” 260 F.3d at 1027–28
(emphasis added). LeMay says what it says: the trial court
must evaluate the necessity of the proffered evidence by
taking into consideration “the testimonies already offered at
trial.” Id. at 1028 (emphasis added). Thus, one cannot say
1
Thornhill did not initially object to the ruling on the basis of the
fifth LeMay factor. Ordinarily this might constitute waiver or forfeiture
of the argument he now seeks to advance on appeal. See In re Mercury
Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010).
However, Thornhill preserved this issue for appeal by raising an
objection (in a motion to reconsider) when the government sought to
introduce the prior conviction evidence during trial.
20 UNITED STATES V. THORNHILL
that the timing of LeMay’s fifth factor is discretionary.
LeMay requires trial judges to reserve judgment on this issue
until after the other testimony has been offered.
While reading LeMay to impose a bright-line timing
requirement may “be an unwelcome constraint” on trial
judges, Maj. Op. at 14, our panel is not free to rewrite LeMay
or apply LeMay’s five-factor test as we think it ought to have
been formulated. See Miller v. Gammie, 335 F.3d 889, 899–
900 (9th Cir. 2003) (en banc) (noting that “a three-judge
panel may not overrule a prior decision of the court” absent
“clearly irreconcilable” Supreme Court case law). We are
instead bound to apply it as written, unless and until LeMay
is overruled or clarified by supervening higher authority. As
written, the only plausible reading of LeMay’s fifth factor is
that it imposes a timing requirement that trial courts must
follow. It does not, as the majority concludes, provide a
mere suggestion or best practice rule of thumb.
Moreover, the timing requirement imposed by LeMay’s
fifth factor makes good sense. Evidence of prior sex-offense
convictions are allowed more readily than evidence of other
types of convictions. See Doe ex rel. Rudy-Glanzer v.
Glanzer, 232 F.3d 1258, 1268 (9th Cir. 2000) (noting that
the admission of sex-offense convictions under Rules 413–
415 is not limited by Rule 404(b)’s broad prohibition against
the use of propensity evidence). However, this does not
mean that we should ignore the profound effect that such
evidence of prior sex offenses may have on a jury, especially
when compared to evidence of other types of offenses. See
Christopher B. Mueller & Laird C. Kirkpatrick, Evidence
§ 4.35 (5th ed. 2012) (noting “evidence that a defendant has
committed prior sexual assaults or child molestations . . . is
likely to provoke substantially more jury antipathy against
the defendant than other types of misbehavior”). As our
UNITED STATES V. THORNHILL 21
colleagues noted in LeMay, “evidence of a defendant’s prior
acts of molestation will always be emotionally charged and
inflammatory” and may be “particularly shocking” to a jury.
LeMay, 260 F.3d at 1030. Thus, LeMay’s requirement that
“district judges must carefully evaluate the potential
inflammatory nature of the proffered testimony, and balance
it with that which the jury has already heard,” id., safeguards
the process, ensuring that evidence of prior convictions does
not unnecessarily prejudice a criminal defendant.
II.
The district court here clearly ignored the timing
requirement laid out in LeMay’s fifth factor. However,
reversal is not required in this case, because the error was
harmless.
Admittedly, the district court ruled on the admissibility
of Thornhill’s prior conviction evidence earlier than it
should have. But it did so on the basis of both the pretrial
stipulations reached by the parties and the parties’
representations regarding what evidence they anticipated
would be offered by the government in its case-in-chief.
After carefully reviewing the record, it is clear on appeal that
the trial that followed played out more or less exactly as
predicted; essentially no unexpected or unanticipated
testimony or other evidence was offered by the government
prior to the introduction of evidence concerning Thornhill’s
prior conviction. 2 Indeed, there is no support in the record
2
The only purportedly unanticipated testimony or evidence that
Thornhill identifies relates to Special Agent Peterson’s testimony, and in
particular Peterson’s statement that he believed Thornhill’s prior
conviction involved his daughter. However, the fact that this conviction
involved Thornhill’s daughter was not a surprise. The parties had
previously disclosed that fact to the court, and the court specifically
22 UNITED STATES V. THORNHILL
suggesting that, but for the error of admitting evidence of the
conviction before hearing all other testimony, the district
court would have ruled differently. Whether the ruling was
made after the parties announced their stipulations, or after
the government’s case-in-chief had otherwise concluded, the
district court had essentially the same testimony and
information before it.
As Thornhill has not shown a reasonable probability of a
different outcome, the error was harmless. 3 See United
States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010).
noted the prior offense was for “for molesting his minor daughter from
2004 to 2007” in the written order it issued on the first day of trial.
3
This is not to say that such a finding will always (or even often) be
available in circumstances such as these. The error that occurred here is
harmless only because the proceedings that followed the district court’s
premature ruling did not stray beyond the bounds of what the parties
disclosed would be presented by the government in its case-in-chief.
Thus, there were no meaningful alterations to information available to
the district court between (1) when it did rule on this issue (at the start of
trial), and (2) when it ought to have ruled on this issue (in light of
testimony already offered) in order to comply with LeMay.