The Honorable Daniel M. Friedman, Circuit Judge, United States Court o f 1 Appeals for the Federal Circuit, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-4264

___________ United States of America, * * Appellee, * * Appeal from the United States
v. * District Court for the * Eastern District of Missouri. Joseph F. Heidebur, * * Appellant. *

___________ Submitted: May 20, 1997 Filed: August 11, 1997

___________ Before BEAM, FRIEDMAN, and LOKEN, Circuit Judges. 1

___________ BEAM, Circuit Judge. Joseph F. Heidebur appeals his conviction for knowingly possessing sexuall y explicit photographs of a minor, 18 U.S.C. § 2252(a)(4)(B) . We vacate the conviction.Heidebur was convic ted in state court of sodomy of a child under age fourteen 2 and sentenced to five years of imprisonment.
-2- I. BACKGROUND
Defendant was charged with knowingly possessing sexually explicit photographs of his twelve year-old stepdaughter after his wife, Sherry Heidebur, found three nude pho tographs of the girl in the family's garage. At trial, Sherry Heidebur was th e government's first witness. Over the defendant's objections, the prosecutor elicite d testimony from Sherry Heidebur that, a few days before her discovery of the photos, she had returned home early from work and found the defendant and her daughte r together in the girl's locked bedroom. Sherry Heidebur testified that she accused th e defe ndant of molesting her daughter, and that he admitted having sexual contact with her. The government's seco nd witness, FBI agent Phillip McComas, testified that the defendant first confessed to having sexual contact with his stepdaughter and the n admittedtaking the photos. The jury returned a guilty verdict, and the district court 2 sentenced the defendant to sixty months of imprisonment. The sole issue on appeal is whether evidence of t

he defendant's molestation of his stepdaughter should have been excluded as inadmissible evidence of other bad acts under Federal Rule of Evidenc e 404(b).

II. DISCUSSION

Rule 40 4(b) provides that "[e]vidence of other crimes, wrongs, or acts is no t adm issible to prove the character of a person in order to show action in conformity th erewith." The Rule excludes evidence of specific bad acts used to circumstantially prove that a person has a propensity to commit acts of that sort. Propensity evidence, whether o f a person's general character or examples of specific bad acts, is ordinarily excluded because of the likelihood that the jury may misuse it.-3-

Chara cter evidence is of slight probative value and may be very prejudicial. It tend s to distract the trier of fact from the main question of what a ctually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened.
Fed. R. Evid. 404 advisory committee notes (1972).

Rul e 404(b) provides, however, that evidence of prior bad acts "may . . . b e admissible for other purposes, such as proof of motive, opportu nity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . ." Rule 404(b) is thus "a rule of inclusion rather than exclusion and admits evidence of other crimes or acts relev ant to any issue in the trial, unless it tends to prove only criminal disposition. " UnitedStates v. Simon , 767 F.2d 524, 526 (8th Cir. 1985) (internal quotation s
om itted). Thus, evidence of prior bad acts that is "probative of the crime charged" is not excluded under Rule 404(b). United States v. DeLuna , 7 63 F.2d 897, 913 (8th Cir. 1985).

Furthermore, "bad acts that form the fac tual setting of the crime in issue" or that "form an integral part of the crime charg ed" do not come within the Rule's ambit at all. UnitedStates v. Williams , 95 F.3d 723, 731 (8th Cir. 1996), cert. denied , 117 S. Ct. 750 (1 997). This is because such acts are not truly separate bad acts that sho w propens ity, but are "'intrinsic evidence' which is inextricably intertwined" with th e crime charged. United States v. McGuire , 45 F.3d 1177, 1188 (8th Cir. 1995) (citation omitted), cert. denied , 515 U.S. 1132 (1995). For exam ple, in Williams the defendants were charged with consp iracy and kidnaping after they abducted and then murdered a

man. 95 F.3d at 726-28. Rule 404(b) did not bar evidence that the defendants killed the victim because the slaying was an integral pa rt of the kidnaping, and excluding that evid ence would have prevented the prosecution from "presenting [to the jury] a coherent picture of the facts of the crime in issue." Id. at 731.-4-

In this case, the defendant objected at trial that Sherry Heidebur's testimony that he admitted having sexual

contact with her daughter was other act evidence barred by Ru le 404(b). The government contended that it was eliciting the testimony to sho w why Sherry Heidebur began searching for the photos. A lthough we will only find error in a 404(b) question if we find the dis trict court abused its discretion, Simon , 767 F.2d at 526, we agree with the defendant that the district court erred in admitting thi s testimony.

We fi rst reject the government's argument that the defendant's sexual contac t with h is stepdaughter was "inextricably intertwined" with the crime charge d (possession of the photos) and so was not 404(b) evidence at all. The governmen t claims that the testimony was neces sary to show the jury why Sherry Heidebur started looking fo r the photos. Sherry Heidebur's motivation in searching, however, ha s nothing whatsoever to do w ith the factual setting of the crime charged in this case. In Williams , in contrast, the defendants' murder of their victim was part and parcel of their conduct in carrying out the crimes (kidnaping and conspiracy) with which they wer e charged. See 95 F.3d 730-31. Here, there was no evidence of when the photos were taken, other than Sherry Heidebur's testimony that her daughter looked about twelv e year s-oldin the photos, and there is no indication that the sexual contact and th e picture-taking were anything but discrete, separate bad acts. Furthermore, Sherr y Heidebur' s motive in conducting her search for the photos, while it may provid e background information about t he events leading to the discovery of the photos, is not

an integral part of the defendant's alleged possession of those photos. Without thi s testimony, the jury was in no danger of not receiving "a coherent picture of the facts" of the charged crime. Id. at 731.

In additio n, when the prosecutor asked Sherry Heidebur why she began he r search, she initially said nothing about her earlier confrontation with the defendant

. Instead, she testified that she looked for th e photos after noticing that six new Polaroid photos had been placed in an album, and, kno wing that Polaroid film packages had tenF urthermore, the prosecution's later elicitation of testimony, over defendant' s 3 404 (b) objection, from Agent McComas about defendant's sexual abuse canno t possiblyhave been for the purpose of establishing why Sherry Heidebur searched for the photographs.
-5- exposur es, became suspicious about the missing four photos. Only after repeate d examination and two imp ermissibly leading questions did Sherry Heidebur testify that her confrontation with the defendant led to her search. The government's contention that this testimony is admissible because it was elicited for the limited purpose o f providing a necessary "context" is at best without basis, and at worst pretextual. 3

The government argues that the testimony was admissible even if Rule 404(b) is implicated, because it

was probative of the crime charged; that is, it was admissible for a purpose other than to show propensity. Other acts evidence is not excluded by Rule 404(b) if it is: (1) relevant to a material issue rais ed at trial; (2) similar in kind and close in time to the crime charged; (3) supported by sufficient evidence to support a jury finding that the defendant committed the other act; and (4) its probative value is not substantially outweighed by its prejudicial value. United States v. Kern , 12 F.3d 122, 124-25 (8th Cir. 1993). On this point, the government reiterates its contention that the testimony provided "c ontext" and was thus probative of the crime charged. In our vie w, this merely repeats the argument that the defendant's contact with hi s stepdaughter was inextricably intert wined with his possession of the photos. We have already rejected this position. The government also argues that the challenged testimony was probative b ecause it showed the defendant's opportunity to commit the crime. The government did no t advan ce this position at trial, and we find this post-hoc justification unimpressive

. Opportunity was hardly an issue in this case: the defendant lived in the same hous e with the victim, was in contact wi th her every day, and was often home alone with her because he cared

for her while Sherry Heidebur was at work. Furthermore, whatever marginal probative value the testimony had for this purp ose is substantially outweighedAt

oral argument, for example, the government offered the following for why 4 Rule 404(b) is not at issue in this appeal:

Is it more probable that a person who is having [an] intimate sexua l relationship with a twelve year- old child would be more likely to possess photogr aphs, explicit sexual photographs, of that child than would a person who was not engaged in that type of relationship? At oral argument, the government alsoargued that the defendant's prior bad act 5
was probative of motive. We find this argument, which was neither presented to the district court nor briefed, meritless.
-6- by the likel ihood that the jury would use this highly prejudicial information for a n improper purpose. This is of particular concern sinc e the government's questioning did not indicate that i t was attempting to prove opportunity, and the jury did not receive a limiting instruction on how to use this testimony.

The g overnment next contends, again for the first time on appeal, that th e testimony is probative of the defendant's knowing p ossession of the photographs. The governm ent's argument, as we understand it, is this: evidence that the defendant ha d sexually exploited his stepdaughter tends to showthat he knowingly possessed explicit photos of her. This, however, is virtually the definition of inadmissible propensity

4 evidence. We c annot see any way in which the defendant's abuse of his stepdaughter is pro bative of his knowing possession of the photographs, other than by establishing a propensity for these kinds of crimes. 5 We hold , therefore, that Sherry Heidebur's testimony regarding the defendant's other acts was probative only of propensity, and the district court erred by admitting it. The government argues that this was noneth eless harmless error. Under Rule 52(a) of the Federal Rules of Criminal Procedure, erroneous evidentiary rulings that do not implica te constitutional rights are harmless "if the reviewing court, after viewing th e entire record, determines that no substantial rights of the defendant were affected, and that the error did not influence or had only a slight influence on the verdict." UnitedThe government's only other witness, an agent at the FBI crime lab i n 6 Washington, provided information about Polaroid cameras and film and es tablished that the film used in this crime traveled in interstate commerce.
-7- St ates v. DeAngelo , 13 F.3d 1228, 1233 (8th Cir. 1994) (citations omitted). In other words, evidentiary error requires reversal "only if the jury may have been substantially swayed by improperly-admitted evidence." Id. (citation and internal quotation s omitted).
We conclude that, in this case, the improper admission of the oth er acts evidence was not harmless. The government examined only three witnesses. Sherry Heidebur's testimony about the defendant's prior acts was virtually the first matter of substance put before t he jury. Agent McComas's testimony that the defendant admitted taking th e photographs was given only after McComas first related that the defendant confessed to sexual contact w ith his stepdaughter. McComas's testimony was critically relevant to the crime charged, but was preceded by and completely bound up in highl y prej udicial, inadmissible evidence of other acts. Testimony about the defendant' s 6 other bad acts constituted a significant portion of these witnesses' testimony, and was front-and-center in the trial. We cannot say that the jury was not substantially swayed by the inadmissible evidence, and that it limited its inquiry only to t he evidence relevant to the crime charged.

III. CONCLUSION
The district court erroneously allowed admission of " other acts" evidence barred by Federal Rule of Evidence 404(b), and we con clude that this error was not harmless. Accordingly, we vacate the conviction.-8--9-

A true copy.
ATTEST: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.