## Facts

- Federal agents arrested a defendant after he traveled to meet a person he believed was a minor for sexual activity, based on online communications.
- The government charged attempted enticement of a minor to engage in illegal sexual activity under 18 U.S.C. § 2422(b).
- Before trial, the government sought to introduce numerous sexually explicit fictional stories found in the defendant’s possession.
- The government offered the stories as “other acts” evidence to show intent, motive, and absence of mistake under Federal Rule of Evidence 404(b).
- The district court admitted the stories but did not read them in full before ruling, relying largely on descriptions and limited excerpts.
- The defendant was convicted, and he appealed, arguing the admission of the stories was error and unfairly prejudicial.

## Issues

1. Whether the district court abused its discretion by admitting explicit stories as Rule 404(b) evidence without reviewing their actual contents.
2. Whether admitting the stories satisfied Rule 403’s requirement that probative value not be substantially outweighed by unfair prejudice.
3. Whether possession of sexually explicit stories could be used to prove intent in a prosecution for attempted enticement under § 2422(b).

## Decision

- The Ninth Circuit, sitting en banc, reversed and remanded.
- The court held the district court abused its discretion by admitting the stories without personally reviewing their contents.
- The court concluded that meaningful Rule 403 balancing could not be performed without knowing what the evidence actually said and how inflammatory it was.
- The court rejected the view that summary descriptions or selected excerpts were an adequate substitute for judicial review of the full materials.

## Legal Principles

- Rule 404(b) permits admission of other-acts evidence for non-propensity purposes (such as intent), but the proponent must show a proper purpose and a link to a material issue.
- Rule 403 balancing requires a court to assess probative value against the danger of unfair prejudice, including the likelihood the jury will punish based on emotional reaction rather than proof of the charged elements.
- When Rule 404(b) evidence consists of written materials (including highly explicit content), the trial judge must review the actual documents before admitting them so the court can accurately evaluate relevance, probative force, and prejudice.
- Failure to examine the evidence itself can constitute an abuse of discretion because it undermines the reliability of the Rule 403 determination and the court’s gatekeeping role.

## Conclusion

The Ninth Circuit held that admitting highly inflammatory written materials under Rule 404(b) requires the judge to read and evaluate the materials, because Rule 403 balancing cannot be reliably performed from summaries or excerpts; the conviction was reversed and the case remanded for further proceedings.


United States v. Curtin, 489 F.3d 935 (9th Cir. 2007)