U.S. v. Roberts

• Decision Date: 08 July 1996
• Docket Number: Nos. 95-7158,95-7168,s. 95-7158
• Parties: 44 Fed. R. Evid. Serv. 1264 UNITED STATES of America, Plaintiff-Appellant, v. Hollis Earl ROBERTS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 872

88 F.3d 872

44 Fed. R. Evid. Serv. 1264

UNITED STATES of America, Plaintiff-Appellant, v. Hollis Earl ROBERTS, Defendant-Appellee.

Nos. 95-7158, 95-7168.

United States Court of Appeals Tenth Circuit.

July 8, 1996.

Lisa Simotas, Attorney, Department of Justice (John W. Raley, United States Attorney, Sheldon J. Sperling, Assistant United States Attorney, and Linda A. Epperley, Assistant United States Attorney, Eastern District of Oklahoma, with her on the briefs), Washington, D.C., for Plaintiff-Appellant.

Warren F. Bickford IV (Burck Bailey with him on the brief), Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, OK, for Defendant-Appellee.

Before PORFILIO, BRORBY, and EBEL, Circuit Judges.

PER CURIAM.

On June 9, 1995, Hollis Earl Roberts, Chief of the Choctaw Nation of Oklahoma, was indicted on two counts of aggravated sexual abuse in violation of 18 U.S.C. § 2241, one count of sexual abuse in violation of 18 U.S.C. § 2242, and five counts of abusive sexual contact in violation of 18 U.S.C. § 2244. The allegations of three women comprise the substance of the indictment against Mr. Roberts. The district court made three pretrial evidentiary rulings which the government appeals pursuant to 18 U.S.C. § 3731.

First, the district court determined the new Fed.R.Evid. 413 was inapplicable because the indictment against Mr. Roberts was filed prior to the rule's July 9, 1995 effective date. Second, the court, under Fed.R.Evid. 404(b) and 403, excluded evidence from nine women not named in the indictment who allege Mr. Roberts also sexually abused them over the past twenty years. Third, in a Minute Order, the district court denied the government's request to present evidence Mr. Roberts successfully initiated a change in the applicable tribal statute of limitations by the Choctaw Tribal Council to prevent one of the named women from bringing a civil suit against him in tribal court. In addition, the government has filed a petition for a writ of mandamus for this court to order the district court to rule on another Fed.R.Evid. 404(b) issue concerning additional testimony from the named women about events not charged in the indictment. Finally, the government asks us to exercise our inherent authority to assign a different district court judge to this case on remand.

We conclude the amended Fed.R.Evid. 413 is inapplicable here. We believe Congress intended Rule 413 to apply only to those criminal cases not already pending at the time the Rule became effective. Second, we remand the Fed.R.Evid. 404(b) issue concerning the nine additional women to the district court for an appropriate hearing to determine whether the government has established that Mr. Roberts engaged in a common scheme to abuse sexually women subject to his authority and whether each woman's testimony fits this pattern. Third, we also remand the Fed.R.Evid. 404(b) issue dealing with the tribal statute of limitations for the court to explain its reasoning in detail. Fourth, we deny the government's petition for a writ of mandamus. Fifth, and finally, we decline to exercise our inherent authority to reassign this case to a different district court judge on remand. ¹

I.

Initially, we must determine whether the new Fed.R.Evid. 413 applies. The text of the challenged Rule 413 reads as follows:

Rule 413. Evidence of Similar Crimes in Sexual Assault Cases

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

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved--

(1) any conduct proscribed by chapter 109A of title 18, United States Code;

(2) contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person;

(3) contact, without consent, between the genitals or anus of the defendant and any part of another person's body;

(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or

(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).

Congress added Rule 413 to the Federal Rules of Evidence as part of the 1994 Crime Bill. See Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, Title XXXII, § 320935(a), 108 Stat. 2136 (1994). As is evident from the text of the Rule, Fed.R.Evid. 413 was designed to create a "general rule[ ] of admissibility in sexual assault ... cases for evidence that the defendant has committed offenses of the same type on other occasions." Fed.R.Evid. 413 historical notes (quoting 140 Cong. Rec. H8991-92 (daily ed. Aug. 21, 1994) (statement of Rep. Molinari)). Rule 413 provides a specific admissibility standard in sexual assault cases, replacing Fed.R.Evid. 404(b)'s general criteria.

The new rules will supersede in sex offense cases the restrictive aspects of Federal Rule of Evidence 404(b). In contrast to Rule 404(b)'s general prohibition of evidence of character or propensity, the new rules for sex offense cases authorize admission and consideration of evidence of an uncharged offense for its bearing "on any matter to which it is relevant."

Id.

According to the enabling legislation, the amended evidentiary rules were to "apply to proceedings commenced on or after the effective date of such amendments." See Pub.L. No. 103-322, Title XXXII, § 320935(e). The effective date of the amendments was to be determined based on the action taken by the Judicial Conference of the United States with respect to recommendations concerning the proposed amendments. Id. § 320935(c)-(d). After the Violent Crime Control and Law Enforcement Act was passed on September 13, 1994, the Judicial Conference was given 150 days to "transmit to Congress a report containing recommendations" regarding the proposed new rules. Id. § 320935(c). If the recommendations from the Judicial Conference differed from the proposed amendments, the new rules were to become effective "150 days after the transmittal of the recommendations unless otherwise provided by law." Id. § 320935(d)(2). On February 9, 1995, the Judicial Conference transmitted its report to Congress, in which it proposed alternatives to the amendments. See Fed.R.Evid. 413 historical notes (discussing conference report). The alternatives suggested by the Judicial Conference were not accepted by Congress, and thus Rule 413 became effective 150 days later on July 9, 1995. Id.

Mr. Roberts argues that Rule 413 does not apply because his criminal prosecution "commenced" when he was indicted on June 9, 1995--one month prior to the effective date of Rule 413. The government, on the other hand, argues that Rule 413 is applicable because Mr. Roberts' upcoming trial is itself a "proceeding" which will be "commenced" after Rule 413's effective date. Thus, the issue is whether the phrase "proceedings commenced" refers narrowly, as the district court held, to the single commencement of the overall prosecution by the filing of the indictment, or whether it refers more broadly to the commencement of each of the various stages (i.e., "proceedings") that occur during the prosecution, such as a trial.

We review the district court's legal interpretation of the effective date provision for Fed.R.Evid. 413 de novo. United States v. Diaz, 989 F.2d 391, 392 (10th Cir.1993); United States v. Maltais, 961 F.2d 1485, 1486 (10th Cir.1992). As in all statutory interpretation cases, "the beginning point must be the language of the statute." Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475, 112 S.Ct. 2589, 2594, 120 L.Ed.2d 379 (1992); FDIC v. Canfield, 967 F.2d 443, 445 (10th Cir.) (en banc), cert. dismissed, 506 U.S. 993, 113 S.Ct. 516, 121 L.Ed.2d 527 (1992). Only if the statutory language is ambiguous should a court turn to legislative history as an aid in determining the statute's meaning. O'Connor v. United States Dep't of Energy, 942 F.2d 771, 773 (10th Cir.1991).

Both parties agree the crucial phrase in the statute is the meaning of the term "proceedings." Because Congress did not define this term, its common and ordinary usage may be obtained by reference to a dictionary. Black's Law Dictionary defines "proceedings" as:

The word may be used synonymously with "action" or "suit" to describe the entire course of an action at law or suit in equity from the issuance of the writ or filing of the complaint until the entry of a final judgment, or may be used to describe any act done by authority of a court of law and every step required to be taken in any cause by either party. The proceedings of a suit embrace all matters that occur in its progress judicially.

Term "proceeding" may refer not only to a complete remedy but also to a mere procedural step that is part of a larger action or special proceeding.

Black's Law Dictionary 1204 (6th ed.1990) (citations omitted). Similarly, Webster's defines "proceedings" as: "The course of procedure in a judicial action or in a suit in litigation: legal action; a particular action at law or case in litigation." Webster's Third New International Dictionary 1807 (1993). Quite obviously, these dictionary definitions fail to...