FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA  No. 08-10394

Plaintiff-Appellee, D.C. No.

v.  2:04-cr-00064-KJDPAL-1 KEVIN ERIC CURTIN,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Nevada

Kent J. Dawson, District Judge, Presiding

Submitted November 25, 2009*

Filed December 4, 2009

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

Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Trott

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

15891
COUNSEL

Jason F. Carr, Federal Public Defender’s Office, Las Vegas,

Nevada, for the defendant-appellant.

Adam M. Flake, United States Attorney’s Office, Las Vegas,

Nevada, for the plaintiff-appellee. 

OPINION

TROTT, Circuit Judge:

Kevin Eric Curtin stands convicted by a jury of (1) travel

with intent to engage in a sexual act with a juvenile, in violation of 18 U.S.C. § 2423(b), and (2) one count of coercion and

enticement, in violation of 18 U.S.C. §§ 2422(b) and 3583(k).

He appeals, alleging (1) errors in the admission and exclusion

of evidence regarding his intent, and (2) the imposition of a

vindictive sentence of lifetime supervised release. We have

jurisdiction over this timely appeal pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742, and we affirm.

15894 UNITED STATES v. CURTIN
I

This is the second time Curtin has been convicted of these

charges. Our court sitting en banc reversed his first conviction

because of the improper admission against him of evidence of

salacious stories involving adult sexual misbehavior with

juveniles. Investigators found these stories at the time of his

arrest on his electronic personal digital assistant, or “PDA.”

We remanded for a new trial. United States v. Curtin, 489

F.3d 935 (9th Cir. 2007) (en banc).1 The judge who conducted

the first trial recused himself, and a new judge presided over

the proceedings which now bring Curtin to us on a new

record. Curtin concedes that his retrial complied with our en

banc court’s instructions with respect to the admission of only

one redacted story found on his PDA.

II

The facts underlying these charges are well arrayed in our

en banc opinion, id. at 937-38, and need not be repeated here.

Suffice it to say that the charges Curtin faced were the result

of a government initiated sting operation designed to identify

adults trolling sexually for juveniles using the Internet. His

only defense was that he had no intent to engage an underage

female in a sexual encounter. He asserted that his “roleplaying” plan was only to meet an adult pretending to be a

child for that purpose.

III

We review a court’s decision to admit or to exclude evidence, including expert opinion testimony, for an abuse of

discretion. Our standard of review covering allegations of the

imposition of a vindictive sentence following a retrial is de

novo. United States v. Garcia-Guizar, 234 F.3d 483, 489 &

n.2 (9th Cir. 2000).

1Our en banc court has assigned this appeal to the original panel. 

UNITED STATES v. CURTIN 15895
IV

As part of the government’s case, the court admitted only

one carefully redacted story from Curtin’s PDA entitled “Melanie’s Busy Day, An Erotic Story.” This story explicitly

described prurient sexual activity between an adult and a

child. 

To dilute the import of this evidence, the defense on crossexamination elicited from the FBI agent who found and

examined Curtin’s PDA testimony that it contained other stories in addition to “Melanie’s Busy Day,” and that the other

stories pertained to innocent subjects that did not involve sex

with juveniles or children, such as science fiction. 

To blunt the inference that “Melanie’s Busy Day” was just

one of many other innocent stories, the court then permitted

the agent on redirect to testify that the total number of child/

sex stories in the PDA was in excess of 140. To this evidence,

the defense had objected pretrial, claiming that the number of

stories itself was more prejudicial than probative, relying on

Rule 403 of the Federal Rules of Evidence. The court deferred

its ruling on the defense’s objection, saying that during trial

the number “may become relevant — more relevant than prejudicial once the defendant takes the stand,” asserting the roleplay fantasy defense. During the trial, after Curtin’s counsel

pointed out the existence of science fiction and other stories

on the PDA, the court said in response to the government’s

claim that “the door has been opened”: 

Well, it has been made to appear that there is only

one story and that all of these other things are on

there: science fiction, dance, other literature, “Space

Jockey.” I’m going to allow you to — to just talk

about the number, not go into details.

[1] On review, we conclude that the court’s decision was

an appropriate exercise of discretion. Under the circumstances

15896 UNITED STATES v. CURTIN
of this case examined in the light of Curtin’s defense and his

cross-examination of the agent, the simple number of

sexually-oriented stories on Curtin’s PDA was more relevant

than prejudicial to counter the inference Curtin attempted to

create that “Melanie’s Busy Day” was a small, insignificant

and thus non-probative part of the PDA’s total content. We

note that Curtin does not challenge either the large number of

stories in his PDA or the agent’s characterization of them as

involving child/adult sexual behavior. In fact, Curtin’s counsel admitted to the court that the now-disputed stories “are all

of that nature,” meaning child/adult sex stories. Thus, Curtin’s

claim on appeal that the court did not read all the stories to

verify what his counsel conceded is meritless. 

[2] Notwithstanding Curtin’s opening concession that “the

lower court faithfully followed” on remand our en banc opinion, he continues to attack the government’s use of the

redacted story “Melanie’s Busy Day,” accusing the government of intentionally attempting to prejudice him in the eyes

of the jury and claiming that the evidence served “only a

‘highly improper and offensive purpose.’ ” To make this challenge, Curtin once again relies heavily on United States v.

Shymanovitz, 157 F.3d 1154 (9th Cir. 1998), overruled by

United States v. Curtin, 489 F.3d 935 (9th Cir. 2007) (en

banc). However, Shymanovitz’s categorical exclusion of reading materials from the types of evidence that might fall within

Rule 404(b) of the Federal Rules of Evidence in addition to

that opinion’s wholesale condemnation of this kind of evidence was expressly overruled in our en banc holding in this

case, 489 F.3d at 943, n.3, 953-56; and on this issue, Shymanovitz is no longer valid precedent. Thus, the central question here is only whether any potential unfair prejudice arising

from such evidence was appropriately outweighed by its probative value. The evidence admitted against Curtin in his

retrial — all of it — safely passes our Rule 403 test. Curtin,

489 F.3d at 956-58.

UNITED STATES v. CURTIN 15897
V

[3] In an effort to bolster a defense the court later determined to be unbelievable, the defense called a licensed marriage and family therapist to the stand to testify about

“fantasies and sexual behavior,” as this subject relates to the

Internet. The court permitted her to explain to the jury Internet “role playing fantasy” and to state that such an aberration

does exist, but the court — after a full Daubert hearing, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) —

excluded other parts of her proffered testimony about a survey, concluding that it was “not reliable” and would “not

assist the jury.” The defense contests this ruling. Here is the

court’s Order:

Presently before the Court is the Motion of the

United States to Preclude Expert Testimony. Defendant filed a response in opposition to which the Government replied. The Court has considered the

testimony adduced at the Daubert hearing of May

27, 2008, together with the briefs of the parties and

Defendant’s amended notice and expert report. 

During the hearing, it became clear that much of

the anticipated testimony of Elizabeth Griffin regarding Defendant’s activities and intent is based upon a

survey of 400 to 500 youth. This “survey” was conducted by Griffin and her associates, however has

not yet been published, subjected to peer review, or

even presented for analysis of methodology. Her

conclusions are that only 5% of those using the

Internet Relay Chat (IRC) are minors, however she

did not correlate these statistics with the time of the

alleged crimes, February of 2004, and the survey

involved only adolescents from Minnesota, New

York and Pennsylvania. 

In furtherance of her conclusion that Defendant’s

actions were “consistent” with his claim of inno15898 UNITED STATES v. CURTIN
cence, Griffin stated that Defendant did not engage

in “grooming” which she stated was also “consistent” with his claim of innocence. However, on

cross-examination she conceded that Defendant had

engaged in conduct associated with grooming, albeit

an expedited version of grooming. Also, as was

pointed out in the hearing, it has been the experience

of this Court that virtually all of the Defendants who

have been convicted in this Court of crimes similar

to those with which Defendant is charged, utilized

the same basic approach as employed by Defendant

in this case. 

Because Ms. Griffin’s testimony in the foregoing

areas was not established as reliable or as something

that would assist the jury, she will not be permitted

to offer testimony concerning same. 

However, Griffin has established that she is a

licensed marriage and family therapist and that she

has had extensive experience with sex offenders.

Assuming that some of the jurors may not be as well

read as others, the Court will permit the witness to

testify concerning to the [sic] role of fantasies in sexual behavior and to further testify that many people

fantasize about things they would never do in actuality. The witness may also be used in the event the

Government presents testimony that use of the IRC

channel is evidence of intent to have sex with children, or to respond to any other conclusory statements regarding Defendant’s intent.

This order speaks for itself. Read in the light of the record,

the court’s decision was an appropriate exercise of discretion.

VI

[4] Curtin’s original five-year sentence, the incarceration

part of which he has already served, included a five-year term

UNITED STATES v. CURTIN 15899
of supervised release. After his second trial, the court imposed

a sentence including a lifetime term of supervised release,

which is authorized specifically pursuant to 18 U.S.C.

§ 3583(k), and permitted generally by Williams v. New York,

337 U.S. 241, 249-52 (1949) (new relevant information may

justify a greater sentence after retrial) and North Carolina v.

Pearce, 395 U.S. 711, 726 (1969), partially overruled on

other grounds by Alabama v. Smith, 490 U.S. 794 (1989), limitation recognized by Texas v. McCullough, 475 U.S. 134, 138

(1986), (“[W]henever a judge imposes a more severe sentence

upon a defendant after a new trial, the reasons for . . . doing

so must affirmatively appear.”). However, Curtin alleges that

this extended term constitutes a vindictive sentence and must

be vacated in favor of the original five-year term of supervision. 

[5] To be vindictive and thus impermissible, a sentence

must be designed to punish an individual for “exercising a

protected statutory or constitutional right.” United States v.

Goodwin, 457 U.S. 368, 372 (1982). There is no such infirmity in this case. 

We note preliminarily that the court could have imposed a

sentence of years in prison greater than the five years Curtin

received at the conclusion of his first trial. The court did not

do so, concluding that the term of years was adequate. This

fact alone rebuts Curtin’s claim that any part of his sentence

was vindictive. We note also that the defense did not object

when Curtin’s sentence was pronounced to the lifetime term

of supervised release as “vindictive,” but instead only that the

first judge did not believe that such a term was necessary.

Furthermore, the court’s explanation of its reasons for the lifetime supervised release is reasonable and fully supported by

the record:

 The Court in imposing lifetime supervision has

taken into consideration the defense, which was fantasy role-play. The Court finds that no reasonable

15900 UNITED STATES v. CURTIN
juror could have believed that defense because the

decoy looked every day of her actual age, 33, as of

the trial, the second trial, and I’m certain that she

didn’t dramatically age in Dorian Gray fashion at 29

— or following 29 when she was in the first trial and

subsequent to the offense. If the defendant was looking for fantasy role-play, he had a person who was

obviously over the age of 15. She didn’t look anything like 15 and no reasonable juror could have

believed the defense that the defendant thought she

was too young. 

[The] Court also has taken into consideration the

occupation of the defendant, his role as a — and

employment as a magician. This gives access to

young audiences and there is a need, as long as that

is his occupation, to — to protect minors. And lifetime supervision will provide that. 

 One other comment with respect to the decoy.

The decoy said that she said hi to the defendant. The

— there was no questioning regarding whether she

spoke in falsetto. But, from the Court’s observation

of the answer, she had a deep voice, not one of a

teenager, which gave additional validity to the

Court’s conclusion that no one could have concluded

she was a minor because she looked and spoke every

day of her age of 29 or 33 as she was at the trial. 

 I suppose that the Circuit Courts in looking at

these cases does [sic] not get the — the impact of the

— that is received by the trial judge. And so, looking

at this in a vacuum, there might be some plausible

thought to the defense of fantasy role-play. However, as a trial judge who saw and heard the evidence

live and not reading it on a piece of paper, I find the

— the defense of fantasy role-play unbelievable and

that no reasonable juror could have believed it.

UNITED STATES v. CURTIN 15901
[6] First, the judge who imposed the challenged term of

supervised release was not the judge we reversed on appeal.

Accordingly, as Curtin concedes in his reply brief, no presumption of vindictiveness attaches. United States v. Newman, 6 F.3d 623, 630 (9th Cir. 1993); Garcia-Guizar, 234

F.3d at 489-90 (“If the presumption does not apply, the ‘burden remains upon the defendant to prove actual vindictiveness.’ ”) (citations omitted).

[7] Second, the government recommended the same sentence it recommended after the first trial. This fact, and the

record, dispel the claim that Curtin was the target of prosecutorial vindictiveness. 

[8] Third, the government introduced new evidence relevant to resentencing and the need for future supervision of

Curtin. This information indicated that Curtin intended a subsequent contact with a “real juvenile,” not just a decoy, and

that he had directions to a minor’s house where a minor did

in fact reside. The evidence suggested that Curtin had the

potential to be a repeat offender, and that the events underlying his conviction were not isolated in nature. 

[9] Fourth, the court determined that Curtin’s defense was

a fabrication, a false story designed to escape the reach of the

law and to hoodwink the jury. Curtin claimed that he was

looking for an adult; but when he saw an adult, he abruptly

turned and left the premises. All the evidence and inferences

supported the jury’s and the court’s finding that he had, and

continues to have an active sexual interest in persons below

the age of consent. 

[10] Fifth, Curtin’s profession as a magician could well

include contact with minors and children. The district court

explained the justifications for lifetime supervision and the

record more than supports the court’s concern for temptation

and recidivism. 

15902 UNITED STATES v. CURTIN
[11] Sixth, the court indicated on the record a willingness

to shorten the term of supervision should the defendant participate in counseling and treatment and comply with all the

terms of his release. 

[12] Accordingly, we conclude that the court’s choice of a

lifetime term of supervision was (1) grounded in the evidence,

(2) well within the court’s prerogative, and (3) designed only

to protect and to serve the public interest, not to punish the

defendant. Curtin’s fanciful allegations of vindictiveness have

not a scintilla of support in this record. There is no “reasonable likelihood” that his extended term of supervised release

was “the product of actual vindictiveness.” Alabama v. Smith,

490 U.S. 794, 799 (1989) (citation omitted). 

AFFIRMED.

UNITED STATES v. CURTIN 15903