Appeals court orders new trial

A federal appeals court has granted a new trial to a California man convicted of traveling to Las Vegas with the intent to have sex with a 14-year-old girl.

Kevin Curtin, then 43, of Anaheim, Calif., was convicted in 2004 of one count of traveling across state lines with the intent to engage in a sexual act with a minor and one count of using an interstate facility to attempt to persuade a minor to engage in sexual acts.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco first reversed the convictions in 2006, but a 15-member panel later reviewed the opinion. The larger panel, which included Judge Jay Bybee of Nevada, issued an opinion last month that again reversed the convictions and granted Curtin a new trial.

Curtin’s attorney, Cal Potter III, argued that U.S. District Judge Robert Jones erred when he allowed prosecutors to present evidence at trial about lewd stories Curtin had in his possession when he was arrested. The stories described sexual acts between adults and children.

“They were actually trying him for his character rather than the crime that was alleged,” Potter said.

Potter said his client had a First Amendment right to possess the lawful reading material, and he argued that jurors were prejudiced by the evidence.

According to the recent opinion, Jones “properly required the prosecution to demonstrate the evidence’s connection to the crime with which Curtin was charged.”

“Having determined that the evidence was relevant to show intent, the District Court’s remaining responsibility was carefully to limit the evidence … to ensure that the evidence’s potentially prejudicial effect did not substantially outweigh its probative value,” according to the opinion. “Here, the court’s discretion was not properly exercised.”

Steve Myhre, Nevada’s acting U.S. attorney, said prosecutors have no plans to appeal the ruling.

“We actually view that decision as a victory for our office, because prior to that the court had, on First Amendment grounds, categorically excluded evidence of this nature to prove the intent of an individual to cross state lines to have sex with a minor,” he said.

Myhre said prosecutors plan to introduce the same evidence at a retrial.

“There’s nothing in this decision that precludes us from offering that evidence,” he said.

Curtin participated in Internet chats in February 2004 with a Las Vegas police officer posing as a 14-year-old girl. Authorities said Curtin asked the girl about her sexual urges and wanted to know whether she would attend a Penn & Teller show with him at the Rio.

He then arranged to meet the girl in a casino bowling alley, authorities said. Law enforcement officials arrested the suspect outside the casino.

Potter said Curtin, a magician, has served 40 months of a five-year prison sentence. He remains in custody.

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