U.S. v. Long

• Decision Date: 16 May 2003
• Docket Number: No. 02-3003.,02-3003.
• Citation: 328 F.3d 655
• Parties: UNITED STATES of America, Appellee, v. Kenneth Keith LONG, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

328 F.3d 655

UNITED STATES of America, Appellee, v. Kenneth Keith LONG, Appellant.

No. 02-3003.

United States Court of Appeals, District of Columbia Circuit.

Argued March 13, 2003.

Decided May 16, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Columbia (No. 99cr00182-01).

Neil H. Jaffee, Assistant Federal Public Defender, argued the cause for appellant. With him on the briefs was A. J. Kramer, Federal Public Defender.

Mary B. McCord, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Roscoe C. Howard, Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese III, Gregg A. Maisel and Sherri L. Berthrong, Assistant U.S. Attorneys.

Before: RANDOLPH and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Two main issues predominate in this appeal of a criminal conviction for interstate transportation of a minor with intent to engage in criminal sexual activity and possession of photographs of minors engaged in sexually explicit conduct. The first issue is whether the district court abused its discretion in admitting other-acts evidence and expert testimony; the second involves the standard of proof to be applied at sentencing. Kenneth Keith Long appeals his conviction on the ground that the district court admitted extrinsic evidence of Long's sexual activity with young adults and of his possession of photographs depicting unidentified individuals for no proper reason under Federal Rule of Evidence 404(b), thereby creating a prejudicial risk of misuse of the evidence to show propensity under Federal Rule of Evidence 403. Long also contends that the district court erred by permitting the government to introduce expert testimony profiling "preferential sex offenders" in violation of Federal Rules of Evidence 404(a) and 403. Long's challenge to his sentence arises because the district court's application of the cross references in §§ 2G1.1(c)(1) and 2G2.4(c)(1) of the Sentencing Guidelines resulted in an eight-level increase in his offense level. He contends that this increase required clear and convincing proof (of which, he claims, there is none) to show that his offenses included conduct that had as its purpose the production of sexually explicit depictions of the minors, as required by the cross references.

Under Rules 401, 403, and 404, a defendant is entitled to the considered judgment of the district court before evidence of uncharged conduct is admitted. In the main, these are rules of admission, subject to limited exceptions to be applied in the exercise of the district court's discretion. The record makes clear that Long received his due. The district court's examination of the government's proffered evidence was sensitive to the prejudicial effect of which Long complains on appeal, while remaining responsive to the government's need to rebut Long's defense and present its case, see Old Chief v. United States, 519 U.S. 172, 182-83, 187-88, 117 S.Ct. 644, 651-52, 653-54, 136 L.Ed.2d 574 (1997), and we find no abuse of discretion by the district court in the application of Rules 401, 403, and 404. We further find no error by the district court in applying a preponderance of the evidence standard at sentencing, and that Long's evidentiary challenges to his sentence fail. Accordingly, because Long's challenges to the sufficiency of the evidence under counts four and seven are without merit, we affirm.

I.

The evidence at trial revealed that Long, a Baptist minister and substitute teacher, became acquainted through those positions with a number of minor boys between thirteen and sixteen years of age. Six of the boys were the victims underlying the charges in the indictment. According to the six boys' trial testimony, Long engaged in a pattern of conduct that resulted in sexual contact with them, often taking sexually explicit photographs. In addition to the six boys, the government called two non-minor males, "FM" and "AG," ages sixteen and nineteen at the time of their interaction with Long, who testified that Long had engaged in similar patterns of conduct resulting in sexual activity with them and had taken sexually explicit photographs. The government also introduced a large number of photographs — over 250 — found in Long's apartment, showing the minor victims and other young males in sexually explicit poses. Finally, the government presented Federal Bureau of Investigation Agent Kenneth Lanning, who testified as an expert "in the field of sexual exploitation of children," including "the typology, identification, characteristics, and strategies of sexual offenders, in particular preferential sexual offenders," as well as "the characteristics and behavior of child victims of sexual abuse."

Long was tried on a seven-count indictment charging four counts of interstate transportation of a minor with the intent to engage in criminal sexual activity, 18 U.S.C. § 2423(a) (2000), and two counts of possession of visual depictions of minors engaged in sexually explicit conduct, 18 U.S.C. § 2252(a)(4)(B) (2000). The government dismissed a seventh count, for sexual exploitation of a child, during trial. The jury returned a split verdict: it found Long guilty of two counts of interstate transportation and two counts of possession of child pornography but not guilty of one count of interstate transportation (of "JLG"); it deadlocked on another count of interstate transportation (of "EB"), which the government later dismissed. After denying Long's motion for a new trial, the district court sentenced Long to 360 months imprisonment followed by three years supervised release, imposed a fine and assessment, and recommended mental health counseling under the Bureau of Prisons' sex offender treatment program.

II.

On appeal, Long contends that the district court abused its discretion in admitting two types of evidence. First, Long contends that the district court erred in admitting the testimony of FM and AG, who were not minors under the applicable statute at the time of their acquaintances with Long. Acknowledging that FM's testimony was "prejudicial," the district court ruled the testimony was admissible to show intent, modus operandi, and absence of mistake or accident. Similarly, the court ruled that AG's testimony was admissible and instructed the jury that it could consider AG's testimony only to determine whether Long acted with a criminal intent with respect to the charges in the indictment, engaged in a scheme or plan, used a similar modus operandi, had a motive to commit the charged crimes, or acted knowingly. The court cautioned that the jury could not consider either man's testimony to find that Long had a bad character or criminal propensity. Long contends that testimony about his lawful acts was not relevant under Federal Rule of Evidence 401 to establishing criminal intent, modus operandi, or a common plan or scheme. He further contends that the testimony was inadmissible character evidence under Rule 404(b) and should have been excluded under Rule 403 because its unfair prejudicial effect substantially outweighed its probative value.

Our review of the district court's Rule 404(b) rulings is for abuse of discretion, United States v. Bowie, 232 F.3d 923, 926-27 (D.C.Cir.2000) (citations omitted), and necessarily affords the district court "much deference," United States v. Cassell, 292 F.3d 788, 792 (D.C.Cir.2002) (quotation and citation omitted). A district court's ruling on a Rule 404(b) objection will be sustained so long as the evidence is relevant under Rule 401 and is offered as proof of a matter other than the defendant's character or propensity to commit a crime. Bowie, 232 F.3d at 930. Evidence of similar acts must also be sufficient to support a jury finding that the defendant committed the other crime or act. Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988).

Under Rule 401, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Not all relevant evidence, however, is admissible. Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Fed.R.Evid. 404(b). But the rule stipulates that such evidence "may... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...." Id. Under the law of this circuit, "Rule 404(b) is a rule of inclusion rather than exclusion," Bowie, 232 F.3d at 929, and it is "quite permissive," excluding evidence only if it is offered for the sole purpose of proving that a person's actions conformed to his or her character. Id. at 929-30 (quotation and citations omitted).

Among the several grounds for admitting the testimony of FM and AG, the district court found that it was probative of Long's intent to engage in criminal sexual conduct with the six minor victims. Long contends that this was not a proper ground for admission because there is an incongruence between Long's intent to engage in lawful sexual conduct with males over the age of sixteen and his alleged intent to engage in unlawful sexual conduct with minor boys. Extrinsic act evidence is admissible under the intent theory, he maintains, only if the intent underlying the extrinsic act is the same illegal intent required for the charged act.

Evidence of a similar act must meet a threshold level of similarity in order to be admissible to prove intent, see Jankins v. TDC Mgmt. Corp., 21 F.3d 436, 441 (D.C.Cir.1994); United States v. Foskey, 636 F.2d 517, 524 (D.C.Cir.1980), but the court has not required...