USA v. Johnson

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA 	CRIMINAL ACTION
VERSUS 	No. 24-221
AARON TEROD JOHNSON 	SECTION I
ORDER AND REASONS
The government noticed its intent to introduce at trial in the above-captioned
matter three pieces of evidence of other acts committed by defendant Aaron Terod
Johnson (“Johnson”) pursuant to Federal Rules of Evidence 404(b) and 413. Johnson
filed an opposition1 to the introduction of the same. The government filed an amended
notice in response,2 to which Johnson filed a reply.3 With leave of the Court,4 the
government supplemented its response with an additional exhibit containing a
transcript of some of the evidence it referenced in its initial notice.5 The Court orally
ruled on the admissibility of this evidence at trial, with written order and reasons to
follow.
I. 	BACKGROUND
Johnson is charged with three counts: sex trafficking of a minor, in violation of
18 U.S.C. §§ 1591(a)(1) and 1591(b)(2) (Count 1); coercion and enticement of a minor
to engage in sexual activity, in violation of 18 U.S.C. § 2422(b) (Count 2); and
1 See R. Doc. No. 66.
2 R. Doc. No. 72.
3 R. Doc. No. 80.
4 R. Doc. No. 137.
5 See R. Doc. No. 136.
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interstate transportation of a minor for criminal sexual activity, in violation of 18
U.S.C. § 2423(a) (Count 3).6 All three counts involve the same minor victim (“Minor
Victim”).7
The government seeks to introduce the following evidence of other acts
committed by Johnson: (1) portions of Johnson’s recorded statement that he made
upon his arrest and in which he discusses: (a) an incident in which he drove to
Monroe, LA, picked up two females, and had commercial sex with one of them (the
“Monroe incident”); and (b) his statements that he has had sex with minors in the
past; and (2) text message conversations between him and a fifteen year-old minor
female (“Minor Victim 2”) which demonstrate that Johnson negotiated for commercial
sex from Minor Victim 2.8 It first argues that Johnson’s statements are admissible as
intrinsic evidence.9 It also argues, in the alternative, that all of the evidence is
admissible as extrinsic, other acts evidence pursuant to Rules 404(b) and 413.10
Johnson objects to the introduction of this evidence.11 He first argues that
“while portions of his statement may be intrinsic evidence, certainly not all of it is.”12
He further argues that the evidence is not admissible pursuant to Rules 404(b) and
6 See generally R. Doc. No. 51.
7 See id.
8 R. Doc. No. 72, at 1–2.
9 Id.
10 Id.
11 See generally R. Doc. No. 80.
12 Id. at 2.
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413 because they are being offered only to show his propensity to commit the charged
offenses.13
II. 	LEGAL STANDARDS
a. 404(b)
Rule 404(b) excludes evidence of prior bad acts if the purpose of its introduction
is to make a prohibited propensity argument. See United States v. Gutierrez-Mendez,
752 F.3d 418, 423 (5th Cir. 2014) (“Generally, Rule 404(b)(1) excludes evidence of a
person’s past misdeeds if the sole value of such evidence is to prove the existence of a
trait of character, and, from that trait, an inference of particular conduct.”); see also
Fed. R. Evid. 404(b)(1) (“Evidence of any other crime, wrong, or act 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.”).
“The purpose of Rule 404(b) is to guard against the inherent danger that the
admission of ‘other acts’ evidence might lead a jury to convict a defendant not of the
charged offense, but instead of an extrinsic offense.” United States v. Crawley, 533
F.3d 349, 353 (5th Cir. 2008) (internal quotations omitted). Rule 404(b) “is only
implicated when the offered evidence is extrinsic; evidence intrinsic to the charged
offense does not implicate the rule.” See id. at 353–54 (describing the intrinsic-
extrinsic distinction as a “threshold matter”); see also United States v. Matthews, No.
24-114, 2025 WL 1697528, at *1 (E.D. La. June 17, 2025) (Vance, J.) (“[B]efore
deciding whether Rule 404(b) bars admitting certain evidence, a court must make an
13 Id. at 3.
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initial inquiry into the relationship between the evidence of the other act and the
crimes charged in the indictment.”). “‘Other acts’ evidence is intrinsic when it is
inextricably intertwined with the charged offense, when both acts are part of the
same criminal episode, or when the ‘other act’ was a necessary preliminary step
toward the completion of the charged crime.” Crawley, 533 F.3d at 354.
The Court follows a two-step test for determining whether extrinsic evidence
is admissible: “(1) the extrinsic offense evidence is relevant to an issue other than the
defendant’s character” and (2) the evidence “possesses probative value that is not
substantially 	outweighed 	by 	its 	undue 	prejudice . . . and 	meet[s] 	the 	other
requirements of [Federal Rule of Evidence] 403.” United States v. Juarez, 866 F.3d
622, 627 (5th Cir. 2017) (quoting United States v. Beechum, 582 F.2d 898, 911 (5th
Cir. 1978) (en banc)). Rule 404(b)(2) articulates a number of permitted uses for such
evidence of prior bad acts: “[t]his evidence may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” The evidence must be relevant to this other
issue; the standard for such relevancy is dictated by Rule 401. See United States v.
Kinchen, 729 F.3d 466, 472 (5th Cir. 2013). Furthermore, “[i]n a criminal case, Rule
404(b) evidence must ‘be strictly relevant to the particular offense[s] charged.’”
United States v. Lockhart, 844 F.3d 501, 512 (5th Cir. 2016).
“[B]ecause prior bad act evidence is only conditionally relevant,” the evidence
is also subject to Rule 104(b)’s requirement that “sufficient evidence that the putative
bad act actually occurred” is presented. Gutierrez-Mendez, 752 F.3d at 423; see also
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Fed. R. Evid. 104(b) (“When the relevance of evidence depends on whether a fact
exists, proof must be introduced sufficient to support a finding that the fact does
exist.”). “The court may admit the proposed evidence on the condition that the proof
be introduced later.” Fed. R. Evid. 104(b). The burden of proof is “preponderance of
the evidence.” Gutierrez-Mendez, 752 F.3d at 424.14
Prior bad act evidence is also subject to Rule 403, meaning, the court must
determine whether the probative value of the evidence is “substantially outweighed.”
See Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.”). “In weighing the evidence under Rule
403, the court considers “(1) the government’s need for the extrinsic evidence, (2) the
similarity between the extrinsic and charged offenses, (3) the amount of time
separating the two offenses, and (4) the court’s limiting instructions.” Matthews, 2025
WL 1697528, at *2 (quoting United States v. Smith, 804 F.3d 724, 736 (5th Cir. 2015)
(quoting Kinchen, 729 F.3d at 473)). Additionally, the court “consider[s] the overall
prejudicial effect of the extrinsic evidence.” Juarez, 866 F.3d at 627.
14 “In determining whether the Government has introduced sufficient evidence to
meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that
the Government has proved the conditional fact by a preponderance of the evidence.”
Huddleston v. United States, 485 U.S. 681, 690 (1988). Rather, “[t]he court simply
examines all the evidence in the case and decides whether the jury could reasonably
find the conditional fact—here, that the televisions were stolen—by a preponderance
of the evidence.” Id.
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b. Rule 413
Federal Rule of Civil Procedure 413 states: “In a criminal case in which a
defendant is accused of a sexual assault, the court may admit evidence that the
defendant committed any other sexual assault. The evidence may be considered on
any matter to which it is relevant.” This latter sentence indicates that Rule 413 allows
for the admission of evidence to show propensity. See United States v. Dillon, 532
F.3d 379, 387 (5th Cir. 2008) (“Generally, evidence of prior bad acts is not admissible
to show propensity. F ED. R. EVID. 404(b). Rule 413(a), however, allows the admission
of evidence of prior sexual assaults for any relevant purpose, including to show
propensity, in sexual assault cases.”)
“To be admissible under Rule 413, the uncharged ‘offense of sexual assault’
need not be established by a conviction.” Id. (citing United States v. Guidry, 456 F.3d
493, 503 (5th Cir. 2006)). Still, “the district court must make a preliminary finding
that a jury could reasonably find by a preponderance of the evidence that the
defendant committed the other act and that it constituted an offense of sexual assault
for purposes of Rule 413.” Id. (internal quotations omitted).
Rule 413(d) defines sexual assault. See Fed. R. Evid. 413(d). As is relevant to
the present motion, sexual assault is defined as “a crime under federal law or under
state law . . . involving: . . . contact, without consent, between any part of the
defendant’s body–or an object-–and another person’s genitals or anus; contact,
without consent, between the defendant’s genitals or anus and any part of another
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person’s body; . . . or . . . an attempt or conspiracy to engage in conduct described
[above.]”
“Evidence admissible pursuant to Rule 413 is still subject to the Rule 403
balancing test.” United States v. Dillon, No. 05-314, 2006 WL 950104, at *2 (E.D. La.
Apr. 10, 2006) (Africk, J.), aff’d, 532 F.3d 379 (5th Cir. 2008).
III. 	ANALYSIS
a. Intrinsic Evidence
The government argues that certain evidence is “intrinsic.”15 Specifically, the
recorded Mirandized statements Johnson made to law enforcement following his
arrest (1) about the Monroe incident and (2) that “he has had sex with underage girls
at times and at other times did not ask enough questions about girls’ ages.”16 The
government represents that this information provides “background and context” to
Johnson’s later recorded confession to transporting and having sex with Minor
Victim.17 According to the government, the statements are intrinsic because they are
“inextricably intertwin[ed]” with his subsequent confession.18
Johnson contests that the proffered statements are intrinsic evidence, because
they are not “so inextricably intertwined” or necessary to complete the story of the
crime.19 He argues that “[m]erely because Mr. Johnson made statements about one
act, and then another act, does not mean they are so intertwined as to be unable to
15 See R. Doc. No. 72, at 15.
16 Id.
17 Id.
18 Id.
19 R. Doc. No. 80, at 3.
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present the Government’s case without this other bad act evidence.”20 The Court
agrees with Johnson.
The government relies on United States v. Durham, in which the Tenth Circuit
found that the district court had not abused its discretion by holding certain video
confessions made by the defendant were intrinsic rather than Rule 404(b) evidence.
902 F.3d 1180, 1224 (10th Cir. 2018). Specifically, the Tenth Circuit held that the
district court did not err in finding that the defendant’s statements that he struggled
with “a temptation to touch children and to be with other men” were intrinsic to his
offense of traveling abroad and engaging in noncommercial sexual acts with minors,
because “they provided ‘contextual or background information’ regarding his actions
when confronted with the allegations against him and his confession” on video. Id. at
1225. The Tenth Circuit also found it irrelevant that the statements were made after
the charged conduct had occurred, because they bore directly on his response to the
present 	allegations 	against 	him. 	See 	id. 	(“Although 	[the 	defendant] 	made 	his
statements after the charged conduct, they were nonetheless intrinsic evidence
because they bear directly on his response to the allegations against him.” (internal
alterations and quotations omitted)).
Although Johnson’s statements arise from his interview with agents following
his arrest for the instant offenses, the Court cannot analogize Johnson’s statements
regarding the Monroe incident to the statements made by the defendant in Durham.
For one, Johnson’s statements about the Monroe incident were made spontaneously
20 Id.
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at the start of the interview, due to his erroneous belief that he was being arrested
because 	of 	his 	conduct 	with 	respect 	to 	the 	Monroe 	incident.21 	Similarly, 	his
statements regarding prior instances of sex with minor girls seem to follow from his
telling of the Monroe incident, rather than as an explanation of his conduct with
respect to Minor Victim.22 Additionally, Johnson’s arrest and statement occurred in
August 2024, five months after the incident with Minor Victim allegedly occurred.23
In this way, Johnson’s statements are more like those made by the defendant
in United States v. Kinchen, who was charged with a single count of distributing 50
grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). See generally 729
F.3d 466 (5th Cir. 2013). In that case, the government sought to admit testimony from
an officer that had stopped and searched the defendant in a separate instance, in
which the officer would testify that he found the defendant in possession of drugs and
that the defendant had told him that he sold crack cocaine “because he did not know
how to do anything else and that he had mouths to feed.” Id. at 470. The district court
held that the evidence was admissible as intrinsic evidence or, in the alternative, that
it was admissible pursuant to Rule 404(b) because “it was relevant to either identity,
motive, or intent because it showed that [the defendant] was a dealer, rather than
merely a user, of cocaine.” Id. at 471.
21 R. Doc. No. 72, at 15; see also R. Doc. No. 136-2, at 1–2 (“SA Theriot: Alright. So I
know when we were out by your apartment, you had mentioned that you kind of
thought you knew what what this was about. . . . SA Zuppardo: Ok. So tell us more
about like what happened, that altercation, and where was that, tell us about that,
and how that all started.”).
22 See R. Doc. No. 136-2, at 13–14.
23 R. Doc. No. 72, at 6.
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The Fifth Circuit disagreed, concluding that “the district court was incorrect
in stating that the testimony regarding 	the prior possession and concomitant
statement was intrinsic.” Id. In so holding, the Fifth Circuit noted that “[t]here [wa]s
no evidence linking that earlier possession to the [charged] drug deal.” Id. 	It also
noted the temporal distance between the two incidents. See id.
As this Court has recently stated in another case, “evidence is not inextricably
intertwined with evidence of the charged offenses simply because it is evidence of the
investigation of the crime.” United States v. Dominick, No. 24-44, 2025 WL 1593077,
at *4 (E.D. La. June 5, 2025) (Africk, J.) (declining to admit evidence of the
defendant’s possession of a handgun on a separate occasion despite the government’s
assertion that this evidence was admissible to show “context . . . for the search and
how this case came to be”). Like the case in Dominick, “[t]he government does not
explain 	why 	its 	evidence 	of 	the 	charged 	offenses 	could 	not 	be 	introduced
independently of the [extrinsic evidence.]”24 Accordingly, the Court finds that the
evidence at issue is not intrinsic evidence and, therefore, is subject to Rule 404(b).
Crawley, 533 F.3d at 353–54.
24 Although the government represents that Johnson’s admission of prior instances
he has had sex with minors “were made immediately preceding his statements about
Minor Victim” and that “Johnson used Minor Victim as an example of one of the
underage girls with whom he has had sex,” the government has not provided the
Court with Johnson’s confession with respect to Minor Victim such that it could
determine whether these statements were necessary to understanding Johnson’s
subsequent confession. See Dominick, 2025 WL 1593077, at *4. Nevertheless, because
the Court finds this evidence is admissible on other grounds, see infra subsection
III(b)(i), it is not necessary to examine how the statements are intertwined with
Johnson’s later confession in order for them to be admissible.
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b. Extrinsic Evidence -- Rule 404(b)
i. 	The Monroe incident
The government argues that Johnson’s statements regarding the Monroe
incident show that “Johnson has a modus operandi of driving long distances to have
sex with younger females in exchange for money, arguing with the females, and then
claiming that he was ‘baited’ into [the] whole situation and being ‘blackmailed.’”25
The government further represents that the Monroe incident is relevant to
Johnson’s intent because Johnson claims that “he paid Minor Victim, and later had
sex with Minor Victim, because she was blackmailing him,” and thus, the fact that
he offered “the same excuses when describing the Monroe incident” renders less
plausible that he had innocent intent.26 Furthermore, the government states that
Johnson’s admission that he had sex with one of the women in exchange for money
during the Monroe incident is relevant to his intent when transporting Minor Victim
because it shows that Johnson has a “pattern of driving to another town to meet with
females for the purpose of commercial sex.”27
Regardless of whether this evidence is admissible pursuant to Rule 404(b), the
Court agrees with Johnson that his statements with respect to the Monroe incident
contain statements about illegal substance use,28 threatened use of a firearm to harm
25 R. Doc. No. 72, at 16.
26 See id.
27 Id.
28 See R. Doc. No. 136-2, at 3.
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the females and a baby,29 and admission to prostitution,30 all of which have the
potential of unfair prejudice. The Monroe incident also requires considerable time
and has the potential to confuse the jury. United States v. Yi, 460 F.3d 623, 633 (5th
Cir. 2006) (“Some ‘hallmarks of highly prejudicial evidence” include ‘violent acts,’ . . .
and acts that ‘occupy more of the jury’s time than the evidence of the charged
offenses.’”).
At this juncture the Court finds that the probative value of the Monroe incident
evidence is substantially outweighed by the possibility of undue prejudice and
confusing the issues. See F ED. R. EVID. 403. Accordingly, the Court orders that the
government shall not use evidence of the Monroe incident in its case-in-chief.
ii. 	Statements about past sex with minors
According to the government, Johnson’s statements about having had sex with
minors in the past are relevant to his intent and motive.31 Johnson’s statements
include an admission that he has “been involved with girls 17 before” and that on at
least two occasions he had sex with a minor knowing she was under 18 years old.32
He also stated that there have “been times that [he] ha[s] been approached, and [he]
might, might not ask enough questions” about a female’s age.33
Johnson, for his part, suggests that this evidence is relevant only to show
propensity and is being introduced only to show that Johnson “is a bad person acting
29 Id. at 7.
30 Id. at 12.
31 See R. Doc. No. 72, at 17.
32 See R. Doc. No. 136-2, at 14–16.
33 Id. at 14.
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in conformity therewith.”34 Further, Johnson argues that even if relevant for a
permissible purpose, the evidence is nonetheless unduly prejudicial and inadmissible
pursuant to Rule 403.35
First, the jury could reasonably conclude that Johnson’s prior sexual acts with
minors occurred, and that Johnson was the person who committed those acts. Cf.
United States v. Turner, No. 21-40634, 2022 WL 4009180, at *3 (5th Cir. Sept. 2,
2022) (“The Government plainly met its burden of establishing that [the defendant]
was 	arrested 	in 	2009. 	[The 	defendant] 	himself 	volunteered 	that 	the 	arrest
occurred . . . . [The defendant] provides no evidence to suggest that he was lying to
officers when he recounted these facts.”).
As for relevance, the government directs the Court to the Fifth Circuit’s
holding in United States v. Santos, in which it found admissible under Rule 404(b)
the defendant’s confession during a post-arrest interview that he was “sexually
attracted to underaged boys” and that “he had engaged in sexual contact in the
Philippines with about 15 underaged boys [in the past].” See No. 21-10381, 2022 WL
1196761, at *1 (5th Cir. Apr. 22, 2022). The Fifth Circuit found that this evidence
“showing that [the defendant] was sexually attracted to underaged boys and had
acted on that attraction in the past was highly probative of [the defendant’s] intent,
motive, and knowledge” with respect to a charge pursuant to § 2422(b). Id. at *2.
34 R. Doc. No. 80, at 4.
35 Id.
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Count 2, which charges Johnson with violation of § 2422(b), also requires that
Johnson believed Minor Victim was less than 18 years old. In Johnson’s recorded
statement he states that he only learned that Minor Victim was sixteen years old
after having sex with her the first time.36 His admission that he’s had sex with minors
in the past casts doubt on his claim that he did not believe she was a minor. Cf. United
States v. 	Wolford, 	386 	F. App’x 	479, 484 	(5th 	Cir. 	2010) 	(holding 	admissible
transcripts of the defendant’s online conversations with anonymous third parties that
“contain[ed] statements from [the defendant] expressing an interest in having sex
with minor children and his assertion that he had previously raped a minor” because
they “cast doubt on [the defendant’s] assertion that, when chatting with [the minor
victim], he believed he was roleplaying with another adult,” for purposes of § 2422).
This evidence is also probative of whether Johnson had the requisite criminal
intent to engage in illicit sexual activity with Minor Victim. See United States v.
Sebolt, 460 F.3d 910, 917 (7th Cir. 2006) (“Prior instances of sexual misconduct with
a child victim may establish a defendant’s sexual interest in children and thereby
serve as evidence of the defendant’s motive to commit a charged offense involving the
sexual exploitation of children.”); United States v. Ruiz, 701 F. App'x 871, 875 (11th
Cir. 2017) (“Evidence indicating that [the defendant] was sexually interested in young
boys makes it more likely that he intended to persuade or entice a 13-year-old boy to
engage in sexual activity with him.”).
36 See also R. Doc. No. 72, at 18.
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Although the statements are “undoubtedly prejudicial,” cf. id., the Court
cannot find in light of this precedent and Johnson’s proffered defense that any
prejudice is unfairly prejudicial. See United States v. McRae, 593 F.2d 700, 707 (5th
Cir. 1979) (“Relevant evidence is inherently prejudicial; but it is only [u]nfair
prejudice, [s]ubstantially outweighing probative value, which permits exclusion of
relevant matter under Rule 403.”).
iii. 	Evidence relating to Minor Victim 2
The government argues that the text conversations with Minor Victim 2 are
relevant to Johnson’s motive, knowledge, and intent and, additionally, demonstrate
his modus operandi.37 The government represents that Johnson has claimed during
jail calls that “he did not know that Minor Victim was underage until he had already
transported her across state lines, at which point he only paid her because she
blackmailed him.”38 According to the government, the text message evidence with
respect to Minor Victim 2 therefore shows that “Johnson knew that Minor Victim was
underage from the inception, because it shows that Johnson would not have been
deterred by such a disclosure.”39
Additionally, the government argues that the “parallels” between Johnson’s
interactions with Minor Victim and Minor Victim 2, both of whom are teenage
runaways, show Johnson has a “modus operandi of exploiting vulnerable teens who
37 Id.
38 Id.
39 Id.
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are unlikely to have resources to refuse him or a community to assist them.”40
Likewise, the government contends that the evidence with respect to Minor Victim 2
also “undermines Johnson’s claim that Minor Victim withheld her age until after
Johnson transported her and then sprang the information on him as leverage to
extract a payment.”41
First, the jury could reasonably conclude that the text message conversation
with Minor Victim 2 occurred, and that Johnson was the person with whom Minor
Victim 2 was texting. The jury could find from testimony elicited at trial that the
messages extracted from the phones were seized from Johnson upon his arrest and
searched pursuant to a federal search warrant.42 Also, Minor Victim 2 testified at
trial to authenticate the text message conversation between her and Johnson.43 Cf.
United States v. Sims, 550 F. Supp. 3d 907, 915 (D. Nev. 2021) (finding that there
was “sufficient evidence of the Defendant’s prior conduct because the Defendant’s
previous victims will be testifying to this conduct”). Moreover, Johnson does not
refute that the text message exchange occurred or that he sent these text messages.44
Johnson’s conversation with Minor Victim 2 is relevant to whether Johnson
believed Minor Victim was a minor, an element of § 2422(b), because his interactions
with Minor Victim 2, who he likely believed was a minor because she told him she
40 Id.
41 Id.
42 R. Doc. No. 72, at 9.
43 Johnson objected to the government introducing its Rule 404(b) evidence “without
the actual witnesses to testify to the same.” R. Doc. No. 80, at 4.
44 See generally id.
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was 15 years old,45 are similar to his interactions with Minor Victim. Cf. United States
v. Monsivais, 737 F. App’x 668, 672 (5th Cir. 2018) (finding “highly relevant” to the
issue of whether the defendant “believed” the minor victim was under 18 years old,
for purposes of conviction pursuant to § 2422(b), evidence of the defendant’s similar
conversation with another person he “likely believed was a child”).
Likewise, the text messages with Minor Victim 2 are relevant to demonstrate
both Johnson’s intent and motive. Johnson’s texts to Minor Victim 2 plausibly
indicate that he planned to drive over an hour away to pick up Minor Victim 2 and
that he intended to have sex with Minor Victim 2 once they returned.46 Johnson has
explicitly put his intent and motive at issue by claiming that he only brought Minor
Victim to New Orleans to “help” her, and not because he intended to have commercial
sex with her.47 The similarities between Johnson’s interactions with Minor Vitim and
Minor Victim 2 are relevant to whether Johnson had the requisite intent and whether
a dominant motive of his travel from Mississippi to Louisiana was his intent to engage
in illicit sexual activity with Minor Victim. See Beechum, 582 F.2d at 911 (“[B]ecause
the defendant had unlawful intent in the extrinsic offense, it is less likely that he had
lawful intent in the present offense.”); United States v. Hite, 916 F. Supp. 2d 110, 121
45 R. Doc. No. 72-1, at 13.
46 Id. at 5 (Minor Victim 2’s text to Johnson: “Whachu tryn do[?];” Johnson’s reply:
“Fuck”); id. at 32 (Johnson’s text to Minor Victim 2: “It’s just an hour drive”); id. at
34 (“On the way”); id. at 42 (“. . . I’m trippin on me havin to drive all the way to
Laplace to turn around”); id. at 45 (“You prolly can’t even fuck or suck no dick Fareal,
but want me to pay you 350 . . .); see also id. at 47 (Johnson texting Minor Victim 2
four days after learning her age: “You busy;” “Tryna come get you”).
47 See R. Doc. No. 72, at 16.
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(D.D.C. 2013) (“[E]vidence the Defendant engaged in explicit discussions of sexual
contact with minors, regardless of whether or not he followed through with plans to
meet in person, is probative of his intent to entice or coerce the minors to engage in
illicit sexual activity.”).
In 	balancing 	the 	probative 	value 	of 	this 	evidence 	against 	the 	potential
prejudice, the Court finds that any prejudice does not substantially outweigh its
probative value. Johnson’s texts with Minor Victim 2 are no greater in magnitude or
more violent than Johnson’s acts with respect to Minor Victim. See Yi, 460 F.3d at
633; United States v. Robinson, 702 F.3d 22, 37–38 (2d Cir. 2012) (upholding the
district 	court’s 	Rule 	403 	determination 	because 	the 	“evidence 	was 	no 	more
inflammatory than the child sex trafficking charges involving” the minor victim).
Moreover, the other factors this Court considers—namely, the government’s need for
the extrinsic evidence, the similarity between the extrinsic and charged offenses, the
amount of time separating the two offenses, and the court’s limiting instructions—
weigh in favor of admitting the evidence. In addition to the similarities between
Johnson’s interactions with Minor Victim and Minor Victim 2, the two interactions
come less than a month apart.48 And in light of Johnson’s claims with respect to his
belief, intent, and motive, the government has great need for this evidence which
renders Johnson’s claims less plausible.
For these reasons, the Court will permit the government to introduce this
evidence pursuant to Rule 404(b) in its case-in-chief.
48 See R. Doc. No. 72-1.
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c. 	Rule 413
The government additionally argues that Rule 413 allows for the introduction
of Johnson’s statements indicating that he has had sex with minors in the past and
the text messages with Minor Victim 2.49
As a threshold matter, the government argues that Johnson is charged with
sexual assault because he is charged with having commercial sex with a minor, and
“minors lack the capacity to consent, and so sexual contact with a minor is always
without consent.”50 For this same reason, the government argues that Johnson’s
statements that he has had sex with minors in the past necessarily involve sexual
assault because he is admitting to having “contact, without consent, between the [his]
genitals . . . and any part of another person’s body.”51 See also Rule 413(d)(3). As for
the evidence involving Minor Victim 2, the government contends that this constitutes
an attempted sexual assault pursuant to Rule 413(d), which includes attempted
sexual assault in the definition of sexual assault.
Johnson does not contest that Rule 413 applies, rather, he argues that this
evidence “is still subject to the balancing test of [Rule] 403,” and should be excluded
on that ground.52 The Court disagrees with Johnson.
49 See R. Doc. No. 72, at 20–21.
50 Id. at 21 (quoting United States v. Rogers, 587 F. 3d 816, 820 (7th Cir. 2009) (finding
that “sexual assault” under Rule 413 included “attempted non-forcible sexual contact
with a minor”)).
51 Id.
52 See R. Doc. No. 80, at 5–6.
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In United States v. Lewis, the Fifth Circuit upheld the inclusion of prior
instances in which the defendant had sex with minor girls pursuant to Rule 413 as
relevant evidence toward his § 2423(a) charges. See generally 796 F.3d 543 (5th Cir.
2015). With respect to these charges, the Fifth Circuit noted that he had “not use[d]
physical force against the girls to have sex with them” but that they were each
fourteen years old when he first had sex with them. See id. at 544.
Implicit in the Fifth Circuit’s holding that Rule 413 applies is that a defendant
transporting a minor across state lines with the intent that they engage in criminal
sexual activity, without evidence of use of physical force, can constitute sexual assault
for purposes of Rule 413. See Rule 413 (stating that the Rule applies “[i]n a criminal
case in which a defendant is accused of a sexual assault . . .”). As relied on by the
government, the Seventh Circuit came to this conclusion explicitly in United States
v. Rogers, holding that there is nothing in the construction of Rule 413 to suggest that
“Congress meant ‘consent’ to mean anything other than its general legal definition.”
587 F.3d 816, 820 (7th Cir. 2009) (disagreeing with the district court’s interpretation
of consent that found “an attempt to have sex with a minor could be consensual for
the purpose of Rule 413 if the minor willingly participated” because as a matter of
law “[m]inors lack the capacity to consent”).53
53 The Court notes that in United States v. Martinez, the Fifth Circuit chose not to
resolve what it described as “the difficult 413 question” raised by the defendant in
that case. See No. 21-10383, 2022 WL 2315877, at *1 (5th Cir. June 28, 2022). There,
the defendant had been charged with enticing an eleven-year-old to engage in sexual
activity in violation of § 2422(b). See id. The defendant had argued on appeal that he
was 	not 	charged with 	a 	sexual assault 	offense, 	the 	necessary 	prerequisite 	to
application of Rule 413, but rather was charged with “attempted solicitation.” See
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As stated previously, Johnson does not contend that Rule 413 does not apply
to the charges he faces.54 Moreover, the government argued and presented evidence
at trial that Johnson did, in fact, have sex with Minor Victim.55 In light of this, and
the Fifth Circuit’s implicit holding in Lewis, the Court finds that Johnson was
charged with sexual assault as defined in Rule 413(d). For similar reasons, the Court
finds that Johnson’s statements that he has had sex with minors in the past are
evidence of prior sexual assaults as defined in Rule 413(d).56
With respect to relevance, evidence that Johnson has had sex with minors is
probative of his proclivity for having sex with underage girls, which is relevant to
whether he had the requisite criminal intent with respect to all three charges. See,
e.g., Lewis, 796 F.3d at 547 (“A proclivity for having sex with underage girls made it
significantly more likely that he transported the named victims across state lines
United States of America, Plaintiff-Appellee, v. John David Martinez, Defendant-
Appellant, 2022 WL 357454, at *2 (arguing that § 2422(b) criminalizes an attempt to
achieve a mental state rather than the performance of the sexual acts themselves).
In so doing, the defendant advocated for a finding that “a charge under § 2422(b) does
not automatically make it an accusation of attempted sexual assault,” and instead
“[a] court must look at what the government proved.” Id. at *5. Rather than deciding
the question, the Fifth Circuit held that the district court had properly admitted the
evidence that the defendant had, or attempted to, sexually assault a number of
victims when they were young under Rule 404(b). In the present case, and unlike the
defendant in Martinez, Johnson has not argued that Rule 413 does not apply to the
charges he faces. See generally R. Doc. No. 80 Moreover, unlike the defendant in
Martinez, Johnson has not been charged with an attempted violation of § 2422(b). See
R. Doc. No. 51.
54 See generally R. Doc. No. 80.
55 See also R. Doc. No. 72, at 4.
56 See R. Doc. No. 136-2, at 16.
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with the intent that they engage in criminal sexual activity, which was an element of
18 U.S.C. § 2423(a), the charged crime.”).
Like the Court found above, this evidence’s probative value is not substantially
outweighed by any danger of undue prejudice.57 The Court will also mitigate any
potential for unfair prejudice by instructing the jury appropriately. Cf. id. at 548
(“[A]ny potential for unfair prejudice here was mitigated by the district court’s careful
instruction to the jury that ‘you are here to decide whether the government has
proved beyond a reasonable doubt that the defendant is guilty of the crimes charged.
The defendant is not on trial for any act, conduct, or offense not alleged in the
indictment.’” (internal alterations omitted)). Accordingly, the Court finds that, in the
alternative to its Rule 404(b) ruling supra, the evidence of Johnson’s statements58
that he has had sex with minors in the past is admissible pursuant to Rule 413.
IV. 	CONCLUSION
Accordingly,
IT IS ORDERED that the Court grants and denies the introduction of the
government’s noticed Rules 404(b) and 413 evidence consistent with the Court’s
rulings set forth above.
New Orleans, Louisiana, December 10, 2025.
_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
57 See supra p. 15.
58 R. Doc. No. 136-2, at 14–16.
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