In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-2506

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

A NDREW F. M ILLER,
                                           Defendant-Appellant.


            Appeal from the United States District Court
                 for the Southern District of Illinois.
        No. 3:09-cr-30136-WDS-1—William D. Stiehl, Judge.



     A RGUED F EBRUARY 16, 2012—D ECIDED JULY 27, 2012




 Before P OSNER, R IPPLE, and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. Andrew Miller was charged
with one count of distributing, one count of receiving,
and three counts of possessing child pornography. At trial,
Miller testified that he had no interest in viewing child
pornography, and he did not “seek out images of naked
children.” Finding that Miller’s testimony opened the
door to evidence of his intent, knowledge, and lack of
mistake, the district court allowed the government to
2                                             No. 11-2506

question him about allegations of sexual misconduct
made by his six-year-old granddaughter and his teenage
stepdaughter. The court prohibited the government
from proving up these allegations with extrinsic evi-
dence, however, and it instructed the jury at the close of
the evidence that the evidence was relevant only to “the
questions of [Miller’s] intent, knowledge, and lack of
mistake.” The jury convicted Miller on all counts.
  Miller appeals his conviction, arguing that the district
court erred by allowing the government to question him
about his granddaughter’s and stepdaughter’s allega-
tions without conducting the requisite Rule 403 balancing
test. He insists that the error prejudiced him because
the government’s case would have been significantly
less persuasive had the evidence been excluded. While
we agree that it was error for the district court to
admit the evidence without first weighing its probative
value against the risk of unfair prejudice, we find the
error harmless because the evidence of Miller’s guilt was
overwhelming. We therefore affirm.


                  I. BACKGROUND
   On January 21, 2009, an investigator in the Illinois
Attorney General’s Office downloaded approximately
fourteen child pornography videos from an internet
protocol address registered to Andrew Miller in Chester,
Illinois. The investigator, together with agents from Im-
migration and Customs Enforcement, later executed a
search warrant on Miller’s home. When they arrived,
the agents explained that they were investigating child
No. 11-2506                                              3

pornography. Miller immediately responded, “Yeah, you
might find some of that.” The agents’ search yielded a
Hewlett Packard Pavilion desktop containing twenty
child pornography video files and five child pornog-
raphy images, a Gateway laptop with sixty-eight child
pornography images in the Windows Media Player
cache,1 and an unconnected, loose Seagate hard drive
that had two child pornography videos and twelve child
pornography images in its memory. In total, the agents
discovered more than one hundred digital files portraying
children in a sexual manner or showing them involved
in a sexual act.
  During the search, the agents spoke with and took a
statement from Miller’s wife, Bonnie. She reported that she
had once confronted Miller about the presence of child
pornography on his computer and as a result Miller
deleted some of the files. She also informed the agents
that Miller’s six-year-old granddaughter had previously
alleged that Miller had watched her get undressed
and inappropriately touched her. She also recounted al-
legations made by Miller’s teenage stepdaughter, who
claimed that Miller would “regularly” walk in on her
while she showered. Bonnie explained that Miller was
prohibited from bathing his grandchildren because of his
granddaughter’s and stepdaughter’s allegations. She


1
  Cache is a “small high-speed memory in some computers
into which are placed the most frequently accessed contents
of the slower main memory or secondary storage.” Oxford
English Dictionary 753 (John Simpson & Edmund Weiner
eds., 2d ed. 1989).
4                                               No. 11-2506

also stated that Miller’s stepdaughter moved out of the
home after Miller took the bathroom door off its hinges
to maintain unfettered access to her in the shower.
  After the search concluded, Miller went to the police
station and gave a voluntary statement. He admitted that
he had downloaded child pornography “out of curiosity.”
He also explained that although the agents would likely
find approximately twenty child pornography files in
his computer’s shared folder, which was accessible to
others via the internet, he had previously deleted about
“one hundred” such files because Bonnie had confronted
him about his child pornography collection.
  Miller was first indicted for possession and distribution
of child pornography on September 23, 2009. The grand
jury returned a superseding indictment on December 15,
2010, charging Miller with one count of distributing, one
count of receiving, and three counts of possessing child
pornography in violation of 18 U.S.C. §§ 2252(a)(1), (b)(1)
(distribution); 2252(a)(2) (receipt); and 2252(a)(4) (posses-
sion), respectively. Miller moved in limine to exclude
the evidence the government obtained from his wife re-
garding the allegations made by his granddaughter and
stepdaughter because he thought those accusations were
unfairly prejudicial under Rule 403. The district court
denied Miller’s motion as moot after the government
agreed that it would not reveal the evidence unless
Miller “opened the door.”
  At trial, Miller testified in his own defense. On direct
examination, he explained that he used a peer-to-
peer internet program called Limewire to download child
No. 11-2506                                                5

pornography, but thought he was obtaining adult pornog-
raphy. He claimed that he used search terms like “teen”
and “15 year” because adult pornography files typically
had long titles, were mistitled, or had similar titles to
videos containing child pornography. He claimed, and
the government did not dispute, that the only way to
determine the content of each file was to open the file
and view its contents. Finally, Miller testified that he did
not use Limewire to “look[] for” child pornography,
that when he used terms like “teen” and “15 year” he was
not “intending” to obtain child pornography, and that
in his experience files containing child pornography
were often “mixed up” in search results with those de-
picting adult pornography.
  Before beginning its cross examination of Miller, the
government requested a sidebar. It sought permission to
inquire about the allegations made by Miller’s six-year-old
granddaughter and his teenage stepdaughter. The gov-
ernment argued that Miller “opened the door” to this line
of questioning by testifying that “he is only interested in
adult . . . sexually explicit images, not children.” Miller’s
counsel responded that he thought there was a “mild dif-
ference” between having items of child pornography
and “allegations that he walked in on a grandchild or a
child.” The district court agreed that Miller opened the
door to questions about “whether he had ever delib-
erately looked at any live children,” but warned the
government that it would be stuck with Miller’s answer
to any question on the subject.
  The government began its cross examination by
asking Miller if he had used the internet to “seek out
6                                                No. 11-2506

images of naked children.” Miller responded that he
had not. At a second sidebar, the government again
requested permission to question Miller about his grand-
daughter’s and stepdaughter’s allegations. Miller’s
counsel objected. He asserted that Miller’s denial did not
open “the door to viewing his own children in person
live.” The district court disagreed, ruling that the gov-
ernment had “enough to go ahead.”
  So the government asked about the allegations
made by Miller’s six-year-old granddaughter and
teenage stepdaughter:
      Q. Isn’t it true that that six-year old has alleged that
    you used to watch her get dressed and that you
    touched her inappropriately?
      A. I never heard this.
      Q. You’ve never heard this?
      A. Never had charges brought up on it for anything
    like that.
     Q. Well, you weren’t charged, but she did allege it.
    You’ve never heard that before?
      A. No.
      ***
      Q. Did agents ask you about these issues with
    looking at your granddaughter naked and touching
    her?
      A. I’ve given my grandchildren baths before, but
    I quit that at two years old.
No. 11-2506                                                 7

     Q. That wasn’t my question, sir. Did the agents ask
   you about this?
     A. No, the agents didn’t ask me about that.
     ***
     Q. Okay. Well, sir, aren’t you in fact lying?
     A. I have never touched my grandchildren inappro-
   priately.
     Q. That wasn’t the question, sir. Wasn’t that asked in
   your interview?
     A. I don’t recall that.
     Q. Okay. Are you allowed to bath[e] your grandchil-
   dren?
     A. Yes.
     Q. So in other words, were you asked during your
   interview whether or not you do bathe your grandchil-
   dren?
     A. Yes, I was.
     Q. And what did you say?
     A. I said I don’t do it. I quit doing it when they
   reached the age of two.
     Q. And in fact isn’t that because your wife won’t let
   you?
     A. No.
     Q. Isn’t that because . . . your children, the parents of
   the grandchildren, won’t let you?
     A. No.
8                                            No. 11-2506

     * * *
      Q. Did you used to walk in on [your stepdaughter]
    regularly in the shower?
     A. No.
     Q. Did she in fact move out of the house because you
    walked in on her so regularly in the shower when she
    was a teenager?
     A. No.
      Q. And in fact, didn’t she, before she moved out of
    the house, she would try to lock the doors but you
    took them off the hinges, sir, because you wanted to
    look at her naked?
     A. No, I took the hinges off the doors because they
    were smoking in their room.
     Q. Oh, but you admit you took the hinges off the
    door?
     A. Yes, I did.
     ****
The entire exchange lasted a few minutes. The govern-
ment accepted Miller’s answers and did not introduce
any extrinsic evidence to contradict his denials.
  Also during his cross examination, Miller admitted that
he installed Limewire on his computer. He agreed that
he increased his computer’s bandwidth and optimized
Limewire to share his files with more people via the
internet. And he did not dispute that he input terms like
“teen” and “15 year” into Limewire’s search feature to
No. 11-2506                                                  9

find pornography and he actually “viewed” child pornog-
raphy a “couple times,” including videos of children as
young as ten years old engaged in sexual acts. The jury
convicted Miller on all five counts. The court sentenced
him to 262 months in prison, with a lifetime term of
supervised release, and ordered him to pay a $500
special assessment. Miller appeals.


                       II. ANALYSIS
  Miller contends that the district court erred by
allowing the government to question him about his grand-
daughter’s and stepdaughter’s allegations and by not
weighing the risk of unfair prejudice against the proba-
tive value of that evidence. He maintains that the error
was prejudicial because the government’s case would
have been significantly less persuasive had the evidence
been excluded. His appeal raises two issues: whether
the district court erred, and if so whether the error
was prejudicial.


  A. The District Court Erred by Not Conducting the
     Rule 403 Balancing Test
  Federal Rule of Evidence 403 authorizes a district court
to exclude “relevant evidence” if the probative value of
the evidence is “substantially outweighed by a danger
of . . . unfair prejudice . . . .” Fed. R. Evid. 403. “Evidence
is unduly prejudicial if it creates a genuine risk that the
emotions of the jury will be excited to irrational behavior,
and the risk is disproportionate to the probative value
10                                              No. 11-2506

of the offered evidence.” United States v. Loughry, 

, 971 (7th Cir. 2011). Before admitting evidence, a
district court should “weigh the need for and probative
value of the evidence against potential harm that its
admission might cause.” Mihailovich v. Laatsch, 

, 906 (7th Cir. 2004). Although we ordinarily
review a district court’s evidentiary rulings for an abuse
of discretion, we give “special deference” to the court’s
findings under Rule 403 and will reverse only when “no
reasonable person could take the view adopted by the
trial court.” United States v. LeShore, 

, 939
(7th Cir. 2008).
  It is undisputed that the district court failed to
explicitly conduct the Rule 403 balancing test before
allowing the government to ask Miller whether he had
been accused of touching his granddaughter inappro-
priately, watching her get undressed, or regularly viewing
his stepdaughter while she showered. The allegations
made by Miller’s granddaughter and stepdaughter evi-
denced Miller’s character. Such evidence is generally not
admissible to show the defendant’s propensity to
commit the charged crime. Fed. R. Evid. 404(b)(1); see
also United States v. Perkins, 

, 513 (7th Cir.
2008). But Rule 404(b)(2) and Rule 414(a) provide two
exceptions to the general rule of inadmissibility.
  Under Rule 404(b)(2), evidence of a crime, wrong, or
other act “may be admissible” to prove “intent . . ., absence
of mistake, or lack of mistake.” Fed. R. Evid. 404(b)(2); see
also United States v. Knope, 

, 656 (7th Cir.
2011). Rule 414(a) makes “evidence of the defendant’s
commission of another offense . . . of child molestation”
No. 11-2506                                                11

admissible “in a criminal case in which the defendant
is accused of an offense of child molestation,” and it
defines “offense of child molestation” broadly to in-
clude the distribution, advertising, or possession of child
pornography. Fed. R. Evid. 414(d); see also 

. Thus, both Rule 404(b)(2) and Rule 414(a)
provide avenues for evidence of a defendant’s prior
bad acts to be admitted against him during a criminal
trial. But a court must scrutinize Rule 404(b)(2) and
Rule 414(a) evidence to assess the risk of unfair
prejudice, nonetheless. See, e.g., United States v. Ciesiolka,

, 355 (7th Cir. 2010) (examining Rule 404(b)(2)
evidence under Rule 403 balancing test); United States v.
Hawpetoss, 

, 823-24 (7th Cir. 2007) (examining
Rule 414(a) evidence under Rule 403 balancing test).
This is so because “[e]ven if the evidence does not create
unfair prejudice solely because it rests on propensity, it
may still risk a decision on the basis of something like
passion or bias—that is, an improper basis.” United States
v. Rogers, 

, 822 (7th Cir. 2009).
  We have consistently held that a district court commits
error by not clearly articulating its Rule 403 rationale
before admitting adverse character evidence against a
defendant. See, e.g., 

(“[T]he
district court abused its discretion in failing to
propound its reason for the conclusion that the probative
value of the [disputed evidence] was not substantially
outweighed by the risk of unfair prejudice.”). Indeed, even
a “pro-forma” recitation of the Rule 403 balancing test is
not sufficient because it “does not allow an appellate
court to conduct a proper review of the district court’s
12                                               No. 11-2506

analysis.” 

. To avoid this trap, a
district court should “carefully analyze the prejudicial
effect,” 

provide a “considered explanation”
of its reasons for admitting the evidence. 

. A “perfunctory” analysis or “bare-bones” conclu-
sion simply will not suffice. 

no analysis. Miller moved in limine
before the trial to exclude the contested evidence under
Rule 403, but the district court denied the motion as
moot after the government agreed not to broach the
subject unless Miller “opened the door.” At trial, defense
counsel’s stated objection was that Miller did not open
the door to the evidence. Counsel should have expressly
requested then that the district court weigh the evidence’s
probative value against the risk of unfair prejudice. But
both the government and the district court were on
notice that the basis for Miller’s objection to the evidence
was that it was unfairly prejudicial. Although Miller
did not renew his in limine Rule 403 objection to the
evidence during the trial, we think the basis for his ob-
jection was clear: he sought to keep the evidence out
because he thought its probative value was sub-
stantially outweighed by the risk it presented of unfair
prejudice. When evidence of this sort is offered to prove
the defendant’s intent, knowledge, or lack of mistake, as
it was here, Rule 403 balancing is necessary because the
evidence may still risk a decision on an improper basis
such as passion or bias. 

. The district
court should have followed a two-step process before
allowing the government to question Miller about his
granddaughter’s and stepdaughter’s allegations: first,
No. 11-2506                                                13

the court should have determined whether the evidence
fell within the scope of Rule 404(b)(2) or 414(a); then, it
should have carefully analyzed whether to exclude the
evidence under Rule 403 and articulated on the record the
basis of its decision. See 

have explicitly
said, and both parties agree, that after a Rule 413
analysis the court must next consider whether it should
exclude the evidence under Rule 403.”). The district court
in this case complied with the first step of this process,
but it failed to expressly do so with regard to the sec-
ond. This was error.


    B. The Error Was Harmless
  The government argues that even if the district court
erred by not conducting the Rule 403 analysis, it was
harmless.2 It is true that a district court’s failure to con-


2
   Miller never renewed his motion to exclude the evidence,
despite the district court’s denial of the motion as moot
because the government agreed not to introduce the evidence
unless Miller opened the door. Surely, Miller should have
known that the government might later seek admission of
the evidence. He should have restated his Rule 403 objec-
tion to the evidence. While the government contends that
Miller’s failure to renew his motion constitutes a forfeiture,
which would make our review for plain error, United States
v. Tanner, 

, 904 (7th Cir. 2010), we need not
decide the issue because we find that the district court’s
error was harmless. United States v. Turner, 

,
748 (7th Cir. 2011) (“The third prong of the plain error
                                                (continued...)
14                                              No. 11-2506

sider the prejudicial nature of propensity evidence
before admitting it, or its “perfunctory” consideration
of this critical question, “may in itself be grounds for
reversal.” 

. Miller, citing our
decision in Ciesiolka, urges that result here. But this case
is unlike Ciesiolka, where the district court admitted
“mountains of Rule 404(b) evidence” without explaining
its rationale. See 

evidence that the dis-
trict court admitted here was not so “voluminous” as to
create “a significant risk of prejudice,” 

review the district court’s admission of the evidence for
harmless error. See, e.g., 

60 (conducting harmless error analysis of the district
court’s decision to admit evidence of other bad acts
without conducting the Rule 403 balancing test); United
States v. Allen, 

, 467 (7th Cir. 2010) (same).
  “The test for harmless error is whether, in the mind of
the average juror, the prosecution’s case would have
been significantly less persuasive had the improper
evidence been excluded.” 

(citations and internal quotation marks omitted). “An
error is harmless if the untainted incriminating evidence
is overwhelming.” 

quotation
marks omitted).
  Three factors militate against finding prejudice in the
instant case. First, and most importantly, even excluding


2
  (...continued)
test—whether the error affected the defendant’s substantial
rights—calls for essentially the same inquiry as a harmless
error analysis.”).
No. 11-2506                                             15

the allegations made by Miller’s granddaughter and
stepdaughter, the evidence of Miller’s guilt was over-
whelming. The government introduced Miller’s own
admissions that he had knowingly downloaded some
child pornography, viewed the videos and images, and
increased his bandwidth for enhanced sharing capa-
bilities. The government played for the jury audio record-
ings of Miller’s interview with agents, during which
he admitted using search terms like “teen” and “15 year”
to find pornography, viewing and retaining at least ten
files containing child pornography with victims as young
as ten years old, and intentionally seeking and obtaining
files containing child pornography “out of curiosity.”
Miller’s desktop, laptop, and loose hard drive together
contained more than one hundred videos and images of
child pornography. And Miller admitted during his
interview with police that his computer had approxi-
mately twenty child pornography videos on the hard
drive and that he had deleted “one hundred” similar
files, some of which he knew contained child pornography
because he viewed the files before deleting them.
  Second, contrary to Miller’s fervent assertion, it is
debatable whether the questions about Miller’s inten-
tional viewing of his granddaughter and stepdaughter
naked posed a serious threat to excite the emotions of
the jury to the point of “irrational behavior.” Cf. United
States v. Vargas, 

, 557 (7th Cir. 2008) (“[T]he
more probative the evidence, the more the court will
tolerate some risk of prejudice”). This evidence was
probative of Miller’s intent to view images of naked
children and that his doing so was no mistake. See
16                                               No. 11-2506

(“In child molestation cases,
for example, a history of similar acts tends to be excep-
tionally probative because it shows an unusual disposi-
tion of the defendant . . . that simply does not exist in
ordinary people.”); 

(explaining that
defendant’s past chats expressing interest in having sex
with minors “undermined [his] defense that his chats
with Maria were harmless fantasy and that he believed
that she was over eighteen years old.”). The most inflam-
matory evidence, which posed the greatest risk of unfair
prejudice, was the assertion that he had touched his six-
year-old granddaughter inappropriately and had been
prohibited from bathing his grandchildren. But the govern-
ment made only brief reference to these allegations, which
Miller denied, and did not attempt to prove up the matter
with extrinsic evidence. Compare 

(describing the “jury’s day-long exposure to voluminous
evidence” of the defendant’s other bad acts), with United
States v. Chambers, 

, 595 (7th Cir. 2011) (finding
“the evidence was much less voluminous and took up a
much smaller portion of the trial than in Ciesiolka.”).
  Finally, the district court instructed the jury at the
close of evidence that the evidence was admitted for a
limited purpose. The instruction stated, “You have
heard evidence of acts of the Defendant other than those
charged in the indictment. You may consider this
evidence only on the questions of intent, knowledge,
and lack of mistake. You should consider this evidence
only for this limited purpose.” While the limiting instruc-
tion is not dispositive, it does help temper the prejudicial
effect of an evidentiary error. See United States v. Jones,
No. 11-2506                                                 17

, 809 (7th Cir. 2006) (explaining that instruc-
tions are “effective in reducing or eliminating any
possible unfair prejudice from the introduction of
Rule 404(b) evidence”). We presume, as we must, that
the jury followed the court’s instructions, United States v.
Zahursky, 

, 525-26 (7th Cir. 2009), and Miller
has not identified anything in the record to suggest other-
wise. See 

(assuming that the
instruction removed any prejudice because the de-
fendant did not attempt “to show that the jury could
not follow the court’s limiting instruction.”).
  Miller points to Loughry as support for his claim of
prejudice. But Loughry is of no help to him. In that case, we
held that the district court committed reversible error
by permitting the government, over the defendant’s
objection, to show several uncharged videos depicting
“hard core” pornography which were found in the de-
fendant’s home. 

. Several facts
make that case distinguishable. First, the videos shown
to the jury were of minimal probative value because,
among other things, Loughry was not charged with
possession of child pornography. 

the government indicted Loughry for advertising, distrib-
uting, and conspiring to advertise and distribute child
pornography via an online depository, which “had rules
specifically banning ‘hard core’ pornography.” As we
explained, “the risk of unfair prejudice to Loughry from
the admission of the ‘hard core’ pornography was substan-
tial . . . [because the] video excerpts shown to the jury . . .
displayed men raping and ejaculating in the genitals of
prepubescent girls, as well as young girls engaging in
18                                              No. 11-2506

sexual acts with each other.” 

the evi-
dence of Loughry’s guilt “was far from ‘overwhelming.’ ”

fact, “the government could not identify a
single image of child pornography actually posted by
Loughry.” 

not the case here be-
cause, as described in detail above, the government
presented overwhelming evidence establishing that
Miller knowingly possessed, received, and distributed
child pornography.
  Because the unchallenged evidence introduced by the
government clearly established Miller’s guilt beyond a
reasonable doubt on all counts, the government’s refer-
ence to the allegations—particularly that which was
most inflammatory—was fleeting, and the district court
gave an instruction limiting the jury’s consideration of
the evidence, we hold that the district court’s error in
allowing the government to question Miller about his
granddaughter’s and stepdaughter’s allegations without
conducting a Rule 403 analysis was harmless. See, e.g.,
United States v. Carraway, 

, 756 (7th Cir. 1997).


                   III. CONCLUSION
  For the above-stated reasons, the defendant’s convic-
tion is A FFIRMED.




                           7-27-12