UNITED STATES of America, Plaintiff-Appellee, v. Mark E. JOHNSON, Defendant-Appellant

132 F.3d 1279, 48 Fed. R. Serv. 562, 97 Daily Journal DAR 15573, 97 Cal. Daily Op. Serv. 9701, 1997 U.S. App. LEXIS 36279, 1997 WL 790076
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 29, 1997
Docket96-10575
StatusPublished
Cited by117 cases

This text of 132 F.3d 1279 (UNITED STATES of America, Plaintiff-Appellee, v. Mark E. JOHNSON, Defendant-Appellant) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
UNITED STATES of America, Plaintiff-Appellee, v. Mark E. JOHNSON, Defendant-Appellant, 132 F.3d 1279, 48 Fed. R. Serv. 562, 97 Daily Journal DAR 15573, 97 Cal. Daily Op. Serv. 9701, 1997 U.S. App. LEXIS 36279, 1997 WL 790076 (9th Cir. 1997).

Opinion

CYNTHIA HOLCOMB HALL, Circuit Judge:

Mark E. Johnson appeals his conviction and sentence for two counts of-transportation of a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). Johnson also appeals the district court’s restitution order following his guilty plea on one count of fraud in connection with access devices, in violation of 18 U.S.C. § 1029(a)(1), and one count of wire fraud, in violation of 18 U.S.C. § 1343.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and this court has jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

BACKGROUND

On August 13, 1993, Johnson contacted Rena Dankin, a regional coordinator for the Education Foundation, about serving as a host parent for a foreign exchange student. He told Dankin that he was interested in hosting a “Nordic boy” and arranged to have a seventeen-year-old Norwegian student, who was originally to have been placed , in Minnesota, assigned to his California home. The Education Foundation informed the minor of the change in destination the night before he was to leave Norway, and he revised his travel plans accordingly.

The Norwegian minor arrived in the United States on August 17, 1993. He testified that less than one week after moving into Johnson’s home, Johnson started discussing sexual matters with him. Approximately one *1282 week later, the talk turned to homosexual matters. The sexual nature of Johnson’s conduct soon became physical, advancing over several weeks from a back rub to mutual masturbation to oral copulation to sodomy. Johnson told the minor not to discuss their sexual contact with anyone. In October 1993, the minor transferred to a new host family. Police later contacted the minor in the course'of investigating a computer crime case in which Johnson was allegedly involved, and the minor told police what had transpired between himself and Johnson.

Johnson was indicted on July 20, 1995, and charged in a 115 count indictment. Counts one and two, which were severed from the rest, charged transportation of a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). The other 113 counts charged fraud in connection with access devices, wire fraud, and fraud and related activities in connection with computers, in violation of 18 U.S.C. §§ 1029(a)(1), 1343, and 1030(a)(6)(A), respectively. These charges arose from Johnson’s alleged use of fictitious names and credit' card numbers to gain access to the Prodigy computer network and to order goods and services therefrom.

Johnson was convicted on the § 2423(a) counts following a four-day jury trial. In exchange for Johnson’s plea of guilty to one count of fraud in connection with access devices and one count of wire fraud, the government dismissed the other 111 counts. Johnson was sentenced to two concurrent terms of fifty-seven months in custody and to thirty-six months supervised release, and ordered to pay $5,408.58 in restitution to Prodigy Services, Inc. and a $200.00 special assessment.

DISCUSSION

I

The first issue on appeal concerns whether the district court erred in admitting prior bad act evidence at Johnson’s trial on the § 2423(a) charges. Two witnesses testified about sexual contact in which Johnson

had engaged them approximately thirteen years earlier, when each witness was in his teens. We review for abuse of discretion the district court’s decision to admit this evidence of prior bad conduct. See United States v. Hinton, 31 F.3d 817, 822 (9th Cir. 1994); United States v. Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir.1993).

Rule 404(b) of the Federal Rules of Evidence precludes the admission of prior bad act evidence offered only to show criminal propensity. So long as the evidence is offered for a proper purpose, such as to prove intent, the district court is accorded wide discretion in deciding whether to admit the evidence, and the test for admissibility is one of relevance. See Huddleston v. United States, 485 U.S. 681, 687-88, 108 S.Ct. 1496, 1499-500, 99 L.Ed.2d 771 (1988); United States v. Hadley, 918 F.2d 848, 850 (9th Cir.1990). To be probative of something other than criminal propensity, the prior bad act evidence must: (1) prove a material element of the crime currently charged; (2) show similarity between the past and charged conduct; (3) be based on sufficient evidence; and (4) not be too remote in time. Hinton, 31 F.3d at 822. Once relevance is established, the district court should admit the evidence unless its prejudicial impact substantially outweighs its probative value. See United States v. Boise, 916 F.2d 497, 502-03 (9th Cir.1990).

Here all four Rule 404(b) criteria are satisfied. Intent is plainly an element of transporting a minor with intent to engage in criminal sexual activity under 18 U.S.C. § 2423(a), and the testimony of both prior bad act witnesses was relevant to prove Johnson’s intent to engage in unlawful sexual activity with the Norwegian minor. 1 Johnson does not dispute the relevance of the testimony for this purpose but instead argues that the intent required by § 2423(a) is intent to transport, not intent to engage in illegal sexual conduct. This argument is belied by the language of § 2423(a), which speaks of transporting a minor “with intent that such individual engage in ... any sexual *1283 activity for .which any person can be charged with a criminal offense.”

The second Rule 404(b) criterion, which requires sufficient similarity between the past conduct and the conduct charged, is also satisfied. Johnson’s past conduct need not be identical to the conduct charged, but instead need only be similar enough to be probative of intent. See United States v. DeSalvo,

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132 F.3d 1279, 48 Fed. R. Serv. 562, 97 Daily Journal DAR 15573, 97 Cal. Daily Op. Serv. 9701, 1997 U.S. App. LEXIS 36279, 1997 WL 790076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-of-america-plaintiff-appellee-v-mark-e-johnson-ca9-1997.