458 F. App'x 727
10th Cir.2012Background
- Johnson boarded a Chicago–Denver flight on Feb. 16, 2010 and touched a flight attendant, grabbed another’s buttocks, threw water at a second attendant, and sexually pressed his genitals against a female passenger; four-count indictment followed under 49 U.S.C. § 46504 and § 46506 with 18 U.S.C. § 2244(b) to cover abusive sexual contact with intent to arouse.
- Defense argued Johnson’s alleged acts showed lack of requisite intent due to mental illness; government sought to admit three prior acts to prove intent.
- Prior acts: (1) Feb. 3, 2010 music-store crotch bump against a female clerk; (2) Feb. 3, 2010 Huntsville, NC, grabbed buttocks, pressed crotch against buttocks, made sexual comment and touched breasts; (3) Feb. 2, 2010 Piedmont Community College kiss on the lips.
- District court admitted all three prior acts under Rules 413 and 404(b) with limiting instruction; Johnson challenged admission under Rules 413, 404(b), and Rule 403; panel denied challenges and affirmed conviction on appeal.
- Standard of review: abuse-of-discretion for evidentiary rulings; harmless-error review if any error.
- Panel affirmed the district court’s admission of the prior acts evidence and Johnson’s conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 413 allows admission of prior sexual assaults. | Johnson argues prior acts are inadmissible under Rule 413. | Johnson contends acts are not admissible or probative and prejudicial. | No abuse of discretion; admissible under Rule 413 with proper 404(b) limiting instruction. |
| Whether Rule 403 balancing supports admission of prior-act evidence. | Evidence is unfairly prejudicial and lacks probative value. | Evidence is probative of intent and motive, not merely propensity. | District court properly balanced probative value against prejudice under Rule 403. |
| Whether Rule 404(b) admissibility and similarity requirements were satisfied for all prior acts. | Prior acts should have been admitted only if they demonstrate intent/motive and are sufficiently similar. | Prior acts closely resemble charged conduct in intent and method, and are temporally proximate. | District court correctly found similarity, proper purposes, and limited instructions under Rule 404(b). |
| Whether the forcible-kiss incident fell within Rule 413 or only Rule 404(b). | Forcible kissing is a sexual act relevant to intent. | Not within Rule 413; admissible under Rule 404(b) with proper limits. | Court determined forcible kiss fell under Rule 404(b) with proper limiting instruction. |
| Whether admission of prior acts was harmless error given other trial evidence. | Not a reversible error; evidence properly admitted and harmless in light of record. |
Key Cases Cited
- Meacham v. United States, 115 F.3d 1488 (10th Cir. 1997) (liberally admit evidence of prior uncharged sex offenses)
- Benally v. United States, 500 F.3d 1085 (10th Cir. 2007) (establishing threshold Rule 413 admissibility factors; consideration optional not mandatory)
- Enjady v. United States, 134 F.3d 1427 (10th Cir. 1998) (upholding Rule 413 admissibility for prior rape to support aggravate charge)
- United States v. Guardia, 135 F.3d 1326 (10th Cir. 1998) (requires clear record of reasoning on Rule 413 ruling)
- Schene v. United States, 543 F.3d 627 (10th Cir. 2008) (requirements for Rule 404(b) admissibility and limiting instruction)
- Mares v. United States, 441 F.3d 1152 (10th Cir. 2006) (Rule 404/403 balancing—probative value vs. unfair prejudice)