64 F.4th 1009
8th Cir.2023Background
- In June 2003 two juvenile girls (14 and 15) were abducted near Omaha, tied to a truck, sexually assaulted at knifepoint, burned with a lighter, had clothing taken, and escaped to a nearby interstate where a passing couple rescued them.
- A 2003 vaginal swab from one victim later produced an anonymous male DNA profile; in 2020 a state lab matched that profile to Myron Lee Brandon (statistical probability 1 in 1.9 nonillion). Brandon matched the victims’ description and lived near I‑29 where the victims were found.
- Brandon was indicted in 2020 on two counts of kidnapping (18 U.S.C. § 1201) and two counts of transporting a minor across state lines for sexual purposes (18 U.S.C. § 2423(a)). Trial took place in October 2021.
- Pretrial disputes included exclusion of evidence of the victims’ prior sexual behavior under Fed. R. Evid. 412, and admission of Brandon’s prior acts/convictions under Rules 404(b) and 413; defense sought jury instructions including a knowledge‑of‑age element for § 2423(a).
- The district court excluded evidence of prior or subsequent prostitution but allowed argument that prostitution was occurring contemporaneously; it admitted two prior acts (2003 attempted kidnapping testimony and a 2004 kidnapping conviction) under Rule 404(b) and a 2004 prior sex‑offense conviction under Rule 413.
- A jury convicted Brandon on all counts; the district court denied Rule 29 and Rule 33 relief and sentenced him to 405 months’ imprisonment (concurrent) plus supervised release; Brandon appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of victims’ prior sexual behavior (Rule 412 / constitutional exception) | Gov: Exclusion proper under Rule 412; probative value low and prejudicial. | Brandon: Rule 412(b)(1)(C) constitutional exception required admission to present an alternative explanation (prior prostitution/pimp, prior sexual contact explaining DNA). | Affirmed exclusion: exception not met; proffer speculative and unlike undisputed prior‑assault cases; court allowed counsel to argue contemporaneous prostitution but barred prior/subsequent prostitution and term "pimp." |
| Kidnapping jury instruction — consent element for transportation | Gov: Instructions as whole conveyed lack of consent; no additional wording required. | Brandon: Needed explicit lack‑of‑consent instruction for transportation element. | No error: Element One’s lack‑of‑consent language carried through to transportation; additional instruction would be duplicative. |
| Transportation‑of‑a‑minor — whether "knowingly" applies to age (Rehaif/Flores argument) | Gov: "Knowingly" applies to transportation, not to age element. | Brandon: Rehaif/Flores require mens rea as to age; jury should be instructed accordingly. | No error: Bound by Moreira‑Bravo — "knowingly" does not apply to § 2423(a)’s age element. |
| Admission of prior acts under Rule 404(b) (2003 attempted incident; 2004 kidnapping conviction) | Gov: Admissible to prove identity, intent, plan, modus operandi; similar facts and proximate in time. | Brandon: Improper propensity use; unduly prejudicial. | Admitted: Four‑part Williams test satisfied (relevance, similarity, sufficient evidence, Rule 403 balancing); limiting instruction given. |
| Admission of prior sex‑offense conviction under Rule 413 | Gov: Prior sexual assault of a minor is admissible propensity evidence and probative of similar offenses. | Brandon: Highly prejudicial; should be excluded under Rule 403. | Admitted: Prior conduct sufficiently similar (minor, offers of money, assaults in truck, same county); probative value not substantially outweighed by prejudice; limiting instruction used. |
| Motion for new trial / sufficiency of evidence | Gov: DNA match, victim ID, corroborating facts support verdict. | Brandon: Witness inconsistencies and evidentiary rulings warrant new trial or acquittal. | Denied: Viewing evidence in light most favorable to verdict, sufficient evidence supports convictions; inconsistencies were for jury to resolve. |
Key Cases Cited
- Holmes v. South Carolina, 547 U.S. 319 (2006) (constitutional right to present a complete defense governs admissibility of defense evidence)
- Crane v. Kentucky, 476 U.S. 683 (1986) (Confrontation and due process guarantee opportunity to present evidence)
- United States v. Bear Stops, 997 F.2d 451 (8th Cir. 1993) (Rule 412 exclusion reversed where undisputed prior assault was critical alternative explanation)
- United States v. Zephier, 989 F.3d 629 (8th Cir. 2021) (exclusion of corroborated prior assault deprived defendant of ability to rebut expert behavioral testimony)
- United States v. Pumpkin Seed, 572 F.3d 552 (8th Cir. 2009) (limitations on cross‑examination and Rule 412 balancing with victim protection interests)
- United States v. Walker, 917 F.3d 1004 (8th Cir. 2019) (Rule 412 exclusion standard: exclusion must not be arbitrary or disproportionate)
- Rehaif v. United States, 139 S. Ct. 2191 (2019) (mens rea principles for criminal statutes)
- Flores‑Figueroa v. United States, 556 U.S. 646 (2009) (requiring specific mens rea for elements that identify protected status)
- United States v. Williams, 796 F.3d 951 (8th Cir. 2015) (four‑part test for admitting Rule 404(b) evidence)
- United States v. Moreira‑Bravo, 56 F.4th 568 (8th Cir. 2022) ("knowingly" does not apply to § 2423(a)’s age element)
- United States v. Arias, 936 F.3d 793 (8th Cir. 2019) (Rule 413 permits admission of prior sexual assaults for propensity)
- United States v. Crow Eagle, 705 F.3d 325 (8th Cir. 2013) (Rule 413 requires Rule 403 balancing of probative value versus unfair prejudice)