United States v. Kevin Eric Curtin

Opinion by Judge TROTT; Concurrence by Judge KLEINFELD; Concurrence by Judge McKEOWN; Concurrence by Judge WARDLAW.

As the end result of a successful law enforcement sting designed to apprehend sexual predators searching for potential juvenile victims on the Internet, appellee *937 Kevin Eric Curtin was convicted in federal court by a jury of the felony crimes of (1) traveling across state lines with intent to engage in a sexual act with a minor, in violation of 18 U.S.C. § 2423 (b), and (2) using an interstate facility to attempt to persuade a minor to engage in sexual acts, in violation of 18 U.S.C. § 2422 (b). To prove that Curtin harbored the specific subjective intent these crimes require, the government used as evidence lewd stories describing sexual acts between adults and children in Curtin’s immediate possession when arrested.

Relying in large measure on an alternative holding in Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir.1998) (as amended), a divided panel of this Court reversed Cur-tin’s conviction on the ground that the district court erred in admitting in evidence the sexually explicit materials in his possession for the limited purpose of shedding light on…

concurring:

I concur in the reversal of Curtin’s conviction. I agree with the majority that a trial judge must examine evidence in order to weigh its probative value against the potential for unfair prejudice, but disagree about whether the stories in question were relevant and admissible to show intent.

We ought to be wary when the government wants to use what people read against them. Our freedom to read and think requires a high wall restricting official scrutiny. The government (or others) can smear people by revealing what books they buy and borrow from the library, what magazines they purchase at the newsstand, what movies they rent at the video store, 1 and what they look at on the internet. And not just for smut. Can the government introduce a defendant’s copy of The Monkey Wrench Gang, 2 Lolita, 3 or Junky, 4 to prove intent? DVDs of The Thomas Crown Affair to prove intent to rob a bank, 5 or Dirty Harry to prove intent to deprive someone of civil rights? 6 Huckleberry Finn (with quotes out of context) to prove hate crime motivation? In the 1950s, people with leftist books sometimes shelved them spine to the wall, out of fear that visitors would see and report them.…

concurring:

All fifteen judges on the en banc court agree on one undisputed fact and on the single reason to remand this case: the district judge did not read all of the pornographic stories admitted into evidence to weigh their probative value against the potential for unfair prejudice. Nothing more needs to be said.

Instead of simply stopping at deciding the case, the majority goes on at length about whether to overrule Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir.1998), which has nothing to do with the failure to review the evidence, and speculates about how the Federal Rules of Evidence might play out on remand. The bulk of the majority’s discourse is dicta. See United States v. Henderson, 961 F.2d 880, 882 (9th Cir.1992) (defining dicta as language that is “unnecessary to [the court’s] holding”). Once the case goes back to the district court, we don’t know how it will be resolved. Maybe there will be a plea. Or, if there is a retrial, we don’t know what evidence the prosecutor will offer or how the district court will rule. Indeed, after this appeal, the prosecution may well reevaluate the need or admissibility of these salacious stories. Nonetheless, the majority offers a…

concurring:

I concur only in the result. On the record before us, I cannot say that the district court abused its discretion by finding some portions of five recently downloaded stories that Curtin had in his possession relevant and admissible to show motive and intent. The district court erred, however, by failing to determine which portions of the stories it deemed relevant. It further abused its discretion by failing to conduct a proper Rule 403 analysis. And, unlike some of my colleagues, I do not read Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir.1998), to hold that the possession of lawful reading mate *966 rial is never admissible to prove intent under any circumstances.

Notwithstanding the Rule 403 error, the district court’s limiting instructions were extensive and necessary here to cabin the jury’s consideration to the relevant aspects of the admitted stories. The court emphasized, “No one can be convicted for simply their proclivity or thoughts.” This directive recognized the very real concerns Judge Kleinfeld discusses in his concurrence, which I share. Through it, the district court properly sought to restrain the jury from going down the path of Big Brother.

The use…

489 F.3d 935 UNITED STATES of America, Plaintiff-Appellee, v. Kevin Eric CURTIN, Defendant-Appellant. No. 04-10632. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc October 3, 2006. Filed May 24, 2007. Cal J. Potter, III, Potter Law Offices, Las Vegas, NV, for the defendant-appellant. Nancy J. Koppe, Assistant United States Attorney, and Robert L. Ellman, Appellate Chief, United States Attorneys' Office, Las Vegas, NV, for the plaintiff-appellee. Appeal from the United States District Court for the District of Nevada; Robert C. Jones, District Judge, Presiding. D.C. No. CR-04-00064-RCJ/PAL. Before: MARY M. SCHROEDER, Chief Judge, and J. CLIFFORD WALLACE, HARRY PREGERSON, ALEX KOZINSKI, STEPHEN S. TROTT, PAMELA ANN RYMER, ANDREW J. KLEINFELD, SIDNEY R. THOMAS, BARRY G. SILVERMAN, SUSAN P. GRABER, M. MARGARET McKEOWN, KIM McLANE WARDLAW, MARSHA S. BERZON, JAY S. BYBEE, CONSUELO M. CALLAHAN, Circuit Judges. Opinion by Judge TROTT; Concurrence by Judge KLEINFELD; Concurrence by Judge McKEOWN; Concurrence by Judge WARDLAW. TROTT, Circuit Judge. 1 As the end result of a successful law enforcement sting designed to apprehend sexual predators searching for…