United States of America v. David Jeremy Zobel

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 6, 2026 Decided July 17, 2026
No. 25-3035
UNITED STATES OF AMERICA,
APPELLANT
v.
DAVID JEREMY ZOBEL,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cr-00333-1)
Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellant. With him on the briefs were Jeanine Ferris
Pirro, U.S. Attorney, and Chrisellen R. Kolb, Assistant U.S.
Attorney.
A. J. Kramer, Federal Public Defender, argued the cause
and filed the brief for appellee.
Before: PILLARD, WILKINS and KATSAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
Concurring opinion filed by Circuit Judge KATSAS.

-- 1 of 30 --

2
PILLARD, Circuit Judge: David Zobel has been charged
with distributing child pornography and attempting to sexually
exploit a minor. Before trial, the government proposed to
introduce evidence of Zobel’s prior conviction for child
molestation under Federal Rule of Evidence 414. The district
court excluded that evidence, reasoning that under Rule 403 the
risk of unfair prejudice substantially outweighed the probative
value of that evidence. The government appeals the district
court’s in limine rulings.
We hold that we have jurisdiction under 18 U.S.C. § 3731
to review the district court’s decision to exclude the prior-
conviction evidence. The record suggests that the district court
misunderstood how Rule 414 affects the Rule 403 analysis in
child-molestation cases where the government seeks to
introduce evidence of prior child molestation. We take this
opportunity to clarify the relationship between Rules 403 and
414, vacate the district court’s orders excluding references to
prior child molestation, and remand the case to the district court
for a fresh determination under the correct legal framework.
I.
A.
We start by introducing the relevant evidentiary rules as
background to our discussion of how those rules interact.
Rules 402 and 403 jointly codify the presumption that
relevant evidence is ordinarily admissible unless sufficiently
weighty grounds warrant exclusion. Rule 402 provides that
“[r]elevant evidence is admissible” unless federal law,
including any other Federal Rule of Evidence, provides
otherwise. Rule 403, in turn, states that a court “may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the

-- 2 of 30 --

3
issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” The
consideration at issue in this case is “unfair prejudice.” By
providing that the probative value of contested evidence “must
be ‘substantially’ outweighed by considerations such as
‘unfair’ prejudice,” Rule 403 sets a “high barrier” for the
exclusion of relevant evidence. United States v. Lieu, 963 F.3d
122, 128 (D.C. Cir. 2020).
Rule 404(b) addresses the admissibility of a particular
category of evidence: evidence of “other crimes, wrongs, or
acts” (formatting modified). Such evidence “is not admissible
to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the
character.” Fed. R. Evid. 404(b)(1). The law has long treated
this so-called “character” or “propensity” evidence as relevant.
See Michelson v. United States, 335 U.S. 469, 475-76 & n.9
(1948) (citing Reg. v. Rowton, 10 Cox’s Criminal Cases 25, 29-
30 (1865)). Common law courts nonetheless “rejected” the use
of prior bad acts to establish bad character on the view that
“practical experience” shows propensity evidence to “weigh
too much with the jury and to so overpersuade them as to
prejudge one with a bad general record and deny him a fair
opportunity to defend against a particular charge.” Id. at 475-
76. In that sense, Rule 404 reflects a categorical judgment,
rooted in the common-law tradition, that allowing a jury to
draw a propensity inference from evidence of a defendant’s
prior bad acts creates an unfairly “prejudicial effect that
outweighs ordinary relevance.” Old Chief v. United States, 519
U.S. 172, 181 (1997) (quoting United States v. Moccia, 681
F.2d 61, 63 (1st Cir. 1982) (Breyer, J.)).
At the same time, Rule 404(b) recognizes that evidence of
prior bad acts may “be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan,

-- 3 of 30 --

4
knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2). Rule 404(b), in other words, identifies
a category of evidence (prior bad acts) and prohibits using that
evidence for one relevant purpose (to prove a propensity for
such conduct) while allowing it for others.
But there is an exception to that propensity bar. In 1994,
Congress added Rule 414 to the Federal Rules of Evidence—
along with Rules 413 and 415—to address the admissibility in
sex-offense cases of evidence of the defendant’s past
commission of similar crimes. See Violent Crime Control and
Law Enforcement Act of 1994, Pub. L. No. 103-322, § 320935,
108 Stat. 1796, 2135-137. Rule 414 provides in relevant part
that “[i]n a criminal case in which a defendant is accused of
child molestation, the court may admit evidence that the
defendant committed any other child molestation” and that
such evidence may be “considered on any matter to which it is
relevant.” Fed. R. Evid. 414(a). Rule 414 thereby lifts the
general bar against the admission of evidence of prior bad acts
to infer a defendant’s propensity for child molestation.
In amending the rules, Congress appears to have
concluded that, for sexual offenses against children, a history
of similar acts is particularly probative of a disposition to do so
in the future. See 140 Cong. Rec. H8968, H8991 (daily ed.
Aug. 21, 1994) (statement of Rep. Molinari) (citing David J.
Karp, Evidence of Propensity and Probability in Sex Offense
Cases and Other Cases, 70 Chi.-Kent L. Rev. 15 (1994)).
Whatever Congress’s reasons, Rule 414 reflects a
determination that, in a case in which a defendant is charged
with a child-molestation offense, the factfinder should be
allowed to infer that because the defendant committed a child
molestation in the past, he is likely to have done so in the
current case.

-- 4 of 30 --

5
B.
In 2021, David Jeremy Zobel was indicted on, inter alia,
two counts of child-pornography distribution, 18 U.S.C.
§ 2252(a)(2), (b)(1), and one count of attempted sexual
exploitation of a minor, 18 U.S.C. § 2251(a), (e). See
Indictment (J.A. 151-53).
The grand jury indicted Zobel based on a series of online
messages exchanged in December 2020 between an
undercover FBI agent and someone the government believes
was Zobel. See Indictment (J.A. 151-52); Gov’t Feb. 21, 2025,
Mot. in Limine 5 (J.A. 129). According to the government, a
person using the username “slothllama99” and the display
name “Jeremy Teasdale” initiated a conversation with the
undercover agent on an online messaging platform called KIK
in response to an advertisement the agent posted on a different
website known for discussion and distribution of child
pornography. Gov’t Feb. 21, 2025, Mot. in Limine at 1-2 (J.A.
125-26). The individual introduced himself as a 40-year-old
man residing in Ohio and “a middle aged sex offender with lots
of good memories.” Id. at 2 (J.A. 126). During the
conversation, he shared links to and images of child
pornography with the agent, id. at 4 (J.A. 128), and expressed
interest in watching the agent sexually abuse the agent’s
purported 8-year-old daughter, id. at 3 (J.A. 127).
Seeking to gain the agent’s trust, the individual claimed
and attempted to prove that he was a convicted sex offender.
In that regard, the individual messaged the agent two
photographs of printed court documents showing a conviction
for coercion and enticement of a minor, 18 U.S.C. § 2422(b),
issued by the United States District Court for the Southern
District of Ohio. Id. In the photographs, the documents were
partially obscured by a hand, which covers the offender’s name

-- 5 of 30 --

6
but leaves visible parts of the case number and the Electronic
Court Filing (ECF) caption. See id. The individual also
explained that he sexually abused his 12-year-old daughter and
her friend, was arrested after the friend reported the abuse, did
“10 years in prison for it lol,” is “still on probation,” and that
“2008 is when it happened.” Id. at 2 (J.A. 126).
As told in the government’s filings below, an investigator
matched the visible information on the photographs of the court
documents shared in the chatroom to defendant Zobel’s court
records. Id. at 5 (J.A. 129). According to the government, the
court records showed that Zobel pled guilty to coercion and
enticement of a minor in violation of 18 U.S.C. § 2422(b) in
the Southern District of Ohio in 2011, that he committed the
crime leading to that plea between November 2008 and June
2009, and that he served approximately 10.5 years in prison and
was still on probation for it. Id. Other records confirmed that
Zobel lived at an address in Columbus, Ohio, and that the
individual who communicated with the agent had used the IP
address registered to Zobel at the same Columbus address. Id.
The government further proffered that when law-
enforcement agents showed up at Zobel’s workplace the day
after the online chat with the undercover agent, Zobel fled. Id.
at 6 (J.A. 130). According to the government, when a law
enforcement officer reached Zobel by phone and asked him
why he fled, he said he did not want to go back to jail. Id.
Agents then located and arrested Zobel and executed a search
warrant at his residence—a halfway house for sex offenders—
where officers seized a cell phone from Zobel’s nightstand. Id.
On the government’s telling, no messages were recovered from
the phone, but the phone had the KIK application software
downloaded, and records from KIK verified that the phone was
the device used in the above-described online chats with the
undercover agent. Mar. 13, 2025, Hr’g Tr. 12:8-24 (J.A. 353).

-- 6 of 30 --

7
On April 7, 2023, with pre-trial proceedings underway, the
government moved in limine to introduce evidence of Zobel’s
“prior sexual misconduct pursuant to Rules 404(b) and 414.”
Apr. 7, 2023, Mot. in Limine at 1 (J.A. 30). The government
sought to introduce the facts underlying Zobel’s 2011
conviction in the form of a one-paragraph summary of Zobel’s
plea colloquy. The proposed summary stated that, beginning
in December 2008, Zobel began exchanging sexually explicit
chats with a 13-year-old girl on the online social networking
service Myspace, and in June 2009, Zobel met her and her 12-
year-old friend in person and made them perform oral sex on
him. Id. at 4 (J.A. 33). The government’s motion argued that
the summary was admissible under Rule 404(b) to show
Zobel’s identity, intent, motive, and lack of mistake or
accident. Id. at 4-6 (J.A. 33-36). The government further
argued that the evidence was admissible to show Zobel’s
propensity for child molestation under Rule 414. Id. at 8-11
(J.A. 37-40).
At a status conference on September 8, 2023, the district
court denied the government’s motion from the bench. Sep. 8,
2023, Hr’g Tr. 10:14-13:3 (J.A. 267-70). Announcing that it
was handing down its “404(b) ruling,” the district court
explained that “the facts underlying [Zobel’s] prior conviction
are relevant to the present case” to show his motive and intent
to commit the charged crimes. Id. at 10:14, 11:2-13 (J.A. 268).
The court further explained that the proposed evidence “would
also be admissible” under Rule 414, which “provides an
exception to the general ban on propensity evidence contained
in Rule 404(b)” for “child molestation offenses.” Id. at 11:14-
12:12 (J.A. 268-69). The district court nonetheless excluded
the evidence under Rule 403 because “the probative value of
the evidence of the defendant’s prior bad acts is substantially
outweighed by the danger of unfair prejudice” in light of the
“risk that a jury will . . . improperly convict a defendant based

-- 7 of 30 --

8
on a propensity inference.” Id. at 12:5-13 (J.A. 269). For those
reasons, the district court “denied” “the government’s motion”
and “excluded” “the details of the defendant’s 2011
conviction . . . under Rule 403.” Id. at 13:1-3 (J.A. 270).
At the end of that same conference, the government asked
the court to “clarify the Court’s 404(b) ruling” and raised the
possibility that Zobel might “put identity at issue”—i.e., argue
that he was not the individual communicating with the
undercover agent. Id. at 18:11-19:4 (J.A. 275-76). As
government counsel started to explain that the probative value
of the facts underlying the prior conviction would increase “if
[identity] does become the defense”—because the match
between the particular conduct underlying Zobel’s prior
conviction and the conduct described by the individual in the
chat messages would tend to verify that Zobel was the
individual sending the chats—the district court interrupted
counsel to say, “if that were to arise, then that would be subject
to reconsideration.” Id. at 19:10-19 (J.A. 276).
On January 4, 2024, the government filed another motion
to admit evidence concerning the prior conviction. Jan. 4,
2023, Mot. in Limine at 1 (J.A. 116). The motion sought to
admit a redacted copy of Zobel’s 2011 judgment (omitting the
offense of conviction itself) and testimony from the lead FBI
agent explaining how investigators were able to identify Zobel
by matching the photographs sent by the KIK user with Zobel’s
court records. Id. at 5-6 (J.A. 120-21). The government further
sought to elicit testimony from Zobel’s probation officer
regarding Zobel’s living arrangements at the time of his arrest:
in particular, that he lived in a separate unit with locking doors
and its own internet connection, which the government argued
was “necessary . . . to show that no one other than the
defendant had access to the IP address associated with the KIK
account.” Id. at 6-7 (J.A. 121-22). It also sought to introduce

-- 8 of 30 --

9
Zobel’s statement to an FBI agent that he fled because he did
not want to go back to jail. Id. at 7 (J.A. 122). For reasons not
clear from the record, the district court never ruled on that
motion.
On February 21, 2025, with the January 2024 motion still
technically pending and the trial scheduled to start in less than
a month, the government filed another motion in limine for
evidence about Zobel’s prior conviction. See Gov’t Feb. 21,
2024, Mot. in Limine (J.A. 125-43). As relevant here, the
government again sought to introduce a one-paragraph
summary of Zobel’s 2011 plea colloquy. See id. at 7-8 (J.A.
131-32). The government acknowledged the court’s
September 8, 2023, ruling denying its first motion in limine but
explained that “[c]urrent defense counsel,” who replaced
defendant’s counsel after the earlier ruling, “has informed the
government that he does plan to assert an identity defense at
trial—in other words, that the defendant was not the individual
who communicated with the officer.” Id. at 6 (J.A. 130).
Additionally, the government said it had “limited and
sanitized” the proposed summary paragraph to remove any
details about the specific sexual act that Zobel admittedly
engaged in with the minors. Id. at 7 (J.A. 131). The revised
paragraph stated only that he “engaged in a sexual act” with a
13-year-old girl and did so again with the same girl and her 12-
year-old friend. Compare id. at 7-8 (J.A. 131-32), with Apr. 7,
2023, Mot. in Limine 4 (J.A. 33). In light of those “changed
circumstances,” Gov’t Feb. 21, 2025, Mot. in Limine 1 (J.A.
125), the government asked the court to “revisit its prior ruling”
and admit the revised summary of Zobel’s 2011 plea colloquy,
id. at 6-7 (J.A. 130-31).
In the same motion, the government informed the court
that the government would move at trial to “admit the entirety
of the defendant’s communications with the undercover

-- 9 of 30 --

10
officer . . . as these communications constitute the offense
conduct.” Id. at 7 (J.A. 131).
Zobel did not file an opposition to the government’s
February 2025 motion. Instead, he filed his own motion in
limine on the same day arguing, inter alia, that “the government
should not be allowed to admit evidence of [Zobel’s] prior
conviction because there have been no material changes since
the [c]ourt denied the government’s first [Rule] 404(b) motion
on September 8, 2023.” Zobel Feb. 21, 2025, Mot. in Limine
at 1 (J.A. 144).
The district court did not make individual rulings on those
motions. Instead, while reviewing the government’s list of
proposed witnesses at a pretrial conference on February 25,
2025, the district court addressed the evidentiary issues raised
by the parties’ motions. See, e.g., Feb. 25, 2025, Hr’g Tr. 10:4-
22:15 (J.A. 307-19). At one point, the court asked defense
counsel whether he intended to argue that Zobel was not the
person communicating with the undercover officer. Defense
counsel predicted that such an argument would be “part of [the]
defense.” Id. at 12:10-13:8 (J.A. 309-10). Later, government
counsel reminded the court that it intended to introduce the
entirety of the KIK user’s “actual chats with the undercover
agent,” which constituted the charged offense conduct,
including the photographs that the individual shared of his
“court paperwork to essentially verify that he was a convicted
sex offender” as well as his own “statements relating to his . . .
prior conviction.” Id. at 16:11-22, 18:13-18 (J.A. 313, 315).
As to the photographs shown in the chat, the district court
stated that “under [its] [Rule] 404(b) ruling,” the photographs
could not be introduced to the extent they “indicate prior
conviction for sexual offense” and would “have to be
blackened out” accordingly. Id. at 17:15-19 (J.A. 314). As to

-- 10 of 30 --

11
Zobel’s statements in the chat, the court said “that might have
to be excised” and ordered the government to submit those
messages to the court “[b]ecause my 404(b) ruling is what I
have told you it’s going to be. We’re not going to be cluttering
the jury’s mind up with that kind of stuff.” Id. at 18:19-25 (J.A.
315). By “404(b) ruling,” the district court seemed to refer to
its September 8, 2023, ruling from the bench denying the
government’s April 2023 motion in limine. The court thus
suggested that the 2023 ruling covered not just the factual
summary from Zobel’s plea colloquy that the government had
sought to introduce in that motion, but any evidence related to
Zobel’s prior conviction. The district court did not separately
address the “limited and sanitized” version of the plea-proffer
summary the government had proposed in its February 2025
motion in limine.
Evidentiary issues related to Zobel’s prior conviction came
up again at a pretrial conference on March 13, 2025. The
district court told government counsel: “[Y]ou’re not going
into the prior involvement. I already told you that. I don’t
know why you keep raising this up. I’ve already ruled on it.”
Mar. 13, 2025, Hr’g Tr. 13:7-9 (J.A. 354). Specifically
addressing the chat messages and photographs the self-
described sex offender shared with the undercover agent, the
district court said that any messages or photographs that make
“any reference to the prior criminal conviction” would be
inadmissible. Id. at 22:8-9 (J.A. 363). Having reviewed the
transcript, the court identified at least fifteen pages that it
concluded had “some reference” to the prior conviction,
including messages in which the individual alleged to be Zobel
described his prior offense and conviction. Id. at 18:21-21:3
(J.A. 361-62). The district court instructed the government to
share with the court and defense counsel by the following day
the “excerpts” of the chat messages that the government
intended to introduce, reminding the government to

-- 11 of 30 --

12
“cut[] . . . down” any references to Zobel’s prior convictions.
Id. at 20:20, 22:7 (J.A. 20, 22).
The next day, March 14, 2025, the government filed its
final motion in limine, attaching the chatroom messages and
photographs with redactions ordered by the court. Gov’t Br.
24. The motion also attached unredacted versions of the
messages and photographs. Gov’t Br. 24 n.16. The
government moved to admit the unredacted versions.
The parties convened for another pretrial conference on
March 17, 2025, the day before trial was set to commence.
Mar. 17, 2025, Hr’g Tr. 1 (J.A. 402). The district court started
the hearing by ordering three additional redactions to the
redacted set of chatroom messages. Id. at 2:16-3:21 (J.A.
403-04). The court then asked whether the government had
“anything else” “on the redacted chats.” Id. at 9:13 (J.A. 410).
Government counsel said she wanted to “clarify” that the
district court’s ruling was that the government may not
introduce any evidence—chat messages or otherwise—
referencing Zobel’s prior convictions. Id. at 12:16-13:3 (J.A.
413-14). The district court, with apparent frustration,
responded, “I have been crystal clear that no reference to his
prior conviction, no reference to his being on probation is to be
made.” Id. at 13:19-21 (J.A. 414). When the government then
followed up to “make sure that” “the plea colloquy from his
prior conviction would also be excluded as well,” the district
court confirmed that it, too, would be excluded. Id. at 14:1-23
(J.A. 415).
On March 18, 2025, the day trial was set to begin, the
government filed a notice of appeal. Notice of Appeal (J.A.
154). The notice designated as the order being appealed the
district court’s “[r]uling from the bench” on March 17, 2025,
“excluding evidence referring or relating to

-- 12 of 30 --

13
appellee/defendant’s prior conviction in 2011.” Id. At a
hearing later that afternoon, the district court asked the
government “which of the motions in limine you are seeking
an appeal of.” Mar. 18, 2025, Hr’g Tr. 2:20 (J.A. 469). The
government responded that it was appealing the denial of its
February 21, 2025, and March 14, 2025, motions. Id. at 2:24-
3:1 (J.A. 469-70). The district court observed that the
government had not appealed the denial of its April 2023
motion, which happened “over a year ago.” Id. at 3:2-4 (J.A.
470). The government responded that both the February 21 and
March 14 motions were “renewing arguments related to 404(b)
and 414, which we had originally made in our 2023 motion to
the Court.” Id. at 3:11-14 (J.A. 470).
Zobel moved to dismiss the appeal, arguing that this court
lacked jurisdiction over the government’s March 2025 appeal
because it was untimely. A motions panel of our court referred
that issue to the merits panel, so we consider it here.
II.
We review a district court’s determination under Rule 403
“with great deference, reversing only for grave abuse of
discretion.” United States v. Vega, 826 F.3d 514, 543 (D.C.
Cir. 2016) (quoting United States v. Clarke, 24 F.3d 257, 265
(D.C. Cir. 1994)). Our deference is rooted in the recognition
that the district court is in the “best position” to balance the
probative value of a particular piece of evidence against the risk
of unfair prejudice. United States v. Whitmore, 359 F.3d 609,
619 (D.C. Cir. 2004). That said, “[b]ecause a district court by
definition abuses its discretion when it makes an error of law,
the abuse-of-discretion standard includes review to determine
that the discretion was not guided by erroneous legal
conclusions.” Koch v. Cox, 489 F.3d 384, 388 (D.C. Cir. 2007)
(formatting modified).

-- 13 of 30 --

14
On appeal, the government challenges the district court’s
decision to exclude “three ‘buckets’ of evidence” related to
Zobel’s prior conviction: (1) “Zobel’s own references during
the chats to his 2008 abuse of two girls, his 2011 conviction,
and current supervision status, which he made to convince the
U[nder] C[over agent] to trust him”; (2) “the government’s
proposed summary of details from the 2011 plea proffer that
matched up to what Zobel told the UC about the prior crimes”;
and (3) “the incidental references to Zobel’s conviction and
supervised release in the proposed testimony of the probation
officer describing Zobel’s living arrangements, the FBI agent’s
explanation of Zobel’s identification, and Zobel’s admission at
the time of arrest in this case that he fled because he did not
want to go back to jail.” Gov’t Br. 40-41.
In response, Zobel argues that this appeal was not timely
filed under 18 U.S.C. § 3731, depriving us of jurisdiction to
hear it, and that even if we have jurisdiction we should affirm
because the district court did not gravely abuse its discretion in
excluding the evidence. Zobel Br. 20-22.
A.
We first address our jurisdiction to hear this appeal. The
government invokes our jurisdiction under 18 U.S.C. § 3731.
That statute allows the government to “file interlocutory
appeals of district court orders suppressing or excluding
evidence” provided certain conditions are met. United States
v. Kalb, 891 F.3d 455, 459 (3d Cir. 2018); see 18 U.S.C. § 3731.
As relevant here, such appeals must be “taken within thirty
days after the decision, judgment or order has been rendered.”
18 U.S.C. § 3731. Zobel contends that the thirty-day
requirement in Section 3731 is jurisdictional and that the
government failed to notice its appeal within thirty days of the

-- 14 of 30 --

15
district court’s order excluding the prior-conviction evidence.
Thus, Zobel argues, we lack jurisdiction to hear this appeal.
We hold that we have jurisdiction. Even assuming,
without deciding, that Section 3731’s thirty-day requirement is
jurisdictional, we have jurisdiction because the government
timely appealed.
We start with the district court’s decision to exclude the
government’s proposed summary of Zobel’s 2011 plea proffer.
As the government concedes, the district court excluded the
initial version of the proposed summary in September 2023,
when it denied the government’s first motion in limine asking
the district court to rule that summary admissible. See Gov’t
Br. 32. On February 21, 2025, the government filed another
motion in limine that included the revised proposed summary
paragraph of the facts to which Zobel pleaded guilty.
The government argues that the thirty-day period for
appealing the exclusion of that evidence did not begin to run
until much later, because it was only at a hearing on February
25, 2025, at the earliest, and at another hearing on March 17,
2025, that the district court “indicate[d] that the denial of the
government’s request was final.” Gov’t Br. 32. And, because
the government filed its notice of appeal the day after the
March hearing, Notice of Appeal (J.A. 154), the government
argues that its appeal was timely.
The government is correct. “[W]hen it is not clear that a
district court order has resolved an issue, the time for filing a
notice of appeal runs from the subsequent order that
unambiguously does so.” United States v. Cos, 498 F.3d 1115,
1122 (10th Cir. 2007); see United States v. Santiago-Colón, 917
F.3d 43, 51-52 (1st Cir. 2019). In September 2023, when the
district court excluded the government’s proposed plea-proffer
summary, the court said its decision “would be subject to

-- 15 of 30 --

16
reconsideration” if the defense chose to contest the identity of
the individual who communicated with the undercover officer.
Sep. 8, 2023, Hr’g Tr. 19:19 (J.A. 276). That statement
“expressed only a tentative view” on the admissibility of the
proposed plea-proffer summary and “did not finally
adjudicate” the issue. Cos, 498 F.3d at 1121-22. To the
contrary, it expressly invited the government to let things play
out in district court and to seek reconsideration should it
become necessary.
The district court later confirmed that defense counsel
intended to contest identity. The parties first brought that
development to the court’s attention on February 21, 2025,
when the government filed its third motion in limine alerting
the court of the “changed circumstances.” Gov’t Feb. 21, 2025,
Mot. in Limine 1 (J.A. 125). The first time the district court
suggested that the plea proffer summary would be excluded
notwithstanding the defense’s decision to contest identity was
at the February 25, 2025, hearing, where the court said that all
evidence related to Zobel’s “prior conviction for sexual
offense” would be excluded from the government’s case in
chief “[b]ecause my 404(b) ruling is what I have told you it’s
going to be. We’re not going to be cluttering the jury’s mind
up with that kind of stuff.” Feb. 25, 2025, Hr’g Tr. 17:17,
18:23-25 (J.A. 314-315). Even assuming the district court said
enough on February 25 to put the government on notice that it
had made a final decision to exclude the plea-proffer summary,
the government appealed within thirty days of that date.
In urging a contrary conclusion, Zobel does not address the
explicit conditionality of the district court’s September 2023
bench ruling regarding the initial plea-proffer summary.
Instead, treating that ruling as final, Zobel argues that the
government simply filed the same motion again and again to
enlarge the time for noticing an appeal. See Zobel Br. 24-25.

-- 16 of 30 --

17
But, for the reasons explained above, this is not a case in which
the government filed a motion, the district court finally denied
it, and the government repeatedly refiled its motion (or sought
reconsideration) in an effort to resuscitate its appeal. E.g., B.H.
by Pierce v. Murphy, 984 F.2d 196, 199 (7th Cir. 1993).
The timeliness analysis for the other categories of
evidence is even more straightforward. Unlike the plea-proffer
summary, the district court did not even address until February
25, 2025, whether to exclude the other evidence related to
Zobel’s prior conviction. To be sure, the district court later
suggested that its September 2023 bench ruling on the
government’s first motion in limine broadly excluded all
evidence related to Zobel’s prior conviction. See Mar. 18,
2025, Hr’g Tr. 3:23-4:1 (J.A. 470-71) (“My position has been
consistently over the last year-plus that the prejudicial effect far
outweighs the probative value in this particular case with
regard to the defendant.”); id. at 5:23 (J.A. 472) (“[M]y initial
ruling . . . really hasn’t changed conceptually.”). But the record
says otherwise.
The district court’s initial ruling from the bench addressed
“[t]he evidence that the government seeks to admit.” Sep. 8,
2023, Hr’g Tr. 12:3-4 (J.A. 269). The then-pending motion in
limine sought to introduce a particular piece of evidence. In
weighing the risk of unfair prejudice under Rule 403, the court
emphasized that “the government is not simply seeking to
admit the fact of the defendant’s prior conviction, but is seeking
to admit a detailed description of what the defendant did with
the two minor girls,” id. at 12:19-22 (J.A. 269)—that is, the
plea-proffer summary proposed in the government’s first
motion in limine. Neither the government’s motion nor the
court’s disposition of it considered the other evidence that the
district court later treated as excluded under its initial ruling.

-- 17 of 30 --

18
Under the circumstances, the government reasonably
understood the district court’s September 2023 ruling to have
conditionally excluded only the government’s initial proposed
plea-proffer summary. Because the district court announced its
decision to exclude the other evidence on February 25, 2025,
at the earliest—within thirty days of the government’s notice
of appeal—the government’s appeal was timely as to that
evidence as well.
Zobel never explains why the district court’s September 8,
2023, ruling should be understood to have excluded evidence
other than the initial plea-proffer summary. Instead, he relies
primarily on the government’s statements to the district court
at the March 18, 2025, hearing—after the notice of appeal was
filed—that its February 21 and March 14 motions in limine
were “both renewing arguments related to [Rules] 404(b) and
414, which [the government] had originally made in [its] 2023
motion.” Mar. 18, 2025, Hr’g Tr. 3:11-14 (J.A. 470). That
“admission,” Zobel argues, “contradict[s]” the government’s
arguments on appeal that “there were different ‘buckets’ of
evidence at issue.” Zobel Br. 26-27. But that “admission”
cannot bear the load that Zobel puts on it. The government
made no concession that it sought to introduce the same
evidence in each of those motions, let alone that it was
somehow waiving its appeal as to the evidence other than the
plea-proffer summary. At most, the government’s statements
conceded that its arguments about probativeness and prejudice
largely overlapped across the different pieces of evidence and
various motions seeking rulings on their admissibility.
For these reasons, the record shows that the government
timely appealed the district court’s decision to exclude Zobel’s
prior-conviction evidence within “thirty days after the
decision . . . ha[d] been rendered.” 18 U.S.C. § 3731. Our

-- 18 of 30 --

19
appellate jurisdiction confirmed, we proceed to the merits of
the government’s appeal.
B.
The government contends that the district court abused its
discretion in excluding under Rule 403 the evidence of Zobel’s
prior conviction. While it raises various challenges to the
court’s Rule 403 analysis, we need to address only one: its
contention that the district court’s analysis “stands on [a] faulty
legal . . . premise[]” because the court mistakenly treated a
propensity inference as unfair for purposes of the Rule 403
analysis. Gov’t Br. 57.
The district court’s analysis, at least as spelled out on this
record, rests on a misstatement of the legal relationship
between Rules 403 and 414. Rule 414 creates an exception to
Rule 404(b)’s general ban on the use of prior bad acts to prove
propensity to commit further acts of the same type. Rule 414
thereby lifts the general bar on propensity inferences to allow
a jury in a child-molestation case to consider evidence of the
defendant’s prior acts of child molestation to show the
defendant’s propensity to commit the charged offenses. That
prior-acts evidence remains subject to Rule 403 balancing for
unfair prejudice. But we read Rule 403 together with Rule 414
to mean that the chance that the jury will make a propensity
inference can no longer be treated as categorically “unfair”
under Rule 403. The district court thus erred in weighing the
probative value of the prior-conviction evidence against the
risk of unfair prejudice by apparently treating any propensity
inference potentially arising from defendant’s conviction of
child molestation as unfairly prejudicial. We accordingly
vacate the district court’s exclusion of evidence relating to
Zobel’s prior acts of child molestation and remand for the

-- 19 of 30 --

20
district court to reassess the admissibility of the evidence under
the correct standard.
1.
As many circuits have recognized, Rule 414 “create[s] an
exception to the general ban on propensity evidence contained
in Rule 404(b).” United States v. Seymour, 468 F.3d 378, 385
(6th Cir. 2006); see United States v. Jones, 748 F.3d 64, 70-71
(1st Cir. 2014); United States v. Larson, 112 F.3d 600, 604 (2d
Cir. 1997); United States v. LeCompte, 131 F.3d 767, 769 (8th
Cir. 1997); United States v. LeMay, 260 F.3d 1018, 1024 (9th
Cir. 2001); United States v. Castillo, 140 F.3d 874, 879 (10th
Cir. 1998); see also 1 McCormick on Evidence § 190.10 (9th
ed. Feb. 2025 update). Rule 414 authorizes the district court to
“admit evidence that the defendant committed any other child
molestation” and allows the jury to consider it on “any matter
to which it is relevant,” without exception for use to show
propensity. The Rule’s plain text thus allows the prosecution
to use evidence of a defendant’s prior acts of child molestation
for the purpose of demonstrating to the jury that the defendant
has a propensity to commit child molestation. The history and
context of Congress’s enactment of Rules 413, 414, and 415
confirm that conclusion. See Seymour, 468 F.3d at 384-85
(quoting 140 Cong. Rec. H8968, H8991 (daily ed. Aug. 21,
1994) (statement of Rep. Molinari)); LeCompte, 131 F.3d at
769.
Rule 414 evidence, like any other relevant evidence, is
subject to Rule 403 balancing. Every circuit to consider the
issue has so held. See United States v. Spoor, 904 F.3d 141,
154 (2d Cir. 2018); United States v. Kelly, 510 F.3d 433, 437
(4th Cir. 2007); United States v. Hruby, 19 F.4th 963, 968-69
(6th Cir. 2021); United States v. Rogers, 587 F.3d 816, 821 (7th
Cir. 2009); LeMay, 260 F.3d at 1027-28; United States v. Cole,

-- 20 of 30 --

21
162 F.4th 1070, 1079-80 (10th Cir. 2025); cf. Martinez v. Cui,
608 F.3d 54, 60 (1st Cir. 2010) (holding the same for Rule 415);
Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 144, 155-56 (3d
Cir. 2002) (same).
That said, “Rule 414 affects the district court’s analysis
under Rule 403 because it alters the category of permissible
inferences available to the jury.” Spoor, 904 F.3d at 154. That
is because Rule 414, as discussed above, supersedes Rule
404(b)’s general prohibition on the propensity inference and
allows a jury to draw the inference that a defendant committed
the charged child molestation because he has a propensity to do
so. “Because Rule 41[4] identifies this [otherwise
impermissible] propensity inference as proper, the chance that
the jury will rely on that inference can no longer be treated as
‘unfair’ for the purposes of the Rule 403 analysis.” Rogers,
587 F.3d at 822 (explaining how Rule 413, which is analogous
to Rule 414, changes the Rule 403 analysis); see Jones, 748
F.3d at 70-71 (relying on Rogers to hold the same for Rule 414
evidence). “While Rule 403 remains the same, a court’s Rule
403 analysis of prior conduct differs if the evidence falls under
Rule 404(b) versus Rule 41[4]; in the former analysis, the rule
has decreed that the propensity inference is too dangerous,
while in the latter, the propensity inference is permitted for
what it is worth.” Rogers, 587 F.3d at 822. Rule 414, in other
words, shifts the propensity inference from categorically
unfairly prejudicial to permissibly probative for purposes of the
balancing inquiry required by Rule 403.
Consistent with that modification, a district court retains
“great latitude,” as it ordinarily does under Rule 403, to assess
and weigh the probative value of Rule 414 evidence against the
risks identified in Rule 403, including the risk of unfair
prejudice. United States v. Warren, 42 F.3d 647, 656 (D.C. Cir.
1994); see Martinez, 608 F.3d at 60; Rogers, 587 F.3d at 822.

-- 21 of 30 --

22
“The term ‘unfair prejudice,’ as to a criminal defendant, 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, 519 U.S. at
180 (quoting Fed. R. Evid. 403). As other circuits have pointed
out, Rule 414 evidence may still pose a danger of “unfair
prejudice” because of its potential capacity to overwhelm the
jury with passion or bias, Rogers, 587 F.3d at 822, or to compel
the jury to convict “out of a sense of retribution rather than a
determination of guilt,” Hruby, 19 F.4th at 969. In discharging
its duty to prevent jurors from using a propensity inference to
punish the defendant for a prior offense, for example, or
because he is a bad person, Rule 403 retains an important role
in Rule 414 cases.
In sum, the jury may use Rule 414 evidence only to
determine whether the defendant committed the charged crime.
Insofar as a jury uses evidence of a defendant’s prior bad act to
infer that he is more likely to have committed the crime
charged, Rule 414 evidence does not unfairly prejudice the
defendant. Rule 414 does not, however, allow a jury to use
that evidence “to convict because it is disgusted by the
defendant’s criminal past rather than convinced that he did the
crime charged” or “because it believes the other-crimes
evidence shows the defendant is an evildoer who must be
locked up” regardless of whether he committed the charged
crime. Jones, 748 F.3d at 71. The risk that a given piece of
evidence will prompt the jury to convict on such improper
bases remains a significant consideration for a district court
assessing whether evidence offered under Rule 414 passes
muster under Rule 403.

-- 22 of 30 --

23
2.
In excluding the government’s proposed evidence of
Zobel’s prior conviction, the district court relied on the
reasoning in its September 2023 ruling from the bench denying
the government’s first motion in limine. Even though that
motion sought to introduce only the government’s proposed
2011 plea proffer summary, the district court later referred to
its September 2023 ruling as the basis for excluding any
reference to Zobel’s prior conviction from witness testimony
and the transcript of the chat messages the government
proposed to use at trial. See, e.g., Feb. 25, 2025, Hr’g Tr.
18:23-25 (J.A. 315); see also Mar. 18, 2025, Hr’g Tr 5:23-24
(J.A. 472) (“[M]y initial ruling . . . really hasn’t changed
conceptually.”). The flawed reasoning articulated in the district
court’s September 2023 ruling affects its decisions to exclude
all the relevant evidence at issue on appeal.
In that initial ruling, the court began by noting that, under
Rule 404(b), evidence of prior bad acts is “not admissible to
prove a defendant’s character, but is admissible for any non-
propensity purpose.” Sep. 8, 2023, Hr’g Tr. 10:19-22 (J.A.
267). The court acknowledged that “the facts underlying the
defendant’s 2011 conviction for coercion and enticement of a
minor” are relevant “at least with respect to” two non-
propensity purposes—motive and intent—because “the fact
that Zobel previously exhibited a sexual attraction to minors
and acted on that attraction is relevant to show that the
defendant truly intended . . . [that] the undercover officer . . .
abuse his daughter and videotape the abuse [for] the
defendant’s viewing, and was not simply discussing a harmless
sexual fantasy.” Id. at 10:23-11:13 (J.A. 267-68).
The district court then discussed Rule 414, which the court
(correctly) described as “provid[ing] an exception to the

-- 23 of 30 --

24
general ban on propensity evidence contained in Rule 404(b).”
Id. at 11:14-16 (J.A. 268). The court concluded that Rule 414
applied to the proposed evidence because Zobel is charged in
this case with “child molestation offenses” as defined in Rule
414 and the conduct underlying his 2011 conviction also
involved child-molestation offenses under that same definition.
Id. at 11:22-12:4 (J.A. 268-69) (quoting Fed. R. Evid.
414(d)(2)(B), (D)). Neither party disputes that conclusion.
The district court then (again, correctly) observed that its
conclusion that Rule 414 applies to the evidence at issue did
not end its analysis because “[a]ll evidence sought to be
admitted is still subject to Rule 403.” Id. at 12:5-6 (J.A. 269).
Applying Rule 403, the district court concluded that “the
probative value of the evidence of the defendant’s prior bad
acts is substantially outweighed by the danger of the unfair
prejudice.” Id. at 12:7-9 (J.A. 269). Spelling out the “unfair
prejudice” with which it was concerned, the court said there is
“a greater risk that a jury will . . . improperly convict a
defendant based on propensity inference if the defendant’s
prior sex-based offenses are admitted in a subsequent
prosecution for a sex-based offense.” Id. at 12:10-15 (J.A.
269).
Insofar as the district court treated a propensity inference
as per se “improper” in balancing the probative value of
Zobel’s prior-conviction evidence against the risk of unfair
prejudice, that was error. As explained above, because Rule
414 evidence invites a jury to consider prior acts of child
molestation for any matter to which they are relevant, a
propensity inference drawn from “any other child molestation”
can no longer be presumed to be “unfair” under Rule 403. Even
after recognizing that Rule 414 creates an “exception” to Rule
404(b)’s general ban on character evidence, the district court
appears to have conducted its Rule 403 balancing as if Rule

-- 24 of 30 --

25
414 did not remove the categorical bar against using prior acts
of child molestation to show a propensity to commit the
charged sex crimes involving a minor.
Our concern that the district court’s Rule 403 analysis may
rest on a faulty legal premise is compounded by the way the
court relied on United States v. Stout, 509 F.3d 796 (6th Cir.
2007). In a prosecution for receipt and possession of child
pornography, the government in Stout sought admission of
evidence that the defendant had been convicted in state court
of secretly videotaping a naked 14-year-old girl in the shower.
Id. at 797-98. Notably, the government did not invoke Rule
414 in Stout to admit the video, apparently because a video of
a naked child showering does not depict a minor engaging in
“sexually explicit conduct,” as defined in Chapter 110 of the
U.S. Code. See Fed. R. Evid. 414(d)(2)(B); 18 U.S.C.
§ 2256(2)(A); United States v. Hillie, 14 F.4th 677, 687-88
(D.C. Cir. 2021). Indeed, the court in Stout recognized that its
reasoning would be inapplicable in a case in which Rule 414
applies. 509 F.3d at 801-02. Applying Rule 404’s ban on use
of prior-acts evidence to show propensity, the Sixth Circuit in
Stout affirmed the district court’s conclusion that the prior-act
evidence created a significant risk of unfair prejudice. Id. at
801. Yet the district court here, faced with the government’s
prior-acts evidence to which Rule 414 undisputedly applies,
excluded it as unfairly prejudicial by analogy to Stout’s
analysis of evidence sought to be admitted under Rule 404.
The district court’s reasoning, at least as spelled out in the
record, causes us to doubt that the district court correctly
applied Rule 403 in a Rule 414 case. We therefore vacate the
district court’s decision to exclude Zobel’s prior-conviction
evidence and remand for reconsideration under the applicable
legal standard. See Vymetalik v. FBI, 785 F.2d 1090, 1098
(D.C. Cir. 1986). Remand is appropriate in this case because

-- 25 of 30 --

26
“[a]pplying Rule 403 to determine if evidence is prejudicial” is
“within the province of the [d]istrict [c]ourt in the first
instance.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S.
379, 388 (2008). We nonetheless provide guidance for the
proceedings on remand.
3.
In conducting its Rule 403 analysis on remand, the district
court should give due weight to the probative value of the
contested evidence relating to Zobel’s prior conviction. To
start, all the prior-acts evidence is probative of Zobel’s intent.
As the district court properly recognized, to prove the elements
of attempted sexual exploitation of a minor, 18 U.S.C.
§ 2251(a), (e), “the government must show that Mr. Zobel
intended to use or induce a minor to produce child
pornography.” Sep. 8, 2023, Hr’g Tr. 11:5-7 (J.A. 268); see
United States v. Torres, 894 F.3d 305, 311 (D.C. Cir. 2018).
Zobel’s previous conviction for child molestation tends to show
that he intended the undercover officer actually to abuse the
officer’s purported daughter and videotape the abuse for
Zobel’s viewing—instead of, for example, talking about the
acts as an agreed plan only to heighten the titillating effect of a
sexual fantasy.
Much of the evidence is also probative of identity. To
prove the charged offenses, the government must establish that
it was Zobel who sent the chat messages. The government
proffered testimony from a probation officer about Zobel’s
living arrangements tending to rebut evidence the defense said
it planned to introduce that other individuals had access to his
phone. That testimony has significant probative value as to the
identity of the individual sending the chats. Testimony from
the FBI agent explaining how a law enforcement agent linked
Zobel to the chats would also tend to identify Zobel as the

-- 26 of 30 --

27
perpetrator. The probative value is even stronger for the plea-
proffer summary and the chat messages because the conduct
underlying Zobel’s prior conviction matches the conduct the
individual in the chat messages describes as his own prior
offense, which strongly suggests that Zobel was the individual
sending the chats.
The government, of course, may have other evidence
through which it could establish that it was Zobel who
communicated with the undercover agent on the chats. Indeed,
at a hearing conducted on the same day as the government’s
notice of appeal in this case, the district court catalogued at
least six alternatives that it said “ha[ve] probative value” on the
issue of identity and no “prejudicial effect that outweighs
[their] probative value.” Mar. 18, 2025, Hr’g Tr. 4:6-5:14 (J.A.
471-72). It is certainly true that “what counts as the Rule 403
‘probative value’ of an item of evidence . . . may be calculated
by comparing evidentiary alternatives.” Old Chief, 519 U.S. at
184. The probative value of contested evidence should be
“discount[ed]” if an evidentiary alternative has “substantially
the same or greater probative value but a lower danger of unfair
prejudice.” Id. at 182-83. At the same time, a trial court must
“make these calculations with an appreciation of the offering
party’s need for evidentiary richness and narrative integrity in
presenting a case, and the mere fact that two pieces of evidence
might go to the same point would not, of course, necessarily
mean that only one of them might come in.” Id. at 183. We
cannot and do not purport to make those assessments in the first
instance. See Mendelsohn, 552 U.S. at 388. We trust the
district court will do so on remand with due regard for the
significant probative value of the proposed evidence and any
prejudice that may be considered consistently with Rule 414’s
distinctly broad relevance standard. See supra at 21-23.

-- 27 of 30 --

28
The district court should also consider the government’s
argument that the chat messages should be admitted because
“[c]ourts routinely admit evidence of a defendant’s boasts
about his prior crimes (however heinous) where those boasts
were made in furtherance of the charged offense.” Gov’t Br.
41 (emphasis omitted) (citing United States v. DeLuna, 763
F.2d 897, 915 (8th Cir. 1985)); see id. at 42 n.27 (collecting
cases). Some courts have treated such “boasts” as part of the
charged crime and hence not subject to the limitations of Rule
404(b), even where Rule 414 or a similar rule does not apply.
See, e.g., United States v. Levy, 594 F. Supp. 2d 427, 440
(S.D.N.Y. 2009); see also United States v. Bowie, 232 F.3d 923,
927 (D.C. Cir. 2000) (“Rule 404(b) does not apply to evidence
that is ‘inextricably intertwined’ with the crime charged . . .
because Rule 404(b) applies only to evidence of a defendant’s
‘other crimes, wrongs, or acts.’” (citation omitted)).
The government expressly stops short of making that
argument here because Rule 414 independently allows the
evidence at issue to be considered as propensity evidence. As
already discussed, the fact that Zobel had exhibited sexual
attraction to minors and acted on that attraction in the past may
be considered to show that he is likely to have done the same
thing again. That is an additional reason that the court should
have considered in deciding whether to admit it. Still, there is
force to the government’s contention that, regardless of
whether the chat messages are intrinsic to the charged offense
and thus not subject to the limitations of Rule 404(b), the fact
that “Zobel’s invocation of his past crimes” in the chat
conversation “was a vital part of his attempt to commit the new
crime” cuts in favor of admitting the chat evidence under Rule
403. Gov’t Br. 43. In assessing on remand the admissibility of

-- 28 of 30 --

29
those portions of the chat evidence, the district court should
address their role in the charged offense.
* * *
For the foregoing reasons, we vacate the district court’s
exclusion of evidence related to Zobel’s prior conviction and
remand for further proceedings consistent with this opinion.
So ordered.

-- 29 of 30 --

KATSAS, Circuit Judge, concurring: Rule 403 of the
Federal Rules of Evidence sets a “high barrier” for the
exclusion of relevant evidence on the ground of unfair
prejudice. United States v. Lieu, 963 F.3d 122, 128 (D.C. Cir.
2020). Indeed, we have held for decades that Rule 403 “tilts,
as do the rules as a whole, toward the admission of evidence in
close cases.” United States v. Green, 149 F.4th 733, 751 (D.C.
Cir. 2025) (quoting United States v. Moore, 732 F.2d 983, 989
(D.C. Cir. 1984)). As the Court persuasively demonstrates, the
contested evidence in this case has many permissible and
important uses—including to show that David Zobel has a
propensity to commit sex crimes against young girls. Ante at
26–29. So it would be surprising if Rule 403 were to support
exclusion of this highly relevant evidence. Nonetheless, I
agree with the Court’s decision to leave the Rule 403 balancing
to the district court in the first instance. See Sprint/United
Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387–88 (2008).

-- 30 of 30 --