260 F.3d 1018 (9th Cir. 2001), 00-30193, United States v. Lemay

Docket Nº:00-30193
Citation:260 F.3d 1018
Case Date:August 09, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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260 F.3d 1018 (9th Cir. 2001)




No. 00-30193

United States Court of Appeals, Ninth Circuit

August 9, 2001

Argued and Submitted April 5, 2001

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Counsel John P. Rhodes, Federal Defenders of Montana, Missoula, Montana, for the defendant-appellant.

Marcia Good Sept (Briefed), United States Attorney's Office, Billings, Montana, for the plaintiff-appellee.

Lisa Simotas (Argued), United States Attorney's Office, Billings, Montana, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding D.C. No. CR-99-00116-DWM

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Before: Harlington Wood, Jr.,[*]Stephen S. Trott, and Richard A. Paez, Circuit Judges.

Opinion by Judge Trott; Partial Concurrence and Partial Dissent by Judge Paez

TROTT, Circuit Judge:

Fred LeMay appeals his convictions for two counts of child molestation in violation of 18 U.S.C. §§§§ 2241 and 3231. We must decide whether admission of his prior acts of child molestation under Rule 414 of the Federal Rules of Evidence violated his constitutional right to due process. We agree with numerous other courts that Rule 403 remains applicable to evidence introduced under Rule 414, and, if conscientiously applied, will protect defendants from propensity evidence so inflammatory as to jeopardize their right to a fair trial. We therefore conclude that Rule 414 is constitutional.

In so holding, we emphasize that Rule 414 is not a blank check entitling the government to introduce whatever evidence it wishes, no matter how minimally relevant and potentially devastating to the defendant. We also emphasize that district courts must apply the balancing test of Rule 403 in a manner that allows for meaningful appellate review. We conclude that the district judge in this case applied Rule 403 conscientiously and did not abuse his discretion in finding that LeMay's prior acts of child molestation were not so prejudicial as to outweigh their probative value. Thus, we can find no constitutional error or abuses of discretion. We therefore AFFIRM LeMay's convictions.


Fred LeMay is a twenty-four-year-old Native American and a member of the Fort Peck Indian tribe. The charges in this case arose from an incident that occurred during the summer of 1997 in Poplar, Montana, on the Fort Peck Indian Reservation. LeMay lived on the Fort Peck Reservation from 1991 to 1998, and intermittently resided at the home of his sister, Justine Shields, and her husband, Daniel Renz. Shields and Renz had several young children, for whom LeMay often babysat. One such instance occurred during the summer of 1997. Shields and Renz had gone out for the evening, leaving LeMay to watch their children D.R. and A.R., two boys ages five and seven.

LeMay made both children orally copulate with him while their parents were away and threatened to beat them up if they told anyone. Undeterred, the boys informed their mother of the abuse the next morning. Although Shields refused to let LeMay baby-sit for her children after that, she did not report the incident, look for evidence, or take the boys to a doctor or a counselor. Two years later, however, law enforcement authorities got wind of LeMay's abuse of the children and investigated the allegations. LeMay was eventually arrested and charged with child molestation.

Before trial, the prosecutor gave notice of her intent to introduce evidence of LeMay's prior acts of sexual misconduct under Rule 414 of the Federal Rules of Evidence. The evidence consisted of a juvenile rape conviction arising from events that had occurred in 1989, when LeMay was just twelve years old. At that time, LeMay resided with his aunt, Francine LeMay, in Gresham, Oregon. Francine LeMay had two daughters, who in the summer of 1989 were two years and eight months old, respectively.

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As in the 1997 incident for which LeMay was charged, LeMay sexually abused the children while baby-sitting for them. Francine LeMay returned from the grocery store to find her two-year old daughter upset and bruised. Upon confrontation, Francine LeMay extracted an admission from LeMay that he had "put his penis in" the older child's mouth. Francine LeMay also found a cream-like substance in her infant's vagina when she changed her diaper, and implied that this substance was semen. In a subsequent juvenile adjudication, LeMay was found guilty of rape.

LeMay opposed the prosecution's attempt to introduce this evidence, mounting both a facial and an "as-applied" challenge to the constitutionality of Rule 414. He also claimed that the evidence was not admissible under Rule 403, arguing that its potential for prejudice far outweighed its probative value. After an extensive pretrial hearing, the district judge rejected LeMay's facial constitutional challenge. The judge reserved the "as applied" and Rule 403 challenges until trial, in order to be able to determine more accurately whether the prosecution's proffered evidence would be relevant. The judge observed that "[a] full evaluation of all the evidence and the appropriate balancing test to be applied in this case is best left for trial."

At trial, the prosecution called both A.R. and D.R., who by that time were seven and nine years old. Both boys remembered the incidents and testified consistently. The prosecution also called the boys' mother, Justine Shields. Because Shields had not informed anyone that LeMay had molested her children, the prosecution was unable to offer any forensic, medical, or psychological evidence that the boys had been abused, and the case therefore rested on their testimony.

LeMay took advantage of this lack of evidence in his opening statement, arguing that no eyewitnesses or medical or scientific experts would corroborate the testimony of A.R. and D.R. Further, in cross-examining the boys, LeMay's counsel attempted to call into question their ability to remember events accurately. He also suggested that the boys might have a motive to lie because they were currently in foster care, and that they might have thought that accusing LeMay of molesting them would be a way to be reunited with their parents.

After A.R., D.R., Shields, and the investigator testified, the judge decided the remaining Rule 414 issues. He determined that Rule 403 did not otherwise preclude the introduction of the prior acts of molestation, and that Rule 414 was not unconstitutional as applied to LeMay. In conducting the Rule 403 balancing test, the judge stated:

On examination of each of the boys in question, there [have] been substantial issues raised concerning their credibility . . . .

There's a substantial issue that goes to the credibility of all of the persons involved in the care of these children. And I find that the evidence proffered by the government is relevant to issues of credibility. It is also relevant in rebutting the suggestion that there's no proof that this happened, which was made by the defendant in his opening statement, and that there would be no witnesses, medical, psychological, or eyewitnesses called. And, consequently, I am going to admit the evidence over the objection of the defendant.

Before allowing the prosecution to present its prior act evidence, however, the judge gave the jury the following limiting instruction:

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You are going to hear testimony from this witness and this testimony has a limited purpose. The limited purpose is as it may bear on the credibility of witnesses from whom you have already heard testimony. The evidence you are about to hear is not evidence of guilt in this case of the defendant, per se, it is evidence that can be considered by you for any purpose to which it is relevant in terms of the issues in this case.

After this instruction, the prosecutor called her last two witnesses. She first called Francine LeMay, who testified about the defendant's abuse of her children in Oregon in 1989. Ms. LeMay, who began her testimony in tears, described generally how she had discovered that LeMay had abused her daughters and how she had gotten him to admit to that abuse. The prosecution's final witness established that LeMay had been found guilty of rape in a juvenile adjudication. After these witnesses, the prosecution closed its case.

When both sides had rested, the district court reminded the jury that LeMay was on trial for the acts charged in the indictment, and not for the acts of molestation that occurred in 1989. Over LeMay's objection, the judge instructed that "the defendant is not on trial for any conduct or offense that is not charged in the indictment. You should consider any evidence about other acts of the defendant that you have heard . . . only as those acts may bear on the matter that is relevant in this case."

The jury found LeMay guilty of both counts of molestation, and the district judge sentenced him to 405 months in prison.


A. Standard of Review

We review de novo a claim that a statute or a rule is unconstitutional. See, e.g., United States v. Hanousek, 176 F.3d 1116, 1121 (9th Cir. 1999). However, a district judge's ruling under Rule 403 that evidence is more probative than prejudicial is reviewed for an abuse of discretion. See, e.g., United States v. Leon-Reyes, 177 F.3d 816, 821 (9th Cir. 1999).

B. Due Process

Prior to 1994, when Rules 413 through 415 were passed, admission of a defendant's prior crimes or acts was governed by Rule 404(b), which disallows such evidence when used to prove "the character of a person in order...

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