Sufficient Showing That Defendant Made Uncharged Internet Chats Under FRE 404(b)

Internet chatroom conversations about having sex with minors was admissible to show the defendant’s knowledge of the age of his victim and absence of mistake under FRE 404(b); a sufficient showing was made that he made the other chats and not other family members who had access to the computer, in United States v. Zahursky, 580 F.3d 515 (7th Cir. Sept. 1, 2009) (No. 08-1151)

One requirement for admitting prior act evidence under FRE 404(b) is showing “the evidence is sufficient to support a jury finding that the defendant committed the similar act.” In other words, there must be a sufficient nexus to enable the jury to conclude that the defendant committed the uncharged act. This issue was considered in a recent Seventh Circuit case involving the defendant’s Internet chats about having sex with minor girls.

In the case, defendant Zahursky was prosecuted for attempting to coerce or entice a minor under the age of eighteen to engage in sexual activity. The investigation commenced with Internet conversations he had with “Sad_Shelly200,” who was fictitious fourteen-year-old girl and actually an agent. Ultimately, the defendant was arrested when he arrived at a destination he had planned to meet with “Sad_Shelly200.”

At trial, the court admitted prior Internet chatroom discussions by the defendant with others involving discussions about sex with minors. For example, in one discussion, the defendant, using a screen name, admitted that he had had sex with a 14 year old. The defendant objected to the evidence on the ground that the government failed to show the prior Internet chats were his, since his parents and sister also had access to the computer. The jury convicted the defendant. On appeal, he argued that the prior Internet chats were inadmissible.

The Seventh Circuit affirmed the admission of the prior Internet chats. While others had access to the computer, the evidence showed that the defendant used the computer. Some of the other uncharged chats occurred when the defendant admitted chatting with the agent online. The uncharged chats were made by someone using a screen name connected with the defendant. The circuit also noted the content similarity in the different chat discussions. This showing was “sufficient to support a jury finding that the defendant committed the similar act.” Zahursky, 580 F.3d at __.

The Zahursky case demonstrates part of the inquiry that may be made to establish a sufficient basis to infer the uncharged act may be attributed to the defendant and is admissible.

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