United States v. Jose Perez, 662 F. App'x 495

Perez, a San Bernardino police officer, was convicted of three counts of deprivation of rights under color of law (18 U.S.C. § 242) based on sexual encounters with two women while on duty.
At trial the government introduced evidence of an uncharged, similar encounter Perez had with a third woman (X.C.) approximately one year earlier.
Perez sought to introduce evidence of one victim’s prior sexual relationships with two other San Bernardino officers to support a consent defense.
The district court granted the government’s motions in limine excluding that evidence under Federal Rule of Evidence 412 and admitted the uncharged X.C. encounter under Rule 413 and after a Rule 403 balancing using LeMay factors.
Perez appealed, arguing (1) Rule 412 exclusion violated due process and fair trial rights, (2) Rule 413 admission of the X.C. encounter was improper because the government failed to show X.C. was placed in fear, (3) the evidence should have been excluded under Rule 403, and (4) cumulative evidentiary errors denied due process.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of victim’s prior sexual history under Rule 412	Perez: evidence of victim’s sexual relations with other officers was admissible to show consent	Gov: such evidence is barred by Rule 412 as proof of other sexual behavior/predisposition	Exclusion under Rule 412 was proper; admitting it not required by Constitution
Admission of uncharged prior sexual misconduct under Rule 413	Perez: gov’t failed to show X.C. was placed in fear, so Rule 413 inapplicable	Gov: X.C. encounter showed attempt to cause submission by threat/fear, fitting Rule 413	Sufficient evidence (uniform, patrol car, implied arrest threat) supported a reasonable finding X.C. was placed in fear; Rule 413 admission not abused
Rule 403 balancing of prior-act evidence	Perez: prior-act evidence was more prejudicial than probative and should be excluded	Gov: prior act was highly similar, recent, and necessary; limited prejudice	Court properly applied LeMay factors and did not abuse discretion in admitting the X.C. evidence
Cumulative due process claim	Perez: cumulative evidentiary errors deprived him of due process	Gov: no individual evidentiary error; thus no cumulative error	Because the evidentiary rulings were proper, the cumulative due process claim fails

United States v. Hayat, 710 F.3d 875 (9th Cir. 2013) (standard of review for district court evidentiary rulings)
United States v. Redlightning, 624 F.3d 1090 (9th Cir. 2010) (Rule 413 propensity rationale for admitting other sexual assaults)
Huddleston v. United States, 485 U.S. 681 (U.S. 1988) (Rule 104(b) preponderance standard to admit conditional evidence)
United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001) (factors for Rule 403 balancing of prior-act evidence)
Rudy-Glazner v. Glazner, 232 F.3d 1258 (9th Cir. 2000) (articulation of LeMay balancing factors)