NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 23-1339

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UNITED STATES OF AMERICA

v.

TIMOTHY STREITMATTER,

Appellant

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On Appeal from the United States District Court 

for the Middle District of Pennsylvania

(D.C. Criminal No. 3-22-cr-00089)

District Judge: Honorable Robert D. Mariani

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

on March 7, 2024

Before: JORDAN, PHIPPS, and FREEMAN, Circuit Judges

(Opinion filed: April 26, 2024)

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OPINION*

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* 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, we will affirm the District Court’s 

judgment. 

I

On the evening of March 3, 2022, Streitmatter was exploring prostitution websites 

from an apartment in Shillington, Pennsylvania. He viewed an advertisement captioned 

“Looking for Something Fresh?” App. 480. The advertisement featured 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 advertisement. Unbeknownst to him, the 

advertisement was a part of an FBI sting, and an undercover FBI agent replied to his text. 

The agent told Streitmatter that the advertisement was for her 13-year-old niece.

Streitmatter 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 face. (It was actually a photo of a 

forensic doll). Streitmatter then requested 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 Streitmatter 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. Law enforcement arrested him as he 

approached the two undercover agents who were 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 searched his cell phone and saw that, in the week before 

his arrest, he ran internet searches for the phrases “Preteen model,” “Tween Bikini,” and 

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

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

“Grandpa greets teen lover in his towel.” App. 185. (Collectively, we refer to the 

internet searches, the images, 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 age 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 date in question he had the “intent to help a possible victim and 

not to victimize.” App. 101–02. 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, the District Court granted the government’s pretrial motion for leave to introduce the cell phone evidence. The 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 evidence 

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 Pottsville to rescue 

an exploited 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. He denied noticing the option to report the original advertisement 

on the website.
5

During its closing arguments, the government asserted that Streitmatter was guilty 

and “was pre-disposed to engaging in sexual activity with a minor on March 3, 2022.”

App. 254. 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 objections to 

these arguments. It instructed 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.

II1

Streitmatter argues that his conviction should be vacated because the cell phone 

evidence was inadmissible under Rule 404(b). We review a district court’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 

proponent 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 requests 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 

243 (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 

government and the District Court failed to articulate a logical chain of non-propensity

inferences. He contends that the government’s comments in closing—that Streitmatter 

2

In a criminal case, the 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 cell 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, we need not decide whether the District Court abused its discretion

by admitting 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 an advertisement for sexual services from a young-looking 

female described as “fresh”; after he learned the advertisement was for a 13-year-old girl, 

he requested to see a photo of the girl’s full body with her “showing something”; on 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; and when he arrived at the predetermined 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 Streitmatter. 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.