United States v. LeMay, 260 F.3d 1018

U.S. Court of Appeals for the Ninth Circuit

2001

Chapter

9

Title

A Return to Relevance II:  Character and Habit

Page

382

Topic

FRE 413-415

Quick Notes

LeMay opposed the prosecution's attempt to introduce evidence of prior acts of child molestation, challenging the constitutionality of Fed. R. Evid. 414. LeMay also claimed that the evidence was not admissible under Fed. R. Evid. 403, arguing that its potential for prejudice far outweighed its probative value.

Holding

o         The court held that Rule 414 was constitutional. The court also held that the district judge applied Rule 403 conscientiously and did not abuse his discretion in finding that the prior acts of child molestation were not so prejudicial as to outweigh their probative value. The evidence was relevant, especially where defendant challenged victim's credibility. Lastly, the court held that Rule 414 did not violate the Equal Protection clause.

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether prior acts molestation testimony allowed by FRE 414 is constitutional?  Yes, but the judge must conduct FRE 403 balancing.

Procedure

Trial

o         The district judge rejected defendant's facial constitutional challenge. He determined that Rule 403 did not otherwise preclude the introduction of the prior acts of molestation, and that Rule 414 was not unconstitutional as applied to defendant

Appellant

o         The court held that Rule 414 was constitutional. The court also held that the district judge applied Rule 403 conscientiously and did not abuse his discretion in finding that the prior acts of child molestation were not so prejudicial as to outweigh their probative value. The evidence was relevant, especially where defendant challenged victim's credibility. Lastly, the court held that Rule 414 did not violate the Equal Protection clause.

Facts

Discussion

Key Phrases

Rules

Pl - United States

Df - LeMay

Description

o         Fred LeMay, a 24 year old Native American Indian, sexually assaulted his two sisters who were 5 and 7 at the time.

At Trial

o         His sisters children were 7 and 9.

o         They testified to the assault.

Cross-Examination (Boys had motive)

o         LeMays counsel suggested that the boys did not remember the events accurately.

o         They had motive to lie, because they were in foster care and wanted to return home.

Prosecution (Past Rape Conviction)

o         Then was permitted to introduce testimony that the Df had a juvenile rape conviction stemming from two 1989 sexual assaults of a 2 year and eight month old daughter.

403 Balancing

o         Trial judge conducted a 403 balancing test.

o         Admitted evidence under FRE 414.

LeMay Due Process

o         Contends that admitting this evidence was a violation of his due process.

Rule 414 changes this general rule with respect to child molestation cases.

o         It makes such evidence admissible, providing that:

o    In a criminal case in which the defendant is accused of 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 its bearing on any matter to which it is relevant.

LeMay Rule 414 violate due process

o         The traditional rule preclude prior bad acts to prove his disposition to commit the type of crime.

Court LeMay has a very high burden of proving a due process violation

o         It was not met.

In Dowling v. United States,

o         The Court held that a rule or practice must be a matter of "fundamental fairness" before it may be said to be of constitutional magnitude.

o         The defendant determines if the rule is deeply rooted not the State.

Court - No shown

o         LeMay has NOT shown that the traditional ban on propensity evidence involves a "fundamental conception of justice."

Court Determining if a rule if fundament as to be embodied in the Constitution

o         This determination is a historical practice.

o         Does not lead to a clear conclusion.

o         Courts have routinely allow propensity evidence in sex-offense cases.

o         States that do not have FRE 414 415, will stretch 404(b) by resorting to the so-called lustful disposition exception.

Court Nothing Fundamentally unfair about allowing propensity evidence under FRE 414.

o         As long as FRE 403 protections remain in place.

o         District judges retain the discretion to exclude evidence that is far more prejudicial than probative.

o         With FRE 403 intact, LeMay loses much of his force in his due process challenge.

Molestation Evidence indisputably relevant

o         The introduction to relevant evidence is not a constitutional violation.

o         Rule 404(b) to prove preparation, identity, intent, motive, absence of mistake or accident, and for a variety of other purposes.

When it is unconstitutional?

o         Only if its prejudicial effect far outweighs it probative value.

Court - LeMay's prior acts of molestation

o         Admitting was proper.

o         The evidence of LeMay's prior acts of child molestation was highly relevant.

o         The 1989 molestations were very similar to the charged crimes.

o         Each case involved forced oral copulation.

o         In each case the victims were young relatives of LeMay, and each instance occurred while LeMay was babysitting them.

Court Prior acts bolster victims credibility, after LeMay said they were fabricating

o         The prior acts evidence was relevant to bolster the credibility of the victims after LeMay suggested they could be fabricating the accusations.

Court Must Consider

o         Remoteness

o    11 years had passed between LeMays abuse of his nieces and his trial for the abuse of D.R. and A.R.

o    There was also evidence of another incident, which suggest frequency of events.

o         Intervening events

o    Have little relevant in this case.

Court Relevance of prior acts was in the details (Necessity Factor)

o         Francines testimony was necessary to establish that LeMays 1989 molestations were similar.

o         Her testimony was necessary to fill in all the details.

Court Holding

o         The record shows that the district judge struck a careful balance between LeMay's rights and the clear intent of Congress that evidence of prior similar acts be admitted in child molestation prosecutions

Rules

404(b) Other crimes, wrongs, or acts

o         Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.

o          It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Rule 414. Evidence of Similar Crimes in Child Molestation Cases

         (a) In a criminal case in which the defendant  is accused of 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 its bearing on any matter to which it is relevant.

         (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

         (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

         (d) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved

o    (1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child;

o    (2) any conduct proscribed by chapter 110 of title 18, United States Code;

o    (3) contact between any part of the defendant's body OR an object AND-

§  the genitals or anus of a child;

o    (4) contact between the genitals OR anus of the defendant AND-

§  any part of the body of a child;

o    (5) deriving sexual pleasure or gratification from the

§  infliction of death,

§  bodily injury, or

§  physical pain on a child; or

o    (6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).

Class Notes