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Handbook Cover for Treatise on Internet Sex Crimes

Chapter 4:
Pretrial Strategy & Motions in Limine


Motion to Exclude Prior Bad Acts


MOTION TO EXCLUDE PRIOR BAD ACTS UNDER RULE 404(b)

Rule 404(b) addresses the admissibility of evidence related to other crimes, wrongs, or acts. Generally, evidence of other crimes, wrongs, or acts is not admissible to prove a person’s character if the purpose is to show that, on a particular occasion, the person acted in accordance with that character. Namely, it discourages the use of such evidence solely for the purpose of suggesting that a person has a propensity to commit a certain type of conduct. However, such evidence may be admissible for reasons unrelated to proving character, such as “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”[1] The court must balance the probative value of the evidence against the risk of unfair prejudice, taking into account the temporal proximity and degree of similarity between the proffered evidence and the charged offense. 

Rule 404(b)(3) stipulates that if a prosecutor intends to present evidence of other crimes, wrongs, or acts for a permissible purpose, they must provide reasonable notice to the defendant (in writing, before the trial), which includes information about the evidence, the purpose for which it is being offered, and the reasoning supporting that purpose. This ensures that the defendant has a fair opportunity to prepare and respond to such evidence.

Rule 404(b) does not apply if the evidence is “intrinsic” to the charged offenses, meaning “if it arose out of the same transaction or series of transactions as the charged offense, is necessary to complete the story of the crime, or is inextricably intertwined with the evidence regarding the charge offense.”[2] Evidence is “inextricably intertwined” with the charged offense “if it is an integral and natural part of the witness’s accounts of the circumstances surrounding the offenses for which the defendant was indicted.”[3]

The admission of Rule 404(b) evidence generally requires a jury instruction limiting the use of such evidence to the purposes for which it was admitted.[4] It is therefore useful to have a hearing to determine the admissibility of proffered Rule 404(b) evidence outside the presence of the jury.

Some circuits provide a list of factors to consider when determining the admissibility of prior bad acts evidence under Rule 404(b). Their criteria for admitting such evidence can be summarized as follows: (1) the evidence is relevant to a material issue; (2) the evidence is similar in kind and close in time to the charged offense; (3) the evidence’s validity is established by a preponderance of the evidence; (4) the probative value of the evidence should outweigh its prejudicial effect (Rule 403).[5] The government bears the burden for proving that requirements for the admission of “other acts” evidence are met.[6]

Evidence can be admissible under Rule 404(b) if a prior crime relates to the current charged offense. For example, “convictions for receipt and possession of child pornography turn on essentially the same requirements and evidence.”[7] The Eighth Circuit also found that a defendant’s admissions that he had viewed child pornography on his computer in the past and that he was familiar with a child pornography series were relevant to charged offenses because they showed that he acted knowingly, they were factually similar and close in time to the charged offenses, the jury was given limiting instructions, and there was no argument that they were more prejudicial than probative.[8]

Evidence can be admissible under Rule 404(b) if it responds to the defense’s case. For example, in a case in which the defendant claimed that he did not know about the child pornography on his computer, evidence that he had viewed child pornography on his computer at least two years before the charged offense occurred and that the FBI recovered over 1,000 images of deleted material from his computer undercut that defense. When he claimed that his computer was inoperable for several months, evidence that he used his computer to access a pornographic website recently was probative of whether his laptop was inoperable at the time.[9]

Evidence may be intrinsic to some counts but extrinsic to others. For example, the Eleventh Circuit found that evidence related to the defendant’s use of a computer, the internet, and peer-to-peer programs to search for, download, and delete child pornography was intrinsic to counts of receiving and distributing child pornography. However, there was no evidence that the possession count arose from the defendant’s use of the internet or peer-to-peer programs. The government argued that the evidence showed the defendant’s “guilty knowledge and intent,” but the Eleventh Circuit ruled that the evidence went toward the propensity of the defendant’s possession of child pornography on this occasion, and was thus inadmissible without a limiting instruction on Rule 404(b) evidence.[10]

Even if evidence is admissible under 404(b), it is nonetheless subject to Rule 403, excluding probative evidence if it is outweighed by the danger of unfair prejudice.


[1] Fed. R. Crim. P. 404(b)(2)

[2] United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007); United States v. Ramsdale, 61 F.3d 825, 829 (11th Cir. 1995); United States v. Troya, 733 F.3d 1125, 1131 (11th Cir. 2013)

[3] United States v. Troya, 733 F.3d 1125, 1131 (11th Cir. 2013)

[4] United States v. Gonzalez, 975 F.2d 1514, 1517 (11th Cir. 1992); United States v. Tokars, 95 F.3d 1520, 1537 (11th Cir. 1996)

[5] United States v. Cox, 963 F.3d 915, 924 (9th Cir. 2020); United States v. Moberg, 888 F.3d 966, 969 (8th Cir. 2018)

[6] United States v. Cox, 963 F.3d 915, 924 (9th Cir. 2020)

[7] United States v. Worthey, 716 F.3d 1107, 1113 (8th Cir. 2013)

[8] United States v. Moberg, 888 F.3d 966, 970 (8th Cir. 2018)

[9] United States v. Nance, 767 F.3d 1037, 1042 (10th Cir. 2014)

[10] United States v. Rodriguez, No. 21-10355, 2022 WL 1788818, at *4 (11th Cir. June 2, 2022)

RULE 413: SIMILAR CRIMES IN SEXUAL-ASSAULT CASES

Rule 413 provides an exception to Rule 404’s prohibition on the admission of propensity evidence.

Rule 413 provides that “in a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault” in any relevant matters.[11] However, if the prosecution intends to offer such evidence, they must inform the defendant at least 15 days before trial, including witnesses’ statements or a summary of the expected testimony.[12]

Under Rule 413, “sexual assault” means a federal or state crime involving any conduct prohibited by 18 U.S.C. chapter 109A, non consensual contact between the defendant’s body or an object and another person’s genitals, non consensual contact between the defendant’s genitals and any part of another person’s body, deriving sexual pleasure or gratification from harming another person, or an attempt or conspiracy to engage in any of the aforementioned conduct. 

The Seventh Circuit interprets “accused” in a narrow sense, meaning a criminal charge of sexual assault rather than a mere verbal accusation.[13] However, they also maintain that child pornography charges involving conduct that satisfies Rule 413’s definition of “sexual assault” meet the requirement that the defendant be accused of a sexual assault.[14] Because minors lack the capacity to consent, evidence of prior sexual assault involving a minor satisfies the condition of “without consent.”[15] In essence, this limits the application of Rule 413 to charges of child pornography production. “Prior instances of sexual misconduct with a child victim may establish a defendant’s sexual interest in children and thereby serve as evidence of the defendant’s motive to commit a charged offense involving the sexual exploitation of children.”[16]

Many circuits maintain that evidence admissible under Rule 413 is nonetheless subject to Rule 403, meaning that it must not be more prejudicial than probative.[17]

The Tenth Circuit held that Rule 413 supersedes Rule 404(b)’s prohibition of the use of prior acts to demonstrate a person’s propensity to commit the charged offense.[18]

Given all of the above, for evidence to be admissible under Rule 413, the defendant must be on trial for “an offense of sexual assault,” the proffered evidence must be of “another offense of … sexual assault,” the evidence must be relevant (demonstrate that the defendant has a particular propensity which has a bearing on the charged crime), and its prejudicial value must not substantially outweigh its probative value.[19]


[11] Rule 413(a)

[12] Rule 413(b)

[13] United States v. Courtright, 632 F.3d 363 (7th Cir. 2011), as amended on denial of reh’g and reh’g en banc(Apr. 12, 2011)

[14] United States v. Foley, 740 F.3d 1079, 1087 (7th Cir. 2014)

[15] United States v. Rogers, 587 F.3d 816 (7th Cir. 2009)

[16] United States v. Sebolt, 460 F.3d 910, 917 (7th Cir. 2006)

[17] United States v. LaVictor, 848 F.3d 428, 449 (6th Cir. 2017); United States v. Guardia, 135 F.3d 1326, 1330 (10th Cir. 1998); United States v. Foley, 740 F.3d 1079, 1088 (7th Cir. 2014)

[18] United States v. Guardia, 135 F.3d 1326, 1329 (10th Cir. 1998)

[19] United States v. Guardia, 135 F.3d 1326, 1332 (10th Cir. 1998)

RULE 414: SIMILAR CRIMES IN CHILD MOLESTATION CASES

Rule 414 provides another exception to Rule 404’s prohibition on the admission of propensity evidence.

Rule 414 provides that “in a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation,” in any relevant matters.[20] However, if the prosecution intends to offer such evidence, they must inform the defendant at least 15 days before trial, including witnesses’ statements or a summary of the expected testimony.[21]

Under Rule 414, a “child” is anyone under 14 years old, and “child molestation” is a federal or state law involving conduct prohibited by 18 U.S.C. chapter 109A committed with a child, conduct prohibited by 18 U.S.C. chapter 110, contact between any part of the defendant’s body or an object and a child’s genitals, contact between the defendant’s genitals and any part of a child’s body, deriving sexual pleasure from causing harm to a child, or an attempt or conspiracy to engage in any of the aforementioned conduct. Chapter 110 includes all charges relating to child pornography.

Evidence of prior sexual conduct with children or prior possession/receipt/distribution/transportation of child pornography are generally considered relevant under Rule 414.[22] The Sixth Circuit clarified that the admissibility of Rule 414 evidence does not require independent corroboration of a confession to the commission of the prior acts, as relevance is the only criterion for admissibility.[23]

Many circuits maintain that evidence admissible under Rule 414 is nonetheless subject to Rule 403, meaning that it must not be more prejudicial than probative.[24]


[20] Rule 414(a)

[21] Rule 414(b)

[22] United States v. Emmert, 825 F.3d 906 (8th Cir. 2016); United States v. Hollow Horn, 523 F.3d 882 (8th Cir. 2008); United States v. Levy, 594 F. Supp. 2d 427 (S.D.N.Y. 2009), aff’d, 385 F. App’x 20 (2d Cir. 2010); United States v. Sturm, 590 F. Supp. 2d 1321 (D. Colo. 2008), aff’d, 425 F. App’x 666 (10th Cir. 2011), reh’g en banc granted, opinion vacated, No. 09-1386, 2011 WL 6261657 (10th Cir. Apr. 4, 2011), and on reh’g en banc,672 F.3d 891 (10th Cir. 2012), and aff’d, 673 F.3d 1274 (10th Cir. 2012)

[23] United States v. Hruby, 19 F.4th 963 (6th Cir. 2021)

[24] United States v. Larson, 112 F.3d 600, 604 (2d Cir. 1997); United States v. Schave, 55 F.4th 671 (8th Cir. 2022); United States v. Jones, 748 F.3d 64 (1st Cir. 2014); United States v. Hawpetoss, 478 F.3d 820 (7th Cir. 2007); United States v. Meacham, 115 F.3d 1488 (10th Cir. 1997)

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