Friday, December 04, 2009

U.S. v. Curtin, No. 08-10394 (12-4-09). On a retrial, the 9th brings the curtain down on defendant's conviction of travel to engage in a sexual act and coercion. In an en banc decision, the 9th kept out salacious stories of adult sexual misbehavior with juveniles found on the defendant's PDA. At the retrial, the defense was that he was play-acting, and thought he was meeting an adult who was pretending to be a child. In its case, the government moved in one redacted story from the seized PDA. The cross examination elicited testimony from the FBI agent that there were other non-sexual stories on the PDA. On redirect, the court allowed the agent to testify that there was in excess 140 child/sexual stories. The defendant argued on appeal that this was unduly prejudicial under FRE 403. No it was not, said the 9th (Trott joined by Wallace and Rymer), and the court acted within its discretion. The evidence was more probative than prejudicial. The imposition of lifetime supervision in the retrial as opposed to the 5 year term imposed after the first trial was not vindictive. Additional evidence was presented that supported it.


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