10-2824 U.S. v. Knope

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Evidence
Other acts; prejudice; harmless error

Although it was error for the district court to admit other acts evidence without reviewing whether it would be unduly prejudicial, the error was harmless.

“[W]e conclude that the error was harmless. Knope relies heavily on Ciesiolka, where we did find unfair prejudice. Similarly to here, the district court had failed to address the prejudice factor, and a substantial portion of the testimony was devoted to prior bad acts. But unlike here, the prior bad acts ‘ran the gamut from the jury’s viewing over 100 images of child pornography to its hearing a woman’s testimony of her having had sex with the defendant when she was 15 to the offensive sexual content of defendant’s many IM conversations with unidentified third parties.’ 614 F.3d at 358. Significantly, we concluded that the government’s evidence of the crime itself was ‘far from conclusive,’ id. at 356 n.2, and the defendant’s theory that he believed he was interacting with an adult merely pretending to be a child had “strong support” in the evidence. Id. at 356. Moreover, as the trial progressed the defendant had asked the district court to repeat its limiting instruction, which the court refused to do without explaining why. (Knope, in contrast, did not request a limiting instruction at the time the evidence was introduced.) We decided that ‘given the context-specific facts of this highly unusual case, the district court’s failure to explain its decision to grant the government virtual carte blanche to introduce all the Rule 404(b) evidence that it did was an error that was not adequately cured by the limiting instruction provided.’ Id. at 358-59.”

“The government’s 404(b) evidence was, as we have already explained, relevant to the knowledge issue, reasonably recent, similar in content, and identified with Knope. In addition, there was abundant evidence of Knope’s criminal intent, even without the other acts evidence. Knope initiated contact with Maria, made it clear that he was interested in having sex, and attempted to meet with her despite the fact that she stated she was a minor. His knowledge of Maria’s age could be readily inferred from the fact that DuCharme sent him a photograph of a minor, spoke to him as though she were a fifteen-year-old girl, and repeatedly emphasized Maria’s age during the chats. Knope’s intent to have sex with Maria was also clear. He brought a strap-on device to the meeting with Maria and then purchased condoms while he waited for her. Taken together, this evidence belied Knope’s assertion that he had driven to meet Maria merely out of curiosity. Added to Knope’s volunteered inculpatory statements, the evidence of guilt was overwhelming (despite the prosecutor’s concession in closing argument that without the 404(b) evidence it ‘might’ be possible to conclude that Knope was actually mistaken about her age). For these reasons, we will not reverse Knope’s conviction because of the court’s failure to explain itself about the prejudice issue.”

Affirmed.

10-2824 U.S. v. Knope

Appeal from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Lefkow, J.

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