Case Information
*1 Before BRISCOE, Chief Judge, MURPHY and MATHESON , Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore, submitted without oral argument.
Alan Houston Johnson appeals his convictions of one count of interference with a flight attendant by assault and intimidation, under 49 U.S.C. § 46504, and three counts of abusive sexual contact on an aircraft, under 49 U.S.C. § 46506 and 18 U.S.C. § 2244(b). *2 Johnson contends the district court erred in applying Federal Rules of Evidence 413 and 404(b) to admit evidence of three prior sexual assaults. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I.
On February 16, 2010, Johnson boarded a flight from Chicago to Denver. On that flight, he touched a flight attendant on her buttocks and upper leg, ROA, Vol. 3 at 291, and grabbed a second flight attendant’s buttocks on two separate occasions. Id. at 359, 361. He also threw a full cup of water at the second flight attendant. Id. at 366. Finally, Johnson thrust his genitals against a female passenger’s buttocks as she exited the airplane bathroom; she had to “wriggle away” to get by him. Id. at 313. Based on these actions, a grand jury indicted Johnson on four counts: one count of interference with a flight attendant by assault and intimidation, in violation of 49 U.S.C. § 46504, and three counts of abusive sexual contact on an aircraft, in violation of 49 U.S.C. § 46506 and 18 U.S.C. § 2244(b). The three counts of abusive sexual contact required that the contact be “with an intent to . . . arouse or gratify the sexual desire of any person.” A jury convicted Johnson of all four counts.
In his defense at trial, Johnson argued he had a mental illness that prevented him from forming the requisite intent for the three abusive sexual contact counts and that any contact was incidental. Aplt. Br. at 3; ROA, Vol. 3 at 278–79, 283. In response, the United States sought to introduce evidence of three prior acts, intending to show that the physical contacts at issue were not inadvertent but rather intentional acts designed to *3 arouse or gratify Johnson’s sexual desires. ROA, Vol. 3 at 86–88. Specifically, the government sought to admit evidence that:
1. On February 3, 2010, Johnson entered a retail music store in Davidson, North Carolina, waited until he could be alone with a female clerk, and then bumped his crotch against her buttocks. Id., Vol. 1 at 51–52.
2. On February 3, 2010, Johnson entered another retail store, in Huntsville, North Carolina, grabbed a female clerk’s buttocks, and then pressed his crotch against the female clerk’s buttocks while making a sexual comment and touching her breasts with his hands. Id. at 52.
3. On February 2, 2010, Johnson accosted a woman at Piedmont Community College, in Chаrlotte, North Carolina, and forcibly kissed her on the lips. Id. at 53. The government sought to admit the music store incident and the retail store incident under both Rule 413 and 404(b), and the forcible kissing incident under 404(b). Id., Vol. 3 at 67. Johnson objected to the introduction of any of the prior acts evidence, arguing that the evidence was not admissible under Rules 413 and 404(b), and that under Rule 403 the evidence would be unfairly prejudicial. The district court determined that evidence of all three prior acts was admissible and gave a limiting instruction pursuant to Rule 404(b) for all three of the incidents. Id. at 474. Johnson appeals the district court’s decision to admit evidence conсerning the prior acts, continuing to argue the evidence was inadmissible under Rules 413 and 404(b), and unduly prejudicial under Rule 403.
II.
We review challenges to the district court’s evidentiary rulings under an abuse of
discretion standard. United Stated v. Mares,
III.
The district court admitted evidence of the music storе incident and the retail store
incident under both Rule 413 and 404(b). Rule 413 reads, “[i]n a criminal case in which a
defendant is accused of a sexual assault, the court may admit evidence that the defendant
committed any other sexual assault. The evidence may be considered on any matter to
which it is relevant.” Under Rule 413, we “liberally admit evidence of prior uncharged
sex offenses.” United States v. Meacham,
After satisfying the threshold requirements set forth in Benally, Rule 413 evidence
must also satisfy the Rule 403 balancing test,
1) how clearly the prior act has been proved; 2) how probative the evidence is of the material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4) whether thе government can avail itself of any less prejudicial evidence.
When analyzing the probative dangers, a court considers: 1) how likely it is such evidence will contribute to an improperly-based jury verdict; 2) the extent to which such evidence will distract the jury from the central issues of the trial; and 3) how time consuming it will be to prove the prior conduct.
Benally,
evidence under Rule 403, the district court must “fully evaluate the proffered . . .
evidence and make a clear record of the reasoning behind its findings.” United States v.
Guardia,
Here, Johnson argues that the district cоurt failed to evaluate whether the prior acts
evidence would contribute to an improperly-based jury verdict or distract the jury from
the central issues of the trial, and whether there was a need for evidence beyond the
defendant’s and alleged victim’s testimony. Aplt. Br. at 10, 13. Johnson primarily relies
on what he сharacterizes as the more serious nature of the prior acts to argue that they
would contribute to an improperly-based jury verdict. However, Johnson offers no
support for this argument, and we have applied Rule 413 to uphold the admission of more
serious prior acts than the act charged. See, e.g., Benally,
Johnson also argues that the evidence lacked probative value because the female
passenger’s husbаnd testified at trial that he saw Johnson touch one of the flight
attendants twice. This argument seems to suggest the husband’s testimony would
indicate the touching was intentional, thereby reducing the need to admit evidence of
prior acts to show intent. However, as Johnson argued at trial, the jury might be less
inclined to believe the pаssenger’s husband, since the alleged abusive sexual contact
involved his wife, giving him a personal interest in the outcome of the case. ROA, Vol. 3
at 838–39. Moreover, because Johnson argued that he lacked the requisite intent for the
contact on the plane, the district court correctly determined that аdmitting this evidence
would shed light on Johnson’s motive and should be admitted. Id., Vol. 1 at 96.
As his final argument in opposition to the admission of this evidence under Rule
413, Johnson argues that the district court failed to consider whether additional evidence
was needed beyond the defendant’s and alleged victim’s testimony, as suggested in
Benally,
In sum, the district court fulfilled its obligations under Rule 413 and Rule 403 to evaluate the evidence and made a clear record of its findings in support of its ruling to admit the prior act evidеnce. The district court did not abuse its discretion in admitting the challenged evidence.
IV.
Although the music store incident and the retail store incident were properly
admitted under Rule 413, the district court also admitted them under Rule 404(b).
Further, the district court admitted the forcible-kissing incident under Rule 404(b)
because it concluded the evidence did not fall within Rule 413. ROA, Vol. 3 at 67.
“Evidence is admissible under Rule 404(b) if the following factors are satisfied: (1) the
evidence must be offered for a proper purpose; (2) it must be relevant; (3) its probative
value must not be substantially outweighed by its potential for unfair prejudice under
Rule 403; and (4) the court must give a proper limiting instructiоn, if it is requested by the
defendant.” United States v. Schene,
In the present case, Johnson argues on appeal that the three prior incidents wеre not similar to the charged offenses because they lacked similar elements and geographical proximity; that they were only admitted to show propensity to commit a crime and were not admitted for a proper purpose; and that the probative value of the forcible kiss incident was substantially outweighed by its danger of unfair prejudice. Aplt. Br. at 16–17.
In its 404(b) analysis, the district court began by noting that the three prior incidents all differed from the charged acts in a number of ways, but then noted that they were all similar in that each prior incident and the incidents underlying the present charge involved Johnson’s intentional contact of a sexual nature with a virtual stranger. ROA, Vol. 3 at 97. The court also noted that the events were temporally close to the charged acts, in that all of these contacts occurred in February 2010. Id. at 98. While Johnson argues that the geographic distance separating the events makes them dissimilar, that factor is simply inapposite in a case like this, where the geographic diversity of the acts has no bearing on their similarity. The district court did not abuse its discretion in determining that the prior acts bore significant similarity to the charged acts.
Johnson next argues that “neither the district court nor the government explаined how the evidence of the prior sexual contacts or the ‘forcible kiss’ proved Mr. Johnson’s *10 intent or motive on the plane without the inference that Mr. Johnson has the propensity to commit the crimes charged.” Aplt. Br. at 17. In reviewing the evidence, the district court noted that Johnson claimed the cоntacts on the plane were either “incidental” or “inadvertent.” ROA, Vol. 1 at 98. The district court went on to hold that the similar prior acts all suggested intentional contact, based on the planning necessary to isolate the store clerk in the music store incident, the sexual comment in the retail store incident, аnd the difficulty in “inadvertently kiss[ing] someone.” Id. at 94, 96, 99–100. Thus, the district court concluded, the prior incidents would speak to Johnson’s motive in committing the charged acts. In drawing this conclusion, the district court illustrated how the intentional prior acts were relevant to whether the similar charged acts were also intentional aсts. That Johnson engaged in the prior acts, which bore significant similarities to the charged act, is relevant to the question of whether he accidently touched the women on the plane in the same way; while occasional accidental touches are inevitable, a pattern of the same kind of sexual touching suggests that Johnson acted intentionally. The prior act evidence is even more probative because the circumstances surrounding the prior acts strongly suggest that they were not accidental. Thus, the relevance of the prior act evidence lies not in Johnson’s propensities but in the similarities between his prior acts and the charged conduct, coupled with the apparently intentional nature of the prior acts.
Finally, Johnson states that the probative value of the evidence of the prior acts
was outweighed by the danger of unfair prejudice. But, as discussed above, the district
court reviewed the probative value of the prior acts and concluded that they satisfied both
*11
the Rule 404 and Rule 403 requirements. The evidence of the prior acts is highly
probative of a central issue in this prosecution, and while prejudicial, is not substantially
outweighed by a danger of unfair prejudice. The “exclusion of evidence under Rule 403 .
. . is an extraordinary remedy and should be used sparingly,” Mares ,
V.
The district court’s judgment is AFFIRMED.
Entered for the Court Mary Beck Briscoe Chief Judge
Notes
[*] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.