Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-10632

Plaintiff-Appellee, D.C. No.

v.  CR-04-00064-

RCJ/PAL KEVIN ERIC CURTIN,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Nevada

Robert C. Jones, District Judge, Presiding

Argued and Submitted

October 19, 2005—San Francisco, California

Submission Vacated October 25, 2005

Resubmitted March 21, 2006

Filed April 4, 2006

Before: J. Clifford Wallace, Stephen S. Trott, and

Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Wallace;

Dissent by Judge Trott

3669
COUNSEL

Cal J. Potter, III, Esq., Las Vegas, Nevada, for appellant

Kevin Eric Curtin. 

3672 UNITED STATES v. CURTIN
Daniel J. Bogden, United States Attorney; Nancy J. Koppe,

Assistant United States Attorney, Las Vegas, Nevada, for

respondent United States of America. 

OPINION

WALLACE, Circuit Judge: 

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.

I.

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. 

UNITED STATES v. CURTIN 3673
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, 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 “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 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. 

3674 UNITED STATES v. CURTIN
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, prepaUNITED STATES v. CURTIN 3675
ration, 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. “I thought about this

3676 UNITED STATES v. CURTIN
problem overnight because I want to address the relative overwhelming prejudice versus the purpose. I read the first story

and a little bit of the second. That’s as far as I could get,

which is confirming [defense counsel’s] statement. It has a

tendency to overwhelm you and overwhelm the jury.” 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 nineyear-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

UNITED STATES v. CURTIN 3677
literature; intent, method, preparation, and knowledge. And you may only take it for that purpose. 

Again, you have a constitutional right. You have

that right. You would want to protect the defendant’s

right to possess any kind of literature and to read it

or not read it. 

You must not allow this kind of evidence to bias

you, generally, against the defendant on the ultimate

question of guilt or innocence. You must not do that.

II.

Curtin contends that the five stories were inadmissible

character evidence, introduced to show propensity in violation

of Rule 404(b) of the Federal Rules of Evidence. The government responds that the stories fall outside the parameters of

Rule 404(b) because they are inextricably intertwined with the

charged crimes. Alternatively, the government argues that the

stories were properly admitted under Rule 404(b) to prove

Curtin’s intent. 

A.

The government argues that the admitted stories were “inextricably intertwined” with the facts giving rise to the indictment against Curtin and therefore not “other acts” evidence

within the scope of Rule 404(b). We review de novo the question of whether the evidence was within the scope of Rule

404(b). See United States v. DeGeorge, 380 F.3d 1203, 1219

(9th Cir. 2004). 

[1] Two categories of evidence may be considered “inextricably intertwined” with a charged offense and therefore

admitted without regard to Rule 404(b). First, evidence of

prior acts may be admitted if the evidence “constitutes a part

of the transaction that serves as the basis for the criminal

3678 UNITED STATES v. CURTIN
charge.” DeGeorge, 380 F.3d at 1220, quoting United States

v. Vizcarra-Martinez, 66 F.3d 1006, 1012 (9th Cir. 1995). In

United States v. Montgomery, 384 F.3d 1050, 1062 (9th Cir.

2004), we held that a government report detailing individual

fraudulent acts was “inextricably intertwined” with the underlying conspiracy charge because the acts themselves comprised the conspiracy. Therefore, the report was admissible

without regard to Rule 404(b). Similarly, in United States v.

Lillard, 354 F.3d 850, 854 (9th Cir. 2003), we concluded that

the defendant’s theft of cocaine from a shipment, which was

itself the basis for the conspiracy, was “inextricably intertwined” with the conspiracy charge. 

[2] Second, prior act evidence may be admitted without

regard to Rule 404(b) “when it [is] necessary to do so in order

to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime.” DeGeorge,

380 F.3d at 1220, quoting Vizcarra-Martinez, 66 F.3d at

1012-13. “A jury is entitled to know the circumstances and

background of a criminal charge. It cannot be expected to

make its decision in a void—without knowledge of the time,

place, and circumstances of the acts which form the basis of

the charge.” United States v. Daly, 974 F.2d 1215, 1217 (9th

Cir. 1992), quoting United States v. Moore, 735 F.2d 289, 292

(8th Cir. 1984). In United States v. Beckman, 298 F.3d 788,

794 (9th Cir. 2002), the defendant was charged with importing over 1,500 pounds of marijuana. His defense was that he

was tricked into transporting the marijuana by the chief government cooperating witness. This witness testified at length

about prior drug runs that Beckman had made on his behalf.

We held that the witness’s testimony was “inextricably intertwined” with the charged offense, because it was “intended to

establish [the witness’s] relationship to Beckman [and] to

show that the relationship was ongoing . . . .” Id.

[3] The fact that Curtin was in possession of stories detailing sex with children at the time he went to meet “Christy”

is insufficient to support the introduction of the stories withUNITED STATES v. CURTIN 3679
out regard to Rule 404(b). Curtin was charged with traveling

across state lines with intent to engage in a sexual act with a

minor, and with attempting to persuade a minor to engage in

sex. The possession or content of the stories was not a part of

the “transaction” that led to the present charges. Second, the

admission of the stories was not required for the prosecution

to “offer a coherent story.” The prosecution would have had

no difficulty in presenting all relevant evidence, including the

“chat” conversations, Curtin’s admission that he was “M42SOCAL,” and Curtin’s behavior at the meeting place, without the admission of the stories. Thus, the stories were not

“inextricably intertwined” with the charged crimes.

B.

In the alternative, the government contends that the stories

are admissible under Rule 404(b) regardless of whether they

are inextricably intertwined with the crime. We review a district court’s admission of evidence under Rule 404(b) for an

abuse of discretion. United States v. Romero, 282 F.3d 683,

688 (9th Cir. 2002). 

[4] We use a four-part test to determine whether evidence

is admissible under Rule 404(b). United States v. Spillone,

879 F.2d 514, 518 (9th Cir. 1989). First, “there must be sufficient evidence to support the jury’s finding that the defendant

committed the other [act].” Id. Second, “the other [act] must

not be too remote [in time].” Id. at 519. Third, when admitted

to prove intent, “the prior act must be similar.” Id. Finally,

“the prior act must be introduced in order to prove a material

element of the case.” Id. The main issue here lies in the third

element: whether there is similarity between the possession of

the stories and the crime with which Curtin is charged. 

Curtin objected to admission of the stories in the district

court, relying on Guam v. Shymanovitz, 157 F.3d 1154 (9th

Cir. 1998) (as amended). Shymanovitz was a middle-school

guidance counselor who was charged with sexually and physi3680 UNITED STATES v. CURTIN
cally abusing several of the boys under his supervision. Id. at

1155. Prior to trial, the government sought to introduce two

magazine articles from sexually explicit magazines found in

Shymanovitz’s home, arguing that they were relevant to

establishing intent. The articles were both presumably fictional stories. One depicted sex between a father and son,

while the other depicted sex between a priest and a child. The

court deferred ruling on the motion. 

At trial, the court permitted a police officer to testify that

at Shymanovitz’s house she seized, among other things, condoms, surgical gloves, children’s underwear, and sexually

explicit magazines. The officer testified in great detail, over

defense counsel’s objections, about the contents of four of

these magazines. She told the jury that the magazines contained explicit photographs of homosexual sex and described

the photographs and the contents of the two articles in detail.

The two articles were subsequently entered into evidence. Id.

at 1155. 

[5] Both Shymanovitz and this appeal address whether the

reading material at issue was admissible under Rule 404(b).

We concluded in Shymanovitz that the magazine articles

failed to constitute a Rule 404(b) “bad act.” “[P]ossession of

lawful reading material is simply not the type of conduct contemplated by Rule 404(b).” Id. at 1159. Additionally, we held

that possession of lawful reading material was not similar to

actual criminal conduct, thus failing the third criterion of the

Spillone test. “[T]here is simply no doubt that a wide gulf separates the act of possessing written descriptions or stories

about criminal conduct from the act of committing the

offenses described.” Id.1

1The dissent argues that this case differs from Shymanovitz because the

crimes at issue in that case did not involve subjective intent. But even if

Shymanovitz involves slightly different facts, its legal rule does not distinguish between specific intent crimes and other crimes. “Under the government’s theory, the case against an accused child molester would be

UNITED STATES v. CURTIN 3681
[6] On the issue of similarity, Shymanovitz conforms with

the rest of our case law. In Vizcarra-Martinez, the defendant

was charged with conspiracy to possess a chemical with reason to believe it would be used to make methamphetamine. 66

F.3d at 1009. The district court admitted evidence that

Vizcarra-Martinez was in possession of a personal-use

amount of methamphetamine at the time of his arrest. We

reversed. “We simply cannot assume . . . that VizcarraMartinez’s use of methamphetamine tended to prove that he

knew that the chemical in his possession would be used in the

methamphetamine manufacturing process.” VizcarraMartinez, 66 F.3d at 1015. The cases in which we have

stronger if he owned a copy of Nabokov’s Lolita, and any murder defendant would be unfortunate to have in his possession a collection of Agatha

Christie mysteries . . . .” Shymanovitz, 157 F.3d at 1159. Put simply, Shymanovitz is replete with language that dictates the outcome of this appeal.

We may not ignore its controlling effect on this case. See Barapind v.

Enomoto, 400 F.3d 744, 751 n.8 (9th Cir. 2005) (en banc) (per curiam).

The dissent’s discussion of cases like United States v. McCollum, 732

F.2d 1419, 1425 (9th Cir. 1984), which involve the admission of similar

prior criminal convictions to prove intent, is equally off point. In McCollum, we allowed admission of a prior conviction for armed robbery to

negate the defendant’s defense of acting under hypnosis. The relationship

between the prior crime and the act charged is obviously far closer in

McCollum’s case than it is in Curtin’s. Curtin’s case involves otherwise

lawful reading material that is not similar to the crime with which he is

being charged. Essentially, the government here seeks to introduce possession of material that describes one type of criminal conduct, namely incest

with minors, to prove intent to commit another type of criminal conduct,

namely crossing state borders to have sex with a minor. This is impermissible under our caselaw. 

The dissent also argues at length that Curtin’s case is different because

Curtin was actually in possession of the stories at the time of his arrest.

However, the government never argued relevance based on physical possession. In any event, this is a fallacious distinction because the stories

were saved as documents to Curtin’s handheld computer. In the absence

of any evidence to the contrary, we should not infer that Curtin planned

to “use” the stories or had the stories in mind simply because he was carrying his computer at the time of his arrest. 

3682 UNITED STATES v. CURTIN
allowed Rule 404(b) evidence show a much stronger connection between the “other act,” which is often a crime in itself,

and the charged crime. In United States v. Vo, 413 F.3d 1010,

1018-19 (9th Cir. 2005), where the defendant was charged

with possession of methamphetamine with intent to distribute,

we allowed the admission of a prior conviction for drug selling. “Vo’s prior conviction was evidence of his knowledge of

drug trafficking and distribution in general. The conviction

tended to show that Vo was familiar with distribution of illegal drugs and that his actions in this case were not an accident

or a mistake.” Id. at 1019. 

[7] Shymanovitz does recognize a narrow exception for

“modus operandi” evidence: evidence involving acts by the

defendant that are “so nearly identical in method as to earmark the charged offense the handiwork of the accused and

that are so unusual and distinctive as to be like a signature.”

Id. at 1159 n.9 (internal punctuation and citation omitted).

“[U]se of modus operandi evidence is rare, and the similarities must be specific and detailed and clearly set the particular

offense apart from the general body of such offenses.” Id.

[8] The evidence in this case is not sufficiently detailed and

specific to fall within the exception. The stories did not

describe specific methods of committing the first offense with

which Curtin was charged: traveling across state borders to

have sex with a minor. Rather, the stories mostly involved

explicit descriptions of incest. Thus, the stories do not reveal

a relevant modus operandi to commit the charged crime, and

are inadmissible. The issue is closer with regard to the charge

of use of an interstate facility to attempt to persuade a minor

to engage in sex. The government argued that the language in

the stories was similar to the language used by Curtin in his

“chat” conversations. We conclude that Shymanovitz forecloses our acceptance of the government’s position. The conduct with which Curtin was charged, and the language that

Curtin used, can “hardly be construed as either distinctive or

remarkable in the universe of sexual offenses against minors.”

UNITED STATES v. CURTIN 3683
Id. Compare United States v. Dhingra, 371 F.3d 557, 566-67

(9th Cir. 2004) (as amended) (allowing introduction of Rule

404(b) modus operandi evidence where “[i]n both instances,

Dhingra contacted a minor under the age of 18 years over

[instant messenger] for the purpose of soliciting sexual activity, arranged to meet, and at the meeting attempted to engage

in sexual activity by persuasion and coercion.”). The similarities between the stories and Curtin’s conduct were not distinctive or unusual enough to render the stories admissible as

modus operandi evidence.2

2Contrary to the dissent’s assertion, we have not “made relevant literature off limits in the Ninth Circuit as a matter of law.” Nor do we “hamstring[ ] the capability of the rule of law to cope in this Circuit with adults

who see children as sexual prey.” As pointed out above, in this case the

prosecution may rely on Curtin’s presence in a chat room called “ltgirlsexchat,” the “chat” conversations themselves, Curtin’s admission that he was

“M-42SOCAL,” and Curtin’s behavior at the meeting place. 

In terms of otherwise lawfully-possessed literature, modus operandi evidence and inextricably intertwined evidence remain admissible. Here,

however, the jury was asked “to infer from behavior on one occasion

something about the nature of a person and then to infer from that how the

person probably would have behaved on another occasion when the only

connection between the two occasions is that the [jury] believes that people of a certain type would act the same way both times.” 1 Stephen A.

Saltzburg et al., Federal Rules of Evidence Manual § 404.02[9] (8th ed.

2002). Without more of a connection between the literature and the

accused crimes, the literature is no more than character evidence introduced to show propensity, and highly prejudicial character evidence at

that. 

The dissent argues at length that the evidence was necessary to refute

Curtin’s testimony and “aggressive defense” of his intent to meet an adult,

and attempts to distinguish Shymanovitz because Curtin actually testified.

However, the stories were not offered for impeachment, on which we

express no opinion. Nor do we believe that the stories were necessary

given the strength of other evidence introduced by the government. In any

event, evidence is not admissible solely because it may be necessary or

helpful. Wholly apart from its prejudicial effect, we have held that “[t]he

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 described and thus fails to meet the test of

3684 UNITED STATES v. CURTIN
The government relies on United States v. Allen, 341 F.3d

870 (9th Cir. 2003), to distinguish Shymanovitz. In Allen, the

defendants were charged with violating federally protected

rights on the basis of race and religion. We allowed the introduction of “skinhead and white supremacist evidence,”

including color photographs of the defendant’s tattoos (e.g.,

swastikas), Nazi-related literature, group photographs including some of the defendants (e.g., in “Heil Hitler” poses and

standing before a swastika that they later set on fire), and

other skinhead paraphernalia. Id. at 885-86. We distinguished

Shymanovitz: “Key to our reasoning [in Shymanovitz] was the

fact that the testimony . . . was not relevant to proving any of

the elements of the crime for which the defendant was convicted . . . .” Id. at 887 n.25. The government thus contends

that, when read together, “Shymanovitz and Allen stand for the

principle that relevant literature is admissible to prove intent.”

[9] However, the government’s comparison to Allen does

not save the day. First, many of the items admitted into evidence in Allen involved more than the possession of reading

material. The defendants were active participants in “Heil Hitler” poses and had posed with and burned a large swastika.

Second, unlike in Shymanovitz, there is no indication that the

reading material in Allen was fictional. Third, the evidence at

issue in this case, and in Shymanovitz, was extremely prejudicial. Finally, it is possible that the evidence in Allen would

have been admissible under the “inextricably intertwined”

exception outlined above. Our holding here is controlled by

Shymanovitz. The district court committed an abuse of discretion by admitting the stories.

relevancy under Rule 401.” Shymanovitz, 157 F.3d at 1158. Here, the

materials in Curtin’s possession told stories of incestuous sexual acts that

were different from those he was accused of intending to perpetrate. They

were offered as substantive evidence of guilt, and we simply hold that

their admission in this case was an abuse of discretion. 

UNITED STATES v. CURTIN 3685
C.

The government fails to argue harmless error and thus the

issue is ordinarily waived. See United States v. Varela-Rivera,

279 F.3d 1174, 1180 (9th Cir. 2002). We may, however, consider harmlessness sua sponte in “those unusual cases in

which the harmlessness of any error is clear beyond serious

debate and further proceedings are certain to replicate the

original result.” United States v. Gonzalez-Flores, 418 F.3d

1093, 1100 (9th Cir. 2005). “[T]he court’s certainty as to the

harmlessness of the error . . . is of particular importance.” Id.

at 1101 (citations omitted). “[E]rror is harmless if we can say

with fair assurance that it did not have a substantial effect,

injurious to the defendant, on the jury’s decision-making process.” Arnold v. Runnels, 421 F.3d 859, 867 (9th Cir. 2005)

(citations omitted). 

[10] Here, we do not have the requisite level of certainty

that the error was harmless to consider the issue sua sponte.

Most of the sexual activity described in the stories admitted

from Curtin’s PDA was incestuous, a particularly prejudicial

taboo. The admitted stories were so highly disturbing that

even the district court judge stated he was unable to read

them. The issue of harmless error is waived.

III.

Curtin contends in his reply brief that the district court

abused its discretion pursuant to Rule 403 by admitting the

stories because the probative value of the stories is substantially outweighed by the danger of unfair prejudice to Curtin.

However, Curtin did not specifically and distinctly make a

Rule 403 argument in his opening brief. “[O]n appeal, arguments not raised by a party in its opening brief are deemed

waived.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)

(citation omitted); see also Greenwood v. FAA, 28 F.3d 971,

977 (9th Cir. 1994). The argument is waived. In any event, for

the same reason we cannot say that the error was harmless, we

3686 UNITED STATES v. CURTIN
cannot say that the admission of the materials on Curtin’s

PDA was not unduly prejudicial.

IV.

[11] Curtin argues that the government’s failure to request

a copy of the surveillance video from the casino violated due

process and entitled him to a spoliation instruction. We disagree. The government’s duty to preserve evidence arises

when the evidence “possess[es] an exculpatory value that was

apparent before the evidence was destroyed, and [is] of such

a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489 (1984). “Unless a

criminal defendant can show bad faith on the part of the

police, failure to preserve potentially useful evidence does not

constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988). As Curtin failed to show that

the video had any exculpatory value, the district court did not

abuse its discretion in declining Curtin’s request for a spoliation instruction. 

[12] Curtin also argues that the district court failed to

instruct adequately on what constitutes a substantial step. The

district court instructed in accord with the model jury instructions that “mere preparation was not a substantial step.” See

Model Crim. Jury Instr. 9th Cir. § 5.3 (2003). This fairly and

adequately covered the issue. See United States v. Echeverry,

759 F.2d 1451, 1455 (9th Cir. 1985) (“So long as the instructions fairly and adequately cover the issues presented, the

judge’s formulation of those instructions or choice of language is a matter of discretion.”). 

AFFIRMED IN PART; REVERSED IN PART;

REMANDED.

UNITED STATES v. CURTIN 3687
TROTT, Circuit Judge, dissenting: 

During the 20th Century, the four walls of a family’s home

provided substantial protection from marauding sexual predators on the prowl for children and unsuspecting minors to

assault. Locked doors and windows could normally safeguard

a dwelling from invasion, as well as shelter parents’ vulnerable children from harm. Distant parks, playgrounds, malls,

and sidewalks surrounding school yards were the child

molester’s preferred hunting grounds. No longer. Now, the

Internet is upon us, and it allows cunning sexual vultures

repeatedly to enter the bedrooms of immature children where,

by seductive and calculating means, unwary children are

enticed to leave the security of their homes and to venture into

unspeakable dangers. Moreover, the invaders themselves do

so invisibly, appearing only on a video screen, unseen by the

unsuspecting adults on site. This case provides an example of

this frightful situation which generations not yet familiar with

the dark side of the Internet have been slow to recognize. 

With the walls of our homes breached by the Internet, our

next best defense is the law. Unfortunately, this case reveals

that the laws and the rules of evidence upon which society

relies to protect itself from cruel deviancy are now as porous

as the walls of our homes, allowing lawbreakers to pull the

wool over the eyes of the jurors delegated to ensure that our

laws are faithfully implemented. It seems that the law of relevancy is now more concerned with protecting a sexual predator’s obscene manuals on what to do to children than with

protecting the real children upon whom they practice their

perversions, as this case illustrates. 

Curtin’s explanation to the jury for his Internet behavior

with “christy13” and trip to Las Vegas was that he intended

to act out an incestuous sexual fantasy with her, but that he

expected her to be an adult who would pretend to be his innocent unspoiled daughter. Although he called his sexual fantasy “daddy daughter,” he denied that the “daughter” would

3688 UNITED STATES v. CURTIN
be a minor. If worthy of belief, this intent would defeat the

prosecution’s case, which required proof of an intent to

engage a minor in unlawful sexual activity. However, Curtin

had on his person at the time of his anticipated encounter with

“christy13” obscene literature tending without ambiguity to

prove that the object of his incest fantasy was a child, not an

adult. My respected colleagues conclude that the district court

erred in admitting this inculpatory literature because — as a

matter of law — it was not relevant. I disagree. Therefore, I

respectfully dissent. 

I

The evidence developed against Kevin Curtin by the Las

Vegas Metropolitan Police Department suggests on its face

that he is a dangerous predatory pedophile who uses the Internet electronically to enter the homes of his immature juvenile

female victims in order to lure them into danger. Curtin’s

M.O., or modus operandi, involving calculated “grooming”

and enticement is well known to the police who work this

detail. Here, Curtin contacted his prey through a chat room

called “ltgirlsexchat,” which, according to the evidence, is a

place on the Internet where people go to talk sex with little

girls. The evidence reveals also that he planned a family cover

story for his time with his victim. He, as Uncle Kevin, would

introduce her as his “niece.” In addition, he asked her if she

was working with the police in order “to get guys who make

out with 14-year-old girls.” These aspects of the government’s evidence would seem to portray the subjective intent

required by the charges filed against him and a keen awareness of the unlawful nature of what he was doing. 

But wait, he protests, what you see and what you read on

my exchanges with “christy13” is not what you get. I’m not

an online predator trolling for naive juveniles, my true intent

— hard to discern though it may be — is to sexually hook-up

with mature females who are hanging out in juvenile chat

rooms posing as minors. I’m merely a “lonely divorcee [sic]

UNITED STATES v. CURTIN 3689
looking for an older woman who may have a place to go,”

because I do not have a place of my own. It’s just a game of

role playing. “[N]ormally in this sort of thing it would be a

fantasy. Sort of like daddy/daughter or along those lines.” My

real intent was to hook up with a thirty to forty year-old role

playing woman pretending to be 14-year-old who was interested in actualizing such an incestuous sexual fantasy, certainly not a minor. But of course, this is “my first time.” “I

haven’t ever kissed anyone but my wife since — in fifteen

years.” And, by the way, “no one ever sends a picture of what

they actually look like.” Moreover, everything I wrote to

“christy13” that makes it appear that I understood her to be

a minor? It was just a lie. 

How did I know — unsophisticated though I certainly am

— that “christy13” was an older woman even though she said

she was only fourteen? As I explained to the police: 

Q.1 Now as far as this person, they told you that

they were fourteen. 

A. Right. 

Q. Did they tell you anything else, who they lived

with or anything like that? 

A. Uhm, I . . . I’m not hesitating to give you information. It is not unusual to go on and do

exchanges with many, many, many people.

Uhm, and it . . . it is unusual to the point where

this is the first attempt that I’ve had to actually

meet anyone. But because of that, it’s difficult

for me to say which person and done which

thing and at which time. So I don’t . . . I’m . . .

1This conversation was between Curtin, Las Vegas Metropolitan Police

Department Detective Castaneda, and FBI special agent Flaherty. Here,

Curtin is responding to questions asked by Detective Castaneda. 

3690 UNITED STATES v. CURTIN
I’m not intending to be vague. I just, uh, I can’t

remember who said what. 

Q. So you don’t remember if Kristy [sic] told you

that she lived with her mother and father or anything like that? 

A. I believe she said that but, uhm, again, that

would be . . . if that were the case (laughing).

I know I’m sounding like all these if, and’s and

. . . but if that were the case, it would be part

of the fantasy, uh, on it. It wouldn’t be, uhm . . .

I would not expect . . . uh, let me rephrase that.

I would expect anyone who’s participating in

this sort of thing to have their own place where

one would go back and . . . and do the role playing . . . . 

. . .

Q. And what were kinda some of the things that

she says that, uh, she has or has not done? 

A. Uhm, she had said that she didn’t have any

experience whatsoever with guys. Uhm, which

again is a fairly common thing. And adds to my

credence to my whole idea of . . . of a, uhm,

fantasy because, you know, I . . . I’m not completely, uh, conversant with what’s going on

with kids today, but I don’t know of 14-year-old

girls who haven’t at least kissed someone or,

you know, fooled around somewhat or ___, 

. . .

Uhm, the . . . the, uh, the picture that was sent

was this attractive 14-year-old girl who, uh . . .

uh, had never done anything with anyone, but

UNITED STATES v. CURTIN 3691
was willing to suddenly, uh, jump into bed . . .

bed with a . . . a strange 42-year-old person

from Riverside is beyond anything that I would

imagine could be. You know, I . . . uh, I could

see, uh, I could see an Internet connection along

those lines if it went on for months and months

and months and months and you grew a . . . an

attachment and that sort of a thing. What brings

it beyond any level of credence to me that it’s

actually possibly a 14-year-old girl is that

you’ve got this innocent 14-year-old girl who’s

going to, you know, jump into bed with some

guy, uh, after talking to him for two days.

That’s what led me to believe that there’s no

way on earth that it was . . . 

Q.2 But, I mean, coming here, you had no idea, no

way of knowin’ that it wasn’t a 14-year-old girl

named Kristy [sic]. Am I right? Other than what

you . . . you think it may be a fantasy, but as far

as what y’all talked about, am I right in sayin’

that you had no way of knowin’? 

A. You are right in saying that there is no concrete

way that I could have known, uhm, that it

wasn’t a 14-year-old girl. However . . . (Both

talking at once) 

Q. ___. Oh, no, go ahead. Keep goin’. 

A. Uhm, I deal with people all of the time and my

experience has never been that someone who is,

uh, an attractive person who’s . . . who saved

themself, not even kissed and not done anything, and, uh, uh . . . 

2At this point Special Agent Flaherty questioned Curtin. 

3692 UNITED STATES v. CURTIN
Not bad for a first-timer who had not kissed anyone but his

wife in fifteen years. 

Curtin’s cover story and protestations of “no criminal

intent” notwithstanding, federal prosecutors charged him with

one count of interstate travel with intent to engage in a sexual

act with a minor, in violation of 18 U.S.C. § 2423(b), and one

count of the use of an interstate facility to persuade a minor

to engage in unlawful sexual conduct, in violation of 18

U.S.C. § 2422(b). Both charges required the government to

prove beyond a reasonable doubt that Curtin acted with the

intent to engage a person under the age of eighteen years in

unlawful sexual behavior. To quote the court in its concluding

instructions to the jury: 

In order for the defendant to be found guilty of

[§ 2423(b)], the Government must prove each of the

following elements, beyond a reasonable doubt: 

First, the defendant used a facility or means of

interstate commerce. 

. . .

Second, the defendant knowingly intended to persuade, induce, entice, or coerce Christy into engaging in sexual activity for which he could be

prosecuted under the laws of the state of Nevada. 

Third, the defendant believed Christy had not

attained the age of 16 years. . . . 

Under the laws of the state of Nevada, it is an

offense to commit statutory sexual seduction.

Nevada law defines statutory sexual seduction as

ordinary sexual intercourse, anal intercourse, cunnilingus, or fellatio committed by a person 18 years of

UNITED STATES v. CURTIN 3693
age or older with a person under the age of 16 years.

. . .

[D]efendant’s subsequent conduct may be considered by you or the question of the defendant’s intent

at the time he communicated on the Internet or traveled in interstate commerce. 

[T]he fact that Christy was an undercover agent

posing as a 14-year-old girl and that no actual minor

child was victimized in this case is not a defense

. . . . 

II

Prior to the trial, it became clear that the only disputed

issue in this case would be Curtin’s subjective intent: did he

intend to hook up with a 30 to 40 year-old woman who liked

to pretend she was a child having incestuous sex with her

daddy, or with a pubescent minor? Curtin went so far as to

file a motion 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. He

thought it was all too easy, that no 14 year old was

going to just hop into bed with a 42 year old after

two chat sessions, especially a pretty girl. As he said

in his statement, her Mary Poppins naivety was

beyond any level of credence. It was so easy and

3694 UNITED STATES v. CURTIN
uncredible that he even wondered if it could have

been police. In any event, he was not concerned,

because when 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. This meeting was the litmus test of his

true intentions in this nebulous and hazy situation.

He clearly and without question passed this test.

When he calmly and simply walked away, the police

wanted to know why. He told them. He clearly and

unequivocally explained that he did not talk to this

person because he stopped by the Suncoast with the

hope and intentions of meeting an older woman.

HAD HE BEEN THERE TO MEET A MINOR, AS

IS THE CRUX OF THIS INDICTMENT, THEN HE

WOULD HAVE INTRODUCED HIMSELF AT

THAT POINT. 

. . . 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 by Curtin. His defense was a matter of record. The trial would be about intent and what was in

Curtin’s mind during his undisputed conduct with “christy13.” This was the issue, the only issue: subjective intenUNITED STATES v. CURTIN 3695
tions. As counsel for Curtin said in his opening statement,

“[Curtin] thought it was someone his age that he was dealing

with and that they would role play in a situation much like a

dad and a daughter.” Counsel concluded on this what-was-inCurtin’s-mind theme by telling the jury that “this is the type

of crime that is a situation where you have to look at the

thoughts.” To prevail, of course, Curtin would not be called

upon to satisfy the jury that his defense was true. All he had

to do is raise a reasonable doubt in the mind of a single juror.

III

Confronted with Curtin’s aggressive fantasy intent defense

— to sexually play daddy/daughter incest, not with a minor

but with an adult — and facing the traditional daunting burden of proof, the government offered stories contained on

Curtin’s PDA, or “personal digital assistant.” These stories

were offered pursuant to Fed. R. Evid. 404(b) for two equally

appropriate purposes: (1) to prove that Curtin harbored the

subjective intent made unlawful by law, and (2) to rebut Curtin’s defense that the daughter in his daddy/daughter sexual

fantasy was an adult pretending to be a child. From the beginning, the government was put on notice by the court that in

order for the stories to be properly admitted, each story would

have to comport to the admissibility conditions of Fed. R.

Evid. 401 and 404(b) as well as the probative versus prejudice

limitations found in Fed. R. Evid. 403. 

What was the content of the material on Curtin’s PDA? It

consisted of approximately 140 stories containing graphic

descriptions of sexual acts with minors. Not a single story on

Curtin’s PDA was about daddy/daughter role playing with

adults. The stories admitted in evidence are built around daddies having sexual relations with child daughters, not adults,

and the content of the stories parallel Curtin’s email

exchanges with his target. I extract two representative examples:

3696 UNITED STATES v. CURTIN
LOVE for the WORLD

An Erotic Story

. . .

“Good morning, brothers and sisters. It’s a splendid day the Lord has blessed us with; . . . 

“I’m going to speak frankly, bluntly; and tell some

truths that need telling. And I don’t want any of you,

friends, to send the kids to the next room or anything

else because they might be shocked. If your child is

old enough to understand what I’m saying, he or she

must hear it along with you. These are TRUTHS that

even children must learn. So gather around; call the

children, and listen to the truth that has been

revealed to me.”

“In today’s world, parents have a special duty

towards their children. Gone are the days when we

could pretend children were ‘innocent’ of the facts of

life. Today’s children, before they turn ten, and some

even before first grade, know what sex is . . . And

many of them have already developed an interest

that some parents may feel uncomfortable with. That

discomfort, is the matter I am going to address

tonight; and what you must do, to not just overcome

it, but to find true joy in doing the work of the Lord,

by properly teaching your children the true JOY of

sex, when practiced with those you love. 

For it is truly up to the parents to steer their children right: into a healthy outlook on matters of sex.

After all, it is not only a beautiful gift from the Lord;

it is the very source of those precious children themselves.” 

“I will talk first about the responsibility of fathers.

I must say that many fathers out there disgrace the

UNITED STATES v. CURTIN 3697
very meaning of the word. Yes, there are many who

behave as though their role ends at begetting the

child, or still hold to an old-fashioned sense of

‘duties’ that is limited to providing the groceries

every week. THAT is not the way to bring up a

child! Especially your daughters! Daughters need

their father to be a strong presence, the very prototype of a manly image. 

Men, your daughters need YOU, to be the FIRST

MAN IN THEIR LIVES!” 

“And I’m not talking any halfway measures here,

friends. 

When I say you must be the first man in your

daughter’s life I mean just that! Think about it: Your

precious little girl, who loves you more than anything in the world . . . you love her too, don’t you?

DON’T you?” 

“Then MATCH that love, gentlemen! Be not only

the first MAN in her life; be the first MALE in her

life! Yes, I mean exactly what you are thinking. I

want you to be her first f...k!”

. . .

[Exhibit 7b] 

Restrictions

An Erotic Story

“Margaret?” 

“Yes Daddy?” 

“You were sitting out there a long time, with

Billy, weren’t you?” 

3698 UNITED STATES v. CURTIN
“Yes Daddy.” 

“Yes Daddy.” 

“Did you let him kiss you?” 

“Only on the cheek Daddy.” 

“That’s good. Did he do anything else?” 

“Well, he put his arm around me.” 

“You stopped him, didn’t you?” 

“Well . . .” 

“Oh Margaret, what am I going to do with you?

You didn’t let him do any more, did you?” 

“Well, he tried to put his hand on me here, but I

stopped him.” 

“Very good Margie. Maybe I can trust you after

all. What did you tell him?” 

“I told him, that if he didn’t keep his hands where

they belonged, he’d have to go home. I don’t like to

tell him that Daddy, he’s a really nice boy. How

come I can’t let him touch me Daddy?” 

“Because I’m afraid you’ll go too far.” 

“Too far?” 

“I guess I’ll just have to show you. Come here,

and sit on my lap.” 

“Ok Daddy. You mean, like I’m not supposed to

sit on Billy’s lap?” 

UNITED STATES v. CURTIN 3699
“Uhuh. Oh, wait. First go change into your red

dress, and top.” 

“The SHORT one Daddy?” 

“Uhuh.” 

“But Daddy! You told me never to wear that one.”

“Uhuh. I’ll show you why I don’t want you wearing it.” 

“If you say so, Daddy.” 

“I do. And Margie?” 

“Yes Daddy?” 

“Don’t wear any nylons, or pantyhose either.” 

“Ok Daddy.”

. . .

[Exhibit 7c] 

To illustrate the material similarities between the stories in

Curtin’s PDA and the escalating salacious enticements he

made on line to “christy 13,” known as “grooming,” here are

some representative examples of his email conversations with

her. They show an adult planning to initiate a young virgin

into the world of adult sex:3

Christy: You don’t mind that I’m 14? 

3For ease of reading the format has been modified. The content of the

conversation is unaltered. 

3700 UNITED STATES v. CURTIN
Curtin: Do you mind that I’m 42? 

Christy: No, not at all. 

Curtin: Have you ever been with an older guy? 

Christy: No, I’m still a virgin, if that is what you’re

asking. 

Curtin: Well, what would you want to do with me?

I’d love to make out with you. Is that weird?

. . .

Curtin: Do you masturbate? 

Christy: No, never have. . . . 

. . .

Curtin: Do you never get urges? 

Christy: What do you mean? 

Curtin: You never feel horny? 

Christy: No. Is that okay?

. . .

Curtin: Do you have periods yet? 

Christy: Yes. 

Curtin: I just logged on and looked at your picture.

You’re so sexy that it’s hard to believe you don’t get

horny. 

UNITED STATES v. CURTIN 3701
Christy: I don’t think that I’m pretty. 

Curtin: I think you are, and I think you’re sexy. 

Christy: Thanks.

. . .

Christy: What should I do or how should — how far

should I go? 

Curtin: I’ll probably go as far as you want to go. 

Christy: I want to make you happy. 

Curtin: I want to make you happy, too. If you were

masturbating and fantasizing about sex, I’d love to

have sex with you. But since you’re not, I don’t want

to push you past anything you’re ready for. . . . 

. . .

Christy: I heard that it hurts the first time. Also, that

you can get pregnant real easy. . . . 

Curtin: There are things we can do to stop that.

. . .

Curtin: Or, we could just make out or I could just

give you oral sex or we could just fool around. 

Christy: Would it hurt if you gave me oral sex? 

Curtin: No, not at all.

. . .

3702 UNITED STATES v. CURTIN
Christy: What should I bring to sleep in, my pj’s or

will my jeans and shirt be okay? 

Curtin: Nothing. I don’t want you to sleep in anything. 

Christy: Really? Not even my underwear? Won’t

that be a little uncomfortable? 

Curtin: No, that’s the best way to sleep, all cuddled

up, two naked bodies. 

Christy: Okay, if you say so. I just think it would be

uncomfortable. 

Curtin: Try tonight and tell me if it is. And imagine

my face moving between your legs and licking you.

Imagine my tongue penetrating you. 

Christy: I can’t. Mom and Dad come in at night and

check in on me and tell me all the time that they

cover me up with my blanket. So they would see that

I was naked and would ask me why. Plus, if my dad

saw me naked, I would be so embarrassed.

. . .

Christy: . . . It won’t hurt, right? 

Curtin: No, it won’t hurt.

. . .

Curtin: Have you thought about my head between

your legs, licking you? 

Christy: Yes. Kind of curious what that will feel like.

UNITED STATES v. CURTIN 3703
Curtin: Have you touched yourself there? 

Christy: Only while taking a shower to was [sic]

myself. Am I weird? 

Curtin: No, I just thought you might have when

thinking about me, about — thinking about we’re

going to do [sic].

. . .

Curtin: I did, by the way. I looked at your picture

and played with myself thinking about what it would

feel — what it would be like to have sex with you.

You are so sexy. 

Christy: Really? You did? 

Curtin: Yes. . . . 

Curtin: I want to make you feel so good. I want this

to be the best you’ve ever felt. 

Christy: Really? You’re so nice. 

. . .

Curtin: Can you get undressed? 

Christy: No way. My little sister comes in and out of

my room a lot and she would tell Mom or Dad that

I did not have any clothes on. 

Curtin: Rats. 

Christy: Why? What were you going to have me do?

Curtin: Play with yourself. . . . 

3704 UNITED STATES v. CURTIN
Christy: Oh, I never have done that kind of stuff. 

Curtin: I know. I was hoping you’d start. No big

thing. . . . It would just be sexy. 

Christy: I’m going to feel so dumb when we are

alone because I won’t know what to do. 

Curtin: No, you won’t feel dumb. The only thing I

ask is if something feels good, tell me. And if something feels bad, tell me. I just want to make you feel

so good. 

Christy: Okay, I will. 

. . .

Curtin: I’m going to make it so good for you. I’m

going to get you to come and come and come. 

Christy: Will it hurt if you do that? 

Curtin: No, it will feel real good. I’m not going to

hurt you. Remember, I promised. 

Christy: Okay. I get a little excited when I think

about you being my first. . . . 

Curtin: I’m going to love sucking on your breasts,

your naked body in front of me, and moving down

and licking you and putting my tongue in you.

. . .

Curtin: I’d love for you to put my d...k in your

mouth. Would you do that? 

Christy: If you want me to, I think I will. 

UNITED STATES v. CURTIN 3705
Curtin: smiley face.

Curtin: I’ll show you how to do that to drive a guy

nuts. Smiley face.

Christy: To do what? 

Curtin: Give a blow job. Put a guy’s d...k in your

mouth. 

Christy: Really? You are going to teach me how to

give a blow job? If my girlfriends only knew, they

would be jealous. 

Curtin: Sure. Smiley face. 

Under the circumstances of this case, and especially given

the nature of the defense, were the stories in Curtin’s PDA of

sexual contact with minors relevant? Certainly. The stories

consisted by anyone’s logic of “evidence having 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. As

acknowledged by the Supreme Court: 

Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially

when that issue involves the actor’s state of mind

and the only means of ascertaining that mental state

is by drawing inferences from conduct. 

Huddleston v. United States, 485 U.S. 681, 685 (1988). 

Curtin’s possession in his PDA of these stories on his person at the time of his intended encounter with “christy13”

clearly illuminates his thoughts and his subjective intent to

carry out his daddy/daughter sexual initiation escapades with

a juvenile, not an adult. Any lingering question of relevancy

3706 UNITED STATES v. CURTIN
was put to rest by Curtin’s defense that it was all a fantasy

directed at an adult.4 The similarities between the solicitous

“grooming” email conversations and the content of the stories

is readily apparent.5

However, the district court did not admit all 140 stories,

only five, taking great care in the exercise of its discretion to

restrict their use to the main issue and to eliminate possible

undue prejudice.

IV

With all respect to my colleagues, Guam v. Shymanovitz,

157 F.3d 1154 (9th Cir. 1998), does not dictate the outcome

of this case, and its holding does not as a matter of law render

abusive the district court’s exercise of discretion. In the parlance of the profession, Shymanovitz is distinguishable. 

First, unlike the specific intent crimes with which Curtin

was charged, the combination of crimes in Shymanovitz —

generally unlawful sexual activity with minors — required an

entirely different type of mens rea from the specific intent

required here. One of the crimes charged in Shymanovitz,

“sexual penetration,” did “not include any requirement that

the defendant act with intent,” id. at 1157, just that the defendant have engaged in sexual penetration with the victim. The

4The government may offer in its case in chief evidence rebutting an

expected defense. United States v. Halbert, 640 F.2d 1000, 1004 (9th Cir.

1981); United States v. Necoechea, 986 F.2d 1273, 1280 n.4 (9th Cir.

1993); United States v. Henderson, 717 F.2d 135, 137 (4th Cir. 1983). 

5The record shows that the trial judge required the government to go

through each story it sought to admit and identify that portion of the story

that was similar to the Curtin’s enticement of “christy13.” See infra Part

V. The majority opinion does not take issue with this analysis. Rather, the

majority asserts that as a matter of law, reading material is categorically

irrelevant and dissimilar for the purposes of Fed. R. Evid. 401 and 404(b).

As set forth below, this unwarranted assertion is legally flawed, and contrary to congressional intent. 

UNITED STATES v. CURTIN 3707
other crime, sexual contact with a minor, required touching

that was intentional rather than accidental. Moreover, the

actual purpose of the person doing the touching was immaterial. As Judge Reinhardt explained, 

[T]he charges based on sexual contact require the

government to prove that any touching on Shymanovitz’ part was intentional, and that a reasonable

person could construe the touching to be for a sexual

purpose. 

Whether Shymanovitz’s actual purpose in touching the alleged victims was sexual arousal or gratification, however, or whether he was actually aroused

or gratified by the touching is immaterial to the

offenses, including the charges based on improper

sexual contact. Instead, the question in the latter category of cases is whether a reasonable person could

construe the touching to be for such a purpose. The

test, under the sexual contact statute, is an objective

not a subjective one. In short, it is the character of

the touching that is at issue, not the purpose of the

intentional toucher. Accordingly, the government’s

current and sole justification for admitting the challenged evidence goes, once again, to the proof of an

element immaterial to the offense. 

Id. at 1158 (emphasis added). 

Second, the defense in Shymanovitz was not that the alleged

touching and penetration were not accompanied by any requisite state of mind, but that the acts charged as crimes never

happened. “His counsel argued that the boys and some of the

parents had concocted the allegations against him . . . .” Id.

at 1154. Moreover, Shymanovitz 

. . . never testified at trial that he believed sexual

conduct with minors to be legal. Nor was there testi3708 UNITED STATES v. CURTIN
mony to indicate that he somehow lacked knowledge

of or familiarity with fellatio, anal intercourse, or

other general aspects of homosexual sex. Moreover,

neither knowledge of the illegality of the conduct of

which he was accused nor knowledge of the nature

of the specific acts identified by the prosecutor constituted an element of the offense. More important,

such knowledge would in no way tend to prove his

guilt on any of the charges brought against him.

Accordingly, it is highly unlikely that the government introduced the magazines to address the issues

it argued they were relevant to during the prosecutor’s closing arguments. 

Id. at 1156. 

In contrast, Curtin did testify at the trial, tendering an energetic defense that his intent was to couple with an adult

female, not a juvenile. Shymanovitz’s defense had nothing to

do with intent or state of mind. 

Third, the stories were in Curtin’s possession when he

entered the casino in order to meet his target. Not so in Shymanovitz. 

Thus, given that the evidence under scrutiny in Shymanovitz was (1) not probative of any issue in the case, and

(2) not relevant to Shymanovitz’s factual defense, it was

appropriate for the panel to conclude as a matter of law that

it was not properly received pursuant to Rule 401 or 404(b).

The evidence simply failed Rule 401’s definition of relevancy

and, therefore, also failed Rule 404(b). The evidence did not

illuminate “a fact of consequence to the determination of the

action,” and was nothing more than an attempt to slime the

defendant. Id. at 1154 (referring to the prosecutor’s “untempered and provocative references” to the evidence).6

6The majority places great significance on our statement in Shymanovitz

that “there is simply no doubt that a wide gulf separates the act of possessUNITED STATES v. CURTIN 3709
We recognized the limited reach of Shymanovitz in United

States v. Allen, 341 F.3d 870 (9th Cir. 2003). The defendants

in Allen were charged with intimidating or interfering with a

person’s housing rights on account of race or color, in violation of 42 U.S.C. § 3631. In order to satisfy the statute’s

requirement of a showing of racial animus, the government

offered, and we admitted:

. . . skinhead and white supremacist evidence,

including color photographs of their tattoos (e.g.,

swastikas and other symbols of white supremacy),

Nazi-related literature, group photographs including

some of the defendants (e.g., in “Heil Hitler” poses

and standing before a large swastika that they later

set on fire), and skinhead paraphernalia (e.g. combat

boots, arm-bands with swastikas, and a registration

form for the Aryan Nations World Congress). 

Id. at 885-886. The district court ruled (1) that this potentially

inflammatory evidence was relevant to proving the defendants’ motive, intent and plan, and (2) that its prejudicial

potential did not substantially outweigh its probative value as

demanded by Fed. R. Evid. 403. 

On appeal, the Allen defendants challenged the trial court’s

ruling on the ground that the evidence was unfairly prejudicial. We disagreed, relying in large measure on our decision

in United States v. Skillman, 922 F.2d 1370 (9th Cir. 1991),

ing written descriptions or stories about criminal conduct from the act of

committing the offenses described.” (Emphasis added.) From that statement the majority asserts that reading material can never be relevant to

any crime. This over-generalization best illustrates the majorities failure

to appreciate the fact that the “offense described” in Shymanovitz was not

a specific intent crime. Thus, because specific intent was not an issue,

reading material admitted to show intent would never be relevant. Here,

as illustrated by subsequent case law, where specific intent is at issue,

reading material can be relevant. 

3710 UNITED STATES v. CURTIN
a race-motivated cross burning case wherein “skinhead” literature and materials found in Skillman’s garage and on his person at the time of his arrest was used to prove Skillman’s state

of mind at the time of the crime, even though the government

could not establish that Skillman was a skinhead. In Skillman

we said, 

Skillman principally relies on United States v. Gillespie, 852 F.2d 475, 479 (9th Cir. 1988), where we

found it was an abuse of discretion to admit evidence

of homosexual conduct of the appellant with his

adoptive father in a case where the appellant was

charged with transporting his three-year-old goddaughter for illegal sexual purposes. Gillespie is

inapposite since the alleged homosexual conduct did

not tend to establish a violation of the statutes in

issue. Here, the skinhead evidence tended to establish Skillman’s racial animus and that he might act

on his beliefs. Skillman also contends that the skinhead references were cumulative to other animus

evidence, including Exhibit 3, the business card with

the racist poem found in his wallet as well as

Milum’s and Becky’s testimony on Skillman’s prior

race statements. We conclude this evidence was not

“needless[ly]” cumulative in light of the difficulty in

establishing the requisite racial animus and Skillman’s theory-of-defense that he was a mere passive

bystander at the crime. The district court’s evaluation under Rule 403 and the admission of the evidence was not an abuse of discretion. 

922 F.2d at 1374 (emphasis added). 

Accordingly, because we perceived in Allen the difference

between cases involving specific intent and those that do not,

we had no difficulty explaining why Shymanovitz, like Gillespie, was inapposite: 

UNITED STATES v. CURTIN 3711
The defendants cite to our decision in Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir. 1998), to support

their argument that the admission of the skinhead

and white supremacy evidence was unduly prejudicial. In Shymanovitz, we concluded that the district

court abused its discretion by allowing the government to introduce testimony about the contents of

magazines found at the defendant’s apartment,

including photographs of men masturbating, ejaculating, using sex toys, and engaging in oral and anal

sex (among other things), to prove the defendant’s

intent in committing sexual acts with minors. 157

F.3d at 1155. Key to our reasoning was the fact that

the testimony was highly prejudicial and was not relevant to proving any of the elements of the crime for

which the defendant was convicted (unlawful sexual

activity with minors). Id. at 1157-60. In contrast, the

skinhead and white supremacy evidence here was

relevant to proving the element of intent in both

§§ 241 and 245(b)(2)(B). Moreover, in light of the

government’s heavy burden of proving racial animus, we conclude that it was not an abuse of discretion to admit the evidence. 

Allen, 341 F.3d at 887, n.25 (emphasis added). 

My colleagues attempt — unconvincingly I believe — to

distinguish Allen on the basis of insignificant differences

between the evidence in Allen and the evidence here. They

point out (1) that “the evidence in Allen involved more than

the possession of reading material,” including photographs

showing some of the defendants as active participants in “Heil

Hitler” poses, (2) that the Nazi literature in Allen may not

have been “fictional,” and (3) that “the evidence in this case,

and in Shymanovitz was extremely prejudicial,” apparently as

opposed to the evidence in Allen. 

3712 UNITED STATES v. CURTIN
These minor differences are utterly insufficient to render

Allen inapposite. First, that Allen involved evidence in addition to reading material is inconsequential, as each “offer of

evidence is to be evaluated independently under the Federal

Rules of Evidence and the relevant case law.” United States

v. Bertoli, 854 F.Supp. 975, 1079 (D.N.J. 1994) vacated in

part on unrelated grounds, 40 F.3d 1384 (3d Cir. 1994). Second, I fail to see any material difference between real stories

of sexual perversion and fictional stories of the same ilk. Both

serve to excite sexual criminals and to fuel their perverted

intentions. Moreover, whether a story’s plot is fictional is not

material to the question of whether the content of that story

relates to and is similar to the conduct of the alleged criminal

— thereby satisfying the requirements of Rules 401 and

404(b). Third, the majority’s assertion that “the evidence at

issue in this case and in Shymanovitz [as opposed to Allen]

was extremely prejudicial,” and thus distinguishable, fails to

appreciate how the rules of evidence operate. Prejudice is a

separate basis for exclusion that requires an independent analysis under Fed. R. Evid. 403 after it is determined that an

offer of evidence is relevant and admissible. See Weisgram v.

Marley, 528 U.S. 440, 453 n.9 (2000). As admitted by my

colleges, the prejudice argument was waived by Curtin and is

not an issue before us.7

Ultimately, the majority’s reasons for distinguishing Allen

are inadequate, especially when viewed in the light of the “literary” evidence approved in Skillman on which Allen relied.

The evidence in Skillman included a “poem containing racial

epithets” on the back of a business card in Skillman’s pocket.

We did not segregate out of our holding in Allen, the Nazi literature in his possession. Although literature per se has no

special protection in this context as evidence — under the

7The majority’s implication that possession of Nazi and white supremacy skinhead literature is not “extremely prejudicial” is hard to comprehend as the movement is directly associated with one of the most wellknown tragedies of humankind. 

UNITED STATES v. CURTIN 3713
First Amendment or otherwise — my colleagues have effectively made relevant literature categorically off-limits as a

source of evidence as to a person’s subjective intent. 

One way to test the relevancy of Curtin’s recent PDA

downloads (and to illustrate the difference between the setting

here and the circumstances in Shymanovitz) is to envision

what we would certainly hold if Curtin’s PDA stories8 were

of role playing daddy/daughter incest with female adults —

not minors — and the district court had excluded the stories

as “irrelevant.” Curtin would have attempted to admit the stories into evidence to demonstrate that he intended to meet an

adult. Without a doubt, a convicted Curtin would assert on

appeal that the content of the stories shed light on his subjective intent and — as counsel put it to the jurors — his

“thoughts” as he communicated with “christy13,” and as he

traveled interstate with the stories in his pocket to meet her;

and there is no doubt that we would agree. Why? Because the

stories would have a “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. Such stories would corroborate

his claim of adult incest fantasy. How else could he do that

without evidence of “other acts,” as they are called? Conversely, the absence of such adult stories coupled with the

presence of stories wherein children are the objects of the sexual appetites of adults is equally relevant to prove the government’s case and to confront Curtin’s defense. Relevancy boils

down to what our human experiences tell us, sometimes called common sense. 

As explained in “McCormick on Evidence,” Third Edition,

Hornbook Series, Lawyers Edition, 

8Or, maybe the testimony of a woman with whom he had played daddy/

daughter. 

3714 UNITED STATES v. CURTIN
[H]ow can a judge know whether the evidence could

reasonably affect an assessment of the probability of

the fact to be inferred? In some instances, scientific

research may show that the fact in issue is more

likely to be true (or false) when such evidence is

present than when it is not. Ordinarily, however, the

answer must lie in the judge’s own experience, [the

judge’s] general knowledge, and [the judge’s]

understanding of human conduct and motivation.

Id., § 184 (emphasis added). 

In Internet “sting” cases such as this involving claims of

entrapment, the issue of what a defendant’s state of mind was

immediately prior to his contact with a sexual target purporting to be a minor is routinely a serious point of contention.

We call the issue one of “predisposition,” and it is primarily

a question of fact. In United States v. Poehlman, 217 F.3d 692

(9th Cir. 2000), for example, Poehlman, a cross-dresser, was

charged with willingly crossing state lines to have sex with

minors, but it appeared that when first contacted by the government, he was looking for adults with whom to engage in

his “proclivities,” not children. However, the undercover officer with whom he was corresponding deftly turned Poehlman’s prurient interest to children, and he responded

accordingly. In court, charged with a violation of 18 U.S.C.

Section 2423(b), Poehlman relied on his initial interest in

adults to demonstrate a lack of predisposition to involve

minors in his sexual plans, arguing that the government took

advantage of that lawful interest and unlawfully used it to

steer him to children. In concluding that he had indeed been

entrapped, we said, “The government thus played on Poehlman’s obvious need for an adult relationship, for acceptance

of his sexual proclivities and for a family, to draw him even

deeper into a sexual fantasy world involving these imaginary

girls.” Id. at 702. 

To what evidence did we look to verify a factually fatal

lack of predisposition on Poehlman’s part to target minors?

UNITED STATES v. CURTIN 3715
The same kind of material we now place “off limits” as a matter of law: 

By analogy, the fact that Poehlman willingly crossed

state lines to have sex with minors after his prolonged and steamy correspondence with Sharon cannot, alone, support a finding of predisposition. It is

possible, after all, that it was the government’s

inducement that brought Poehlman to the point

where he became willing to break the law. As in

Jacobson, we must consider what evidence there is

as to Poehlman’s state of mind prior to his contact

with Sharon. 

On this score, the record is sparse indeed; it is easier

to say what the record does not confirm than what

it does. The government produced no e-mails or chat

room postings where Poehlman expressed an interest

in sex with children, or even the view that sex with

children should be legalized. Nor did the government

produce any notes, tapes, magazines, photographs,

letters or similar items which disclosed an interest in

sex with children, despite a thorough search of Poehlman’s home. There was no testimony from the

playmates of Poehlman’s children, his ex-wife or

anyone else indicating that Poehlman had behaved

inappropriately toward children or otherwise manifested a sexual interest in them. 

United States v. Poehlman, 217 F.3d at 703-704 (emphasis

added). 

Thus, the absence in context, and by implication the presence of child-oriented materials becomes acutely relevant to

a defendant’s material state of mind “prior to his contact”

with the object of his sexual attention, and, as Poehlman

reveals, such evidence is not only admissible, but critical. The

3716 UNITED STATES v. CURTIN
now-confused dissonance in the law of our circuit on this

issue is regrettable, to say the least. 

The circumstances here are analogous to those confronted

by the Tenth Circuit in two cases, United States v. Viefhaus,

168 F.3d 392 (10th Cir. 1999) (per curiam); and United States

v. Magleby, 241 F.3d 1306 (10th Cir. 2001). Viefhaus had

been charged with the use of a telephone to transmit a bomb

threat. To illustrate (as required by the Supreme Court in

Watts v. United States, 394 U.S. 705 (1969)) that the threat

made by Viefhaus was a “true threat” and not just “political

hyperbole,” the court admitted “literature espousing hate and

violence” and “Nazi propaganda” found in his home. Id. at

394-395. In turning away Viefhaus’s challenge to this evidence, the court said, citing United States v. Cox, 957 F.2d

267 (6th Cir. 1992), 

When the defendant offers lack of intent as a

defense, even though the government does not have

to prove subjective intent as an element of the

offense, the circumstances surrounding the making

of the calls becomes relevant. The evidence offered

clearly was probative of defendant’s state of mind

and tends to counter his allegation of benign purpose. 

. . .

The only way a jury could properly assess the sincerity of Viefhaus’ beliefs, as well as the likely

effect Viefhaus’ message would have on an objective listener, was to examine the circumstances in

which the comments were made. Although admission of this evidence was harmful to Viefhaus, its

probative value outweighed any prejudicial effect. 

Viefhaus, 168 F.3d at 397 (sustaining conviction under 18

U.S.C. § 875(c)) (internal citations omitted). 

UNITED STATES v. CURTIN 3717
In Magleby the defendant was charged with burning a cross

on the property of an interracial family. Recognizing that

“[d]irect evidence of the defendant’s intent is seldom available,” and that “[i]ntent can be proven from surrounding circumstances,” 241 F.3d at 1321, the Tenth Circuit affirmed the

admission in evidence of vile racist song lyrics frequently

sung on occasion by the defendant, which referred repeatedly

to African-Americans as “niggers.” The court said,

We now turn to Mr. Magleby’s argument that the

lyrics are irrelevant and unfairly prejudicial.

Although the admission of the lyrics to the Screwdriver song was certainly harmful to Mr. Magleby’s

case, we conclude that its probative value outweighed its prejudicial effect. This evidence is probative both of Mr. Magleby’s racial animus under 42

U.S.C. § 3631(a) and of his intent under 18 U.S.C.

§ 241. 

In United States v. Viefhaus, 168 F.3d 392 (10th

Cir. 1999), we held that the context in which an

alleged threat is made is probative of whether a “true

threat” exists. Id. at 398. In Viefhaus, the defendant

was convicted of making threats against, interalia,

African-Americans, Jews, and federal law enforcement on an answering machine “hotline.” The defendant asserted as a defense that he lacked the intent

requisite to make a true threat. We upheld the

admission of racially inflammatory items as relevant

to the defendant’s intent.

. . .

As did the defendant in Viefhaus, Mr. Magleby

denies having the requisite intent under 42 U.S.C.

§ 3631(a) and 18 U.S.C. § 241. The lyrics to the

Screwdriver song, as well as the evidence that Mr.

Magleby knew the lyrics and could sing along with

3718 UNITED STATES v. CURTIN
them, are probative of his intent under these sections.

First, § 3631(a) requires that the government prove

beyond a reasonable doubt that Mr. Magleby targeted the Henrys because of their race. The lyrics

and Mr. Magleby’s familiarity with them are probative of his racial animus in burning the cross. Second, under § 241, the government must prove

beyond a reasonable doubt that Mr. Magleby had the

specific intent to “oppress, threaten or intimidate”

the Henrys in the enjoyment of their federally protected right to occupy property. Context is important

in determining whether a true threat has been made.

. . .

The necessity of demonstrating the context in

which the cross was burned renders the Screwdriver

lyrics and other evidence of hostility toward the

presence of African-Americans in this country intrinsic to a violation of § 241. And, as in Viefhaus, the

only way the jury could properly determine the message conveyed by Mr. Magleby’s cross-burning and

the foreseeable effect it would have on the Henrys

was to examine the circumstances in which the

cross-burning was conceived, planned, and executed.

We fine that the district court did not abuse its discretion in admitting the song lyrics into evidence. 

Id. at 1319 (emphasis added). I note that part of the evidence

used to show Magleby’s subjective intent was the circumstance that he had watched a movie, “Mississippi Burning,”

prior to the cross-burning. Id. at 1313. 

Indeed, in similar contexts we have routinely held that circumstances surrounding an alleged crime become more relevant when the defendant makes his intent a disputed issue.

Take the case of Larry McCollum. McCollum claimed that

although he entered a bank and gave an employee a note

UNITED STATES v. CURTIN 3719
demanding $100,000 he had “no criminal intent” to commit

robbery because he was acting involuntarily under the influence of hypnosis. The district court admitted a prior conviction for armed robbery to counter his defense of a lack of

intent. We affirmed, holding as follows: 

In this case, . . . the defense conceded that McCollum performed all acts charged by the prosecution.

The key issue, indeed the only disputed issue, was

whether McCollum acted with intent to rob the bank.

Where the mental state to be inferred from undisputed overt acts of a defendant is the crucial issue,

evidence of past criminal acts has generally been

found insufficiently prejudicial to warrant exclusion.

United States v. McCollum, 732 F.2d 1419, 1425 (9th Cir.

1984) (emphasis added); United States v. Verduzco, 373 F.3d

1022 (9th Cir. 2004) (quoting McCollum and affirming the

use of evidence of other similar criminal acts to counter an

affirmative defense of duress). 

With the utmost respect to my colleagues, they seem

moved to brush McCollum aside by their assumption that the

incest materials on Curtin’s PDA were “otherwise lawful

reading material.” This premise is doubtful at best. Obscenity,

which is described as a work which appeals to the prurient

interest and which describes sexual conduct in a patently

offensive way, and which when judged by contemporary

community standards lacks serious literacy, artistic, political,

or scientific value, is not protected by the First Amendment.

Miller v. California, 413 U.S. 15, 24-25 (1973). I will leave

it to the reader to decide whether “Love for the World” and

“Restrictions” are otherwise lawful reading material. However, even if they were to be seen as lawful, this fact in no

way renders them outside the scope of Rule 404(b). Rule

404(b) on its face covers “other crimes, wrongs, or acts.” All

relevant extrinsic acts are presumptively admissible, subject

to Rule 403. The act of possession of reading material falls

3720 UNITED STATES v. CURTIN
within this Rule, whether lawful or not — so long as the act

of possession is relevant. 

Bottom line? McCollum is apposite. 

The precedents discussing the use of other evidence to

establish criminal intent where intent is denied are literally

endless. In United States v. Brunson, 657 F.2d 110, 115 (7th

Cir. 1981), our sister circuit said, 

The remainder of appellant’s contentions are equally

unpersuasive. Appellant complains that the trial

judge erred in admitting the Government’s evidence

of appellant’s prior allegedly criminal conduct relating to counterfeiting after appellant had admitted

that conduct on the stand. The evidence, as stated

previously, was offered and admitted in rebuttal to

appellant’s main defense that he did not intend to use

the counterfeit money to defraud anyone. The admission for such purposes was clearly proper both

because intent was a necessary element of the crime

and because of appellant’s chosen defense.

Fed.R.Evid. 404(b); United States v. Weidman, 572

F.2d 1199, 1202 (7th Cir. 1978), cert. denied, 439

U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113; United States

v. Semak, 536 F.2d 1142, 1145 (6th Cir. 1976);

United States v. Onori, 535 F.2d 938, 943 (5th Cir.

1976). 

(Emphasis added). 

As was said in the English case of Regina v. Gill, (1963)

1 W.L.R. 841, 846 (Crim. App.): 

The accused, either by the cross-examination of the

prosecution witnesses or by evidence called on his

behalf, or by a combination of the two, must place

before the court such material as makes duress a live

UNITED STATES v. CURTIN 3721
issue fit and proper to be left to the jury. But, once

he has succeeded in doing this, it is then for the

Crown to destroy that defence in such a manner as

to leave in the jury’s minds no reasonable doubt that

the accused cannot be absolved on the grounds of the

alleged compulsion. 

(quoted in United States v. Hearst, 563 F.2d 1331, 1336 n.2

(9th Cir. 1977)). 

3722 UNITED STATES v. CURTIN
Volume 2 of 2

UNITED STATES v. CURTIN 3723
V

My colleagues have concluded that the district court

“abused” its discretion in admitting this evidence. Far from it.

In fact, the district court’s conduct is a model of appropriate

judicial decision making, as a close reading of the record

reveals. 

Because my colleagues’ conclusion that the district court

abused its discretion is inconsistent with the record, I reproduce relevant parts of it in (excruciating) detail. The record

speaks for itself better than characterization and adjectives. In

summary, what we see is a court taking great care to follow

the law and to protect the rights of the defendant. The court:

(1) considered Shymanovitz and Allen, 

(2) accepted our legal guidance in Allen, and determined that Shymanovitz was distinguishable, 

(3) required that the five stories admitted be factually similar to the facts of the defendants

approach to and enticement of “christy13,”

consistent with relevant case law interpreting

Rule 404(b). 

(4) blocked the government from introducing

approximately 135 stories, because they were

redundant, inflammatory, and unduly prejudicial, 

(5) acceded to the defense’s request not to highlight particularly damaging parts of the stories,

(6) ruled after careful consideration — and as

required by Fed. R. Evid. 403 — that the probative value of these stories was not under3724 UNITED STATES v. CURTIN
mined by their potentially unduly prejudicial

effect, and 

(7) gave multiple cautionary instructions to the

jury as required by Fed. R. Evid. 105 as to what

the stories were admissible to prove, including

what purposes for which the jury could not

consider them. 

I elaborate. 

To begin with, the district court was acutely aware of the

Shymanovitz case. Long before the trial, the defense brought

it to the court’s attention in a “motion in limine to exclude,”

a motion that was not successful. [C.R. 22] The government

responded in writing on July 8, 2003: 

Defendant relies on Guam v. Shymanovitz for the

contention that “mere possession of fictional reading

material that describes a particular type of activity

[would] not make it more or less likely that a defendant would intentionally engage in the conduct

described.” Defense Motion in Limine, p.4, lines 25-

27 (June 30, 2004). However, Shymanovitz can be

distinguished from the present case based on the

Ninth Circuit’s statutory interpretation and the differences between the relevant statute in Shymanovitz

and the statutes the Defendant is accused of violating. [C.R. 34]. 

To demonstrate the asserted distinction, the government

relied on Allen: 

[T]he Ninth Circuit has expanded further that

“[key]” to our reasoning [in Shymanovitz] was the

fact that the testimony was not relevant to proving

any of the elements of the crime for which the defendant was convicted.” United States v. Allen, 341 F.3d

UNITED STATES v. CURTIN 3725
870, 887, n.25 (9th Cir. 2003). . . . By the above reasoning of the Ninth Circuit, this court clearly may

admit literature in the possession of the defendant for

the purpose of proving an element of the crime. It

can only be presumed that the more fundamental the

element is to the crime charged, the more the balance

weighs in favor of admission because [Fed. R. Evid.]

404(b) is a “rule of inclusion.” United States v.

Ayers, 924 F.2d 1468, 1472 (9th Cir. 1992). [C.R.

34] 

Next, we go to Day Two of the trial. After testimony on

Day One from the detective who corresponded as “christy13”

with the defendant and who questioned him after his arrest,

the government called as a witness a computer expert who

worked for the FBI and who had recovered the disputed stories from Curtin’s PDA. When the government then attempted

to offer the entirety of one of these stories in evidence, the

district court intervened, and the following occurred outside

the presence of the jury: 

MS. KOPPE: That [story] came off of the Defendant’s PDA? 

WITNESS: Yes, off the — this is another one of the

144 stories that were — were in that Documents to

Go

. . .

MS. KOPPE: What is the title of that story, if you

could look on the second page? 

WITNESS: Melanie’s Busy Day (phonetic). 

MS. KOPPE: Your Honor, we would move to admit

that story for modus operandi, intent, preparation,

and knowledge. 

3726 UNITED STATES v. CURTIN
MR. POTTER [counsel for the defendant]: Your

Honor, I would object and I would renew the same

motion [to exclude the stories] that — we’re talking

about — 

THE COURT: I do have a problem. I’m about ready

to grant the objection, Counsel. If you’d come over

to the sidebar just a moment. 

(Sidebar at 03:26:24 p.m.) 

THE COURT: I had understood [from pretrial discussions] what you were going to do is, in order to

facilitate the foundation, was to introduce particular

parts.

I have no problem with your asking him generally

what is the story about, is it a story about sex

between an adult and a minor. 

I had thought you were going to ask specific questions about specific parts of it that tended to show,

assuming that the debtor (sic) read it, and intent that

would correspond to your alleged intent for him or

his modus operandi, his knowledge. 

That’s what I thought you were going to do. 

MS. KOPPE: That — 

THE COURT: Because, otherwise, if all you’re

doing is offering these generally and you’re just stating the purpose, we don’t have sufficient foundation.

MS. KOPPE: Well, your Honor, that is what we’re

going to do. The problem is we need to get them

through this witness because he’s the one who did

the examination of the PDA. 

UNITED STATES v. CURTIN 3727
We’re going to use another witness to testify to them

because he scanned them and someone else — 

THE COURT: All right. Then all you need to ask

this witness is, are they on the PDA, and what

you’ve already asked, do they have to be opened,

unzipped — 

MS. KOPPE: Right. 

THE COURT: — before they’re transferred. 

MS. KOPPE: But I was just admitting them through

him because he’s the one who found them. That’s —

THE COURT: Well, then I have a problem because

you have not done sufficient foundation. I think

you’ve done enough with this witness (indiscernible)

to tie it into intent and knowledge, method, preparation. 

You need to have a witness on the stand who you go

through with, here is the section that relates to intent;

here’s something that shows common language with

the e-mails; here’s something that shows method

that’s actually present — 

MS. KOPPE: Right. 

THE COURT: — allegedly in this case. That’s

required for the foundation. 

I think it would only be appropriate then to admit the

document. I mean, you can admit it before, subject

to showing that foundation and then proceed to — 

MS. KOPPE: Okay. 

3728 UNITED STATES v. CURTIN
THE COURT: — point out those particular areas. 

MS. KOPPE: I can move for the conditional admission of them once he identifies them, if that’s — 

THE COURT: Subject to further foundation. 

MS. STANISH [counsel for the government]: And to

expedite it, perhaps just introduce them as a bulk

exhibit. These all came off the PDA (indiscernible)

— 

MS. KOPPE: Establishing — 

THE COURT: Subject to establishing the foundation

that I require. 

MS. KOPPE: Right. 

MR. POTTER: Well, my gut is the exhibit coming

in, it’s — he’s testifying as to what his belief is. 

The entire exhibit doesn’t need to come in because

the very exhibit doesn’t show what we talked about.

These stories are not even dealing with the same act.

I mean, these are prepubescent-type stories, at least

some of them are. 

THE COURT: Yeah. 

MR. POTTER: And that’s completely (indiscernible)

— 

THE COURT: I think I’d have to overrule that if,

and only if, you can show — for example, if you

show here’s common language to what he used in

his e-mail. 

UNITED STATES v. CURTIN 3729
Or if you can show, for example, that here is common method. This is — here’s a story that describes

how you cultivate, and that’s just exactly how he did

it here. 

Then you’ve established the foundation, in which

case I think it’s appropriate, subject to the limiting

instruction, to have the story admitted. 

MR. POTTER: The only thing I would point out is

that in, like, sexual assault cases where — or, sexual

abuse type cases, when they bring in the prior bad

acts — and what the courts have looked at is the

same type of abuse and the same kind of factors, if

it’s age or if it’s — 

THE COURT: Right. 

MR. POTTER: — convenience, meaning opportunity. We don’t have that here. (Indiscernible). These

stories are completely different, your Honor. 

THE COURT: They are. And, of course, either on

voir dire or out of the presence of the jury you can

point that out and I can rule. 

In spite of what’s read outside the presence of the

jury, there’s insufficient foundation for that particular story, you point that out [sic] them. 

MS. KOPPE: Well, your Honor, Counsel, first of all,

argued in his opening that this is all about fantasy

and these are all about the defendant’s fantasies. 

THE COURT: I understand. I understand. 

MS. KOPPE: And this shows what his fantasies are

and this shows his intent. Counsel argued he never

had the intent to have sex with a child. 

3730 UNITED STATES v. CURTIN
This goes to show that he has intent. They show —

certain [sic] of the stories show other things as well.

But — 

THE COURT: I’m inclined to agree with you that

one or a few or a general testimony about, generally,

that they’re — we don’t know this yet, but generally

there are a hundred-and-some-odd stories and they

all deal with — none of them deal with sex between

two adults. 

MS. KOPPE: Right. I was getting into that actually.

THE COURT: They all deal with — I have no problem with your asking that kind of — this isn’t the

right witness to ask it. 

MS. STANISH: Your Honor, may I make a suggestion that hopefully can expedite and clarify this without posing a problem for the jury? 

The documents were located on the PDA obviously

in his possession. The documents speak for themselves. 

It seems to me, your Honor, that perhaps a way to

resolve this is to have a preliminary determination by

your Honor with respect to each of these documents.

That would be a preliminary legal determination as

to whether your Honor is satisfied that the contents

satisfies the 404(b). 

THE COURT: I don’t care whether you do it out —

I would just assume that you would do it outside the

presence of the jury. That’s fine. Or you can do it in

the presence of the jury, but, again, you must tie

each one in. 

UNITED STATES v. CURTIN 3731
I’m going to let you ask, generally, the question even

without admitting them, do all of these stories relate

to sex between an adult and a minor. I’ll let you ask

that question. 

But if you want the story in, you must ask with

respect to that story, regarding those particular

parts that deal with intent, method —

MS. STANISH: Well, your Honor, can I suggest this

then? It’s my understanding — and I’ve read these

stories — each story involves sex with a minor. 

THE COURT: You can ask that question. 

MS. STANISH: And that being said, your Honor,

each — then each story is, in fact, offered for the

purpose of establishing intent. 

THE COURT: No, then I think the objective is good.

It’s prejudicial. It goes — I mean, let’s say on his

PDA he has 100 and over on his general computer

he has 500 stories that just deal with sex between

adults. 

Or let’s say there are other stories there that deal

with fantasizing sex between two adults, one of them

role-playing a minor. You could just as well take the

inference he just likes to read sex stories, that’s all.

It’s only because you can tie it into a particular

intent, otherwise I’m not going to let him read the

story. It’s prejudicial. It’s inflammatory. 

MS. STANISH: Well, I understand what you’re saying. That would be more of a 404(3) [sic] ruling, as

I understand it, as to prejudice. 

3732 UNITED STATES v. CURTIN
But just so I’m clear and that we know what direction to go, your Honor, the intent that’s involved in

this particular offense is to establish, of course, that

he crossed the state lines in order to have intent [sic]

with a minor. 

THE COURT: I understand clearly, and I think I’ve

given you my ruling. 

If what you’re doing is just saying here’s some PDA

stories and it shows that they were between adult

and minors, that to admit them, the whole bulk of

them, the prejudice outweighs the relevant portion;

that is, it relates to his intent. 

But if you want to ask, generally, before they’re

admitted, do they all pertain to that kind of sex

(indiscernible) question. 

And if you want to admit any one of them particularly so that the jury has the right to read the entire

darned story, you’ve got to tie it in, portions of it, to

the particular four objectives you’ve told me it’s

offered for. Okay? 

MS. STANISH: Okay. 

THE COURT: And you can either do that with this

witness or a subsequent, to reach those particular

portions that tie it in first before I admit the entire

story. 

MS. STANISH: And do you have a preference, your

Honor, whether we do this in front of the jury or —

THE COURT: It’s okay with me. In other words,

maybe you haven’t done the homework yet to even

do that. You just wanted them in, generally. 

UNITED STATES v. CURTIN 3733
MS. KOPPE: No, we have looked through them and,

you know, we picked the 21 stories — 

THE COURT: Right. 

MS. KOPPE: — that were — 

THE COURT: Hopefully because they related to one

of those four objectives. 

MS. STANISH: Right. And intent is, of course, at

least in my view, the predominant purpose for which

these are admissible. And I think I understand your

Honor now to say that these do, in fact, relate to

intent. 

Your bigger concern is one of prejudice; that we’re

not bringing in the 156, but we can bring in a sampling of the stories that just deal with the intent

issue. 

THE COURT: So what you’re telling me is there

isn’t anything in these stories that relate to method

or any common language to (indiscernible) — 

MS. STANISH: No, I’m not saying that. I’m saying

all of them do have in common the intent issue. 

And honestly, Ms. Koppe prepared this part of the

case more than I did. They all, though, deal with

intent. Others have other purposes for which they

could be offered. 

I’m just trying to come up with a solution — 

THE COURT: Well, then you can ask the witness

with respect to this story. Hopefully it’s got some3734 UNITED STATES v. CURTIN
thing else to do with knowledge; here’s how you cultivate a young person, or method. 

MS. KOPPE: Or knowledge (indiscernible). 

THE COURT: But assuming it doesn’t and all

you’re offering it for is intent, you’ll tell me that. But

hopefully you’ll have a witness that says this talks

about sex with a minor. 

You’ll also tell me that there is a witness that will

tell us that’s what all these stories relate to, including

the ones we’re not admitting here. So that otherwise

(indiscernible) the same time, having the stuff, reading the stuff. 

MS. STANISH: I agree, your Honor. 

THE COURT: So — 

MS. STANISH: But 404(b), of course, doesn’t

require that. 

Another solution I might suggest, just to make this

go smooth, really, is I’ve seen cases, for instance,

where there’s possession or a number of photographs

of defendant’s genitalia, for instance. 

And we’re allowed to bring it in because it does

relate to the issue of eliciting and inducing the

minor. 

THE COURT: Right. 

MS. STANISH: But because there’s so many — the

404(3) [sic] concerns — 

THE COURT: You do a couple. 

UNITED STATES v. CURTIN 3735
MS. STANISH: — then we just put in a few. Would

your Honor be satisfied if we put in just a fewer

number? I understand we could — 

THE COURT: No, I didn’t even discuss that. 

MS. STANISH: Okay. I wasn’t sure — 

THE COURT: I have a problem with all of them. 

MS. STANISH: I was trying to — pardon me? 

THE COURT: I don’t have a problem with all of

them as long as you do what I ask you to do. 

Ms. STANISH: Yes, sir. All right.

. . .

MS. STANISH: After consulting with Mr. Potter, I

think the parties agree that this would be best done

as a preliminary legal determination as to each one.

We don’t want to taint the jury at this point.

. . .

THE COURT: Thank you. 

(Jury out at 03:43:13 p.m.)

. . .

THE WITNESS: These — these — these exhibits

are — 

THE COURT: You can leave those there and you

retrieve your notes.

3736 UNITED STATES v. CURTIN
. . .

THE COURT: Thank you. Now, for the record,

we’re going to take up with respect to each of these

stories. 

If you’ve marked sections that relate to any one of

those four objectives for which you’re offering it,

outside the presence of the jury, as foundation for its

proffer. 

MS. KOPPE: Your Honor, we would state, initially,

that each story does show intent to engage in sex

with children. 

THE COURT: Because, generally, it’s a story of sex

between an adult and child.

MS. KOPPE: That’s correct, your Honor. 

THE COURT: Okay. You’ll tell me if any one of

them do [sic] not involve actual description of sex

but, rather, is simply method, for example, of cultivating a child rather than actual description of sex

between adult and child. 

MS. KOPPE: Your Honor, the story that was already

admitted and testified about, My Little Sister, contains language about a nine year old engaging in sex

and about the sex hurting at first but the nine — 

THE COURT: With a brother, correct? 

MS. KOPPE: I’m sorry? 

THE COURT: Just be a little more complete with

me, please. Sex between a nine-year-old girl and her

brother. 

UNITED STATES v. CURTIN 3737
MS. KOPPE: Yes.

. . .

THE COURT: Go ahead. I’m sorry. The fact that it

did not hurt. 

MS. KOPPE: The fact that it hurt at first. She was

told that it will stop hurting and that it will feel a lot

better. And that she then says it’s okay, it’s starting

to feel good. 

That’s similar to language the defendant used when

he told Christy that the sex would — he would take

it slowly and that it would feel really good. 

The next story, which is Love For The World — 

MR. POTTER: Your Honor, are we going to go

through them one at a time or — 

THE COURT: We’re going to go through them one

at a time. 

It might be helpful, too, if you had just told us on

which page — if you have marked — I’m assuming

we have the same format even though — well, they

do have page numbers, even though they don’t occur

between the pages — there between the various

items. 

Did you intend to have us — to relate to us which

items — for example, are you going to have a witness read particular parts, leaving the entire exhibit

for the jury? 

MS. KOPPE: I think that they do have other things

in them.

3738 UNITED STATES v. CURTIN
. . .

THE COURT: Just go ahead and tell us which parts

you have marked that relay the particular content

that you’ve told us about. 

MS. KOPPE: I could have a witness read them. But

the content that I was speaking about started at the

bottom of the page that’s marked 4. It’s marked 4

towards the top, and it goes through the part that’s

marked 5. The story I don’t see what — 

THE COURT: So, page 4. Uh-huh. Okay. I’ve

marked that on my copy. 

That way Mr. Potter, over the evening, of course,

can review them to see if, in fact, they support the

foundational purpose for which you’re offering it. 

MS. KOPPE: Your Honor, if we can come back to

the second story. I’m going to need to look through

that myself. 

THE COURT: Okay. 

MS. STANISH: (Indiscernible) expedite it. 

MS. KOPPE: Your Honor, Ms. Stanish has just suggested, this would probably expedite it, if first thing

in the morning we provide both your Honor and

defense counsel with the highlighted portions of

these stories. 

THE COURT: You don’t have that here? 

MS. KOPPE: I do have highlighted portions, but I

don’t have copies that are highlighted for both your

Honor and for counsel.

UNITED STATES v. CURTIN 3739
. . .

THE COURT: Is that sufficient, Mr. Potter, or do

you need a little time to look at them? 

MR. POTTER: I probably need to look at them, but

I don’t know if — 

MS. KOPPE: I can keep going through it. 

MR. POTTER: Do you have a public copier, by

chance? 

THE COURT: We do have a copy machine, of

course. The problem is whether or not the highlighting would show through on a copy, I suppose. What

color is the highlighting? 

MS. KOPPE: Blue. 

THE COURT: Blue. Would that show up on a copier? It does. Then, of course, we can take them and

provide you a xerox copy of each of these over the

evening recess. 

MS. KOPPE: That’s fine. Either way. 

MR. POTTER: All right.

. . .

THE COURT: — and just as you’ve been doing,

identify the purpose and, with respect to foundation,

without telling us particular paragraphs, which you

will give us by way of the copy we’ll provide

tonight. 

MS. KOPPE: Okay. 

3740 UNITED STATES v. CURTIN
THE COURT: If you’ll just tell me the foundational

purpose and what general parts of the story, just as

you did with the first story; that is, did not hurt, felt

good, et cetera. 

MS. KOPPE: Okay. Your Honor, skipping the second story for the moment, the story Melanie’s Busy

Day — 

THE COURT: Uh-huh. 

MS. KOPPE: — there’s language concerning a child

masturbating, as the defendant wanted this child to

masturbate. 

There’s also language of the adult — it’s actually her

father — telling her how pretty she is. There’s also

language that both of her parents perform oral sex on

her, and the defendant talks about performing oral

sex on her. And — 

THE COURT: And, again, this is the general intent

you talked about before. 

MS. KOPPE: This is general intent as well as modus

operandi and preparation — 

THE COURT: Okay. 

MS. KOPPE: — and knowledge. And I can give you

where those parts are. 

THE COURT: You’ll give it to us in the form of the

copy we’re going to provide. 

MS. KOPPE: Okay. 

THE COURT: They’re marked, I assume. 

UNITED STATES v. CURTIN 3741
MS. KOPPE: In that same story, your Honor, the little girl is also given oral sex by her grandfather and

the grandfather also talks about how pretty she is. 

Going to the next story, which is called Missing Big

Brother. 

THE COURT: Again, I’m going to assume general

intent on each of these unless you tell me otherwise.

MS. KOPPE: That’s right. This story talks about —

MR. POTTER: Which one is this one now? 

MS. KOPPE: This is Missing Big Brother. The big

brother engaging in — big brother is 18, it looks

like, and the girl is 14. 

It talks about the girl not wearing any panties underneath her skirt. It’s one of the things the defendant

talked about. 

It talked about how when he had sex with her, he

didn’t want to hurt her during sex and he wanted her

to like it so much she would be continuously coming

back to him. The defendant talked about how he

would make it feel good for this little girl. 

And that we offer also for intent, but as well for

modus operandi, preparation, and knowledge. 

The next story is I’m Being Molested, and it also

talks about sex for children not hurting and how can

it be called abuse when it felt good and they were

asking for it after it happened, the girls, and it

involved sex with their father. 

It also says that, did it hurt? I suppose a little but

then it felt good. And it talks more about you may

3742 UNITED STATES v. CURTIN
call it molestation, you can call it abuse, we don’t

think about it that way in this family. 

This story, The Good Girl, which is the next story,

is where the defendant — excuse me, the defendant

in his chat talked about how he was willing to be

patient and wait until Christy was ready to have sex

with him. 

This person talks about the same thing to the girl. I

believe she’s 14 at the time. And talks about fooling

around without having sex, which the defendant also

discussed. 

It goes toward modus operandi, intent, preparation,

and knowledge. 

The next story should be Pregnant No. 2 (phonetic).

This story contains language similar to that used by

the defendant in chats concerning oral sex. 

It also talks about how the defendant was talking

about how being naked is more comfortable than

being clothed. 

In this story, the girl talks about how her clothing

drivers [sic] her crazy. It’s too abrasive. And it

talked about oral sex as well. 

And goes toward modus operandi, intent, preparation, and knowledge. 

The story, A Relative Language — excuse me, A

Relative Interest, has language concerning — the

defendant had spoken to Christy about imagining his

tongue sliding along inside of her. 

This has language similar to that regarding oral sex,

and it’s clearly with a child as well. 

UNITED STATES v. CURTIN 3743
It goes towards intent, modus operandi, preparation,

and knowledge. 

The story, Restrictions, has the father telling his

daughter, who is a child, that she’s sexy, that she

should wear barely any clothes, that she should walk

around naked, that she’s cute, sexy again, and talks

about — it shows a way of seducing — it’s a methodology of seducing a child, basically. 

There are several descriptions of the father getting

his daughter to engage in sex with him, basically, bit

by bit. 

It goes towards intent, modus operandi, preparation,

and knowledge. 

The next story is A Matter Of Taste, and that story

talks about — it has a description of giving male oral

sex and wanting the minor to feel good during oral

sex. I believe the girl is 12 in this story. 

Starting on page 12 where she’s talking about giving

oral sex to her father and that she does it better than

anyone else. And the defendant said in his chats that

he would teach Christy how to do that. It also talks

— well, it talks more about that. 

And that goes towards modus operandi, intent, preparation, and knowledge. 

This story, Teaching The Kids, has a lesson on how

to introduce children into sex. It’s parents talking to

their children. 

It looks like there are three sons and two daughters.

The oldest son is 15, the youngest is 11. And the two

3744 UNITED STATES v. CURTIN
girls are young. I don’t see their age in the front page

but it will be in here. 

The parents decide it’s time for the kids to learn

about sex, and there’s a methodology of how they

seduce the children into engaging in sex. 

It goes to intent, knowledge, modus operandi. It also

talks about oral sex, which the defendant talked

about in his chats. 

The next story is called Mommy Juice (phonetic).

And that story has a conversation with a mother

teaching her children about sex and telling them that

it will feel good before she has them engage in it.

There’s a part where it says, basically, that sex feels

good to adolescent girls. 

It goes towards modus operandi, intent. And it also

has one of the girls, afterwards, telling her dad that

it feels good. It goes towards modus operandi, intent,

knowledge, and preparation. 

The story My Sister And I has language about oral

sex, engaging in oral sex with a minor and trying to

please her. The defendant talked about how he

would have Christy orgasm numerous times, and this

story talks about that as well. 

It goes towards preparation, knowledge, intent,

modus operandi. 

There’s a fairly long description of performing oral

sex on the minor. And then there’s a part where the

minor says if it hurts, you have to stop, and he promises to do so.

. . .

UNITED STATES v. CURTIN 3745
MS. KOPPE: The story Now Kids (phonetic), contains statements that sex is fun for everyone, especially young girls. 

The father tells her, it feels real good, doesn’t it? The

girl then has sex with her older brother and tells him

it felt really good; all language that the defendant

said he would do with Christy. 

That goes also towards knowledge, intent, modus

operandi, motive. 

The story Getting Out Of Hand also contains statements about sex being fun for young girls and feeling good. And that goes towards knowledge, intent.

The next story is — that story also talks about oral

sex, which the defendant also talked about. 

The story Peeping In On My Daughter has a 14 year

old stating that she’s not too young to engage in sexual intercourse. 

It contains a statement that sex is fun for young girls

and also how sex feels good and teaching her how to

give oral sex to a man. And it looks like it’s her

grandfather having sex with her. It goes to intent,

motive, and knowledge. 

The story Horny Nieces has a discussion between

ten-year-old girls and their father concerning

whether the — will engage with their uncle who is

coming to visit. 

The father tells the girls that they should be careful

when talking about it because some people think sex

with children is wrong and their uncle may be one of

3746 UNITED STATES v. CURTIN
them. The story also contains the idea that the young

girls enjoy sex and that it feels good to them. 

This certainly shows knowledge that this is a crime

and it’s illegal and that there are people who believe

that, and it shows motive and intent as well. 

The story Heck Of A Job (phonetic) is a story about

a guy who meets twins who are seven or eight years

old. They never say for sure exactly how old they

are, but they’re young; seven or eight. 

And he goes to their house and engages in — well,

first it’s a store and then at their house, engages in

steps in order to — basically it’s a methodology of

seducing them into engaging in sex with him. 

And it shows knowledge and intent, modus operandi

and preparation. It also talks about oral sex on a

female that’s similar to the discussions the defendant

had in the chats. 

The story, Consent, contains a discussion of consent

versus rape concerning young girls having sex. And

the — contains the basic idea that even though the

girl is young and below the age of consent, if, in fact,

she consents, how can it be called rape. And that

shows the defendant’s intent. 

The next story, Daddy’s Lessons, talks about how

sex only hurts at first. It has descriptions of oral sex

on a man. 

This is basically graphic language. It’s the story of

young children having sex with their parents and

with each other. 

UNITED STATES v. CURTIN 3747
After everyone has had sex with each other, the

mother sits them down and tells them that they can

never tell anyone what they do in their house. 

She explains to them what statutory rape is. She tells

them that what they engage in is, in fact, statutory

rape and tells the kids that their parents would go to

jail if they tell anyone, if anyone knows what happens in their house. 

She also tells them that because of this type of crime,

if her father goes — if their father goes to jail, then

they — he would be killed because people don’t like

people who commit this type of crime. 

And the final story is Playing Adult Games With Little Sister. It contains descriptions of manipulating

children into engaging in sexual acts. 

The mother, the adult, starts the manipulation and

the rest of the story kind of escalates that manipulation, and it’s a bit of a methodology of how to get

these kids to engage in sexual acts. 

There is also a part where they talk about our fantasies, basically, of sex — children having sex and

how they were going to be coming [sic] true because

of what’s happening to their children. 

This shows intent, modus operandi, knowledge,

motive, and preparation. 

THE COURT: Okay. Can we give those to Paula and

ask her to run them and hopefully the blue part will

show through so that — we’ll give you a copy. You

already have copies but, of course, this will be a

copy of the markings. Okay? 

3748 UNITED STATES v. CURTIN
And then if you — for purposes of demonstration to

the Court or objection to the Court, before the jury

comes in tomorrow morning, if you would make

your objection; that is, this one just simply does not

go to that particular purpose, the language isn’t there

or whatever, if you’ll make that before we bring the

jury back. 

Anything further? Thank you, very much. We’ll

reconvene, please, tomorrow morning at 9:00. 

(emphasis added). 

Thus, the record reveals that the trial judge correctly

required the government to demonstrates that the five stories

admitted were factually similar to the defendants interaction

with “christy13.” 

Day Three began on the same issue, with counsel for Curtin

continuing to rely on Shymanovitz and Rule 403 to block the

introduction of the stories. The government responded as follows: 

MS. KOPPE: Your Honor, first of all, as far as Mr.

Potter’s argument that the articles are, in themselves,

legal, 404(b) does not require that the other acts be

illegal acts or even bad acts. It just requires that they

be other acts that show one of the elements listed in

404(b). 

These stories, every single one of them, proves

intent. Every single one of them shows the defendant’s intent. They all talk about sex with children.

They all talk about intent to have sex with children.

The fact that the defendant possessed over 140 of

these stories and carried them around with him, go

directly against his defense that he had no intent to

UNITED STATES v. CURTIN 3749
engage in sex with children, that that was not anything he wanted to do.

. . .

The defendant is the one who has immersed himself

in this fantasy defense. The defendant is the one who

is saying I didn’t have the intent. I never had that

intent. 

And these stories that the defendant possessed and

that the defendant carried around with him everywhere he went and when he was committing this

crime, they show his intent.

. . .

In Allen (phonetic) the Ninth Circuit found that the

literature in that case did go to an element of the

crime and specifically distinguished that case from

Shimonowitz [sic] because it said that the stories in

that case did not go to an element of the crime. 

These stories not only go to an element of the crime

— intent is one of the most important elements of

the crime, actually — it goes to the element of the

crime that the defendant himself is attacking, pretty

much the only element the defendant is attacking.

And the defendant possessed these stories. 

As far as 403, your Honor, these stories are not more

prejudicial than they are probative. They’re clearly

probative. 

. . .

The court continued to be concerned about the number of

stories that should go to the jury: 

3750 UNITED STATES v. CURTIN
THE COURT: Now, the last issue I wanted to

address is I sure don’t want to impose upon the jury

the feeling that they have to read this entire book.

How many stories was this? 

MS. KOPPE: Your Honor, that was 21 stories.

We’re going to narrow it down — 

THE COURT: You’re going to limit it down to —

MS. KOPPE: — to 12. 

THE COURT: — about half of it. That’s helpful but

it’s still, number one, it’s potentially redundant —

like I said, after you get past the first story — and

it’s also potentially biasing. 

In other words, we want the jury to limit themselves

to these four issues — intent, methodology, preparation, and knowledge — and trying not to overemphasize this evidence in the context of all other

evidence. 

I simply want to make it very clear to the jury, you

must not let this type of evidence bias you against

the defendant. He has a constitutional right to possess such. But you must, and may, only take it for

the four proffered reasons. 

At this point, and having caused the number of stories to be

reduced to five, the court addressed a final issue: whether to

permit the jurors to read the entirety of each story, or just

highlighted “snippets,” the particular parts of each story going

directly to the defendant’s intent. The “snippets” had been

previously highlighted in blue by the prosecution. The court

said, 

UNITED STATES v. CURTIN 3751
So, the only last question I had in my head is assuming that I let you introduce, in total, the first story,

maybe the second one, which was, as much as I

could read, other than the snippets in the other stories,

9

I did have a question overnight. 

I still haven’t quite resolved in my mind as to

whether I should let you admit the entire rest of the

other stories, other than just the snippets.

. . .

MS. STANISH: I think it’s problematic to put, let’s

say, Agent Flaherty on the stand and have her say

this portion relates to this purpose — 

THE COURT: But don’t you think it would be more

proper, at a minimum, if you don’t do that. That

would be my preference, that you do it that way. 

But if you don’t do that, at a minimum, to put a witness on the stand who says we have highlighted

those portions of the stories that relate to the four

intended purposes. 

I mean, if we admit it, generally, and tell the jury

you’ve got to search through these stories for those

intended purposes, then we’ve allowed the prejudicial effect of the volume and redundancy of the story

to outweigh the four purposes.

. . .

9My colleagues’ claim that the district court “was unable to read the stories” is not supported by the record. The court clearly had its own copies

and read the “snippets” which highlighted the material that makes the stories relevant. Curtin does not object to the use of the entire story in lieu

of the snippets. 

3752 UNITED STATES v. CURTIN
THE COURT: . . . But wouldn’t it be more appropriate, at a minimum, for you to have the witness testify

that I have marked in blue — I mean, leaving it for

the jury finally to decide whether it really is proof of

these four elements. 

But have you marked portions of these stories in

blue? Yes. For what purpose? To show that they

relate to either intent, or method, or preparation, or

knowledge.

. . .

MR. POTTER: We’re going to be doing the snippets, then, is that — 

THE COURT: We would not be reading the snippets. We would be leaving it for the jury to find the

snippets in those one — for the purposes for which

I tell them are relevant; one, two, three — 

MR. POTTER: I think that’s — 

THE COURT: — four, five stories. 

MR. POTTER: If they’re getting the whole story and

then the snippets then emphasize. I mean, now

they’re getting . . . they’re getting their attention

drawn to something. 

I mean, you make the decision of what is relevant

and whether it is passed the muster of these four elements. 

And, now, I think if we’re going to give them the

whole story, then they should be blank stories. 

(emphasis added). 

UNITED STATES v. CURTIN 3753
The issues having been resolved, the court then preinstructed the jurors10 as per Fed. R. Evid. 105 as to the limited purpose for which they could use this evidence the jury

was about to hear, an instruction which the jurors heard more

than once: 

THE COURT: I’m going to allow the prosecution to

reopen their examination for a few additional minutes. They want to proffer some additional exhibits.

And, therefore, I’m going to give you a brief instruction with respect to these exhibits. I gave you, initially, the same instruction yesterday. I’m going to

give you the official version and then explain it

briefly. 

You are about to hear testimony that the defendant

had articles on his PDA that relate to other acts not

charged here. 

I instruct you that the testimony is being admitted

only for the limited purpose of being considered by

you on the question of the defendant’s intent,

method, preparation, or knowledge, and for no other

purpose. Let me explain the instruction just briefly.

We all have, thank goodness, a constitutional right to

have whatever literature we want in our homes, on

our PDAs, on our computers. 

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

10As did the court in Allen, 341 F.3d at 887, n.24. 

3754 UNITED STATES v. CURTIN
the wrongful intent. They may offer possession of

such literature to show that. 

For example, most all crimes, state or federal, have,

at a minimum, at least two elements. I’ll instruct you

at the end of the case on what the elements of these

crimes are. And the Government must prove every

one of them, beyond a reasonable doubt. 

But most all crimes have a minimum of two elements: One, some conduct that’s specified in the

statute; and number two, a wrongful state of mind or

intent. 

The simplest example I can think of is murder. There

is an act, homicide. And there’s a wrongful intent,

the wrongful taking of another person’s life. 

If you don’t have that intent, you haven’t committed

the crime. If you’re involved in an accident in your

car and, unfortunately, someone loses their life in

that accident, you are not guilty of murder. 

There is a homicide, to be sure, but there is no

wrongful intent. And, therefore, you’re not charged,

nor convicted, nor alleged with committing a criminal act. You may be sued in court civilly, of course.

Therefore, there are two elements. 

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 knowlUNITED STATES v. CURTIN 3755
edge, that is, of how to commit the act or that the act

was illegal. 

Again, the prosecution does not have to show that a

defendant knew an act was illegal, simply that he

committed the act and that he knew it was wrongful

or that he had the wrongful intent. They don’t have

to prove that he knew it was illegal. 

But evidence tending to show that he knew it was

illegal may or may not tend to show that he had the

intent. 

So, for those four reasons, only, the Government is

offering to show that the defendant possessed this literature; intent, method, preparation, and knowledge.

And you may only take it for that purpose. 

Again, you have a constitutional right. You have that

right. You would want to protect the defendant’s

right to posses any kind of literature and to read it or

not read it. 

You must not allow this kind of evidence to bias

you, generally, against the defendant on the ultimate

question of guilt or innocence. You must not do that.

I’ll repeat, finally, in conclusion, the official instruction. 

You are about to hear testimony that the defendant

possessed various types of articles on his PDA

regarding other acts not charged here. 

I instruct you that the testimony is being admitted

only for the limited purpose of being considered by

you on the question of the defendant’s intent,

3756 UNITED STATES v. CURTIN
method, preparation, or knowledge and for no other

purpose. 

I hope you understand the instruction. With that, I’ll

permit the prosecution to proceed again today. 

VI

My colleagues’ opinion stands for the questionable proposition that a trial court simply has no discretion in a case

involving pedophilia to admit obscene sexual literature, even

though the literature — as it does here — (1) sheds probative

light on a defendant’s relevant subjective intent, and (2)

rebuts a defendant’s primary defense of no criminal mens rea.

My colleagues have made relevant literature off limits in the

Ninth Circuit as a matter of law. 

Ironically, Rule 404(b), a rule of inclusion, references at

least three categories of other “acts” encompassing the inner

workings of the mind: motive, intent, and knowledge. Once

it has been established that the evidence offered serves one of

these purposes, the relevant Advisory Committee notes make

it clear that the “only” conditions justifying the exclusion of

the evidence are those described in Rule 403: unfair prejudice,

confusion of the issues, misleading the jury, undue delay,

waste of time, or needless presentation of cumulative evidence: 

Note to Subdivision (b). The second sentence of

Rule 404(b) as submitted to the Congress began with

the words “This subdivision does not exclude the

evidence when offered”. The Committee amended

this language to read “It may, however, be admissible”, the words used in the 1971 Advisory Committee draft, on the ground that this formulation

properly placed greater emphasis on admissibility

than did the final Court version. House Report No.

93-650. 

UNITED STATES v. CURTIN 3757
Note to Subdivision (b). This rule provides that

evidence of other crimes, wrongs, or acts is not

admissible to prove character but may be admissible

for other specified purposes such as proof of motive.

Although your committee sees no necessity in

amending the rule itself, it anticipates that the use of

the discretionary word “may” with respect to the

admissibility of evidence of crimes, wrongs, or acts

is not intended to confer any arbitrary discretion on

the trial judge. Rather, it is anticipated that with

respect to permissible uses for such evidence, the

trial judge may exclude it only on the basis of those

considerations set forth in Rule 403, i.e., prejudice,

confusion or waste of time. Senate Report No. 93-

1277. 

The Supreme Court embraced this understanding of Rule

404(b) and its handling of “other acts” in Huddleston v.

United States, 485 U.S. 681 (1998): 

Federal Rule of Evidence 404(b)—which applies in

both civil and criminal cases—generally prohibits

the introduction of evidence of extrinsic acts that

might adversely reflect on the actor’s character,

unless that evidence bears upon a relevant issue in

the case such as motive, opportunity, or knowledge.

Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially

when that issue involves the actor’s state of mind

and the only means of ascertaining that mental state

is by drawing inferences from conduct. 

Id. at 685 (emphasis added). 

Moreover, the Court explicitly embraced the Advisory

Committee’s understanding of the Rule as reflecting the intent

of Congress: 

3758 UNITED STATES v. CURTIN
Petitioner’s reading of Rule 404(b) as mandating a

preliminary finding by the trial court that the act in

question occurred not only superimposes a level of

judicial oversight that is nowhere apparent from the

language of that provision, but it is simply inconsistent with the legislative history behind Rule 404(b).

The Advisory Committee specifically declined to

offer any “mechanical solution” to the admission of

evidence under 404(b). Rather, the Committee indicated that the trial court should assess such evidence

under the usual rules for admissibility: “The determination must be made whether the danger of undue

prejudice outweighs the probative value of the evidence in view of the availability of other means of

proof and other factors appropriate for making decisions of this kind under Rule 403.” [S]ee also, S Rep

No. 93-1277, p 25 (1974) (“[I]t is anticipated that

with respect to permissible uses for such evidence,

the trial judge may exclude it only on the basis of

those considerations set forth in Rule 403, i.e. prejudice, confusion or waste of time”). 

Petitioner’s suggestion that a preliminary finding is

necessary to protect the defendant from the potential

for unfair prejudice is also belied by the Reports of

the House of Representatives and the Senate. The

House made clear that the version of Rule 404(b)

which became law was intended to “plac[e] greater

emphasis on admissibility than did the final Court

verison.” The Senate echoed this theme: “[T]he use

of the discretionary word ‘may’ with respect to the

admissibility of evidence of crimes, wrongs, or other

acts is not intended to confer any arbitrary discretion

on the trial judge.” Thus, Congress was not nearly so

concerned with the potential prejudicial effect of

Rule 404(b) evidence as it was with ensuring that

restrictions would not be placed on the admission of

such evidence. 

UNITED STATES v. CURTIN 3759
Id. at 688, 689 (internal citations omitted). Thus, the majority’s exclusionary holding defies not only the clear purpose of

the Rule itself, but the Supreme Court’s authoritative guidance. 

This holding is not only legally wrong, but it extinguishes

the discretion of a district court to decide questions of relevancy, inappropriately converting our standard of review from

one that examines for an abuse of discretion into one that

looks at a relevancy decision de novo. Their holding is a twistification of the principle that an error of law necessarily renders abusive an exercise of discretion based on that error.

Here, there was no error of law. The evidence was relevant,

period; and, as we observed in United States v. Hearst, 563

F.2d at 1337, n.3, “relevance is the essential criterion.” Curtin

had this evidence on his person when he entered the casino

expecting to find “christy13.” An officer testified that Curtin

“had a Palm device, a PDA, and he was looking at — at it.

He was looking at the screen [for five minutes] and he kept

on looking up as if he was trying to verify the time or location.” Curtin conceded in his testimony that he personally had

downloaded these stories through a computer to his PDA

because he believed they were “quite erotic.” [Day 4, p. 23]

The particular erotic story that attracted his attention was

about a “17 year-old girl,” and he downloaded them to find

more of the same. [Day 4, p. 56] He caused them to be put

out on his PDA in December, 2003, just two and one-half

months before contacting “christy13.” Curtin conceded

“skimming” some of the downloaded stories. 

CONCLUSION

This case in combination with Shymanovitz improperly

hamstrings the capability of the rule of law to cope in this Circuit with adults who see children as sexual prey. Congress has

enacted a law protecting minors from this behavior, but we

have misinterpreted the Rules of Evidence to make the law

inordinately difficult to enforce. Without justification, this

3760 UNITED STATES v. CURTIN
holding handcuffs jurors when confronted with “no intent”

defenses, turning such trials into the equivalent of “he said,

she said” conundrums. My experience with jurors is that confronted with these situations, they want context, corroborating

evidence, and other pertinent information which helps them

sort out conflicting claims and assertions. Why? Not because

it is prejudicial, but because it is relevant, whether it cuts for

or against a defendant. As recognized by the Tenth Circuit in

Viefhaus and Magleby, context and circumstances are important, and relevant literature can be used to this end — even if

it is obscene. Now, we leave the jury high and dry without relevant evidence to look to in order to ensure the validity of

their verdict. Such a handicap is legally wrong as well as

unwise. At the very least, the district court’s decision regarding the evidence eventually submitted to the jury was far from

abusive. If somehow it is correct that Shymanovitz commands

this result, then Shymanovitz is seriously defective and must

be reconsidered. Thus, I respectfully dissent.

UNITED STATES v. CURTIN 3761