United States v. Andrew Rice

MEMORANDUM

Andrew David Rice appeals from his conviction and 108-month sentence for accessing child pornography with intent to view it, in violation of 18 U.S.C. § 2252A(a)(5)(B). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm the conviction. We vacate the sentence and remand for resentencing.

I. Motion in Limine

The district court erred in ruling that the “access[ing] with intent to view” prong of § 2252A(a)(5)(B) is a crime of general intent and in excluding Rice’s diminished capacity defense on that ground. See United States v. Twine, 853 F.2d 676, 680 (9th Cir.1988) (finding that an “intent to threaten” requires “a showing of specific intent”); United States v. Ross, 206 F.3d 896, 898-99 (9th Cir.2000) (reviewing de novo the district court’s ruling on a motion in limine when the order precludes the presentation of a defense).

The evidence Rice seeks to proffer, however, is not relevant to negate the intent element of the charged crime. It is relevant as an excuse or justification for his conduct, but this is not a permissible use of evidence bearing on a defendant’s diminished capacity. Twine, 853 F.2d at 679 . Because Rice’s evidence of Post Traumatic Stress…