Federal Evidence Review

Trial court initially showed concern in admitting the prior conviction for indecent contact with a child as “extremely prejudicial,” but the defendant’s denial on direct and cross examination that he would not carry out his desire to engage in sexual relations with a minor “opened the door,” in United States v. Pierson, __ F.3d __ (8th Cir. Oct. 20, 2008) (No. 08-1335)

There are few cases allowing the admission of a prior conviction under FRE 404(b) that are about twenty years old. The Eighth Circuit recently considered one of them.

In Pierson, the defendant met “brenda_j_2011” online through instant and text messaging initially using the name “Modelman_Matthew2006,” but later using other identities. After he was convinced that brenda_j_2011 was not an undercover, he sent $27 to brenda_j_2011 to purchase a webcam so she could appear naked. Agents obtained search and arrest warrants.

Before trial, the defendant moved in limine to exclude his twenty-year old prior conviction for indecent contact with a child, under FRE 403 and FRE 609. The government indicated that it would not use the prior conviction in its case in chief. The trial court granted the motion but reserved ruling on whether the prior conviction would be admissible if the defendant testified. When it became clear the defendant planned to testify, the government urged admission of the prior conviction under FRE 404(b) to show intent, lack of mistake, plan, and preparation. The trial court noted the prior conviction "would be extremely prejudicial," but may be relevant depending on the defendant’s trial testimony. On direct examination, the defendant testified:

"Q. Are you denying that [discussing having sex with a fourteen year old girl] excites you?
A. No.
Q. And after that you still tried to – at least on the internet did you still try to set up meetings with her?
A. We tried to set up two.
Q. And did that ever occur?
A. No. Q. Why didn't that occur?
A. I had no interest in meeting her. And plus I knew it wasn't a fourteen year old, and it was just on the computer."

Pierson,, __ F.3d at __. During cross-examination, the defendant testified:

"Q. So you wouldn't want to have any sexual contact with young girls?
A. In person, no, sir.
Q. And you're sure about that?
A. Yes, sir.
Q. And that's never sexually – you've never been sexually attracted to physically have contact –
A. Yes, I have been; but that doesn't mean – in my heart I don't believe I want to.
Q. That means you wouldn't ever act on it; correct?
A. That's correct."

Pierson, __ F.3d at __. After this testimony, the trial court admitted the prior conviction. On cross-examination, the defendant answered that he had previously been convicted of indecent contact with a child. The jury convicted the defendant, and he was sentenced to 300 months’ imprisonment. On appeal, he contested the admission of his prior conviction.

The circuit affirmed the admission of the prior conviction under FRE 404(b), explaining: “Pierson denied on both direct and cross examination that he would actually carry out his fantasy of engaging in sexual relations with a minor. This self serving testimony opened the door to the admission of his prior conviction for indecent contact with a child.” Pierson, __ F.3d at __ (citing United States v. Senffner, 280 F.3d 755, 763 (7th Cir. 2002) (“[A] party cannot be permitted on the one hand to introduce evidence that appears favorable to his argument and then complain, after the circumstances are fully developed, because the evidence becomes detrimental to his cause.”)). The circuit also concluded that the trial court engaged in a proper balancing analysis under FRE 403.

While the remoteness and prejudicial nature of the prior conviction were factors weighing against admission, the defendant’s own trial testimony allowed the admission of the conviction. Without his testimony, the prior conviction likely would not have been admitted.