William J. Batton was prosecuted and convicted for transporting a fourteen-year-old family friend to Chicago, where he sexually assaulted him. After receiving a sentence of 360 months under the Interstate Transportation of a Minor for Unlawful Sexual Relations Act, 18 U.S.C. § 2423(a), Batton appeals, raising three trial errors.
Batton contends the district court erred when it: (1) admitted evidence of a past conviction of a sexual offense against a fourteen-year-old family friend; (2) gave an improper jury instruction regarding the relevancy of the prior sexual assault; and (3) allowed an expert witness to testify regarding the methods sex offenders use to recruit and groom victims.
Having jurisdiction pursuant to 28 U.S.C. § 1291, we find the district court did not err. The evidence of Batton’s prior sexual assault against a fourteen-year-old boy was strikingly similar to the charged offense and helped the jury determine the validity of the victim’s accusations; the jury instructions as a whole were not misleading; and the expert testimony explained the characteristics and techniques of sex offenders in a way helpful to thе jury.
Accordingly, we AFFIRM Batton’s conviction.
I. Background
Trial testimony shows Batton’s interaction with the victim began several years before the crime occurred. In 2000, the victim’s parents moved to Douglas, Wyoming, with their two sons. They purchased a townhouse, and their neighbors were William Batton, his wife, Liz, and Liz’s son. The two families formed a solid friendship, and over the next two years, they spent a great deal of time together, including holidays. The victim’s mother often spoke with both Batton and his wife about day-to-day life, as well as more personal matters.
Some time in 2002, the victim’s parents moved 30 miles west of Douglas tо Glen-rock, Wyoming. The parents then went through a divorce. During and after the divorce, the Battons continued to have a close friendship with the victim’s mother and her children. In particular, the Bat-tons maintained regular contact with the mother’s eight-year-old son, J.D., who seemed especially troubled by his parents’ separation. Batton suggested to J.D.’s mother that it might benefit J.D. to get away on occasion from the circumstances surrounding his parents’ divorce, and he asked for permission to spend time with J.D. every once in a while. The mother agreed.
Over the course of several years, Batton and his wife took J.D. to the movies, the state fair, dinner, and their places of em *1195 ployment. J.D. also spent the night at the Battons’ house on several occasions. During the summer of 2006, Batton told J.D.’s mother that he wanted to reward J.D. for earning good grades by taking him on a trip to the Black Hills in South Dakota. The mother consented, and J.D. traveled with Batton and his wife to South Dakota, where they visited monuments and explored various sights.
From 2006 to 2007, J.D.’s mother and her children regularly met with the Bat-tons. J.D. continued to dо well in school, and Batton once again offered to take J.D. on a congratulatory trip, this time to Chicago. Batton’s wife and her business partner would be attending a conference, and Batton wanted to bring J.D. along, hoping to take him to various sights in the city while his wife attended her meetings. J.D.’s mother again agreed, feeling J.D. would enjoy the trip, especially since he had never been to Chicago.
In late July, 2007, Batton, his wife, her business partner, and J.D. traveled to Chicago, returning a week later. J.D.’s mother thought nothing of the trip until January, 2008, when Batton сalled her and informed her, for reasons that are not clear, that he had been in prison the previous weekend for failing to register as a sex offender. Although Batton tried to convince J.D.’s mother that it was nothing of consequence and that a family in Ohio was merely trying to extort money from him because of something that had happened long before, J.D.’s mother decided not to allow Batton to visit with J.D. in the future unless she or her fiancé were present.
Several days later, her worries still lingering, J.D.’s mother searched on-line for information relаting to Batton and his Ohio offenses. What she found disturbed her: a number of newspaper articles detailing Batton’s 1995 conviction for sexual assault on a 14-year-old boy. She immediately left work and drove to J.D.’s school, where she pulled him from class. She drove J.D. home, explained that Batton had been in trouble, and asked J.D. if Batton had ever touched him in a sexual way. J.D. answered in the affirmative.
After conferring with her fiancé, J.D.’s mother phoned the Converse County Sheriffs Office to report what J.D. had told her. That phone call resulted in an investigation, which eventually led to Batton’s prosecution.
At trial, J.D. testified that Batton had touched his genitalia on a number of occasions from the time J.D. was in second grade until he finished sixth grade. He also testified that on the second and third days of the Chicago trip, Batton had engaged in sexual contact with him.
Over Batton’s objections, the trial court allowed the jury to hear (1) evidence of Batton’s 1995 Ohio conviction, including testimony from the victim in that case; (2) Instruction 36, which read, in part, that the government “offered [the evidence regarding the 1995 conviction] for its bearing on any matter to which it is relevant, including ... the improbability that the Defendant has been falsely or mistakenly accused of these crimes,” R., Vol. I, Doc. 68 at 39; and (3) testimony from Dr. Heineke, the government’s expert who testified regarding the general methods of sex offenders.
II. Discussion
Batton appeals his conviction and charges the trial court erred in admitting the prior crime’s evidence, the jury instruction, and the expert testimony. We discuss each in turn.
A. Batton’s 1995 Conviction
1. The Applicability of Rule 413
Batton first contends the district court erred in admitting evidence of his
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1995 conviction in Ohio. We review legal interpretations of the Federal Rules of Evidence de novo.
United States v. Guardia,
The district court admitted the evidence of the 1995 conviction under Federal Rule of Evidence 413, which addresses propensity evidence in the context of sexual assault.
See United States v. Benally,
But Rule 413 provides an exception: “In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.” Fed.R.Evid. 413(a). To establish admissibility under Rule 413, the prosecution must show (1) the defendant is currently accused of an offense of sеxual assault; (2) the proffered prior acts evidence is “of the defendant’s commission of another offense of ... sexual assault,” Fed.R.Evid. 413(a); and (3) the proffered evidence is relevant. See Guardia, 135 F.3d at 1328 (10th Cir.1998).
Rule 413 defines “an offense of sexual assault” as, among other things, (1) “contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person,” Fed. R.Evid. 413(d)(2); (2) “an attempt or conspiracy to engage in [such] conduct,” Fed. R.Evid. 413(d)(5); or (3) “any conduct proscribed by [18 U.S.C. §§ 2241-2246].” 1 Fed.R.Evid. 413(d)(1). 18 U.S.C. §§ 2241-2246, in turn, prohibits any conduct proscribed in an enumerated series of sexual assault crimes.
Just as Rule 413 permits the introduction of prior offenses of sexual assault evidence, Rule 414 similarly allows the admission of evidence of prior offenses in child molestation cases. As we noted in
United States v. Enjady,
The district court properly concluded that both Batton’s prior conviction and the crime with which he is charged in this ease qualify as sexual assault for Rule 413 purposes. Because 18 U.S.C. § 2243 clearly proscribes the conduct that led to Batton’s 1995 conviction — oral sex with a fourteen year old boy — the conviction meets Rule 413’s definition of a sexual assault. Section 2243(a) provides:
Whoever ... knowingly engages in a sexual act with another person who — (1) has аttained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years or both.
*1197 18 U.S.C. § 2243(a). The statute defines a “sexual act” as “the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to ... arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(2)(D). Batton was charged and convicted in Ohio of engaging in prohibited sexual acts with a 14-year-old family friend whom he had known for many years. His underlying conviction thus falls squarely under Rule 413’s definition of a sexual assault.
Similarly, the charge against Batton in this ease also qualifies as an offense of sexual assault for Rule 413 purposes. Bat-ton is charged with knowingly transporting J.D. across state lines with the intent of engaging in illicit sexual activity. The illicit sexual activities involving genital contact, which J.D. testified took place in Chicago, clearly fit the conduct described in § 2243(a), qualifying the activity as a sexual assault pursuant to Rule 413. See Fed. R.Evid. 413(d)(1). Moreоver, the charged sexual activity also meets Rule 413’s internal definition of sexual assault, which is “contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person.” 2 Fed.R.Evid. 413(d)(2).
Batton makes two arguments against the application of Rule 413. First, he contends the offense with which he is charged — transporting a minor in interstate commerce with the intent to engage in illicit sexual activity- — -does not have as an element the conduct contemplated by Rule 413 and therefore the rulе does not apply. Second, he contends the district court improperly conflated the standards of Rule 414 in its analysis of Rule 413. We disagree with both arguments.
The first contention fails because Rule 413(d)(5) provides that sexual assault includes not only the conduct described above but also any “attempt or conspiracy to engage in [such] conduct.”
Id.
Defendants need not, therefore, complete sexual acts before their conduct constitutes a sexual assault for Rule 413 purposes. Our case law supports this result. In
United States v. Meacham,
Batton’s second contention is likewise unpersuasive. Both Rule 413 and Rule 414 serve the same purpose — to provide exceptions to Rule 404(a)’s prohibition on the admission of propensity evidence. Rule 413 applies to offenses of “sexual assault,” whereas Rule 414 applies to offenses of “child molestation.” The two rules use similar definitions for their re *1198 spective offenses, but Rule 414 limits itself to acts committed against children under the age of 14. Rule 414 also includes in its definition of child molestation the offenses involving child pornography in Chapter 110 of the federal criminal code. Batton argues Rule 414’s definition of “child molestation” is broader than Rule 413’s definition of “offense of sexual assault.” He then appears to imply the district court improperly applied Rule 414’s broader definition when it concluded that Rule 413 should apply in this case. This argument fails because, as explained above, Batton’s conduct meets Rule 413’s definition of sexual assault regardless of Rule 414’s definition of child molestation. The district court did not rely on Rule 414’s definition of child molestation when it determined Rule 413 applied in this case, and thus it did not err.
Finally, we agree with the district court that the evidence of Batton’s 1995 conviction is relevant. Despite the passage of time, the similarities between the victims and the conduct in each of the cases is striking — they fully support a pattern of grooming 3 and assaulting young male victims.
2. Rule 403’s Balancing Test
Yet the analysis dоes not end with Rule 413. Evidence admitted pursuant to Rule 413 is still subject to Rule 403’s balancing of probative value and prejudice.
See United States v. Castillo,
More specifically, in assessing the
probative value of the
evidence, the court must consider “(1) the similarity of the prior acts and the charged acts, (2) the time lapse between the other acts and the charged acts, (3) the frequency of the prior acts, (4) the occurrence of intervening events, and (5) the need for evidence beyond the defendant’s and alleged victim’s testimony.”
Benally,
The district court did not err in this balancing. First, the prior act the government tried to introduce is neither speculative nor unclear. It is a prior conviction, already established through the adversary process. Second, its probative value lies in its ability to show Batton has a propensity for grooming and sexually assaulting teenage boys. Indeed, the prior crime’s similarity to what J.D. alleged is obvious. Third, Batton claimed at trial that he did none of the acts of which J.D. accused him, making the 1995 conviction a crucial piece of evidence to help the jury determine the validity of J.D.’s accusations.
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Regarding the evidence’s probative value, we have already noted how similar the prior incident is with the charged acts in this ease. We also recognize the remoteness in time of the prior crime must weigh in the calculus. We spoke to this in
Meacham,
emphasizing, “[similarity of prior acts to the charged offense may outweigh concerns of remoteness in time.”
Regarding the evidence’s prejudicial effect, the trial court clearly instructed the jurors that they were not to find guilt in this case based on priоr convictions. The 1995 conviction evidence therefore did not contribute to the jury’s reaching an improperly based verdict. Our review of the record also confirms that the testimony regarding the prior incident was not so time consuming that it risked distracting the jury from the central issue at trial.
In sum, the probative value of the proffered evidence outweighs the danger of unfair prejudice to Batton. The district court did not err in admitting the evidence of Batton’s 1995 conviction.
B. Jury Instruction 36
Batton next argues the district court erred in giving Instruction 36 to the jury. We review de novo the jury “instructions as a whole and view them in the context of the entire trial to determine if they ‘accurately state the governing law and provide the jury with an accurate understanding of the relevant legal standards and factual issues in the case.’”
United States v. Bedford,
Jury Instruction 36 states in full:
You are instructed that evidence of conduct by the Defendant, on a previous occasion with witness [name omitted], has been offered by the Government for its bearing оn any matter to which it is relevant, including the Defendant’s disposition or propensity to commit the offense that is charged in the Indictment and the improbability that the Defendant has been falsely or mistakenly accused of these crimes.
It is entirely up to the jury to determine what weight, if any, such “other conduct” evidence deserves. In reaching your conclusion, you may consider all of the surrounding facts and circumstances of such testimony and give it such weight as you think it is entitled to receive in light of your experience and knowledge of human affаirs.
However, you are cautioned that the Defendant is not on trial here for any acts or crimes not alleged in the Indictment. The Defendant may not be convicted of the crimes charged in the Indictment if you were to find only that he committed other crimes at some other time. You are reminded that, at all times, the Government bears the burden of proving beyond a reasonable doubt that the Defendant committed the offense charged in the Indictment.
(Emphasis added.)
Focusing solely on the first paragraph, Batton contends the last clause desсribing “the improbability that the Defendant has been falsely or mistakenly accused” erro
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neously states the law. He argues it creates a “mandatory inference” instruction to the jury because it implies the prior offense evidence makes it improbable that Batton has been falsely or mistakenly accused of the current crime.
See Sandstrom v. Montana,
When read in context, the final clause of the first paragraph of the instruction does not create a mandatory inference or presumption of guilt. Rather, it informs the jury as to why the government proffered evidence of the 1995 conviction and clarifies the evidence may have some bearing on the improbability the government falsely or mistakenly accused Batton of the charged offense. The paragraph does not indicate in any way that the jury must use the evidence to conclude Batton was guilty of the alleged crimes.
Still, even if the first paragraph alone created any confusion in the jurors’ minds, the second and third paragraphs would have erased it. They emphasize with clarity that the jury must decide what weight to give the evidence and that no matter what other crimes Batton may have committed, the jury must find him guilty of the crime alleged in this case. They further emphasize that the burden of proving guilt beyond a reasonable doubt rests on the government at all times. These clarifying instructions remove any concern we might have that the jury misinterpreted the last clause of the first paragrаph.
The district court did not err when it offered Instruction 36 to the jury.
C. Expert Testimony
Finally, Batton contends the district court erred in allowing the testimony of Dr. William Heineke, the government’s expert witness. We review “de novo the question of whether the district court employed the proper legal standard and performed its gatekeeper role in admitting expert testimony.”
United States v. Rodriguez-Felix,
Prior to allowing the testimony of Dr. Heineke, the trial court held a
Daubert
hearing to determine his qualifications and the reliability of his proposed testimony.
See Daubert v. Merrell Dow Pharm., Inc.,
Batton argues that even with those limitations in place, Dr. Heineke’s testimony was nothing more than improper “profile” evidence. Batton contends the testimony did nothing but frame the way the jury saw the evidence that followed and how it perceived Batton.
We disagree. We have previously allowed testimony regarding criminal methods that are beyond the common knowledge of lay jurors. “Expert testimony is properly admitted if the subject matter is closely related to a particular profession, business or science and is not within the common knowledge of the average layperson.”
United States v. Kunzman,
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form on an opinion or otherwise.
Thus, we have declined in the past to classify “evidence into categories of profile or non-profile.”
McDonald,
Dr. Heineke testified that sex offenders are generally not strangers to their victims and their families but are more often than not close family members, friends, or well-respected individuals in a community who often use their positions to groom their victims into trusting them. He also informed the trial court that many lay persons carry a common misconception that sex offenders are only strangers or fit some misconceived criminal caricature. This specialized information may very well be beyond the knоwledge of many jurors. See Robin Fretwell Wilson, Undeserved Trust: Reflections on the ALFs Treatment of De Facto Parents, in Reconceiving the Family: Critique of the American Law Institute’s Principles of the Law of Family Dissolution, 90, 117-118 (Robin Fret-well Wilson, ed., 2006) (showing that many of the behaviors legal doctrines equate with good parenting are the same behaviors used by child molesters to groom their victims, including reading to children and bathing, dressing, disciplining, and showering children with attention and gifts); Jon R. Conte, The Nature of Sexual Offenses Against Children, in Clinical Approaches to Sex Offenders and Their Victims (Clive R. Hollín & Kevin Howells eds., 1991) (explaining many of the techniques sex offenders use to groom their victims).
Other circuits have reached a similar conclusion. For example, in
United States v. Romero,
Similarly, the Fifth Circuit in
United States v. Hitt,
We do not find the trial court abused its discretion in concluding the jurors would benefit from learning of the modus operandi of sex offenders. The methods sex offenders use are not necessarily common knowledge. The trial court held a thorough Daubert hearing, where the parties discussed at length Dr. Heineke’s qualifications. The record supports the trial court’s determination that Dr. Heineke had sufficient expertise to discuss how sex offenders prepare their victims. Further, the trial court was careful to limit Dr. Heineke’s testimony to only the correction of possible juror misconceptions regarding how sex offenders behave and what they look like. With those limitations in рlace, the trial court was well within its discretion to allow Dr. Heineke’s testimony.
III. Conclusion
Because we find the district court did not err in admitting evidence of the 1995 conviction, in instructing the jury, or in allowing Dr. Heineke’s testimony, we AFFIRM Batton’s conviction.
Notes
. The text of Rule 413(d)(1) reads, "any conduct proscribed by Chapter 109A of title 18, United States Code,” which is codified in 18 U.S.C. §§ 2241-2246.
. Federal law sets the age of consent at 16, which means J.D. was legally incapable of consenting to the sexual activity.
United States v. Lopez-DeLeon,
. The term “grooming'' is the process whereby a sex offender earns the trust and confidence of a victim before engaging in a sexual act. Sana Loue, Legal and Epidemiological Aspects of Child Maltreatment, 19 J. Legal Med. 471, 479 (1998).