Later Events Not Considered in Review of Denial of Continuance; Defendant Opened Door to Prejudicial Evidence

U.S. v. Seymour, 2015 WL 1383111 (3/27/15) (Wyo.) (unpub'd) - A cautionary preservation tale. The 10th reviews the continuance denial at the time of the denial. which was before trial. It refuses to consider matters that came up during trial because the defense did not renew its motion for a continuance in light of trial events.

In an enticement-of-a-minor case, Mr. Seymour opened the door to evidence that child-porn-type search terms and deleted child porn files were on his computer. Mr. Seymour testified he went along with the undercover agent posing as a father offering his 12-year-old daughter for sex because he was acting as a vigilante to rescue the girl. Others testified to his history of intervening to save vulnerable people and animals from harm, e.g. rape, beatings. The 10th rules Mr. Seymour put a character trait of protecting vulnerable folks at issue justifying the government countering under Fed. R. Evid. 404(a)(2).with evidence that Mr. Seymour was sexually interested in children. The government's counter evidence indicated Mr. Seymour was interested in sexual gratification, not protecting the imaginary girl. The government had no obligation to provide pretrial notice of the evidence, given the plain language of 404(a)(2). The evidence did not violate Fed. R. Evid. 403, given its probative value. Perhaps helpfully in a case where the government wants to introduce a video, the 10th says introducing a child porn video that was on Mr. Seymour's computer would have been much more inflammatory than what the government presented in this case.

There was sufficient evidence of a 924(c) offense--carrying a firearm during and in relation to a crime of violence. Enticement is a crime of violence. Mr. Seymour was "carrying" a gun by having it in his car when he went to the park to meet the girl. It didn't matter if Mr. Seymour routinely carried a gun in his console. It was "perfectly" reasonable for a juror to infer he brought the gun with him to subdue the child.