United States v. Arias

• Citation: 936 F.3d 793
• Decision Date: 26 August 2019
• Docket Number: No. 18-2604,18-2604
• Parties: UNITED STATES of America Plaintiff - Appellee v. Ira Alan ARIAS Defendant - Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

936 F.3d 793

UNITED STATES of America Plaintiff - Appellee

v.Ira Alan ARIAS Defendant - Appellant

No. 18-2604

United States Court of Appeals, Eighth Circuit.

Submitted: June 13, 2019

Filed: August 26, 2019

Rehearing and Rehearing En Banc Denied December 4, 2019^*

Counsel who presented argument on behalf of the appellant was Jason J. Tupman, AFPD, of Sioux Falls, SD. The following attorney(s) appeared on the appellant brief; Edward Albright, AFPD, of Pierre, SD., Rachael Steenholdt, AFPD, of Fargo, ND.

Counsel who presented argument on behalf of the appellee was Jeremy Robert Jehangiri, AUSA, of Sioux Falls, SD. The following attorney(s) appeared on the appellee brief; Jeremy Robert Jehangiri, AUSA, of Sioux Falls, SD.

Before COLLOTON, KELLY, and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

Ira Alan Arias was convicted by a jury of three counts of aggravated sexual abuse of a child. Arias raises three issues on appeal. First, he argues that the trial court erred in permitting two witnesses to offer Federal Rule of Evidence 413 testimony because their allegations were not substantially similar to the instant offense and were subject to exclusion under Federal Rule of Evidence 403 as unfairly prejudicial to him. Second, he argues that a mistrial was required when a government witness blurted a statement that violated an order in limine prohibiting references to Arias’s incarceration. Third, he argues that the district court abused its discretion by permitting testimony by the victim that she had been diagnosed with additional mental health issues post-offense while failing to conduct an in camera review of mental health records related to the diagnosis. We affirm the district court on the first two issues, but remand to the district court for an in camera review of the mental health records to determine whether refusal to allow access to the records was harmless.

I. Background

Arias attended his sister’s wedding on May 2, 2015. His minor niece, K.P., also attended the wedding. K.P. later alleged that Arias sexually assaulted her in the hotel room they were sharing for the wedding. In particular, K.P. alleged that Arias groped her genitals before forcibly raping her. K.P. reported that she also suffered scarring on her right arm from being pinned against a bed frame. There were no other witnesses to the assault.

Following a voluntary dismissal without prejudice of a second superceding indictment, the grand jury indicted Arias on April 4, 2018, charging him with three counts of Aggravated Sexual Abuse of a Child, in violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(A), (B), and (C). The trial commenced on April 16, 2018.

Prior to trial, the district court ruled on several motions. The first dispute centered around K.P.’s mental health records. Arias sought the production of K.P.’s mental health records from a facility in Tennessee where K.P. reportedly received treatment. Arias was aware of the records because K.P.’s grandmother stated that K.P. was receiving treatment at the facility. The court denied the request deeming it a "fishing expedition." Arias next moved for production of mental health records pre-dating the alleged offense date. The district court denied the second motion, again finding that the requests appeared to be a "fishing expedition" and that K.P.’s mental health records were protected by the psychotherapist-patient privilege. At no point during the relevant proceedings was the government in possession of the requested treatment records. The court did, however, rule that Arias would be allowed to question the victim regarding her diagnosis of bipolar disorder

which pre-dated the alleged assault.

The government gave notice of five witnesses it intended to call to testify under Federal Rule of Evidence 413. Arias moved to strike each of the witnesses, contending that the testimony was not sufficiently similar and that any probative value was substantially outweighed by its unfair prejudice. After reviewing the proposed testimony, the district court excluded three of the witnesses’s testimony as too dissimilar from the current offense to "establish a pattern of behavior" under Rule 413. The district court permitted the proposed testimony from the remaining two witnesses. Each of those two witnesses was prepared to testify that, like K.P., she knew Arias and was sexually assaulted by him. Each witness would also testify: that Arias groped the witness’s breasts; that he otherwise used force throughout the assault; that he used alcohol on the night of the assault; that the assault happened in the early morning hours; and that he committed the assault in a location where the witness was isolated. The district court held that this testimony was sufficiently similar to the instant offense to support admission. Finally, the district court entered an order in limine prohibiting the introduction of evidence regarding Arias’s incarceration or recent release from incarceration.

At trial the government sought to introduce the issue of K.P.’s mental health on direct examination. The government began by asking K.P. whether her parents’ divorce had an effect on her health. K.P. responded that she was diagnosed with depression. The government then asked her: "Have you been diagnosed with anything else?" K.P. responded, "Yes. After this incident had happened, not the divorce." Arias’s objection was overruled.

The questioning continued. The government eventually asked the following question: "Since the assault, have you since been diagnosed with something else?" K.P. responded "Yes." Arias’s objection was again overruled. The government followed up, asking "What?", to which K.P. responded, "Anxiety and PTSD."

Arias asked for leave to make a motion outside of the presence of the jury and to strike the answer. In response, the court offered the following instruction:

The Court will instruct you that psychologically – psychological symptoms diagnosed post-incident, post-May of 2015, are extremely limited relevance to you all, if any. What the Court was expecting is something that had been diagnosed prior to May of 2015 as the answer. But the Court does think that the testimony as given can stand.

During recess, Arias objected to the testimony and moved for a mistrial, arguing that it was "a due process violation and a confrontation clause violation" to allow testimony about K.P.’s mental health while denying access to the witness’s mental health records. Arias noted that, without the records, he had no idea whether or not that diagnosis had ever been made. The court denied the motion and stated that it did not believe allowing the statement was "harmful in any significant way to the defendant."

Arias renewed his objection the following day, reiterating the argument that a diagnosis of PTSD by a mental health professional bolstered the credibility of K.P.’s allegations and that fundamental fairness required that the mental health records be produced to allow for effective cross-examination of K.P. on that point.¹ The district court again denied the motion, explaining that allowing testimony about K.P.’s pre-existing mental health issues was sufficient without requiring review of mental health records.

A police officer also testified about the investigation of Arias after the alleged assault of one of the Rule 413 witnesses. During his testimony, he stated that Arias was in custody in 2001 because Arias was "under arrest for a parole violation." Arias objected, arguing that the testimony violated the order in limine prohibiting evidence about his prior incarceration. The court gave the jury the following curative instruction:

Disregard anything about a parole violation. People can be on parole for any small matter. And the fact that he was—had a parole violation isn’t to be considered by you in any way. The answer that the Court was looking for is that he was in custody. The Court will take up any further matters outside the hearing of the jury, but you are instructed to disregard that there was some parole violation.

Arias was convicted on all three counts. The district court sentenced Arias to three concurrent terms of 360 months’ imprisonment to be followed by six years of supervised release. Arias timely appealed.

II. Discussion

A. Admission of Evidence of Prior Sexual Misconduct

"We will not reverse a district court’s evidentiary rulings unless they constitute a clear and prejudicial abuse of discretion." United States v. Holy Bull, 613 F.3d 871, 873 (8th Cir. 2010). A "district court’s balance of the prejudicial and probative impacts of evidence is accorded ‘great deference.’ " United States v. Crow Eagle, 705 F.3d 325, 328 (8th Cir. 2013) (quoting United States v. Pumpkin Seed, 572 F.3d 552, 558 (8th Cir. 2009) ).

Rule 413(a) specifically allows the court to admit evidence that the accused has committed "any other sexual assault." Fed. R. Evid. 413(a). The evidence of prior similar offenses may be considered for all relevant purposes "including the defendant’s propensity to commit such offenses." United States v. Gabe, 237 F.3d 954, 959 (8th Cir. 2001) (citing Fed. R. Evid. 413(a), 414(a) ). Such evidence still must satisfy Federal Rule of Evidence 403, but should be admitted "unless its probative value is ‘substantially outweighed’ by one or more of the factors enumerated in Rule 403, including ‘the danger of unfair prejudice.’ " Id. (quoting United States v. LeCompte, 131 F.3d 767, 769 (8th Cir. 1997) ). Our standard for admitting evidence under Rule 413 recognizes that the rule embodies a "strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible." LeCompte, 131 F.3d at 769.

Under our deferential standard of review, the district court’s decision to admit the testimony of two witnesses who claimed they were sexually assaulted by Arias did not amount to a clear and prejudicial abuse of discretion. The record reflects that the district court engaged in the required balancing test...