United States v. Michael HarvelUnited States v. Michael Harvel
Argued: March 20, 2024
Decided and Filed: August 29, 2024
COUNSEL
ARGUED: Kevin M. Schad, FEDERAL PUBLIC DEFENDER‘S OFFICE, Cincinnati, Ohio, for Appellant. Christopher C. Wang, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Kevin M. Schad, FEDERAL PUBLIC DEFENDER‘S OFFICE, Cincinnati, Ohio, for Appellant. Christopher C. Wang, Elizabeth P. Hecker, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
OPINION
MURPHY, Circuit Judge. Michael Harvel, a county official, sexually assaulted many women that he supervised. A jury convicted him of infringing the constitutional rights of seven victims in violation of
Next, Harvel argues that the government violated the Due Process Clause and
I
For much of his life, Harvel served in various government roles for Cumberland County in eastern Tennessee. He started out in the county‘s road department helping to repave roads. In 2011, he received a promotion to become the Director of the Solid Waste Department. In the meantime, he entered the political arena, running to become one of eighteen county commissioners. He successfully won several reelection bids.
As the Director of the Solid Waste Department, Harvel ran Cumberland County‘s recycling center and supervised many workers at this center. Most of the workers performed difficult labor sorting through recyclables running down a conveyor belt. To help with this work, Harvel spearheaded a program in which courts would allow those convicted of minor crimes to pay off their fines by performing community service at the center. Most of the employees and community-service workers sorting through recyclables at the center were women. Over the years, Harvel sexually assaulted many of these women. The employee who oversaw the community-service workers recalled telling Harvel “[f]ifty or more” times that he “better stop” abusing women or he would “get caught.” J.H. Tr., R.149, PageID 1567. Yet many of the women felt like they could not go to the police for two reasons: because of Harvel‘s status as a high-ranking county official and because of their fear that the police would not believe them due to their criminal records. So Harvel smugly disregarded such concerns. Eventually, a worker did alert law enforcement. In February 2018, the local police launched an investigation into his abuse. The county immediately suspended him.
A couple years later, the FBI opened its own investigation. A federal grand jury indicted Harvel in July 2021. A superseding indictment alleged that he had committed many acts of sexual abuse between 2014 and 2017. It charged him with ten counts of depriving eight women of their constitutional right to bodily integrity in violation of
Count 1: Crime Against J.S. After committing a joyriding offense, J.S. started performing community service at the recycling center. Harvel later gave her a job there. At that point, he began “fondling,” “groping,” and “trying to kiss” her every day. J.S. Tr., R.147, PageID 1133. In July 2017, J.S. covered for another employee by spending a day at a satellite recycling center. Harvel showed up when she was working in a shack at this location. He locked the door and tried to rape her. In J.S.‘s words: “[H]e picked me up, and he shoved me on the table, and he tried shoving his self on me, had my legs spread like this. He‘s standing right in the middle with his hands on me, and he‘s trying to shove my hand in between his pants, and I‘m fighting with him.” Id., PageID 1160. Harvel stopped the attempted rape after about five minutes when a customer showed up. J.S. suffered bruising on her arms while trying to fight off his attack. She eventually quit the job when Harvel threatened to rape her if she failed a drug test.
Counts 2 and 3: Crimes Against J.C. In 2014, a state court ordered J.C. to perform community service at the recycling center for a misdemeanor theft. On her last day of community service, Harvel also offered her a job. He asked her to accompany him to his office to fill out paperwork. While there, he instead grabbed her breasts and forced her to perform oral sex on him for a brief time. He then told her to come back the next day to start the job. J.C. arrived late after hesitating about whether to return. When she did, Harvel took her to his office and again forced her to perform oral sex. She refused to continue after a short while. He fired her on the spot.
Counts 4 and 5: Crimes Against E.D. In the summer of 2015, E.D. performed forty hours of community service at the center for a theft she committed while struggling with a drug addiction. She needed to keep a job as a condition of her probation. Harvel thus hired her in a different role once she completed her community-service hours. One evening while they were alone together at the center, Harvel invited E.D. into his office. He then raped her and threatened that she could lose her job if she told anyone. E.D. felt like she could not quit at that time because she would have to go back to jail. A few weeks later, Harvel took E.D. to a remote landfill and raped her a second time in a shed. E.D. soon chose to quit and return to jail rather than continue to face Harvel.
Count 7: Crime Against M.M. In June 2016, Harvel hired M.M. as an employee. While she was working on the line, he would often “grab [her] butt and stuff like that.” M.M. Tr., R.148, PageID 1367–68. After she transitioned to running a forklift, he would routinely put his hands under her clothes, even touching her “private area” on occasion. Id., PageID 1376–78. Although M.M. repeatedly told Harvel to stop, he ignored her. Yet M.M. felt like she could not quit because she was a single mom of three kids and needed the flexibility that the job offered. She later cooperated in the investigation in February 2018 and quit a few months later.
Count 8: Crime Against K.J. Around November 2017, K.J. also took a job working on the line at the recycling center. After a couple weeks, Harvel started putting his hands down K.J.‘s pants. On one occasion, he put his hands “[t]o the very top of her private area.” K.J. Tr., R.147, PageID 994. He also fondled her breasts and grabbed her butt almost every day despite her repeated objections. She quit after a few months of this abuse.
Count 10: Crime Against C.S. While C.S. struggled with a drug addiction, a court ordered her to perform community service at the center. After a few earlier assaults, Harvel again accosted C.S. in December 2017. He began to rub C.S.‘s vagina through the outside of her pants when she was working on the line. C.S. Tr., R.147, PageID 1087. C.S. immediately “ran out of” the center and (like A.O.) never returned. Id. She went on a drug “binge” afterward because she “[d]idn‘t feel like anything mattered[.]” Id., PageID 1091. She too would have preferred going back to jail than to the center.
Counts 11: Crime Against J.T. A court ordered J.T. to perform community service at the center because of a misdemeanor shoplifting offense. Around December 2017, Harvel approached J.T. to offer her a job. According to J.T., he “put his hand on [her] butt” when he did so. J.T. Tr., R.149, PageID 1472.
In addition to the testimony of these witnesses, the government called five other women to the stand. They described uncharged (but similar) sexual misconduct that Harvel had committed against them. Harvel later testified in his defense, denying these many abuse allegations. For the most part, the jury disbelieved him. It returned a guilty verdict on all counts except for Count 11. The district court sentenced him to a total term of 204 months’ imprisonment. Harvel appealed. He raises timeliness, indictment, and evidentiary challenges to his nine convictions. We will consider these three groups of challenges in turn.
II. Timeliness Challenges
Harvel first argues that the government charged him too late. He suggests that it did not timely file four specific counts under the governing statute of limitations. And he suggests that the government did not timely file all the counts under the Due Process Clause.
A. Statute-of-Limitations Claim
Harvel asserts that the government did not timely pursue the four violations of
All agree that Harvel committed the assaults charged in Counts 2 through 5 in 2014 and 2015—more than five years before the government indicted him in July
Section 242‘s unambiguous text appears to offer a ready answer: Yes. This civil-rights statute delineates a staggered sentencing scheme. It initially sets a maximum penalty of one-year imprisonment for defendants who violate a person‘s constitutional rights:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person ... to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution . . . shall be fined under this title or imprisoned not more than one year, or both[.]
[A]nd if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Id. The four relevant counts alleged that Harvel violated J.C.‘s and E.D.‘s constitutional rights and that his conduct included at least one aggravating circumstance—either kidnapping, aggravated sexual abuse, or both. Section 242‘s plain text thus seems to provide that Harvel “may be sentenced to death” for these offenses because they “include[d] kidnapping” or “aggravated sexual abuse.” Id. For the same reason, they appear to be “punishable by death” under
Yet Harvel says things are not this easy. Despite
Question 1: Does the phrase “punishable by death” in
We thus must consider what Congress meant by “punishable by death” in
Thankfully, the Court in Briggs answered this question in a related context. Briggs asked whether a rape offense was “punishable by death” under a similar statute-of-limitations provision in the Uniform Code of Military Justice (UCMJ). See id. at 71. The government argued that rape offenses were punishable by death (and so subject to no limitations period) because the UCMJ‘s penalty provisions unambiguously permitted a death sentence. See id. at 72. But the defendants responded that their rape charges were not punishable by death (and so untimely) because the Court in Coker had held that the Eighth Amendment barred capital punishment for rape—at least in the civilian context. Id. at 71–72 (citing Coker, 433 U.S. at 592).
For three reasons, the Court sided with the government. Id. at 73–78. To begin with, it described the statute-of-limitations provision‘s “natural referent” as the military code of which it was a part—not other sources of law like state law or constitutional law. Id. at 73–74. Next, the Court recognized that Congress seeks to promote clarity with statutes of limitation. Id. at 74–77. If Congress had tied the limitations period to Eighth Amendment caselaw, however, the governing period would remain unclear. Id. at 74–76. After all, the Court designed its “evolving standards of decency” approach to the Eighth Amendment so that the rules could change over time. Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)); see Briggs, 592 U.S. at 76. Lastly, a legislator‘s policy choice about the proper length of a limitations period depends on factors different from those that bear on whether a penalty violates the Eighth Amendment. See Briggs, 592 U.S. at 77–78. For example, when picking a limitations period for rape, legislators might consider that victims often wait to come forward due to the trauma that the crime caused. See id. at 77. That fact, by contrast, “plays no part” in an inquiry into whether the Eighth Amendment bars the death penalty. Id. at 77–78.
Because the Eighth Amendment and the UCMJ‘s statute-of-limitations provision “served” different “ends,” the Court found it unlikely that Congress would connect the limitations period to the Constitution. Id. Each of these reasons shows that “punishable by death” in
Second, Congress would have promoted greater clarity by tying the phrase “punishable by death” to
Third, just like the UCMJ‘s statute-of-limitations provision,
Confirming our conclusion, other circuit courts have unanimously held that a crime is “punishable by death” under
Harvel‘s responses lack merit. He first distinguishes Briggs on the ground that it
Question 2: Does the civil-rights statute permit the death penalty for defendants who commit kidnapping or aggravated sexual abuse? Even if the phrase “punishable by death” in
To begin with, Harvel does not attempt to reconcile his reading with
Harvel nevertheless asks us to rely on factors other than the text. He notes that Congress added
Yet his argument requires us to engage in “quite a lot of speculation” about Congress‘s motives. Henson v. Santander Consumer USA Inc., 582 U.S. 79, 89 (2017). And other possibilities readily come to mind as to why Congress might have extended the death-penalty provision to the nonhomicide aggravating factors in
One last point. Although Harvel did not raise the issue, other provisions in Title 18 separately establish preconditions for imposing the death penalty. See
B. Due Process Claim
Harvel alternatively argues that the Due Process Clause should have barred this prosecution because the government took too long to indict him. Local police opened an investigation into his misconduct in February 2018. But the federal government did not indict him until July 2021. In the meantime, two potential witnesses died. So Harvel asked the district court to dismiss the indictment. His motion asserted that the officer who interviewed him at the outset of the investigation had died without preserving exculpatory video evidence. And it asserted that a county employee who would have contradicted a victim‘s claims had also died. The district court denied Harvel‘s motion. We review its findings about the historical facts under the deferential clear-error standard but give fresh (de novo) review to its ultimate holding that the government did not violate due process. See United States v. Lively, 852 F.3d 549, 566–67 (6th Cir. 2017).
For this reason, the Supreme Court has held that the Due Process Clause in the criminal sphere protects against only those actions that violate “fundamental conceptions of justice” that have historically supported our “civil and political institutions” and fallen within “the community‘s sense of fair play and decency[.]” Lovasco, 431 U.S. at 790 (citations omitted); see Medina, 505 U.S. at 445–46. Applying this standard to timeliness challenges, the Court has added that the government does not violate any “fundamental” notions of fairness if it delays indicting a defendant merely to investigate the crime further. See Lovasco, 431 U.S. at 790–96. That is true no matter how unnecessary the additional investigation looks in retrospect. See id.
To establish that a delay violates due process, defendants instead must meet what we have called a “nearly insurmountable” burden. United States v. Rogers, 118 F.3d 466, 477 n.10 (6th Cir. 1997). We have distilled this burden into two parts. See Schaffer, 586 F.3d at 424; United States v. Duncan, 763 F.2d 220, 222 (6th Cir. 1985); United States v. Greene, 737 F.2d 572, 574 (6th Cir. 1984). A defendant must first prove that the delay caused concrete prejudice to the defense. See Schaffer, 586 F.3d at 424–25; Duncan, 763 F.2d at 222–23. The defendant must next prove that the government engaged in the delay with the bad-faith motive “to gain a tactical advantage” in the litigation. Schaffer, 586 F.3d at 424 (citation omitted); see United States v. Brown, 959 F.2d 63, 66 (6th Cir. 1992).
We need only consider the second element here. Cf. Greene, 737 F.2d at 575. Harvel has not established that the delay resulted from anything other than the government‘s continued investigation. See Lovasco, 431 U.S. at 790–96. To begin with, the government‘s briefing has explained that the delay arose from a combination of its ongoing investigation and the COVID-19 pandemic. See Appellee‘s Br. 48–49. Federal authorities did not open their investigation until April 2020. Mot., R.97, PageID 583. Over the next fifteen months, investigators interviewed “dozens” of witnesses and “reviewed thousands of pages” of potentially relevant documents. Id. Although the government did not introduce these allegations in the form of admissible evidence, both the Supreme Court and our court have accepted similar lawyer representations in this context. See Lovasco, 431 U.S. at 796; Rogers, 118 F.3d at 476–77. That rule makes sense because the defendant bears the burden of proof on this challenge. See Schaffer, 586 F.3d at 425–26.
Harvel also suggests that the government had no reason to reinterview witnesses between April 2020 and July 2021 because local authorities had conducted the same interviews back in 2018. But the Supreme Court has rejected the notion that too much investigation can establish a due-process violation. See Lovasco, 431 U.S. at 792–93. Besides, the federal authorities were investigating different crimes. Unlike the local police, they had to confirm that Harvel both acted “under color of” state law when he committed his abuse and that this abuse qualified as the violation of “rights” “protected by the Constitution[.]”
III. Indictment Challenges
Unable to show that the indictment was untimely, Harvel turns to challenging its contents. He suggests that it did not adequately allege violations of the civil-rights statute and that, at the least, the district court should have granted him a bill of particulars.
Sufficiency of the Indictment. Soon after the government indicted him, Harvel moved to dismiss the indictment on the ground that all the
The Fifth Amendment generally bars the government from initiating a criminal prosecution except “on a presentment or indictment of a Grand Jury[.]”
His claim lacks merit. To begin with, an indictment can satisfy the requirement to allege all elements of the offense merely by reciting the statutory words themselves if those words “fully, directly,
In addition, the indictment adequately alleged the “facts and circumstances” to alert Harvel of the specific offenses charged. United States v. Rankin, 929 F.3d 399, 405 (6th Cir. 2019) (quoting Hamling, 418 U.S. at 117). As a general matter, it identified Harvel as the “Director of the Cumberland County Solid Waste Department.” Indictment, R.46, PageID 329. It alleged that, as part of his duties, he “supervised” employees and community-service workers at the recycling center and its satellite locations. Id. And it alleged that all eight victims were among the employees and workers that he supervised. Id. As a specific matter, the indictment alleged each of the ten civil-rights violations in graphic detail. In Count 2, for example, the indictment alleged that, in September 2014, Harvel took his victim into a locked room at the recycling center, “fondled her breasts, grabbed her head, and forced his penis into her mouth.” Id., PageID 330–31. Likewise, in Count 5, the indictment alleged that, in December 2015, Harvel picked up his victim “under the false pretense that he needed help with an official county work project, drove her to an isolated landfill, and, against her will, penetrated her vagina with his penis.” Id., PageID 332. We end with one disclaimer. Some of our cases have suggested that an indictment—like a civil complaint—must allege enough facts to make out “an offense” (and plausibly plead each of the offense‘s elements). Landham, 251 F.3d at 1079 (quoting United States v. Superior Growers Supply, Inc., 982 F.2d 173, 177 (6th Cir. 1992)). Here, however, Harvel does not cite any cases about
Bill of Particulars. Apart from seeking to dismiss the indictment, Harvel also asked the district court to order the government to file a “bill of particulars.” The district court denied this request. We review its decision with deference, asking only whether it abused its discretion. See United States v. Crayton, 357 F.3d 560, 568 (6th Cir. 2004).
The
Here, the district court reasonably found that the indictment‘s details eliminated the need for a bill of particulars. See Birmley, 529 F.2d at 108. As we have explained, the indictment specifically identified each of the ten incidents of sexual misconduct. Indeed, even after a lengthy trial, Harvel‘s briefing fails to identify a single fact from trial that surprised him. See id.
IV. Evidentiary Challenges
Harvel ends with two general evidence-based challenges. He argues that the district court wrongly admitted “other acts” evidence: the testimony of other women who described similar (uncharged) acts of sexual abuse. And he argues that the court wrongly failed to grant a mistrial when one victim testified about inadmissible matters and had an emotional outburst.
A. “Other Acts” Claim
Before trial, the government notified the district court that it planned to admit evidence that Harvel had sexually assaulted several other women at the recycling center to prove his “propensity to commit sexual assault.” Notice, R.96, PageID 553, 568. Experts on the rules of evidence have long noted that this type of “other crimes” evidence typically meets the relevancy test‘s low bar because the evidence makes it more likely that a defendant committed the specific crime at issue. See United States v. Potter, 927 F.3d 446, 452 (6th Cir. 2019); 1 John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law §§ 193–94, at 231–33 (1904). Given the risk of prejudice, though, courts have long barred the government from using a defendant‘s other crimes to show the defendant‘s “propensity” to engage in the charged crime. See Michelson v. United States, 335 U.S. 469, 475–76 (1948);
In 1994, however, Congress carved out an exception to this traditional ban on propensity evidence in
Despite
1. Due Process Theory
Harvel first argues that
As we have explained, the Supreme Court has read the Due Process Clause to have a “limited operation” in criminal cases to avoid rendering the other procedural protections in the Bill of Rights superfluous. Dowling v. United States, 493 U.S. 342, 352 (1990); see Medina, 505 U.S. at 443-44. The Fifth and Sixth Amendments give defendants the right “to be confronted with” unfavorable witnesses and not “to be a witness against” themselves.
As a result, a prosecutor‘s admission of evidence will raise a due-process problem only in “rare” circumstances. Kahler v. Kansas, 589 U.S. 271, 279 (2020). Defendants must prove that the admission of the evidence “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Medina, 505 U.S. at 446 (citation omitted). In other words, the admission must conflict with an evidentiary principle “entrenched in the central values of our legal system” as a historical matter. Kahler, 589 U.S. at 279; Montana v. Egelhoff, 518 U.S. 37, 47–48 (1996) (plurality opinion); Castillo, 140 F.3d at 881. This showing typically requires defendants to ground the identified evidentiary principle in “eminent common-law authorities” and “early English and American judicial decisions.” Kahler, 589 U.S. at 279.
The Supreme Court has consistently rejected challenges to the admission of evidence under this demanding due-process test. See Stewart v. Winn, 967 F.3d 534, 538–39 (6th Cir. 2020). The Court, for example, rejected several challenges to the
Harvel‘s claim fares no better. To be sure, his case gets off to a better start than these other cases. The prohibition on using a defendant‘s other crimes merely to show the defendant‘s “propensity to commit a charged crime” has a lengthy pedigree. Estelle, 502 U.S. at 75 n.5 (emphasis added); see Thomas J. Reed, Trial by Propensity: Admission of Other Criminal Acts Evidence in Federal Criminal Trials, 50 U. Cin. L. Rev. 713, 716–17, 721–22 (1981); Wigmore, supra, §§ 193-94, at 231–33; see also Michelson, 335 U.S. at 475. So, while the Supreme Court has never confronted this issue, Harvel can plausibly argue that
Reason One: The Court has read the Due Process Clause to incorporate the “settled usages and modes of proceeding existing in the common and statute law of England” that early Americans found suitable for “this country.” Murray‘s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 277 (1856). So the critical inquiry turns on how a reasonable person knowledgeable in the law would have understood the evidentiary rules as they existed in 1791 when the people enacted the Fifth Amendment. See id.; see also Culley v. Marshall, 601 U.S. 377, 390–91 (2024); Kahler, 589 U.S. at 279; cf. United States v. Rahimi, 144 S. Ct. 1889, 1924 (2024) (Barrett, J., concurring). Harvel has not met his burden to show a well-settled rule at that time banning the use of a defendant‘s other crimes for propensity purposes. See Egelhoff, 518 U.S. at 47-48 (plurality opinion). To the contrary, we find the history “complex—even messy.” Kahler, 589 U.S. at 287. It leaves us unsure whether this ban predates 1791 or became settled only in later decades.
On the one hand, there is no doubt that pre-1791 authorities began to develop a disdain for the use of a defendant‘s other (unindicted) crimes in prosecutions. For much of the 1600s, English courts regularly admitted this evidence to show a defendant‘s bad character. See John H. Langbein, The Origins of Adversary Criminal Trial 190–95 (2003); Wigmore, supra, § 194, at 233 n.1. But both common-law decisions and statutory enactments started to depart from this practice at the end of that century. As a common-law matter, judges began to reject efforts to introduce other crimes, rhetorically asking: “Are you going to arraign his whole life? Away, away, that ought not to be; that is nothing to the matter.” Harrison‘s Trial, 12 How. St. Tr. 833, 864 (1692). As a statutory matter, Parliament limited the use of unindicted acts in treason cases to remedy Star Chamber abuses. See Treason Act 1695, 7 & 8 Will. 3 c. 3, § 8; Reed, supra, 50 U. Cin. L. Rev. at 716–17. In an oft-quoted statement some 70 years later, a treatise suggested that this statute codified a preexisting common-law rule “of rejecting all manner of evidence in criminal prosecutions that is foreign to the point in issue[.]” Sir Michael Foster, Crown Law 246 (1762).
How did courts treat a prosecutor‘s use of other crimes to show a defendant‘s propensity to commit the charged crime under this framework? As far as we can tell, it was not until 1810—in an unreported English case called Rex v. Cole—that a court held that prosecutors could not use other crimes to show a defendant‘s “general disposition to commit the same kind of offense as that charged against him.” Samuel March Phillipps, A Treatise on the Law of Evidence 136 (1st Am. ed. 1816) (emphasis added). Many authorities thus treat Cole (or the Phillipps treatise that discusses it) as the “source” for the modern ban on propensity evidence. David P. Leonard, In Defense of the Character Evidence Prohibition, 73 Ind. L.J. 1161, 1170 (1998); see, e.g., Julius Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv. L. Rev. 988, 1031 (1938); R.A. Fisher, A Digest of Reported Cases from 1756 to 1870 576 (1871); Williams v. State, 110 So. 2d 654, 659 (Fla. 1959); 1 Francis Wharton, A Treatise on the Criminal Law of the United States § 640, at 314–15 & n.1 (5th ed. 1861); State v. Renton, 15 N.H. 169, 174 (1844). If accurate, it is hard to describe Cole‘s holding as one of the “settled usages” that had implicitly made their way into the Due Process Clause some 19 years before in 1791. Murray‘s Lessee, 59 U.S. at 277. Reason Two: If we turn to a review of American practice, Harvel again fails to establish any “uniform and continuing acceptance” of the rule against propensity evidence in the sex-crime cases covered by
The nearly 200-year debate over this exception‘s scope further undermines any claim that
All told, the general rule barring the use of “other crimes” evidence to prove a defendant‘s propensity to commit the charged crime does not appear to have become settled until sometime in the 1800s. And the specific lustful-disposition exception to this general rule took root not much later. This history is not the stuff of a practice “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Medina, 505 U.S. at 446 (citation omitted).
Reason Three: The Supreme Court has not read the Due Process Clause as imposing a straitjacket on legislators or rulemakers requiring them to mimic the precise version of a legal practice that “has been immemorially the actual law of the land[.]” Burnham v. Superior Ct. of Cal., 495 U.S. 604, 619 (1990) (plurality opinion) (quoting Hurtado v. California, 110 U.S. 516, 528–29 (1884)). Rather, it has allowed these policymakers to change course so long as the new methods adhered to the “traditional notions of fair play” that undergirded the old ones. Id. at 622 (emphasis added) (quoting Int‘l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
In this respect, the
As other courts have recognized, these continued protections undercut any due-process challenge to
2. Rule 403 Theory
At the least, Harvel next argues, the district court wrongly refused to exclude the evidence of his uncharged sexual assault as unduly prejudicial under
The district court‘s ruling fell well within its discretion under this nondemanding test. For starters, the evidence had substantial “probative value” under
Harvel responds with a citation to United States v. Asher, 910 F.3d 854 (6th Cir. 2018). There, the government indicted a deputy jailor for committing excessive force. It sought to establish the jailor‘s intent by introducing his alleged abuse of another detainee years earlier. See id. at 858–60. We held that the district court abused its discretion in admitting testimony about this other incident under
B. Mistrial Claim
Harvel lastly argues that the district court wrongly denied his motion for a mistrial after J.S. (the victim connected to Count 1) testified about inadmissible matters and ridiculed Harvel or his counsel. He is wrong for a final time.
1. We start with the background. Before trial, Harvel moved to bar J.S. from testifying about a prior sexual assault that she had suffered as a child. Harvel worried that this assault might come up at trial because J.S. recalled telling him about it when trying to get him to stop his abuse. The court resolved Harvel‘s motion with a compromise ruling. It would allow J.S. to testify about the past abuse generally. For example, J.S. could testify that she told Harvel: “Don‘t do this” because “I‘ve experienced something like this before[.]” Tr., R.146, PageID 919. But it refused to allow J.S. to get into any “specificity” about the past abuse, including that it occurred in her childhood. Id., PageID 919–22.
On the first day of J.S.‘s testimony, she stated that Harvel repeatedly and forcibly groped her. The prosecutor then asked: “At some point did you say something to him about what had happened to you before to try to get him to stop?” J.S. Tr., R.147, PageID 1136. J.S. replied: “I did. I‘m not gonna lie. You know, Mike, you would have been a good boss, but you—you abused your power. I hate—I tried
The next day, Harvel‘s counsel cross-examined J.S. Well into this cross-examination, Harvel‘s counsel asked: “You were never raped in this case, were you?” J.S. Tr., R.148, PageID 1214. J.S. replied: “No, I wasn‘t, but I was threatened. And I went through it as a child, and I also told him that I would not go through it as an adult.” Id. As defense counsel objected to this statement, J.S. said: “Don‘t even. Don‘t even.” Id. The court then ordered the jurors to leave the courtroom. While they departed, J.S. shouted “[y]ou‘re disgusting” at Harvel or his attorney. Id., PageID 1215. Harvel‘s counsel renewed his motion for a mistrial. The court denied the motion but gave another limiting instruction.
2. We review the district court‘s denial of Harvel‘s motion for a mistrial for an abuse of discretion. See United States v. You, 74 F.4th 378, 389 (6th Cir. 2023); United States v. Atisha, 804 F.2d 920, 926 (6th Cir. 1986). Even assuming that the
Regardless, we need not reconcile this caselaw here. Even when considering J.S.‘s challenged statements collectively, the district court reasonably held that they did not warrant a mistrial. That conclusion remains the same whether we look at this question from the perspective of deterring prosecutorial misconduct or from the perspective of curing prejudice to the defense.
Starting with the deterrence rationale, we see no misconduct to punish. The district court found that the prosecutor had not “solicited” the comment about J.S.‘s childhood or acted in “bad faith[.]” J.S. Tr., R.147, PageID 1143–44; see Ledbetter, 929 F.3d at 362. Plenty of evidence supported that finding. Before J.S.‘s testimony, the prosecutor had “instructed [J.S.] specifically not to” mention that the abuse occurred in her childhood. J.S. Tr., R.147, PageID 1137-38. During her testimony, the prosecutor asked J.S. not to “go into any detail” about the prior abuse. Id., PageID 1136; cf. United States v. Mellies, 329 F. App‘x 592, 603 (6th Cir. 2009). And after her testimony, the prosecutor repeatedly “apologize[d]” to the court for J.S.‘s failure to heed his instructions. J.S. Tr., R.147, PageID 1138. Lastly, the prosecutor did not solicit J.S.‘s later comment on the second day (“you‘re disgusting”) because it occurred during the defense counsel‘s cross-examination. Cf. United States v. Adams, 655 F. App‘x 312, 320 (6th Cir. 2016) (per curiam). Nor did the prosecutor engage in any “unreasonable” line of questioning. J.S. Tr., R.147, PageID 1143; see Ledbetter, 929 F.3d at 362. To the contrary, the prosecutor followed the clear line that the district court had set before trial. He sought to “generally” discuss what J.S. had told Harvel about her past abuse without getting into specifics. Tr., R.146, PageID 919.
Turning to the prejudice rationale, we see no “incurable” harm to Harvel‘s case from J.S.‘s statements. Ledbetter, 929 F.3d at 362. Both on direct and on cross-examination, J.S. made what are best described as “stray” (if inflammatory) remarks. J.S. Tr., R.147, PageID 1144; see J.S. Tr., R.148, PageID 1219; cf. Mellies, 329 F. App‘x at 603. And those remarks represented “a small part” of J.S.‘s testimony—not to mention the government‘s entire case. Ledbetter, 929 F.3d at 362 (citation omitted); see United States v. Woods, 14 F.4th 544, 559 (6th Cir. 2021). Over many days of trial, the government presented “extensive” testimony detailing Harvel‘s guilt from thirteen separate women—all of whom told similar stories about his sexual abuse at the recycling center. Massengill, 769 F. App‘x at 347; see Ledbetter, 929 F.3d at 362–63.
In addition, the district court gave “immediate, clear, and forceful” limiting instructions to the jury. Ledbetter, 929 F.3d at 362 (citation omitted). On the first day, it told the jury to “disregard” J.S.‘s “testimony” about “things that she claimed had happened before in her life,” to “not consider [this testimony] for any purpose,” and to “treat it as if you never heard it.” J.S. Tr., R.147, PageID 1145; cf. United States v. Hayes, 399 F. App‘x 57, 60 (6th Cir. 2010). On the second day, the court told the jury that it could consider only “testimony” from the witness stand and no other “statements” that the jury might have overheard. J.S., Tr., R.148, PageID 1223. It also explained again that the jury must disregard J.S.‘s testimony about what had “happened years ago” and that the jurors cannot consider it “when you are deliberating in this case.” Id., PageID
We affirm.