United States v. Richard Carino , 368 F. App'x 929 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 11, 2010
No. 08-16887 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00234-CR-T-17-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD CARINO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 11, 2010)
Before EDMONDSON, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
Richard Carino appeals his convictions for possessing and receiving visual
depictions of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and
(a)(4)(B). He raises one issue on appeal. Carino, who was 48 years old at the time
of trial, contends that the district court failed to conduct a Rule 403 balancing
before admitting his sister’s testimony that he sexually molested her when he was
16 and she was 11.
We review the district court’s evidentiary rulings for an abuse of discretion.
United States v. Breitweiser, 357 F.3d 1249, 1254 (11th Cir. 2004). Generally,
“propensity” evidence is inadmissible. See Fed.R.Evid. 404(b) (“Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order
to show action in conformity therewith.”). An exception exists, however, for
“child molestation” cases. Fed.R.Evid. 414(a) provides:
In a criminal case in which the defendant is accused of an
offense of child molestation, evidence of the defendant’s
commission of another offense or offenses of child
molestation is admissible, and may be considered for its
bearing on any matter to which it is relevant.
Rule 414(d)(2) provides that an “offense of child molestation” includes possession
of visual depictions of child pornography, in violation of 18 U.S.C.
§ 2252(a)(4)(B), and receiving visual depictions of child pornography, in violation
of 18 U.S.C. § 2252(a)(2), both of which are offenses within Chapter 110 of Title
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18. It follows that in prosecutions for possession or receiving child pornography
evidence that a defendant has engaged in child molestation in the past is admissible
as evidence that he is more likely to have committed the offense charged. See
Fed.R.Evid. 414(a).
Evidence admissible under Rule 414 must also meet the requirements of
other provisions of the Federal Rules of Evidence, including Rule 403. While we
have not addressed the issue of whether Rule 403 applies to Rule 414, other
circuits have held that Rule 403 applies to Rule 414. See United States v. Kelly,
510 F.3d 433 (4th Cir. 2007); United States v. Stout, 509 F.3d 796 (6th Cir. 2007);
United States v. Hawpetoss, 478 F.3d 820 (7th Cir. 2007); United States v.
LeCompte, 131 F.3d 767 (8th Cir. 1997); United States v. LeMay, 260 F.3d 1018(9th Cir. 2001); United States v. Castillo, 140 F.3d 874 (10th Cir. 1998). Those
circuits vary some in their views about the factors to be considered under Rule 403
before admitting evidence pursuant to Rule 414. See generally Kelly, 510 F.3d at437 n.3 (discussing differing views of various circuits). But we do not have to
choose between those views in this case, because Carino challenges only whether
the district court considered Rule 403 at all.
Contrary to Carino’s position, the district court did consider Rule 403 and
did undertake the balancing required by that rule before admitting Carino’s sister’s
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testimony under Rule 414. Both the government and Carino, on multiple
occasions, argued about how the court should balance the testimony’s probative
value with its prejudicial impact. In its trial brief, the government argued that the
court must “balance [the] probative value against the risk of unfair prejudice and
any other pertinent Rule 403 factor.” In making that argument, the government
acknowledged the prejudicial nature of the evidence but contended that it was not
unfairly prejudicial. Before his sister testified, Carino, citing Kelly, argued that for
a similar act to be admitted, the act must still pass a “a 403 balancing test.” He
cited to the court the factors that the Fourth Circuit had considered in Kelly and he
contended that under this “Rule 403 balancing as to similarity and time alone that
the allegations of [his sister] are not admissible. . . .” Further, while discussing
proposed jury instructions, Carino admitted “that the Court had considered the
factors of 403 in admitting [the testimony] just as it would consider the factors in
admitting something under 404(b).”
It is clear to us from the record that in deciding to admit the testimony of
Carino’s sister, the district court undertook the Rule 403 inquiry and considered
each parties’ arguments as to the testimony’s probative value and prejudicial
impact.
AFFIRMED.
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