USCA4 Appeal: 22-4397 Doc: 37 Filed: 03/06/2023 Pg: 1 of 11

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4397

UNITED STATES OF AMERICA,

Plaintiff – Appellant,

v.

DARRIN ALONZO MILLER,

Defendant – Appellee.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, District Judge. (2:21-cr-00261-1)

Argued: January 27, 2023 Decided: March 6, 2023

Before AGEE, QUATTLEBAUM, and RUSHING, Circuit Judges.

Reversed and remanded by published opinion. Judge Agee wrote the opinion in which Judge Quattlebaum and Judge Rushing joined.

ARGUED: Jennifer Rada Herrald, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellant. Wesley P. Page, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellee. ON BRIEF: William S. Thompson, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellant. Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellee. USCA4 Appeal: 22-4397 Doc: 37 Filed: 03/06/2023 Pg: 2 of 11

AGEE, Circuit Judge:

Prior to Darrin Miller’s criminal trial for transferring obscene material to a minor,

the district court relied on Federal Rule of Evidence 403 to exclude evidence that the

recipient of the allegedly obscene material was Miller’s fourteen-year-old sister. The

Government appeals, asserting that the court abused its discretion in excluding the evidence

because it relates to elements of the offense and is necessary for the Government to tell the

complete story of how the crime occurred. Considering the evidence’s high probative value

and minimal risk of unfair prejudice, we find that the district court plainly abused its

discretion in excluding the evidence. We therefore reverse and remand.

I.

The district court granted Miller’s motion in limine to exclude the evidence of

Miller’s relationship with his victim under Rule 403, 1 which provides that a court “may

exclude relevant evidence if its probative value is substantially outweighed by a danger of

. . . unfair prejudice.” 2 Fed. R. Evid. 403. This Rule “is a rule of inclusion, generally

favoring admissibility.” United States v. Udeozor,

, 264–65 (4th Cir. 2008)

(cleaned up). In other words, “[w]here evidence is probative, ‘the balance under Rule 403

should be struck in favor of admissibility, and evidence should be excluded only

1 The district court also excluded the evidence on relevance grounds, which Miller concedes was an error. We agree and therefore do not consider that ground further. 2 We do not address the other grounds for exclusion under Rule 403 because Miller concedes he relies solely on the risk of unfair prejudice on appeal.

2 USCA4 Appeal: 22-4397 Doc: 37 Filed: 03/06/2023 Pg: 3 of 11

sparingly.’” United States v. Lentz,

(4th Cir. 2008) (quoting United

States v. Aramony,

(4th Cir. 1996)).

In order to exclude evidence under Rule 403’s high bar, it must be unfairly

prejudicial. “‘[U]nfair prejudice’ . . . speaks to the capacity of some concededly relevant

evidence to lure the factfinder into declaring guilt on a ground different from proof specific

to the offense charged.” Old Chief v. United States,

(1997) (emphasis

added). In contrast to such unfairly prejudicial evidence, we have found prejudicial

evidence admissible when it “directly establishe[s] an element of the offense.” United

States v. Grimmond,

(4th Cir. 1998) (recognizing that “[e]vidence that

is highly probative [to establishing an element of the offense] invariably will be prejudicial

to the defense,” but that “damage to a defendant’s case is not a basis for excluding probative

evidence”); see United States v. Dunford,

, 394–96 (4th Cir. 1998)

(concluding that the district court did not abuse its discretion in admitting evidence related

to an element of the offense over defendant’s Rule 403 challenge that its admission would

unfairly prejudice the jury against him and that he had already stipulated to certain related

facts).

When performing the evaluation required by Rule 403, the court must keep in mind

“the offering party’s need for evidentiary richness and narrative integrity in presenting a

case.” Old Chief,

. In light of this standard, “a criminal defendant may not

stipulate or admit his way out of the full evidentiary force of the case as the Government

chooses to present it.”

at 186–87. In other words, “a defendant’s Rule 403 objection

3 USCA4 Appeal: 22-4397 Doc: 37 Filed: 03/06/2023 Pg: 4 of 11

offering to concede a point generally cannot prevail over the Government’s choice to offer

evidence showing guilt and all the circumstances surrounding the offense.”

.

For instance, in Dunford, following these rules, we upheld the admission of

prejudicial evidence going to an element to which the defendant was willing to stipulate

when the challenged evidence “related not to facts far removed in time from the [charged

crime]” but rather was part of an “‘eventful narrative,’—a relevant part of the very

transactions leading to [the defendant’s] arrest and indictment in this case.”

(internal citation omitted). We reasoned that allowing “contemporaneous evidence

relevant both to the context and to the crime is not the type of prejudice that Federal Rule

of Evidence 403 addresses” and “the general rule that the defendant cannot stipulate away

the government’s case applies.” Id.; see also United States v. Bajoghli,

, 963–

64 (4th Cir. 2015) (explaining that while a district court “retains broad-ranging discretion

to manage trials and limit proof[,] . . . its discretion must be balanced by the need to give

the government adequate latitude to prove its case”).

II.

With this baseline for understanding the relevant law, we turn to the undisputed

facts in the case before us. While Miller was imprisoned for an unrelated conviction, he

sent a predatory, sexually explicit letter to his fourteen-year-old sister describing his

fantasy of sexual activity with her. He was then indicted for violating

,

which prohibits “using the mail or any facility or means of interstate or foreign commerce”

to “knowingly transfer[] obscene matter to another individual who has not attained the age

4 USCA4 Appeal: 22-4397 Doc: 37 Filed: 03/06/2023 Pg: 5 of 11

of 16 years, knowing that such other individual has not attained the age of 16 years, or

attempt[ing] to do so.”

Before trial, Miller sought to stipulate that he knew he was transferring the letter to

an individual under the age of sixteen. However, the Government refused to accept the

stipulation and indicated that it intended to call a police officer to testify as to how Miller

knew the victim was fourteen years old (namely, because they were siblings). The

Government asserted that the testimony was relevant to prove that Miller knew the victim

was under the age of sixteen and that the letter was obscene because it was “written to and

graphically describe[d] sexual activity between defendant, a then 38-year-old man, and his

14-year-old sister.” J.A. 49.

Miller filed a motion in limine seeking to preclude the admission of the

Government’s proposed evidence. The district court granted the motion, reasoning that

evidence beyond the letter—including evidence of Miller’s relationship with the victim—

was inadmissible under Rule 403. The Government appealed, 3 arguing that the evidence

(1) is probative because it relates to elements of the offense and the narrative of the crime,

and (2) is not unfairly prejudicial because direct evidence of the elements of the crime and

the context in which the crime occurred cannot unfairly prejudice a defendant. We address

each argument in turn, bearing in mind that we review evidentiary rulings under Rule 403

3 We have jurisdiction under

, which authorizes the Government to appeal a district court’s decision to exclude evidence under certain circumstances, upon certification by the U.S. Attorney that the appeal is not taken for an improper purpose. See J.A. 45 (certification).

5 USCA4 Appeal: 22-4397 Doc: 37 Filed: 03/06/2023 Pg: 6 of 11

for plain abuse of discretion, and typically give “wide discretion” to the district court to

determine admissibility under Rule 403. Udeozor,

(explaining that this

Court may overturn a district court’s Rule 403 decision only “under the most extraordinary

circumstances” (quoting United States v. Williams,

(4th Cir. 2006))).

III.

A.

The Government contends that the evidence is highly probative because it

establishes two elements of the offense—that Miller knew the victim’s age and that the

letter is obscene—and is contemporaneous evidence of what law enforcement discovered

in connection with the crime. We agree.

First, under the Rule 403 balancing test, the evidence is highly probative because it

goes directly to elements of the offense. See Grimmond,

(finding no abuse

of discretion in the admission of evidence under Rule 403 where it “directly established an

element of the offense”); Bajoghli,

(explaining that once it is shown that

“evidence is probative of an element of the crime charged, ‘the balance under Rule 403

should be struck in favor of admissibility’” (quoting Aramony,

)). The

Government’s proffered evidence would strongly suggest that Miller knew the victim was

under the age of sixteen because they were siblings.

Miller’s willingness to stipulate to his knowledge of the victim’s age does not reduce

the probative value of the evidence. The Supreme Court has said that alternative evidence

only “discount[s] the value of the item first offered” if the alternative has “substantially the

6 USCA4 Appeal: 22-4397 Doc: 37 Filed: 03/06/2023 Pg: 7 of 11

same or greater probative value.” Old Chief, 519 U.S. at 182–83. That is not the case here,

where the stipulation that Miller knew the victim was fourteen years old would “be no

match for the robust evidence” the Government seeks to admit about how he knew that

fact. Id. at 189. For that reason, in Dunford, this Court held that the district court did not

abuse its discretion in admitting evidence of drug use where the evidence was

“contemporaneous evidence relevant both to the context and to the crime” such that “the

general rule that the defendant cannot stipulate away the government’s case applie[d].”

. 4

In addition, the evidence could assist the jury in determining whether the material

is obscene. As Miller acknowledges, there is a “taboo against incest” in society, Resp. Br.

6 (citation omitted), such that evidence that Miller sent a sexually explicit letter to his sister

may inform the jury as to whether the letter is obscene, i.e., whether it appeals to a shameful

and prurient interest in sex. See Miller v. California,

(1973) (defining

obscenity as “works which, taken as a whole, appeal to the prurient interest in sex, which

portray sexual conduct in a patently offensive way, and which, taken as a whole, do not

have serious literary, artistic, political, or scientific value”); United States v. Guglielmi,

(4th Cir. 1987) (indicating that “appeals to or provokes a prurient

4 Further, Miller agrees that the Government cannot be forced into a stipulation, yet that is the precise result if the district court’s ruling is upheld. The Government will be required to enter the stipulation or else it will not be able to introduce evidence on a necessary element of the crime charged: that Miller knew the victim was under the age of sixteen. See Old Chief,

(describing “the accepted rule that the prosecution is entitled to prove its case free from any defendant’s option to stipulate the evidence away”).

7 USCA4 Appeal: 22-4397 Doc: 37 Filed: 03/06/2023 Pg: 8 of 11

interest” refers to material that appeals to a “‘shameful or morbid interest in nudity, sex or

excretion’” (quoting Roth v. United States,

, 487 n.20 (1957))).

Although it is true, as Miller indicates, that whether a work is obscene requires

consideration of the work itself, that does not discount the significance of Miller’s

relationship to the victim because the Supreme Court has instructed that, for purposes of

the prurient interest prong of obscenity, the work must be examined “as a whole.” Miller,

. In the specific circumstances of this case—a sexually explicit letter directed

to a minor victim to whom the sender was related that describes sexually explicit acts

between the sender and victim—the “whole” necessarily includes Miller’s relationship to

the recipient. See United States v. Deason,

(11th Cir. 2020)

(explaining that the “taken as a whole” requirement “ensures . . . that the matter is placed

in context so that the jury can properly determine whether the work as a whole appeals to

the prurient interest”).

Second, aside from the evidence’s relevance to the elements of the offense, the

evidence is a significant part of the “narrative integrity” of the Government’s case. Old

Chief,

. If that narrative flow is interrupted by, e.g., a stipulation, “the effect

may be like saying, ‘never mind what’s behind the door,’ and jurors may well wonder what

they are being kept from knowing.”

. Stated differently, “[p]eople who hear a

story interrupted by gaps of abstraction may be puzzled at the missing chapters, and jurors

asked to rest a momentous decision on the story’s truth can feel put upon at being asked to

take responsibility knowing that more could be said than they have heard.”

Therefore,

for the Government to tell a complete story of Miller’s crime that “satisf[ies] the jurors’

8 USCA4 Appeal: 22-4397 Doc: 37 Filed: 03/06/2023 Pg: 9 of 11

expectations,”

, the Government must tell the jury how he knew the victim before

presenting the allegedly obscene letter that resulted from his contact with her. We thus find

the evidence that Miller’s victim was his sister to be highly probative.

B.

Turning to the unfair-prejudice prong of Rule 403, evidence that Miller sent sexually

charged and predatory correspondence to his minor sister is clearly damaging to his

defense. However, “damage to a defendant’s case is not a basis for excluding probative

evidence” because all “[e]vidence that is highly probative invariably will be prejudicial to

the defense.” Grimmond,

. Instead, the prejudice must be “unfair.” Fed. R.

Evid. 403. And prejudice is unfair where it could convince the jury “into declaring guilt on

a ground different from proof specific to the offense charged.” Old Chief,

.

But here, rather than the evidence suggesting that Miller is guilty because, e.g., he did a

bad act in the past, the Government’s proof relates directly to the offense charged, as

explained above. That a jury may find the details of the offense egregious does not make

the admission of those details unfair.

In support of his argument that the evidence would be unfairly prejudicial, Miller

relies on United States v. Ham,

(4th Cir. 1993), where members of a Hare

Krishna religious community were charged with RICO and mail fraud violations.

. At trial, the district court admitted evidence “of homosexuality, child molestation

and abuse, and subordination of women within the community.”

On appeal, this Court

found that the evidence was unfairly prejudicial because the jurors could “convict a

defendant based on the jurors’ disdain or their belief that the defendant’s prior bad acts

9 USCA4 Appeal: 22-4397 Doc: 37 Filed: 03/06/2023 Pg: 10 of 11

make guilt more likely.”

. Moreover, the contested evidence was minimally

relevant. Although some of it related to motive, it was not essential proof, and was used

for impeachment as opposed to proving a required element of the crime.

. Ham

is thus not analogous to this case, where the Government’s evidence clearly relates to the

obscenity and knowledge elements and to the immediate circumstances of the crime with

which Miller is charged.

We therefore conclude that the probative value of the Government’s evidence is not

substantially outweighed by risk of unfair prejudice. Moreover, in view of the foregoing,

we hold that the district court’s error in excluding the evidence warrants reversal as a plain

abuse of discretion. See United States v. Delfino,

(4th Cir. 2007)

(explaining that “[a] district court abuses its discretion when it . . . commits an error of

law”).

Miller correctly asserts that the standard for reversing the district court’s decision is

a high one. See Udeozor,

(indicating that we may overturn a district court’s

Rule 403 determination only “under the most extraordinary circumstances, where [its]

discretion has been plainly abused” (quoting Williams,

)). However, this

case presents those extraordinary circumstances based on the significance of the

Government’s evidence to the crime with which Miller is charged, the minimal risk of

unfair prejudice, and the need to prevent the Government from being forced to stipulate to

Miller’s proffer of evidence. See Bajoghli,

(finding an abuse of discretion

where the district court limited the Government’s evidence such that Government could

not offer sufficient proof of certain elements of the crime).

10 USCA4 Appeal: 22-4397 Doc: 37 Filed: 03/06/2023 Pg: 11 of 11

IV.

For the foregoing reasons, we conclude that the district court plainly abused its

discretion in granting Miller’s motion in limine to exclude evidence that the victim was

Miller’s fourteen-year-old sister.

REVERSED AND REMANDED

11