U.S. v. Bentley, 06-CR-155-LRR.

• Decision Date: 21 February 2007
• Docket Number: No. 06-CR-155-LRR.,06-CR-155-LRR.
• Citation: 475 F.Supp.2d 852
• Parties: UNITED STATES of America, Plaintiff, v. James Howard BENTLEY, Defendant.
• Court: U.S. District Court — Northern District of Iowa

475 F.Supp.2d 852

UNITED STATES of America, Plaintiff, v. James Howard BENTLEY, Defendant.

No. 06-CR-155-LRR.

United States District Court, N.D. Iowa, Cedar Rapids Division.

February 21, 2007.

Mark R. Brown, Cedar Rapids, IA, for Defendant.

Sean R. Berry, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.

ORDER

READE, Chief Judge.

                TABLE OF CONTENTS
                I.  INTRODUCTION ..........................................................853
                 II.  PROCEDURAL BACKGROUND .................................................853
                III.  ALLEGATIONS ...........................................................853
                      A.  Instant Offenses ..................................................853
                      B.  Prior Acts of Child Molestation ...................................854
                          1.  A.J.  .........................................................854
                          2.  C.T.  .........................................................855
                 IV.  THE MOTION ............................................................855
                  V.  UNCONTESTED EVIDENCE ..................................................855
                      A.  Videotaped Interview ..............................................855
                      B.  Testimony of Play Therapist .......................................855
                 VI.  TESTIMONY OF A.J.  AND C.T ............................................855
                      A.  Rule 414 ..........................................................855
                          1.  Propensity evidence generally disfavored ......................855
                          2.  Propensity evidence permitted in "child molestation" cases ....856
                          3.  Application ...................................................856
                      B.  Rule 403 ..........................................................857
                          1.  Probative value ...............................................858
                          2.  Prejudicial effect ............................................859
                          3.  Balancing .....................................................861
                      C.  Conclusion ........................................................861
                VII.  DISPOSITION ...........................................................861
                

I. INTRODUCTION

The matter before the court is Defendant James Howard Bentley's Motion in Limine ("Motion") (docket no. 19).

II. PROCEDURAL BACKGROUND

Defendant is charged in a six-count Second Superseding Indictment (docket no. 54). Counts 1 and 2 charge Defendant with Sexual Exploitation of a Child, in violation of 18 U.S.C. § 2251(a) and (e). Counts 3 and 4 charge Defendant with Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Counts 5 and 6 charge Defendant with Interstate Transportation of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(1) and (b)(1).

On January 9, 2007, Defendant filed the Motion. On January 29, 2007, the government filed a response. On February 9, 2007, Defendant filed a reply.

On February 9, 2007, the court held a hearing on the Motion. On February 20, 2007, the court held an evidentiary hearing. At the hearings, Assistant United States Attorney Sean R. Berry represented the government. Attorney Mark R. Brown represented Defendant, who was personally present.

III. ALLEGATIONS

A. Instant Offenses

The government intends to prove the following at trial:

In the fall of 2003, ten-year-old J.G. and her infant sister occasionally visited and stayed overnight at Defendant's home in Cedar Rapids, Iowa. Their mother was Defendant's ex-girlfriend. Defendant was a "father figure" to J.G., and J.G. often called him "Dad."

Using a Polaroid camera, Defendant took approximately ten pornographic photographs of J.G. and her infant sister. Most of the photographs showed J.G. provocatively posed naked on a bed in Defendant's home and lasciviously displayed her genitals and pubic area. One photograph lasciviously displayed the genitals and pubic area of J.G.'s infant sister.

In April of 2004, Defendant and his family moved to Arkansas. Defendant took the pornographic photographs of J.G. and her infant sister with him.

In May of 2004, Defendant and his family moved back to Iowa. J.G. resumed spending the night at Defendant's home.

In November of 2004, J.G. told her family that Defendant was sexually molesting her. During a videotaped interview at St. Luke's Hospital in Cedar Rapids, J.G. described the sexual abuse and stated that Defendant had taken naked pictures of her and her infant sister. J.G. said the pictures came "automatically out of the camera." In December of 2004, J.G. told a play therapist that Defendant had sexually abused her.

In January of 2005, Defendant was charged in state court with sexually abusing J.G. While Defendant was in custody, his brother kidnapped and murdered J.G.¹

B. Prior Acts of Child Molestation

At the evidentiary hearing, A.J. and C.T. testified that Defendant molested them when they were little girls. Based on such testimony, the court finds that a jury could find the following by a preponderance of the evidence:²

1. A.J.

A.J., now fifteen years old, is Defendant's step-daughter. When A.J. was three to six years old and Defendant was living with A.J.'s mother, Defendant sexually abused A.J. in the family home. Defendant repeatedly touched A.J.'s vaginal area and chest underneath her clothes. He also told her not to tell anyone. On one occasion, Defendant had sexual inter-course with A.J. in a bedroom that Defendant shared with A.J.'s mother.

2. C.T.

C.T. is now twenty one years old. When C.T. was twelve years old and her family allowed Defendant to stay in the family's basement, Defendant sexually abused C.T. in the basement on three separate occasions. Defendant partially undressed C.T., had sexual intercourse with her and told her not to tell anyone.

IV. THE MOTION

In the Motion, Defendant asks the court to exclude the following evidence from trial: (1) the videotaped interview of J.G. at St. Luke's Hospital; (2) the testimony of J.G.'s play therapist; and (3) the testimony of A.J. and C.T.³

V. UNCONTESTED EVIDENCE

A. Videotaped Interview

Citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Defendant contends that admission of the videotaped interview would violate the Confrontation Clause of the Sixth Amendment. In its response, the government states that it does not intend to seek admission of the interview during its case-in-chief, cross-examination or rebuttal. Accordingly, the court shall grant Defendant's request to exclude the interview, but grant the government leave to re-raise the issue out of the presence of the jury, if necessary.

B. Testimony of Play Therapist

Citing Federal Rules of Evidence 401, 403, 404 and 405, Defendant asks the court to exclude the testimony of J.G.'s play therapist. In its response, the government states that it does not intend to introduce the therapist's testimony "unless Defendant makes such testimony relevant." Accordingly, the court shall grant Defendant's request to exclude the therapist's testimony, but grant the government leave to re-raise the issue out of the presence of the jury, if necessary.

VI. TESTIMONY OF A.J. AND C.T.

Defendant seeks to exclude the testimony of A.J. and C.T. pursuant to Federal Rules of Evidence 401, 403 and 404. Defendant claims that evidence that he sexually molested A.J. and C.T. is not relevant to the instant charges and, even if relevant, is "far more prejudicial than probative." The government maintains that such testimony is admissible under Rule 414 and should not be excluded under Rule 403. The government plans to use the evidence to show that Defendant has a propensity to commit sex crimes against children.

A. Rule 414

1. Propensity evidence generally disfavored

Generally, evidence of prior bad acts may not be used "to prove the character of a person in order to show action in conformity therewith." Fed.R.Evid. 404(b). Such "propensity evidence" "is ordinarily excluded because of the likelihood the jury may misuse it." United States v. Johnson, 439 F.3d 884, 887 (8th Cir.2006). Propensity evidence "`tends to distract the trier of fact from the main question of what actually happened on the particular occasion.'" Id. (quoting Fed.R.Evid. 404 advisory committee notes (1972)). "It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened." Id. The general ban on propensity evidence has deep roots in our common law tradition. See Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 93 L.Ed. 168 (1948) (discussing character evidence and the common law); see also Harris v. Bowersox, 184 F.3d 744, 754 (8th Cir.1999) (stating that "the rule against propensity evidence" has a "long and celebrated history"); United States v. Mound, 157 F.3d 1153, 1154 (8th Cir.1998) (Morris Shepard Arnold, J., dissenting from denial of suggestion for rehearing en banc) (discussing "a centuries-old legal tradition that views propensity evidence with a particularly skeptical eye").

2. Propensity evidence permitted in "child molestation" cases

Notwithstanding the general ban on propensity evidence, Federal Rule of Evidence 414 is a "general rule[] of admissibility in ... child molestation cases for evidence that the defendant has committed offenses of the same type on other occasions. ..." United States v. LeCompte, 131 F.3d 767, 769 (8th Cir.1997) (quoting 140 Cong. Rec. H8992 (daily ed. Aug. 21, 1994) (statement of Rep. Molinari)). Congress enacted Rule 414 to "supersede ... the restrictive aspects of ... Rule 404(b)." Id. In pertinent part, Rule 414 provides:

In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

Fed R. Evid. 414(a).

Rule 414 embodies a ...