Opinion
Criminal No. 02-663 WJ
December 3, 2002
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION IN LIMINE [DOCKET NO. 30] AND GRANTING IN PART PLAINTIFF'S MOTION IN LIMINE [DOCKET NO. 31]
THIS MATTER comes before the Court pursuant to the Plaintiff's Notice of Intent to Offer Evidence Pursuant to Federal Rule of Evidence 414 and Motion in Limine [Docket No. 30] and Notice of Intent to Use Evidence Pursuant to Federal rules of Evidence 404(b) and 413, and Motion in Limine [Docket No. 31]. For the reasons below, the Court will grant the motion in limine [Docket No. 30] and grant in part the motion in limine [Docket No. 31].
DISCUSSION
Defendant in this case is charged with three counts of aggravated sexual abuse with a child under Chapter 109A of Title 18, United States Code (specifically, 18 U.S.C. § 2241(c)). The single victim is referred to in the indictment and subsequent documents as Jane Doe.
The Government's first motion, [Docket No. 30], seeks to admit evidence of the Defendant's uncharged molestation of three children other than the victim in this case. Under Federal Rule of Evidence 414, in a criminal case in which a defendant is charged with an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible and may be considered for any matter to which it is relevant. An offense of child molestation, for purposes of Rule 414, is defined as any conduct proscribed by Chapter 109A of Title 18, United States Code that was committed in relation to a child with a child being a person below the age of fourteen. The Tenth Circuit has determined that there is a three prong test to determine whether evidence meets the criteria for admissibility under Rule 414. United States v. McHorse, 179 F.3d 889, 897 (10th Cir. 1999). If the evidence meets the three prong test, it is then subject to Rule 403 balancing. Id. at 898.
The evidence the Government seeks to admit under Rule 414 meets the criteria for admissibility under the rule if the Defendant is accused of an offense of child molestation, if the proffered evidence is evidence of Defendant's commission of another offense or offenses of child molestation, and if the proffered evidence is relevant. McHorse, 179 F.3d at 898. In this case, Defendant is charged in Count II with an offense under Chapter 109A of Title 18, United States Code involving a child who had not yet attained the age of twelve years. By the plain language of Rule 414, he is charged with an offense of child molestation. Thus, the first prong for admissibility under Rule 414 is met.
The proffered evidence with regard to Jane Doe A involves evidence of sexual acts, as defined at 18 U.S.C. § 2246(2)(C) and (D), and sexual contact, as defined at 18 U.S.C. § 2246(3), with a child of 12 years of age. This is conduct that is proscribed by 18 U.S.C. § 2241(c) or 18 U.S.C. § 2244(a)(1) both of which are within Chapter 109A of Title 18, United States Code. Thus, by the plain language of Rule 414, the proffered evidence with regard to Jane Doe A is evidence of an offense or offenses by Defendant of child molestation. With regard to 2 Jane Doe B, the proffered evidence involves evidence of sexual contact, as defined at 18 U.S.C. § 2246(3), with a child of 12 years of age. This is conduct that is proscribed by 18 U.S.C. § 2244(a)(1) which is within Chapter 109A of Title 18, United States Code. Thus, the proffered evidence with regard to Jane Doe B meets the criteria under Rule 414 as evidence of an offense or offenses by Defendant of child molestation. The proffered evidence with regard to Jane Doe C involves evidence of a sexual act, as defined at 18 U.S.C. § 2246(2)(D) with a child of 9 years of age. This is conduct that is proscribed by 18 U.S.C. § 2241(c) which is within Chapter 109A of Title 18, United States Code. Thus, this proffered evidence is evidence of an offense by Defendant of child molestation. The proffered evidence with regard to Jane Does A, B and C thus meets the second prong for admissibility under Rule 414.
Finally, the proffered evidence is relevant. Evidence that Defendant engaged in offenses of child molestation with other victims is relevant to the issue of Defendant's propensity to commit the charged act of child molestation. While propensity evidence is not admissible for most types of criminal charges, Rule 414 specifically allows evidence of other acts to be used to show propensity in cases charging child molestation. McHorse, 179 F.3d at 896. Additionally, the evidence is relevant to show motive, opportunity, intent, plan, and knowledge of the Defendant in the commission of the crimes charged so meets the criteria for admissibility under Rule 404(b) in addition to Rule 414.
Although the evidence meets the requirements for admissibility under Rule 414 and 404(b), it must also meet the balancing test under Rule 403. McHorse, 179 F.3d at 896. Under Rule 403, the probative value of the evidence must be weighed against the danger of unfair prejudice, confusion of the issues, misleading the jury, and considerations of undue delay, waste of time or needless presentation of cumulative evidence. Id. Propensity evidence has a unique probative value in cases involving sexual assaults due to the unique difficulties in such cases of offering evidence beyond the testimony of the victim and defendant. United States v. Guardia, 135 F.3d 1326 (10th Cir. 1998). Courts should, however, continue to consider the traditional reasons for the prohibition of character evidence when conducting a Rule 403 balancing test. Id.
For instance, a court should take into account the chance the jury will convict for crimes not charged in the case. Id. Additionally, courts should be aware that the evidence of prior acts can confuse the issues in the case. Id. Such risks will be present in every case in which evidence is sought to be admitted under Rule 413 or 414. Id. However, if all rule 413 or 414 evidence were deemed too prejudicial under Rule 403, both Rule 414 and 413 would be rendered superfluous. Id.
The probative value of evidence will depend on considerations such as the similarity of the charged offenses to a defendant's conduct attempted to be shown by the proffered evidence, the proximity in time of the charged offenses to the conduct attempted to be shown by the proffered evidence, the frequency of the conduct attempted to be shown by the proffered evidence, the availability to the prosecution of other evidence, and the need for evidence beyond the testimony of the victim and defendant. Id. A court should also consider whether and to what degree the conduct attempted to be shown by the proffered evidence is proved, how probative the evidence is of a material fact it is admitted to prove, and how seriously disputed that material fact is. McHorse, 179 F.3d at 898. Weighing the dangers of unfair prejudice should include consideration of the extent of the potential distraction of the jurors, how likely the evidence is to cause a jury to reach a verdict on an improper basis, and how time consuming the presentation of the evidence will be. Id. It is essential that the court make a reasoned, recorded statement of its Rule 403 decision. Id.
In this case, the proffered evidence with regard to Jane Does A, B and C is highly probative. Evidence of these other offenses involving child molestation would tend to show the Defendant's propensity to engage in the charged conduct, his intent and motive to engage in the conduct, and will corroborate the testimony of the victim. It is similar in nature to the charged conduct. The proffered evidence is offered to show conduct by the Defendant that occurred contemporaneously or in fairly close temporal proximity with the charged conduct. While the proffered evidence does not show that Defendant's conduct occurred with any frequency or regularity with regard to any of the individual Jane Does A, B or C, the overall pattern shows a high frequency and regularity of such conduct that is highly probative of Defendant's propensity to commit such acts. While there is always a risk of prejudice in such cases, meaning that a jury may reach a verdict on an improper basis, this risk does not substantially outweigh the probative value of this evidence. Thus, I find that this evidence will be admitted under Rule 414 and, alternatively, under Rule 404(b).
The Government's second motion, [Docket No. 31], seeks to admit evidence of the Defendant's uncharged sexual assault of Jane Doe II who is Defendant's wife and Jane Doe's mother. The motion also seeks to admit evidence of uncharged instances of the Defendant's sexual assaults of the victim Jane Doe. Under Federal Rule of Evidence 413, in a criminal case in which a defendant is charged with an offense that involved any conduct proscribed by Chapter 109A of Title 18, United States Code, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible and may be considered for any matter to which it is relevant. The Tenth Circuit applies the same three prong analysis for admissibility under Rule 413 as it does under Rule 414. Guardia, 135 F.3d at 1326. As with evidence sought to be admitted under Rule 414, evidence sought to be admitted under Rule 413 is subject to Rule 403 balancing. Id.
The three prong test with regard to Rule 413 provides that evidence of uncharged acts of sexual assaults by a defendant are admissible if the defendant is accused of an act of sexual assault, if the proffered evidence is evidence of defendant's commission of a sexual assault, and if the evidence is relevant. Id. In this case, Defendant is charged with an offense under Chapter 109A of Title 18, United States Code. By the plain language of Rule 413, he is charged with an offense of sexual assault. The proffered evidence with regard to Jane Doe II involved forced sexual acts which is conduct proscribed by 18 U.S.C. § 2241(a) within Chapter 109A of Title 18, United States Code. The proffered evidence with regard to Jane Doe states that she will testify that she was sexually molested and assaulted by the Defendant on a regular basis both before and after the criminal acts charged in Counts II and III. While the proffer gives no details, the Court may assume based on the allegations in Count I, that Defendant was, at all times prior to March 28, 2002, a child under the age of 16 years who was more than four years younger than the Defendant. Any conduct toward Jane Doe by the Defendant that meets the definition of a sexual act or sexual contact under 18 U.S.C. § 2246 would violate 18 U.S.C. § 2241, § 2243, or § 2244, all of which are within Chapter 109A of Title 18, United States Code. By the plain language of Rule 413, the proffered evidence with regard to Jane Doe II and Jane Doe is evidence of Defendant's commission of an offense or offenses of sexual assault. Finally, the evidence is relevant. The evidence shows a propensity by the Defendant to commit the charged offenses.
Propensity evidence is admissible under Rule 413. Guardia, 135 F.3d at 1326.
With regard to Rule 403 balancing, the proffered evidence of Defendant's sexual assault offenses against Jane Doe II is not highly probative of the issues in this case. The conduct sought to be shown by the proffered evidence is not greatly similar to the charged conduct. See McHorse, 179 F.3d at 889 (10th Cir. 1999) (affirming Judge Hansen's decision to admit evidence of a defendant's uncharged sexual assaults of children other than the victim of the charged offense, but not admit evidence of the defendant's uncharged sexual assault of his own sister).
While the proffered evidence shows conduct that occurred contemporaneously with the charged conduct, there is nothing in the proffer that indicates the frequency of the conduct except the statement that it occurred more than once. Further, there is additional relevant evidence available beyond the testimony of the victim and the Defendant, such as the evidence proffered with regard to Jane Does A, B and C, that would is relevant and more probative of the issues in this case.
There is high risk that the proffered evidence with regard to Jane Doe II would confuse the issues and lead a jury to reach a verdict on an improper basis. This danger of unfair prejudice substantially outweighs the probative value of this evidence. Additionally, in light of the other evidence available, this evidence would be needlessly cumulative. Thus, I find that the proffered evidence with regard to Jane Doe II will not be admitted.
With regard to the proffered evidence of Defendant's uncharged sexual assault offenses against Jane Doe, this evidence is highly probative. The evidence tends to show conduct that is similar to the charged conduct, occurred contemporaneously with and in close time proximity to the charged conduct, and occurred with regularity. While there is other evidence available that is probative of Defendant's general propensity to commit acts of sexual assault, this evidence is much more probative of Defendant's propensity to commit acts of sexual assault against Jane Doe, the victim of the charged conduct. In addition to its probative value on the issue of Defendant's propensity, the proffered evidence is also highly probative of Defendant's intent, motive and opportunity to commit the charged offenses. While there is always a risk of confusion of issues and prejudice, the probative value of this evidence is not substantially outweighed by these dangers. Thus, I find that this evidence will be admitted under Rule 413, or, alternatively, Rule 404(b).
CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff's Notice of Intent to Offer Evidence Pursuant to Federal Rule of Evidence 414 and Motion in Limine [Docket No. 30] is hereby GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Notice of Intent to Use Evidence Pursuant to Federal Rules of Evidence 404(b) and 413, and Motion in Limine [Docket No. 31] is hereby GRANTED IN PART as described herein.