Full opinion text
WALLACE, Circuit Judge: Curtin appeals from his conviction and sentence for traveling across state lines with intent to engage in a sexual act with a minor, in violation of 18 U.S.C. § 2423(b), and of use of an interstate facility to attempt to persuade a minor to engage in sex, in violation of 18 U.S.C. § 2422(b). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for a new trial. I. On the afternoon of February 11, 2004, Las Vegas Metropolitan Police Department Detective Michael Castaneda was acting undercover on the Internet as a 14-year-old girl using the screen name “chris-tinel3.” Castaneda entered a chat channel labeled “ltgirlsexchat” and received an instant message from Curtin, who used the screen name “M-42SOCAL.” The detective, as “Christy,” and Curtin “chatted” through instant messaging for approximately four hours. They exchanged photos early in the conversation. Castaneda sent Curtin a picture of a female police officer, taken when she was fourteen years old. Curtin said his name was “Kenny” and that he was forty-two years old, divorced, and living in Anaheim, California. He told Christy that he was planning to travel to Las Vegas on Friday, February 13 and invited her to go to a “Penn and Teller” show on Sunday, February 15. Christy agreed. Curtin extensively discussed sex with Christy during this conversation, saying that he would love for her to “spend the night” after the show and hoped to “get a room.” Curtin told Christy “I want to make you happy.... If you were masturbating and fantasizing about sex, I’d love to have sex with you.” He added that they “could just make out or I could just give you oral sex or we could just fool around.” Finally, Curtin made plans to meet Christy in the bowling alley of a Las Vegas casino at 2:00 p.m. on Sunday, February 15. At the end of the conversation, Curtin asked Christy to try sleeping naked that night, and to “imagine my face moving between your legs and licking you. Imagine my tongue penetrating you.” The next day, Curtin sent Christy an email message saying “I can’t tell you how much I’m looking forward to Sunday. We’re going to have a great time.” The detective and Curtin later that day had another “chat” during which Curtin continued to make explicit references to having sex with Christy. Curtin concluded the “chat” by confirming their meeting and telling Christy he would introduce her to Penn and Teller as his niece, adding, “Let’s not get caught, ever.” On that Sunday, the police officer whose picture was sent to Curtin waited in the bowling alley as a decoy, dressed in the clothes that Christy indicated she would be wearing. Eight to ten other law enforcement officers were also present. Curtin entered the bowling alley at 1:45 p.m. and walked towards the area where the decoy officer was sitting. He walked past her and then turned and walked past her again, looking at her each time. Curtin then left the area where the decoy was sitting and went to the back of the bowling alley, where he used his personal digital assistant. At the request of law enforcement officers, a casino security guard approached Curtin and asked for identification. Curtin showed the guard a United States passport and subsequently left the bowling alley area of the casino. Curtin reentered the bowling alley approximately 2:05 p.m. He looked around and again walked to the area where the decoy officer was sitting. After less than a minute, he moved even closer to her, looking in her direction the entire time. He stopped behind the officer and she turned and said “hi” to him. Whether he said “hi” in return is disputed. He then left the bowling alley and started getting into a van, at which point law enforcement officers stopped and asked him for identification. He was detained by police and advised of his rights under Miranda. After Curtin waived these rights, he agreed to speak with the law enforcement officers. In a voluntary statement, he stated that he had traveled by car to Las Vegas for meetings. He explained that he was at the bowling alley to meet a female friend he had met on the internet. He admitted to using the screen name and email address used to contact Christy. Curtin explained that he often enters chat rooms and “role play[s]” as if he is engaged in “daddy/daughter” type conversations, and that he expected Christy to be a thirty- to forty-year-old woman pretending to be a girl. Curtin was then arrested by the Las Vegas police. Upon searching his van and hotel room, police seized his digital assistant and laptop computer. The digital assistant contained over 140 stories about adults having sex with children. The laptop contained a list of chat channels that Curtin had accessed in the past, as well as pictures of girls whose names matched some of those in his “chat” list. Curtin was indicted on one count of travel with intent to engage in a sexual act with a juvenile, in violation of 18 U.S.C. § 2423(b), and one count of coercion and enticement, in violation of 18 U.S.C. § 2422(b). Curtin filed two motions in limine asking the district court to exclude the stories found on his digital assistant from evidence. The district court denied these motions in limine. On the second day of trial, the government offered two of the stories, “My Little Sister” and “Love for the World,” to show modus operandi, intent, preparation, and knowledge. They were admitted over Curtin’s objection. The engineer who extracted the stories from the digital assistant testified that both stories were about a father having sex with his young daughter and the daughter’s enjoyment of the experience. However, when the government sought to introduce a third story, “Melanie’s Busy Day,” the district court stopped the questioning. The court allowed the government to ask general questions without admitting the stories, such as whether they all related to sex between a minor and an adult. However, recognizing the highly prejudicial nature of the stories, the court held that the story could be entered into evidence only if it tied into Curtin’s intent, knowledge, preparation, or modus operan-di. The government then asked the court to make a preliminary legal determination about the admissibility of the remaining stories. The government argued that “Melanie’s Busy Day” was admissible to show general intent, modus operandi, preparation, and knowledge because it had language similar to that used by Curtin in his email to Christy, namely, language concerning oral sex and a child masturbating. The government argued that “Missing Big Brother,” which discussed how the adult did not want to hurt the child during sex, was also admissible for intent, modus oper-andi, preparation, and knowledge. The government made similar arguments with regard to seventeen other stories, with titles such as “I’m Being Molested,” “The Good Girl,” “A Relative Interest,” “Restrictions,” “Teaching the Kids,” and “Mommy Juice.” The following morning, Curtin renewed his objection to the admission of the stories, arguing that they were highly prejudicial and were being admitted to show propensity. The district court held that if the government could cite a part of the story that related to one of the permissible purposes under Federal Rule of Evidence Rule 404(b), then the court would admit the entire story to show general intent. The district court admitted to being unable to read the stories because they were so disturbing. “I thought about this problem overnight because I want to address the relative overwhelming prejudice versus the purpose. I read the first story and a little bit of the second. That’s as far as I could get, which is confirming [defense counsel’s] statement. It has a tendency to overwhelm you and overwhelm the jury.” However, after more argument, the district court agreed to give a limiting instruction and to admit five of the stories: “My Little Sister” (which involved incest and the impregnation of a nine year-old girl), “Love for the World” (which involved incest), “Restrictions” (same), “Daddy’s Lessons” (same), and “Melanie’s Busy Day” (which involved an eleven-year-old girl initiating sex with, among others, her father and her teacher). The limiting instruction given was as follows: A person cannot be charged nor convicted of literature that they read or that they possess. That’s why I’m giving you the instruction. But the Government has the obligation to prove, beyond a reasonable doubt, that the defendant had the wrongful intent. They may offer possession of such literature to show that.... You may take this kind of evidence on the question of whether the defendant actually possessed the intent. You may also take it on the additional questions which go to the question of intent, whether he practiced in this alleged conduct methodology consistent with literature that he had or tending to show that he prepared to commit the acts or that he had knowledge, that is, of how to commit the act or that the act was illegal.... So, for those four reasons, only, the Government is offering to show that the defendant possessed this literature; intent, method, preparation, and knowledge. And you may only take it for that purpose. Again, you have a constitutional right. You have that right. You would want to protect the defendant’s right to possess any kind of literature and to read it or not read it. You must not allow this kind of evidence to bias you, generally, against the defendant on the ultimate question of guilt or innocence. You must not do that. II. Curtin contends that the five stories were inadmissible character evidence, introduced to show propensity in violation of Rule 404(b) of the Federal Rules of Evidence. The government responds that the stories fall outside the parameters of Rule 404(b) because they are inextricably intertwined with the charged crimes. Alternatively, the government argues that the stories were properly admitted under Rule 404(b) to prove Curtin’s intent. A. The government argues that the admitted stories were “inextricably intertwined” with the facts giving rise to the indictment against Curtin and therefore not “other acts” evidence within the scope of Rule 404(b). We review de novo the question of whether the evidence was within the scope of Rule 404(b). See United States v. DeGeorge, 380 F.3d 1203, 1219 (9th Cir.2004). Two categories of evidence may be considered “inextricably intertwined” with a charged offense and therefore admitted without regard to Rule 404(b). First, evidence of prior acts may be admitted if the evidence “constitutes a part of the transaction that serves as the basis for the criminal charge.” DeGeorge, 380 F.3d at 1220, quoting United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012 (9th Cir.1995). In United States v. Montgomery, 384 F.3d 1050, 1062(9th Cir.2004), we held that a government report detailing individual fraudulent acts was “inextricably intertwined” with the underlying conspiracy charge because the acts themselves comprised the conspiracy. Therefore, the report was admissible without regard to Rule 404(b). Similarly, in United States v. Lillard, 354 F.3d 850, 854 (9th Cir.2003), we concluded that the defendant’s theft of cocaine from a shipment, which was itself the basis for the conspiracy, was “inextricably intertwined” with the conspiracy charge. Second, prior act evidence may be admitted without regard to Rule 404(b) “when it [is] necessary to do so in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime.” DeGeorge, 380 F.3d at 1220, quoting Vizcarra-Martinez, 66 F.3d at 1012-13. “A jury is entitled to know the circumstances and background of a criminal charge. It cannot be expected to make its decision in a void — without knowledge of the time, place, and circumstances of the acts which form the basis of the charge.” United States v. Daly, 974 F.2d 1215, 1217(9th Cir.1992), quoting United States v. Moore, 735 F.2d 289, 292 (8th Cir.1984). In United States v. Beck-man, 298 F.3d 788, 794 (9th Cir.2002), the defendant was charged with importing over 1,500 pounds of marijuana. His defense was that he was tricked into transporting the marijuana by the chief government cooperating witness. This witness testified at length about prior drug runs that Beckman had made on his behalf. We held that the witness’s testimony was “inextricably intertwined” with the charged offense, because it was “intended to establish [the witness’s] relationship to Beckman [and] to show that the relationship was ongoing....” Id. The fact that Curtin was in possession of stories detailing sex with children at the time he went to meet “Christy” is insufficient to support the introduction of the stories without regard to Rule 404(b). Curtin was charged with traveling across state lines with intent to engage in a sexual act with a minor, and with attempting to persuade a minor to engage in sex. The possession or content of the stories was not a part of the “transaction” that led to the present charges. Second, the admission of the stories was not required for the prosecution to “offer a coherent story.” The prosecution would have had no difficulty in presenting all relevant evidence, including the “chat” conversations, Cur-tin’s admission that he was “M-42S0CAL,” and Curtin’s behavior at the meeting place, without the admission of the stories. Thus, the stories were not “inextricably intertwined” with the charged crimes. B. In the alternative, the government contends that the stories are admissible under Rule 404(b) regardless of whether they are inextricably intertwined with the crime. We review a district court’s admission of evidence under Rule 404(b) for an abuse of discretion. United States v. Romero, 282 F.3d 683, 688 (9th Cir.2002). We use a four-part test to determine whether evidence is admissible under Rule 404(b). United States v. Spillone, 879 F.2d 514, 518 (9th Cir.1989). First, “there must be sufficient evidence to support the jury’s finding that the defendant committed the other [act].” Id. Second, “the other [act] must not be too remote [in time].” Id. at 519. Third, when admitted to prove intent, “the prior act must be similar.” Id. Finally, “the prior act must be introduced in order to prove a material element of the case.” Id. The main issue here lies in the third element: whether there is similarity between the possession of the stories and the crime with which Curtin is charged. Curtin objected to admission of the stories in the district court, relying on Guam v. Shymanovitz, 157 F.3d 1154(9th Cir. 1998) (as amended). Shymanovitz was a middle-school guidance counselor who was charged with sexually and physically abusing several of the boys under his supervision. Id. at 1155. Prior to trial, the government sought to introduce two magazine articles from sexually explicit magazines found in Shymanovitz’s home, arguing that they were relevant to establishing intent. The articles were both presumably fictional stories. One depicted sex between a father and son, while the other depicted sex between a priest and a child. The court deferred ruling on the motion. At trial, the court permitted a police officer to testify that at Shymanovitz’s house she seized, among other things, condoms, surgical gloves, children’s underwear, and sexually explicit magazines. The officer testified in great detail, over defense counsel’s objections, about the contents of four of these magazines. She told the jury that the magazines contained explicit photographs of homosexual sex and described the photographs and the contents of the two articles in detail. The two articles were subsequently entered into evidence. Id. at 1155. Both Shymanovitz and this appeal address whether the reading material at issue was admissible under Rule 404(b). We concluded in Shymanovitz that the magazine articles failed to constitute a Rule 404(b) “bad act.” “[P]ossession of lawful reading material is simply not the type of conduct contemplated by Rule 404(b).” Id. at 1159. Additionally, we held that possession of lawful reading material was not similar to actual criminal conduct, thus failing the third criterion of the Spillone test. .“[T]here is simply no doubt that a wide gulf separates the act of possessing written descriptions or stories about criminal conduct from the act of committing the offenses described.” Id. On the issue of similarity, Shymanovitz conforms with the rest of our case law. In Vizcarra-Martinez, the defendant was charged with conspiracy to possess a chemical with reason to believe it would be used to make methamphetamine. 66 F.3d at 1009. The district court admitted evidence that Vizcarra-Martinez was in possession of a personal-use amount of methamphetamine at the time of his arrest. We reversed. “We simply cannot assume ... that Vizcarra-Martinez’s use of methamphetamine tended to prove that he knew that the chemical in his possession would be used in the methamphetamine manufacturing process.” Vizcarra-Mar-tinez, 66 F.3d at 1015. The cases in which we have allowed Rule 404(b) evidence show a much stronger connection between the “other act,” which is often a crime in itself, and the charged crime. In United States v. Vo, 413 F.3d 1010, 1018-19 (9th Cir.2005), where the defendant was charged with possession of methamphetamine with intent to distribute, we allowed the admission of a prior conviction for drug selling. “Vo’s prior conviction was evidence of his knowledge of drug trafficking and distribution in general. The conviction tended to show that Vo was familiar with distribution of illegal drugs and that his actions in this case were not an accident or a mistake.” Id. at 1019. Shymanovitz does recognize a narrow exception for “modus operandi” evidence: evidence involving acts by the defendant that are “so nearly identical in method as to ear-mark the charged offense the handiwork of the accused and that are so unusual and distinctive as to be like a signature.” Id. at 1159 n. 9 (internal punctuation and citation omitted). “[U]se of modus operandi evidence is rare, and the similarities must be specific and detailed and clearly set the particular offense apart from the general body of such offenses.” Id. The evidence in this case is not sufficiently detailed and specific to fall within the exception. The stories did not describe specific methods of committing the first offense with which Curtin was charged: traveling across state borders to have sex with a minor. Rather, the stories mostly involved explicit descriptions of incest. Thus, the stories do not reveal a relevant modus operandi to commit the charged crime, and are inadmissible. The issue is closer with regard to the charge of use of an interstate facility to attempt to persuade a minor to engage in sex. The government argued that the language in the stories was similar to the language used by Curtin in his “chat” conversations. We conclude that Shymanovitz forecloses our acceptance of the government’s position. The conduct with which Curtin was charged, and the language that Curtin used, can “hardly be construed as either distinctive or remarkable in the universe of sexual offenses against minors.” Id. Compare United States v. Dhingra, 371 F.3d 557, 566-67 (9th Cir.2004) (as amended) (allowing introduction of Rule 404(b) modus operandi evidence where “[i]n both instances, Dhingra contacted a minor under the age of 18 years over [instant messenger] for the purpose of soliciting sexual activity, arranged to meet, and at the meeting attempted to engage in sexual activity by persuasion and coercion.”). The similarities between the stories and Curtin’s conduct were not distinctive or unusual enough to render the stories admissible as modus operandi evidence. The government relies on United States v. Allen, 341 F.3d 870 (9th Cir.2003), to distinguish Shymanovitz. In Allen, the defendants were charged with violating federally protected rights on the basis of race and religion. We allowed the introduction of “skinhead and white supremacist evidence,” including color photographs of the defendant’s tattoos (e.g., swastikas), Nazi-related literature, group photographs including some of the defendants (e.g., in “Heil Hitler” poses and standing before a swastika that they later set on fire), and other skinhead paraphernalia. Id. at 885-86. We distinguished Shymanovitz: “Key to our reasoning [in Shymanovitz ] was the fact that the testimony ... was not relevant to proving any of the elements of the crime for which the defendant was convicted.... ” Id. at 887 n. 25. The government thus contends that, when read together, “Shymanovitz and Allen stand for the principle that relevant literature is admissible to prove intent.” However, the government’s comparison to Allen does not save the day. First, many of the items admitted into evidence in Allen involved more than the possession of reading material. The defendants were active participants in “Heil Hitler” poses and had posed with and burned a large swastika. Second, unlike in Shymanovitz, there is no indication that the reading material in Allen was fictional. Third, the evidence at issue in this case, and in Shy- manovitz, was extremely prejudicial. Finally, it is possible that the evidence in Allen would have been admissible under the “inextricably intertwined” exception outlined above. Our holding here is controlled by Shymanovitz. The district court committed an abuse of discretion .by admitting the stories. C. The government fails to argue harmless error and thus the issue is ordinarily waived. See United States v. Varela-Rivera, 279 F.3d 1174, 1180 (9th Cir. 2002). We may, however, consider harmlessness sua sponte in “those unusual cases in which the harmlessness of any error is clear beyond serious debate and further proceedings are certain to replicate the original result.” United States v. Gonzalez-Flores, 418 F.3d 1093, 1100 (9th Cir.2005). “[T]he court’s certainty as to the harmlessness of the error ... is of particular importance.” Id. at 1101 (citations omitted). “[E]rror is harmless if we can say with fair assurance that it did not have a substantial effect, injurious to the defendant, on the jury’s decision-making process.” Arnold v. Runnels, 421 F.3d 859, 867 (9th Cir.2005) (citations omitted). Here, we do not have the requisite level of certainty that the error was harmless to consider the issue sua sponte. Most of the sexual activity described in the stories admitted from Curtin’s PDA was incestuous, a particularly prejudicial taboo. The admitted stories were so highly disturbing that even the district court judge stated he was unable to read them. The issue of harmless error is waived. III. Curtin contends in his reply brief that the district court abused its discretion pursuant to Rule 403 by admitting the stories because the probative value of the stories is substantially outweighed by the danger of unfair prejudice to Curtin. However, Curtin did not specifically and distinctly make a Rule 403 argument in his opening brief. “[0]n appeal, arguments not raised by a party in its opening brief are deemed waived.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999) (citation omitted); see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.1994). The argument is waived. In any event, for the same reason we cannot say that the error was harmless, we cannot say that the admission of the materials on Curtin’s PDA was not unduly prejudicial. IY. Curtin argues that the government’s failure to request a copy of the surveillance video from the casino violated due process and entitled him to a spoliation instruction. We disagree. The government’s duty to preserve evidence arises when the evidence “possesses] an exculpatory value that was apparent before the evidence was destroyed, and[is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). “Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). As Curtin failed to show that the video had any exculpatory value, the district court did not abuse its discretion in declining Curtin’s request for a spoliation instruction. Curtin also argues that the district court failed to instruct adequately on what constitutes a substantial step. The district court instructed in accord with the model jury instructions that “mere preparation was not a substantial step.” See Model Crim. Jury Instr. 9th Cir. § 5.3 (2003). This fairly and adequately covered the issue. See United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir.1985) (“So long as the instructions fairly and adequately cover the issues presented, the judge’s formulation of those instructions or choice of language is a matter of discretion.”). AFFIRMED IN PART; REVERSED IN PART; REMANDED. . The dissent argues that this case differs from Shymanovitz because the crimes at issue in that case did not involve subjective intent. But even if Shymanovitz involves slightly different facts, its legal rule does not distinguish between specific intent crimes and other crimes. "Under the government’s theory, the case against an accused child molester would be stronger if he owned a copy of Nabokov's Lolita, and any murder defendant would be unfortunate to have in his possession a collection of Agatha Christie mysteries.... ” Shyma-novitz, 157 F.3d at 1159. Put simply, Shyma-novitz is replete with language that dictates the outcome of this appeal. We may not ignore its controlling effect on this case. See Barapind v. Enomoto, 400 F.3d 744, 751 n. 8 (9th Cir.2005) (en banc) (per curiam). The dissent's discussion of cases like United States v. McCollum, 732 F.2d 1419, 1425 (9th Cir. 1984), which involve the admission of similar prior criminal convictions to prove intent, is equally off point. In McCollum, we allowed admission of a prior conviction for armed robbery to negate the defendant’s defense of acting under hypnosis. The relationship between the prior crime and the act charged is obviously far closer in McCollum’s case than it is in Curtin's. Curtin's case involves otherwise lawful reading material that is not similar to the crime with which he is being charged. Essentially, the government here seeks to introduce possession of material that describes one type of criminal conduct, namely incest with minors, to prove intent to commit another type of criminal conduct, namely crossing state borders to have sex with a minor. This is impermissible under our caselaw. The dissent also argues at length that Cur-tin's case is different because Curtin was actually in possession of the stories at the time of his arrest. However, the government never argued relevance based on physical possession. In any event, this is a fallacious distinction because the stories were saved as documents to Curtin's handheld computer. In the absence of any evidence to the contrary, we should not infer that Curtin planned to "use” the stories or had the stories in mind simply because he was carrying his computer at the time of his arrest. . Contrary to the dissent’s assertion, we have not "made relevant literature off limits in the Ninth Circuit as a matter of law.” Nor do we "hamstring!] the capability of the rule of law to cope in this Circuit with adults who see children as sexual prey.” As pointed out above, in this case the prosecution may rely on Curtin’s presence in a chat room called “Itgirlsexchat,” the "chat” conversations themselves, Curtin’s admission that he was "M-42SOCAL,” and Curtin’s behavior at the meeting place. In terms of otherwise lawfully-possessed literature, modus operandi evidence and inextricably intertwined evidence remain admissible. Here, however, the jury was asked “to infer from behavior on one occasion something about the nature of a person and then to infer from that how the person probably would have behaved on another occasion when the only connection between the two occasions is that thefjury] believes that people of a certain type would act the same way both times.” 1 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 404.02[9](8th ed.2002). Without more of a connection between the literature and the accused crimes, the literature is no more than character evidence introduced to show propensity, and highly prejudicial character evidence at that. The dissent argues at length that the evidence was necessary to refute Curtin’s testimony and "aggressive defense” of his intent to meet an adult, and attempts to distinguish Shymanovitz because Curtin actually testified. However, the stories were not offered for impeachment, on which we express no opinion. Nor do we believe that the stories were necessary given the strength of other evidence introduced by the government. In any event, evidence is not admissible solely because it may be necessary or helpful. Wholly apart from its prejudicial effect, we have held that "[t]he mere possession of reading material that describes a particular type of activity makes it neither more nor less likely that a defendant would intentionally engage in the conduct described and thus fails to meet the test of relevancy under Rule 401.” Shymano-vitz, 157 F.3d at 1158. Here, the materials in Curtin's possession told stories of incestuous sexual acts that were different from those he was accused of intending to perpetrate. They were offered as substantive evidence of guilt, and we simply hold that their admission in this case was an abuse of discretion.
TROTT, Circuit Judge, dissenting: During the 20th Century, the four walls of a family’s home provided substantial protection from marauding sexual predators on the prowl for children and unsuspecting minors to assault. Locked doors and windows could normally safeguard a dwelling from invasion, as well as shelter parents’ vulnerable children from harm. Distant parks, playgrounds, malls, and sidewalks surrounding school yards were the child molester’s preferred hunting grounds. No longer. Now, the Internet is upon us, and it allows cunning sexual vultures repeatedly to enter the bedrooms of immature children where, by seductive and calculating means, unwary children are enticed to leave the security of their homes and to venture into unspeakable dangers. Moreover, the invaders themselves do so invisibly, appearing only on a video screen, unseen by the unsuspecting adults on site. This case provides an example of this frightful situation which generations not yet familiar with the dark side of the Internet have been slow to recognize. With the walls of our homes breached by the Internet, our next best defense is the law. Unfortunately, this case reveals that the laws and the rules of evidence upon which society relies to protect itself from cruel deviancy are now as porous as the walls of our homes, allowing lawbreakers to pull the wool over the eyes of the jurors delegated to ensure that our laws are faithfully implemented. It seems that the law of relevancy is now more concerned with protecting a sexual predator’s obscene manuals on what to do to children than with protecting the real children upon whom they practice their perversions, as this case illustrates. Curtin’s explanation to the jury for his Internet behavior with “christy 13” and trip to Las Vegas was that he intended to act out an incestuous sexual fantasy with her, but that he expected her to be an adult who would pretend to be his innocent unspoiled daughter. Although he called his sexual fantasy “daddy daughter,” he denied that the “daughter” would be a minor. If worthy of belief, this intent would defeat the prosecution’s case, which required proof of an intent to engage a minor in unlawful sexual activity. However, Curtin had on his person at the time of his anticipated encounter with “christyl3” obscene literature tending without ambiguity to prove that the object of his incest fantasy was a child, not an adult. My respected colleagues conclude that the district court erred in admitting this inculpatory literature because — as a matter of law — -it was not relevant. I disagree. Therefore, I respectfully dissent. I The evidence developed against Kevin Curtin by the Las Vegas Metropolitan Police Department suggests on its face that he is a dangerous predatory pedophile who uses the Internet electronically to enter the homes of his immature juvenile female victims in order to lure them into danger. Curtin’s M.O., or modus operandi, involving calculated “grooming” and enticement is well known to the police who work this detail. Here, Curtin contacted his prey through a chat room called “Itgirlsexchat,” which, according to the evidence, is a place on the Internet where people go to talk sex with little girls. The evidence reveals also that he planned a family cover story for his time with his victim. He, as Uncle Kevin, would introduce her as his “niece.” In addition, he asked her if she was working with the police in order “to get guys who make out with 14-year-old girls.” These aspects of the government’s evidence would seem to portray the subjective intent required by the charges filed against him and a keen awareness of the unlawful nature of what he was doing. But wait, he protests, what you see and what you read on my exchanges with “ehristyl3” is not what you get. I’m not an online predator trolling for naive juveniles, my true intent — hard to discern though it may be — is to sexually hook-up with mature females who are hanging out in juvenile chat rooms posing as minors. I’m merely a “lonely divorcee [sic] looking for an older woman who may have a place to go,” because I do not have a place of my own. It’s just a game of role playing. “[N]ormally in this sort of thing it would be a fantasy. Sort of like daddy/daughter or along those lines.” My real intent was to hook up with a thirty to forty year-old role playing woman pretending to be 14-year-old who was interested in actualizing such an incestuous sexual fantasy, certainly not a minor. But of course, this is “my first time.” “I haven’t ever kissed anyone but my wife since — in fifteen years.” And, by the way, “no one ever sends a picture of what they actually look like.” Moreover, everything I wrote to “ehristyl3” that makes it appear that I understood her to be a minor? It was just a lie. How did I know — unsophisticated though I certainly am — that “christyl3” was an older woman even though she said she was only fourteen? As I explained to the police: Q. Now as far as this person, they told you that they were fourteen. A. Right. Q. Did they tell you anything else, who they lived with or anything like that? A. Uhm, I ... I’m not hesitating to give you information. It is not unusual to go on and do exchanges with many, many, many people. Uhm, and it ... it is unusual to the point where this is the first attempt that I’ve had to actually meet anyone. But because of that, it’s difficult for me to say which person and done which thing and at which time. So I don’t ... I’m ... I’m not intending to be vague. I just, uh, I can’t remember who said what. Q. So you don’t remember if Kristy [sic] told you that she lived with her mother and father or anything like that? A. I believe she said that but, uhm, again, that would be ... if that were the case (laughing). I know I’m sounding like all these if, and’s and ... but if that were the case, it would be part of the fantasy, uh, on it. It wouldn’t be, uhm ... I would not expect ... uh, let me rephrase that. I would expect anyone who’s participating in this sort of thing to have their own place where one would go back and ... and do the role playing.... Q. And what were kinda some of the things that she says that, uh, she has or has not done? A. Uhm, she had said that she didn’t have any experience whatsoever with guys. Uhm, which again is a fairly common thing. And adds to my credence to my whole idea of ... of a, uhm, fantasy because, you know, I ... I’m not completely, uh, conversant with what’s going on with kids today, but I don’t know of 14-year-old girls who haven’t at least kissed someone or, you know, fooled around somewhat or Uhm, the ... the, uh, the picture that was sent was this attractive 14-year-old girl who, uh ... uh, had never done anything with anyone, but was willing to suddenly, uh, jump into bed ... bed with a ... a strange 42-year-old person from Riverside is beyond anything that I would imagine could be. You know, I ... uh, I could see, uh, I could see an Internet connection along those lines if it went on for months and months and months and months and you grew a ... an attachment and that sort of a thing. What brings it beyond any level of credence to me that it’s actually possibly a 14-year-old girl is that you’ve got this innocent 14-year-old girl who’s going to, you know, jump into bed with some guy, uh, after talking to him for two days. That’s what led me to believe that there’s no way on earth that it was ... Q. But, I mean, coming here, you had no idea, no way of knowin’ that it wasn’t a 14-year-old girl named Kristy [sic]. Am I right? Other than what you ... you think it may be a fantasy, but as far as what y’all talked about, am I right in sayin’ that you had no way of knowin’? A. You are right in saying that there is no concrete way that I could have known, uhm, that it wasn’t a 14-year-old girl. However ... (Both talking at once) Q.__Oh, no, go ahead. Keep goin'. A. Uhm, I deal with people all of the time and my experience has never been that someone who is, uh, an attractive person who’s ... who saved themself, not even kissed and not done anything, and, uh, uh ... Not bad for a first-timer who had not kissed anyone but his wife in fifteen years. Curtin’s cover story and protestations of “no criminal intent” notwithstanding, federal prosecutors charged him with one count of interstate travel with intent to engage in a sexual act with a minor, in violation of 18 U.S.C. § 2423(b), and one count of the use of an interstate facility to persuade a minor to engage in unlawful sexual conduct, in violation of 18 U.S.C. § 2422(b). Both charges required the government to prove beyond a reasonable doubt that Curtin acted with the intent to engage a person under the age of eighteen years in unlawful sexual behavior. To quote the court in its concluding instructions to the jury: In order for the defendant to be found guilty of [§ 2423(b) ], the Government must prove each of the following elements, beyond a reasonable doubt: First, the defendant used a facility or means of interstate commerce. Second, the defendant knowingly intended to persuade, induce, entice, or coerce Christy into engaging in sexual activity for which he could be prosecuted under the laws of the state of Nevada. Third, the defendant believed Christy had not attained the age of 16 years.... Under the laws of the state of Nevada, it is an offense to commit statutory sexual seduction. Nevada law defines statutory sexual seduction as ordinary sexual intercourse, anal intercourse, cunnilingus, or fellatio committed by a person 18 years of age or older with a person under the age of 16 years. [D]efendant’s subsequent conduct may be considered by you or the question of the defendant’s intent at the time he communicated on the Internet or traveled in interstate commerce. [T]he fact that Christy was an undercover agent posing as a 14-year-old girl and that no actual minor child was victimized in this case is not a defense II Prior to the trial, it became clear that the only disputed issue in this case would be Curtin’s subjective intent: did he intend to hook up with a 30 to 40 year-old woman who liked to pretend she was a child having incestuous sex with her daddy, or with a pubescent minor? Curtin went so far as to file a motion to dismiss the indictment on the ground that the “undisputed and uncontested facts” made it patently obvious that the government had “no credible, evidence to suggest that [Curtin’s] subjective intentions were to travel to Las Vegas to have sex with a minor”: Curtin did not possess an intent to have sex with a 14 year old girl when he got into his car and drove to Las Vegas; the overwhelming evidence points the other way. His voluntary statement, given minutes after he was stopped by the police, shows this. He thought it was all too easy, that no 14 year old was going to just hop into bed with a 42 year old after two chat sessions, especially a pretty girl. As he said in his statement, her Mary Poppins naivety was beyond any level of credence. It was so easy and uncredible that he even wondered if it could have been police. In any event, he was not concerned, because when he left California to go to Las Vegas, he was going to find work, and at the time he left California to travel to Nevada, he had no intentions of having relations with a minor, as irrebuttably shown by the fact that he did not so much as talk to the person. This meeting was the litmus test of his true intentions in this nebulous and hazy situation. He clearly and without question passed this test. When he calmly and simply walked away, the police wanted to know why. He told them. He clearly and unequivocally explained that he did not talk to this person because he stopped by the Suncoast with the hope and intentions of meeting an older woman. HAD HE BEEN THERE TO MEET A MINOR, AS IS THE CRUX OF THIS INDICTMENT, THEN HE WOULD HAVE INTRODUCED HIMSELF AT THAT POINT. ... Curtin’s intentions were to try to meet a 30-40 year old woman who had been fantasizing. It is not even close.... As the defendant’s intent was not to have sex with a minor, nor to entice a minor, nor to travel interstate to have sex with a minor, ... this case must be dismissed. In the instant case, the defendant did not think he was dealing with a minor. The police knew there [was] not a minor and in fact there was not a minor. (Emphasis added.) Thus, the line was drawn by Curtin. His defense was a matter of record. The trial would be about intent and what was in Curtin’s mind during his undisputed conduct with “christyl3.” This was the issue, the only issue: subjective intentions. As counsel for Curtin said in his opening statement, “[Curtin] thought it was someone his age that he was dealing with and that they would role play in a situation much like a dad and a daughter.” Counsel concluded on this what-was-in-Curtin’s-mind theme by telling the jury that “this is the type of crime that is a situation where you have to look at the thoughts.” To prevail, of course, Curtin would not be called upon to satisfy the jury that his defense was true. All he had to do is raise a reasonable doubt in the mind of a single juror. Ill Confronted with Curtin’s aggressive fantasy intent defense — to sexually play daddy/daughter incest, not with a minor but with an adult — and facing the traditional daunting burden of proof, the government offered stories contained on Curtin’s PDA, or “personal digital assistant.” These stories were offered pursuant to Fed.R.Evid. 404(b) for two equally appropriate purposes: (1) to prove that Curtin harbored the subjective intent made unlawful by law, and (2) to rebut Curtin’s defense that the daughter in his daddy/daughter sexual fantasy was an adult pretending to be a child. From the beginning, the government was put on notice by the court that in order for the stories to be properly admitted, each story would have to comport to the admissibility conditions of Fed. R.Evid. 401 and 404(b) as well as the probative versus prejudice limitations found in Fed.R.Evid. 403. What was the content of the material on Curtin’s PDA? It consisted of approximately 140 stories containing graphic descriptions of sexual acts with minors. Not a single story on Curtin’s PDA was about daddy/daughter role playing with adults. The stories admitted in evidence are built around daddies having sexual relations with child daughters, not adults, and the content of the stories parallel Curtin’s email exchanges with his target. I extract two representative examples: LOVE for the WORLD An Erotic Story “Good morning, brothers and sisters. It’s a splendid day the Lord has blessed us with; ... “I’m going to speak frankly, bluntly; and tell some truths that need telling. And I don’t want any of you, friends, to send the kids to the next room or anything else because they might be shocked. If your child is old enough to understand what I’m saying, he or she must hear it along with you. These are TRUTHS that even children must learn. So gather around; call the children, and listen to the truth that has been revealed to me.” “In today’s world, parents have a special duty towards their children. Gone are the days when we could pretend children were ‘innocent’ of the facts of life. Today’s children, before they turn ten, and some even before first grade, know what sex is ... And many of them have already developed an interest that some parents may feel uncomfortable with. That discomfort, is the matter I am going to address tonight; and what you must do, to not just overcome it, but to find true joy in doing the work of the Lord, by properly teaching your children the true JOY of sex, when practiced with those you love. For it is truly up to the parents to steer their children right: into a healthy outlook on matters of sex. After all, it is not only a beautiful gift from the Lord; it is the very source of those precious children themselves.” “I will talk first about the responsibility of fathers. I must say that many fathers out there - disgrace the very meaning of the word. Yes, there are many who behave as though their role ends at begetting the child, or still hold to an old-fashioned sense of ‘duties’ that is limited to providing the groceries every week. THAT is not the way to bring up a child! Especially your daughters! Daughters need their father to be a strong presence, the very prototype of a manly image. Men, your daughters need YOU, to be the FIRST MAN IN THEIR LIVES!” “And I’m not talking any halfway measures here, friends. When I say you must be the first man in your daughter’s life I mean just that! Think about it: Your precious little girl, who loves you more than anything in the world ... you love her too, don’t you? DON’T you?” “Then MATCH that love, gentlemen! Be not only the first MAN in her life; be the first MALE in her life! Yes, I mean exactly what you are thinking. I want you to be her first f ... k!” [Exhibit 7b] Restrictions An Erotic Story “Margaret?” ‘Yes Daddy?” “You were sitting out there a long time, with Billy, weren’t you?” “Yes Daddy.” ‘Yes Daddy.” “Did you let him kiss you?” “Only on the cheek Daddy.” • “That’s good. Did he do anything else?” “Well, he put his arm around me.” ‘You stopped him, didn’t you?” “Well ...” “Oh Margaret, what am I going to do with you? You didn’t let him do any more, did you?” “Well, he tried to put his hand on me here, but I stopped him.” “Very good Margie. Maybe I can trust you after all. What did you tell him?” “I told him, that if he didn’t keep his hands where they belonged, he’d have to go home. I don’t like to tell him that Daddy, he’s a really nice boy. How come I can’t let him touch me Daddy?” “Because I’m afraid you’ll go too far.” “Too far?” “I guess I’ll just have to show you. Come here, and sit on my lap.” “Ok Daddy. You mean, like I’m not supposed to sit on Billy’s lap?” “Uhuh. Oh, wait. First go change into your red dress, and top.” “The SHORT one Daddy?” “Uhuh.” “But Daddy! You told me never to wear that one.” “Uhuh. I’ll show you why I don’t want you wearing it.” “If you say so, Daddy.” “I do. And Margie?” “Yes Daddy?” “Don’t wear any nylons, or pantyhose either.” “Ok Daddy.” [Exhibit 7c] To illustrate the material similarities between the stories in Curtin’s PDA and the escalating salacious enticements he made on line to “christy 13,” known as “grooming,” here are some representative examples of his email conversations with her. They show an adult planning to initiate a young virgin into the world of adult sex: Christy: You don’t mind that I’m 14? Curtin: Do you mind that I’m 42? Christy: No, not at all. Curtin: Have you ever been with an older guy? Christy: No, I’m still a virgin, if that is what you’re asking. Curtin: Well, what would you want to do with me? I’d love to make out with you. Is that weird? Curtin: Do you masturbate? Christy: No, never have.... Curtin: Do you never get urges? Christy: What do you mean? Curtin: You never feel horny? Christy: No. Is that okay? Curtin: Do you have periods yet? Christy: Yes. Curtin: I just logged on and looked at your picture. You’re so sexy that it’s hard to believe you don’t get horny. Christy: I don’t think that I’m pretty. Curtin: I think you are, and I think you’re sexy. Christy: Thanks. Christy: What should I do or how should — how far should I go? Curtin: I’ll probably go as far as you want to go. Christy: I want to make you happy. Curtin: I want to make you happy, too. If you were masturbating and fantasizing about sex, I’d love to have sex with you. But since you’re not, I don’t want to push you past anything you’re ready for.'... Christy: I heard that it hurts the first time. Also, that you can get pregnant real easy.... Curtin: There are things we can do to stop that. Curtin: Or, we could just make out or I could just give you oral sex or we could just fool around. Christy: Would it hurt if you gave me oral sex? Curtin: No, not at all. Christy: What should I bring to sleep in, my pj’s or will my jeans and shirt be okay? Curtin: Nothing. I don’t want you to sleep in anything. Christy: Really? Not even my underwear? Won’t that be a little uncomfortable? Curtin: No, that’s the best way to sleep, all cuddled up, two naked bodies. Christy: Okay, if you say so. I just think it would be uncomfortable. Curtin: Try tonight and tell me if it is. And imagine my face moving between your legs and licking you. Imagine my tongue penetrating you. Christy: I can’t. Mom and Dad come in at night and check in on me and tell me all the time that they cover me up with my blanket. So they would see that I was naked and would ask me why. Plus, if my dad saw me naked, I would be so embarrassed. Christy: ... It won’t hurt, right? Curtin: No, it won’t hurt. Curtin: Have you thought about my head between your legs, licking you? Christy: Yes. Kind of curious what that will feel like. Curtin: Have you touched yourself there? Christy: Only while taking a shower to was [sic] myself. Am I weird? Curtin: No, I just thought you might have when thinking about me, about— thinking about we’re going to do [sic]. Curtin: I did, by the way. I looked at your picture and played with myself thinking about what it would feel — what it would be like to have sex with you. You are so sexy. Christy: Really? You did? Curtin: Yes.... Curtin: I want to make you feel so good. I want this to be the best you’ve ever felt. Christy: Really? You’re so nice. Curtin: Can you get undressed? Christy: No- way. My little sister comes in and out of my room a lot and she would tell Mom or Dad that I did not have any clothes on. Curtin: Rats. Christy: Why? What were you going to have me do? Curtin: Play with yourself.... Christy: Oh, I never have done that kind of stuff. Curtin: I know. I was hoping you’d start. No big thing.... It would just be sexy. Christy: I’m going to feel so dumb when we are alone because I won’t know what to do. Curtin: No, you won’t feel dumb. The only thing I ask is if something feels good, tell me. And if something feels bad, tell me. I just want to make you feel so good. Christy: Okay, I will. Curtin: I’m going to make it so good for you. I’m going to get you to come and come and come. Christy: Will it hurt if you do that? Curtin: No, it will feel real good. I’m not going to hurt you. Remember, I promised. Christy: Okay. I get a little excited when I think about you being my first.... Curtin: I’m going to love sucking on your breasts, your naked body in front of me, and moving down and licking you and putting my tongue in you. Curtin: I’d. love for you to put my d ... k in your mouth. Would you do that? Christy: If you want me to, I think I will. Curtin: smiley face. Curtin: I’ll show you how to do that to drive a guy nuts. Smiley face. Christy: To do what? Curtin: Give a blow job. Put a guy’s d ... k in your mouth. Christy: Really? You are going to teach me how to give a blow job? If my girlfriends only knew, they would be jealous. Curtin: Sure. Smiley face. Under the circumstances of this case, and especially given the nature of the defense, were the stories in Curtin’s PDA of sexual contact with minors relevant? Certainly. The stories consisted by anyone’s logic of “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R.Evid. 401. As acknowledged by the Supreme Court: Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct. Huddleston v. United States, 485 U.S. 681, 685, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). Curtin’s possession in his PDA of these stories on his person at the time of his intended encounter with “christylS” clearly illuminates his thoughts and his subjective intent to carry out his daddy/daughter sexual initiation escapades with a juvenile, not an adult. Any lingering question of relevancy was put to rest by Curtin’s defense that it was all a fantasy directed at an adult. The similarities between the solicitous “grooming” email conversations and the content of the stories is readily apparent. However, the district court did not admit all 140 stories, only five, taking great care in the exercise of its discretion to restrict their use to the main issue and to eliminate possible undue prejudice. IV With all respect to my colleagues, Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir. 1998), does not dictate the outcome of this case, and its holding does not as a matter of law render abusive the district court’s exercise of discretion. In the parlance of the profession, Shymanovitz is distinguishable. First, unlike the specific intent crimes with which Curtin was charged, the combination of crimes in Shymanovitz — generally unlawful sexual activity with minors— required an entirely different type of mens rea from the specific intent required here. One of the crimes charged in Shymano-vitz, “sexual penetration,” did “not include any requirement that the defendant act with intent,” id. at 1157, just that the defendant have engaged in sexual penetration with the victim. The other crime, sexual contact with a minor, required touching that was intentional rather than accidental. Moreover, the actual purpose of the person doing the touching was immaterial. As Judge Reinhardt explained, [T]he charges based on sexual contact require the government to prove that any touching on Shymanovitz’ part was intentional, and that a reasonable person could construe the touching to be for a sexual purpose. Whether Shymanovitz’s actual purpose in touching the alleged victims was sexual arousal or gratification, however, or whether he was actually aroused or gratified by the touching is immaterial to the offenses, including the charges based on improper sexual contact. Instead, the question in the latter category of cases is whether a reasonable person could construe the touching to be for such a purpose. The test, under the sexual contact statute, is an objective not a subjective one. In short, it is the character of the touching that is at issue, not the purpose of the intentional touch-er. Accordingly, the government’s current and sole justification for admitting the challenged evidence goes, once again, to the proof of an element immaterial to the offense. Id. at 1158 (emphasis added). Second, the defense in Shymanovitz was not that the alleged touching and penetration were not accompanied by any requisite state of mind, but that the acts charged as crimes never happened. “His counsel argued that the boys and some of the parents had concocted the allegations against him.... ” Id. at 1154. Moreover, Shymanovitz ... never testified at trial that he believed sexual conduct with minors to be legal. Nor was there testimony to indicate that he somehow lacked knowledge of or familiarity with fellatio, anal intercourse, or other general aspects of homosexual sex. Moreover, neither knowledge of the illegality of the conduct of which he was accused nor knowledge of the nature of the specific acts identified by the prosecutor constituted an element of the offense. More important, such knowledge would in no way tend to prove his guilt on any of the charges brought against him. Accordingly, it is highly unlikely that the government introduced the magazines to address the issues it argued they were relevant to during the prosecutor’s closing arguments. Id. at 1156. In contrast, Curtin did testify at the trial, tendering an energetic defense that his intent was to couple with an adult female, not a juvenile. Shymanovitz’s defense had nothing to do with intent or state of mind. Third, the stories were in Curtin’s possession when he entered the casino in order to meet his target. Not so in Shyma-novitz. Thus, given that the evidence under scrutiny in Shymanovitz was (1) not probative of any issue in the case, and (2) not relevant to Shymanovitz’s factual defense, it was appropriate for the panel to conclude as a matter of law that it was not properly received pursuant to Rule 401 or 404(b). The evidence simply failed Rule 401’s definition of relevancy and, therefore, also failed Rule 404(b). The evidence did not illuminate “a fact of consequence to the determination of the action,” and was nothing more than an attempt to slime the defendant. Id. at 1154(referring to the prosecutor’s “untempered and provocative references” to the evidence). We recognized the limited reach of Shy-manovitz in United States v. Allen, 341 F.3d 870 (9th Cir.2003). The defendants in Allen were charged with intimidating or interfering with a person’s housing rights on account of race or color, in violation of 42 U.S.C. § 3631. In order to satisfy the statute’s requirement of a showing of racial animus, the government offered, and we admitted: ... skinhead and white supremacist evidence, including color photographs of their tattoos (e.g., swastikas and other symbols of white supremacy), Nazi-related literature, group photographs including some of the defendants (e.g., in “Heil Hitler” poses and standing before a large swastika that they later set on fire), and skinhead paraphernalia (e.g. combat boots, arm-bands with swastikas, and a registration form for the Aryan Nations World Congress). Id. at 885-886. The district court ruled (1) that this potentially inflammatory evidence was relevant to proving the defendants’ motive, intent and plan, and (2) that its prejudicial potential did not substantially outweigh its probative value as demanded by Fed.R.Evid. 403. On appeal, the Allen defendants challenged the trial court’s ruling on the ground that the evidence was unfairly prejudicial. We disagreed, relying in large measure on our decision in United States v. Skillman, 922 F.2d 1370 (9th Cir.1991), a race-motivated cross burning case wherein “skinhead” literature and materials found in Skillman’s garage and on his person at the time of his arrest was used to prove Skillman’s state of mind at the time of the crime, ev