U.S. v. LeCompte, 96-1308

• Decision Date: 01 November 1996
• Docket Number: No. 96-1308,96-1308
• Citation: 99 F.3d 274
• Parties: 45 Fed. R. Evid. Serv. 562 UNITED STATES of America, Plaintiff-Appellee, v. Leo LeCOMPTE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 274

99 F.3d 274

45 Fed. R. Evid. Serv. 562

UNITED STATES of America, Plaintiff-Appellee, v. Leo LeCOMPTE, Defendant-Appellant.

No. 96-1308.

United States Court of Appeals Eighth Circuit.

Submitted July 26, 1996.

Decided Nov. 1, 1996.

Terry L. Pechota, Onida, SD, argued (Darla Pollman Rogers, on the brief), for Defendant-Appellant.

Mikal Hanson, Assistant U.S. Attorney, Pierre, SD, argued, for Plaintiff-Appellee.

Before BOWMAN, BEAM, and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

Leo LeCompte appeals his conviction and sentence for abusive sexual contact with his eleven-year-old niece in Indian country. See 18 U.S.C. §§ 1153, 2244(a)(1), and 2246(3). We conclude that the district court abused its discretion under Rule 404(b) of the Federal Rules of Evidence by admitting testimony describing LeCompte's prior sexual abuse of another child. Accordingly, we reverse and remand for a new trial.

I.

On the eve of trial, the government served notice that it would offer evidence that LeCompte had previously molested three other children. The district court ruled this offer untimely and inadequate under Rules 413(b) and 414(b), the new rules governing evidence of similar crimes in sexual assault and child molestation prosecutions. The court ruled the government's notice timely and adequate under Rule 404(b) and reserved decision as to Rule 404(b) admissibility until trial.

Early in the trial, LeCompte's niece, C.D., described the charged offense as follows. One evening in January 1995, during an overnight visit to the LeCompte home, she was lying on a couch watching a movie while her siblings had fallen asleep on the floor. LeCompte lay down on the couch behind her, repeatedly placed her hand on his penis, and reached under her shirt and brassiere to touch her breasts. When LeCompte began to move his hand toward her groin area, she left the couch and joined her sister on the floor. LeCompte then left the room.

After C.D. testified, the government called one of the three prior victims, T.T., another of LeCompte's nieces, to make a Rule 404(b) offer of proof outside the jury's presence. T.T. stated that from 1985 through 1987, when she was nine to eleven years old, LeCompte repeatedly exposed himself to her, forced her to masturbate him, and touched her in the groin area. She testified that many of the touching incidents arose during or after games LeCompte would play, including hide-and-seek. After hearing this testimony, the district court overruled LeCompte's objection to this testimony:

[A]rguably, the defendant was playing games and ingratiating himself with the intended victim in each case. So, in that sense it is part of a plan and preparation.

I do not think that identity is any issue. Motive is not an issue. Knowledge is not an issue. Absence of mistake or accident is not an issue.

* * * * * *

This is a very close issue in this case.... I feel that the evidence should be admitted. That while it is definitely prejudicial evidence, that the prejudicial evidence does not overweigh the probative value as to plan, preparation, and modus operandi.

* * * * * *

And the Court feels that the evidence is relevant as to the game playing, the exposure incidents, which the Court believes the jury could find were intended to condition the child, or children, and to lay the groundwork, so to speak, for later sexual activities which would follow upon the exposures and the establishing of a game-like relationship between the defendant and the victims.

The government then recalled C.D. to lay foundation for the Rule 404(b) evidence. She testified that, on another occasion, LeCompte invited her into his bedroom, where he was dressed in only a shirt, and "asked me if I wanted to play hide and go seek." T.T. then took the stand and repeated her testimony to the jury, over LeCompte's objection, and the district court gave a cautionary Rule 404(b) instruction. The jury convicted LeCompte of the two counts charged in the indictment. The district court, departing upward, sentenced him to eighty-four months in prison.

II.

Under Rule 404(b), testimony concerning other bad acts is admissible "if it is relevant to a material issue, established by a preponderance of the evidence, more probative than prejudicial, and similar in kind and close in time." United States v. Baker, 82 F.3d 273, 276 (8th Cir.1996). Such evidence is not admissible "solely to prove the defendant's criminal disposition." United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir.1995). On appeal, LeCompte argues that T.T.'s testimony of prior sexual abuse was relevant only as proof of LeCompte's bad character and criminal disposition. The district court's decision to admit evidence under Rule 404(b) is reviewed for abuse of discretion. See United States v. Williams, 95 F.3d 723, 730 (8th Cir.1996).

The question whether evidence of prior sexual abuse is admissible under Rule 404(b) in a sex abuse prosecution has been a thorny, frequently litigated issue. In general, at least in this circuit, "prior sex offenses committed upon the victim of the charged offense" are usually admissible, but "[w]e are far more hesitant to affirm the admission of evidence of prior sexual acts or crimes committed against persons other than the victim of the charged offense." United States v. Yellow, 18 F.3d 1438, 1440 & n. 2 (8th Cir.1994). This case falls within the latter category, so the government's burden to establish that T.T.'s testimony was relevant under Rule 404(b), and more probative than prejudicial under Rule 403, is greater than if C.D., who accused him of the charged offense, was the victim of prior sexual abuse.

The district court admitted T.T.'s testimony as relevant to proving "plan, preparation, and modus operandi." Rule 404(b) specifically authorizes use of prior bad acts evidence to prove "plan" or "preparation." In many cases, such evidence has been admitted because it showed the planning of or preparation for the charged offense. See United States v. Ratliff, 893 F.2d 161, 165 (8th Cir.1990)- (dealings with another investor in the same fraudulent scheme), cert. denied, 498 U.S. 840, 111 S.Ct. 115, 112 L.Ed.2d 85 (1990); United States v. Calvert, 523 F.2d 895, 907 (8th Cir.1975) (efforts to attract an accomplice), cert. denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976). In other cases, evidence of related or similar prior offenses has been admitted because it tended to prove that defendant employed a "common scheme" to commit a series of similar crimes. See Baker, 82 F.3d at 276 ("remarkably similar" extortion of other motorists); United States v. Crouch, 46 F.3d 871, 875 (8th Cir.1995) (prior illegal gun sales), cert. denied sub nom. Mandacina v. U.S., --- U.S. ----, 116 S.Ct. 193, 133 L.Ed.2d 129 (1995); United States v. Sanchez, 963 F.2d 152, 155 (8th Cir.1992) (similar dealings with other aliens); United States v. Gano, 560 F.2d 990, 993 (10th Cir.1977) (prior sexual intercourse with mother was "indispensable to a complete showing" of the alleged sexual offense against her daughter).

In this case, the Rule 404(b) evidence was not part of the charged offense and did not tend to prove a "common scheme or plan." The victims were different, and the events were far apart in time. Absent more specific linkage, such evidence is relevant to "plan" or "preparation" only insofar as it tends to prove a propensity to commit crimes, which Rule 404(b) prohibits. See Government of the Virgin Islands v. Pinney, 967 F.2d 912, 916 (3rd Cir.1992) (evidence defendant raped victim's sister excluded); United States v. Has No Horse, 11 F.3d 104, 106 (8th Cir.1993) (evidence defendant propositioned two other teen-aged girls excluded); United States v. Fawbush, 900 F.2d 150, 151-52 (8th Cir.1990) (evidence defendant sexually abused his daughters excluded); United States v. Mothershed, 859 F.2d 585, 590 (8th Cir.1988) ("[n]or did the evidence tend to show a plan, unless on the pure speculation that a similar plan underlay the earlier conviction").

However, the government argues, and the district court agreed, that in this case there is sufficient linkage between the Rule 404(b) evidence and the charged offense because the unrelated prior bad acts establish a "signature" modus operandi, that is, "other crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused." United States v. Drew, 894 F.2d 965, 970 (8th Cir.1990), cert. denied, 494 U.S. 1089, 110 S.Ct. 1830, 108 L.Ed.2d 959 (1990), quoting McCormick on Evidence § 190(3), at 559 (3d ed.1984). The theory is that a "jury can rationally infer from evidence that the defendant committed a prior crime in an unusual and distinctive manner and [from] evidence that a second similar crime was committed in the same unusual and distinctive manner that the defendant committed the second crime." Pinney, 967 F.2d at 916.

Normally, this type of evidence is offered to prove identity in cases where it is clear that a crime has been committed and the issue is whether defendant committed it. In this case, identity is not at issue. It is undisputed that LeCompte was the only adult present at the time of the alleged offense. The issue is whether the alleged offense occurred. Although the use of "signature" crime evidence in a case of this type is more unusual than when identity is at issue, and although its use is arguably nothing more than proof of propensity, the above-quoted theory encompasses this issue (whether a crime was committed at all) as well as the identity issue (a crime was committed, but did defendant do it). Thus, we will assume that legitimate "signature" evidence would be admissible for this purpose as well, at least if the charged offense fit the "signature" pattern established by the prior bad acts. But to be admissible for this purpose, the government must meet the standard applicable when identity is at issue, that is, a "much greater degree of similarity...