                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2146
                                   ___________

United States of America,              *
                                       *
           Plaintiff - Appellant,      *
                                       * Appeal from the United States
      v.                               * District Court for the Northern
                                       * District of Iowa.
Brion Dodd Johnson,                    *
                                       *
           Defendant - Appellee.       *
                                  ___________

                             Submitted: October 12, 2005
                                Filed: March 9, 2006
                                 ___________

Before BYE, BEAM, and SMITH, Circuit Judges.
                            ___________

BYE, Circuit Judge.

      Brion Dodd Johnson challenges his convictions and sentence for knowingly
possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2),
and knowingly receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)
and (b)(1). We reverse.

                                         I

       The events leading to Johnson's convictions began when his former girlfriend,
Evonne Huston, delivered three compact discs (CDs) containing visual depictions of
child pornography to the Marion, Iowa, police department. Huston told police she
obtained the CDs from Tony Herman, Johnson's roommate, whom she claimed told
her Johnson was in possession of child pornography. Based on this information,
police obtained a search warrant and seized a computer tower and a server containing
nine hard drives. Police also seized printed material from Johnson's bedroom
consisting of two fictionalized accounts entitled "Whore Child" and "Revenge is
Sweet," detailing the abduction and forcible rape of a thirteen-year-old girl and the
incestuous rape of a fifteen-year-old girl. At trial, Johnson's fiancée testified Johnson
downloaded the stories from a client's computer to show the client the computer had
been used to access objectionable material.

        Authorities sent the computers to a forensic laboratory for analysis. The
analysis determined there were hundreds of thousands of files on the server, including
201 zip files containing images of child pornography. Twelve of the files had been
opened or unzipped, while the remaining files remained zipped. The forensic analysis
showed the zip files containing child pornography, including the twelve unzipped
files, were last accessed within a matter of seconds of each other. At trial, Johnson
argued this proved he did not view any of the images because it would be impossible
to unzip and view over 200 images in a matter of seconds.

       The government presented evidence showing the zip files were downloaded to
a directory in Johnson's computer named "Bri [Brion's] zips," meaning Johnson
intentionally saved them to a file bearing his name. Further, each of the files was
password protected indicating Johnson intended to restrict access to them. Johnson,
however, argued the downloaded zip files were password protected before he
downloaded them by whoever created the larger file from which they were
downloaded.

     In addition to the forensic evidence, the government called Johnson's roommate,
Herman, who testified he had on at least one occasion seen Johnson viewing child
pornography on his computer. Herman testified Johnson told him he had accessed the

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content inadvertently and immediately deleted it – Herman confirmed Johnson had
deleted some child pornography. Herman, however, also testified Johnson told him
he accessed the prohibited material while working with authorities to uncover child
pornography – a claim Johnson stipulated at trial was untrue. Finally, Herman
testified Johnson told him he was concerned police might find prohibited material on
his computer in a password-protected zip file.

       The government also presented testimony from Johnson's friend, Joe Tallman,
who testified Johnson attempted to explain away the investigation into his computer
use as arising out of his attempts to help authorities locate "bad websites." According
to Tallman, Johnson told him the investigation began when three CDs containing
information related to the investigation went missing and were turned over to police
by a confidential informant.

      The government next presented the testimony of four registered sex offenders
with whom Johnson was housed while awaiting trial, who testified Johnson admitted
1) he had child pornography on his computer, 2) the CDs turned over to the police
were his, 3) he knew how to locate child pornography on the computer, and 4) he was
going to trial because there was no way he could get caught.

       Finally, the government offered the two stories found in Johnson's bedroom
under Rule 404(b) of the Federal Rules of Evidence. Over Johnson's objection, the
district court admitted the evidence because "the stories demonstrate defendant's
interest in and predisposition to possess child pornography." The trial court instructed
the jury it could consider the evidence to prove Johnson's "inherent tendency to
commit the acts charged in the Indictment."

      Johnson testified the CDs turned over to police by Huston were not made with
any software on his computer and only one of the images contained on the CDs was
located on his computer. Johnson further testified Huston was motivated by

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vindictiveness and gave the CDs to police to frame him. Johnson also claimed the
files were downloaded inadvertently and he never viewed any of the prohibited
material.

       The jury convicted Johnson, and at sentencing the district court imposed various
enhancements, including a two-level enhancement for obstruction of justice. The
district court concluded the enhancement was warranted because Johnson lied during
his testimony. Based on an adjusted base offense level of thirty and a criminal history
category of III, Johnson's guideline sentencing range was 121 to 151 months. The
district court sentenced Johnson to 151 months and stated "even if I am wrong about
the computation of the advisory guideline sentence, [] my sentence would be the same,
because it is reasonable after considering the balance of the [18 U.S.C. § 3553(a)]
factors."

       On appeal, Johnson argues 1) the district court erred in admitting the stories
under Rule 404(b), 2) the evidence was insufficient to support the jury's verdicts of
guilty, and 3) the district court erred in applying a sentencing enhancement for
obstruction of justice under United States Sentencing Guidelines § 3C1.1.

                                          II

      Johnson argues the district court erred by admitting the stories about the rape
of two teenage girls under Rule 404(b). He contends the evidence was inadmissible
because it was only offered to prove his criminal disposition and was unfairly
prejudicial.

      Rule 404(b) states: "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."
The rule excludes evidence of specific bad acts used to circumstantially prove a
person has a propensity to commit acts of that sort. Propensity evidence, whether of

                                         -4-
a person's general character or examples of specific bad acts, is ordinarily excluded
because of the likelihood the jury may misuse it.

      Character evidence is of slight probative value and may be very
      prejudicial. It tends to distract the trier of fact from the main question of
      what actually happened on the particular occasion. It subtly permits the
      trier of fact to reward the good man and to punish the bad man because
      of their respective characters despite what the evidence in the case shows
      actually happened.

Fed. R. Evid. 404 advisory committee notes (1972).

       Rule 404(b) provides, however, evidence of prior bad acts "may . . . be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident." Rule
404(b) is thus "a rule of inclusion rather than exclusion and admits evidence of other
crimes or acts relevant to any issue in the trial, unless it tends to prove only criminal
disposition." United States v. Simon, 767 F.2d 524, 526 (8th Cir. 1985) (internal
quotations omitted). Thus, evidence of prior bad acts "probative of the crime charged"
is not excluded under Rule 404(b), United States v. DeLuna, 763 F.2d 897, 913 (8th
Cir. 1985), and we will only find error in a 404(b) question if the district court abused
its discretion, Simon, 767 F.2d at 526.

      Other acts evidence is admissible under Rule 404(b) if it is 1) relevant to a
material issue raised at trial, 2) similar in kind and close in time to the crime charged,
3) supported by sufficient evidence to support a jury finding the defendant committed
the other act, and 4) its probative value is not substantially outweighed by its
prejudicial value. United States v. Kern, 12 F.3d 122, 124-25 (8th Cir. 1993).

       The government argues the evidence was admissible under Rule 404(b) because
it was probative of the crime charged. It contends the evidence was properly admitted


                                           -5-
because, according to the district court, it demonstrated Johnson's "predisposition" to
possess child pornography and his "inherent tendency" to commit the crimes charged
in the indictment. Johnson argues evidence of propensity to commit acts of a certain
type is clearly inadmissible under Rule 404(b), United States v. Heidebur, 122 F.3d
577, 579 (8th Cir. 1997), and the district court's stated basis for admitting the evidence
was erroneous and an abuse of discretion. We agree. Rule 404(b) precludes
propensity evidence and we see no relevant distinction between it and evidence
tending to prove a predisposition or inherent tendency.

       Nonetheless, the government contends Johnson has misconstrued the district
court's ruling. It argues the court used the words "inherent tendency" and
"predisposition" to mean the evidence was relevant to prove Johnson knowingly and
intentionally possessed the prohibited material and to disprove any claim of mistake.
According to the government, the stories, like some of the images of child
pornography found on Johnson's computer, depict acts of violence perpetrated against
young girls, and the similarities demonstrate his interest in such materials. In other
words, a person who possesses written material of the sort involved here is more likely
to knowingly possess or receive child pornography of a similar ilk.

       This argument is essentially the same one rejected in United States v. Heidebur.
In Heidebur, the defendant was charged with knowingly possessing sexually explicit
photographs of his twelve-year-old stepdaughter. Id. at 578. At trial, the government
offered testimony from the defendant's wife who stated she caught him alone with the
daughter in a locked bedroom just days before discovering the photographs. Id. at
579. The wife testified she accused the defendant of sexually abusing her daughter
and he confessed. Id. The government also offered the testimony of an FBI agent
who stated the defendant confessed to having sexual contact with his stepdaughter and
to taking the sexually explicit photographs. Id. The defendant was convicted, and on
appeal argued the district court erred in admitting the evidence under Rule 404(b),
because it was improper propensity evidence. The government argued the admission

                                           -6-
was proper because "evidence that the defendant had sexually exploited his
stepdaughter tends to show that he knowingly possessed explicit photos of her." Id.
at 581. At oral argument, the government went even further and argued the evidence
was admissible because it was more probable a person who was having a sexual
relationship with a twelve-year-old would possess explicit sexual photographs of the
child than would someone who was not having such a relationship. Id. at 581 n.4. We
rejected the argument, holding: "This . . . is virtually the definition of inadmissible
propensity evidence. We cannot see any way in which the defendant's abuse of his
stepdaughter is probative of his knowing possession of the photographs, other than by
establishing a propensity for these kinds of crimes." Id.

       In this case, the government argues Johnson's possession of stories about the
rape of young girls proves he is more likely to knowingly possess child pornography
because it demonstrates he has a particular "type of interest." We see no difference
between the government's failed argument in Heidebur and the argument advanced to
this court. Here, the government is also arguing the evidence was admissible because
it proves Johnson had a propensity to possess such materials. Moreover, we do not
believe the evidence directly rebuts Johnson's claim he mistakenly downloaded the
prohibited images. Johnson does not claim the visual depictions found on his
computer are not readily identifiable as prohibited child pornography. Rather, he
contends he inadvertently downloaded the images while searching for legitimate
online material. Offering the stories added nothing to aid the jury in determining
whether child pornography could be inadvertently downloaded. Instead, it encouraged
the jury to conclude Johnson intentionally and knowingly sought out images of child
pornography because he had a propensity to possess such materials. Accordingly, we
reject the government's proffered justification for offering the 404(b) evidence.

      The government next cites several cases holding Rule 404(b) permits the
introduction of evidence showing predisposition. These cases, however, do not
support the government's position because in each the defendant asserted an

                                         -7-
entrapment defense, and "where a defendant employs entrapment as a defense to
criminal liability, prior bad acts relevant to a defendant's predisposition to commit a
crime are highly probative and can overcome the Rule 404(b) bar." United States v.
Horn, 277 F.3d 48, 57 (1st Cir. 2002) (citation omitted). Here, Johnson is making no
claim of entrapment.

       There is no dispute Johnson downloaded files containing child pornography
onto his computer. Whether he did so knowingly, however, is disputed. The
discovery of the two printed stories in his bedroom, other than suggesting he is
someone who likes child-related pornography, does nothing to further the
government's claim he knew the computer files contained prohibited material. In light
of the district court's stated reasons for admitting the evidence, and its instructions to
the jury to consider the stories as evidence of Johnson's predisposition and inherent
tendency to commit the crimes charged, we conclude it was error to admit the
evidence under Rule 404(b).

      Despite the district court's abuse of discretion, the government argues any error
was harmless.

      Under Rule 52(a) of the Federal Rules of Criminal Procedure, erroneous
      evidentiary rulings that do not implicate constitutional rights are
      harmless "if the reviewing court, after viewing the entire record,
      determines that no substantial rights of the defendant were affected, and
      that the error did not influence or had only a slight influence on the
      verdict." In other words, evidentiary error requires reversal "only if the
      jury may have been substantially swayed by the improperly-admitted
      evidence."

Heidebur, 122 F.3d at 581 (internal citations omitted).

      The government presented evidence tending to show Johnson knowingly
possessed and received the child pornography discovered on his computer. The

                                           -8-
evidence, however, was not overwhelming. Johnson argued the files were
inadvertently downloaded and the government failed to establish he knew they
contained child pornography. In support of his claim, Johnson presented evidence
showing the files were downloaded while using an internet-based file-sharing program
and were never viewed. Additionally, though Johnson admitted he mistakenly
downloaded child pornography on occasion, Herman testified Johnson immediately
deleted the material when the content became apparent. Johnson also argued the
testimony of his cell mates should be disregarded because it was unspecific and each
was a convicted sex offender who testified as part of a deal with the prosecution.
Finally, Johnson presented evidence indicating Huston lied to police about his
possession of child pornography because the images on the CDs she gave police did
not match up with images on his computer, the CDs had been made on a different
computer, and Herman testified he did not give the CDs to Houston or tell her Johnson
was in possession of child pornography.

       To the extent the jury may have harbored doubts about whether Johnson knew
the files he downloaded contained child pornography, there was no doubt he
knowingly possessed the highly objectionable printed material. A vacillating juror,
told to consider the stories as evidence of propensity or inherent tendency, may have
concluded Johnson's possession of the stories was sufficient to bridge any doubts
about whether he knowingly possessed the child pornography. Because we cannot say
the improperly admitted evidence did not influence or had only a slight influence on
the verdict, we conclude the error was not harmless. See Heidebur, 122 F.3d at 581
(holding the Rule 404(b) error was not harmless despite uncontested evidence
showing the defendant confessed to taking the pictures).




                                         -9-
                                     III

      The order and judgment of the district court is reversed and the case is
remanded for a new trial. Because we reverse and remand we need not address
Johnson's remaining claims.
                      ______________________________




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