United States v. J.D. Todd

964 F.2d 925 35 Fed. R. Evid. Serv. 946 UNITED STATES of America, Plaintiff-Appellee, v. J.D. TODD, Defendant-Appellant. No. 90-10437. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 11, 1991. Decided May 19, 1992. John J. Trebon, Flagstaff, Ariz., Law Office of Alex A. Gaynes, Tucson, Ariz., for defendant-appellant. Janet L. Patterson, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before: CANBY and KOZINSKI, Circuit Judges, and MARILYN HUFF, * District Judge. PER CURIAM. 1 A jury found J.D. Todd guilty of three counts of public sexual indecency. The district court sentenced Todd to two and a half years' imprisonment on each count, to run consecutively. Todd appeals the conviction and sentence. FACTS 2 Todd was the teacher-supervisor in charge of discipline at the Lowell Greasewood Boarding School on the Navajo Reservation in Ganado, Arizona. In May 1987, the FBI began an investigation into allegations that Todd had engaged in sexual misconduct with students at the school. Todd was eventually indicted on twenty-six counts for alleged violations of a variety of state and…

A jury found J.D. Todd guilty of three counts of public sexual indecency. The district court sentenced Todd to two and a half years’ imprisonment on each count, to run consecutively. Todd appeals the conviction and sentence.

FACTS

Todd was the teacher-supervisor in charge of discipline at the Lowell Grease-wood Boarding School on the Navajo Reservation in Ganado, Arizona. In May 1987, the FBI began an investigation into allegations that Todd had engaged in sexual misconduct with students at the school. Todd was eventually indicted on twenty-six counts for alleged violations of a variety of state and federal statutes. Before trial, the district court dismissed eight counts charging child molestation, solicitation to commit child molestation, furnishing obscene material to minors, public sexual indecency, and sexual abuse of a minor. Todd was convicted by a jury of the remaining counts, which charged child molestation, public sexual indecency, and sexual conduct with a minor. Five of the counts *927 charging sexual conduct with a minor were subsequently dismissed on the government’s motion. The district court then sentenced Todd to a total of ninety-nine years’ imprisonment.

On…

concurring in part and dissenting in part:

I concur in all of the majority opinion except that portion of Section C that holds the admission of Exhibits 4-A and 22-E, if error, to be harmless. The credibility of the prosecution witnesses was very much *933 in issue. The photographs, of a man identified as Todd masturbating and of a young boy’s genitals, were of a nature likely to lead a jury, in the absence of limiting instructions, to conclude that Todd is a bad man and therefore must be guilty of something.

The majority opinion concludes that Exhibit 4-A, the photograph of the man masturbating, must have been either disregarded by the jury or used to show Todd’s modus operandi in masturbating, which is a proper use. Those two possibilities, however, do not encompass the universe; the jury could simply have been adversely influenced or prejudiced by the photograph as illustrating guilty character of Todd.

Nor am I convinced that the admission of Exhibit 22-E, the photograph of a young boy’s genital area, without limiting instructions, was harmless because there was testimony that other pictures and magazines of similar nature had been found in Todd’s house. The potential of…