and Submitted August 7, 2019 Anchorage, Alaska
from the United States District Court for the District of
Alaska Timothy M. Burgess, Chief District Judge, Presiding
D.C. No. 1:16-cr-00008-TMB
J. Mondou (argued), Marana, Arizona, for Defendant-Appellant.
J. Klugman (argued) and Jack S. Schmidt, Assistant United
States Attorneys, United States Attorney's Office,
Anchorage, Alaska, for Plaintiff-Appellee.
Before: Richard C. Tallman, Sandra S. Ikuta, and N. Randy
Smith, Circuit Judges.
a conviction for receipt of child pornography, the panel held
that the district court did not abuse its discretion when it
admitted evidence of the defendant's prior Alaska state
conviction for sexual abuse of a minor in the second degree.
panel held that the prior conviction was within the scope of
Fed.R.Evid. 414 because (1) the term "child
molestation" encompasses both the crime for which the
defendant was previously convicted and the present charge of
receiving/possessing child pornography, and (2) the prior
conviction was relevant as it tended to prove the
defendant's sexual interest in children and that he used
the terms on a handwritten list to knowingly receive the
the balancing test of Fed.R.Evid. 403 to the Rule 414
evidence, and the factors set forth in United States v.
LeMay, 260 F.3d 1018 (9th Cir. 2001), the panel held
that the probative value of the prior conviction was not
substantially outweighed by its unfair prejudice. With regard
to the district court's finding that the prior conviction
was helpful/practically necessary to the government's
case, the panel held that the district court did not err in
rendering this evidentiary decision before all testimony had
been presented at trial.
Concurring, Judge N.R. Smith wrote that the district court
and the majority ignored the plain language in LeMay
requiring trial judges to reserve judgment as to the
necessity of the proffered evidence until after the other
testimony has been offered, but that the error is harmless.
TALLMAN, Circuit Judge.
Thornhill appeals his jury conviction for receipt of child
pornography in violation of 18 U.S.C. §§ 2252(a)(2)
and (b)(1). The question before us is whether the district
court abused its discretion when it admitted evidence of
Thornhill's prior Alaska state conviction for sexual
abuse of a minor in the second degree. We conclude that it
did not, and we affirm.
October 2015, the FBI received a "report of harm"
related to a graphic voicemail left on a dating site, which
indicated that the caller was sexually abusing a 10-year-old
girl. The FBI traced the call to a cannery in Juneau, Alaska.
cannery, Special Agent Anthony Peterson ("Agent
Peterson") played the voicemail to other employees, who
identified the voice as Thornhill's. Employees later
found a Nokia cell phone at Thornhill's desk, along with
handwritten lists of graphic search terms commonly associated
with child pornography. Agent Peterson subsequently
interviewed Thornhill and obtained a search warrant for the
items found at his work desk. Forensic analysis of the phone
ultimately revealed that over 100 images of child pornography
were received and stored in various file paths on the phone
between November 3, 2014, and December 25, 2014.
was indicted on April 20, 2016, for one count of receipt of
child pornography, in violation of 18 U.S.C. §§
2252(a)(2) and (b)(1). Before trial, the government notified
Thornhill that it intended to introduce evidence of his prior
Alaska state conviction for sexual abuse of a minor in the
second degree under Federal Rule of Evidence
("Rule") 414. Thornhill had previously pleaded
guilty and was convicted of sexually abusing his 11-year-old
daughter in February 2008. Details of the offense included
Thornhill inappropriately touching his daughter over and
under her clothing while she was sleeping on several
occasions between 2004 and 2007. The district court initially
"reserve[d] ruling on this motion until after the
Government  introduced its other evidence at trial."
jury selection, the parties agreed to the following
• That each image was produced involving the actual use
of minors engaged in sexually explicit conduct and was
produced outside of the State of Alaska;
• That Thornhill resided at The Glory Hole, a homeless
shelter in Juneau, Alaska, from September 14, 2014, through
February 18, 2015; and
• That Thornhill owned the black Nokia 520 cell phone
and authored the handwritten lists found at his desk.
of these stipulations, many of the witnesses the government
had intended to call were excused from testifying, and, as a
result, the government called only one witness, Agent
Peterson, in the prosecution's case-in-chief.
opening statements, the district court ruled that
Thornhill's prior conviction for sexual abuse of a minor
was admissible applying the factors we articulated in
United States v. LeMay, 260 F.3d 1018 (9th Cir.
Agent Peterson's testimony, the government introduced
Thornhill's prior judgment of conviction, and it was
admitted into evidence. Agent Peterson identified the prior
victim as Thornhill's 11-year-old daughter. Immediately
following the introduction of the prior conviction (and again
at the end of the ...