                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                   FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                              MAR 11, 2010
                            No. 08-16887                       JOHN LEY
                        Non-Argument Calendar                    CLERK
                      ________________________

                D. C. Docket No. 06-00234-CR-T-17-MSS

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

RICHARD CARINO,

                                                        Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                            (March 11, 2010)

Before EDMONDSON, BIRCH and CARNES, Circuit Judges.

PER CURIAM:
      Richard Carino appeals his convictions for possessing and receiving visual

depictions of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and

(a)(4)(B). He raises one issue on appeal. Carino, who was 48 years old at the time

of trial, contends that the district court failed to conduct a Rule 403 balancing

before admitting his sister’s testimony that he sexually molested her when he was

16 and she was 11.

      We review the district court’s evidentiary rulings for an abuse of discretion.

United States v. Breitweiser, 357 F.3d 1249, 1254 (11th Cir. 2004). Generally,

“propensity” evidence is inadmissible. See Fed.R.Evid. 404(b) (“Evidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order

to show action in conformity therewith.”). An exception exists, however, for

“child molestation” cases. Fed.R.Evid. 414(a) provides:

             In a criminal case in which the defendant is accused of an
             offense of child molestation, evidence of the defendant’s
             commission of another offense or offenses of child
             molestation is admissible, and may be considered for its
             bearing on any matter to which it is relevant.

Rule 414(d)(2) provides that an “offense of child molestation” includes possession

of visual depictions of child pornography, in violation of 18 U.S.C.

§ 2252(a)(4)(B), and receiving visual depictions of child pornography, in violation

of 18 U.S.C. § 2252(a)(2), both of which are offenses within Chapter 110 of Title



                                           2
18. It follows that in prosecutions for possession or receiving child pornography

evidence that a defendant has engaged in child molestation in the past is admissible

as evidence that he is more likely to have committed the offense charged. See

Fed.R.Evid. 414(a).

      Evidence admissible under Rule 414 must also meet the requirements of

other provisions of the Federal Rules of Evidence, including Rule 403. While we

have not addressed the issue of whether Rule 403 applies to Rule 414, other

circuits have held that Rule 403 applies to Rule 414. See United States v. Kelly,

510 F.3d 433 (4th Cir. 2007); United States v. Stout, 509 F.3d 796 (6th Cir. 2007);

United States v. Hawpetoss, 478 F.3d 820 (7th Cir. 2007); United States v.

LeCompte, 131 F.3d 767 (8th Cir. 1997); United States v. LeMay, 260 F.3d 1018

(9th Cir. 2001); United States v. Castillo, 140 F.3d 874 (10th Cir. 1998). Those

circuits vary some in their views about the factors to be considered under Rule 403

before admitting evidence pursuant to Rule 414. See generally Kelly, 510 F.3d at

437 n.3 (discussing differing views of various circuits). But we do not have to

choose between those views in this case, because Carino challenges only whether

the district court considered Rule 403 at all.

      Contrary to Carino’s position, the district court did consider Rule 403 and

did undertake the balancing required by that rule before admitting Carino’s sister’s



                                           3
testimony under Rule 414. Both the government and Carino, on multiple

occasions, argued about how the court should balance the testimony’s probative

value with its prejudicial impact. In its trial brief, the government argued that the

court must “balance [the] probative value against the risk of unfair prejudice and

any other pertinent Rule 403 factor.” In making that argument, the government

acknowledged the prejudicial nature of the evidence but contended that it was not

unfairly prejudicial. Before his sister testified, Carino, citing Kelly, argued that for

a similar act to be admitted, the act must still pass a “a 403 balancing test.” He

cited to the court the factors that the Fourth Circuit had considered in Kelly and he

contended that under this “Rule 403 balancing as to similarity and time alone that

the allegations of [his sister] are not admissible. . . .” Further, while discussing

proposed jury instructions, Carino admitted “that the Court had considered the

factors of 403 in admitting [the testimony] just as it would consider the factors in

admitting something under 404(b).”

      It is clear to us from the record that in deciding to admit the testimony of

Carino’s sister, the district court undertook the Rule 403 inquiry and considered

each parties’ arguments as to the testimony’s probative value and prejudicial

impact.

      AFFIRMED.



                                            4
