U.S. v. Meacham

• Decision Date: 24 June 1997
• Docket Number: Nos. 96-4016,96-4042,s. 96-4016
• Parties: 47 Fed. R. Evid. Serv. 428, 97 CJ C.A.R. 1081 UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Henry Lee MEACHAM, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1488

115 F.3d 1488

47 Fed. R. Evid. Serv. 428, 97 CJ C.A.R. 1081

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Henry Lee MEACHAM, Defendant-Appellant/Cross-Appellee.

Nos. 96-4016, 96-4042.

United States Court of Appeals,

Tenth Circuit.

June 24, 1997.

Edward K. Brass, Salt Lake City, Utah, for Defendant-Appellant/Cross-Appellee.

Richard A. Friedman, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, Washington, DC (Scott M. Matheson, Jr., United States Attorney, and Richard N.W. Lambert, Assistant United States Attorney, District of Utah, with him on the briefs), for Plaintiff-Appellee/Cross-Appellant.

Before SEYMOUR, Chief Judge, LOGAN and KELLY, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Henry Lee Meacham appeals his conviction by a jury of one count of transporting a minor in interstate commerce with the intent that she engage in sexual activity for which defendant could be charged with a crime, in violation of 18 U.S.C. § 2423. On appeal defendant asserts (1) the trial court improperly applied Federal Rules of Evidence 403, 404(b), and 414 and violated his right to a fair trial by admitting evidence that he molested two of his stepdaughters more than thirty years ago; and (2) there was insufficient evidence that he acted with a dominant purpose of engaging in criminal sexual activity when he transported his minor relative in interstate commerce. The government cross-appeals, asserting that the district court applied the wrong sentencing guideline, considered inappropriate factors for departure, and failed to state an adequate rationale for its downward departure.

I

A

We first consider the alleged Federal Rules of Evidence 403, 404(b) and 414 error. The complaining witness in this case, defendant's relative, was twelve years old when she testified at the trial. She testified to two incidents, one occurring when she was seven or eight and the other--on which the charge was based--when she was ten. Both incidents occurred during overnight trips when defendant took her from Utah to California in his work hauling freight. She testified to details which, if believed, clearly amount to a violation of 18 U.S.C. § 2423.

The witness stated that she did not say anything to defendant after the first incident because she was "frightened and confused," and she did not tell her parents about it when she returned to Utah because she was scared. I R. 46-47. She accompanied defendant on the second trip after he asked and gave her belated presents for her tenth birthday. Upon returning home from the second trip, she said she did not tell anyone what had happened because she was afraid of defendant. Later, however, when her younger sister was planning a trip with the defendant, she asked her sister not to go, and then told her father what had happened.

Defendant categorically denied any sexual contact with the alleged victim. He testified that once when she was ill and needed to be comforted he held her but there was no sexual contact. Questioned on cross-examination, defendant denied that he had ever fondled his stepdaughters when they were under the age of fourteen. For rebuttal, the government called two of defendant's stepdaughters; they both testified that defendant had molested them when they were young girls more than thirty years before.

In considering defendant's argument that the court improperly admitted the step-daughters' testimony, there is some confusion whether the court admitted it under Fed.R.Evid. 404(b) or 414, and, indeed, concerning which rule should apply. Defendant was indicted on February 23, 1995 and tried in September 1995. Rule 414 became effective on July 9, 1995. In a case decided after this trial, United States v. Roberts, 88 F.3d 872, 878 (10th Cir.1996), we held that new Fed.R.Evid. 413 (a companion to Rule 414) applied to proceedings commenced on or after the July 9, 1995 effective date and that "proceedings" was defined as the indictment or information. Thus, under Roberts, Rule 414 would not apply to this case. In September 1996, however, Congress amended the effective date provision of Rule 414 and specifically stated that it would apply to "proceedings commenced on or after the effective date of such amendments, including all trials commenced on or after the effective date of such amendments." Omnibus Appropriations Act of 1997, Pub.L. No. 104-208, 110 Stat. 3009-25 (emphasis added). We have held that a change in the law after a trial was held will not be applied retroactively absent a clear expression of congressional intent. DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1388 (10th Cir.1990), cert. denied, 498 U.S. 1074, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991). The Roberts interpretation was ten months after the instant trial and the congressional amendment which would seem to overrule our interpretation was less than three months later. Arguably, applying Rule 414 as Congress later mandated did not upset settled law in effect in September 1995. We here analyze the court's ruling under both Rules 404(b) and 414; and we find no reversible error under either alternative.

B

Fed.R.Evid. 414 provides in pertinent part:

(a) 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.

This rule, like Rule 413, "provides a specific admissibility standard in sexual assault cases, replacing Fed.R.Evid. 404(b)'s general criteria." Roberts, 88 F.3d at 876. It "supersede[s] in sex offenses the restrictive aspects" of Rule 404(b). Fed.R.Evid. 413 Historical Notes (quoting 140 Cong. Rec H8991-92 (daily ed. Aug. 21, 1994) (statement of Rep. Molinari)).

The language of Rule 414 does not address the question of staleness. The rule, however, was not developed through the usual Judicial Conference rulemaking process, but by Congress itself. The historical notes to the rules and congressional history indicate there is no time limit beyond which prior sex offenses by a defendant are inadmissible.

No time limit is imposed on the uncharged offenses for which evidence may be admitted; as a practical matter, evidence of other sex offenses by the defendant is often probative and properly admitted, notwithstanding very substantial lapses of time in relation to the charged offense or offenses. See, e.g., United States v. Hadley, 918 F.2d 848, 850-51 (9th Cir.1990), cert. dismissed, 113 S.Ct. 486 (1992) (evidence of offenses occurring up to 15 years earlier admitted); State v. Plymate, 345 N.W.2d 327 (Neb.1984) (evidence of defendant's commission of other child molestations more than 20 years earlier admitted).

.... To implement the legislative intent, the courts must liberally construe these rules to provide the basis for a fully informed decision of sexual assault and child molestation cases, including assessment of the defendant's propensities and questions of probability in light of the defendant's past conduct.

Id. Rule 403 balancing is still applicable, see id., but clearly under Rule 414 the courts are to "liberally" admit evidence of prior uncharged sex offenses.

In the instant case the principal relevance of the prior act testimony is to show defendant's intent, at the time he induced this minor relative to accompany him on an interstate trip, to sexually molest her. The district court, in ruling on the admissibility of this evidence, focused on the intent and weighed the prejudicial effect pursuant to Rule 403, although it also was paying attention to the strictures of Rule 404(b). ¹

When the prosecutor informed the court that he was going to cross-examine defendant about alleged incidents of prior molestation, the following colloquy took place out of the jury's presence:

The court: Why should you be able to go into something 25 years old?

[The government:] Judge, because--and the congressional record makes this clear, that Congress recognizes that people that have an aberrant sexual behavior, such as the defendant does, you don't get over that.

The court: Well, you're talking about not 404(b) then. You're talking about 414, are you?

[The government:] Well, really both. Because it's--it is a prior act offered to show plan and preparation and also to show his intent. And now he's saying, "I never intended anything. If I was together with her in the bed, it was just purely innocent." And I think what he did 25 years ago--he was a mature man then--is clearly relevant to what he did with this little girl over a two year period of time.

The court: Okay.

[The government:] And if I could just make one more comment.

The court: Go ahead.

[The government:] Judge, with things like sexual orientation towards children, a sexual interest in children, that doesn't change unless you get some intervention.

And I don't think there's any indication that the defendant ever had any intervention after his first incidents, ² and that's why he's carrying it out now, or two years ago. And I think the jury needs to understand that to really put into perspective what they've heard from the witness stand.

....

[Defense counsel:] There's no testimony to that effect with respect to the last hypothetical he's just put forth to you. There's no expert that's been called to say that that's in fact the case. He really isn't talking to you about plan or motive or identity.

[Defendant's] testimony was carefully tailored to this young woman, this young woman alone. He didn't say, "I haven't ever done anything in the past." He didn't say, "I'm the salt of the earth. I would never do anything like this." None of those kind of remarks were made.

What we're talking about isn't 25 years ago. The closest incident in their reports--the most recent incident is 1966. We're talking 29 years ago for maybe the most recent even talked about something that...