United States District Court, W.D. Arkansas, Fayetteville Division
TIMOTHY L. BROOKS UNITED DISTRICT JUDGE
Kyle Vance has been charged with enticing a minor to engage
in sexually explicit conduct and receiving a sexually
explicit depiction of a minor, in violation of 18 U.S.C.
§§ 2251(a), (e), and 18 U.S.C. §§
2252(a)(2) and (b)(1). The charged conduct involves Mr.
Vance's electronic communications with a 9-year old
victim, who will be referred to herein as “L.P.”
Specifically, it is alleged that Mr. Vance enticed and
solicited L.P. to send him sexually explicit images. The
matter is scheduled for a jury trial to commence on October
September 20th, the Government filed a notice of intention to
introduce evidence pursuant to Federal Rule of Evidence 414
or, alternatively, 404(b) (Doc. 22). Specifically, the
Government intends to introduce evidence that, approximately
six months after his charged conduct involving L.P., Mr.
Vance solicited through Facebook the production of sexually
explicit images from a 15-year old and her 5-year old
relative. The 15-year old is referred to herein as
“M.B.” On September 25th Mr. Vance filed a
Response and Objection to the Government's Notice (Doc.
24), which the Court construes as a Motion to Exclude the
pre-trial hearing yesterday, the Government clarified that it
is seeking to introduce the following evidence under Rule 414
and 404(b): (1) Mr. Vance's admissions related to M.B.,
which are found in a transcript of his interview with
investigative agents; (2) live testimony from M.B; (3) a
transcript of Facebook messages between Mr. Vance and M.B.;
and (4) the images of M.B. sent to Mr. Vance within the
Facebook messages.Mr. Vance clarified that he does not object
to the introduction of his admissions related to M.B., but he
does object to the introduction of the other evidence. Also,
for context and comparison, the Government provided the
communications and charged images that Mr. Vance allegedly
enticed L.P. to send him via Facebook. Counsel argued
their positions at the pre-trial hearing, and the Court has
now had an opportunity to review the materials and images
that were received as exhibits.
reasons set forth below, the Court will not exclude Mr.
Vance's admissions relating to his communications with
M.B., live testimony from M.B., or the transcript of the
Facebook messages between Mr. Vance and M.B. However, the
Court will exclude the photographs of M.B. (and her 5-year
old relative) which are found within the transcript of the
Facebook messages between Mr. Vance and M.B.
Rule of Evidence 414(a) states that, “[i]n 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. The evidence may be considered on
any matter to which it is relevant.” Neither party
disputes that Rule 414 governs the evidence at issue here.
When considering the admissibility of Rule 414 evidence, a
court “must first determine whether the evidence has
probative value” and then “balance that probative
value against the risk of unfair prejudice (and any other
pertinent Rule 403 factor).” U.S. v. Gabe, 237
F.3d 954, 959 (8th Cir. 2001) (citations omitted). To the
extent that Rule 414 evidence “tends to prove [a
defendant's] propensity to molest young children, ”
that is not unfairly prejudicial. Id. (holding that
because evidence of prior abuse was similar to the acts
charged, it was not so inflammatory that it unduly diverted
attention from the issues of the case).
the Government offers Rule 404(b) of the Federal Rules of
Evidence as grounds for the admission of the evidence
relating to M.B. Rule 404(b) permits the admission of
evidence of a crime, wrongful act, or other act to prove
“motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident.” Fed.R.Evid. 404(b)(2). Evidence is
admissible under Rule 404(b) if it is “(1) relevant to
a material issue, such as knowledge, (2) proved by a
preponderance of the evidence, (3) greater in probative value
than prejudicial effect, and (4) similar in kind and close in
time to the charged offense.” U.S. v. Moberg,
888 F.3d 966, 970 (8th Cir. 2018) (quoting U.S. v.
Jones, 255 F.3d 916, 919 (8th Cir. 2001)) (internal
quotation marks omitted).
Vance conceded at the pre-trial hearing that his mirandized
interview with investigative agents is admissible at trial.
The Court has reviewed the entire transcript of those
admissions (Exhibit 1) and must now weigh the probative and
prejudicial value of the other evidence to which Mr. Vance
Mr. Vance's admissions in mind, the Court concludes that
M.B.'s live testimony at trial and the Facebook messages
between M.B. and Mr. Vance are admissible under both Rules
414 and 404(b). After comparing the Facebook messages
(Exhibits 2 and 3), the Court concludes that Mr. Vance
requested M.B. to send him sexually explicit images of M.B.
and a 5-year old in a manner that is very similar to Mr.
Vance's charged conduct. Specifically, Mr. Vance
contacted both L.P. and M.B. over the same social media
platform and sought to persuade them-repeatedly-to send him
sexually explicit photographs. Further, the communications
that the Government seeks to introduce between Mr. Vance and
M.B. occurred only approximately six months after the charged
conduct. The case law is clear that an inference of
propensity to commit sexual crimes against a child is not, by
itself, “unfairly prejudicial” under Rule 414.
Gabe, 237 F.3d at 959. Given the similarities and
temporal proximity between Mr. Vance's charged conduct
and his communications with M.B., the Court concludes that
Mr. Vance's messages between himself and M.B. are not
“unfairly prejudicial, ” and therefore such
evidence is admissible under Rule 414. Similarly, the Court
finds that M.B.'s live testimony, while undoubtedly
prejudicial to Mr. Vance, will illustrate the similarities
between Mr. Vance's conduct toward her and his enticement
of L.P. Accordingly, the Court also concludes that M.B.'s
live testimony is not “unfairly prejudicial” and
is admissible under Rule 414.
the Court also concludes that the messages between Mr. Vance
and M.B. and M.B.'s live testimony are admissible under
Rule 404(b). Such evidence is relevant to Mr. Vance's
intent, knowledge, and lack of accident or mistake. See
U.S. v. Riepe, 858 F.3d 522, 560 (8th Cir. 2017)
(holding that defendant's prior contact with minors was
admissible under Rule 404(b) because such evidence “was
unquestionably relevant to his planning, his knowledge, and
his preparation for his later contact with [the
Mr. Vance's interview by law enforcement (Exhibit 1)
suggests that he initially minimized his knowledge and
intentions with respect to his online communications with
L.P. Likewise, Mr. Vance shrouded his request for an explicit
image from L.P. by using a euphemism (“peach”) to
describe her vagina. This leaves room for Mr. Vance to argue
at trial that L.P. misinterpreted his intentions. The Court
finds Mr. Vance's Facebook communications with M.B., as
well as M.B.'s proposed testimony, to be very relevant
and highly probative as to not only Mr. Vance's true
intentions, but also whether L.P. was mistaken in her
interpretation of Mr. Vance's requests. And while such
evidence is prejudicial to Mr. Vance, its probative
value--especially considering its similarities and temporal
proximity to the charged conduct--outweighs its prejudicial
effect because it goes to the core of the central fact issue:
Did Mr. Vance knowingly act with the purpose to entice L.P.
to send him sexually explicit photographs. Thus, the Court
concludes that the transcript of Mr. Vance's Facebook
messages with M.B. and M.B.'s live testimony are
admissible under Rule 404(b).
the images of M.B. that were sent to Mr. Vance, the Court
concludes that the prejudicial effect of these images so far
outweighs any additional probative value that they are
inadmissible under either Rule 414 or 404(b). First, Mr.
Vance's admissions and the other evidence just discussed
will lessen the probative value of the images. Furthermore,
the Court has reviewed the photographs of M.B. and her 5-year
old relative and concludes that they will inevitably inflame
the jury and unfairly prejudice Mr. Vance. Indeed, by
comparison, the Court concludes that the photographs of M.B.
are an order of magnitude more offensive than the photographs
of L.P. The Court does not believe that a limiting
instruction would dampen the prejudicial effect. Accordingly,
the Court will not permit the Government to introduce the
photographs of M.B. that are contained within the Facebook
messages between Mr. Vance and M.B.