995 F.3d 748
10th Cir.2021Background
- Arthur Perrault, a longtime Albuquerque Catholic priest, left the U.S. in 1992 after a local reporter began investigating allegations he sexually abused boys; he lived in Morocco for ~25 years.
- In 2017 a federal grand jury charged Perrault with seven counts (six aggravated sexual abuse, one abusive sexual contact) relating to Doe 1’s abuse in 1991–92; Morocco detained him and later expelled him to U.S. custody.
- At trial Doe 1 testified about repeated abuse at multiple locations; the government also introduced testimony from seven other alleged victims under Fed. R. Evid. 414 to show propensity/grooming and corroborate Doe 1.
- The jury convicted Perrault on all seven counts; the district court sentenced him to 365 months (concurrent 120 months on one count), adopting a two-level obstruction enhancement tied to his flight and later resistance to return.
- On appeal Perrault challenged (1) juror impartiality, (2) admission of Rule 414 witnesses, (3) jury instructions (unanimity/double jeopardy), (4) obstruction enhancement at sentencing, and (5) cumulative error; the Tenth Circuit affirmed.
Issues
| Issue | Perrault's Argument | Government's Argument | Held |
|---|---|---|---|
| Jury impartiality (Sixth Amendment) | Pretrial publicity and widespread venire bias about priest abuse made an impartial jury impossible; high excusal rate shows community prejudice | Voir dire cured bias; excusal rate was not extreme; seated jurors swore impartiality and court admonitions were adequate | No error — neither presumed nor actual prejudice shown; plain-error review fails because record supports juror impartiality |
| Admission of other-victim testimony (Fed. R. Evid. 414) | Seven Rule 414 witnesses were cumulative and unduly prejudicial; emotional impact outweighed probative value | Rules 413/414 permit propensity evidence; Enjady/Benally factors support admission; testimony bolstered Doe 1 where physical evidence lacked | No abuse of discretion — district court properly balanced Enjady factors and mitigated prejudice with limiting instructions |
| Jury instructions; unanimity & double jeopardy | Grouping multiple counts in single instructions without sending the indictment to jury risked non-unanimous verdicts and multiple punishments for same act | Indictment was read at trial, other instructions and verdict form required separate consideration; government tied specific incidents to counts in closing | No plain error — viewing instructions and trial as a whole, jury reasonably linked each count to distinct acts; no substantial-rights prejudice shown |
| Sentencing: obstruction enhancement (§3C1.1) | Flight to Morocco occurred before any governmental investigation, so enhancement was improper; challenge preserved via plain-error review | Flight impeded justice and government incurred expense retrieving him; later resistance to removal supports enhancement | Affirmed — court agreed §3C1.1 as applied to pre-investigation flight was dubious, but enhancement justified by Perrault’s refusal and active resistance to return (government’s expense) |
| Cumulative error / trial fairness | Multiple alleged errors (Rule 414 excess, jury instruction defects, denial of continuance/mistrial) together deprived him of a fair trial | Individual rulings were correct or harmless; no multiple harmless errors to aggregate | No reversible cumulative error — additional claims (continuance, mistrial) reviewed for abuse of discretion and rejected |
Key Cases Cited
- Irvin v. Dowd, 366 U.S. 717 (1961) (juror impartiality requires verdict based on trial evidence, not preformed opinion)
- Murphy v. Florida, 421 U.S. 794 (1975) (excusal rate and voir dire bear on community prejudice; high excusal may signal poisoned community)
- United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998) (framework for admitting propensity evidence under Rules 413/414 and balancing under Rule 403)
- United States v. Benally, 500 F.3d 1085 (10th Cir. 2007) (application of Enjady factors and liberal admission of Rule 413/414 evidence)
- United States v. Mann, 193 F.3d 1172 (10th Cir. 1999) (factors for assessing probative value of other-act evidence)
- United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998) (deference to jurors’ declarations of impartiality and voir dire importance)
- United States v. Davis, 55 F.3d 517 (10th Cir. 1995) (instructions read in light of the indictment can prevent unanimity/double jeopardy problems)
- Chavez-Morales v. United States, 894 F.3d 1206 (10th Cir. 2018) (plain-error test elements)
- Never Misses A Shot v. United States, 781 F.3d 1017 (8th Cir. 2015) (caution about cumulative Rule 413/414 witnesses; "at some point enough is enough")
- United States v. Gacnik, 50 F.3d 848 (10th Cir. 1995) (§3C1.1 obstruction enhancement limited to conduct during investigation/prosecution/sentencing)