US v. Thornhill, No. 18-30046 (10-16-19)(Tallman w/Ikuta; N. Smith concurring). The 9th affirms a conviction for receipt of child porn, holding that the district court did not abuse its discretion in admitting evidence of defendant’s prior Alaska state conviction for sexual abuse of a minor in the second degree. The admission came in under Fed R Evid 414(a) and under the 403 balancing test. It met the US v LeMay, 260 F.3d 1018 (9th Cir 2001) factors, recognize the similarity of the prior acts, the closeness of time, the frequency of prior acts, the presence of lack of intervening circumstances, and the necessity. LeMay recognizes the devastating impact of such evidence. Here, the 9th finds on balance the admission was probative. It went to knowledge and motive. Admission was not outweighed by unfair prejudice. The court evaluated the factors at the start of this short trial (only one witness and many stipulations). The 9th rejects defendant’s argument that admission analysis must occur at the end of testimony or the govt’s case. The 9th finds this inflexible. Courts have discretion to control trials and deciding when to allow admission.

Concurring, N. Smith would require the timing to be at the end of evidence for admission. A court under LeMay must weigh admission in light of the evidence produced and the need. This was not done here. However, any error was harmless.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/15/18-30046.pdf