FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JIM WAYNE THORNHILL,

Defendant-Appellant.

No. 18-30046

D.C. No.

1:16-cr-00008-

TMB

OPINION

Appeal from the United States District Court

for the District of Alaska

Timothy M. Burgess, Chief District Judge, Presiding

Argued and Submitted August 7, 2019

Anchorage, Alaska

Filed October 15, 2019

Before: Richard C. Tallman, Sandra S. Ikuta,

and N. Randy Smith, Circuit Judges.

Opinion by Judge Tallman;

Concurrence by Judge N.R. Smith
2 UNITED STATES V. THORNHILL

SUMMARY*

Criminal Law

Affirming a conviction for receipt of child pornography, 

the panel held that the district court did not abuse its 

discretion when it admitted evidence of the defendant’s prior 

Alaska state conviction for sexual abuse of a minor in the 

second degree.

The panel held that the prior conviction was within the 

scope of Fed. R. Evid. 414 because (1) the term “child 

molestation” encompasses both the crime for which the 

defendant was previously convicted and the present charge 

of receiving/possessing child pornography, and (2) the prior 

conviction was relevant as it tended to prove the defendant’s 

sexual interest in children and that he used the terms on a 

handwritten list to knowingly receive the child pornography.

Applying the balancing test of Fed. R. Evid. 403 to the 

Rule 414 evidence, and the factors set forth in United States 

v. LeMay, 260 F.3d 1018 (9th Cir. 2001), the panel held that 

the probative value of the prior conviction was not 

substantially outweighed by its unfair prejudice. With 

regard to the district court’s finding that the prior conviction 

was helpful/practically necessary to the government’s case, 

the panel held that the district court did not err in rendering 

this evidentiary decision before all testimony had been 

presented at trial.

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. THORNHILL 3

Concurring, Judge N.R. Smith wrote that the district 

court and the majority ignored the plain language in LeMay

requiring trial judges to reserve judgment as to the necessity 

of the proffered evidence until after the other testimony has 

been offered, but that the error is harmless.

COUNSEL

Darla J. Mondou (argued), Marana, Arizona, for DefendantAppellant.

Andrew J. Klugman (argued) and Jack S. Schmidt, Assistant 

United States Attorneys, United States Attorney’s Office, 

Anchorage, Alaska, for Plaintiff-Appellee.

OPINION

TALLMAN, Circuit Judge:

Jim Thornhill appeals his jury conviction for receipt of 

child pornography in violation of 18 U.S.C. §§ 2252(a)(2) 

and (b)(1). The question before us is whether the district 

court abused its discretion when it admitted evidence of 

Thornhill’s prior Alaska state conviction for sexual abuse of 

a minor in the second degree. We conclude that it did not, 

and we affirm.

I

In October 2015, the FBI received a “report of harm” 

related to a graphic voicemail left on a dating site, which 

indicated that the caller was sexually abusing a 10-year-old 

girl. The FBI traced the call to a cannery in Juneau, Alaska. 
4 UNITED STATES V. THORNHILL

At the cannery, Special Agent Anthony Peterson (“Agent 

Peterson”) played the voicemail to other employees, who 

identified the voice as Thornhill’s. Employees later found a 

Nokia cell phone at Thornhill’s desk, along with handwritten 

lists of graphic search terms commonly associated with child 

pornography. Agent Peterson subsequently interviewed 

Thornhill and obtained a search warrant for the items found 

at his work desk. Forensic analysis of the phone ultimately 

revealed that over 100 images of child pornography were 

received and stored in various file paths on the phone 

between November 3, 2014, and December 25, 2014.

Thornhill was indicted on April 20, 2016, for one count 

of receipt of child pornography, in violation of 18 U.S.C. 

§§ 2252(a)(2) and (b)(1). Before trial, the government 

notified Thornhill that it intended to introduce evidence of 

his prior Alaska state conviction for sexual abuse of a minor 

in the second degree under Federal Rule of Evidence 

(“Rule”) 414. Thornhill had previously pleaded guilty and 

was convicted of sexually abusing his 11-year-old daughter 

in February 2008. Details of the offense included Thornhill 

inappropriately touching his daughter over and under her 

clothing while she was sleeping on several occasions 

between 2004 and 2007. The district court initially 

“reserve[d] ruling on this motion until after the Government 

[] introduced its other evidence at trial.”

After jury selection, the parties agreed to the following 

stipulations:

• That each image was produced involving the actual 

use of minors engaged in sexually explicit conduct 

and was produced outside of the State of Alaska;
UNITED STATES V. THORNHILL 5

• That Thornhill resided at The Glory Hole, a homeless 

shelter in Juneau, Alaska, from September 14, 2014, 

through February 18, 2015; and

• That Thornhill owned the black Nokia 520 cell phone 

and authored the handwritten lists found at his desk.

Because of these stipulations, many of the witnesses the 

government had intended to call were excused from 

testifying, and, as a result, the government called only one 

witness, Agent Peterson, in the prosecution’s case-in-chief.

Before opening statements, the district court ruled that 

Thornhill’s prior conviction for sexual abuse of a minor was 

admissible applying the factors we articulated in United 

States v. LeMay, 260 F.3d 1018 (9th Cir. 2001).

During Agent Peterson’s testimony, the government

introduced Thornhill’s prior judgment of conviction, and it 

was admitted into evidence. Agent Peterson identified the 

prior victim as Thornhill’s 11-year-old daughter. 

Immediately following the introduction of the prior 

conviction (and again at the end of the trial), the district court 

read a limiting instruction to the jury. The defense called no 

witnesses.

After approximately two days of deliberation, the jury 

found Thornhill guilty. He was subsequently sentenced by 

the district court to 262 months of imprisonment.

II

A district court’s evidentiary rulings are reviewed for 

abuse of discretion. United States v. Curtin, 489 F.3d 935, 

943 (9th Cir. 2007) (en banc). We find abuse of discretion 

only when we “ha[ve] a definite and firm conviction that the 
6 UNITED STATES V. THORNHILL

district court committed a clear error of judgment.” United 

States v. Boulware, 384 F.3d 794, 801 (9th Cir. 2004) 

(internal quotations omitted).

III

The starting place for our analysis is Rule 414(a), which 

provides that “[i]n a criminal case in which a defendant is 

accused of child molestation, the court may admit evidence 

that the defendant committed any other child molestation. 

The evidence may be considered on any matter to which it is 

relevant.” Because the term “child molestation” 

encompasses both the crime for which Thornhill was 

previously convicted, as well as the present charge of 

receiving/possessing child pornography, admitting the prior 

judgment of conviction falls under the purview of Rule 414. 

See Fed. R. Evid. 414(d)(2)(B)–(D); United States v. 

Hanson, 936 F.3d 876, 881 (9th Cir. 2019). Additionally, 

the prior conviction was relevant because it tended to prove 

Thornhill’s sexual interest in children and that he used the 

terms on the handwritten list to knowingly receive child 

pornography on the Nokia cell phone. See Fed. R. Evid. 401 

(“Evidence is relevant if: (a) it has any tendency to make a 

fact more or less probable than it would be without the 

evidence; and (b) the fact is of consequence in determining 

the action.”). Therefore, the district court properly 

concluded that Thornhill’s prior conviction was within the 

scope of Rule 414.

However, evidence admissible under Rule 414 is still 

subject to the balancing test under Rule 403. Rule 403 

provides that relevant evidence may be excluded, “if its 

probative value is substantially outweighed by a danger of 

. . . unfair prejudice . . . .” Thus, “Rule 414 is not a blank 

check entitling the government to introduce whatever 

evidence it wishes, no matter how minimally relevant and 
UNITED STATES V. THORNHILL 7

potentially devastating to the defendant.” LeMay, 260 F.3d 

at 1022; see also id. at 1027 (urging district courts to “pay 

‘careful attention to both the significant probative value and 

the strong prejudicial qualities’” of Rule 414 evidence 

(quoting Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 

1258, 1268 (9th Cir. 2000))). To aid in this evaluation, we 

have previously suggested that a district court evaluate the 

following nonexclusive factors in the application of Rule 

403 to Rule 414 evidence:

(1) the similarity of the prior acts to the acts 

charged,

(2) the closeness in time of the prior acts to 

the acts charged,

(3) the frequency of the prior acts,

(4) the presence or lack of intervening 

circumstances, and

(5) the necessity of the evidence beyond the 

testimonies already offered at trial.

Id. at 1027–28 (internal quotations omitted). In addition, the 

district court is encouraged to “consider other factors 

relevant to individual cases.” Id. at 1028; see also id. at 1029 

(noting that one other such factor may be “the extent to 

which an act has been proved”).

The district court found that LeMay factors one, three, 

and five weighed in favor of the government, while factor 

two was neutral, and factor four was irrelevant. Thornhill 

argues that the district court abused its discretion because the 

unfair prejudice caused by the introduction of his prior 
8 UNITED STATES V. THORNHILL

conviction substantially outweighed its weak probative 

value. He contends that: the acts behind the prior conviction 

and his current charge are dissimilar; the stipulations made 

by Thornhill eliminated the need for the prior conviction to 

connect him to the list and cell phone; the district court was 

required to wait until after testimony had been given at trial 

to determine admissibility; and the prior conviction was 

especially prejudicial because it involved incest.

With regard to the first LeMay factor, Thornhill argues 

that his prior conviction for sexual abuse of a minor is 

dissimilar to his charge of receipt of child pornography 

because the former is a “contact offense,” while the latter is 

not. While the district court acknowledged that the two 

offenses “differ in degree,” it concluded that “the age of the 

victim and the kind of abuse that occurred in the prior act 

[was] very similar to the ages of the victims and the kinds of 

abuse depicted in the images of child pornography found on 

the Nokia cell phone.”

While there is sparse Ninth Circuit caselaw regarding 

similarity between sexual abuse of a child and receipt of 

child pornography, other circuit courts and district courts 

have found sufficient similarity between these two offenses. 

See United States v. Spoor, 904 F.3d 141, 154–55 (2d Cir. 

2018) (adopting the LeMay factors in a child pornography 

trial and upholding the district court’s decision to admit a 

prior conviction of sexual abuse of two boys where the boys 

“were similar in age to the boys in the videos”); United 

States v. Sebolt, 460 F.3d 910, 917 (7th Cir. 2006) (“[T]he 

molestations and the evidence supporting the statutory 

criminal elements were similar in character, i.e., establishing 

[his] sexually deviant mental state . . . .”); United States v. 

Brand, 467 F.3d 179, 198 (2d Cir. 2006) (noting in the 

analogous Rule 404(b) context that “possession of child 
UNITED STATES V. THORNHILL 9

pornography by itself shares a connection or similarity with 

pedophilia”); United States v. Olson, No. CR 16-30-BLGSPW, 2017 WL 2226555, at *2 (D. Mont. May 19, 2017), 

aff’d, 755 F. App’x 716 (9th Cir. 2019) (first LeMay factor 

weighed in favor of the government because “[t]he kind of 

[sex] abuse that occurred in the alleged prior acts is quite 

similar to the kind of abuse depicted in the child 

pornography on the computer”). For example, in United 

States v. Emmert, the Eighth Circuit held that a district court 

did not abuse its discretion when it allowed Rule 414 

evidence of prior sexual abuse where the prior “sexual abuse 

and [current] child pornography victims were similar in age, 

and [the defendant] performed or possessed images 

depicting similar explicit acts on each victim.” 825 F.3d 

906, 909 (8th Cir. 2016).

We agree with our sister circuits. Here, Thornhill’s prior 

conviction involved inappropriate sexual touching of and 

contact with his 11-year-old daughter. Agent Peterson 

testified regarding a number of the photographs found on 

Thornhill’s phone, most of which were pictures of young 

girls’ exposed genitalia or of adult men penetrating young 

girls. Like the defendant in Emmert, 825 F.3d at 909, the 

victim of Thornhill’s prior conviction was similar in age and 

of the same gender as the majority of the victims in the 

photographs. Moreover, like his prior conviction, 

Thornhill’s searches included terms relating to an incestuous 

relationship between a father and daughter.1

1 One could also imagine a more dissimilar set of acts than 

Thornhill’s. For example, “[a]t least one military court of appeals has 

recognized that acts . . . where the defendant abused someone close to 

his age as an adolescent [] are ‘extremely dissimilar’ to abuse perpetrated 

as an adult on someone much younger and under the defendant’s parental 
10 UNITED STATES V. THORNHILL

Additionally, this case is distinguishable from United 

States v. Preston, 873 F.3d 829 (9th Cir. 2017). In the Rule 

404(b) context, the Preston court held that although the age 

of the victim in the photograph to which the defendant 

masturbated was similar to the victim’s age in the charged 

act, this finding by the district court did “not adequately 

explain or discuss how the act of masturbating to a picture 

of a boy in underwear—a non-criminal act—[was] similar to 

the crime of real-life sexual abuse of a child.” Id. at 841. It 

further held that the district court also abused its discretion 

under Rule 403 because “the link between fantasy and intent 

[was] too tenuous to be probative.” Id. (internal quotations 

omitted). But Thornhill’s prior acts were not just fantasy—

they were actual crimes committed against an 11-year-old 

female relative, and are therefore more similar to the charged 

offense than the acts in Preston.

2 This factor weighs in favor 

of the government.

We must also consider the closeness in time of 

Thornhill’s prior acts, the frequency of those prior acts, and 

whether there are any intervening circumstances. Thornhill 

was convicted in 2008 for acts done to his daughter from 

2004–2007, and the defendant was “charged in this case with 

control.” United States v. Stern, 391 F. App’x 621, 623 (9th Cir. 2010) 

(Paez, J., dissenting) (citation omitted) (contending that evidence that the 

defendant “abused his sister when he was a young boy does not suggest 

that he is a pedophile, or that he takes advantage of positions of 

authority”).

2 The Preston court also explicitly noted, “Where the other acts 

offered are specific incidents of prior child molestation—which would 

clearly be similar to the charged offense here—Federal Rule of Evidence 

414 expressly permits them to be admitted ‘on any matter to which it is 

relevant.’” Id. at 841 n.2.
UNITED STATES V. THORNHILL 11

receiving images of child pornography between November 

3, 2014, and December 25, 2014.” There is no bright line 

rule for precluding evidence that is remote in time. See

United States v. Rude, 88 F.3d 1538, 1550 (9th Cir. 1996). 

Indeed, the acts underlying the prior conviction in LeMay

occurred about eleven years beforehand. 260 F.3d at 1029. 

Given the caselaw, the district court would have been within 

its prerogative to find this factor in favor of the government, 

and it did not abuse its discretion in finding that this factor 

was neutral.3 As for the frequency of the prior acts, both the 

government and defense counsel represented to the district 

court that Thornhill pled guilty to molesting his daughter on 

a number of occasions between 2004–2007. Therefore, the 

frequency of the prior acts weighs in favor of the 

government. And the fourth factor, intervening 

circumstances, is not relevant here, as conceded by both 

parties.

LeMay provides that the fifth factor is the “necessity of 

the evidence beyond the testimonies already offered at trial.” 

Id. at 1028 (quoting Glanzer, 232 F.3d at 1268). “Prior acts 

evidence need not be absolutely necessary to the 

prosecution’s case in order to be introduced; it must simply 

be helpful or practically necessary.” Id. at 1029 (alterations 

in original). For example, in LeMay, the prior acts evidence 

was “helpful or practically necessary” because the defendant 

3 The district court also was influenced by the fact that Thornhill had 

been in custody for a majority of the years between the prior acts and the 

charged acts in this trial. See also Stern, 391 F. App’x at 622 (“The 

passage of time” does not weigh in favor of the defendant “because there 

is no indication that he had any similar opportunities to offend target 

victims of choice, in part because he was incarcerated for a number of 

the intervening years.”).
12 UNITED STATES V. THORNHILL

had “attacked the credibility of the [victims] and capitalized 

on the lack of eyewitness and expert testimony.” Id.

Thornhill makes two arguments regarding the fifth 

LeMay factor. First, he contends that the prior conviction 

was not necessary because he stipulated to owning the phone 

and writing the terms on the lists found at his desk. Despite 

these stipulations, the crux of Thornhill’s defense was that 

he did not knowingly receive images of child pornography 

on his phone and that somebody else had the phone during 

the time when the images were received on his cell phone.

Given that Thornhill was contesting the identity of who 

actually downloaded the photographs and his knowing 

receipt of the images, the district court did not abuse its 

discretion in finding that the prior conviction was 

helpful/practically necessary to the government’s case to 

establish intent to download and absence of mistake, and 

thereby helpful to the jury in concluding that Thornhill was 

the downloader. As the district court explained, the prior 

conviction was “necessary for the Government’s case, 

because it tends to prove the defendant’s sexual interest in 

the specific conduct . . . , which in turn makes it more likely 

that the defendant sought and knowingly received the images 

of child pornography charged in the indictment.”4 See also 

United States v. Woods, 684 F.3d 1045, 1064–65 (11th Cir. 

2012) (in a child pornography case, evidence of a prior child 

molestation “was probative of [the defendant’s] interest in 

child pornography and therefore made it more likely that [the 

4 Thornhill also appears to argue that the prior conviction was not 

necessary because unlike in LeMay, he was not attacking the credibility 

of any victim. But this argument fails because there is nothing in LeMay

suggesting that Rule 414 evidence is admissible only when necessary to 

bolster a witness’s credibility.
UNITED STATES V. THORNHILL 13

defendant], and not his ex-wife or roommates, was 

responsible for the child pornography found on the two 

computers”).

Second, placing emphasis on the “already offered” 

language of the fifth LeMay factor, Thornhill argues that the 

district court abused its discretion by ruling on the 

government’s Rule 414 motion before Agent Peterson’s 

testimony had been offered at trial. However, LeMay did not 

hold that courts are bound to a lockstep formula; indeed, we 

affirmed the decision of the district judge even though he did 

not expressly discuss the five factors because “the record 

reveals that he exercised his discretion to admit the evidence 

in a careful and judicious manner.” 260 F.3d at 1028. 

Moreover, the lockstep formula for which Thornhill 

advocates is not only contrary to the plain language of Rule 

414, which requires only that prior crime evidence be 

relevant, but also places an unnecessary burden on the trial

court. As a general matter, district court judges have wide 

latitude in deciding when and how to admit evidence at trial. 

See Geders v. United States, 425 U.S. 80, 86 (1976) (“The 

trial judge must meet situations as they arise,” and “must 

have broad power to cope with the complexities and 

contingencies inherent in the adversary process.”). And 

“[p]retrial motions are useful tools to resolve issues which 

would otherwise ‘clutter up’ the trial,” and they “sav[e] 

jurors’ time and eliminat[e] distractions.” Palmerin v. City 

of Riverside, 794 F.2d 1409, 1413 (9th Cir. 1986); see also

Fed. R. Crim. P. 12(d) (“The court must decide every pretrial 

motion before trial unless it finds good cause to defer a 

ruling.”).

Forcing judges to wait until the end of testimony at trial 

to make such an evidentiary decision is contrary to Rule 414, 

which places no temporal limit on such admission, and 
14 UNITED STATES V. THORNHILL

would be an unwelcome constraint when we have otherwise 

long trusted trial judges to moderate and run their 

courtrooms effectively. Cf. Ohler v. United States, 529 U.S. 

753, 758 n.3 (2000) (noting that “in limine rulings are not 

binding on the trial judge, and the judge may always change 

his mind during the course of a trial”); Fed. R. Evid. 611(a) 

(“The court should exercise reasonable control over the 

mode and order of examining witnesses and presenting 

evidence . . . .”).

To be sure, the LeMay court commended the district 

judge for his cautious approach in “reserv[ing] the Rule 403 

decision until after the prosecution had introduced all its 

other evidence, in order to get a feel for the evidence as it 

developed at trial . . . .” 260 F.3d at 1028. But this does not 

create a bright line rule that all trial judges in every instance 

must wait until testimony at trial has already been offered 

before ruling on these types of motions. Indeed, in Glanzer, 

the case from which the LeMay court draws its five factors, 

we did not fault the district court for ruling on the 403 

analysis after the government made an offer of proof at the 

beginning of trial. 232 F.3d at 1269. And in articulating this 

fifth factor, the Glanzer court relied on United States v. 

Guardia, in which the district court also rendered its decision 

at the motion in limine stage. 135 F.3d 1326, 1328–31 (10th 

Cir. 1998) (articulating this factor as “the need for evidence 

beyond the testimony of the defendant and alleged victim”).

Although a more complex case might warrant reserving 

a final ruling until after testimony had been elicited, this is 

not that case. See Glanzer, 232 F.3d at 1269 (emphasizing 

the “case-by-case” nature of this type of analysis). In its 

initial order on the matter, the district court outlined the law 

under Rules 414 and 403, but reserved ruling until it had 

more information. Then, before trial, the parties agreed to 
UNITED STATES V. THORNHILL 15

stipulate to several facts, which negated the need for many 

of the government’s proposed witnesses. The district court 

had also reviewed the government’s trial exhibits, the 

parties’ trial books and briefs, and the judgment of prior 

conviction. The next day (the morning of trial) the district 

court ruled on the prior conviction issue, finding it 

admissible after weighing all the relevant factors. Given that 

the trial had only one witness and 32 exhibits, the fact that 

the parties had made numerous stipulations, and the parties’ 

representations regarding the substance of anticipated 

evidence, the district court here was able “to appreciate fully 

and to weigh accurately the challenged evidence’s probative 

value and its potential for unfair prejudice.”5 United States 

v. Major, 676 F.3d 803, 809 (9th Cir. 2012); United States v. 

Charles, 691 F. App’x 367, 370 (9th Cir. 2017). We decline 

Thornhill’s invitation to erect an inflexible structural 

requirement mandating mid-trial rulings and hold that the 

district court did not err in rendering this evidentiary 

decision before Agent Peterson testified.

Finally, Thornhill argues that the prior conviction was 

unfairly prejudicial because “incest has [] a rare power to 

disgust.” Curtin, 489 F.3d at 964 (Kleinfeld, J., concurring) 

(internal quotations and alteration omitted). In Curtin, we 

held that a district court erred by admitting five stories about 

incest written by the defendant without reading the entirety 

of the stories first. Although relevant and probative under 

Rule 404(b), the content of these stories was “depraved and 

patently prejudicial,” and included a story which contained 

5 Judge Smith’s concurrence likewise acknowledges that there is no 

likelihood the “district court would have ruled differently” mid-trial than 

it did pre-trial. Post, at 22. This is especially so where the parties had 

stipulated to sufficient evidence to result in calling only one witness at 

trial.
16 UNITED STATES V. THORNHILL

“a particularly graphic description” involving bestiality. Id. 

at 957–58. Because the court did not read the stories prior 

to admitting them, the district court was unable to conduct a 

proper Rule 403 analysis, and given their highly disturbing 

content, it could not be said that the error was harmless. Id. 

at 958.

But Curtin is distinguishable. First, the evidence and 

testimony elicited at Thornhill’s trial was “sanitized” and 

consisted only of his judgment of conviction, the age of the 

victim, and the victim’s relationship to Thornhill. United 

States v. Sheldon, 755 F.3d 1047, 1050 (9th Cir. 2014) (no 

abuse of discretion where the district court allowed in “only 

the sanitized record that [the d]efendant had been convicted 

of possession of child pornography” and the jury did not hear 

“the details of [the d]efendant’s conduct that resulted in the 

[prior] conviction”). Second, although incest can have a 

“rare power to disgust,” Curtin, 489 F.3d at 964 (Kleinfeld, 

J., concurring) (internal quotations omitted), Thornhill had 

already stipulated that he wrote the list of handwritten search 

terms introduced at trial, which included disturbing 

incestuous search phrases involving “daughter” and “dad.”

We also note that immediately after the judgment of 

prior conviction was introduced, the district court gave a 

limiting instruction,6 further preventing the potential for 

6 The district court instructed the jury:

Ladies and gentlemen, you have heard evidence that 

the defendant has previously been convicted of sexual 

abuse of a minor in the second degree in violation of 

Alaska Statute 11.41.436(a)(2). You may consider that 

evidence only as it bears on intent, knowledge, or lack 

of mistake, and for no other purpose. You may not 
UNITED STATES V. THORNHILL 17

unfair prejudice. See Weeks v. Angelone, 528 U.S. 225, 234 

(2000) (“[A] jury is presumed [] to follow its instructions 

. . . .” (citation omitted)). We therefore conclude that the 

introduction of Thornhill’s prior conviction was not unfairly

prejudicial. See Sebolt, 460 F.3d at 917 (noting that even 

where evidence is highly prejudicial, it is not necessarily 

unfairly prejudicial).

IV

In sum, the prior conviction was relevant and helpful to 

show Thornhill’s knowledge that the child pornography 

images were present on the phone, that Thornhill 

intentionally downloaded the images, and that those actions 

were motivated by his interest in sexual activity involving 

children. On balance, the probative value of Thornhill’s 

prior conviction was not substantially outweighed by its 

unfair prejudice. The district court conscientiously 

evaluated the LeMay factors, and its decision does not “lie[] 

beyond the pale of reasonable justification under the 

circumstances.” United States v. Pineda-Doval, 614 F.3d 

1019, 1035 (9th Cir. 2010) (quoting Harman v. Apfel, 

211 F.3d 1172, 1175 (9th Cir. 2000)). There was no error in 

its admission.

AFFIRMED.

consider that prior conviction as evidence of guilt of 

the crime for which the defendant is now on trial.

Although this appears to be the instruction for Rule 404(b) evidence, 

rather than Rule 414 evidence, any error in the instruction was likely 

harmless given that it limited consideration of Thornhill’s prior 

conviction even more than required under Rule 414.
18 UNITED STATES V. THORNHILL

N.R. SMITH, Circuit Judge, concurring:

I agree with the majority that Thornhill’s conviction 

should be affirmed. However, I arrive at that conclusion by 

a different analysis. I write separately to explain my 

reasoning and to express my concern with the majority’s 

casual disregard of the non-discretionary language used by 

United States v. LeMay, 260 F.3d 1018, 1027–28 (9th Cir. 

2001), where that panel articulated the now-familiar fivefactor test applied here by the district court and at issue in 

this appeal.

I.

Like my colleagues, I find no error or abuse of discretion 

in the district court’s interpretation or application of the first 

four LeMay factors. Thus, the decision in this appeal hinges 

on the district court’s application of the fifth LeMay factor. 

This factor requires a court, in determining the admissibility 

of a prior conviction pursuant to Federal Rules of Evidence 

414 and 404, to consider the necessity of such evidence in 

light of testimonies “already offered at trial.” LeMay, 

260 F.3d at 1027–28 (emphasis added). This language

requires that the district court wait to hear the testimony 

offered at trial before determining whether to admit evidence 

of a prior conviction.

As the majority recognizes, this is not what occurred 

here. See Maj. Op. at 5. The district court, in the written 

order it issued on the first day of trial, initially reserved 

ruling on the issue. Yet, at the start of the second day of 

trial—and before the parties had even made opening 

statements—the district court announced that it had 
UNITED STATES V. THORNHILL 19

sufficient information to rule on the admissibility of 

Thornhill’s prior conviction at that time.1

The majority finds no error in the district court’s course 

of action, because it views the LeMay factors as essentially 

advisory, a set of principles and considerations that a district 

court should consider before ruling on the admissibility of a 

prior conviction. The majority asserts that judges ought not 

be “forc[ed] to wait until the end of testimony at trial to make 

such an evidentiary decision”; that erecting such “an 

inflexible structural requirement” would be an “unwelcome 

constraint” on trial judges. Maj. Op. at 13–15.

It is true that “district court judges have wide latitude in 

deciding when and how to admit evidence at trial.” Maj. Op. 

at 13. I also agree that district court judges ought to have 

such latitude. However, in deciding that there is no brightline rule requiring judges to wait until after other testimony 

is offered at trial to make its evidentiary decision in this 

context, the majority ignores the plain language of the test 

our court outlined in LeMay. In LeMay, we “articulated 

several factors that district judges must evaluate in 

determining whether to admit evidence of a defendant’s 

prior acts of sexual misconduct.” 260 F.3d at 1027–28 

(emphasis added). LeMay says what it says: the trial court 

must evaluate the necessity of the proffered evidence by 

taking into consideration “the testimonies already offered at 

trial.” Id. at 1028 (emphasis added). Thus, one cannot say 

1 Thornhill did not initially object to the ruling on the basis of the 

fifth LeMay factor. Ordinarily this might constitute waiver or forfeiture 

of the argument he now seeks to advance on appeal. See In re Mercury 

Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010). 

However, Thornhill preserved this issue for appeal by raising an 

objection (in a motion to reconsider) when the government sought to 

introduce the prior conviction evidence during trial.
20 UNITED STATES V. THORNHILL

that the timing of LeMay’s fifth factor is discretionary. 

LeMay requires trial judges to reserve judgment on this issue 

until after the other testimony has been offered.

While reading LeMay to impose a bright-line timing 

requirement may “be an unwelcome constraint” on trial 

judges, Maj. Op. at 14, our panel is not free to rewrite LeMay

or apply LeMay’s five-factor test as we think it ought to have 

been formulated. See Miller v. Gammie, 335 F.3d 889, 899–

900 (9th Cir. 2003) (en banc) (noting that “a three-judge 

panel may not overrule a prior decision of the court” absent 

“clearly irreconcilable” Supreme Court case law). We are 

instead bound to apply it as written, unless and until LeMay 

is overruled or clarified by supervening higher authority. As 

written, the only plausible reading of LeMay’s fifth factor is 

that it imposes a timing requirement that trial courts must 

follow. It does not, as the majority concludes, provide a 

mere suggestion or best practice rule of thumb.

Moreover, the timing requirement imposed by LeMay’s 

fifth factor makes good sense. Evidence of prior sex-offense 

convictions are allowed more readily than evidence of other 

types of convictions. See Doe ex rel. Rudy-Glanzer v. 

Glanzer, 232 F.3d 1258, 1268 (9th Cir. 2000) (noting that 

the admission of sex-offense convictions under Rules 413–

415 is not limited by Rule 404(b)’s broad prohibition against 

the use of propensity evidence). However, this does not 

mean that we should ignore the profound effect that such 

evidence of prior sex offenses may have on a jury, especially 

when compared to evidence of other types of offenses. See

Christopher B. Mueller & Laird C. Kirkpatrick, Evidence

§ 4.35 (5th ed. 2012) (noting “evidence that a defendant has 

committed prior sexual assaults or child molestations . . . is 

likely to provoke substantially more jury antipathy against 

the defendant than other types of misbehavior”). As our 
UNITED STATES V. THORNHILL 21

colleagues noted in LeMay, “evidence of a defendant’s prior 

acts of molestation will always be emotionally charged and 

inflammatory” and may be “particularly shocking” to a jury. 

LeMay, 260 F.3d at 1030. Thus, LeMay’s requirement that 

“district judges must carefully evaluate the potential 

inflammatory nature of the proffered testimony, and balance 

it with that which the jury has already heard,” id., safeguards 

the process, ensuring that evidence of prior convictions does 

not unnecessarily prejudice a criminal defendant.

II.

The district court here clearly ignored the timing 

requirement laid out in LeMay’s fifth factor. However, 

reversal is not required in this case, because the error was 

harmless.

Admittedly, the district court ruled on the admissibility 

of Thornhill’s prior conviction evidence earlier than it 

should have. But it did so on the basis of both the pretrial 

stipulations reached by the parties and the parties’ 

representations regarding what evidence they anticipated 

would be offered by the government in its case-in-chief. 

After carefully reviewing the record, it is clear on appeal that 

the trial that followed played out more or less exactly as 

predicted; essentially no unexpected or unanticipated 

testimony or other evidence was offered by the government 

prior to the introduction of evidence concerning Thornhill’s 

prior conviction.2 Indeed, there is no support in the record 

2 The only purportedly unanticipated testimony or evidence that 

Thornhill identifies relates to Special Agent Peterson’s testimony, and in 

particular Peterson’s statement that he believed Thornhill’s prior 

conviction involved his daughter. However, the fact that this conviction 

involved Thornhill’s daughter was not a surprise. The parties had 

previously disclosed that fact to the court, and the court specifically 
22 UNITED STATES V. THORNHILL

suggesting that, but for the error of admitting evidence of the 

conviction before hearing all other testimony, the district 

court would have ruled differently. Whether the ruling was 

made after the parties announced their stipulations, or after 

the government’s case-in-chief had otherwise concluded, the 

district court had essentially the same testimony and 

information before it.

As Thornhill has not shown a reasonable probability of a 

different outcome, the error was harmless.3 See United 

States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010).

noted the prior offense was for “for molesting his minor daughter from 

2004 to 2007” in the written order it issued on the first day of trial.

3 This is not to say that such a finding will always (or even often) be 

available in circumstances such as these. The error that occurred here is 

harmless only because the proceedings that followed the district court’s 

premature ruling did not stray beyond the bounds of what the parties 

disclosed would be presented by the government in its case-in-chief. 

Thus, there were no meaningful alterations to information available to 

the district court between (1) when it did rule on this issue (at the start of 

trial), and (2) when it ought to have ruled on this issue (in light of 

testimony already offered) in order to comply with LeMay.