UNITED STATES OF AMERICA v. CARL A. COURTRIGHT, No. 09-2880.

Carl Courtright was convicted of production, possession, and receipt of child pornography and sentenced to life plus ten years in prison. Courtright now appeals his conviction, claiming that evidence of a prior sexual assault was erroneously admitted at trial. While we agree that the evidence of Courtright’s prior sexual assault was admitted erroneously,reversal is unnecessary because these errors were harmless. As such, we affirm Courtright’s conviction.

Courtright fashions himself as something of an amateur photographer. Unfortunately, the subjects of his photographs are underage girls engaged in various sexual activities.

In 2007, the Illinois Attorney General began a probe of social networking sites to determine whether registered sex offenders were active users. This investigation revealed that Courtright had an account on Myspace.com.  Officers used this information to obtain a warrant to search Courtright’s residence, where he lived with his parents.

A detailed analysis of the computers seized from Courtright’s home revealed a large inventory of images depicting child pornography, many of which were not deleted.

On February 18, 2009, Courtright was charged with one count of production of child pornography, two counts of possession of child pornography, one count of receipt of child pornography, and one count of bank fraud. Prior to trial, the government filed a notice indicating that it planned to introduce evidence of Courtright’s prior sexual assault.

But Courtright objected to the admission of his prior sexual assault. The district court ultimately agreed with the government and, after determining that the evidence was relevant and not unduly prejudicial, admitted it pursuant to Rule 413.

A.  Prior Bad Act.

Courtright’s first claim is that the district court erred when it admitted evidence of his prior sexual assault. We review a district court’s interpretation of the rules of evidence de novo and its decision to admit evidence for an abuse of discretion, United States v. Rogers, 587 F.3d 816, 819 (7th Cir. 2009),mindful that evidentiary errors do not require reversal if they were harmless, United States v. Taylor, 604 F.3d 1011, 1016 (7th Cir. 2010).

The district court admitted the prior sexual assault pursuant to Federal Rule of Evidence 413. Rule 413 provides, in relevant part:  “In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.”

The district court interpreted the word “accused” broadly, holding that Rule 413 is triggered when a defendant has been verbally accused of sexual assault during the course of an investigation into a separate offense.

We do not agree with the district court’s reading of Rule 413. The district court’s interpretation was based on the fact that Rule 413 uses the word “accused” instead of “charged” to indicate when it is triggered.

To start, at the time Rule 413 was drafted (and today), the word “accused” was often used in a technical sense to describe someone who was charged with a crime. See Black’s Law Dictionary 22-23 (6th ed. 1990) (defining “accuse” as “to bring a formal charge against a person”); There is nothing in the text or committee notes of Rule 413 to indicate that the word “accused” was used in a broader fashion.

We therefore conclude that Rule 413 uses the term “accused” in the more narrow, technical sense generally invoked throughout the federal rules.

So we are left with the district court’s admission of evidence pursuant to an erroneous interpretation of Rule 413. “[A]n error of law is, by definition, an abuse of discretion.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). But this error would be harmless, and no new trial would be necessary, if the evidence was admissible under another rule. United States v. Albiola, 624 F.3d 431, 437 (7th Cir. 2010).

The government argues that the error was harmless because the evidence was also admissible pursuant to Rule 404(b).  Evidence is admissible under Rule 404(b) if:

(1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the evidence has probative value that is not substantially out-weighed by the danger of unfair prejudice.

Unlike a prejudice analysis for Rule 413, a Rule 404(b) prejudice determination also evaluates whether the evidence will be improperly used by the jury as proof of propensity.  In sex crimes, motive and propensity often dovetail, and a court must be careful “about admitting under the rubric of motive evidence that the jury is likely to use instead as a basis for inferring the defendant’s propensity.”  United States v. Cunningham, 103 F.3d 553, 557 (7th Cir. 1996).

The government does not address this propensity problem in its brief, and “we are not in the business of formulating arguments for the parties.” United States v. McClellan, 165 F.3d 535, 550 (7th Cir. 1999). Accordingly, the government’s Rule 404(b) argument is incomplete and waived.

But even assuming the prior bad act evidence was not admissible, reversal is unnecessary if the error had no effect on the outcome of the trial. United States v. Conner, 583 F.3d 1011, 1025 (7th Cir. 2009). We are convinced that is the case here.

Courtright’s status as a sex offender was already before the jury, and thus the likelihood that the prior bad act testimony from L. Miller had any effect on the jury is negligible. More importantly, the evidence of Courtright’s guilt was overwhelming.

For the foregoing reasons, we AFFIRM Courtright’s conviction.

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