U.S. v. Johnson

• Decision Date: 29 December 1997
• Docket Number: No. 96-10575,96-10575
• Citation: 132 F.3d 1279
• Parties: 48 Fed. R. Evid. Serv. 562, 97 Cal. Daily Op. Serv. 9701, 97 Daily Journal D.A.R. 15,573 UNITED STATES of America, Plaintiff-Appellee, v. Mark E. JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1279

132 F.3d 1279

48 Fed. R. Evid. Serv. 562, 97 Cal. Daily Op.

Serv. 9701,

97 Daily Journal D.A.R. 15,573

UNITED STATES of America, Plaintiff-Appellee, v. Mark E. JOHNSON, Defendant-Appellant.

No. 96-10575.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 9, 1997.

Decided Dec. 29, 1997.

Roger T. Nuttall, Nuttall Berman Attorneys, Fresno, California, for defendant-appellant.

Jonathan B. Conklin, Assistant United States Attorney, Fresno, California, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California; M.D. Crocker, Senior District Judge, Presiding. D.C. No. CR-95-05210-MDC.

Before: HUG, Chief Judge, and WALLACE and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Mark E. Johnson appeals his conviction and sentence for two counts of transportation of a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). Johnson also appeals the district court's restitution order following his guilty plea on one count of fraud in connection with access devices, in violation of 18 U.S.C. § 1029(a)(1), and one count of wire fraud, in violation of 18 U.S.C. § 1343.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and this court has jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

BACKGROUND

On August 13, 1993, Johnson contacted Rena Dankin, a regional coordinator for the Education Foundation, about serving as a host parent for a foreign exchange student. He told Dankin that he was interested in hosting a "Nordic boy" and arranged to have a seventeen-year-old Norwegian student, who was originally to have been placed in Minnesota, assigned to his California home. The Education Foundation informed the minor of the change in destination the night before he was to leave Norway, and he revised his travel plans accordingly.

The Norwegian minor arrived in the United States on August 17, 1993. He testified that less than one week after moving into Johnson's home, Johnson started discussing sexual matters with him. Approximately one week later, the talk turned to homosexual matters. The sexual nature of Johnson's conduct soon became physical, advancing over several weeks from a back rub to mutual masturbation to oral copulation to sodomy. Johnson told the minor not to discuss their sexual contact with anyone. In October 1993, the minor transferred to a new host family. Police later contacted the minor in the course of investigating a computer crime case in which Johnson was allegedly involved, and the minor told police what had transpired between himself and Johnson.

Johnson was indicted on July 20, 1995, and charged in a 115 count indictment. Counts one and two, which were severed from the rest, charged transportation of a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). The other 113 counts charged fraud in connection with access devices, wire fraud, and fraud and related activities in connection with computers, in violation of 18 U.S.C. §§ 1029(a)(1), 1343, and 1030(a)(6)(A), respectively. These charges arose from Johnson's alleged use of fictitious names and credit card numbers to gain access to the Prodigy computer network and to order goods and services therefrom.

Johnson was convicted on the § 2423(a) counts following a four-day jury trial. In exchange for Johnson's plea of guilty to one count of fraud in connection with access devices and one count of wire fraud, the government dismissed the other 111 counts. Johnson was sentenced to two concurrent terms of fifty-seven months in custody and to thirty-six months supervised release, and ordered to pay $5,408.58 in restitution to Prodigy Services, Inc. and a $200.00 special assessment.

DISCUSSION

I

The first issue on appeal concerns whether the district court erred in admitting prior bad act evidence at Johnson's trial on the § 2423(a) charges. Two witnesses testified about sexual contact in which Johnson had engaged them approximately thirteen years earlier, when each witness was in his teens. We review for abuse of discretion the district court's decision to admit this evidence of prior bad conduct. See United States v. Hinton, 31 F.3d 817, 822 (9th Cir.1994); United States v. Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir.1993).

Rule 404(b) of the Federal Rules of Evidence precludes the admission of prior bad act evidence offered only to show criminal propensity. So long as the evidence is offered for a proper purpose, such as to prove intent, the district court is accorded wide discretion in deciding whether to admit the evidence, and the test for admissibility is one of relevance. See Huddleston v. United States, 485 U.S. 681, 687-88, 108 S.Ct. 1496, 1499-500, 99 L.Ed.2d 771 (1988); United States v. Hadley, 918 F.2d 848, 850 (9th Cir.1990). To be probative of something other than criminal propensity, the prior bad act evidence must: (1) prove a material element of the crime currently charged; (2) show similarity between the past and charged conduct; (3) be based on sufficient evidence; and (4) not be too remote in time. Hinton, 31 F.3d at 822. Once relevance is established, the district court should admit the evidence unless its prejudicial impact substantially outweighs its probative value. See United States v. Boise, 916 F.2d 497, 502-03 (9th Cir.1990).

Here all four Rule 404(b) criteria are satisfied. Intent is plainly an element of transporting a minor with intent to engage in criminal sexual activity under 18 U.S.C. § 2423(a), and the testimony of both prior bad act witnesses was relevant to prove Johnson's intent to engage in unlawful sexual activity with the Norwegian minor. ¹ Johnson does not dispute the relevance of the testimony for this purpose but instead argues that the intent required by § 2423(a) is intent to transport, not intent to engage in illegal sexual conduct. This argument is belied by the language of § 2423(a), which speaks of transporting a minor "with intent that such individual engage in ... any sexual activity for which any person can be charged with a criminal offense."

The second Rule 404(b) criterion, which requires sufficient similarity between the past conduct and the conduct charged, is also satisfied. Johnson's past conduct need not be identical to the conduct charged, but instead need only be similar enough to be probative of intent. See United States v. DeSalvo, 41 F.3d 505, 509-10 (9th Cir.1994); United States v. Hernandez-Miranda, 601 F.2d 1104, 1108-09 (9th Cir.1979). The first prior bad act witness testified that when he was in his early teens, Johnson invited him into his home and tried to seduce him into engaging in consensual sexual activity-advancing from a back rub to masturbation to an attempt to lure the minor boy into bed. The second witness testified about a series of conversations he had with Johnson when the witness was a teenager, progressing from a few "random conversations" about girlfriends to Johnson's graphic descriptions of orgies he had attended. Johnson invited the witness to these orgies on several occasions and described the conduct in which he would be expected to engage with men and women.

The fact that the progression of sexual activity between Johnson and the first witness occurred over the course of a single afternoon, as opposed to a period of several weeks with the Norwegian minor, and that Johnson's sexual contact with the second witness never became physical does not negate the probative value of the evidence. Indeed, an expert testified that Johnson's conduct toward the witnesses was simply a less sophisticated form of "shaping and grooming" than that in which Johnson engaged the Norwegian minor. ² Thus, the past acts about which the witnesses testified, although not identical to the crime charged, were sufficiently similar to be probative of Johnson's intent under Rule 404(b). See Hadley, 918 F.2d at 851.

The prior bad act testimony was also supported by sufficient evidence, thus satisfying the third Rule 404(b) criterion. "[S]imilar act evidence is relevant ... if the jury can reasonably conclude that the act occurred and that the defendant was the actor." Huddleston, 485 U.S. at 689, 108 S.Ct. at 1500. This reliability threshold is not a high one, and the testimony of a single witness can be sufficient. See Hinton, 31 F.3d at 823 ("[W]e are not persuaded that where a witness testifies as to the defendant's prior bad acts, the jury must be presented with evidence corroborating the witness' testimony to satisfy the 'low threshold required by [this] part ... of the test.' ") (quoting United States v. Houser, 929 F.2d 1369, 1373 (9th Cir.1990)). The witnesses' testimony concerning Johnson's sexual advances amounted to more than unsubstantiated innuendo, see Huddleston, 485 U.S. at 689, 108 S.Ct. at 1500, and the trial judge properly concluded that the jury could reasonably find by a preponderance of the evidence that the prior acts had occurred.

The fourth Rule 404(b) criterion is also satisfied notwithstanding the thirteen or more years that had elapsed since the events about which the witnesses testified. This court has not identified a particular number of years after which past conduct becomes too remote. See Hadley, 918 F.2d at 851. Rather, "[d]epending upon the theory of admissibility and the similarity of the acts ... some remote acts may be extremely probative and relevant." United States v. Spillone, 879 F.2d 514, 519 (9th Cir.1989). The prior act evidence in this case is sufficiently similar to the charged conduct to render it probative despite the passage of time.

Finally, the district court did not abuse its discretion in determining that the probative value of the prior act evidence was not substantially outweighed by its prejudicial effect. Although the district court explicitly referenced Rule 403 in ruling on the admissibility of only one witness' testimony, "[t]he ...