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United States v. Curtin

December 4, 2009

UNITED STATES OF AMERICA PLAINTIFF-APPELLEE,
v.
KEVIN ERIC CURTIN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding D.C. No. 2:04-cr-00064-KJD-PAL-1.

The opinion of the court was delivered by: Trott, Circuit Judge

FOR PUBLICATION

Submitted November 25, 2009*fn1

Before: J. Clifford Wallace, Stephen S. Trott, and Pamela Ann Rymer, Circuit Judges.

OPINION

Kevin Eric Curtin stands convicted by a jury of (1) travel with intent to engage in a sexual act with a juvenile, in violation of 18 U.S.C. § 2423(b), and (2) one count of coercion and enticement, in violation of 18 U.S.C. §§ 2422(b) and 3583(k). He appeals, alleging (1) errors in the admission and exclusion of evidence regarding his intent, and (2) the imposition of a vindictive sentence of lifetime supervised release. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

I.

This is the second time Curtin has been convicted of these charges. Our court sitting en banc reversed his first conviction because of the improper admission against him of evidence of salacious stories involving adult sexual misbehavior with juveniles. Investigators found these stories at the time of his arrest on his electronic personal digital assistant, or "PDA." We remanded for a new trial. United States v. Curtin, 489 F.3d 935 (9th Cir. 2007) (en banc).*fn2 The judge who conducted the first trial recused himself, and a new judge presided over the proceedings which now bring Curtin to us on a new record. Curtin concedes that his retrial complied with our en banc court's instructions with respect to the admission of only one redacted story found on his PDA.

II.

The facts underlying these charges are well arrayed in our en banc opinion, id. at 937-38, and need not be repeated here. Suffice it to say that the charges Curtin faced were the result of a government initiated sting operation designed to identify adults trolling sexually for juveniles using the Internet. His only defense was that he had no intent to engage an underage female in a sexual encounter. He asserted that his "role-playing" plan was only to meet an adult pretending to be a child for that purpose.

III.

We review a court's decision to admit or to exclude evidence, including expert opinion testimony, for an abuse of discretion. Our standard of review covering allegations of the imposition of a vindictive sentence following a retrial is de novo. United States v. Garcia-Guizar, 234 F.3d 483, 489 & n.2 (9th Cir. 2000).

IV.

As part of the government's case, the court admitted only one carefully redacted story from Curtin's PDA entitled "Melanie's Busy Day, An Erotic Story." This story explicitly described ...


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