*1 1018 Cir.2000) оmitted). (9th (citation 636, held that 645 Supreme Court has
The closely does not complained violations doctrine The acts of are related continuing to time-barred termination give new life all flowed from the 1996 letter and because claims, where the effects of even period. related several fell within the limitations not, here, as imme- are termination Thus, predicate application for College v. Delaware State diately felt. established, continuing theory is violation 250, 258, 498, Ricks, 101 S.Ct. 449 U.S. necessary to survive at least to the extent (1980) (citing 504, 66 L.Ed.2d to dismiss. the motion Hawaii, University v. Abramson I reverse and remand for trial. would Cir.1979)).9 (9th 202, 209 F.2d on several occa has also held This court continuing violations doc
sions that employee termi apply
trine does not continuing violation
nation cases. to allow a victim of
doctrine is intended
systematic discrimination recover appli outside the
injuries that occurred
an
period,
limitations
cable
where
America,
UNITED STATES
subject
policy
employee
has been
Plaintiff-Appellee,
promotion
of minorities.
v.
Owens-Illinois,
Inc., 665
v.
Williams
(9th Cir.),
denied,
918,
cert.
F.2d
LEMAY, III,
Fred James
Defendant-
302,
971, 103 S.Ct.
rights being were withdrawn statutory period trigger
sufficient to subsequent denials of constitutional
on
rights. that, Knox agree
I to the extent relies violation, she must “state continuing
on a support[ ... a deter- [to] ]
facts ‘sufficient “alleged discriminatory
mination that closely enough acts are to consti- related ’ violation,” and that one continuing
tute a acts falls within the limita- more period.” supra p. quoting
tion See Glendora, City 207 F.3d
DeGrassi v. supra pp. supra p. 9. 10. Cited 1015-1016. Cited *4 Rhodes, John P. Federal Defenders of Missoula, Montana, Montana, for the de- fendant-appellant. (Briefed),
Marcia Sept Good United Office, Attorney’s Billings, States Mon- tana, plaintiff-appellee. for the (Argued), Lisa Simotas United States Office, Attorney’s Montana, Billings, for plaintiff-appellee. charges in Indian tribe. TROTT, Fort Peck WOOD, JR.,* and Before: that oc- from an incident arose this case PAEZ, Judges. Circuit Pop- of 1997 during the summer curred TROTT; Partial Judge by Opinion Montana, Indian the Fort Peck lar, on Judge Partial Dissent and Concurrence on the Fort LeMay lived Reservation. PAEZ. from 1991 Peck Reservation home of his intermittently resided TROTT, Judge: Circuit husband, Shields, her sister, Justine his convictions LeMay appeals Fred had several Renz Renz. Shields and Daniel in violation molestation of child counts two children, LeMay often for whom young We must 2241 and 3231. §§ of 18 U.S.C. occurred dur- such instance babysat. One prior acts of his admission whether decide and Renz of 1997. Shields ing the summer Rule 414 of the under of child molestation leaving Le- evening, for the out gone had violated Rules of Evidence Federal A.R., their children D.R. May watch process. We to due constitutional seven. ages five and boys two other courts agree numerous with copu- orally children LeMay made both appliсable to Rule 403 remains parents him were 414, and, if while their consci- late with introduced under *5 if up them threatened beat away and to protect will defendants entiously applied, Undeterred, boys the inflammatory they anyone. told evidence so from of the abuse the to fair trial. their mother their informed jeopardize as to morning. Shields refused Although conclude that Rule next therefore We babysit her children after LeMay for to let constitutional. incident, that, the look report did not she emphasize that holding, we In so boys to a doctor or take the for entitling the a blank check 414 is not Rule later, however, years Two or a counselor. whatever evi introduce government to got wind of authorities law enforcement wishes, minimally matter how no dence and investi- LeMay’s of the children abuse devastating the and potentially relevant LeMay was eventu- gated allegations. the emphasize thаt dis defendant. We child moles- with ally arrested balancing test apply the trict courts must tation. allows for a manner that of Rule 403 in trial, notice prosecutor gave Before conclude We meaningful appellate review. evidence of Le- intent to introduce of her applied in this judge case that the district un- misconduct May’s prior acts sexual conscientiously and not abuse did Rules of 414 of the Federal der Rule LeMay’s prior finding in his discretion The evidence consisted preju not so Evidence. child were acts of molestation arising from juvenile rape conviction probative their value. outweigh as to dicial that had occurred Thus, error And no constitutional events we can years old. At LeMay just AF twelve therefore was abuses discretion. aunt, time, LeMay with his resided LeMay’s FIRM convictions. Gresham, LeMay, Oregon. Francine BACKGROUND LeMay daughters, had who two Francine years two were summer twenty-four-year-old LeMay Fred is a old, respectively. eight months member of the and a Native American * Wood, Jr., by designation. Harlington Senior The Honorable Circuit, sitting Judge for the Seventh Circuit LeMay As the 1997 incident for which Le- advantage took of this lack of May charged, LeMay sexually statement, opening his arguing babysitting abused the children while for eyewitnesses that no or medical or scienti- LeMay them. Francine returned from experts fic would corroborate the testimo- grocery two-year store to find her old ny Further, of A.R. and D.R. in cross- daughter upset Upon and bruised. con- examining boys, LeMay’s counsel at- frontation, LeMay Francine extracted an tempted to call question into ability their “put admission from that he had to remember events accurately. He also in” penis the older child’s mouth. suggested boys might have a mo- Francine also found a cream-like tive to he they currently because were substance in her vagina infant’s when she care, foster they and that might have changed diaper, implied her that this thought accusing LeMay molesting substance was semen. In a subsequent way them would abe to be reunited with juvenile adjudication, LeMay was found parents. their guilty rape. A.R., D.R., Shields, After and the inves- LeMay opposed prosecution’s at- testified, tigator judge decided the re-
tempt evidence, mounting to introduce this maining Rule 414 issues. He determined a facial “as-applied” challenge both and an that Rule 403 preclude did not otherwise constitutionality of Rule 414. He the introduction of acts of moles- also claimed that the evidence tation, and that was not unconsti- 403, arguing admissible under Rule that its applied tutional as LeMay. In conduct- potential prejudice outweighed far test, ing the Rule 403 balancing judge pre- value. After an extensive stated: *6 hearing, judge rejected trial On examination of eaсh of in boys the LeMay’s facial constitutional challenge. question, there [have] been substantial judge The reserved the applied” “as and issues concerning raised their credibili- trial, Rule 403 in challenges until order to ty.... accurately be able to determine more There’s a goes substantial issue that to prosecution’s proffered whether the evi- credibility the all persons of the in- dence would be judge relevant. The ob- in volved the care of these children. served that full “[a] evaluation of all the I proffered And find that the evidence appropriate evidence and the balancing by government the is to relevant issues applied test to be in this case is best left credibility. It is in also relevant re- for trial.” butting suggestion the that there’s no trial, prosecution At the called both A.R. proof happened, that this which was D.R., by and that who time were seven and by opening made the defendant in his years nine old. boys Both remembered statement, and that there would be no the incidents consistently. and testified witnesses, medical, psychological, or prosecution The boys’ also called the moth- eyewitnesses And, consequently, called. er, Justine Shields. Because Shields had I am going to admit the evidence over anyone not informed that had mo- objection the of the defendant. children, lested her prosecution the was forensic, any medical, unable to offer allowing prosecution pres- Before the to psychological boys however, evidence that the had ent its act abused, been and the judge gave jury following case therefore rested limiting on testimony. their instruction: (9th Cir.1999). However, a dis- 1116, 1121 testimony from to hear going
You are
403 that
ruling
has a
under Rule
testimony
judge’s
this
trict
this witness
purpose is
prejudicial
The limited
than
is more
purpose.
evidence
limited
credibility of wit-
on the
discretion.
may beаr
for an abuse
as it
reviewed
already
you have
whom
Leon-Reyes,
from
See,
nesses
States
e.g., United
you are
evidence
testimony. The
Cir.1999).
(9th
heard
F.3d
guilt in
is not evidence
hear
to
about
se,
defendant,
it is
per
this case
Due
B.
Process
you
by
considered
can be
that
evidence
through
Rules 413
Prior
it is
relevant
which
any purpose
for
of a defen-
admission
passed,
415 were
in this case.
issues
terms
governed
or acts
prior crimes
dant’s
instruction,
prosecutor
After
this
404(b),
evi-
such
which disallows
by Rule
first
She
two witnesses.
last
her
called
character
prove
“the
used
dence when
LeMay, who testified
Francine
called
show action
in order to
person
aof
of her chil-
abuse
defendant’s
about the
R. EVID.
FED.
conformity therewith.”
LeMay,
Ms.
who
Oregon
dren
404(b).
general
rule
changes
tears,
testimony
described
began her
cases.
It
child molestation
respect to
with
that Le-
discovered
she had
how
generally
admissible, рroviding
such
makes
daughters and how
her
May had abused
that:
him to admit to that abuse.
gotten
had
she
the defen-
case which
In a criminal
witness established
prosecution’s final
of child
of an offense
is accused
dant
rape
guilty
found
LeMay had been
molestation,
of the defendant’s
After these wit-
adjudication.
juvenile
in a
or of-
another offense
commission of
nesses,
closed
case.
prosecution
admissible,
molestation
fenses of child
rested, the district
sides
both
had
When
bearing on
for its
may be considered
court reminded
matter to
it is relevant.
any
indict-
in the
trial for the
on
ment,
acts of
414(a).
molestation
LeMay contends
R.
FED.
EVID.
LeMay’s ob-
in 1989. Over
occurred
princi-
process
due
violates
de-
judge
that “the
instructed
jection,
on
longstanding ban
ples
removing
*7
any
not on trial for
conduct
fendant
He
in
trials.
criminal
propensity
in
indict-
is not
that
offense
precluding
rule
that the
argues
traditional
any
should consider
ment. You
acts to
prior bad
of a
the use
defendant’s
you
of the defendant that
acts
about other
type of
to
disposition
commit
prove
may
only
...
as
those
have heard
Anglo-
ingrained
so
charged is
crime
in this
the matter that is relevant
on
bear
embodied
jurisprudence as to be
American
case.”
process clause of the Constitu-
due
LeMay guilty
found
of both
The
high burden
very
a
has
tion.
molestation, and the district
of
counts
assertion,
conclude he
and we
proving this
to 405 months
him
judge sentenced
it.
has not met
prison.
Applicable
Law
DISCUSSION
not en
The
does
Constitution
of Review
A. Standard
cus
legal
and
all
rules
compass
traditional
and
longstanding
toms,
how
no matter
that a
review novo a claim
de
may be.
practices
widespread such
See,
a rule is unconstitutional.
statute or
against the
Hanousek,
has cautioned
Court
Supreme
v.
F.3d
e.g.,
States
176
United
importation of
wholesale
commоn law and
on propensity evidence
requisite
has the
evidentiary rules into the Due Process
pedigree
qualify
historical
to
for constitu-
of
In Dowling
Clause
Constitution.
v.
See,
tional status.
e.g., McKinney Rees,
States,
example,
United
Court held
1378,
(9th Cir.1993)
F.2d
1384-85
practice
a rule or
that
must be matter of
(holding in the context
prose-
of murder
may
“fundamental fairness”
before
be
cution that “[t]he character rule is based
said to
magnitude.
constitutional
on ... a ‘fundamental conception
jus-
342, 352,
668,
U.S.
S.Ct.
107 tice’ and the ‘community’s sense of fair
(1990).
L.Ed.2d
The Court stated:
play
”);
decency’
and
Old
v. United
Chief
[B]eyond
specific
guarantees enu- States,
172, 182,
644,
U.S.
117 S.Ct.
Bill Rights,
merated
the Due
(1997)
1026 Reed, by v. See, probative. See Doe Glanzer J. e.g., Thomas cases. crime (9th Cir.2000) 1258, (reject- Admission 1268 232 F.3d Reading Revisited: Gaol of 415, in Sex Evidence which allows Uncharged ing Misconduct claim Rule 127, Cases, L. AM. J. CRIM. 21 in prior sexual misconduct introduction of Offender (1993). Thus, history of eviden- “the 188 child or molestation civil sexual assault defen regarding a criminal tiary rules of cases, balancing protections eliminates ambiguous at propensities sexuаl dant’s 403). Rule to sexual best, regard particularly with protections of the Rule With States Cas of children.” United abuse LeMay’s place, in balancing test still 403 Cir.1998). (10th 874, tillo, F.3d challenge to Rule loses due-process he The evidence that much of its force. 3. Rule 403 sexually his cousins had molested in this case thus The historical evidence of indisputably relevant to the issue holding In conclusion. to no clear leads thing his he had the same whether done constitutional, we there- 414 is that Rule Michelson, See, e.g., nephews in 1997. fact rely solely on the do not fore that de (noting U.S. at 69 S.Ct. historically propensity have allowed courts “might ill prior crimes or name fendant’s offense sex to reach evidence by pro persuasive that he is logically be LeMay has the burden cases. Because probable perpetrator pensity a propensity the ban on evi- proving crime”). of relevant evi fairness, The introductiоn a matter of fundamental dence is itself, dence, amount to a consti cannot does divergence historical evidence Egelhoff, tutional violation. position. cut See 2013. Yet while we U.S. S.Ct. Likewise, preju the admission importance of historical recognize the more, without cannot be dicial an eviden- determining whether practice All evidence introduced unconstitutional. in the Due Process tiary rule is embodied might defendant said against a criminal case, Clause, necessary find it in this we if prove it tends to prejudicial to be inquiry independent an into conduct Moreover, prosecution’s case. evidence allowing inferences whether vi- has committed similar that a defendant fairness. olates fundamental ideas of routinely admitted past crimes in the nothing conclude that there is funda- 404(b) to prosecutions criminal under Rule pro- mentally unfair the allowance about intent, motivе, identity, preparation, prove long 414. As pensity under Rule accident, and for a absence mistake 403 remain protections as the FED. R. variety purposes. of other devastating place potentially to ensure that 404(b). EVID. value will not little to a fair trial jury, reach the introduction of such evi safeguarded. adequately remains to a constitutional viola dence can amount far only if its effect out prejudicial tion court has never Athough McKinney, weighs probative value. the issue of whether squarely addressed corpus and granted a writ of habeas we are con companion Rule 414 and its rules *9 where the a murder conviction overturned stitutional, recently held that the we have had been infused petitioner’s trial with to balancing test of Rule 403 continues no inflammatory evidence of almost highly rules, and that district apply to those McKinney, 993 F.2d relevance. See to exclude evi judges rеtain the discretion course, emphasizes LeMay, 1384-85. prejudicial far more than dence that is
1027
McKinney
held that the
on pro-
evidence,
ban
by itself,
relevant
cannot
pensity
is of
magni-
constitutional
amount to a constitutional violation. Nor
misses, however,
What he
tude.
is the fact
does the
highly prejudi-
admission
even
that we held that such
evidence will
cial evidence necessarily trespass oh a de-
sometimes violate the
right
constitutional
fendant’s constitutional rights. Thus, the
trial,
relevance,
to a fair
if it is of no
ifor
claim that Rule 414 is unconstitutional can
its potential
prejudice
for
far outweighs be reduced
very
to a
question:
narrow
what little
might
relevance it
have. Poten-
“whether
of ...
admission
evidence that is
tially devastating evidence of little or no both
under
relevant
Rule 402 and not-over-
relevance would have to be excluded under
ly prejudicial under
may still be said to
Indeed,
Rule 403.
exactly
this is
what
violate the defendant’s due process right to
Rule 403
designed
to do. We there-
a fundamentally
Castillo,
fair trial.”
fore conclude that
long
protec-
as
as the
F.3d at 882. As
noted,
the Castillo court
of Rule 403
in place
tions
remain
so that
“to
question
ask that
is to answer it.”
judges
district
retain
authority
to ex-
Rule
is constitutional on its face.
potentially
clude
devastating
Rule
is constitutional.
C. Rule 403
Several courts
reached
have
the same
argues
also
if
even
Castillo,
In
conclusion.
for example, the Rule 414
facially constitutional,
is
it is
Tenth
“[application
Circuit noted that
applied
him,
unconstitutional as
and that
Rule 403 ...
always
should
result in the
judge
district
abused his discretion in
exclusion of evidence”
prejudicial
that is so
admitting the evidence
If
under Rule 403.
deprive
as to
the defendant
of his
properly
molestation were
trial,
a fair
“application
and that
of Rule
403,
can,
admitted under Rule
there
have
403 to Rule 414 evidence eliminates the
been no as-applied constitutional violation.
process
posed
due
concerns
Rule 414.”
Castillo,
rape and sexual assault cases. See
provides
United
Rule 403
that relevant
Enjady,
1427,
v.
States
134 F.3d
evidence may
excluded,
1430-35
among other
(10th Cir.1998).
agreed.
Other courts have
reasons,
if “its
value is substan
See, e.g.,
Mound,
United
v.
States
149 F.3d
tially outweighed by
danger
of unfair
(8th
799,
Cir.1998)
800-802
(concluding prejudice.”
FED. R.
EVID.
passes
that Rule 413
constitutional muster Glanzer,
stated
we
“[b]ecause
protections
if Rule 403
in place);
remain
strength
inherent
of the evidence that is
United
Wright,
States v.
We these courts in 135 F.3d holding that does not violate the Due Process also articulated several that district factors Clause of the constitution. The judges admission must determining evaluate in *10 judi- and in a careful the evidence admit of a defendant’s to admit
whether cious manner. misconduct. These sexual acts of prior (1) prior similarity of the “the are: factors admitting Le- also conclude We (2) the “close- charged,” acts to the acts proper was prior acts of molestation May’s to the prior acts acts of the in time ness in the factors we discussed light of (3) prior frequency of the “the charged,” partic- relevant to this and others Glanzer (4) or lack of interven- acts,” “presence the begin by noting, as the ular case. We (5) necessity circumstances,” “the and ing did, of the evidence judge district the beyond testimonies the evidence of child LeMay’s prior acts of molestation also stat- trial.” Id. already offered at We The 1989 molesta- highly was relevant. exclusive, is not of that this list factors ed charged to the very similar tions were judges should consider that district and involved forced oral crimes. Each case cases. to individual factors relevant other the victims were copulation. In each case Id. in- LeMay, and each of young relatives at the time Glanzer babysit- had not decided LeMay We occurred stance while judge district trial so the LeMay’s of and ting them. the fac- each of explicitly consider did not Moreover, judge suggest- district the making his 403 there tors we articulated ed, prior evidеnce was relevant the acts However, judge district did ruling. the after credibility of the victims the bolster searching inquiry just the sort of conduct fabricat- LeMay suggested they could be He necessary Glanzer. held deemed
we The evidence ing the accusations. hearing, at which he pre-trial an extensive LeMay’s claim there was countered aspects all prosecutor the about grilled corroborating testimony no evidence why her as to questioned D.R. A.R. acts evidence and prior she needed recognize that this characterization introduce it. The she intended to how pro- essentially a of the evidence is veiled 403 decision the Rule judge also reserved See, e.g., Wright & pensity inference. had introduced prosecution until after the Graham, 22 PRACTICE FEDERAL get a in order to feel all its other (noting § AND PROCEDURE developed it at trial for the evidence as prior act evidence to “corrobоrate” use LeMay’s prior ruling on whether before evi- testimony of victims molestation could come in. acts of child upon an inference to “depends dence if it hearing the statements and opening After character”). However, it the defendant’s case, judge concluded prosecutor’s exactly the sort of use of is also relevant that the molestations were Congress had mind evidence that A.R., credibility D.R. and to bolster Cong. enacting Rule 414. See that there suggestion rebut (state- 1994) (August H8991-92 Rec. testimony. their no evidence corroborate Molinari) (noting that child Rep. ment of Finally, court reminded the on “require molestation reliance cases that, it final while instructions readily can credibility child victims whose prior acts evidence could consider the attacked the absence substantial relevant, any matter which it deemed corroboration”). LeMay The case could convict for the testimony D.R. and A.R. on short, rested although crimes. district very young at Both children were judge specific did not factors discuss incidents, years had and two record time relevant in we deemed LeMay was tried. passed before reveals that his discretion to he exercised *11 credibility suggested attacked their and factor discussed Glanzer also cuts enough there was not evidence to of the government. favor Although it was prove allegations. their That this case trial, not introduced at government prior made use of the also had evidence of a third incident in precisely Congress the manner contem- LeMay which had sexually abused his strongly plated indicates that its admis- young True, relatives. this incident oc- was not an sion abuse discretion. curred even before the 1989 abuse of his LeMay cousins himself was extreme- Additionally, the evidence of Le- ly and, young, noted, as the prosecutor May’s prior abuse of his cousins was also “triple hearsay.” However, that there highly rehable. LeMay had been convict was evidence of a third similar incident ed of at least one of rape charges suggests LeMay’s abuse of his cousins arising from the in Oregon. incidents Be in 1989 was not an isolated occurrence. LeMay cause had abusing admitted to cousins, LeMay’s Francine testimony fell Glanzer also instructs that courts within a exception well-established to the must consider prior whether the acts evi hearsay rule. To allowing the extent that dence was necessary prove the case. permitted the evidence infer This factor also supports government’s ence, it was an proven inference based on position and indicates that LeMay’s admissions, facts and own judge did not abuse his discretion in ad rumor, innuendo, prior or uncharged acts mitting the evidence. prosecution’s The capаble of multiple characterizations. case rested on the testimony of A.R. and Thus, although we do not suggest scientific, D.R. forensic, medical, No other may district courts prior introduce psychological or witness was available. acts of molestation for which a defendant LeMay had credibility attacked the has been tried and guilty, found we hold boys capitalized eyewit on the lack of that the extent to an act has been and expert ness testimony. pros That the proved is factor that may district courts get ecutor claimed that she could a convic consider in conducting inqui the Rule 403 tion without introducing LeMay’s prior ry. acts molestation does not suggest that We must also consider the remoteness the evidence was not “necessary.” Prior LeMay’s in time of prior acts of molesta- acts evidence need not absolutely be neces tion, the frequency prior acts, similar sary prosecution’s to the case order to any and whether intervening events bear introduced; simply it must helpful be on the prior relevance of the similar acts. practically necessary. See 232 F.3d The “inter- Finally, LeMay’s testimony Francine vening events” factor seems to have little necessary LeMay’s to establish that present case, relevance in the and the oth- similar, very 1989 molestations were er two cut in government. favor of the relevant, thus to the crimes. We years About eleven passed had between reject the idea that the district court LeMay’s abuse of his nieces and his trial should have prosecution limited the for the abuse of D.R. A.R.. We have merely held, proving had been con- 404(b), the context of Rule that the rape victed of lapse years eleven before. years twelve The does not render the decision to admit relevance of the relevant evidence of simi- act evidence was lar acts an abuse of the details. simple discretion. See fact Establishing Rude, United States v. 88 F.3d of conviction would leave out the informa- (9th Cir.1996). “frequency of events” tion that had been convicted of *12 relatives, Equal D. Protection young his abusing
sexually they were while copulation, oral forced 414 that Rule vio argues LeMay also testimony LeMay’s Francine protection. care. equal his right to lates that support in the details to fill to necessary theories various proffers arguments. relevant. reject conviction these rape prior claim. We made factor favors “necessity” Therefore, First, 414 does not dis Rule respects. in all government group of individuals any criminate suspect quasi-suspect of a on the basis fa admittedly do factors Several suspect a are not offenders Sex class. himself was LeMay. LeMay vor however, argues that Rule LeMay, class. of the time at thе years old twelve impact on Native greater a far 414 has course, foremost, is of And molestations. more like they are far because Americans of charged nature highly and the emotional to other races ly than members Although testimony. LeMay’s Francine molestation. federally for child prosecuted court, in a are not we, appellate dispropor as a LeMay may an be correct that effect great an mo how child evaluate of federal position tionately large to number de on the Indian testimony had LeMay’s prosecutions involve lestation Francine true, if disproportion, But this powerful. it was fendants. that not doubt jury, we do the federal simply because arise testimony would began her Francine jurisdiction over only has government that suggestion tears, certainly, her and they molestation when as such child crimes daughter infant raped her LeMay had Reservations, military bas on Indian arise shocking. particularly been have would There is no es, federal enclaves. or other prior a However, defendant’s evidence part of Con any intent on the evidence always will be emotion acts of molestation Amer against Native gress to discriminate inflammatory, is the and ally charged is with icans, LeMay’s claim therefore he committed that evidence Davis, Washington v. merit. See out Thus, evidence that crimes. 229, 239, 48 L.Ed.2d 96 S.Ct. U.S. and of dispositive in not inflammatory is (1976). care Rather, judges must district itself. Rule inflammatory argues that potential LeMay also fully evaluate principles protection because equal testimony, and bal violates proffered of the nature “fundamen of a molesters deprives it child al has which that ance with criminal defen enjoyed by other right” tal heard, the relevance ready fails. As discussed This claim dants. it, all the introducing necessity of right abovе, no fundamental LeMay has above. factors discussed other relevant from relevant a trial free have here record shows unduly prejudicial. not evidence Therefore, admitting that. just judge did may in trial right to fair Although the of molestation LeMay’s prior acts introduction preclude the instances some an of discretion. abuse complete inflammatory highly all, shows value, All record to its proportion ly out of be- 1384-86, a careful balance struck judge district F.2d at McKinney, intent rights prejudi clear is so LeMay’s that evidence tween ensures right similar jeopardize defendant’s Congress cial as Thus, the be excluded. pros- a fair trial will in child molestation acts be admitted impinges on unfairly that Rule claim ecutions. fundamental to a fair on cruel punishment. sex offenders’ and unusual This trial also fails. argument fails. As the Tenth Circuit stat- Castillo, ed in impose “[Rule does not 414] not burden a Because does punishment all; criminal merely it is an right, fundamental and because sex offend- evidentiary rule.... For the defendant to class, suspect ers are not a Rule 414 is be correct 414 punishes [that Rule one’s if it constitutional bears a reasonable rela- *13 juries status as a sex would offender] have tionship legitimate governmental to a in- ignore courts’ instructions to them that Prosecuting effectively terest. crime is they only consider the crime certainly legitimate governmental in inter- deciding Castillo, by est. Rule furthers that interest whether to convict.” allowing prosecutors prosecution’s introduce relevant F.3d at 884. The other wit- help evidence to convict sex offenders. provided enough nesses evidence that we LeMay’s equal protection arguments are are convinced that convict- therefore without merit. ed for his as a sex status offender. Remaining Arguments E. CONCLUSION argues that Rule sum, hold that we Rule presumption undermines the inno constitutional pro and does not violate due permits evidentiary cence and irrational cess, equal protection, any other consti inferences. Rule 414 does neither of these guarantee. tutional adequately Rule 403 contentions, things. support To these Le- safeguards to a fair trial. We May Supreme relies on Court cases that however, emphasize, that evidence of a evidentiary pre deal with unconstitutional prior defendant’s always sex crimes will See, sumptions. e.g., Leary v. United present possibility preju of extreme States, 395 U.S. 89 S.Ct. 23 dice, district courts must accord (1969). L.Ed.2d 57 Rule does not ingly conduct the Rule 403 balancing inqui presumption create a that a defendant is careful, ry in a conscientious manner that guilty because he has committed similar for meaningful appellate allows review past; merely acts in the it allows the their decisions. District courts should also along to consider similar acts with all examine the relevant factors we discussed Moreover, other relevant evidence. al Glanzer, here, those we articulated though the inference that a person because any might others that have relevance to a once, something has done he might be particular case. Because the record be likely again more to have done it has until fore us shows that judge’s the district deci recently impermissible, it certainly been sion to admit the evidence under Rule 403 not irrational. in a conducted careful and conscien LeMay also contends that Rule 414 vio- manner, tious can we find no abuse of process reciprocity lates the “due require- discretion. therefore AFFIRM Le- would, it, puts ment” because it as he May’s convictions. him prevent introducing “from the exact AFFIRMED. type regarding of evidence alleged vic- permits tim that PAEZ, Governmеnt Judge, concurring part Circuit against to introduce the defendant.” Giv- dissenting in part: age LeMay’s victims, en the chosen § I concur in all but Discussion C of the claim is nonsensical. I majority’s respectfully decision. dissent
Finally, LeMay majority’s holding from the that the dis- contends that the rule Eighth violates the Amendment trict court did not ban abuse its discretion basis, and make a case-by-case arise on a Fed.R.Evid. under
admitting the evidence concerning court’s its decision wheth- clear record reverse I would remand for reconsid- Id. at ruling and or not to admit such evidence.” er in Doe of our decision light eration 1268-69. F.3d 1258
Rudy-Glanzer ac Generally, criminal Glanzer). Cir.2000) (hereinafter (9th prove the character of a tivity offered “to court need not re Generally, a “district action conformi person order show balancing the the Rule 403 test cite not admissible. Fed. ty therewith” is po value 404(b). evidence is ad R.Evid. Such long so as “the prejudicе” unfair tential for “motive, helps prove opportu if missible whole, record, that the court indicates intent, preparation, plan, knowledge, nity, the evidence.” United properly balanced of mistake or acci identity, or absence (9th 1215, 1217 Daly, 974 F.2d States v. *14 413, 414, and 415 Id. Rules dent....” Morris, Cir.1992) v. (citing United States a this traditional rule and create reverse Cir.1987)). (9th 1348, How 827 F.2d 1350 high “presumption favor admission” ever, recognized “[ble- Glanzer we v. ly prejudicial evidence. United States of the evi strength inherent cause of the (10th 1427, 134 1431 Cir. Enjady, F.3d [414], by is covered Fed.R.Evid. dence that 1998). explicitly de These rules were type through putting this of the introduction of evi signed to allow microscope, a court the Fed.R.Evid. prior of sexual crimes order dence attention to both the pay ‘careful should prove propensity. Cong. See 140 Rec. strong and the significant probative value 29, H5437-03, (daily ed. June *H5438 of that evidence.” prejudicial qualities’ (statement (“In 1994) Kyi) Rеp. of sex- (quoting at 1268 United States 232 F.3d crimes, particularly useful related it can be (10th Guardia, 1326, 1330 Cir. 135 F.3d a of the accused to demonstrate 1998)). offenses.”). prior to commit similar Glanzer, identified five factors In we 414, 413, extraordi- Rules and 415 were consider in their courts should that district time of their narily controversial at the (1) similarity analysis: “the The Judicial Conference Adviso- passage. (2) charged;” the “closeness prior acts ry on Evidence Rules and the Committee prior acts to the acts time of on Rules Judicial Committee Conference (3) frequency “the charged;” Practice and Procedure both voted over- (4) acts,” or lack of interven- “presence whelmingly oppose the rules because (5) circumstances;” necessity “the ing they permit the introduction of un- “would beyond the testimonies of the evidence prejudicial evi- highly reliable but trial.” 232 F.3d at already offered ” hist, .... Fed.R.Evid. 413 notes. dence on to that “thе dis- 1268.1 went hold report by the Judicial submitted Con- fully the factors trict court evaluate [must] above, expressed “significant might Congress ference to enumerated and others is; Glanzer, seriously disputed the material fact explained we list of how In [4)] government additional fac can avail itself factors is not exhaustive. The whether the evidence[;] [5)] any Circuit in United prejudicial tors identified the Tenth . . . less 1427, (10th Enjady, F.3d likely States v. how it is such evidence will contrib 1998) verdict; helpful conducting Rule Cir. are also improperly-based an ute to analysis evidence: [6)] of Rule 414 will the extent to which such evidence jury from the central issues of 1) distract the clearly how act has been trial; [7)] consuming 2) time how proved; probative the evidence is of how 3) prove prior conduct. prove; will be to the material fact it admitted to “danger convicting concern” about the district court could do more than the dis- past, oppоsed defendant for as criminal trict court did in this case.” Id.
charged, being per- or for behavior bad case, In this the district court made no son.” Id. record of analysis its Rule 403 at all. Un-
Nevertheless, there are to these benefits like there was much more the Congress repeated- rules. As members of district court could—and should—have ly recognized, rape most or molesta- “[i]n fact, done. the district court did not cases, tion it is the of the defendant word identify even the probative value of the If the word of the victim. evidence, only describing it as “relevant.” defendant has committed similar acts There is a marked difference between de- past, claims of the victim are more scribing evidence as relevant and describ- likely to be considered truthful if there is ing having probative it as significant value substantiation of other assaults.” 140 enough to outweigh any prejudicial unfair H5437-03, Cong. (daily Rec. *H6489 ed. States, effect. Seе Old v. United Chief 1994) (statement Rep. Kyi). June 172, 184, U.S. 117 S.Ct. 136 L.Ed.2d case, This with two child victims and no (1997) (“[W]hat counts as the Rule 403 witnesses, precisely type other ‘probative value’ of an item of case for which Fed.R.Evid. was de- ‘relevance,’ distinct from Rule 401 may signed. *15 by comparing evidentiary be calculated al- ternatives.”). courts, explained in
As We Glanzer we are left to balance the presumption prior that there is a that public’s interest sex convicting those crimes, crimes evidence is charged relevant. 232 F.3d at with sexual abuse as ex- (“[I]t generally pressed rules, accepted that a evidentiary these the with defendant with a to commit of the accused to be convicted acts similar charged likely to those is more charged, previous for the crime and not his charged to have committed the act than acts. served his sentence acts, another and therefore such evidence is rel- previous may criminal and he not be ...”). probative evant. The value of evi- punished again, government the can unless by considering dence is determined the prove that he committed new crimes as strength of and that the need for relevant way well. The best for district courts to evidence. competing balance these interests is to analysis conduct the Rule 403 on the rec- case, In this the district court that found ord, carefully considering each of fac- LeMay’s prior evidence of conviction was
tors, necessary, and others as identified bolstering “relevant” to the child wit- this court in Glanzer. credibility rebutting nesses’ and to Glanzer, case, to suggestion proof contrast that there was no that a district court did actually conduct the Rule 403 crime occurred. the district But analysis on the record. explicit finding “The district court court later made an factual reiterated the “extremely factors used under the Fed. that the two victims were cred- test,” ible,” clear, balancing testimony R.Evid. 403 but also con- that their they sidered “the remoteness in time” of the im- testified with certitude and act, This, similarity pressive earlier the lack of between demeanor. with combined incidents, pattern prosecution’s the two the lack of a own assertion that behavior, reliability. testimony and the victim’s 232 children’s alone was sufficient conviction, suggests F.3d at 1269. observed that “it is for a difficult to imagine probative a scenario which a acts evidence had minimal value. officer, documentary and the forcement should have value minimal
That
LeMay’s
establishing the fact of
of unfair
the risk
weighed
been
conviction,
preju-
certainly less
were
LeMay.
to
prejudice
victims’ mother’s
than the earlier
dicial
not con-
court did
the district
Because
testimony,
graphic
emotional and
record
balancing on the
the 403
duct
greater emotional
likely
generate
to
a
factors, I would find
the Glanzer
consider
Fed.R.Evid.
jury.
in the
See
reaction
See Koon
its discretion.
abused
comm,
(“
prejudice’ ...
note
‘Unfair
adv.
States,
S.Ct.
518 U.S.
United
tendency
suggest
undue
to
deci-
means an
(“A
(1996)
district
2035,
ly, I dissent. PEKLAR,
In re: Ronda S. Debtor. Peklar, Appellant,
Ronda S.
Lloyd Ikerd, individual, Appellee. an
No. 00-55464. Appeals, States
United Court
Ninth Circuit.
Argued July and Submitted Aug.
Filed