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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 13, 2003 Decided May 16, 2003

No. 02-3003

UNITED STATES OF AMERICA,

APPELLEE

v.

KENNETH KEITH LONG,

APPELLANT

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

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

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 sen-
3

sitive 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 (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
4

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
5

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 (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 TTT

be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accidentTTTT’’ 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 be-
6

tween 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 the sort of exact

congruence that Long suggests. On the contrary, ‘‘Rule

404(b)’s terminology ‘other crimes, wrongs, or acts’ includes

conduct that is neither criminal nor unlawful if it is relevant

to a consequential fact.’’ 2 Weinstein’s Federal Evidence

§ 404.20[2][a] (2d ed. 2003) (footnote omitted). The other

activity need not have resulted in a charge or conviction;

indeed, the defendant may even have been acquitted of the

conduct, or the conduct may have been entirely lawful. Id.

§ 404.21[2][b]; e.g., United States v. Cavin, 39 F.3d 1299,

1311 (5th Cir. 1994); United States v. Ashman, 979 F.2d 469,

492 (7th Cir. 1992); United States v. Brown, 961 F.2d 1039,

1042 (2d Cir. 1992); United States v. Atwell, 766 F.2d 416,

421–22 (10th Cir. 1985) (per curiam). What matters is that

the evidence be relevant ‘‘to show a pattern of operation that

would suggest intent’’ and that tends to undermine the defendant’s innocent explanation. 2 Weinstein’s Federal Evidence

§ 404.22[1][a]. Thus, this court has opined, ‘‘the admissible

bad acts evidence need not show incidents identical to the

events charged, so long as they are closely related to the

offense,’’ United States v. DeLoach, 654 F.2d 763, 769 (D.C.

Cir. 1980), and are probative of intent rather than mere

propensity.

The chief theory of Long’s defense was that the six alleged

minor victims had fabricated their tale of sexual abuse. Long

thus denied not that he had a close relationship with the boys,

but rather that he had ever engaged in sexual activity with

them. The testimony of FM and AG was relevant to show

Long engaged in a ‘‘pattern of operation,’’ 2 Weinstein’s
7

Federal Evidence § 404.22[1][a], that lends credence to the

minors’ assertions that in their cases as well the seemingly

innocent behavior culminated in sexual contact. The manner

in which Long developed a relationship with the minor boys

was strikingly similar to the way in which he ingratiated

himself to FM and AG. Like the minor victims, FM was a

special education student, and Long asked FM to give Long

‘‘candy’’ whenever Long wanted oral sex, in exchange for

which Long promised to buy FM sneakers and other gifts.

Long also sought to videotape and take photographs of FM

masturbating. AG, too, was a special education student for

whom Long was a substitute teacher, and AG, too, received

offers of gifts from Long in addition to overt sexual advances.

As he had done with the six minors, Long recruited FM and

AG to join the Alpha Phi Gents fraternity, which both witnesses understood would (and, in FM’s case, did) involve

sexual acts. In a similar context, the Seventh Circuit held

that ‘‘classic modus operandi evidence used to respond to the

defense argument that [the defendant] had only innocent

intentions’’ with respect to the young male victim was ‘‘highly

probative of intent.’’ United States v. Romero, 189 F.3d 576,

588 (7th Cir. 1999). So, too, the testimony of FM and AG met

the threshold level of similarity to the charged events and

tended to establish that Long’s pattern of ingratiation was

animated by an intent to engage in sexual contact. As such,

the testimony of FM and AG was admissible for a proper

purpose under Rule 404(b). See United States v. Crowder,

141 F.3d 1202, 1209 (D.C. Cir. 1998) (Crowder II).

Long contends, however, that even if the testimony of FM

and AG was relevant for a purpose unrelated to criminal

propensity, its ‘‘slight probative value was substantially outweighed by the unfair risk that the jury would infer that

Long had a propensity to engage in sexual activities with

teenagers—be they minors or young adults.’’ Appellant’s Br.

at 20. Under Rule 403, relevant evidence ‘‘may be excluded if

its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the

jury, or by TTT needless presentation of cumulative evidence.’’

Fed. R. Evid. 403. This court has observed that ‘‘Rule 403
8

contemplates the thoughtful consideration of the trial court

and leaves the admission of evidence to the sound discretion

of the trial judge.’’ United States v. Boney, 977 F.2d 624, 631

(D.C. Cir. 1992). Because ‘‘[t]he trial court is in the best

position to perform’’ the ‘‘subjective balancing’’ that Rule 403

requires, its decision is reviewed only for ‘‘ ‘grave abuse.’ ’’

United States v. Washington, 969 F.2d 1073, 1081 (D.C. Cir.

1992) (citations omitted).

The district court concluded that the significant probative

value of FM’s and AG’s testimony was ‘‘not substantially

outweighed by the danger of unfair prejudice or confusion of

the issues or misleading the jury’’ in light of instructions that

the court would give to the jury. See Crowder II, 141 F.3d at

1210 (citing Fed. R. Evid. 403, advisory committee notes); see

also United States v. Hersh, 297 F.3d 1233, 1254 n.31 (11th

Cir.), cert. denied, 123 S. Ct. 1319 (2002). Its probative force

arose because the men, at or above the age of consent, were

still teenagers, and Long did not claim they lied about his

sexual contact with them. Limiting instructions may sometimes demand of jurors ‘‘a mental gymnastic which is beyond,

not only their powers, but anybody’s else,’’ Nash v. United

States, 54 F.2d 1006, 1007 (2d Cir. 1932) (L. Hand, J.), and

the nature of the pattern evidence here might suggest that

instructions would have marginal effect, see United States v.

Brown, 490 F.2d 758, 765–66 & nn.20–21, 777–78 (D.C. Cir.

1973); cf. Carter v. District of Columbia, 795 F.2d 116, 126–

27 (D.C. Cir. 1986). But limiting instructions ordinarily

suffice to protect the defendant’s interests. Spencer v. Texas,

385 U.S. 554, 561 (1967). Even though admission for a

proper purpose under Rule 404(b) does not the end the

inquiry, because Rule 403 has an independent role to play,

Rule 403 ‘‘focuses on the ‘danger of unfair prejudice’ and

affords the court discretion to exclude evidence only if that

danger ‘substantially outweigh[s]’ the evidence’s probative

value.’’ United States v. Gartmon, 146 F.3d 1015, 1021 (D.C.

Cir. 1998) (citing Fed. R. Evid. 403). Given the probative

strength of the witnesses’ testimony regarding strikingly

similar conduct and the government’s need to respond to

Long’s defense, Long fails to show that the district court
9

gravely abused its discretion in admitting the testimony of

FM and AG.

Similar concerns underlie Long’s second evidentiary objection to the admission of ‘‘voluminous’’ photographic evidence.

Long challenges the admission of photographs and negatives

that were not part of the child pornography charges in counts

six and seven but instead were seized from Long’s home after

his arrest. He contends that evidence of his possession of

these uncharged photographs was irrelevant because the

photographs were not proven to be depictions of minors, and

his possession was therefore lawful. Hence, he maintains, the

substantial number of uncharged, sexually explicit and suggestive photographs only provided bad character evidence

and served no proper purpose under Rule 404(b) inasmuch as

‘‘evidence of lawful possession of certain items is not admissible under Rule 404(b) to prove unlawful possession of similar

items.’’ Appellant’s Br. at 25.

The district court did not allow the government to offer

into evidence all 301 of its proffered photographs and negatives. Rather, over the course of three days, the court

examined each piece of evidence and spent hours with counsel

in chambers reviewing the photographs in addition to hearing

arguments in court regarding their admissibility. The district court then limited the government to introducing photographs that: (1) corroborate the government witnesses’ testimony of certain events and activity; (2) demonstrate the

minor boys’ relationship with Long; (3) rebut Long’s defense

that the minor victims had fabricated the allegations of sexual

abuse and that he did not possess the charged photographs;

or (4) show modus operandi. The court also instructed the

jury that it could not consider the photographic evidence to

conclude that Long had a ‘‘bad character.’’ With these

limitations, the district court concluded that admission of

uncharged photographs in Long’s possession would not show

mere propensity to collect child pornography but were admissible for legitimate Rule 404(b) purposes. The uncharged

photographic evidence was relevant in light of Long’s denial

of the possession of the child pornography charged in counts

six and seven of the indictment: many of the charged photo-
10

graphs and negatives were found in packets and envelopes

with the uncharged photographs that the court allowed the

government to introduce into evidence, and Long’s fingerprints also were found on some of the uncharged photographs.

It hardly can be denied that ‘‘in cases where a defendant is

charged with unlawful possession of something, evidence that

he possessed the same or similar things at other times is

often quite relevant to his knowledge and intent with regard

to the crime charged.’’ United States v. King, 254 F.3d 1098,

1100 (D.C. Cir. 2001) (citing Huddleston, 485 U.S. at 689).

Hence, ‘‘it [is] within the discretion of the district court to

admit evidence regarding similar acts of possession that

suggest ‘repetitive involvement in the same kind of criminal

activity’ even if they do not involve the same objects.’’ Id. at

1100–01 (quoting United States v. Lego, 855 F.2d 542, 546

(8th Cir. 1988)). Because the evidence of Long’s possession

of the uncharged photographic evidence was probative of

disputed elements—possession and intent—of the charged

offenses, the district court did not abuse its discretion in

allowing admission of certain of the non-charged photographs

in Long’s home. See United States v. Garot, 801 F.2d 1241,

1247 (10th Cir. 1986).

Long’s reliance on Guam v. Shymanovitz, 157 F.3d 1154

(9th Cir. 1998), is misplaced. In Shymanovitz, the defendant

was charged with unlawful sexual activity involving minors,

and the district court admitted, as relevant to intent, police

testimony regarding the contents of sexually explicit magazines found in the defendant’s house, as well as two sexually

explicit articles from the magazines. 157 F.3d at 1155. The

Ninth Circuit held that ‘‘mere possession of reading material

that describes a particular type of activity makes it neither

more nor less likely that a defendant would intentionally

engage in the conduct describedTTTT’’ Id. at 1158. ‘‘At the

very most,’’ the court stated, the magazines tended to show

that the defendant ‘‘had an interest in looking at gay male

pornography, reading gay male erotica, or perhaps even,

reading erotic stories about men engaging in sex with underage boys, and not that he actually engaged in, or even had a
11

propensity to engage in, any sexual conduct of any kind.’’ Id.

at 1158–59. Shymanovitz is distinguishable. The Ninth

Circuit stated that lawful possession of gay erotica was not

probative of the defendant’s intent to engage in the charged

conduct of sexual abuse. Shymanovitz, 157 F.3d at 1158–59.

Even if this is correct, and we express no view on the subject,

the court did not suggest that possession of pornography

would be inadmissible for other, permissible purposes. Here,

as explained, the district court admitted the uncharged photographic evidence for purposes that were both specific and

unrelated to propensity. Hence, Long fails to show an abuse

of discretion under Rule 404(b).

Of course, evidence that is admissible under Rule 404(b)

may still be excluded under Rule 403 ‘‘if its probative value is

substantially outweighed by the danger of unfair prejudiceTTTT’’ Fed. R. Evid. 403. Long contends that ‘‘[t]he

sheer volume of the extrinsic photographic evidence contributed to its prejudicial impact’’ and that ‘‘the devastating effect

of the hundreds of photos of mostly unidentified young males

substantially outweighed their marginal probative value under Rule 403.’’ Appellant’s Br. at 28. In Long’s view, the

district court ‘‘should have severely restricted the number of

photographs of young males viewed by the jury and excluded

virtually all of the uncharged sexually explicit or suggestive

ones.’’ Appellant’s Br. at 29. At oral argument in this court,

the government acknowledged that ‘‘a lot’’ of photographs

were introduced into evidence but contended that the evidence was necessary to rebut Long’s defense of lack of

possession of the charged items.

Under Rule 403, the district court has discretion to exclude

evidence that is unfairly prejudicial where its effect is merely

cumulative. Fed. R. Evid. 403; see, e.g., United States v.

Rose, 104 F.3d 1408, 1414 (1st Cir. 1997); United States v.

Hays, 872 F.2d 582, 588 (5th Cir. 1989); Levin v. United

States, 338 F.2d 265, 273 (D.C. Cir. 1964). There may well be

a point at which the admission of a multitude of photographs

depicting uncharged conduct would tilt so far as to unfairly

prejudice a defendant’s right to a fair trial. But it is difficult,

if not impossible, to draw a line at which such evidence, by
12

virtue of its sheer volume, necessarily becomes unfairly prejudicial. As this court has observed, ‘‘the Rule 403 inquiry in

each case involving Rule 404(b) evidence will be case-specific.

There can be no ‘mechanical solution,’ no per se ruleTTTT’’

Crowder II, 141 F.3d at 1210. Rather than drawing a bright

line, appellate courts have instead enforced the gatekeeping

role of the district court in admitting relevant evidence and

reviewed its decision for abuse of discretion. See United

States v. Manner, 887 F.2d 317, 322–23 (D.C. Cir. 1989).

That is, ‘‘Rule 403 contemplates the thoughtful consideration

of the trial court and leaves the admission of evidence to the

sound discretion of the trial judge.’’ Boney, 977 F.2d at 631.

In Long’s case, the record confirms that the district court

commendably fulfilled its proper role.

The district court reviewed in camera every photograph

that the government sought to introduce into evidence and

heard argument on the admissibility of each. Outside the

presence of the jury, the court identified virtually every

photograph and explained its reasons for admitting or excluding the evidence. For instance, the court described a number

of photographs that featured nude or partially nude males of

unidentified ages, often sexually aroused or masturbating.

The court ruled that the government would not be allowed to

introduce these photographs into evidence if they contained

no other relevant information that connected Long to the

charged offenses. While undertaking this examination, the

court was mindful of the possibility that the large number of

photographs, taken together, might have an unfair prejudicial

effect. It explained that ‘‘there is a continuum of explicitness,’’ and that, ‘‘to the extent that the quantity of pictures

TTT may together create TTT unfair prejudice,’’ the court was

inclined to exclude the most explicit and least probative

photographs. This is the type of ‘‘thoughtful consideration,’’

Boney, 977 F.2d at 631, that Rule 403 requires. The district

court confined the admission of the uncharged photographs

under Rule 404(b) to four relevant purposes, imposed further

constraints on the photographs’ admission under Rule 403,

and gave limiting instructions to the jury. The court demonstrated an awareness of the need to exclude photographs at
13

either extreme, either because they were too explicit or

barely probative. Long has offered no reason why admission

of any particular photograph was an abuse of discretion, or

why the total number created unfair prejudice that ‘‘substantially outweighed’’ the probative purposes found by the district court. Consequently, this court cannot conclude that

admission was a ‘‘grave abuse’’ of discretion. Washington,

969 F.2d at 1081.

III.

Long also contends that the district court erred in admitting the expert testimony of FBI Agent Kenneth Lanning.

The district court allowed Lanning to testify ‘‘as an expert

concerning sexual exploitation of children, including the typology, identification, characteristics and strategies of a sexual

offender, particularly preferential sex offenders, and the characteristics and behavior of child victims of sexual abuse.’’

Long does not challenge Lanning’s testimony as improper

under the Rules of Evidence that generally govern expert

testimony, Fed. R. Evid. 702–05, or the Supreme Court’s

decisions in Daubert v. Merrell Dow Pharmaceuticals, 509

U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S.

137 (1999). Instead, Long maintains that Lanning’s testimony amounted to improper character evidence under Rule

404(a)(1) and was unfairly prejudicial under Rule 403. Fed.

R. Evid. 403, 404(a)(1).

Lanning’s testimony focused on the behavior of a class of

criminals he termed ‘‘preferential sex offenders,’’ whose sex

offenses are characterized by ‘‘paraphilia,’’ or ‘‘an attraction

to or intense fantasies TTT involving certain elements.’’ He

opined that ‘‘very often part of their preference is the age and

gender of their victim,’’ and that ‘‘their primary motivation is,

in fact, sexual gratification.’’ Lanning identified three patterns of behavior within the general class of preferential sex

offenders. Among these patterns of behavior is the ‘‘seduction process,’’ through which the sex offender uses attention,

kindness, gifts, and money to lower his or her victims’ inhibitions. During this process, the sex offender often will use
14

alcohol, drugs, and pornography to arouse the victims and to

lower further their inhibitions. Lanning also opined that

these offenders often have strong interpersonal skills and

occupy positions of authority, such as a school teacher or

minister, and also are often adept at identifying victims who

are weak and vulnerable, such as children whose family life is

dysfunctional. Lanning added that sex offenders often photograph their victims, and he also offered insight into the

reasons why children who are victimized by a sex offender

may remain in the offender’s presence.

Rule 404(a) provides that ‘‘[e]vidence of a person’s character or a trait of character is not admissible for the purpose of

proving action in conformity therewith on a particular occasion,’’ except in specified circumstances. Fed. R. Evid.

404(a). According to Long, Lanning’s testimony contravened

this rule because it tended to show that Long acted in

conformity with the characteristics of a preferential sex offender in committing the charged offenses. Although Long

acknowledges that Lanning did not explicitly testify that

Long exhibited the characteristics of a preferential sex offender, he contends that, to the extent the expert testimony

mirrored the government’s case against him, it was analogous

to the improper use of a criminal profile as substantive

evidence.

‘‘Courts have condemned the use of profiles as substantive

evidence of guilt,’’ United States v. McDonald, 933 F.2d 1519,

1521 (10th Cir. 1991), while acknowledging that there is a

‘‘fine line between potentially improper profile evidence and

acceptable specialized testimony,’’ United States v. Becker,

230 F.3d 1224, 1231 (10th Cir. 2000), cert. denied, 532 U.S.

1000 (2001). In general, the ‘‘profile’’ label is not helpful in

distinguishing admissible from inadmissible expert testimony.

Instead, courts focus on the Federal Rules of Evidence and

the purpose for which the evidence is offered: whether it is

designed improperly to illuminate the defendant’s character

or propensity to engage in criminal activity, or whether

instead it seeks to aid the jury in understanding a pattern of

behavior beyond its ken. Becker, 230 F.3d at 1231; McDonald, 933 F.2d at 1522; see also Boney, 977 F.2d at 628–
15

31. Thus, experts may testify regarding the modus operandi

of a certain category of criminals where those criminals’

behavior is not ordinarily familiar to the average layperson,

as in the case of the modus operandi of persons involved in

illegal drug trafficking or prostitution. See, e.g., United

States v. Watson, 171 F.3d 695, 703 (D.C. Cir. 1999); United

States v. White, 116 F.3d 903, 921–22 (D.C. Cir. 1997) (per

curiam); United States v. Chin, 981 F.2d 1275, 1279 (D.C.

Cir. 1992); Boney, 977 F.2d at 627–29 (D.C. Cir. 1992);

United States v. Anderson, 851 F.2d 384, 392–94 (D.C. Cir.

1988). Still, there is ‘‘ ‘a line that expert witnesses may not

cross.’ ’’ United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir.

1995) (citations omitted). ‘‘[W]hat is proscribed is questioning that produces responses suggesting some special knowledge of the defendant’s mental processes.’’ Watson, 171 F.3d

at 703 (citation omitted); accord Boyd, 55 F.3d at 672. This

line relates to the limits of Rule 704(b) on opinion evidence

regarding the ultimate issue, not to Rule 404(a)’s constraints

on character evidence.

The admission of Lanning’s testimony has been approved

by the two circuits to have considered it. In United States v.

Romero, 189 F.3d 576 (7th Cir. 1999), the Seventh Circuit

upheld the admission of testimony by Lanning that was

similar to the testimony he offered in Long’s case. As he did

here, Lanning testified in Romero regarding the characteristic patterns of ‘‘preferential sex offenders,’’ but he also responded to hypothetical questions from the prosecution that

mirrored the defendant’s conduct. Id. at 582–84. The Seventh Circuit noted ‘‘the value of expert testimony in explaining a complicated criminal methodology that may look innocent on the surface but is not as innocent as it appears.’’ Id.

at 584 (citations omitted). The court observed that it was

precisely this value that made Lanning’s testimony helpful to

the jury, because it ‘‘described the modus operandi of modern

child molesters,’’ with which the average juror is unfamiliar.

Id. at 585. Rejecting the contention that Lanning’s testimony

constituted improper character evidence under Rule 404(a),

the court explained that ‘‘[p]resenting character evidence is

an attempt to use a person’s personality or psychological
16

propensity to prove what the person did.’’ Id. at 587. ‘‘Lanning’s testimony,’’ however, ‘‘did exactly the opposite. It was

an attempt to use [the defendant’s] actions to prove his

psychological propensitiesTTTT As such, it was not really

character evidence at all.’’ Id. The court concluded that,

‘‘[t]o the extent that Agent Lanning discussed the preferences

and psychological proclivities of sex offenders, he did so only

to elaborate on his behavior-driven analysis of their modus

operandi.’’ Id. Also, in United States v. Cross, 928 F.2d

1030, 1034 (11th Cir. 1991), Lanning testified in a prosecution

for mail fraud, mailing obscene material, and conspiracy to

persuade a minor to engage in sexually explicit conduct for

the purpose of producing visual or print media. The Eleventh Circuit held that Lanning’s testimony regarding the

‘‘characteristic behaviors of pedophiles’’ was admissible to

show whether the defendant had the intent to use the photographs to produce and distribute child pornography, to explain his modus operandi, and to establish that the pornographic photographs at issue—seemingly innocent ‘‘nude

studies’’ of children rather than more graphic child pornography—appealed to the prurient interest. Id. at 1049–51.

As noted, this court has generally permitted expert testimony regarding the modus operandi of a certain type of

criminal offender. See, e.g., Watson, 171 F.3d at 703. For

example, in United States v. Anderson, 851 F.2d 384, 392

(D.C. Cir. 1988), the government’s expert witness testified

regarding pimping patterns and the pimp-prostitute relationship. As jurors cannot be presumed to have knowledge of

these matters, the court focused on the fact that the expert’s

testimony ‘‘might have shed light on critical issues in the

case’’ and ‘‘helped the jury to determine the credibility of’’ the

prosecution’s other witnesses. Id. at 393. Thus, because the

‘‘testimony had a significant bearing on facts ‘that could be

determinative of [the defendant’s] guilt or innocence,’ ’’ and in

light of the trial court’s wide discretion, the court held the

testimony to be admissible. Id. (citation omitted). By the

same token, Lanning’s testimony was designed to aid the jury

in understanding the modus operandi of preferential sex

offenders. The Seventh Circuit held in Romero that Lan-
17

ning’s testimony ‘‘was critical in dispelling from the jurors’

minds the widely held stereotype of a child molester as ‘a

dirty old man in a wrinkled raincoat’ who snatches children

off the street as they wait for the school bus.’’ Romero, 189

F.3d at 584. Similarly, the district court here determined

that the average layperson lacks knowledge regarding the

manner in which preferential sex offenders operate. Long

was a minister of the church and a substitute teacher, positions a juror would ordinarily view as held by law-abiding

citizens of high moral character. A juror would also be

familiar with the well-known fact that young children are

impressionable and do not always tell the truth, whether

because of exposure to an ambiguous and unfamiliar act,

probing questions about matters relating to sex, or a desire to

please the inquisitor. See generally Maryland v. Craig, 497

U.S. 836 (1990). As the government also notes, Lanning’s

testimony helped to rebut Long’s defenses of innocent intent

and fabrication. Under the circumstances, the district court

did not abuse its discretion in concluding that Lanning’s

expert testimony was admissible under Rule 404(a).

Again, Long contends that even if the expert testimony was

relevant and admissible under Rule 404(a), it was so inherently prejudicial that the district court should have excluded it

under Rule 403. The Eleventh Circuit rejected this objection

to Lanning’s testimony in Cross, observing that the testimony’s ‘‘considerable probative value’’ was not outweighed by

any possible prejudicial effect. Cross, 928 F.2d at 1051. The

court also noted that ‘‘because there was extensive, particularized evidence of Cross’s sexual attitudes toward children

offered at trial by the government and, indeed, by Cross

himself, it is doubtful that Lanning’s more generalized testimony about the nature of pedophilia could have independently

affected the jury’s verdict.’’ Id. (citing Anderson, 851 F.2d at

394 (D.C. Cir. 1988)). Moreover, in Anderson, 851 F.2d at

393–94, this court held that the expert testimony regarding

pimps’ modus operandi was not barred by Rule 403, even

though ‘‘the risk of unfair prejudice was heightened by the

sordid and disturbing nature of [the] subject matter,’’ id. at

393; ‘‘[g]iven th[e] large quantity of uncontested, particular-
18

ized evidence against Anderson in the record,’’ the court

found it ‘‘almost inconceivable that [the expert’s] general,

more attenuated, testimony about the prostitution underworld

could have independently affected the jury’s verdict,’’ id. at

394, and its admission ‘‘was, at worst, harmless error,’’ id.

For much the same reasons as in Cross and Anderson,

Long’s Rule 403 objection fails: Lanning’s testimony was

offered for a permissible purpose, namely to identify the

behavior and actions of child molesters and explain their

modus operandi, the prosecution adduced considerable other

evidence of Long’s pedophilia, and the jury was instructed

that the weight to be given to Lanning’s testimony was for

the jurors to determine. See Cross, 928 F.2d at 1051;

Anderson, 851 F.2d at 393–94. Long suggests the Rule 403

balance tilts in his favor because the probative value of the

expert testimony was undermined by Lanning’s failure to

include any statistical analysis from his case studies to indicate the prevalence of the various behavioral patterns and

characteristics among preferential sex offenders. While this

suggestion appears more to be an objection to the expert’s

qualifications on Daubert grounds, an objection that Long has

not made on appeal, it falls short when viewed as a Rule 403

contention, because expert testimony need not be based on

statistical analysis in order to be probative. Cf. Kumho Tire,

526 U.S. at 150. Rather, because ‘‘[t]his testimony illuminated how seemingly innocent conduct TTT could be part of a

seduction technique,’’ it ‘‘shed light on a critical issue in the

case,’’ Romero, 189 F.3d at 585, and hence, the district court

did not abuse its discretion in concluding that its probative

value was not ‘‘substantially outweighed’’ by its unfair prejudicial effect, Fed. R. Evid. 403.

IV.

Long’s challenges to the sufficiency of the evidence of the

interstate transportation of one of the minor boys (‘‘JS’’) and

the possession of photographic negatives require only brief

response.
19

Viewing the evidence, as we must, in the light most favorable to the government, United States v. Morris, 977 F.2d

617, 619 (D.C. Cir. 1992), we hold that there was sufficient

evidence from which a reasonable juror could find that, at the

time Long transported one of the victims, JS, from Puerto

Rico to the District of Columbia, JS was a minor. Although

JS testified that he was sixteen years old when he traveled to

the District of Columbia, the government offered evidence

that JS was born on June 22, 1982; that he twice came to

visit Long in the District of Columbia; and that JS’s first visit

was, as he testified, on an American Airlines flight with a

connection in Miami. An American Airlines employee testified that Long purchased a ticket in JS’s name for an

American Airlines flight from San Juan, Puerto Rico, to

Washington, D.C., that departed San Juan and connected in

Miami on May 28, 1998, a month before JS turned sixteen;

airline records indicated that someone used this ticket after

presenting identification in JS’s name. A juror reasonably

could have found that JS incorrectly recalled his age and that

the American Airlines records (which are kept in a highly

secure location in Tulsa, Oklahoma) are a more reliable

source than the young witness’s memory.

We also hold that there was sufficient evidence to sustain

Long’s conviction on count seven for possession of photographic negatives of child pornography. See Morris, 977

F.2d at 619. Long contends that the prosecution failed to

establish that he constructively possessed the photographic

negatives because law enforcement officers found the negatives during a search of his home three weeks after their

initial search, and in a location (a trunk on the porch off the

master bedroom) that they had previously searched. Long

had not been in his home since the original search, and

another man, Andre Lazenby, had been residing there in

Long’s absence. According to the government’s evidence:

(1) it was undisputed that Long owned the house and resided

there; (2) Lazenby denied knowledge of the photographic

negatives; (3) the six victims identified photographs developed from the negatives as photos of them that Long had

taken; (4) the negatives were linked to photographs contain-
20

ing Long’s fingerprints; (5) the negatives included depictions

of Long’s possessions; and (6) photographs from other exhibits that the police found during the initial search were developed from the negatives. Based on this evidence, a reasonable juror could infer that Long exercised constructive

possession over the items found in his home. See Morris,

977 F.2d at 620 (D.C. Cir. 1992) (citing United States v.

Jenkins, 928 F.2d 1175, 1179 (D.C. Cir. 1991)).

V.

Long’s challenge to his sentence focuses on the standard of

proof. He contends that the district court erred in enhancing

Long’s base offense level by eight levels on the basis of

acquitted conduct without finding by clear and convincing

evidence that Long engaged in the relevant conduct. This

court reviews a sentencing court’s factual determinations for

clear error, United States v. Jackson, 161 F.3d 24, 28 (D.C.

Cir. 1998), and affords ‘‘due deference’’ to the district court’s

application of the Sentencing Guidelines to the facts, 18

U.S.C. § 3742(e) (2000); Jackson, 161 F.3d at 28. This court

reviews legal questions de novo, such as the standard of proof

that applies to sentence enhancements under the Sentencing

Guidelines. United States v. Montague, 40 F.3d 1251, 1252–

53 (D.C. Cir. 1994).

Section 2G1.1 of the Sentencing Guidelines applies to convictions for interstate transportation of minors with the intent

to engage in criminal sexual activity. United States Sentencing Commission Guidelines Manual (‘‘U.S.S.G.’’) § 2G1.1

(2000). A cross reference provides, however, that ‘‘[i]f the

offense involved causing, transporting, permitting, or offering

TTT a person less than 18 years of age to engage in sexually

explicit conduct for the purpose of producing a visual depiction of such conduct,’’ the sentencing court is to apply

Guideline § 2G2.1. U.S.S.G. § 2G1.1(c)(1). The district

court found that the cross reference applied and treated

§ 2G2.1 as the controlling Guideline provision. United States

v. Long, 185 F. Supp. 2d 30, 35 (D.D.C. 2001). Similarly,

although § 2G2.4 applies to convictions for possession of
21

visual depictions of minors engaged in sexually explicit conduct, a virtually identical cross reference directs the district

court to apply § 2G2.1 if the offense involved causing or

transporting ‘‘a minor TTT for the purpose of producing a

visual depiction’’ of sexually explicit conduct. U.S.S.G.

§ 2G2.4(c)(1). Again, the district court found that the cross

section applied and treated § 2G2.1 as controlling. Long, 185

F. Supp. 2d at 35. The application of the cross references

resulted in an eight-level increase in Long’s base offense

level. Compare U.S.S.G. § 2G1.1(a)(1) (specifying base offense level of nineteen), with U.S.S.G. § 2G2.1(a) (setting

base offense level of twenty-seven); see also Long, 185

F. Supp. 2d at 35.

Long acknowledges that the preponderance of the evidence

standard ordinarily applies to sentencing determinations.

McMillan v. Pennsylvania, 477 U.S. 79, 91–92 (1986). In

fact, the Sentencing Commission has suggested ‘‘that use of a

preponderance of the evidence standard is appropriate to

meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the

facts of a case.’’ U.S.S.G. § 6A1.3 (Policy Statement) commentary (2000). And the Supreme Court has held that a

sentencing court may take acquitted conduct into account in

setting the appropriate sentence. United States v. Watts, 519

U.S. 148, 152–53 (1997) (per curiam). But Long contends

that in extraordinary circumstances, such as the eight-level

increase in his sentence, where the disputed sentencing factors become ‘‘a tail which wags the dog of the substantive

offense,’’ McMillan, 477 U.S. at 88, due process requires

proof by clear and convincing evidence.

The Supreme Court has noted ‘‘a divergence of opinion

among the Circuits as to whether, in extreme circumstances,

relevant conduct that would dramatically increase the sentence must be based on clear and convincing evidence.’’

Watts, 519 U.S. at 156 (footnote omitted). Two circuits have

required clear and convincing evidence for extreme sentencing enhancements. See United States v. Jordan, 256 F.3d

922, 927–29 (9th Cir. 2001); United States v. Paster, 173 F.3d

206, 219–21 (3d Cir. 1999); United States v. Kikumura, 918
22

F.2d 1084, 1097–1102 (3d Cir. 1990). At least two circuits,

however, have rejected a heightened standard of proof at

sentencing, see, e.g., United States v. (Randy) Graham, 275

F.3d 490, 517 n.19 (6th Cir. 2001), cert. denied, 535 U.S. 1026

(2002); United States v. Washington, 11 F.3d 1510, 1516

(10th Cir. 1993), while others have found that the case before

them did not merit a higher standard, see, e.g., United States

v. Montgomery, 262 F.3d 233, 249–50 (4th Cir.), cert. denied,

534 U.S. 1034 (2001); United States v. Cordoba–Murgas, 233

F.3d 704, 709 (2d Cir. 2000); United States v. Lewis, 115 F.3d

1531, 1536–37 (11th Cir. 1997); United States v. Miner, 127

F.3d 610, 613–14 (7th Cir. 1997); United States v. Lombard,

102 F.3d 1, 5 (1st Cir. 1996); United States v. Thompson, 51

F.3d 122, 125 (8th Cir. 1995); United States v. Vital, 68 F.3d

114, 121 (5th Cir. 1995). This court, for its part, has noted

the split among the circuits on this issue but has declined to

require more than the preponderance standard at sentencing.

See United States v. (Steven A.) Graham, 317 F.3d 262, 269–

70 (D.C. Cir. 2003); United States v. Jackson, 161 F.3d 24,

26–27 (D.C. Cir. 1998); United States v. Toms, 136 F.3d 176,

186–87 (D.C. Cir. 1998); United States v. Lam Kwong–Wah,

966 F.2d 682, 687–88 (D.C. Cir. 1992), overruled on other

grounds, United States v. Fields, 242 F.3d 393, 396 (D.C. Cir.

2001).

The Supreme Court has ‘‘held that application of the preponderance standard at sentencing generally satisfies due

process.’’ Watts, 519 U.S. at 156 (citing McMillan v. Pennsylvania, 477 U.S. 79, 91–92 (1986)). As the Court has

explained, ‘‘[s]entencing courts have traditionally heard evidence and found facts without any prescribed burden of proof

at all.’’ McMillan, 477 U.S. at 91 (citing Williams v. New

York, 337 U.S. 241 (1949)). In McMillan, the Court stated

that ‘‘embracing [the] suggestion that we apply the clear-andconvincing standard TTT would significantly alter criminal

sentencingTTTT’’ Id. at 92 n.8. And the Court has made

clear that McMillan’s reasoning remains undisturbed in the

wake of Apprendi v. New Jersey, 530 U.S. 466 (2000). Harris v. United States, 122 S. Ct. 2406, 2419–20 (2002). To date,

then, the Supreme Court has held that a preponderance
23

standard provides sufficient safeguards to satisfy the requirements of due process at sentencing. Watts, 519 U.S. at 157.

Lower courts, however, have recognized that ‘‘legal rules—

even rules that function perfectly well in familiar contexts

when stated in categorical terms—cannot always be applied

in extreme situations.’’ Kikumura, 918 F.2d at 1100 (3d Cir.

1990). The Third Circuit in Kikumura limited its holding to

the ‘‘extreme context’’ in which the district court’s findings

regarding uncharged conduct increased the defendant’s sentence ‘‘from about 30 months to 30 years—the equivalent of a

22–level increase in his offense level.’’ Id. at 1100–01. The

court distinguished this ‘‘most dramatic example’’ from other,

smaller increases in the base offense level under the Sentencing Guidelines, suggesting that the preponderance standard

provides sufficient due process protections for ‘‘probably even

a ten-level increaseTTTT’’ Id. at 1100. Here, the district

court’s application of the Guideline’s cross references resulted

in an eight-level increase in Long’s base offense level—an

increase that the Kikumura court speculated would not merit

a heightened burden of proof. Id. Although the Third

Circuit has subsequently held that the clear and convincing

standard was required for a nine-level upward departure for

extreme conduct, United States v. Paster, 173 F.3d 206, 219–

20 (3d Cir. 1999), in that case the departure would have

negated the effect of the defendant’s guilty plea and undermined principles of proportionality, id. at 220–21. Long’s

sentence, by contrast, does not present such an extreme case.

The cross references at issue operate to increase Long’s base

offense level on the basis of conduct closely related to the

charged crimes, see Lam, 966 F.2d at 688; see also United

States v. Pugh, 25 F.3d 669, 676 (8th Cir. 1994), and therefore

the sentencing enhancement was not the tail that wagged the

dog of the substantive offense, McMillan, 477 U.S. at 88;

Kikumura, 918 F.2d at 1100–01. We accordingly hold that

the district court did not err by failing to treat Long’s case as

presenting ‘‘extraordinary circumstances,’’ Lam, 966 F.2d at

688; accord Jackson, 161 F.3d at 26–27, that require a

heightened standard of proof.
24

Because the district court applied the correct standard of

proof at sentencing, there is no merit to Long’s challenge to

the findings that Long’s ‘‘purpose’’ in transporting the minors

more likely than not was to create child pornography, thereby

justifying application of the § 2G1.1(c)(1) cross reference.

There was ample evidence that Long had taken sexually

explicit photographs of each of the six minor victims, and the

testimony of the victims, and Lanning, supports the finding

that Long’s transportation of the minors was motivated at

least in part by a desire to create these visual depictions.

Long, 185 F. Supp. 2d at 38–43. For example, crediting the

testimony of ‘‘JEG’’ regarding the numerous occasions over

the two years that Long had transported the minor to the

District of Columbia and the jury’s conclusion that Long had

intended to engage in sexual conduct, the district court

determined that it was ‘‘implausible’’ that Long had not also

intended on some of those occasions to induce the sexual

conduct in order to photograph it. Id. at 38.

Accordingly, we hold that: there was no abuse of discretion

in the district court’s evidentiary rulings under Rules 401,

403, and 404(a) and (b); there was sufficient evidence for

conviction of the charges in counts six and seven; and there

was no error at sentencing, and we affirm the judgment of

conviction.