United States v. Reginald Hough ( 2010 )

                                 File Name: 10a0425n.06
                                                 No. 08-6113
                                UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT                                   FILED
                                                                                          Jul 13, 2010
    UNITED STATES OF AMERICA,                                                      LEONARD GREEN, Clerk
    v.                                                           ON APPEAL FROM THE
                                                                 UNITED STATES DISTRICT
    REGINALD HOUGH,                                              COURT FOR THE WESTERN
                                                                 DISTRICT OF KENTUCKY
    Before:          BOGGS and MOORE, Circuit Judges; and COLLIER, Chief District Judge.*
              CURTIS L. COLLIER, Chief District Judge. The United States filed this interlocutory
    appeal of the district court’s order excluding evidence of prior child molestations. Because the
    district court did not abuse its discretion, the ruling is affirmed.
              In 2005, the then-wife of Defendant-Appellee Reginald Hough (“Hough”) contacted the
    Louisville, Kentucky, Police Department’s “Crimes Against Children Unit” to report finding child
    pornography on her husband’s computer. Hough was arrested on state charges of possession of child
    pornography and failing to register as a sex offender. Hough was later charged in federal court with
    attempting to receive child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), (b)(1), and
    knowingly possessing child pornography in violation of § 2252A(a)(5)(B), (b)(2).
              The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern
    District of Tennessee, sitting by designation.
    No. 08-6113
    United States v. Hough
           Hough had a prior 1992 criminal conviction in New York state court for two counts of first-
    degree sodomy and two counts of first-degree sexual abuse of a 10-year-old girl, T.M.L. Hough also
    had a civil default judgment against him for the sexual abuse of his niece, E.A.H., who was under
    the age of fourteen at the time of the abuse, from 1977 through 1985. While Hough was out on bond
    from the Kentucky state charges, a ten-year-old female neighbor, A.N.S., told her mother Hough had
    fondled her on at least three occasions in late 2005 and early 2006. In the spring of 2006, Hough’s
    step-granddaughter, K.E., reported that Hough had fondled her genitals. Prior to trial, the
    Government filed notice of its intent to use these incidents as “other acts” evidence against Hough
    under Federal Rules of Evidence 404 and 414.
           The district court held a hearing and determined, pursuant to Evidence Rule 403, that the
    Government could not introduce evidence of the two reports of child molestation for any purpose
    and could not introduce evidence of a criminal conviction for child molestation and the civil
    judgment for child molestation in its case in chief, but could renew a motion to admit this evidence
    in rebuttal if Hough’s defense made the evidence relevant. The Government appealed pursuant to
    18 U.S.C. § 3731.
    I.     Standard of Review
           Evidentiary rulings are reviewed under the abuse-of-discretion standard. United States v.
    557 F.3d 243
    , 249 (6th Cir. 2009). In reviewing a district court’s Rule 403 determination,
    the circuit court must give “the evidence its maximum reasonable probative force and its minimum
    reasonable prejudicial value.” United States v. Schrock, 
    855 F.2d 327
    , 333 (6th Cir. 1988); see also
    No. 08-6113
    United States v. Hough
    United States v. Logan, 
    250 F.3d 350
    , 368 (6th Cir. 2001) (citing United States v. Sanders, 
    95 F.3d 449
     (6th Cir. 1996)).
    II.    Analysis
           The evidence is admissible under Rule 414. Therefore, the only issue on appeal is whether
    the district court erred in excluding the evidence under Rule 403. “Rule 403, which balances the
    probative value of relevant evidence against the ‘danger of unfair prejudice, confusion of the issues,
    or misleading the jury,’ applies to evidence that would otherwise be admissible” under Rule 414.
    United States v. Seymour, 
    468 F.3d 378
    , 385 (6th Cir. 2006); Fed. R. Evid. 414(c) (“This rule shall
    not be construed to limit the admission or consideration of evidence under any other rule.”).
           The district court evaluated the probative value of the other acts by looking at the purpose
    for which the other acts evidence was admitted and the similarity between the other acts and the
    instant offense. The court acknowledged that the Government had to prove knowing possession of
    child pornography and stated a person who previously demonstrated a sexual interest in children was
    more likely to knowingly receive the images than if he had not so demonstrated. The court then
    looked at the similarities between the charged conduct and the other acts. All acts involved
    prepubescent girls and sexual abuse. In addition, sodomy was involved in at least the 1992
    conviction and images of sodomy were found on the computer. The victims of the other acts were
    a niece, a neighbor, a step-granddaughter, and a girl who called Hough “uncle,” and Hough’s
    computer allegedly showed searches for incest and child pornography. The images showed children
    No. 08-6113
    United States v. Hough
    performing oral sex on an adult man, which was part of Hough’s criminal conviction and civil
           As we held in Hall, prior molestations create the logical inference the defendant “has a sexual
    interest in children that is strong enough to cause him to break the law.” United States v. Hall, 
    202 F.3d 270
     (6th Cir. 2000) (table) (evaluating probative value under Rule 404(b)). Giving the evidence
    its maximum probative value, the other acts show a sexual interest in prepubescent girls, with a
    particular interest in incest, sodomy, and oral sex. This interest is minimally probative as to Hough’s
    propensity to receive child pornography, although the inference is weaker than it would be in a case
    where the other acts included receiving pornography. United States v. Stout, 
    509 F.3d 796
    , 800 (6th
    Cir. 2007) (finding, under Rule 404(b), evidence that the defendant surreptitiously filmed 14-year-
    old girl in the shower was probative of his intent to receive child pornography, where the government
    had only slight evidence otherwise demonstrating intent, but ultimately affirming the exclusion of
    the evidence because the danger the jury would use it as propensity evidence created an unfair
    prejudice); Hall, 202 F.3d at 270 (allowing the introduction of nude photographs under Rule 404(b)
    to demonstrate intent to knowingly receive child pornography). To some degree, evidence of
    Hough’s molestations of the four girls makes it more likely he would download child pornography.
    In addition, it is a logical inference that Hough’s preferences for incest, sodomy, oral sex, and
    prepubescent girls would translate from his actions in the molestations to the images and searches
    for child pornography, indicating it was Hough who downloaded the images.
           There are distinct dissimilarities, however, including the fact that the other acts involved
    physical contact, with no allegations of any documentation such as pictures or videos, whereas the
    No. 08-6113
    United States v. Hough
    charged offense is possession and attempted receipt of child pornography. A propensity to sexually
    abuse a child does not directly translate to a propensity to download child pornography. In addition,
    while the Government asserts that Hough’s computer shows searches for incest and child
    pornography, only one of Hough’s victims was related to him by blood. Two were close enough to
    consider him a relative (T.M.L. called Hough “uncle” and K.E. was a step-granddaughter) and one
    was a neighbor. Even giving the evidence its maximum probative value, the other acts are weak
    evidence of Hough’s identity and propensity to download child pornography.
           The district court properly concluded the Government did not have a strong need for this
    evidence. See Stout, 509 F.3d at 800 (“Probative value and need for the evidence are separate
    considerations that weigh in favor of admission under the Rule 403 balancing test.”). At the hearing,
    the Government stated that Hough had made admissions showing his knowledge and intent. Given
    the direct evidence of knowledge and intent, and the admissions by Hough, which would also be
    relevant as to identity, the Government’s need for the evidence is not great.
           The district court found that the other acts evidence would unfairly prejudice Hough. The
    latest allegations of child molestations were unproven and would be shown through the testimony
    of the victims. The district court determined this would not only reduce the probative value of the
    evidence, but would also confuse the jury and could “turn the focus of the trial from the current
    charges to [Hough’s] prior acts, especially with respect to the allegations of abuse that occurred in
    recent years and the testimony by those victims who are still children.” The court also found a
    limiting instruction to the jury would be insufficient to limit the danger of unfair prejudice from the
    “inflammatory” prior acts evidence.
    No. 08-6113
    United States v. Hough
           As in Stout, the evidence of prior acts is “more lurid and frankly more interesting than the
    evidence surrounding the actual charges” and there is a danger the jury would pay undue attention
    to proof of the prior acts. 509 F.3d at 801 (quoting the district court’s opinion) (internal quotation
    marks omitted). As the district court noted at the hearing, “proving that [the allegations as to A.N.S.
    and K.E.] actually occurred would make this case derail into a mini-trial into each of those, would
    inflame the jury, [and] confuse the jury.”
           The testimony regarding the alleged molestations of E.A.H., A.N.S., and K.E. would distract
    the jury from the evidence on the actual charges and could create unfair prejudice by inflaming the
    jury and possibly leading to a decision to convict Hough for his prior acts and not because the
    evidence, propensity or otherwise, demonstrated he knowingly possessed and attempted to receive
    child pornography. Even if the testimony from the three victims did not lead to rebuttal witnesses,
    the evidence would take a substantial amount of time in what would otherwise be a two- to- three-
    day trial, further leading the jury to place undue emphasis on the other acts. A limiting instruction
    would minimize the risk of unfair prejudice, but would not eliminate the danger of unfair prejudice
    from the inflammatory testimony about child molestations.
           The district court did not abuse its discretion in determining the proposed other acts evidence
    was minimally probative, the Government had less-prejudicial evidence, the other acts evidence was
    unfairly prejudicial, and a limiting instruction would not cure the unfair prejudice to Hough.
    III.   Conclusion
           For these reasons, the decision of the district court is affirmed.