                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA                        No. 08-10394
                Plaintiff-Appellee,                D.C. No.
               v.                            2:04-cr-00064-KJD-
KEVIN ERIC CURTIN,                                   PAL-1
             Defendant-Appellant.
                                                  OPINION

         Appeal from the United States District Court
                  for the District of Nevada
          Kent J. Dawson, District Judge, Presiding

                Submitted November 25, 2009*

                     Filed December 4, 2009

      Before: J. Clifford Wallace, Stephen S. Trott, and
            Pamela Ann Rymer, Circuit Judges.

                     Opinion by Judge Trott




  *The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

                               15891
15894              UNITED STATES v. CURTIN




                         COUNSEL

Jason F. Carr, Federal Public Defender’s Office, Las Vegas,
Nevada, for the defendant-appellant.

Adam M. Flake, United States Attorney’s Office, Las Vegas,
Nevada, for the plaintiff-appellee.


                          OPINION

TROTT, Circuit Judge:

   Kevin Eric Curtin stands convicted by a jury of (1) travel
with intent to engage in a sexual act with a juvenile, in viola-
tion of 18 U.S.C. § 2423(b), and (2) one count of coercion and
enticement, in violation of 18 U.S.C. §§ 2422(b) and 3583(k).
He appeals, alleging (1) errors in the admission and exclusion
of evidence regarding his intent, and (2) the imposition of a
vindictive sentence of lifetime supervised release. We have
jurisdiction over this timely appeal pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742, and we affirm.
                      UNITED STATES v. CURTIN                     15895
                                   I

   This is the second time Curtin has been convicted of these
charges. Our court sitting en banc reversed his first conviction
because of the improper admission against him of evidence of
salacious stories involving adult sexual misbehavior with
juveniles. Investigators found these stories at the time of his
arrest on his electronic personal digital assistant, or “PDA.”
We remanded for a new trial. United States v. Curtin, 489
F.3d 935 (9th Cir. 2007) (en banc).1 The judge who conducted
the first trial recused himself, and a new judge presided over
the proceedings which now bring Curtin to us on a new
record. Curtin concedes that his retrial complied with our en
banc court’s instructions with respect to the admission of only
one redacted story found on his PDA.

                                   II

   The facts underlying these charges are well arrayed in our
en banc opinion, id. at 937-38, and need not be repeated here.
Suffice it to say that the charges Curtin faced were the result
of a government initiated sting operation designed to identify
adults trolling sexually for juveniles using the Internet. His
only defense was that he had no intent to engage an underage
female in a sexual encounter. He asserted that his “role-
playing” plan was only to meet an adult pretending to be a
child for that purpose.

                                  III

   We review a court’s decision to admit or to exclude evi-
dence, including expert opinion testimony, for an abuse of
discretion. Our standard of review covering allegations of the
imposition of a vindictive sentence following a retrial is de
novo. United States v. Garcia-Guizar, 234 F.3d 483, 489 &
n.2 (9th Cir. 2000).
  1
   Our en banc court has assigned this appeal to the original panel.
15896              UNITED STATES v. CURTIN
                              IV

  As part of the government’s case, the court admitted only
one carefully redacted story from Curtin’s PDA entitled “Mel-
anie’s Busy Day, An Erotic Story.” This story explicitly
described prurient sexual activity between an adult and a
child.

   To dilute the import of this evidence, the defense on cross-
examination elicited from the FBI agent who found and
examined Curtin’s PDA testimony that it contained other sto-
ries in addition to “Melanie’s Busy Day,” and that the other
stories pertained to innocent subjects that did not involve sex
with juveniles or children, such as science fiction.

   To blunt the inference that “Melanie’s Busy Day” was just
one of many other innocent stories, the court then permitted
the agent on redirect to testify that the total number of child/
sex stories in the PDA was in excess of 140. To this evidence,
the defense had objected pretrial, claiming that the number of
stories itself was more prejudicial than probative, relying on
Rule 403 of the Federal Rules of Evidence. The court deferred
its ruling on the defense’s objection, saying that during trial
the number “may become relevant — more relevant than prej-
udicial once the defendant takes the stand,” asserting the role-
play fantasy defense. During the trial, after Curtin’s counsel
pointed out the existence of science fiction and other stories
on the PDA, the court said in response to the government’s
claim that “the door has been opened”:

    Well, it has been made to appear that there is only
    one story and that all of these other things are on
    there: science fiction, dance, other literature, “Space
    Jockey.” I’m going to allow you to — to just talk
    about the number, not go into details.

  [1] On review, we conclude that the court’s decision was
an appropriate exercise of discretion. Under the circumstances
                   UNITED STATES v. CURTIN                15897
of this case examined in the light of Curtin’s defense and his
cross-examination of the agent, the simple number of
sexually-oriented stories on Curtin’s PDA was more relevant
than prejudicial to counter the inference Curtin attempted to
create that “Melanie’s Busy Day” was a small, insignificant
and thus non-probative part of the PDA’s total content. We
note that Curtin does not challenge either the large number of
stories in his PDA or the agent’s characterization of them as
involving child/adult sexual behavior. In fact, Curtin’s coun-
sel admitted to the court that the now-disputed stories “are all
of that nature,” meaning child/adult sex stories. Thus, Curtin’s
claim on appeal that the court did not read all the stories to
verify what his counsel conceded is meritless.

   [2] Notwithstanding Curtin’s opening concession that “the
lower court faithfully followed” on remand our en banc opin-
ion, he continues to attack the government’s use of the
redacted story “Melanie’s Busy Day,” accusing the govern-
ment of intentionally attempting to prejudice him in the eyes
of the jury and claiming that the evidence served “only a
‘highly improper and offensive purpose.’ ” To make this chal-
lenge, Curtin once again relies heavily on United States v.
Shymanovitz, 157 F.3d 1154 (9th Cir. 1998), overruled by
United States v. Curtin, 489 F.3d 935 (9th Cir. 2007) (en
banc). However, Shymanovitz’s categorical exclusion of read-
ing materials from the types of evidence that might fall within
Rule 404(b) of the Federal Rules of Evidence in addition to
that opinion’s wholesale condemnation of this kind of evi-
dence was expressly overruled in our en banc holding in this
case, 489 F.3d at 943, n.3, 953-56; and on this issue, Shy-
manovitz is no longer valid precedent. Thus, the central ques-
tion here is only whether any potential unfair prejudice arising
from such evidence was appropriately outweighed by its pro-
bative value. The evidence admitted against Curtin in his
retrial — all of it — safely passes our Rule 403 test. Curtin,
489 F.3d at 956-58.
15898              UNITED STATES v. CURTIN
                              V

   [3] In an effort to bolster a defense the court later deter-
mined to be unbelievable, the defense called a licensed mar-
riage and family therapist to the stand to testify about
“fantasies and sexual behavior,” as this subject relates to the
Internet. The court permitted her to explain to the jury Inter-
net “role playing fantasy” and to state that such an aberration
does exist, but the court — after a full Daubert hearing, Dau-
bert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) —
excluded other parts of her proffered testimony about a sur-
vey, concluding that it was “not reliable” and would “not
assist the jury.” The defense contests this ruling. Here is the
court’s Order:

       Presently before the Court is the Motion of the
    United States to Preclude Expert Testimony. Defen-
    dant filed a response in opposition to which the Gov-
    ernment replied. The Court has considered the
    testimony adduced at the Daubert hearing of May
    27, 2008, together with the briefs of the parties and
    Defendant’s amended notice and expert report.

       During the hearing, it became clear that much of
    the anticipated testimony of Elizabeth Griffin regard-
    ing Defendant’s activities and intent is based upon a
    survey of 400 to 500 youth. This “survey” was con-
    ducted by Griffin and her associates, however has
    not yet been published, subjected to peer review, or
    even presented for analysis of methodology. Her
    conclusions are that only 5% of those using the
    Internet Relay Chat (IRC) are minors, however she
    did not correlate these statistics with the time of the
    alleged crimes, February of 2004, and the survey
    involved only adolescents from Minnesota, New
    York and Pennsylvania.

      In furtherance of her conclusion that Defendant’s
    actions were “consistent” with his claim of inno-
                    UNITED STATES v. CURTIN                15899
    cence, Griffin stated that Defendant did not engage
    in “grooming” which she stated was also “consis-
    tent” with his claim of innocence. However, on
    cross-examination she conceded that Defendant had
    engaged in conduct associated with grooming, albeit
    an expedited version of grooming. Also, as was
    pointed out in the hearing, it has been the experience
    of this Court that virtually all of the Defendants who
    have been convicted in this Court of crimes similar
    to those with which Defendant is charged, utilized
    the same basic approach as employed by Defendant
    in this case.

       Because Ms. Griffin’s testimony in the foregoing
    areas was not established as reliable or as something
    that would assist the jury, she will not be permitted
    to offer testimony concerning same.

       However, Griffin has established that she is a
    licensed marriage and family therapist and that she
    has had extensive experience with sex offenders.
    Assuming that some of the jurors may not be as well
    read as others, the Court will permit the witness to
    testify concerning to the [sic] role of fantasies in sex-
    ual behavior and to further testify that many people
    fantasize about things they would never do in actual-
    ity. The witness may also be used in the event the
    Government presents testimony that use of the IRC
    channel is evidence of intent to have sex with chil-
    dren, or to respond to any other conclusory state-
    ments regarding Defendant’s intent.

   This order speaks for itself. Read in the light of the record,
the court’s decision was an appropriate exercise of discretion.

                               VI

  [4] Curtin’s original five-year sentence, the incarceration
part of which he has already served, included a five-year term
15900               UNITED STATES v. CURTIN
of supervised release. After his second trial, the court imposed
a sentence including a lifetime term of supervised release,
which is authorized specifically pursuant to 18 U.S.C.
§ 3583(k), and permitted generally by Williams v. New York,
337 U.S. 241, 249-52 (1949) (new relevant information may
justify a greater sentence after retrial) and North Carolina v.
Pearce, 395 U.S. 711, 726 (1969), partially overruled on
other grounds by Alabama v. Smith, 490 U.S. 794 (1989), lim-
itation recognized by Texas v. McCullough, 475 U.S. 134, 138
(1986), (“[W]henever a judge imposes a more severe sentence
upon a defendant after a new trial, the reasons for . . . doing
so must affirmatively appear.”). However, Curtin alleges that
this extended term constitutes a vindictive sentence and must
be vacated in favor of the original five-year term of supervi-
sion.

  [5] To be vindictive and thus impermissible, a sentence
must be designed to punish an individual for “exercising a
protected statutory or constitutional right.” United States v.
Goodwin, 457 U.S. 368, 372 (1982). There is no such infir-
mity in this case.

   We note preliminarily that the court could have imposed a
sentence of years in prison greater than the five years Curtin
received at the conclusion of his first trial. The court did not
do so, concluding that the term of years was adequate. This
fact alone rebuts Curtin’s claim that any part of his sentence
was vindictive. We note also that the defense did not object
when Curtin’s sentence was pronounced to the lifetime term
of supervised release as “vindictive,” but instead only that the
first judge did not believe that such a term was necessary.
Furthermore, the court’s explanation of its reasons for the life-
time supervised release is reasonable and fully supported by
the record:

        The Court in imposing lifetime supervision has
    taken into consideration the defense, which was fan-
    tasy role-play. The Court finds that no reasonable
               UNITED STATES v. CURTIN               15901
juror could have believed that defense because the
decoy looked every day of her actual age, 33, as of
the trial, the second trial, and I’m certain that she
didn’t dramatically age in Dorian Gray fashion at 29
— or following 29 when she was in the first trial and
subsequent to the offense. If the defendant was look-
ing for fantasy role-play, he had a person who was
obviously over the age of 15. She didn’t look any-
thing like 15 and no reasonable juror could have
believed the defense that the defendant thought she
was too young.

   [The] Court also has taken into consideration the
occupation of the defendant, his role as a — and
employment as a magician. This gives access to
young audiences and there is a need, as long as that
is his occupation, to — to protect minors. And life-
time supervision will provide that.

    One other comment with respect to the decoy.
The decoy said that she said hi to the defendant. The
— there was no questioning regarding whether she
spoke in falsetto. But, from the Court’s observation
of the answer, she had a deep voice, not one of a
teenager, which gave additional validity to the
Court’s conclusion that no one could have concluded
she was a minor because she looked and spoke every
day of her age of 29 or 33 as she was at the trial.

    I suppose that the Circuit Courts in looking at
these cases does [sic] not get the — the impact of the
— that is received by the trial judge. And so, looking
at this in a vacuum, there might be some plausible
thought to the defense of fantasy role-play. How-
ever, as a trial judge who saw and heard the evidence
live and not reading it on a piece of paper, I find the
— the defense of fantasy role-play unbelievable and
that no reasonable juror could have believed it.
15902              UNITED STATES v. CURTIN
  [6] First, the judge who imposed the challenged term of
supervised release was not the judge we reversed on appeal.
Accordingly, as Curtin concedes in his reply brief, no pre-
sumption of vindictiveness attaches. United States v. New-
man, 6 F.3d 623, 630 (9th Cir. 1993); Garcia-Guizar, 234
F.3d at 489-90 (“If the presumption does not apply, the ‘bur-
den remains upon the defendant to prove actual vindictive-
ness.’ ”) (citations omitted).

   [7] Second, the government recommended the same sen-
tence it recommended after the first trial. This fact, and the
record, dispel the claim that Curtin was the target of prosecu-
torial vindictiveness.

   [8] Third, the government introduced new evidence rele-
vant to resentencing and the need for future supervision of
Curtin. This information indicated that Curtin intended a sub-
sequent contact with a “real juvenile,” not just a decoy, and
that he had directions to a minor’s house where a minor did
in fact reside. The evidence suggested that Curtin had the
potential to be a repeat offender, and that the events underly-
ing his conviction were not isolated in nature.

   [9] Fourth, the court determined that Curtin’s defense was
a fabrication, a false story designed to escape the reach of the
law and to hoodwink the jury. Curtin claimed that he was
looking for an adult; but when he saw an adult, he abruptly
turned and left the premises. All the evidence and inferences
supported the jury’s and the court’s finding that he had, and
continues to have an active sexual interest in persons below
the age of consent.

   [10] Fifth, Curtin’s profession as a magician could well
include contact with minors and children. The district court
explained the justifications for lifetime supervision and the
record more than supports the court’s concern for temptation
and recidivism.
                   UNITED STATES v. CURTIN               15903
   [11] Sixth, the court indicated on the record a willingness
to shorten the term of supervision should the defendant partic-
ipate in counseling and treatment and comply with all the
terms of his release.

   [12] Accordingly, we conclude that the court’s choice of a
lifetime term of supervision was (1) grounded in the evidence,
(2) well within the court’s prerogative, and (3) designed only
to protect and to serve the public interest, not to punish the
defendant. Curtin’s fanciful allegations of vindictiveness have
not a scintilla of support in this record. There is no “reason-
able likelihood” that his extended term of supervised release
was “the product of actual vindictiveness.” Alabama v. Smith,
490 U.S. 794, 799 (1989) (citation omitted).

  AFFIRMED.
