United States v. Stout , 509 F.3d 796 ( 2007 )

McKEAGUE, Circuit Judge,

dissenting.

Because I believe that the district court’s exclusion of Stout’s prior conviction for surreptitiously videotaping a showering 14-year-old girl was based on an erroneous application of the law and a faulty balancing of the considerations found in Rule 403,1 respectfully dissent.

While the majority is correct that a district court’s Rule 403 determinations are reviewed for an abuse of discretion, it is incorrect that such an abuse did not occur in this case. An abuse of discretion occurs when a district court commits “errors of law.” United States v. Ganier, 468 F.3d 920, 925 (6th Cir.2006) (internal quotation omitted). In this case, the district court’s Rule 403 balancing contained such errors that have unfortunately been overlooked and replicated by my colleagues in the majority.

A. Errors in the Probative Value Determination

The district court first erred in its determination of the probative value of the defendant’s prior conviction.¹ According to the district court:

the prior acts are indeed “critical,” but only for the reason that the government’s evidence connecting Stout to the actual possession and receipt, though clearly sufficient for conviction, is slight.... While it is likely true that the 404(b) evidence is subjectively critical to this case under the 404(b) analysis, those circumstances do not make the evidence objectively any more probative.

Dist. Ct. Op. at 7. Later in its opinion, the district court indicated that the “potential for ... unfair prejudice is greater than normal because the actual evidence of possession is so limited.” Id. at 8. From these quotations, it is apparent that in determining the probative value of Stout’s prior conviction, the district court believed that the government’s need for the evidence decreased its probative value, while increasing the danger of unfair prejudice. However, the district court’s determination — and the majority’s affirmance of that determination — are both contrary to law.

It is well-established that “an important indication of probative value of evidence is the prosecution’s need for the evidence in proving its case.” United States v. Vance, 871 F.2d 572, 576 (6th Cir.1989); see also United States v. Ray, 189 Fed.Appx. 436, 445 (6th Cir.), cert. denied, — U.S.-, 127 S.Ct. 692, 166 L.Ed.2d 537 (2006). As the Eleventh Circuit has explained, “while prosecutorial need alone does not mean probative value outweighs prejudice, the more essential the evidence, the greater its probative value, and the less likely that a trial court should order the evidence excluded.” United States v. King, 713 F.2d 627, 631 (11th Cir.1983) (citation and footnote omitted). The King court found an abuse of discretion in the district court’s Rule 403 analysis and reversed because “[t]he government has no case without the [disputed] testimony. In this instance the probative value is as high as it possibly could be.... ” Id. at 632-33; see also United States v. Jackson, 886 F.2d 838, 847 (7th Cir.1989) (reversing the exclusion of evidence that defendant refused to provide a handwriting exemplar and finding the evidence highly probative because “there appears to be no alternative means of proof with regard to an essential element of the government’s case.”); United States v. Hicks, 798 F.2d 446, 451 (11th Cir.1986) (stating that “[t]he greater the government’s need for evidence of intent, the more likely that the probative value will outweigh any possible prejudice.”).

Of particular relevance to the instant case is the Tenth Circuit’s decision in United States v. Rodriguez, 192 F.3d 946, 950 (10th Cir.1999). In Rodriguez, the defendant was charged with possession of marijuana, and the district court excluded expert testimony regarding the valuation of the seized narcotics under Rule 403. Id. at 950-51. Concluding that the district court abused its discretion by devaluing the evidence’s probative value, Rodriguez explained that the defendant’s “knowledge of the existence of the drugs in the truck apparently will be the critical issue in dispute in the trial. It appears that there is no direct evidence of his knowledge, and thus the importance of any indirect evidence of knowledge becomes magnified.” Id. at 950; see also Ray, 189 Fed.Appx. at 445 (holding that the district court did not err in admitting evidence of a defendant’s prior conduct because as the only evidence available to prove his modus operandi it was highly probative).

Applying this precedent to the instant case, the district court erred by stating that the government’s need did “not make the evidence objectively any more probative.” Dist. Ct. Op. at 7. The district court exacerbated its error by actually placing the prosecutor’s need for the evidence on the unfair prejudice side of the decisional scale. Likewise, the majority’s statement that “the need for the evidence does not make the evidence moré likely to prove that which it is offered to prove,” Maj. Op. at 800-01, is erroneous and irreconcilable with our prior decisions. See, e.g., Vance, 871 F.2d at 576 (stating that “[a]n important indication of probative value of evidence is the prosecution’s need for the evidence in proving its case.”); see also United States v. Smith, 194 F.3d 1315, 1999 WL 970300, at *5 (6th Cir.1999) (unpublished table decision) (same).

Additionally, I believe that the district court’s conclusion that the probative value of Stout’s prior conviction is “limited” because it only illustrates his “prior interest in minor girls and suggests] his intent to knowingly receive child pornography” is incorrect. Dist. Ct. Op. at 12. I cannot understand how the fact that a piece of evidence is directly related to elements of the charged offense renders its probative value “limited,” especially when it is the primary evidence capable of speaking to those elements. A piece of evidence need not prove every element of an offense to be highly probative. Where a defendant’s prior convictions are offered to prove “an element of the crime ... they have significant probative value.” United States v. Tan, 254 F.3d 1204, 1212 (10th Cir.2001) (finding the exclusion of defendant’s prior DUI convictions to be an abuse of discretion because it was offered to prove the malice element of second degree murder); see also United States v. Long, 328 F.3d 655, 663 (D.C.Cir.2003) (affirming the district court’s decision to admit evidence of defendant’s prior uncharged possession of child pornography in the defendant’s trial for child pornography and related sex offenses because such evidence was probative of the disputed elements of possession and intent).

As with the drug possession charges in Rodriguez, the critical issue at trial in this case will be Stout’s knowledge and intent to possess and receive child pornography. Given the inherent difficulty in proving the inner-workings of an individual’s mind, it is unsurprising that Stout’s prior conviction for videotaping a showering young girl is critical to proving that he has a “sexual interest in children, thereby demonstrating his intent to knowingly receive child pornography.” United States v. Hall, 202 F.3d 270, 2000 WL 32010, at *3 (6th Cir.2000) (unpublished table decision); see also United States v. Sebolt, 460 F.3d 910, 917 (7th Cir.2006) (explaining that “[p]rior instances of sexual misconduct with a child victim may establish a defendant’s sexual interest in children and thereby serve as evidence of the defendant’s motive to commit a charged offense involving the sexual exploitation of children.”). Following the adage that “nobody knows a product better than its manufacturer,” it is difficult to comprehend what evidence could be more probative of a defendant’s knowledge that an image is child pornography — and his intent to possess such an image — than the fact that the defendant himself is a convicted manufacturer of child pornography. Although the majority may not believe that Stout’s prior conviction for videotaping a showering girl strongly demonstrates that he “had knowledge of the subject matter [of child pornography] outside of the ordinary ken,” Maj. Op. at 800-01, such a conclusion seems inescapable to me.

In accord with the authorities previously cited, the importance of Stout’s prior conviction to proving the government’s case does not minimize its probativeness as the district court stated; rather, it “magni-fie[s]” it. Rodriguez, 192 F.3d at 950-51. Combining this highly probative evidence with Rule 403’s policy favoring admissibility and our requirement that in reviewing Rule 403 decisions “we look at the evidence in a light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect,” United States v. Perry, 438 F.3d 642, 648 (6th Cir.2006) (internal quotation marks omitted), to be substantially outweighed in this case, the danger of unfair prejudice would have to be exceedingly great. It is not.

B. Errors in the Unfair Prejudice Determination

The errors of the district court and the majority are not limited to the probative value side of the Rule 403 balance; they also pervade the determination of unfair prejudice. While I concede that Stout’s prior conviction is prejudicial, it is not unfairly so.

1. Prior Bad Acts Need Not be Less Disturbing than the Charged Offense

Aside from mistakenly placing the government’s need for the evidence on the unfair prejudice side of the scale, the court erred by stating that Stout’s prior act was unfairly prejudicial because it involved a more disturbing crime than those charged in the instant case. According to the district court, this case is unlike other decisions where prior bad acts were admitted because there the “prior bad acts evidence was evidence of a similar or lesser crime (or even a less disturbing non-criminal behavior) than the crime charged,” whereas here “the prior bad acts evidence is more disturbing and, frankly, creepier than the actual crime charged.” Dist. Ct. Op. at 11.

I find the Seventh Circuit’s decision in Sebolt to be particularly instructive on this point. The defendant in Sebolt was charged with possession of child pornography and the district court admitted the following prior bad acts to prove knowledge and intent: (1) his prior molestation of a young relative; (2) his trip to Wisconsin to have sex with another minor; (3) his failed attempts to molest other children; and (4) his possession of young boy’s underwear. Sebolt, 460 F.3d at 914. On appeal, the Sebolt court found no abuse of discretion in the admission of defendant’s prior actual molestations and attempted molestations because such a history “provided strong evidence of his motive to advertise child pornography online.”² Id. at 917. The court further explained that while the “motive to molest children does not completely overlap with the propensity to possess, transport, or advertise child pornography ... the conceptual gap between molestation and child pornography is not so wide as to induce the jury to decide the case on an improper basis.... ” Id. (citations and internal quotations omitted); see also United States v. Burt, 495 F.3d 733, 734, 741 (7th Cir.), cert. denied, — U.S. -, 128 S.Ct. 724, 169 L.Ed.2d 555 (2007) (finding no abuse of discretion under Rule 403 where the district court admitted testimony that defendant had repeatedly molested a child as evidence of his intent in a child pornography prosecution).

I can conceive of no principled reason why evidence of actual child molestation and attempted child molestation is less prejudicial and admissible in a child pornography prosecution, while surreptitiously videotaping — but never touching or attempting to touch a child — is unfairly prejudicial and inadmissible. Given that the evidence of prior molestations admitted in Sebolt was more disturbing than the charge of child pornography it was offered to prove, I believe that it undercuts the position taken by the district court and the majority. I agree with the Sebolt court and would hold that a prior bad act is not unfairly prejudicial simply because it is more lurid or “creepier” than that charged in the instant case. See generally United States v. Cummins, 969 F.2d 223, 226 (6th Cir.1992) (finding no abuse of discretion under Rule 403 where the district court admitted evidence of defendant’s prior drug dealing in his trial for suborning perjury even though drug dealing is a more severe crime than inducing one to lie).

2. Failure to Consider Alternative Means of Reducing Prejudicial Effect

Next, the district court erred by failing to consider the use of a limiting instruction to reduce any unfair prejudice resulting from the defendant’s prior conviction. Throughout the district court’s opinion, it addressed the admissibility of Stout’s prior conviction as a zero-sum game; admit the evidence in toto or exclude it in toto. Such an attitude is reflected in the district court’s statements that the prior bad act will “predominate this trial,” Dist. Ct. Op. at 8, and improperly become “a focus point of the case.” Dist. Ct. Op. at 11. At no point before excluding the evidence did the district court consider its ability to reduce any unfair prejudice by the use of a limiting instruction under Rule 105. As the Advisory Committee Note to Rule 403 indicates, before excluding evidence on the grounds of unfair prejudice “consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction.” Fed.R.Evid. 403, advisory committee’s note; see also Fed.R.Evid. 105, advisory committee’s note (explaining that the potential efficacy of a limiting instruction “must be taken into consideration in reaching a decision whether to exclude for unfair prejudice under Rule 403.”).

In this case, a properly crafted limiting instruction informing the jury that Stout’s prior conviction should only be considered as evidence of his knowledge and intent to possess and receive child pornography— and not for propensity purposes — would militate against any danger of unfair prejudice.³ At the very least, the district court should have indicated why a limiting instruction would have been insufficient to protect against the danger of unfair prejudice. See generally S.E.C. v. Peters, 978 F.2d 1162, 1172 (10th Cir.1992) (finding an abuse of discretion where the district court excluded prior bad acts evidence under Rule 403 without first considering the ability of a limiting instruction to reduce the danger of unfair prejudice).

C. Conclusion

As the foregoing analysis illustrates, errors of law pervaded the district court’s loading of the decisional scales for the Rule 403 balancing and those errors have been reproduced in today’s majority opinion. In this ease, the “district judge chose a balancing approach in the pretrial exclusion of evidence which did not reflect the standard established by Rule 403 ... [and][t]his improper balancing constituted an abuse of discretion and the grant of the motion in limine excluding the admission of [Stout’s prior act of videotaping a showering young girl] must be reversed.” Jackson, 886 F.2d at 848. Therefore, I would remand the case with instructions that evidence of Stout’s prior conviction (but not the underlying videotapes themselves) be admitted with a corresponding limiting instruction to the jury — or at a minimum that the district court withhold its decision on the admissibility of the pri- or conviction until the government has had the opportunity to present the bulk of its other evidence. The majority reaches an opposite conclusion, and I respectfully dissent.

1 . I pause to note that this case illustrates the difficulty presented when a district court is asked to arrive at a Rule 403 determination pre-trial, without the benefit of having heard at least some of the government’s case, but I also understand the parties' interest in having the issue resolved prior to the commencement of trial. This inherent difficulty notwithstanding, the errors committed by the district court in this case should not be overlooked.

2 . While it found the introduction of the prior actual and attempted molestations not to be an abuse of discretion, the Sebolt court did rule that the young boy’s underwear should have been excluded under Rule 403.

3 . Although the government initially sought to introduce evidence of Stout's conviction via: (1) the videotape of the showering girl; (2) the testimony of the investigating officer; and (3) the court records surrounding the conviction, the district court failed to consider how limiting the method of proof could limit the danger of unfair prejudice. I cannot imagine that the simple admission of court records indicating the conviction would become the "focus point” of the trial as the district court seemed to fear.