UNITED STATES of America, Plaintiff-Appellant, v. Michael STOUT, a/k/a Michael Pletz, Defendant-Appellee, 509 F.3d 796

KENNEDY, J., delivered the opinion of the court, in which GIBBONS, J., joined. McKEAGUE, J. (804-08), delivered a separate dissenting opinion. OPINION KENNEDY, Circuit Judge. Defendant Michael Stout is charged with receipt and possession of sexually explicit visual depictions of minors under 18 U.S.C. §§ 2252A(a)(2)(B) & 2252A(b)(1) (receipt) and §§ 2252A(a)(5)(B) & 2252A(b)(2) (possession). Before trial, the government proffered evidence that Stout had pleaded guilty in state court to surreptitiously videotaping a 14-year old female neighbor while she showered.

Stout moved in limine to suppress this prior bad acts evidence. The district court granted his motion finding that the unfair prejudicial effect of the evidence significantly outweighed its probative value. The government appealed pursuant to 18 U.S.C. § 3731. For the reasons that follow, we AFFIRM. BACKGROUND I. Factual Background Stout’s criminal history is, quite frankly, revolting. In May 2001, Stout pleaded guilty to three counts of a state indictment. The first two counts charged him with “installing a hidden camera in the home of family friends,” and videotaping their 14-year old daughter in the shower.

United States Trial Mem., 2; see also Dist. Ct. Mem. Op. & Order (hereinafter “Dist. Ct. Op.”), 1-2, 2006 WL 2927505, Oct. 12, 2006. The third count charged him with first degree sexual abuse of his 6-year old stepdaughter. Id. In September 2001, the Boone County Circuit Court sentenced Stout to 10 years imprisonment for each of the first two counts and 5 years imprisonment for the third count. The court, however, granted a defense motion for 5 years of probation contingent on 180 days actual jail time and lifetime registration as a sex offender.

The 180-day sentence apparently ran from, at latest, the date of Stout’s guilty plea, because in November of 2001 Stout moved to Louisville and his probation supervision was transferred. During the summer of 2005, Stout’s probation officer received a tip that Stout possessed child pornography. On August 8, 2005, several probation officers and a Louisville police officer visited Stout’s residence. He consented to a search of his computer, which revealed evidence that it had been used to view pornographic web pages. Stout denied responsibility, claiming that his coworkers and girlfriend might have viewed the pages.

His girlfriend confirmed the explanation that the computer was available to others. The officers seized the computer. Forensic examination revealed 37 sexually explicit photographs that the government alleges are of minors. The government indicated that the images were recovered from the “unallocated space of the computer’s memory,” from which it concluded that they were viewed during Internet browsing, but were not downloaded and saved by the viewer. The images were of teenage girls in sexually suggestive poses, none of whom were under the age of 12, and all of whom were alone in the photographs.

It appears from the record that there were additional similar (but legal) erotic images of women over the age of 18 on Stout’s computer in the same unallocated space. II. Procedural History Stout was indicted by a federal grand jury on June 21, 2006. The government filed a pretrial memorandum indicating its intent to introduce evidence of the first two counts of Stout’s state court conviction at trial to demonstrate Stout’s “knowledge and intent to receive and possess child pornography, as well as lack of mistake or accident.” United States Trial Mem., 9 (citing United States v.

Hall, No. 98-6421, 2000 WL 32010, at *3-4 (6th Cir. Jan.4, 2000) (unpublished disposition)). Stout filed a motion in limine under Federal Rules of Evidence 404(

b) and 403 seeking to suppress evidence of the prior convictions as significantly more unfairly prejudicial than legitimately probative. Other than the prior conviction, the government’s evidence is limited. It could include testimony from the probation officer as to the search of Stout’s residence, testimony of the computer expert as to his forensic analysis leading to discovery of the images, expert testimony as to the girls’ ages, and testimony of Stout’s ex-wife with regard to Stout’s practice of viewing pornography on the internet.

After jury selection, but before the jury was sworn, the district court granted Stout’s motion. United States Br. 2-3, 7-8. The government filed this timely appeal under 18 U.S.C. § 3731. ANALYSIS I.

Jurisdiction We have jurisdiction of this appeal pursuant to 18 U.S.C. § 3731, which provides, in relevant part: An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

II. Prior Bad Acts Prior bad acts, including prior convictions, can be admitted under Rule 404(b), which requires (1) use of evidence for a proper purpose (that is, other than as character or propensity evidence), (2) relevance, (3) that the evidence not be substantially more unfairly prejudicial than probative pursuant to Rule 403, and (4) that the court give a limiting instruction, if requested, such that the jury will only consider the evidence for the proper purpose rather than as character or propensity evidence. Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988).

Stout concedes on appeal that the United States has a proper purpose — intent and knowledge — and that the evidence is relevant to that purpose. Stout argues, however, that (as the district court held) the evidence was substantially unfairly prejudicial. Indeed, the district court found that “[t]he impression of Stout [ ] surreptitiously filming a 14-year[ ]old girl in the shower [ ] will predominate [the] trial, not the stored still-life computer images that actually occasioned the current charges.” Dist. Ct. Op. at 8.

The standard of review of a district court’s Rule 403 determination, in the context of Rule 404(b), is abuse of discretion. United States v. Merriweather, 78 F.3d 1070, 1074 (6th Cir.1996) (citing United States v. Gessa, 971 F.2d 1257, 1261-62 (6th Cir.1992) (en banc)). “In determining the admissibility of bad acts evidence under Rule 404(b), a trial judge is accorded ‘broad discretion.’ ” United States v. Vance, 871 F.2d 572, 576 (6th Cir.1989) (quoting United States v. Ebens, 800 F.2d 1422, 1433 (6th Cir.1986)). a.

Probative Value To convict Stout, the government must show that he possessed pornographic images that he knew were of children. 18 U.S.C. § 2252A(a)(2), (a)(5); see United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (discussing 18 U.S.C. § 2252(a)(1)(A) & 2252(a)(2)(A)). Because the government has limited evidence of Stout’s mental state, it argues that the evidence is exceedingly probative.

The district court noted that “the prior acts are [] ‘critical,’ but only for the reason that the government’s evidence connecting Stout to the actual possession and receipt, though clearly sufficient for conviction, is slight.” Dist. Ct. Op. at 7. Actual knowledge in a child pornography case is often, undoubtedly, difficult to show when the persons depicted are teenagers. The prior bad act evidence in this case can demonstrate (although admittedly somewhat weakly) that Stout had knowledge of the subject matter outside of the ordinary ken.

Having produced and (presumably) viewed the pornographic images of one child, he is more likely to identify children as children in other pornographic images. The probative value is not strong — but that is not the test. All relevant evidence is admissible, subject to specific restrictions in the Federal Rules. The district court recognized the proper probative value of Stout’s prior convictions. It noted, “[wjhile the proffered evidence is certainly probative, its value and relevance is narrowly consigned to the intent and knowledge elements of the charges.” Dist. Ct. Op. at 6.

It went on to explain that the other elements of the crime, actual possession and receipt of the images, were not implicated by this evidence. The government argues that the district court did not “look at the evidence in the light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect.” United States v. Perry, 438 F.3d 642, 648 (6th Cir.2006) (quoting United States v. Zipkin, 729 F.2d 384, 389 (6th Cir.1984)). Maximizing its probative value, it argues, means considering its value vis-a-vis the other evidence available to the government to prove its case in chief.

The district court found otherwise. It cautioned against misconstruing the government’s argument that the prior bad acts evidence is “critical” to suggest that it has any greater probative value. The district court concluded that “[wjhile it is likely true that the [prior bad act] evidence is subjectively critical to this case under the 404(

b) analysis, those circumstances do not make the evidence objectively more probative.” Dist. Ct. Op. at 7. We find that the district court’s conclusion is correct. While it is true that the government’s need for the evidence should be weighed along with its probative value to determine whether it should be admitted under Rule 403, the need for the evidence does not make the evidence more likely to prove that which it is offered to prove. Probative value and need for the evidence are separate considerations that weigh in favor of admission under the Rule 403 balancing test.

See Fed.R.Evid. 403 advisory committee’s note (stating that the rule involves “balancing the probative value of and need for the evidence against the harm likely to result from its admission”) (emphasis added). The district court acknowledged the government’s need for the prior bad act evidence since evidence of Stout’s intent and knowledge to receive or possess child pornography was slight.

At the hearing for the motion in limine, however, the district court considered the availability of other means of proof, such as the testimony of Stout’s ex-wife that on prior occasions she had discovered evidence in the Internet history files on the computer that Stout had been searching for child pornography, to prove his intent in a less prejudicial manner. J.A. at 57-58, 69. We find that the district court gave due weight to the probative value of and need for the evidence in its Rule 403 balancing test. b.

Danger of Unfair Prejudice We also agree with the district court’s analysis as to the danger of unfair prejudice and conclude that it was within its discretion to find that, despite the probative value of the prior bad acts evidence in this case, suppression is appropriate. Therefore, because “[t]he reverberating clang of those accusatory words would drown out all weaker sounds [and] the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.” Shepard v.

United States, 290 U.S. 96, 104, 54 S.Ct. 22, 78 L.Ed. 196 (1933) (Justice Cardozo writing on common law evidentiary doctrine prior to the adoption of the Federal Rules of Evidence). As the experienced district court judge here noted after two hearings on the issue and after viewing the evidence: The prior bad acts evidence is potentially prejudicial because it is both inflammatory and distracting. It is more lurid and frankly more interesting than the evidence surrounding the actual charges. Any jury will be more alarmed and disgusted by the prior acts than the actual charged conduct.

As a consequence, the jury is likely to pay undue attention to it.... [TJhere is a strong possibility that the jury will be improperly distracted from the primary evidence at hand. The potential for distraction and unfair prejudice is greater than normal because the actual evidence of possession is so limited. The impression of Stout — surreptitiously filming a 14-year-old girl in her shower — will predominate this trial, not the stored still-life computer images that actually occasioned the current charges....

There is a high probability that the jury would improperly consider the prior bad acts evidence as propensity evidence, and an equally high probability of conviction because of the improper use of that evidence. Dist. Ct. Op. at 8. The district court properly concluded that the unfair prejudice of the evidence of surreptitious filming — both because it demonstrated bad character and propensity — was significant.

There is a further reason why we consider evidence of these acts unfairly prejudicial, a reason that is illustrated by the Congressional addition of Rules 413, 414, and 415 to the Federal Rules of Evidence. Congress added these rules over the near-unanimous (save the representative of the Department of Justice) objection by the judges, academics, and practitioners who compose the Advisory Committee on Evidence Rules. See Fed.R.Evid. 413, 414, & 415 advisory committee’s note.

These new rules provided that similar prior bad act evidence is admissible and may be considered for its bearing on any matter to which it is relevant where the defendant is accused of sexual assault, see Fed.R.Evid. 413, or child molestation, see Fed.R.Evid. 414. Significantly, these new rules created exceptions to the general restriction of Rule 404(b), permitting the admission of similar prior bad act evidence in sexual assault and child molestation cases to show the propensity of the defendant to commit the crime charged.

In doing so Congress recognized that, in certain cases, sexual misconduct is different from other crimes. This difference is either that propensity evidence has special value in certain violent sexual misconduct cases or that the difficulty of and need for convictions for these crimes warrants a decrease in the usual protections against propensity and character evidence. Regardless of which purpose drove Congress to adopt those rules, it recognized that their adoption would inevitably lead to additional convictions.

Importantly, it limited the scope of these new rules to two particularly serious and violent crimes. In a pair of cases, the Eighth Circuit demonstrated the difference between admission under Rule 404(

b) and under Rule 414. Cf. United States v. LeCompte, 99 F.3d 274 (8th Cir.1996) (LeCompte

I) with United States v. LeCompte, 131 F.3d 767 (8th Cir.1997) (LeCompte 17). Leo Le-Compte was accused of abusive sexual contact with his 11-year old niece. The government proffered evidence that Le-Compte had engaged in similar conduct with a different young female relative. The government attempted to admit the evidence under Rule 414, but did not meet the timeliness requirement in Rule 415(b). The district court, however, admitted the evidence under Rule 404(

b) and LeCompte was convicted. The Eighth Circuit reversed and ordered a new trial. It found that there was no relevant purpose for which the evidence could be admitted under Rule 404. At the new trial, the government again proffered the evidence, this time more than 15 days before trial. LeCompte moved in limine to exclude the evidence based on the prior Eighth Circuit holding. The district court granted LeCompte’s motion and the government appealed pursuant to 18 U.S.C. § 3731.

The Eight Circuit again reversed, finding that, “the danger of unfair prejudice ... presented by the ‘unique stigma’ of child sexual abuse ... is one that all propensity evidence in such trials presents. It is for this reason that the evidence was previously excluded, and it is precisely such holdings that Congress intended to overrule.” LeCompte II, 131 F.3d at 770. These cases reflect Congress’ intention to allow this sort of evidence into criminal trials only in certain circumstances.

These rules are tightly tailored in their treatment of these often incendiary acts: in cases where Congress did not specifically provide for its admission, the “unique stigma” of this evidence might sometimes tip the scale, and the evidence will be suppressed. The public regards sexually-based offenses as particularly heinous. Sex offenders are required to register in the communities in which they live because of the perceived danger that they will act in conformity with their prior bad acts. In this respect, admission of prior convictions for sex crimes under Rule 404(

b) in sexually-based offense cases presents a greater risk of the always present danger that the jury will convict the defendant on an improper basis — the propensity inference. A district court is free to consider that potential for unfair prejudice in its balancing. We disagree with the dissent that a limiting instruction informing the jury that Stout’s prior conviction should only be considered as evidence of his knowledge and intent to receive and possess child pornography — and not for propensity purposes— would mitigate any danger of unfair prejudice.

The district court considered Stout’s prior conviction to be overwhelmingly and unfairly prejudicial because of its inflammatory nature and the high probability that the jury would use it to improperly convict Stout of the current charges based on a propensity inference. A limiting instruction would be insufficient to guard against unfair prejudice in this case.

The district court indicated as much by stating that while in many eases courts can find “a rationale or method of allowing use of [the prior bad acts,] ... [h]ere the circumstances are such that to do so creates the great probability of an unfair prejudice.” Thus, the district court properly exercised its discretion to exclude the evidence. c. Response to Government’s Citation to Authority Notably, each of the cases cited by the government confirms the deference we give to the district court under an abuse of discretion standard, because each cited opinion affirms the district court’s ruling.

See, e.g., United States v. Cummins, 969 F.2d 223 (6th Cir.1992); United States v. Thomas, 893 F.2d 1066, 1070-71 (9th Cir.1990); United States v. Campbell, 18 Fed.Appx. 355 (6th Cir.2001) (unpublished disposition). But see United States v. Sebolt, 460 F.3d 910, 915-18 (7th Cir.2006) (affirming trial court’s admission of prior bad acts evidence, but finding a pair of children’s underwear was unduly prejudicial and was wrongfully admitted). In cases where an appellate court does reverse a district court’s suppression order, it is generally due to error in the first step of the Rule 404(

b) analysis (admission for a proper purpose), which we review de novo. See, e.g., United States v. Tan, 254 F.3d 1204, 1211-12 (10th Cir.2001); United States v. Frost, 234 F.3d 1023, 1025 (8th Cir.2000). Moreover, in the majority of the cases cited by the government in support for its arguments, the prejudicial effect of the prior bad act evidence was not nearly as inflammatory as that here. III. Res Gestae Finally, the government contends that the district court erred by concluding that the prior bad act evidence was not res gestae and thus was inadmissible under Rule 404(b).

This argument misconstrues the district court’s opinion. The district court distinguished several cases that the government relied upon by finding that those cases “permitted the admission of [the] evidence [because] it was evidence of similar, uncharged conduct discovered as part of the investigation into the charged conduct” and thus it was evidence that it titled res gestae. Dist. Ct. Op. at 9.

Perhaps another way of putting the district court’s conclusion is that the evidence admitted in those cases was more probative (it also happened to be less prejudicial) and more probative evidence could tip the scale in the Rule 403 balancing test. The government argues that prior bad act evidence need not rise to res gestae to be admissible. This argument is certainly true, but it does not contradict what the district court found.

Rather, the district court found that the evidence was significantly more prejudicial than it was probative^ — -had the prior bad act evidence been res gestae, or at least more probative than it was rather than four-year old convictions, it might have survived the district court’s Rule 403 analysis. CONCLUSION The crux of the issue on appeal is this: the prior bad acts in this case were significantly worse than the acts charged and the probative value of the evidence was relatively slight. In the words of the district court, the prior bad act evidence was, “frankly, creepier” than the charged conduct. Dist. Ct.

Op. at 11. Therefore, we find that the district court was within its “broad discretion” to exclude the evidence. It is important to note, again, the procedural posture at the time this appeal was taken. The trial in this case has still not occurred. As we understand the district court’s order, the government is prohibited from presenting documentary evidence or eliciting testimony concerning Stout’s prior conviction during its case in chief only. Trials are uncertain creatures, however, and it is possible that circumstances might change.

Therefore, we understand the court’s order to relate only to the case in chief. AFFIRMED. . The district court notes in a footnote that "[fjrom [its] general observation, some of the girls depicted appeared surely under the age of 18, while others could be anywhere from 15 years to 20 years of age.” Dist. Ct. Op. at 3. . The government initially intended to introduce all counts to which Stout pleaded guilty, but has conceded that the third count, sexual abuse of a person under the age of consent, is unduly prejudicial and the age of the victim in that case is remote from those in the photographs.

The government also indicated that it intended to introduce the video itself, but retreated from that position before the district court. . The United States filed a timely Notice of Appeal and certification that the appeal was not taken for purposes of delay on October 16, 2006. The Solicitor General approved the appeal on January 26, 2007. Therefore, we have jurisdiction to hear this appeal. .

Rules 413 and 414 state, “In a criminal case in which the defendant is accused of an offense of [sexual assault or child molestation], evidence of the defendant’s commission of another offense or offenses of [sexual assault or child molestation] is admissible, and may be considered for its bearing on any matter to which it is relevant.” Fed.R.Evid. 413(a) & 414(a).