U.S. v. Castillo, 96-2251.

• Citation: 140 F.3d 874
• Decision Date: 06 April 1998
• Docket Number: No. 96-2251.,96-2251.
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Serefino CASTILLO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

140 F.3d 874

UNITED STATES of America, Plaintiff-Appellee v. Serefino CASTILLO, Defendant-Appellant.

No. 96-2251.

United States Court of Appeals, Tenth Circuit.

April 6, 1998.

John Van Butcher, Assistant Federal Public Defender (Ann Steinmetz, Federal Public Defender, with him on the briefs), Albuquerque, NM, appearing for Defendant-Appellant.

Demetra Lambros, Attorney, U.S. Department of Justice, Washington, DC (John J. Kelly, United States Attorney, and Tara C. Neda, Assistant U.S. Attorney, District of New Mexico, Albuquerque, NM, with her on the brief), Office of the Federal Public Defender,, appearing for Plaintiff-Appellee.

Before TACHA, HOLLOWAY, and MURPHY, Circuit Judges.

TACHA, Circuit Judge.

A jury convicted Serefino Castillo of four counts of sexual abuse in violation of 18 U.S.C. § 2242(1) and four counts of sexual abuse of a minor in violation of 18 U.S.C. § 2243(a). At trial, the district court admitted certain evidence against the defendant pursuant to Federal Rule of Evidence 414. The defendant now appeals the admission of that evidence, contending (1) that Rule 414 was not effective at the time of his trial, (2) that Rule 414 violated his constitutional rights to due process and equal protection under the Fifth Amendment, as well as the right to be free of cruel and unusual punishment under the Eighth Amendment, and (3) that the Rule 414 evidence should have been excluded because of its great prejudicial value. We hold that Rule 414 was effective at the time of Mr. Castillo's trial and that it does not violate the Constitution. We remand this case to the district court, however, for an adequate explanation of its Rule 403 determination.

In addition to his Rule 414 arguments, Mr. Castillo raises several other issues on appeal, none of which provides grounds for reversal.

Background

Serefino Castillo lives on the Navajo Reservation in Crownpoint, New Mexico. He and his wife have five children. The indictment charged the defendant with four acts of sexual abuse — three acts towards his daughter N.C. and one towards his daughter C.C. Each of these alleged acts gave rise to one count of sexual abuse under 18 U.S.C. § 2242 and one count of sexual abuse of a minor under 18 U.S.C. § 2244. At trial, the district court allowed N.C. to testify not only to the three acts of abuse against her with which the defendant was charged, but also to a fourth act of sexual abuse against her that was not charged in the indictment. Similarly, C.C. testified to two acts of sexual abuse committed against her by the defendant in addition to the one charged in the indictment. The district court admitted the evidence pursuant to Rule 414.¹

Discussion

I. Federal Rule of Evidence 414

As a preliminary matter, we address whether Rule 414 was effective at the time of Mr. Castillo's trial. This Circuit recently held that Rules 413-415 "apply to all trials commenced after July 10, 1995." United States v. Enjady, 134 F.3d 1427, 1429 (10th Cir.1998). Mr. Castillo's trial commenced in May 1996, well after July 10, 1995. Accordingly, Rule 414 applies to his trial. We therefore proceed to the other issues raised by Rule 414.

A. Constitutional Challenges to Rule 414

Federal Rule of Evidence 414 reads, in pertinent part:

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). This rule allows the prosecution to use evidence of a defendant's prior acts for the purpose of demonstrating to the jury that the defendant had a disposition of character, or propensity, to commit child molestation. In the cases to which this rule applies, it replaces the restrictive Rule 404(b), which prevents parties from proving their cases through "character" or "propensity" evidence. See United States v. Meacham, 115 F.3d 1488, 1491 (10th Cir.1997). Here, the trial court admitted evidence of the defendant's prior acts of child molestation under Rule 414 for the purpose of demonstrating his character. Mr. Castillo now challenges the admission of that evidence on constitutional grounds. We review de novo the district court's conclusion that Rule 414 is constitutional. See United States v. Hampshire, 95 F.3d 999, 1001 (10th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 753, 136 L.Ed.2d 690 (1997).

1. Due Process

We first consider whether Federal Rule of Evidence 414 violates the due process rights of a criminal defendant under the Fifth Amendment.² We have faced the issue of Rule 414's constitutionality under the Due Process Clause once before. In United States v. Meacham, 115 F.3d 1488, 1491-96 (10th Cir.1997), we analyzed a defendant's challenge to Rule 414 evidence and concluded that "under the circumstances of this case, the prior acts evidence was not so prejudicial as to violate the defendant's constitutional right to a fair trial." Id. at 1495 (emphasis added). Meacham's holding was limited to the facts of the case before it. The defendant here, unlike the defendant in Meacham, challenges the rule in the abstract, thus presenting us with a facial challenge rather than an as-applied challenge. See Sanjour v. E.P.A., 56 F.3d 85, 92 n. 10 (D.C.Cir.1995) (en banc) (noting that the distinction between facial and as applied challenges is that facial challenges "request that the court go beyond the facts before it" to consider whether the law is unconstitutional). We therefore now analyze the facial challenge before us.³

a. Prior Cases

In United States v. Enjady, this court recently held that Federal Rule of Evidence 413, which allows character evidence in sexual assault cases, does not on its face violate the due process rights of a defendant. 134 F.3d 1427, 1433-34 (10th Cir.1998). We now hold that Rule 414 does not on its face violate the Due Process Clause.

We begin by noting that some of the Supreme Court's statements regarding propensity evidence indicate that the ban on such evidence may have a constitutional dimension. For instance, in explaining the common-law prohibition against propensity evidence, the Court said:

Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt.... The State may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.

Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 218-19, 93 L.Ed. 168 (1948) (emphasis added); see also Spencer v. Texas, 385 U.S. 554, 571, 87 S.Ct. 648, 657-58, 17 L.Ed.2d 606 (1967) (Warren, C.J., concurring in part and dissenting in part) (suggesting that propensity evidence violates the Due Process Clause); Brinegar v. United States, 338 U.S. 160, 173-74, 69 S.Ct. 1302, 1309-10, 93 L.Ed. 1879 (approving exclusion of prior arrest at trial and noting that rules of evidence are "to some extent embodied in the Constitution"). Nonetheless, more recently the Court expressly reserved the question of whether admission of propensity evidence violates the Due Process Clause. See Estelle v. McGuire, 502 U.S. 62, 75 n. 5, 112 S.Ct. 475, 484 n. 5, 116 L.Ed.2d 385 (1991).

Our previous cases in this area also leave open the question whether the ban on propensity evidence derives solely from the rules of evidence, or also from the Constitution. We have said that the exclusion of evidence of prior acts "is not a simple evidentiary [issue], but rather goes to the fundamental fairness and justice of the trial itself." United States v. Burkhart, 458 F.2d 201, 205 (10th Cir.1972) (en banc); see also Tucker v. Makowski, 883 F.2d 877, 881 (10th Cir.1989) (improper admission of evidence of prior crimes "raises a due process issue"); United States v. Biswell, 700 F.2d 1310, 1319 (10th Cir.1983) (citations omitted) ("Improper admission of a prior crime or conviction, even in the face of other evidence amply supporting the verdict, constitutes plain error impinging upon the fundamental fairness of the trial itself."). Despite some of our cases' references to constitutional standards, however, they rely more heavily on common law precedent, see Burkhart, 458 F.2d at 206, or the Federal Rules of Evidence, see Biswell, 700 F.2d at 1316 (discussing Rule 404(b)), than on the Constitution. See also United States v. Hogue, 827 F.2d 660, 662 (10th Cir.1987) (discussing Biswell and Burkhart in non-constitutional terms). In only one prior case did a defendant's objection to propensity evidence rest solely on constitutional grounds. There, we noted the constitutional question but "ma[d]e no comment on the merits of petitioner's allegations." Tucker, 883 F.2d at 881. None of our cases stands directly for the proposition that an evidentiary rule allowing admission of propensity evidence, ipso facto, violates the Due Process Clause. We now turn to that question in the specific context of Rule 414.

b. Analysis

The Due Process Clause has limited operation beyond the specific guarantees enumerated in the Bill of Rights. See Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 674, 107 L.Ed.2d 708 (1990). The Due Process Clause will invalidate an evidentiary rule only if the rule "violates those fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community's sense of fair play and decency." United States v. Lovasco, 431 U.S. 783,...