United States v. Kevin Eric Curtin
2007 U.S. App. LEXIS 12110, 489 F.3d 935, 73 Fed. R. Serv. 646 (2007)
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Rule of Law:
A defendant's possession of lawful reading material is not categorically excluded from admission under Federal Rule of Evidence 404(b) to prove intent. However, for such potentially prejudicial evidence to be properly admitted, a trial court must conduct a thorough Federal Rule of Evidence 403 balancing test, which requires the judge to personally read and examine the evidence in its entirety.
Facts:
- Las Vegas police detective Michael Castaneda, posing as a 14-year-old girl named "Christy," entered an internet chat room.
- Kevin Eric Curtin, a 42-year-old from Anaheim, California, initiated an instant message conversation with "Christy."
- Over four hours, Curtin and "Christy" exchanged photos and Curtin extensively discussed having sex with her, including oral sex.
- Curtin arranged to travel from California to Las Vegas, Nevada, to meet "Christy" at a casino bowling alley on February 15.
- Curtin traveled to Las Vegas as planned and entered the designated bowling alley at the arranged time.
- Upon his arrest, police found over 140 stories about adults having sex with children on Curtin's personal digital assistant (PDA).
- Curtin's stated defense was that he was engaging in "role-playing" and believed he was communicating with a 30- to 40-year-old woman who was pretending to be a girl.
Procedural Posture:
- Kevin Eric Curtin was charged in federal district court on one count of travel with intent to engage in a sexual act with a juvenile and one count of coercion and enticement.
- A jury in the district court (a court of first instance) convicted Curtin on both counts.
- Curtin appealed his conviction to a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit panel reversed Curtin's conviction, relying on the court's precedent in Guam v. Shymanovitz.
- The U.S. Court of Appeals for the Ninth Circuit then granted a rehearing en banc to reexamine the panel's decision and the Shymanovitz precedent.
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Issue:
Does a district court abuse its discretion under Federal Rule of Evidence 403 by admitting potentially prejudicial evidence for the purpose of proving intent without having read the evidence in its entirety?
Opinions:
Majority - Judge Trott
Yes. A court does not properly exercise its balancing discretion under Federal Rule of Evidence 403 when it fails to place on the scales and personally examine all that it must weigh. The court explicitly overrules Guam v. Shymanovitz, holding that lawful reading material is not categorically inadmissible under Rule 404(b) to prove a defendant's intent, particularly when state of mind is the central disputed issue and the First Amendment provides no evidentiary privilege. In this case, Curtin's possession of stories depicting sex with children was highly relevant to rebut his defense that he intended to meet an adult for a role-playing fantasy. However, given the inflammatory and reprehensible nature of the stories, the trial court was required to read them in their entirety to properly conduct the Rule 403 balancing of probative value against unfair prejudice. The court's failure to do so, which resulted in the admission of a story containing a graphic and irrelevant description of bestiality, was an abuse of discretion that was not harmless error.
Concurring - Judge Kleinfeld
Yes, the conviction should be reversed, but for the additional reason that the stories should have been excluded as irrelevant under Rule 401 and as improper character evidence under Rule 404(a). The link between fantasy and intent is too tenuous for reading material to be probative, and its admission chills First Amendment rights. The stories describe incest, which is a different act than what Curtin was charged with intending. Even if marginally relevant, the stories' capacity to generate intense disgust in the jury creates unfair prejudice that substantially outweighs any probative value, mandating exclusion under Rule 403. While the judge's failure to read the evidence is a sufficient ground for reversal, the evidence should have been excluded on more fundamental grounds.
Concurring - Judge McKeown
Yes. The conviction should be reversed and the case remanded for the single, undisputed reason that the district judge failed to read all of the evidence before conducting the required Rule 403 balancing test. The majority's extensive discourse on Rules 401 and 404 and its decision to overrule Guam v. Shymanovitz is dicta and unnecessary to the resolution of the case.
Concurring - Judge Wardlaw
Yes. The district court erred by failing to determine which specific portions of the stories were relevant and then failing to conduct a proper Rule 403 analysis for both prejudice and cumulative evidence. The court did not necessarily err in finding some portions of the stories relevant to intent. The reversal is proper because the court did not read the stories in their entirety, which is a prerequisite to properly weighing their relevance against their potential for unfair prejudice and redundancy.
Analysis:
This en banc decision significantly alters Ninth Circuit evidence law by overruling Guam v. Shymanovitz, which had created a barrier against using lawful reading material as 'other acts' evidence under Rule 404(b). The court aligns its jurisprudence with the Supreme Court's guidance in Huddleston, emphasizing Rule 404(b)'s inclusive nature for proving a defendant's mental state. However, the ruling simultaneously establishes a critical procedural safeguard: trial judges must personally and thoroughly review potentially inflammatory evidence to conduct a meaningful Rule 403 balancing test. This dual holding will likely increase prosecutorial attempts to admit such evidence while empowering the defense to demand rigorous judicial scrutiny before it reaches a jury.
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