Appellant was found guilty of production of child pornography and making a false statement to the FBI. He argues on appeal, that the Judge erred in denying his presentation of a mistake of age defense, as well as the introduction of certain 404 evidence. (He raises issues of involuntary statements and improper sentence enhancement, but they are not relevant for discussion here).
Attack on Mistake of Age Defense: Appellant wanted to present a mistake of age defense regarding the minor he recorded himself having intercourse with. Specifically he wanted to introduce the following facts: she was addicted to crack cocaine, working as a prostitute, and not living with her parents. The inference being that he did not know she was a minor.
Appellant was charged under 18 U.S.C. 2251(a) which states “Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e)…”. This paragraph requires no mens rea, therefore the Judge denied the presentation of the defense.
Standard of Review/ Law: “[W]e review a district court’s determination of the availability of a defense under a statute de novo.” United States v. Preacher, 631 F.3d 1201, 1203 (11th Cir.2011). Although a defendant has a constitutional right to present a defense, he must still comply with the rules of evidence, and is not entitled “to place before the jury irrelevant or otherwise inadmissible evidence.” United States v. Anderson, 872 F.2d 1508, 1519 (11th Cir.1989). “Irrelevant evidence is not admissible,” Fed.R.Evid. 402
In United States v. Deverso, 518 F.3d 1250 (11th Cir.2008), the defendant appealed the district court’s refusal to instruct the jury on a mistake of age defense in regard to the charge under § 2251(c) that he had used “a minor to engage in sexually explicit conduct outside of the United States.” Id. at 1257. We held knowledge of the victim’s age is not an element of § 2251 and “the Constitution does not mandate a mistake of age defense under § 2251.” Id. at 1257–58.”
Holding: Because knowledge of the victim’s age is not an element of the offense with which [appellant] was charged, evidence relating to his perception of the victim’s age was irrelevant. The district court did not err in prohibiting [appellant] from placing irrelevant evidence before the jury. See Fed.R.Evid. 402.
Attack on Admission of 404 Evidence: At trial the Government admitted video evidence of appellant having sexual intercourse with adult women. The video tapes show appellant setting up the camera in preparation to record (knowledge, absence of mistake), as well as his identity. Appellant argued on appeal that the Judge should have excluded them under F.R.E. 403 grounds.
Standard of Review/Law: Evidentiary rulings are reviewed for an abuse of discretion. “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of … unfair prejudice.” Fed.R.Evid. 403. “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed.R.Evid. 404(b)(1). Such evidence is admissible, however, for other purposes, such as to show “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). Evidence is properly admitted under Rule 404(b) if: (1) it is “relevant to an issue other than the defendant’s character;” (2) there is sufficient proof that the defendant committed the act; and (3) undue prejudice from the evidence will not substantially outweigh the probative value of the evidence, and the evidence otherwise meets the requirements of Rule 403. United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir.2003) (quotation omitted).
Holding: In upholding the trial Judge’s ruling, the court went on to state that exclusion under F.R.E. 403 is an “extraordinary remedy” and the balance should be struck in favor of admissibility. My favorite language from this case is “the prosecution need not be deprived of its most probative evidence simply because the nature of the crime and the evidence of the crime are emotionally charged, particularly where the district court provided limiting instructions…”