                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 07a0496p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                     X
                               Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                          No. 06-6353
          v.
                                                      ,
                                                       >
 MICHAEL STOUT, a/k/a MICHAEL PLETZ,                  -
                              Defendant-Appellee. -
                                                     N
                       Appeal from the United States District Court
                    for the Western District of Kentucky at Louisville.
                No. 06-00094—John G. Heyburn II, Chief District Judge.
                                      Argued: July 19, 2007
                            Decided and Filed: December 20, 2007
              Before: KENNEDY, GIBBONS, and McKEAGUE, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: Terry M. Cushing, ASSISTANT UNITED STATES ATTORNEY, Louisville,
Kentucky, for Appellant. Joseph E. Blandford, Jr., LANDWARD HOUSE, Louisville, Kentucky,
for Appellee. ON BRIEF: Terry M. Cushing, Jo E. Lawless, Monica Wheatley, ASSISTANT
UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellant. Joseph E. Blandford, Jr.,
LANDWARD HOUSE, Louisville, Kentucky, for Appellee.
    KENNEDY, J., delivered the opinion of the court, in which GIBBONS, J., joined.
McKEAGUE, J. (pp. 8-11), 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.



                                                 1
No. 06-6353                United States v. Stout                                                                  Page 2


                                                  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,
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.1 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.”2 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


         1
          The district court notes in a footnote that “[f]rom [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.
         2
           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.
No. 06-6353               United States v. Stout                                                                Page 3


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. § 3731,3 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 (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 (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


         3
           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.
No. 06-6353            United States v. Stout                                                       Page 4


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, “[w]hile 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 “[w]hile 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 (1933) (Justice Cardozo writing on common law evidentiary doctrine prior to the adoption of
No. 06-6353               United States v. Stout                                                                Page 5


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. . . . [T]here 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 is4
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 II). Leo
LeCompte was accused of abusive sexual contact with his 11-year old niece. The government
proffered evidence that LeCompte 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.



         4
          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).
No. 06-6353            United States v. Stout                                                      Page 6


        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 cases 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.3d 1066, 1070-71 (9th Cir. 1990); United States v. Campbell, No. 00-5200, 2001 WL
1070543 (6th Cir. Sept. 4, 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
No. 06-6353           United States v. Stout                                                    Page 7


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.
No. 06-6353                 United States v. Stout                                                                     Page 8


                                                  ________________
                                                      DISSENT
                                                  ________________
        McKEAGUE, Circuit Judge, dissenting. Because I believe that the district court’s exclusion
of Stout’s prior conviction for surreptitiously videotaping a showering 14-year-old girl was based
on an erroneous application of the law and a faulty balancing of the considerations found in Rule
403, I respectfully dissent.
        While the majority is correct that a district court’s Rule 403 determinations are reviewed for
an abuse of discretion, it is incorrect that such an abuse did not occur in this case. An abuse of
discretion occurs when a district court commits “errors of law.” United States v. Ganier, 468 F.3d
920, 925 (6th Cir. 2006) (internal quotation omitted). In this case, the district court’s Rule 403
balancing contained such errors that have unfortunately been overlooked and replicated by my
colleagues in the majority.
A. Errors in the Probative Value Determination
        The district court first erred in its determination of the probative value of the defendant’s
prior conviction.1 According to the district court:
         the prior acts are indeed “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. . . . While it is likely true that the 404(b) evidence
         is subjectively critical to this case under the 404(b) analysis, those circumstances do
         not make the evidence objectively any more probative.
Dist. Ct. Op. at 7. Later in its opinion, the district court indicated that the “potential for . . . unfair
prejudice is greater than normal because the actual evidence of possession is so limited.” Id. at 8.
From these quotations, it is apparent that in determining the probative value of Stout’s prior
conviction, the district court believed that the government’s need for the evidence decreased its
probative value, while increasing the danger of unfair prejudice. However, the district court’s
determination—and the majority’s affirmance of that determination—are both contrary to law.
        It is well-established that “an important indication of probative value of evidence is the
prosecution’s need for the evidence in proving its case.” United States v. Vance, 871 F.2d 572, 576
(6th Cir. 1989); see also United States v. Ray, 189 F. App’x 436, 445 (6th Cir.), cert. denied, 127
S.Ct. 692 (2006). As the Eleventh Circuit has explained, “while prosecutorial need alone does not
mean probative value outweighs prejudice, the more essential the evidence, the greater its probative
value, and the less likely that a trial court should order the evidence excluded.” United States v.
King, 713 F.2d 627, 631 (11th Cir. 1983) (citation and footnote omitted). The King court found an
abuse of discretion in the district court’s Rule 403 analysis and reversed because “[t]he government
has no case without the [disputed] testimony. In this instance the probative value is as high as it
possibly could be . . . .” Id. at 632-33; see also United States v. Jackson, 886 F.2d 838, 847 (7th Cir.
1989) (reversing the exclusion of evidence that defendant refused to provide a handwriting exemplar
and finding the evidence highly probative because “there appears to be no alternative means of proof
with regard to an essential element of the government’s case.”); United States v. Hicks, 798 F.2d

         1
          I pause to note that this case illustrates the difficulty presented when a district court is asked to arrive at a Rule
403 determination pre-trial, without the benefit of having heard at least some of the government’s case, but I also
understand the parties’ interest in having the issue resolved prior to the commencement of trial. This inherent difficulty
notwithstanding, the errors committed by the district court in this case should not be overlooked.
No. 06-6353           United States v. Stout                                                    Page 9


446, 451 (11th Cir. 1986) (stating that “[t]he greater the government’s need for evidence of intent,
the more likely that the probative value will outweigh any possible prejudice.”).
         Of particular relevance to the instant case is the Tenth Circuit’s decision in United States v.
Rodriguez, 192 F.3d 946, 950 (10th Cir. 1999). In Rodriguez, the defendant was charged with
possession of marijuana, and the district court excluded expert testimony regarding the valuation of
the seized narcotics under Rule 403. Id. at 950-51. Concluding that the district court abused its
discretion by devaluing the evidence’s probative value, Rodriguez explained that the defendant’s
“knowledge of the existence of the drugs in the truck apparently will be the critical issue in dispute
in the trial. It appears that there is no direct evidence of his knowledge, and thus the importance of
any indirect evidence of knowledge becomes magnified.” Id. at 950; see also Ray, 189 F. App’x at
445 (holding that the district court did not err in admitting evidence of a defendant’s prior conduct
because as the only evidence available to prove his modus operandi it was highly probative).
       Applying this precedent to the instant case, the district court erred by stating that the
government’s need did “not make the evidence objectively any more probative.” Dist. Ct. Op. at
7. The district court exacerbated its error by actually placing the prosecutor’s need for the evidence
on the unfair prejudice side of the decisional scale. Likewise, the majority’s statement that “the
need for the evidence does not make the evidence more likely to prove that which it is offered to
prove,” Maj. Op. at 4, is erroneous and irreconcilable with our prior decisions. See, e.g., Vance, 871
F.2d at 576 (stating that “[a]n important indication of probative value of evidence is the
prosecution’s need for the evidence in proving its case.”); see also United States v. Smith, 194 F.3d
1315, 1999 WL 970300, at *5 (6th Cir. 1999) (unpublished table decision) (same).
        Additionally, I believe that the district court’s conclusion that the probative value of Stout’s
prior conviction is “limited” because it only illustrates his “prior interest in minor girls and
suggest[s] his intent to knowingly receive child pornography” is incorrect. Dist. Ct. Op. at 12. I
cannot understand how the fact that a piece of evidence is directly related to elements of the charged
offense renders its probative value “limited,” especially when it is the primary evidence capable of
speaking to those elements. A piece of evidence need not prove every element of an offense to be
highly probative. Where a defendant’s prior convictions are offered to prove “an element of the
crime . . . they have significant probative value.” United States v. Tan, 254 F.3d 1204, 1212 (10th
Cir. 2001) (finding the exclusion of defendant’s prior DUI convictions to be an abuse of discretion
because it was offered to prove the malice element of second degree murder); see also United States
v. Long, 328 F.3d 655, 663 (D.C. Cir. 2003) (affirming the district court’s decision to admit evidence
of defendant’s prior uncharged possession of child pornography in the defendant’s trial for child
pornography and related sex offenses because such evidence was probative of the disputed elements
of possession and intent).
        As with the drug possession charges in Rodriguez, the critical issue at trial in this case will
be Stout’s knowledge and intent to possess and receive child pornography. Given the inherent
difficulty in proving the inner-workings of an individual’s mind, it is unsurprising that Stout’s prior
conviction for videotaping a showering young girl is critical to proving that he has a “sexual interest
in children, thereby demonstrating his intent to knowingly receive child pornography.” United
States v. Hall, 202 F.3d 270, 2000 WL 32010, at *3 (6th Cir. 2000) (unpublished table decision);
see also United States v. Sebolt, 460 F.3d 910, 917 (7th Cir. 2006) (explaining that “[p]rior instances
of sexual misconduct with a child victim may establish a defendant’s sexual interest in children and
thereby serve as evidence of the defendant’s motive to commit a charged offense involving the
sexual exploitation of children.”). Following the adage that “nobody knows a product better than
its manufacturer,” it is difficult to comprehend what evidence could be more probative of a
defendant’s knowledge that an image is child pornography—and his intent to possess such an
image—than the fact that the defendant himself is a convicted manufacturer of child pornography.
Although the majority may not believe that Stout’s prior conviction for videotaping a showering girl
No. 06-6353               United States v. Stout                                                                Page 10


strongly demonstrates that he “had knowledge of the subject matter [of child pornography] outside
of the ordinary ken,” Maj. Op. at 4, such a conclusion seems inescapable to me.
        In accord with the authorities previously cited, the importance of Stout’s prior conviction to
proving the government’s case does not minimize its probativeness as the district court stated;
rather, it “magnifie[s]” it. Rodriguez, 192 F.3d at 950-51. Combining this highly probative
evidence with Rule 403’s policy favoring admissibility and our requirement that in reviewing Rule
403 decisions “we look at the evidence in a 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) (internal quotation marks omitted), to be substantially outweighed in this case, the danger
of unfair prejudice would have to be exceedingly great. It is not.
B. Errors in the Unfair Prejudice Determination
        The errors of the district court and the majority are not limited to the probative value side
of the Rule 403 balance; they also pervade the determination of unfair prejudice. While I concede
that Stout’s prior conviction is prejudicial, it is not unfairly so.
         1. Prior Bad Acts Need Not be Less Disturbing than the Charged Offense
         Aside from mistakenly placing the government’s need for the evidence on the unfair
prejudice side of the scale, the court erred by stating that Stout’s prior act was unfairly prejudicial
because it involved a more disturbing crime than those charged in the instant case. According to the
district court, this case is unlike other decisions where prior bad acts were admitted because there
the “prior bad acts evidence was evidence of a similar or lesser crime (or even a less disturbing non-
criminal behavior) than the crime charged,” whereas here “the prior bad acts evidence is more
disturbing and, frankly, creepier than the actual crime charged.” Dist. Ct. Op. at 11.
        I find the Seventh Circuit’s decision in Sebolt to be particularly instructive on this point. The
defendant in Sebolt was charged with possession of child pornography and the district court admitted
the following prior bad acts to prove knowledge and intent: (1) his prior molestation of a young
relative; (2) his trip to Wisconsin to have sex with another minor; (3) his failed attempts to molest
other children; and (4) his possession of young boy’s underwear. Sebolt, 460 F.3d at 914. On
appeal, the Sebolt court found no abuse of discretion in the admission of defendant’s prior actual
molestations and attempted molestations because      such a history “provided strong evidence of his
motive to advertise child pornography online.”2 Id. at 917. The court further explained that while
the “motive to molest children does not completely overlap with the propensity to possess, transport,
or advertise child pornography . . . the conceptual gap between molestation and child pornography
is not so wide as to induce the jury to decide the case on an improper basis . . . .” Id. (citations and
internal quotations omitted); see also United States v. Burt, 495 F.3d 733, 734, 741 (7th Cir.), cert.
denied, ___S.Ct.___, 2007 WL 3235066 (2007) (finding no abuse of discretion under Rule 403
where the district court admitted testimony that defendant had repeatedly molested a child as
evidence of his intent in a child pornography prosecution).
       I can conceive of no principled reason why evidence of actual child molestation and
attempted child molestation is less prejudicial and admissible in a child pornography prosecution,
while surreptitiously videotaping—but never touching or attempting to touch a child—is unfairly
prejudicial and inadmissible. Given that the evidence of prior molestations admitted in Sebolt was
more disturbing than the charge of child pornography it was offered to prove, I believe that it
undercuts the position taken by the district court and the majority. I agree with the Sebolt court and

         2
          While it found the introduction of the prior actual and attempted molestations not to be an abuse of discretion,
the Sebolt court did rule that the young boy’s underwear should have been excluded under Rule 403.
No. 06-6353                United States v. Stout                                                                Page 11


would hold that a prior bad act is not unfairly prejudicial simply because it is more lurid or
“creepier” than that charged in the instant case. See generally United States v. Cummins, 969 F.2d
223, 226 (6th Cir. 1992) (finding no abuse of discretion under Rule 403 where the district court
admitted evidence of defendant’s prior drug dealing in his trial for suborning perjury even though
drug dealing is a more severe crime than inducing one to lie).
         2. Failure to Consider Alternative Means of Reducing Prejudicial Effect
         Next, the district court erred by failing to consider the use of a limiting instruction to reduce
any unfair prejudice resulting from the defendant’s prior conviction. Throughout the district court’s
opinion, it addressed the admissibility of Stout’s prior conviction as a zero-sum game; admit the
evidence in toto or exclude it in toto. Such an attitude is reflected in the district court’s statements
that the prior bad act will “predominate this trial,” Dist. Ct. Op. at 8, and improperly become “a
focus point of the case.” Dist. Ct. Op. at 11. At no point before excluding the evidence did the
district court consider its ability to reduce any unfair prejudice by the use of a limiting instruction
under Rule 105. As the Advisory Committee Note to Rule 403 indicates, before excluding evidence
on the grounds of unfair prejudice “consideration should be given to the probable effectiveness or
lack of effectiveness of a limiting instruction.” Fed. R. Evid. 403, advisory committee’s note; see
also Fed. R. Evid. 105, advisory committee’s note (explaining that the potential efficacy of a
limiting instruction “must be taken into consideration in reaching a decision whether to exclude for
unfair prejudice under Rule 403.”).
        In this case, a properly crafted limiting instruction informing the jury that Stout’s prior
conviction should only be considered as evidence of his knowledge and intent to possess and receive
child pornography—and     not for propensity purposes—would militate against any danger of unfair
prejudice.3 At the very least, the district court should have indicated why a limiting instruction
would have been insufficient to protect against the danger of unfair prejudice. See generally S.E.C.
v. Peters, 978 F.2d 1162, 1172 (10th Cir. 1992) (finding an abuse of discretion where the district
court excluded prior bad acts evidence under Rule 403 without first considering the ability of a
limiting instruction to reduce the danger of unfair prejudice).
C. Conclusion
         As the foregoing analysis illustrates, errors of law pervaded the district court’s loading of
the decisional scales for the Rule 403 balancing and those errors have been reproduced in today’s
majority opinion. In this case, the “district judge chose a balancing approach in the pretrial
exclusion of evidence which did not reflect the standard established by Rule 403 . . . [and] [t]his
improper balancing constituted an abuse of discretion and the grant of the motion in limine
excluding the admission of [Stout’s prior act of videotaping a showering young girl] must be
reversed.” Jackson, 886 F.2d at 848. Therefore, I would remand the case with instructions that
evidence of Stout’s prior conviction (but not the underlying videotapes themselves) be admitted with
a corresponding limiting instruction to the jury—or at a minimum that the district court withhold
its decision on the admissibility of the prior conviction until the government has had the opportunity
to present the bulk of its other evidence. The majority reaches an opposite conclusion, and I
respectfully dissent.



         3
            Although the government initially sought to introduce evidence of Stout’s conviction via: (1) the videotape
of the showering girl; (2) the testimony of the investigating officer; and (3) the court records surrounding the conviction,
the district court failed to consider how limiting the method of proof could limit the danger of unfair prejudice. I cannot
imagine that the simple admission of court records indicating the conviction would become the “focus point” of the trial
as the district court seemed to fear.
