Opinion
No. 19-CR-3579 MV
2022-09-09
UNITED STATES of America, Plaintiff, v. Michael BAULDWIN, Defendant.
Eva Mae Fontanez, Sarah Jane Mease, United States Attorney's Office, Albuquerque, NM, for Plaintiff. Angelica M. Hall, Public Defender, Albuquerque, NM, Emily P. Carey, Daniel Benjamin Snyder, Public Defenders, Office of the Federal Public Defender, Albuquerque, NM, for Defendant.
Eva Mae Fontanez, Sarah Jane Mease, United States Attorney's Office, Albuquerque, NM, for Plaintiff. Angelica M. Hall, Public Defender, Albuquerque, NM, Emily P. Carey, Daniel Benjamin Snyder, Public Defenders, Office of the Federal Public Defender, Albuquerque, NM, for Defendant. MEMORANDUM OPINION AND ORDER MARTHA VÁZQUEZ, SENIOR UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on Mr. Bauldwin's Motion in Limine to Exclude Alleged Uncharged "Wrong" Acts ("Motion in Limine") [Dkt. 72] and the government's Notice of Intent to Offer Evidence Pursuant to Fed. R. Evid. 404(b), 413, and 414 ("Notice") [Dkt. 73]. Mr. Bauldwin responded in opposition to the government's Notice ("Response") [Dkt. 89] and the government replied ("Reply") [Dkt. 113]. The Court heard argument on this motion and the objections to the government's notice on September 1, 2022. Having carefully considered the briefs, oral argument, and relevant law, and being otherwise fully informed, the Court finds that Mr. Bauldwin's motion and objections will be GRANTED in part. With respect to the government's proposed 404(b) evidence, the Court will RESERVE its ruling.
Given the largely duplicative nature of the filings and their objections, both Dkt. 72 and Dkt. 73 will be disposed of here together.
BACKGROUND
Mr. Bauldwin is charged with two counts of Production of a Visual Depiction of a Minor Engaging in Sexually Explicit Conduct, in violation of 18 U.S.C. §§ 2251(a), (e), and 2256. Dkt. 1. The case is set for trial on September 26, 2022. Dkt. 63. If convicted, Mr. Bauldwin faces a maximum custodial sentence of thirty years and a mandatory minimum of fifteen years imprisonment.
DISCUSSION
The introduction of "other acts" evidence—also known as prior crimes, bad acts, or uncharged misconduct—at an accused person's criminal trial frequently challenges courts to carefully balance a series of competing interests. To ensure that these proceedings unfold as smoothly and fairly as possible, several evidentiary rules and common-law doctrines guide us in this endeavor.
At issue here is whether, and to what extent, the government can introduce bad act evidence against Mr. Bauldwin via testimony from Jane Doe 1 and Jane Doe 2 ("Janes Doe"). Dkt. 73. Through Jane Doe 1, the alleged victim in this case, the government proposes providing detailed allegations of sexual abuse beyond the two charged incidents. Id. at 3-6. Through Jane Doe 2, the government seeks to admit evidence that it believes suggests that Mr. Bauldwin has "a propensity to sexually abuse teenage girls." Id. at 7. The Court will address Janes Doe separately, taking into consideration the arguments raised by the parties for each. But in short: Jane Doe 1 will be permitted to testify in a general manner regarding the abuse she is said to have endured, while Jane Doe 2 will not.
I. Jane Doe 1
The proffered testimony of Jane Doe 1 was anticipated in Mr. Bauldwin's Motion in Limine. Dkt. 72. It was subsequently presented in the government's Notice. Dkt. 73. Mr. Bauldwin filed a response in opposition to the Notice and the government filed a reply in further support of its Notice. Dkts. 89, 113. On September 1, 2022, the Court heard argument on the matter. Following argument, Mr. Bauldwin submitted a letter responding to a question that the Court asked both parties to consider in advance of argument. Recognizing the intrinsic nature of the evidence in question and the importance of Jane Doe's testimony to the government's case-in-chief, the Court will permit Jane Doe 1 to testify about the general circumstances surrounding her alleged abuse for the following reasons and along the following lines.
a. The parties' arguments regarding admissibility
Mr. Bauldwin's Motion in Limine preemptively requests the exclusion of "any evidence or testimony alleging that he[:] (1) had a history of behaving inappropriately with or sexually abusing Jane Doe [1] outside the two incidents cited in the Indictment; (2) physically abused or neglected any of the children; and (3) used drugs." Dkt. 72 at 3. More precisely, Mr. Bauldwin is concerned about portions of the government's discovery that suggest that he was "behaving inappropriately with or sexually abusing Jane Doe [1] for a period outside of these two alleged dates." Id. He argues that "those allegations and any details about that alleged abuse [are] irrelevant to whether Mr. Bauldwin produced child pornography on the two charged occasions." Id. If the Court finds the allegations to be relevant and admissible for a proper purpose, Mr. Bauldwin submits that such evidence would be "substantially more prejudicial than probative and may inflame the jury." Id. at 4. In his view, it also "risks confusing the issue and misleading the jury by creating a sense that Mr. Bauldwin is being charged with a sexual contact offense." Id.
The government made clear at the September 1, 2022, pretrial conference that it was not planning on introducing any evidence concerning allegations of physical abuse or neglect, rendering this issue moot. Draft Transcript of Pretrial Conference at 5-6, United States v. Bauldwin, 19-CR-3579 MV (D.N.M. Sept. 1, 2022).
Mr. Bauldwin also preemptively objects to the introduction of any allegations that he used drugs. Id. at 5. Government discovery purportedly suggests that Mr. Bauldwin "used drugs and on occasion would ask Jane Doe [1] to 'smoke drugs' with him." Id. Mr. Bauldwin claims that this allegation is irrelevant, has no proper purpose, and is substantially more prejudicial than probative because of "the negative stigma associated with drug use" and, in particular, drug use by children. Id.; Tr. at 44.
The government subsequently filed its Notice. Dkt. 73. Broadly speaking, the government would like to introduce two types of bad act evidence against Mr. Bauldwin under Rules 404(b), 413, and/or 414, including the proposed testimony of Jane Doe 1 detailed in eight subparagraphs of its Notice. Id. at 3-6. The government argues that "this evidence of uncharged conduct is admissible as intrinsic evidence of the charged offenses because such evidence is inextricably intertwined with the charges." Id. at 3. Moreover, the government contends, "the uncharged abuse perpetrated by [Mr. Bauldwin] against Jane Doe [1] . . . is highly probative of the material fact it is admitted to prove—that [Mr. Bauldwin] has a propensity to sexually abuse teenage girls." Id. at 7. "Beyond propensity, however, the acts provide evidence of [Mr. Bauldwin]'s motive and intent in committing the charged sexual abuse." Id. at 8. The government also lists identity as a valid material issue that the evidence is offered to prove. Id.
Mr. Bauldwin responded to the government's Notice, making the following arguments. First, Mr. Bauldwin argues that any evidence of alleged uncharged conduct pertaining to Jane Doe 1 is not res gestae (intrinsic evidence). Dkt. 89 at 3. Specifically, Mr. Bauldwin argues that the government has "failed to provide any explanation as to why the information it seeks to admit is intrinsic." Id. at 4. He goes on to argue that the anticipated testimony is "not part and parcel of whether [he] produced child pornography on the two charged occasions in the Indictment," noting that none of the elements of the indicted charges require the government to prove that Mr. Bauldwin himself engaged in sexually explicit conduct with the alleged victim. Id. Because of this, Mr. Bauldwin argues that the evidence in question should be deemed extrinsic, therefore coming within Rule 404(b). Id. at 5. Even if the Court holds that the evidence is intrinsic, Mr. Bauldwin argues that Rule 403 balancing should exclude it. Id.
Second, Mr. Bauldwin argues that allegations of prior molestation of Jane Doe 1 are inadmissible under Rule 414 because a "child" is defined under the rule as someone under the age of 14. Id. at 6. Based on evidence provided in discovery, "Jane Doe [1] was 16 years old at the time the conduct in the Indictment was alleged to have occurred." Id. Furthermore, "there is no evidence that Jane Doe [1] was at any time 'below the age of 14' when the alleged events the government seeks to introduce purportedly took place." Id.
Third, Mr. Bauldwin argues that allegations of prior sexual assault of Jane Doe 1 are inadmissible under Rule 413 because, unlike Rule 414, the definition of sexual assault in 413 does not include the list of conduct prohibited in 18 U.S.C. Chapter 110 (which includes the crime with which Mr. Bauldwin is charged). Id. at 7. Because he is charged with production of a visual depiction of a minor engaging in sexually explicit conduct, which "does not meet the definition of sexual assault under Rule 413," Mr. Bauldwin claims that any allegations of prior sexual abuse of Jane Doe 1 are inadmissible under Rule 413. Id. at 8. In support of this claim, Mr. Bauldwin cites to United States v. Courtright, 632 F.3d 363 (7th Cir. 2011).
Fourth, Mr. Bauldwin argues that Jane Doe 1's allegations of prior sexual abuse are inadmissible under Rule 404(b). Id. This argument is made in response to the government's alternative theory of admissibility under this rule. See Dkt. 73 at 3. With respect to "other act" evidence concerning Jane Doe 1, Mr. Bauldwin argues that because her testimony does not fall under Rules 413 or 414 and the conduct is not intrinsic to the charged offense, it must be evaluated under Rule 404(b). Dkt. 89 at 11. Mr. Bauldwin argues that the government has failed to meet its burden under 404(b) for two reasons. Id. at 12. First, he argues that the government has not provided proper notice of the "permitted purpose for which the government intends to offer the evidence and the reasoning that supports the purpose." Id. Instead, Mr. Bauldwin argues, the government makes "generic assertions in three sentences at the end of its Notice" that offer the evidence to prove motive, intent, and identity, thus failing to meet its burden to demonstrate admissibility. Id. Second, assuming that the Court were to find that the government offered each piece of evidence for a permissible purpose under Rule 404(b)(2) and proved relevancy, Mr. Bauldwin argues that "any probative value would be substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury and needlessly cumulative under Rule 403." Id. at 13.
At oral argument, the government added absence of mistake to this list (anticipating, presumably, a need for rebuttal). Tr. at 13-14.
The government replied to the Response, claiming that "none of the arguments raised by [Mr. Bauldwin] are persuasive or overcome the presumption in favor of the admission of this evidence." Dkt. 113 at 1. With respect to the intrinsic evidence and 404(b) arguments raised by Mr. Bauldwin, the government clarifies several points. First, the government only intends to rely on the intrinsic evidence argument with respect to Jane Doe 1, not Jane Doe 2. Id. The government further clarifies how the proposed testimony is intrinsic, asserting that Mr. Bauldwin, "perpetrated ongoing sexual abuse against Jane Doe [1] for years, with an initial stated goal of 'teaching' her how to perform oral sex." Id. at 2. In the government's view, the "ongoing abuse and 'teaching' aspect are inextricably intertwined with the recorded abuse charged." Id. The government highlights "the inception of the abuse" as particularly important for providing precise context and background information for the charged conduct. Id. The government alternatively argues that if the Court rules that the prior bad acts are extrinsic, the evidence remains admissible under 404(b) because it speaks directly to Mr. Bauldwin's motive, intent, and identity. Id. Because Mr. Bauldwin's attorneys have suggested in Dkt. 111 that their legal defense involves "whether the sexually explicit conduct engaged in was for the purpose of producing a visual depiction of the conduct"—a question of intent—the government anticipates needing the testimony of Jane Doe 1 to prove Mr. Bauldwin's intent. Id. Additionally, as noticed, the government makes clear that the video only depicts Jane Doe 1's face, not Mr. Bauldwin's, so evidence of the uncharged acts for Jane Doe 1 also provides direct evidence of identity. Id.
With respect to Rule 414, the government argues that "Rule 414 defines 'child molestation' as including offenses under both Chapters 109A and 1[1]0 of Title 18 of the United States Code," and Chapter 110 has "no age qualification" for the offenses listed there. Id. at 3. Regardless, the government no longer intends to admit testimony from Jane Doe 2 under this rule. Id. Regarding Jane Doe 1, the government argues that the prior acts fall squarely within the rule (a crime occurring under Chapter 110, or 414(d)(2)(B), to which Mr. Bauldwin has conceded). Id. The government advances this argument because Jane Doe 1 purportedly disclosed that Mr. Bauldwin would "often hold a cellular phone while she was performing oral sex at his direction," thus bringing the prior acts within the fold of 414(d)(2)(B). Id. Additionally, the government cites to United States v. Sturm, 673 F.3d 1274, 1284 (10th Cir. 2012) to reject the argument that an "offense of child molestation" can only involve a child under the age of 14. Id. Regardless, the government discloses that during a meeting on August 30, 2022, Jane Doe 1 indicated that the sexual abuse began when she was approximately nine or ten years old. Id. In sum, the government anticipates being able to admit the uncharged conduct through several theories, but "primarily pursuant to [Rules] 414(d)(2)(A), (B), and (D)." Id. at 4.
Regarding Rule 413, the government cites caselaw to counter Mr. Bauldwin's technical argument that he has not been charged with a "sexual assault offense." Id. Specifically, the government cites to United States v. Foley, 740 F.3d 1079 (7th Cir. 2014), where, although the accused was charged under Chapter 110, the court held that his conduct satisfied the first definition of "sexual assault" under Rule 413(d)(1) because he molested the minor on several prior occasions, which was prohibited conduct under Chapter 109A. Id. The Foley court explained that "although [Rule] 413 uses statutory definitions to designate the covered conduct, the focus is on the conduct itself rather than how the charges have been drafted." Id. at 5. The government also cites to United States v. Schaffer, No. CR 13-183 (JLL), 2017 WL 729787, at *7 (D.N.J. Feb. 24, 2017), aff'd, 777 F. App'x 581 (3d Cir. 2019), in which the defendant was charged with production of child pornography where the defendant's own genitals came into contact with the victim's hand and mouth. Id. There, the court held that sexual assault "subsumed within" the charges of production and the evidence was admissible. Id. Considering these cases, the government maintains that the Court should overrule Mr. Bauldwin's objection.
b. The testimony is admissible as res gestae, or intrinsic, evidence
When permitted, the Court strives to breathe life into, and evenhandedly apply, a relatively simple idea: context matters. Common sense tells us that the alleged conduct—a father's video recording of sexual contact with his daughter—does not usually occur out of the blue. But absent that context—at least generally—it may be hard for a jury to fathom the conduct alleged, much less evaluate the evidence before it. Indeed, just as a convicted person's own history of victimization matters at sentencing, so too must Jane Doe 1 be permitted to share her story in a manner that provides the jury the necessary background information and specific descriptions of the alleged criminal conduct itself.
This intuition also holds weight as a legal matter. Jane Doe 1's history of sexual abuse is, in a general sense, intrinsic to the conduct charged by the government. The Tenth Circuit has held that "evidence is intrinsic—and thus not subject to Rule 404(b)—when the evidence of the other act and the evidence of the crime charged are inextricably intertwined or both acts are part of a single criminal episode or the other acts were necessary preliminaries to the crime charged." United States v. Irving, 665 F.3d 1184, 1212 (10th Cir. 2011) (citations and quotations omitted) (emphasis added). Moreover, there is no requirement that intrinsic evidence establish an element of the charged offense. Id. Rather, "[e]vidence is considered 'intrinsic' when it is directly connected to the factual circumstances of the crime and provides contextual or background information to the jury, and 'extrinsic' when it is extraneous and is not intimately connected or blended with the factual circumstances of the charged offense." United States v. Alfred, 982 F.3d 1273, 1279 (10th Cir. 2020), cert. denied, — U.S. —, 141 S. Ct. 2834, 210 L.Ed.2d 949 (2021) (emphasis added). Thus, intrinsic evidence is "essential to the context of the crime." Irving, 665 F.3d at 1212. Here, but for the alleged history of sexual abuse, it is hard for the Court to imagine a world in which the alleged criminal conduct could have occurred.
Jane Doe 1's alleged history of sexual abuse is, no doubt, intricately related and essential to the context of the charged crimes. At oral argument, the government alleged that one video contains audio of Mr. Bauldwin instructing Jane Doe 1 to "Do it fast like the last time, remember." Tr. at 8. The government argues that it must contextualize the significance of "remember" for the jury, i.e., the existence of prior sexual abuse through which Jane Doe 1 was "taught" to perform the act depicted in the video. The government also argues that Jane Doe 1 should be able to testify about "how she ended up where she ended up," and "tell the jury why she is not crying in the video, doing the act she is doing." Tr. at 9, 11. The Court agrees. "But for [Mr. Bauldwin] teaching her," and presumably normalizing the conduct, "[Jane Doe 1] would not have known how to do [the sexual act]." Tr. at 10. She must be able to testify to the general circumstances surrounding her alleged history of sexual abuse at the hands of Mr. Bauldwin. Accordingly, she will be permitted to testify generally to the fact that 1) he sexually abused her on previous occasions, including the frequency and form of the abuse (without referencing specific details or instances) and 2) he taught her how to perform oral sex.
c. However, even intrinsic evidence is subject to Rule 403 balancing
Intrinsic evidence is nonetheless subject to Rule 403. Irving, 665 F.3d at 1213. The application of the rule requires a three-step process. First, the Court must determine the probative value of the proffered evidence. Second, the Court must identify any enumerated dangers (unfair prejudice, confusion of the issues, or misleading the jury) or considerations (undue delay, waste of time, or needless presentation of cumulative evidence). Finally, the Court must balance the probative value against the identified dangers or considerations. If the enumerated dangers or considerations substantially outweigh the probative value of the evidence, exclusion is discretionary. The word "substantially" is significant; Rule 403 weighs in favor of admissibility.
Permitting Jane Doe 1 to testify to the general circumstances surrounding her history of sexual abuse greatly diminishes the probative value of the additionally proffered details of abuse. At oral argument, the government suggested that it has "tried to be judicious in its Notice" by submitting only eight subparagraphs of proposed "generalizations." Tr. at 17, referencing Dkt. 73 at 3-6. However, as described in oral argument, the government's "generalizations" include an inventory of every location in which the abuse is alleged to have taken place, a graphic description of Mr. Bauldwin's genitals, details about the mechanics of performing oral sex, and allegations of forced drug use. The Court is not convinced. Unfair prejudice is that which creates "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Fed. R. Evid. 403 advisory committee's note; see also Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) ("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."). Here, the repetitive and detailed nature of the proposed testimony coupled with the inflammatory nature of the allegations do exactly that. The Court thus finds that the risk of unfair prejudice to Mr. Bauldwin from the detailed descriptions of sexual abuse contained in subparagraphs two through eight of the Notice (apart from general references to frequency and form) substantially outweighs the limited probative value of the additional evidence.
At oral argument, the government was able to identify fewer than five instances of drug use—a low number compared to the number of sexual assaults it maintains Mr. Bauldwin committed. Tr. at 21. Moreover, it was unable to identify any drug use in close temporal proximity to the charged incidents or the kind of drug use to which Jane Doe would testify. Tr. at 23, 47. At this juncture, the Court will not permit the introduction of this tenuously connected evidence.
The alternate means of proof available to the government further obviate the need for introduction of this unfairly prejudicial evidence. The government has at its disposal the testimony of Jane Doe 1 regarding her history of abuse, generally, and on the two alleged incidents, specifically. It has a filmed law enforcement interview with Mr. Bauldwin in which he admits, inter alia, to feeling like a "monster" for conduct "[he]" filmed twice that "obviously" occurred more than 25 times. See Gov't Demonstrative 13 at 28, 20, 23, 49. Lastly, it has the videos themselves. Given the availability and admissibility of these evidentiary alternatives—no doubt unfavorable to Mr. Bauldwin, but not unfairly so—the Court will sustain Mr. Bauldwin's objections in part.
See Old Chief, 519 U.S. at 184, 117 S.Ct. 644 ("what counts as the Rule 403 'probative value' of an item of evidence may be calculated by comparing evidentiary alternatives"); Fed. R. Evid. 403 advisory committee's note (rule requires "balancing the probative value of and need for the evidence") (emphasis added).
However, should Mr. Bauldwin's voir dire, opening statement, and/or cross-examinations make it necessary, the Court will revisit judgment on the parties' 404(b) arguments. To the extent that the prior alleged sexual abuse, the specificity of these allegations, or Jane Doe 1's credibility becomes an issue at trial, the Court will allow the government to renew its request regarding subparagraphs two through eight of its Notice.
d. Admissibility under Rules 413 and 414
Because the Court finds that the evidence regarding Jane Doe 1 is intrinsic, it need not reach the issue, raised by the government in the alternative, of its admissibility under Rules 413 and 414.
II. Jane Doe 2
The proposed testimony of Jane Doe 2 was not anticipated in Mr. Bauldwin's Motion in Limine. Dkt. 72. It was, however, noticed in the government's Notice. Dkt. 73. Both a Response and a Reply were filed regarding the government's Notice. Dkts. 89, 113. On September 1, 2022, the Court heard argument on the matter. Recognizing the admissibility of the evidence regarding Jane Doe 2 under Rule 413 but noting its limited probative value and unfairly prejudicial nature, the Court will not permit Jane Doe 2 to testify about her alleged relationship with Mr. Bauldwin.
a. The parties' arguments regarding admissibility
Via Rules 413 and 404(b), the government seeks to introduce evidence of alleged sexual abuse of another minor, Jane Doe 2, who has no direct involvement in the charged conduct. Dkt. 73 at 6. According to the government, "the uncharged abuse perpetrated by [Mr. Bauldwin] against . . . Jane Doe 2 is highly probative of the material fact it is admitted to prove—that [Mr. Bauldwin] has a propensity to sexually abuse teenage girls." Id. at 7. "Beyond propensity, however, the acts provide evidence of [Mr. Bauldwin]'s motive and intent in committing the charged sexual abuse." Id. at 8. The government also lists identity as a valid material issue that the evidence is offered to prove. Id.
In briefing and at oral argument, the government clarified that it was only seeking to introduce Jane Doe 2's testimony through these two evidentiary rules. See Dkt. 113 at 3; Tr. at 7, 32.
Mr. Bauldwin argues that allegations of prior sexual assault of Jane Doe 2 are inadmissible under Rule 413 because, unlike Rule 414, the definition of sexual assault in 413 does not include the list of conduct prohibited in 18 U.S.C. Chapter 110 (which includes the statute under which Mr. Bauldwin is charged). Dkt. 89 at 7. Because he is charged with production of a visual depiction of a minor engaging in sexually explicit conduct, which "does not meet the definition of sexual assault under Rule 413," Mr. Bauldwin claims that any allegation of prior sexual abuse of Jane Doe 2 is inadmissible under Rule 413. Id. at 8. In support of this claim, Mr. Bauldwin cites to Courtright, supra.
Mr. Bauldwin also argues that Jane Doe 2's allegations of prior sexual abuse are inadmissible under Rule 404(b). Id. This argument is made in response to the government's alternative theory of admissibility under this rule. See Dkt. 73 at 3. With respect to other act evidence concerning Jane Doe 2, Mr. Bauldwin argues that no non-propensity reason for the introduction of this evidence had been given to support why such evidence is relevant. Dkt. 89 at 9. In his view, because testimony of Jane Doe 2 does not fall under Rule 413, the conduct is not intrinsic, and because no non-propensity reason for the testimony has been given, the Court must deny admission under Rule 404(b). However, should the Court find that Jane Doe 2's testimony is admissible under one of the theories advanced by the government, Mr. Bauldwin argues that it should held as inadmissible after Rule 403 balancing. Id. at 11.
In reply, the government argues that because Mr. Bauldwin's attorneys have suggested that their legal defense involves "whether the sexually explicit conduct engaged in was for the purpose of producing a visual depiction of the conduct" (Dkt. 111)—a question of intent—the government anticipates needing Janes Doe 2's testimony to prove Mr. Bauldwin's intent. Id. Additionally, as noticed, the government makes clear that the video only depicts Jane Doe 1's face, not Mr. Bauldwin's, so evidence of the uncharged acts for Jane Doe 2 also provides direct evidence of identity. Id.
Regarding Rule 413, the government objects to Mr. Bauldwin's technical argument that he has not been charged with a "sexual assault offense," id., again citing to Foley and Schaffer, as discussed above in the context of Jane Doe 1's proposed testimony.
b. The testimony is admissible under Rule 413
As part of the 1994 Violent Crime Control and Law Enforcement Act, Congress enacted Rules 413, 414, and 415, which govern the admissibility of evidence of an accused's character in sexual assault and child molestation cases. If someone is accused of a sexual assault, Rule 413 permits the introduction of evidence of other sexual assaults. In effect, these rules make propensity evidence admissible.
Rule 413(d) defines sexual assaults.
Mr. Bauldwin attempts to exempt himself from Rule 413 by arguing that what he is being accused of does not meet the definition of sexual assault under Rule 413. Dkt. 89 at 8. He cites to the Seventh Circuit's decision in Courtright, where the court found that Rule 413 must "use[ ] the term 'accused' in the more narrow, technical sense generally invoked throughout the federal rules," and concluded that "evidence of other sexual crimes is only admissible against a criminal defendant and only if the crime charged is sexual assault." 632 F.3d at 368-69 (citing 23 CHARLES ALAN WRIGHT & MICHAEL W. GRAHAM, FEDERAL PRACTICE & PROCEDURE § 5413, at 549-50 (Supp. 2010)). Accordingly, the Courtright court held that the district court erred in applying Rule 413 when the accused person was charged with production of child pornography, even though the offense conduct involved sexual contact with the minor victim. Id. at 367.
Mr. Bauldwin fails to note, however, that three other decisions (including a more recent one from the Seventh Circuit) have applied Rule 413 to cases in which the defendant was charged with producing child pornography, examining the offense conduct. "[W]hen the child pornography the defendant allegedly produced captured the defendant sexually assaulting a minor victim, three courts have held that it was a 'case in which a defendant is accused of sexual assault' such that Rule 413 applied—even though the elements of the charged offense required only that the victim engage in sexually explicit conduct, not necessarily with the defendant and not necessarily without the victim's consent." United States v. Ahmed, No. 21-CR-4087-LTS-KEM, 2022 WL 782024, at *4 (N.D. Iowa Mar. 14, 2022) (emphasis added) (citing Foley, 740 F.3d at 1086-87; Schaffer, 2017 WL 729787, at *7; United States v. Neuhard, No. 15-cr-20425, 2016 WL 6871454, at *5 (E.D. Mich. Nov. 22, 2016)). The facts alleged here—that Mr. Bauldwin both created and acted in the child pornography in question—puts this case squarely in line with the conclusions reached by these other courts. As such, the Court finds that this is a "case in which a defendant is accused of sexual assault," meaning Rule 413 applies. Fed. R. Evid. 413(a).
c. However, Rule 413 evidence is subject to Rule 403 balancing
After making a preliminary finding under Rule 413, the Court still must make an admissibility determination under Rule 403. The Tenth Circuit has held that, in the context of sexual assault cases, Rule 403 balancing requires that courts consider: (1) how clearly the prior act has been proved; (2) how probative the evidence is of the material fact that it is admitted to prove; (3) how seriously disputed the material fact is; and (4) whether the government can avail itself of any less prejudicial evidence. United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998) (citation omitted). When evaluating the probative dangers, Enjady also instructs the Court to consider: (1) how likely it is that the evidence will contribute to an improperly-based jury verdict; (2) the extent to which the evidence will distract the jury from the central issues of the trial; and (3) how time consuming it will be to prove the prior conduct. Id. However, the Tenth Circuit has held that the exclusion of relevant evidence under Rule 403 "should be used infrequently" based on Congress' intent that the rule favors admissibility. Id. at 1433.
Jane Doe 2's proffered testimony is one such "infrequent" case where the Court must act to exclude evidence. Here the government proposes to elicit testimony from a woman who alleges that she and Mr. Bauldwin had "consensual" sexual intercourse once, over fifteen years ago, when she was 14 years old. Dkt. 73 at 6. At oral argument, the government proffered that Jane Doe 2 "loved [Mr. Bauldwin]" and did not think anything was wrong with their romantic relationship. Tr. at 18. Applying the Enjady factors, the Court finds that this evidence is not probative enough to justify its admission.
First, the Court is concerned with how clearly the prior act has been proven. It appears that the district attorney in Texas "declined to pursue any sort of sexual assault charges against Mr. Bauldwin after conducting an investigation because there was no corroborating evidence." Tr. at 41. Moreover, the evidence (or paperwork documenting the lack thereof) no longer exists. Id. Second, the Court does not find the alleged act probative of the charges at-issue: whether Mr. Bauldwin produced child pornography on two occasions. The connection between the present charges and the alleged conduct with Jane Doe 2 (vaginal intercourse) is tenuous. The alleged Jane Doe 2 conduct took place once, over 15 years ago, with a nonfamilial individual who, according to the government, appears to have been a willing participant. The temporal remoteness alone diminishes the probative value of the proffered evidence. See, e.g., United States v. Ellzey, 936 F.2d 492, 497 (10th Cir. 1991) (evidence excluded under Rule 403 because "remote and tenuous"). Moreover, Jane Doe 2's allegation is not said to involve the creation of visual depictions. In contrast, the government alleges that Mr. Bauldwin, over the course of several years, repeatedly coerced his own daughter into providing him with oral sex. Beyond their age and gender at the time of the alleged abuse, Janes Doe have little else in common. With respect to the third and fourth factors, while there must be some dispute over the facts to justify the parties taking this case to trial, the Court has already pointed out the wide range of less prejudicial evidence available to the government to make the same point.
Let the Court be clear: Mr. Bauldwin was 28 at the time, rendering Jane Doe 2 unable to consent if these allegations are true.
The Court is concerned that the introduction of Jane Doe 2 into these proceedings would elevate the risk of an improperly-based jury verdict and distract the jury from the central issue of the trial: whether, on two occasions, Mr. Bauldwin knowingly employed, used, persuaded, induced, enticed and coerced Jane Doe 1, a minor under 18 years of age, to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, using materials that had been shipped and transported in and affecting interstate and foreign commerce by any means, including by computer. Because of this, and because of the evidence's limited probative value (especially when compared to its prejudicial nature), the Court will grant Mr. Bauldwin's request to exclude Jane Doe 2's proffered testimony.
CONCLUSION
IT IS THEREFORE ORDERED that Mr. Bauldwin's motion [Dkt. 74] and objections [Dkt. 89] are GRANTED in part, consistent with this Memorandum Opinion and Order.