                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 13a0056p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                               X
                         Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                -
                                                -
                                                -
                                                    No. 11-2331
          v.
                                                ,
                                                 >
                                                -
                       Defendant-Appellee. -
 TIMOTHY THOMAS SIMS,
                                               N
                  Appeal from the United States District Court
             for the Western District of Michigan at Grand Rapids.
                No. 1:11-cr-37-1—Janet T. Neff, District Judge.
                                 Argued: December 6, 2012
                          Decided and Filed: February 28, 2013
Before: KETHLEDGE and WHITE, Circuit Judges; LUDINGTON, District Judge.*

                                     _________________

                                          COUNSEL
ARGUED: Mark A. Totten, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids,
Michigan, for Appellant. Jeffrey J. O’Hara, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Mark A. Totten, Daniel Y. Mekaru, UNITED STATES ATTORNEY’S
OFFICE, Grand Rapids, Michigan, for Appellant. Jeffrey J. O’Hara, Grand Rapids,
Michigan, for Appellee.
         KETHLEDGE, J., delivered the opinion of the court, in which LUDINGTON,
D. J., joined. WHITE, J. (pg. 8), delivered a separate dissenting opinion.




        *
        The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of
Michigan, sitting by designation.


                                                1
No. 11-2331        United States v. Sims                                            Page 2


                                 _________________

                                       OPINION
                                 _________________

       KETHLEDGE, Circuit Judge. In October 2011, Timothy Sims was set to go to
trial on charges that he possessed child pornography in violation of 18 U.S.C.
§ 2252(a)(4)(B) and (b)(2), and that he attempted to produce child pornography in
violation of 18 U.S.C. § 2251(a) and (e). Four days before trial, however, Sims pled
guilty to the possession charges. The district court then entered an order excluding
evidence of Sims’s possession of child pornography from his attempted-production trial.
The government brought this interlocutory appeal. We vacate and remand.

                                            I.

       Some of the facts of this case are still in dispute, since the case has not yet been
tried. One undisputed fact, however, is that Sims possessed images of a seven year-old
girl (referred to here as B.M.) engaged in sexual conduct. The girl’s mother, Andrea
Mast, sent the images to Sims. Also undisputed is that Sims possessed two disks
containing at least 90 images of child pornography. The images depict both pre- and
post-pubescent children engaged in a variety of sexual acts, including bondage and rape.
Finally, Sims admits that on three occasions he surreptitiously filmed a 13 year-old girl
(referred to here as M.P.) through her bedroom window. Sims took the video from
outside the girl’s bedroom, after she had emerged from the shower. Each video focuses
on the girl’s pubic area and buttocks, but she does not engage in any sexual activity. At
the time the videos were made, Sims lived with M.P., her older sister, C.P., and her
mother, Sonya Lund.

       Citing the videos, the government charged Sims with attempted production of
child pornography. The government also charged Sims with possession of child
pornography, citing the images of B.M. and the images found on the two disks.
Sims thereafter filed a motion in limine to exclude from trial the child pornography that
he possessed, text messages of a sexual nature between him and M.P.’s older sister, and
No. 11-2331        United States v. Sims                                           Page 3


e-mails between him and B.M.’s mother. The court granted the motion as to the adult
pornography and text messages, but denied it as to the child pornography and e-mails.

       Four days before trial, however, Sims pled guilty to the possession counts.
Under oath, he admitted that he had received and possessed images of B.M., a seven
year-old, engaged in sexually explicit conduct. He admitted that he received the images
of B.M. from her mother.       And he admitted possessing the two disks of child
pornography.

       The hearing then moved on to evidentiary matters. Only the attempted-
production counts remained for trial; and immediately after the court accepted Sims’s
guilty plea to the possession charges, the government moved for leave to introduce
Sims’s plea admissions at trial as evidence of his intent to create child pornography
when he filmed M.P. nude through her bedroom window. Sims objected, arguing that
his plea admissions were both irrelevant and prejudicial. Without further argument, the
court ruled that Sims’s statements were inadmissible because they were more prejudicial
than probative. The government then sought to clarify whether the court also meant to
exclude the child-pornography images themselves—evidence that, prior to Sims’s guilty
plea, the court had ruled admissible. The court said that it did mean to exclude them,
because in its view the images were “not relevant” to the attempted-production charges.

       The government promptly filed a notice of appeal. Three days later, the court
entered a written opinion in which it changed its position with respect to the relevance
of the excluded images. Specifically, the court acknowledged that Sims’s “possession
of pornographic images of prepubescent girls is evidence relevant to proving [his]
general intentions in filming the teenaged victim[.]”      But the court discounted the
evidence’s probative value, reasoning that Sims’s intent in filming M.P. would not be
a critical issue at trial. Thus, the court concluded that all of the subject images—it did
not distinguish between them in its analysis, or discuss the plea admissions at
all—should be excluded under Rule 403.
No. 11-2331         United States v. Sims                                           Page 4


                                            II.

         The government argues that the district court erred by excluding all evidence
related to Sims’s possession of child pornography. We review the district court’s
decision for an abuse of discretion. United States v. Stout, 509 F.3d 796, 799 (6th Cir.
2007).

         As an initial matter, the court’s written opinion came after the government filed
its notice of appeal—an event that normally divests the district court of jurisdiction over
the case. But a district court retains limited jurisdiction to take actions “in aid of the
appeal.” Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1013
(6th Cir. 2003). This class of actions is narrowly defined, but includes issuance of an
opinion that memorializes an oral ruling made days before. Id. That is what we have
here, so we include the court’s opinion in our consideration of this appeal.

         Under Rule 403, a district court “may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, [or] misleading the jury[.]” Fed. R. Evid. 403. Thus,
before excluding evidence under the Rule, a district court must “weigh the proper
probative value of the evidence against, among other things, its unfairly prejudicial
effect.” United States v. Parkes, 668 F.3d 295, 305 (6th Cir. 2012).

         Here, the district court excluded all evidence of Sims’s possession of child
pornography, including his plea admissions, the images themselves, and Andrea Mast’s
expected testimony that Sims asked her to take sexually explicit images of B.M. for him.
The court did not distinguish between these different types of evidence, instead
excluding all the evidence in gross.

         The court’s reasoning was based upon the elements of the charged offense. To
convict Sims of attempted production of child pornography, the government must show
two things beyond a reasonable doubt: first, that Sims specifically intended to create
child pornography when he filmed M.P. nude through her bedroom window; and second,
that he took a substantial step towards the creation of child pornography. See 18 U.S.C.
No. 11-2331        United States v. Sims                                            Page 5


§ 2551(a), (e); United States v. Khalil, 279 F.3d 358, 368 (6th Cir. 2002). Sims contests
both elements; but the district court seemed to think that, as a practical matter, only the
second element will be disputed at trial. The court reasoned that Sims’s “apparent
defense” to the attempted-production counts “is that the videos of M.P. do not depict the
lascivious depiction of the victim’s pubic area, as required by statute[.]” Op. at 7. And
thus the court thought that the “pivotal issue at [Sims’s] trial will apparently not be
whether [Sims] was motivated to create such a video, but whether he did some overt act
that was a substantial step towards committing the crime of producing images of a minor
engaged in sexually explicit conduct[.]” Id. (internal quotation marks omitted). Hence
the court concluded that the excluded evidence was relevant only to an issue—Sims’s
intent—that would not be important at trial.

       The court’s reasoning and conclusion were incorrect. To convict Sims of
attempted production of child pornography, the government does not need to prove that
the videos of M.P. were actually lascivious. (If they were, Sims would presumably be
facing an actual-production charge.) To say that a defendant must take a substantial step
towards committing an offense does not mean that he must actually commit the offense.
Thus, as best we can tell, the district court thought the substantial-step element required
a greater showing than it actually does; and that faulty premise led the court to conclude
that this element would be the “pivotal issue” at trial.

       Instead, as even Sims agrees,“the pivotal issue is intent.” Sims Br. at 23. The
intent element of the charged offense requires the government to prove that Sims
specifically intended to obtain a lascivious image when he stood outside M.P.’s bedroom
window with a video camera. Proving that Sims had that intent might be more difficult
than it seems. Although the videos focus on M.P.’s pubic area and buttocks, even the
government says the images are only “borderline lascivious.” Thus, even someone like
Sims might not realistically expect—and thus not intend—to obtain lascivious footage,
i.e., child pornography, when filming a girl toweling off after a shower. In any event,
difficult or not, the government must prove Sims’s intent beyond a reasonable doubt.
No. 11-2331         United States v. Sims                                            Page 6


The district court erred, therefore, when it discounted the probative value of intent
evidence in its balancing under Rule 403.

        The district court also found that the excluded evidence would be highly
prejudicial to Sims. To a large extent we agree: evidence depicting children (like B.M.)
who are much younger than M.P., or describing the involvement of B.M’s mother in
producing pornographic depictions of her daughter, or depicting a toddler being raped
by an adult, would present inflammatory detail that itself has little if any probative value
with respect to Sims’s intent. And that means such evidence is to a large extent unfairly
prejudicial. See United States v. Bilderbeck, 163 F.3d 971, 978 (6th Cir. 1999) (“unfair
prejudice [] mean[s] the undue tendency to suggest a decision based on improper
considerations”). But the court’s reasoning here—particularly at the hearing where it
decided to exclude the subject evidence—did not always distinguish between prejudice
that is unfair and prejudice that is fair. See generally United States v. Sanders, 95 F.3d
449, 453 (6th Cir. 1996). Evidence that lacks inflammatory detail, for example, but that
more simply shows that Sims is a consumer of child pornography, might not be unfairly
prejudicial at all. It might instead tend primarily to show that Sims hoped to obtain a
lascivious image when he filmed M.P. nude through her window. That kind of prejudice
would be fair.

        Which leads to a third point. It is clear that the probative value of the evidence
at issue here is not uniform. The same is true of the evidence’s unfairly prejudicial
effect. Evidence that Sims possessed images of toddlers being raped, for example, might
be modestly probative but extremely prejudicial. But the balance between probative
value and prejudicial effect might well be reversed with respect to some of Sims’s own
admissions at his plea hearing—admissions that the government specifically sought to
admit as a separate item of evidence as soon as they were made. In any event, the
court’s decisions whether to admit the different kinds of evidence at issue here needs to
be more individualized than they were during the plea hearing and in the opinion that
followed.
No. 11-2331        United States v. Sims                                             Page 7


       But those decisions should still be made by the district court in the first instance.
The reality is that the court was pressed to make its decision here on the fly, after Sims
chose to plead guilty to the possession counts only four days before trial. A more
deliberate process for considering these issues might yield a more reliable result.

       The district court’s decision to exclude all evidence related to Sims’s possession
of child pornography is vacated, and the case remanded for further proceedings
consistent with this opinion.
No. 11-2331        United States v. Sims                                            Page 8


                                  _________________

                                      DISSENT
                                  _________________

       HELENE N. WHITE, Circuit Judge, dissenting. I respectfully dissent. I find no
basis on which to conclude that the district court abused its discretion in excluding the
evidence at issue. The majority finds fault with the court’s conclusion that the real issue
at trial will not be Sims’s intent but whether he took a substantial step towards the
creation of child pornography, which conclusion was based on the court’s understanding
that Sims’s apparent defense “is that the videos of M.P. do not depict the lascivious
depiction of the victim’s pubic area, as required by statute.” The majority concludes that
the court’s reasoning and conclusion were incorrect because the government is not
required to show that the videos actually depicted lascivious conduct, only that Sims
attempted to create videos depicting such conduct. But the district court did not
misapprehend the elements of the offense; rather, the court simply made a ruling based
upon the posture of the case at the time. If in fact Sims does not intend to challenge his
intent and concedes that he hoped to secure an image of M.P. engaged in sexually
explicit conduct, it matters not whether that is a sufficient defense to the charge. What
matters is that he does not contest his intent. If the nature of his defense changes and he
takes the position that he filmed M.P. accidentally, or did not intend to capture the
images he did, or intended to film her for artistic purposes only, the court can and should
reconsider its ruling. However, on this record, I find no abuse of discretion.
