489 F.3d 935 (9th Cir. 2007), 04-10632, United States v. Curtin

Docket Nº:04-10632.
Citation:489 F.3d 935
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kevin Eric CURTIN, Defendant-Appellant.
Case Date:May 24, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 935

489 F.3d 935 (9th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kevin Eric CURTIN, Defendant-Appellant.

No. 04-10632.

United States Court of Appeals, Ninth Circuit.

May 24, 2007

Argued and Submitted En Banc October 3, 2006.

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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.

OPINION

TROTT, Circuit Judge.

As the end result of a successful law enforcement sting designed to apprehend sexual predators searching for potential juvenile victims on the Internet, appellee

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Kevin Eric Cur-tin 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 Curtin'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 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 type of conduct contemplated by Rule 404(b)' " of the Federal Rules of Evidence. Id. at 1091 (quoting Shymanovitz, 157 F.3d at 1159).

We took this case en banc (1) to revisit the panel's decision, and (2) to reexamine Shymanovitz's categorical exclusion as a matter of law of reading materials from the varieties of evidence that might otherwise fall within the reach of Rule 404(b). We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291, and, because of a serious flaw in the manner in which the trial court reviewed Curtin's stories pursuant to Federal Rule of Evidence 403, we reverse and remand for a new trial.

I

On the afternoon of February 11, 2004, Las Vegas Metropolitan Police Department Detective Michael Castaneda, while patrolling the Internet as a 14-year-old girl using the screen name "christy13,"1 entered a chat channel labeled "lt-girlsexchat." He received an instant message from Curtin, who used the screen name "M-42SOCAL." According to the evidence, the chat channel is a place where people go to talk sex with little girls.

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, Nevada, on Friday, February 13, and invited her to go to a "Penn and Teller" show on Sunday, February 15. Penn and Teller are well-known magicians who per-form regularly in Las Vegas. 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, "I want to make you happy .... If you were masturbating and fantasizing about sex, I'd love to have sex with you." He added that they "could just make out or I could just give you oral sex or we could just fool around." Finally, Cur-tin made plans to meet Christy in the bowling alley of a Las Vegas casino

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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 "imagine my face moving between your legs and licking you. Imagine my tongue penetrating you."

The next day, Curtin sent Christy an email message saying, "I can't tell you how much I'm looking forward to Sunday. We're going to have a great time." 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 that he, as her relative Uncle Kevin, 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 also were present. Cur-tin entered the bowling alley at 1:45 p.m. and walked toward 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 sit-ting 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 at 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 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.

Curtin 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 Miranda rights. After he 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. The personal digital assistant, which was taken from him at the time of his arrest, contained in the form of text over 140 stories about adults having sex with children. The laptop contained a list of chat channels that Curtin had used 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).

II

A.

Prior to the trial, it became clear that the only disputed issue in this case would be Curtin's subjective intent: did he intend

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to hook up sexually with a minor, or with a 30- to 40-year-old woman who liked to engage in sex acts while pre-tending she was a child having incestuous sex with her daddy? Curtin first framed this issue in a motion in limine to dismiss the indictment on the ground that the "undisputed and uncontested facts" made it patently obvious that the government had "no credible evidence to suggest that [Curtin's] subjective intentions were to travel to Las Vegas to have sex with a minor":

Curtin did not possess an intent to have sex with a 14 year old girl when he got into his car and drove to Las Vegas; the overwhelming evidence points the other way. His voluntary statement, given minutes after he was stopped by the police, shows this.... [W]hen he left California to go to Las Vegas, he was going to find work, and at the time he left California to travel to Nevada, he had no intentions of having relations with a minor, as irrebuttably shown by the fact that he did not so much as talk to the person.

. . . Curtin's intentions were to try to meet a 30-40 year old woman who had been fantasizing. It is not even close.

. . . As the defendant's intent was not to have sex with a minor, nor to entice a minor, nor to travel interstate to have sex with a minor, . . . this case must be dismissed. In the instant case, the defendant did not think he was dealing with a minor. The police knew there [was] not a minor and in fact there was not a minor.

(Emphasis added.)

Thus, the line was drawn. Curtin's defense was a matter of record, and he would not seriously contest the other elements of the crimes charged against him. The trial would be about the sole issue of intent and what was in Curtin's mind during his undisputed conduct with "christy13."

In order to convince the jury that Curtin was actually innocent,...

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