United States v. Curtin
| Decision Date | 04 April 2006 |
| Docket Number | No. 04-10632.,04-10632. |
| Citation | 443 F.3d 1084 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kevin Eric CURTIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Cal J. Potter, III, Esq., Las Vegas, NV, for appellant Kevin Eric Curtin.
Daniel J. Bogden, United States Attorney; Nancy J. Koppe, Assistant United
States Attorney, Las Vegas, NV, for respondent United States of America.
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: J. CLIFFORD WALLACE, STEPHEN S. TROTT, and PAMELA ANN RYMER, Circuit Judges.
Curtin appeals from his conviction and sentence for 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 of use of an interstate facility to attempt to persuade a minor to engage in sex, in violation of 18 U.S.C. § 2422(b). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for a new trial.
On the afternoon of February 11, 2004, Las Vegas Metropolitan Police Department Detective Michael Castaneda was acting undercover on the Internet as a 14-year-old girl using the screen name "christine13." Castaneda entered a chat channel labeled "ltgirlsexchat" and received an instant message from Curtin, who used the screen name "M-42SOCAL."
The detective, as "Christy," and Curtin "chatted" through instant messaging for approximately four hours. They exchanged photos early in the conversation. Castaneda sent Curtin a picture of a female police officer, taken when she was fourteen years old. Curtin said his name was "Kenny" and that he was forty-two years old, divorced, and living in Anaheim, California. He told Christy that he was planning to travel to Las Vegas on Friday, February 13 and invited her to go to a "Penn and Teller" show on Sunday, February 15. Christy agreed.
Curtin extensively discussed sex with Christy during this conversation, saying that he would love for her to "spend the night" after the show and hoped to "get a room." Curtin told Christy He added that they "could just make out or I could just give you oral sex or we could just fool around." Finally, Curtin made plans to meet Christy in the bowling alley of a Las Vegas casino at 2:00 p.m. on Sunday, February 15. At the end of the conversation, Curtin asked Christy to try sleeping naked that night, and to
The next day, Curtin sent Christy an email message saying The detective and Curtin later that day had another "chat" during which Curtin continued to make explicit references to having sex with Christy. Curtin concluded the "chat" by confirming their meeting and telling Christy he would introduce her to Penn and Teller as his niece, adding, "Let's not get caught, ever."
On that Sunday, the police officer whose picture was sent to Curtin waited in the bowling alley as a decoy, dressed in the clothes that Christy indicated she would be wearing. Eight to ten other law enforcement officers were also present. Curtin entered the bowling alley at 1:45 p.m. and walked towards the area where the decoy officer was sitting. He walked past her and then turned and walked past her again, looking at her each time. Curtin then left the area where the decoy was sitting and went to the back of the bowling alley, where he used his personal digital assistant. At the request of law enforcement officers, a casino security guard approached Curtin and asked for identification. Curtin showed the guard a United States passport and subsequently left the bowling alley area of the casino.
Curtin reentered the bowling alley approximately 2:05 p.m. He looked around and again walked to the area where the decoy officer was sitting. After less than a minute, he moved even closer to her, looking in her direction the entire time. He stopped behind the officer and she turned and said "hi" to him. Whether he said "hi" in return is disputed.
He then left the bowling alley and started getting into a van, at which point law enforcement officers stopped and asked him for identification. He was detained by police and advised of his rights under Miranda. After Curtin waived these rights, he agreed to speak with the law enforcement officers. In a voluntary statement, he stated that he had traveled by car to Las Vegas for meetings. He explained that he was at the bowling alley to meet a female friend he had met on the internet. He admitted to using the screen name and email address used to contact Christy. Curtin explained that he often enters chat rooms and "role play[s]" as if he is engaged in "daddy/daughter" type conversations, and that he expected Christy to be a thirty- to forty-year-old woman pretending to be a girl.
Curtin was then arrested by the Las Vegas police. Upon searching his van and hotel room, police seized his digital assistant and laptop computer. The digital assistant contained over 140 stories about adults having sex with children. The laptop contained a list of chat channels that Curtin had accessed in the past, as well as pictures of girls whose names matched some of those in his "chat" list.
Curtin was indicted on one count of travel with intent to engage in a sexual act with a juvenile, in violation of 18 U.S.C. § 2423(b), and one count of coercion and enticement, in violation of 18 U.S.C. § 2422(b). Curtin filed two motions in limine asking the district court to exclude the stories found on his digital assistant from evidence. The district court denied these motions in limine. On the second day of trial, the government offered two of the stories, "My Little Sister" and "Love for the World," to show modus operandi, intent, preparation, and knowledge. They were admitted over Curtin's objection. The engineer who extracted the stories from the digital assistant testified that both stories were about a father having sex with his young daughter and the daughter's enjoyment of the experience. However, when the government sought to introduce a third story, "Melanie's Busy Day," the district court stopped the questioning. The court allowed the government to ask general questions without admitting the stories, such as whether they all related to sex between a minor and an adult. However, recognizing the highly prejudicial nature of the stories, the court held that the story could be entered into evidence only if it tied into Curtin's intent, knowledge, preparation, or modus operandi.
The government then asked the court to make a preliminary legal determination about the admissibility of the remaining stories. The government argued that "Melanie's Busy Day" was admissible to show general intent, modus operandi, preparation, and knowledge because it had language similar to that used by Curtin in his email to Christy, namely, language concerning oral sex and a child masturbating. The government argued that "Missing Big Brother," which discussed how the adult did not want to hurt the child during sex, was also admissible for intent, modus operandi, preparation, and knowledge. The government made similar arguments with regard to seventeen other stories, with titles such as "I'm Being Molested," "The Good Girl," "A Relative Interest," "Restrictions," "Teaching the Kids," and "Mommy Juice."
The following morning, Curtin renewed his objection to the admission of the stories, arguing that they were highly prejudicial and were being admitted to show propensity. The district court held that if the government could cite a part of the story that related to one of the permissible purposes under Federal Rule of Evidence Rule 404(b), then the court would admit the entire story to show general intent.
The district court admitted to being unable to read the stories because they were so disturbing. However, after more argument, the district court agreed to give a limiting instruction and to admit five of the stories: "My Little Sister" (which involved incest and the impregnation of a nine year-old girl), "Love for the World" (which involved incest), "Restrictions" (same), "Daddy's Lessons" (same), and "Melanie's Busy Day" (which involved an eleven-year-old girl initiating sex with, among others, her father and her teacher).
The limiting instruction given was as follows:
A person cannot be charged nor convicted of literature that they read or that they possess. That's why I'm giving you the instruction.
But the Government has the obligation to prove, beyond a reasonable doubt, that the defendant had the wrongful intent. They may offer possession of such literature to show that. . . .
You may take this kind of evidence on the question of whether the defendant actually possessed the intent.
You may also take it on the additional questions which go to the question of intent, whether he practiced in this alleged conduct methodology consistent with literature that he had or tending to show that he prepared to commit the acts or that he had knowledge, that is, of how to commit the act or that the act was illegal. . . .
So, for those four reasons, only, the Government is offering to show that the defendant possessed this literature; intent, method, preparation, and...
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...18. A recent Ninth Circuit case that some might view as contrary to our conclusion is really of a different sort. In United States v. Curtin, 443 F.3d 1084 (9th Cir.2006), petition for rehearing en banc granted, 455 F.3d 1052 (9th Cir. Jul.28, 2006), the Ninth Circuit addressed the nature o......
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U.S. v. Curtin
...on Curtin's intent with respect to his conduct and behavior toward the object of his travel across state lines. United States v. Curtin, 443 F.3d 1084, 1094 (9th Cir.2006). Guided by language in Shymanovitz, the panel concluded that "`Possession of lawful reading material is simply not the ......