United States v. Moffit, 588 F.Supp.3d 1106

Background

Defendant Gary E. Moffit is charged with aggravated sexual abuse of a child under 12 in Indian Country for alleged conduct between Dec. 8, 2011 and Apr. 5, 2012; trial was set for May 2, 2022.
Government disclosed it may use (if Moffit testifies) his prior criminal convictions (20 felonies from 1985–2016) under Fed. R. Evid. 609; court found insufficient record now to resolve admissibility and denied a blanket exclusion.
Government sought to introduce two contemporaneous non-sexual incidents (car found at roadside/leave-the-scene arrest on Feb. 20, 2012; DUI arrest on Apr. 2, 2012) as other-act evidence; court held they are 404(b) evidence but excluded them now because a stipulation as to location/timing supplies the same corroboration and the prejudicial effect outweighs probative value.
Government disclosed an alleged later incident (May 2014) in which Moffit allegedly touched a 3-year-old (K.F.); court found the prerequisites for admission under Rules 413/414 met and admitted the evidence to rebut character evidence, but refused to admit it under 404(b) to prove identity and noted disclosure deficiencies that must be cured.
Court limited government bolstering and hearsay through others: S.T. may testify in court about her own statements (801(d)(1)(B)(ii) path), but the government will not present out-of-court statements through other witnesses or the recorded forensic interview as part of its case in chief.
Recordings: government will not use the Jan. 20, 2020 interview recording; it may introduce portions of the June 15, 2021 interview (Moffit was Mirandized) for impeachment, and the court denied a wholesale exclusion pending specificity about alleged hearsay portions. The court will use S.T.’s initials in public filings and denied a blanket bar on using the word “victim,” advising a curative instruction if used.

Issues

Issue	Government's Argument	Moffit's Argument	Held
Admissibility of Moffit’s prior convictions (Rule 609) if he testifies	Convictions are admissible under Rule 609 if probative value outweighs prejudice (or substantially outweighs if >10 years)	Probative value is outweighed by unfair prejudice; seeks exclusion now	Denied exclusion now for lack of record; government bears burden at trial to show admissibility under Alexander factors
Admission of Feb 20 and Apr 2, 2012 incidents (404(b))	Admissible to corroborate timeline and S.T./witness recollections	Highly prejudicial and not necessary given defendant’s stipulation to presence/location	Excluded now: court treated as 404(b) evidence and found prejudice > probative value because stipulation supplies same corroboration
Testimony about Moffit’s alcohol consumption while at S.T.’s home	May be relevant and inextricably intertwined with charged conduct	Seeks exclusion as prejudicial/other-act evidence	Denied exclusion now; court lacks adequate info and acknowledges it may be inextricably intertwined
Admission of alleged K.F. incident (other child) under Rules 413/414 and 404(b)	Rule 413/414 admissible to rebut character evidence or for propensity-related relevance; government disclosed timely	Challenges reliability and fairness; objects to 404(b) use for identity	Admitted under Rules 413/414 (meets LeMay factors and Rule 104(b)); not admissible under 404(b) to show identity; 404(b) use for other non-propensity purposes reserved
Use of S.T.’s out-of-court statements and forensic interview	Govt does not intend to introduce those via others; may rely on S.T.’s live testimony	Move to exclude bolstering and hearsay through others	Granted: government will not offer bolstering through other witnesses or the recorded forensic interview; S.T. may testify herself and identification must meet Rule 602 foundation
Admissibility of recorded interviews of Moffit	Jan. 20, 2020 recording not offered; June 15, 2021 interview admissible in part to rebut claims he didn’t make statements	Seeks exclusion of recordings in full as hearsay and prejudicial	Jan. 20 tape: unopposed exclusion; June 15 tape: motion denied without prejudice—court needs specifics about contested hearsay portions
Use of S.T.’s name and the term “victim” at trial	Government intends to use full name; may refer to complaining witness as "victim" in context	Use of full name/"victim" prejudicial; requests initials and bar on "victim" label	Govt may use full name at trial; court will use initials in public filings; use of "victim" not barred but court requests proposed curative instruction if used frequently

Key Cases Cited

United States v. Tokash, 282 F.3d 962 (7th Cir. 2002) (motions in limine streamline trials but should not resolve factual disputes)
C & E Servs., Inc. v. Ashland Inc., 539 F. Supp. 2d 316 (D.D.C. 2008) (evidentiary rulings often deferred until trial for context)
Ohler v. United States, 529 U.S. 753 (2000) (in limine rulings provisional and may be revisited at trial)
United States v. Alexander, 48 F.3d 1477 (9th Cir. 1995) (establishes factors for Rule 609 analysis)
Simpson v. Thomas, 528 F.3d 685 (9th Cir. 2008) (applies Alexander factors to Rule 609(b))
United States v. Bailey, 696 F.3d 794 (9th Cir. 2012) (four-part test for Rule 404(b) admissibility)
United States v. Wells, 877 F.3d 1099 (9th Cir. 2017) (inextricably intertwined exception to Rule 404(b))
United States v. Beckman, 298 F.3d 788 (9th Cir. 2002) (coherent narrative/inextricably intertwined analysis)
United States v. Lague, 971 F.3d 1032 (9th Cir. 2020) (foundation sufficiency for other-act evidence)
United States v. Norris, 428 F.3d 907 (9th Cir. 2005) (Rule 104(b) conditional relevance standard)
United States v. Halamek, 5 F.4th 1081 (9th Cir. 2021) (Rule 403 balancing for Rules 413/414 evidence; LeMay factors)
United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001) (factors for excluding propensity evidence under Rule 403)
United States v. Thornhill, 940 F.3d 1114 (9th Cir. 2019) (timeliness/proximity relevant in Rule 414 analysis)
United States v. Hadley, 918 F.2d 848 (9th Cir. 1990) (Rule 404(b) as one of inclusion; evidence admissible if not solely propensity)