                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT




                                   ___________

                                   No. 96-4264
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Joseph F. Heidebur,                     *
                                        *
             Appellant.                 *
                                   ___________

                                Submitted: May 20, 1997
                                    Filed: August 11, 1997
                                  ___________

Before BEAM, FRIEDMAN,1 and LOKEN, Circuit Judges.
                            ___________

BEAM, Circuit Judge.

       Joseph F. Heidebur appeals his conviction for knowingly possessing sexually
explicit photographs of a minor, 18 U.S.C. § 2252(a)(4)(B). We vacate the conviction.




      1
      The Honorable Daniel M. Friedman, Circuit Judge, United States Court of
Appeals for the Federal Circuit, sitting by designation.
I.    BACKGROUND

        Defendant was charged with knowingly possessing sexually explicit photographs
of his twelve year-old stepdaughter after his wife, Sherry Heidebur, found three nude
photographs of the girl in the family's garage. At trial, Sherry Heidebur was the
government's first witness. Over the defendant's objections, the prosecutor elicited
testimony from Sherry Heidebur that, a few days before her discovery of the photos,
she had returned home early from work and found the defendant and her daughter
together in the girl's locked bedroom. Sherry Heidebur testified that she accused the
defendant of molesting her daughter, and that he admitted having sexual contact with
her. The government's second witness, FBI agent Phillip McComas, testified that the
defendant first confessed to having sexual contact with his stepdaughter and then
admitted taking the photos.2 The jury returned a guilty verdict, and the district court
sentenced the defendant to sixty months of imprisonment. The sole issue on appeal is
whether evidence of the defendant's molestation of his stepdaughter should have been
excluded as inadmissible evidence of other bad acts under Federal Rule of Evidence
404(b).

II.   DISCUSSION

       Rule 404(b) provides that "[e]vidence 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 that a person has a propensity to commit acts of that sort. Propensity evidence,
whether of a person's general character or examples of specific bad acts, is ordinarily
excluded because of the likelihood that the jury may misuse it.



      2
       Heidebur was convicted in state court of sodomy of a child under age fourteen
and sentenced to five years of imprisonment.

                                          -2-
      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, that 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 that is "probative of the crime charged" is
not excluded under Rule 404(b). United States v. DeLuna, 763 F.2d 897, 913 (8th Cir.
1985).

       Furthermore, "bad acts that form the factual setting of the crime in issue" or that
"form an integral part of the crime charged" do not come within the Rule's ambit at all.
United States v. Williams, 95 F.3d 723, 731 (8th Cir. 1996), cert. denied, 117 S. Ct.
750 (1997). This is because such acts are not truly separate bad acts that show
propensity, but are "'intrinsic evidence' which is inextricably intertwined" with the
crime charged. United States v. McGuire, 45 F.3d 1177, 1188 (8th Cir. 1995) (citation
omitted), cert. denied, 515 U.S. 1132 (1995). For example, in Williams the defendants
were charged with conspiracy and kidnaping after they abducted and then murdered a
man. 95 F.3d at 726-28. Rule 404(b) did not bar evidence that the defendants killed
the victim because the slaying was an integral part of the kidnaping, and excluding that
evidence would have prevented the prosecution from "presenting [to the jury] a
coherent picture of the facts of the crime in issue." Id. at 731.

                                           -3-
       In this case, the defendant objected at trial that Sherry Heidebur's testimony that
he admitted having sexual contact with her daughter was other act evidence barred by
Rule 404(b). The government contended that it was eliciting the testimony to show
why Sherry Heidebur began searching for the photos. Although we will only find error
in a 404(b) question if we find the district court abused its discretion, Simon, 767 F.2d
at 526, we agree with the defendant that the district court erred in admitting this
testimony.

       We first reject the government's argument that the defendant's sexual contact
with his stepdaughter was "inextricably intertwined" with the crime charged
(possession of the photos) and so was not 404(b) evidence at all. The government
claims that the testimony was necessary to show the jury why Sherry Heidebur started
looking for the photos. Sherry Heidebur's motivation in searching, however, has
nothing whatsoever to do with the factual setting of the crime charged in this case. In
Williams, in contrast, the defendants' murder of their victim was part and parcel of their
conduct in carrying out the crimes (kidnaping and conspiracy) with which they were
charged. See 95 F.3d 730-31. Here, there was no evidence of when the photos were
taken, other than Sherry Heidebur's testimony that her daughter looked about twelve
years-old in the photos, and there is no indication that the sexual contact and the
picture-taking were anything but discrete, separate bad acts. Furthermore, Sherry
Heidebur's motive in conducting her search for the photos, while it may provide
background information about the events leading to the discovery of the photos, is not
an integral part of the defendant's alleged possession of those photos. Without this
testimony, the jury was in no danger of not receiving "a coherent picture of the facts"
of the charged crime. Id. at 731.

       In addition, when the prosecutor asked Sherry Heidebur why she began her
search, she initially said nothing about her earlier confrontation with the defendant.
Instead, she testified that she looked for the photos after noticing that six new Polaroid
photos had been placed in an album, and, knowing that Polaroid film packages had ten

                                           -4-
exposures, became suspicious about the missing four photos. Only after repeated
examination and two impermissibly leading questions did Sherry Heidebur testify that
her confrontation with the defendant led to her search. The government's contention
that this testimony is admissible because it was elicited for the limited purpose of
providing a necessary "context" is at best without basis, and at worst pretextual.3

        The government argues that the testimony was admissible even if Rule 404(b)
is implicated, because it was probative of the crime charged; that is, it was admissible
for a purpose other than to show propensity. Other acts evidence is not excluded by
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 that 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). On this point, the government reiterates its contention that
the testimony provided "context" and was thus probative of the crime charged. In our
view, this merely repeats the argument that the defendant's contact with his
stepdaughter was inextricably intertwined with his possession of the photos. We have
already rejected this position.
        The government also argues that the challenged testimony was probative because
it showed the defendant's opportunity to commit the crime. The government did not
advance this position at trial, and we find this post-hoc justification unimpressive.
Opportunity was hardly an issue in this case: the defendant lived in the same house
with the victim, was in contact with her every day, and was often home alone with her
because he cared for her while Sherry Heidebur was at work. Furthermore, whatever
marginal probative value the testimony had for this purpose is substantially outweighed


       3
       Furthermore, the prosecution's later elicitation of testimony, over defendant's
404(b) objection, from Agent McComas about defendant's sexual abuse cannot
possibly have been for the purpose of establishing why Sherry Heidebur searched for
the photographs.

                                             -5-
by the likelihood that the jury would use this highly prejudicial information for an
improper purpose. This is of particular concern since the government's questioning did
not indicate that it was attempting to prove opportunity, and the jury did not receive a
limiting instruction on how to use this testimony.

       The government next contends, again for the first time on appeal, that the
testimony is probative of the defendant's knowing possession of the photographs. The
government's argument, as we understand it, is this: evidence that the defendant had
sexually exploited his stepdaughter tends to show that he knowingly possessed explicit
photos of her.4 This, however, 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.5
        We hold, therefore, that Sherry Heidebur's testimony regarding the defendant's
other acts was probative only of propensity, and the district court erred by admitting
it. The government argues that this was nonetheless harmless error. 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." United


      4
       At oral argument, for example, the government offered the following for why
Rule 404(b) is not at issue in this appeal:

      Is it more probable that a person who is having [an] intimate sexual
      relationship with a twelve year-old child would be more likely to possess
      photographs, explicit sexual photographs, of that child than would a
      person who was not engaged in that type of relationship?
      5
        At oral argument, the government also argued that the defendant's prior bad act
was probative of motive. We find this argument, which was neither presented to the
district court nor briefed, meritless.

                                          -6-
States v. DeAngelo, 13 F.3d 1228, 1233 (8th Cir. 1994) (citations omitted). In other
words, evidentiary error requires reversal "only if the jury may have been substantially
swayed by improperly-admitted evidence." Id. (citation and internal quotations
omitted).

       We conclude that, in this case, the improper admission of the other acts evidence
was not harmless. The government examined only three witnesses. Sherry Heidebur's
testimony about the defendant's prior acts was virtually the first matter of substance put
before the jury. Agent McComas's testimony that the defendant admitted taking the
photographs was given only after McComas first related that the defendant confessed
to sexual contact with his stepdaughter. McComas's testimony was critically relevant
to the crime charged, but was preceded by and completely bound up in highly
prejudicial, inadmissible evidence of other acts.6 Testimony about the defendant's
other bad acts constituted a significant portion of these witnesses' testimony, and was
front-and-center in the trial. We cannot say that the jury was not substantially swayed
by the inadmissible evidence, and that it limited its inquiry only to the evidence relevant
to the crime charged.

III.   CONCLUSION

      The district court erroneously allowed admission of "other acts" evidence barred
by Federal Rule of Evidence 404(b), and we conclude that this error was not harmless.
Accordingly, we vacate the conviction.




       6
        The government's only other witness, an agent at the FBI crime lab in
Washington, provided information about Polaroid cameras and film and established that
the film used in this crime traveled in interstate commerce.

                                           -7-
-8-
A true copy.

      ATTEST:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                              -9-
