NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 23

- 1339

____________ UNITED STATES OF AMERICA

v. TIMOTHY STREITMATTER,

Appellant

____________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 3

- 22

- cr - 00 0 89 ) District Judge: Honorable Robert D. Mariani

____________ Submitted Under Third Circuit L.A.R. 34.1(a)

on March 7, 2024 Before: JORDAN, PHIPPS, and FREEMAN , Circuit Judges

( Opinion f

iled: April 26, 2024 )

_ ___________ ___ OPINION *

______ __ _______

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.FREEMAN , Circuit Judge
.

A jury convicted Timothy Streitmatter of attempted online enticement of a minor to engage in sexual activity and sex trafficking of a child under the age of fourteen. On appeal, Streitmatter challenges the admission of his internet activity during the week before his arrest
. For the reasons that follow, w e will affirm the District Court’s judgment. I O n the evening of March 3, 2022, Streitmatter was exploring prostitution websites from an apartment in Shillington, Pennsylvania
. He viewed an advertisement captioned

“ L ooking for S omething F resh?” App. 480. The advertisement featur ed photos of a young - looking female whose face was turned away from the camera , and it offered several explicit sexual services
. Streitmatter responded to the ad vertisement
. Unbeknownst to him, the ad vertisement was a part of an FBI sting, and an undercover FBI agent replied to his text. T he agent told Streitmatter that the ad vertisement was for her 13

- year - old niece. Streitmat ter requested a picture, and the “aunt” sent him a headshot of what appeared to be an underage girl. (It was a digitally altered image of an FBI agent )
. Streitmatter continued to exchange text messages with the “aunt,” who made clear that her niece would provide sex in exchange for money. The “aunt” asked Streitmatter to prove he was not a police officer, and he sent her a picture of his bare leg soaking in a bathtub. Streitmatter reciprocated by asking the “aunt” to send a full

- body picture of her niece “showing something” so he would know the “aunt” was not a police officer. App. 307

–3

09. The “aunt” responded by sending a picture of what appeared to be a girl in her underwear laying on a bed with a pillow over her f ace . (It was actually a photo of a forensic doll )
. Streitmatter then request ed to speak with the girl, and another agent pretended to be the girl and had a brief telephone conversation with him
. The “aunt” then came back on the line and reminded Streitm atter that her 13

- year - old niece would provide sexual services for $100 per hour

. Streitmatter arranged to meet the girl that evening in Pottsville, Pennsylvania. On his way to the meeting place , he stopped at a gas station and withdrew $200 from an ATM. When he arrived at the meeting place, he left his cell phone and wallet in his vehicle but took the $200 cash with him
. L aw enforcement arrested him as he approached the two undercover agents who we re playing the roles of the aunt and the niece
. Streitmatter waived his Miranda rights and agreed to be interviewed by FBI agents. He told them that he traveled to Pottsville because he was concerned that someone was exploiting a child, and he wanted to get the perpetrator’s address so he could call the police. The FBI search ed his cell phone and saw tha t , in the week before his arrest, he ran internet searches for the phrases “ P reteen model,” “ T ween Bikini ,” and

“ O lder for younger porn , ” and he accessed images of young girls in bikinis
. App. 183

– 8 5 . Also, on the day before his arrest , he accessed a video on Pornhub.com titled

“ G randpa greets teen lover in his towel.” App. 185. ( Collectively, we refer to th e internet searches, the imag es , and the video as the “cell phone evidence.” )4

Streitmatter was charged with attempted online enticement of a minor to engage in sexual activity , in violation of 18 U.S.C. § 2422(b), and attempted sex trafficking of a child who had not yet reached the a ge of fourteen , in violation of 18 U.S.C. § 1594(a). He pled not guilty and proceeded to trial
. During his opening remarks to the jury , Streitmatter ’s counsel explained the defense ’s theory: that Streitmatter lacked “ any intent to engage in sexual activity with this 13

- year - old.” App. 101. Counsel said Streitmatter “really idolized vigilante justice figures” and that on the da te in question he had the “intent to help a possible victim and not to victimize.” App. 1 01

– 0 2. He posited that “the question that divides guilt from innocence in this case [is] Mr. Streitmatter’s intent.” App. 101. Shortly after counsel’s opening , t he District Court granted the government ’s pre

trial motion for leave to introduce the cell pho ne evidence
. T he Court explained that Streitmatter put his intent at issue by suggesting “that all of his actions, including getting in his car and driving to Pottsville, were for a praise

- worthy purpose of stopping the exploitation of a child.” App. 104. Therefore, it concluded that the cell phone evid ence
was admissible under Federal Rule of Evidence 404(b) to prove intent. After the government presented its case, Streitmatter testified in his own defense. He contended that he responded to the advertisement and travelled to Potts ville to rescue
an e xploited child. He said he did not call the police to report his concerns for the child because he needed proof of the exploitation

— proof that he sought to obtain when he arrived in Pottsville
. H e denied noticing the option to report the original adverti sement on the website
.5

During its closing arguments , the g overnment asserted that Streitmatter was guilty and “ was pre - disposed to engaging in sexual activity with a minor on March 3, 2022 .” App. 25 4
. The government also referenced the internet searches and argued, “ Those searches shine a clear light into his mind.
. . . Those searches reveal a man who had a sexual interest in little girls
. ” App. 260. The Court overruled Streitmatter ’s objection s to th ese argument s . It instruct ed the jury that it could consider the cell phone evidence only to decide whether Streitmatter “had the state of mind, knowledge, motive or intent ” to commit the crimes charged

— not as evidence of his propensity to commit the charged crimes
. App. 267. The jury convicted Streitmatter on both counts. The Court sentenced him to 180 months’ imprisonment. II 1 Streitmatter argues that his conviction should be vacated because the cell phone evidence was inadmissible under Rule 404(b)
. We review a district c ourt’s evidentiary rulings for abuse of discretion , and its interpretation of the Federal Rules of Evidence de

novo . United States v. Green , 617 F.3d 233, 239 (3d Cir. 2010). “Rule 404(b) directs that evidence of prior bad acts be excluded

— unless the prop onent can demonstrate that the evidence is admissible for a non

- propensity purpose.” United States v. Repak , 852 F.3d 230, 240 (3d Cir. 2017) (quoting United States v.

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291.6

Caldwell , 760 F.3d 267, 276 (3d Cir. 2014))
. Admission of evidence under Rule 404(b) is a four

- step process: (1) the government must proffer the evidence for a non

- propensity purpose; (2) the evidence must be relevant to the proffered non - propensity purpose; (3) its probative value must not be substantially outweighed by its potential for causing unfair prejudice to the defendant; and (4) the court must give a limiting instruction if the defense request s one. Id. at 241 (citing Huddleston v. United States , 485 U.S. 681, 691 (1988); Caldwell , 760 F.3d at 277

– 78)
. 2 At step two , the government and the trial court must articulate “ a logical chain of inferences connecting the evidence to a non

- propensity purpose .” Caldwell , 760 F.3d at 282. “This chain must be articulated with careful precision ” so that “we are assured that the evidence is not susceptible to being used improperly by the jury.” Repak , 852 F.3d at 24 3 (cleaned up). Step three also requires an on - the

- record analysis. A trial court must apply Rule 403 of the Federal Rules of Evidence and conduct a “meaningful balancing” of the probative value of the evidence weighed against the risk of unfair prejudice. Id. at 246 (quoting Caldwell , 760 F.3d at 283 )
. Streitmatter ’s Rule 404(b) arguments are twofold. First, he argues that the g overnment and the D istrict Court failed to articulate a logical chain of non

- propensity inferences. He contends that the g overnment’s comment s in closing

— that Streitmatter

2 In a criminal ca se, t he government also must provide pretrial notice of its intent to introduce prior bad acts evidence. Fed. R. Evid. 404(b)( 3 ).7

was predisposed to engaging in sexual activity with a minor and that his internet searches demonstrate his sexual interest in little girls

— demonstrate that the cell phone evidence

was introduced for an improper purpose. Second, he argues that the District Court failed to explain how the probative value of the cel l phone evidence was not substantially outweighed by its potential to cause him unfair prejudice. Streitmatter’s point about the lack of an on

- the

- record Rule 403 analysis is well taken . Nonetheless, w e need not decide whether t he District Court abused its discretion by admitt ing the cell phone evidence because any error was harmless. Even without the cell phone evidence ( and the government’s closing arguments invoking that evidence ) , there was overwhelming evidence of Streitmatter’s guilt
. The uncontested evidence showed that he responded to a n advertisement for sexual services from a young

- looking female described as “fresh” ; a fter he learned the ad vertisement was for a 13

- year - old girl, he requested to see a photo of the girl’s full body with her “showing something” ; o n his way to meet the girl, he withdrew $200 in cash

— an amount that would cover two hours of the girl’s sexual services ; during all this, he never alerted authorities to the exploitation of a child ; a nd when he arrived at the pred etermined meeting place, he took the $200 with him but left his cell phone in his vehicle, rendering him unable to report the child’s location to the authorities. Given all this, we have a “ sure conviction ” that any Rule 404(b) error did not prejudice Str eitmatter
. United States v. Steiner , 847 F.3d 103, 113 (3d Cir. 2017) (quoting Caldwell , 760 F.3d at 285)
. * * * For the foregoing reasons, we will affirm the District Court’s judgment

.