United States v. Raymond

• Decision Date: 10 October 2012
• Docket Number: No. 10–2346.,10–2346.
• Citation: 697 F.3d 32
• Parties: UNITED STATES of America, Appellee, v. James RAYMOND, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

697 F.3d 32

UNITED STATES of America, Appellee,

v.James RAYMOND, Defendant, Appellant.

No. 10–2346.

United States Court of Appeals,First Circuit.

Heard Sept. 12, 2012.

Decided Oct. 10, 2012.

Richard L. Hartley, with whom Law Office of Richard Hartley was on brief, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Richard W. Murphy, Attorney for the United States, acting under authority conferred by 28 U.S.C. § 515, and Thomas E. Delahanty II, United States Attorney, were on brief, for appellee.

Before HOWARD, RIPPLE ^* and SELYA, Circuit Judges.

SELYA, Circuit Judge.

A federal grand jury in the District of Maine handed up an indictment that charged an elementary-school music teacher with two counts of transporting a minor with intent to engage in criminal sexual activity. See18 U.S.C. § 2423(a). Following a bench trial, the district court found the teacher guilty and imposed a twelve-year incarcerative sentence. The teacher appeals. After careful consideration of this tawdry tapestry, we affirm.

I. BACKGROUND

Because the conviction in this case followed a bench trial, we rehearse the facts as supportably found by the district court. See United States v. Raymond, 710 F.Supp.2d 161, 162–64 (D.Me.2010).

From 2003 to 2007, defendant-appellant James Raymond, a 29–year–old man, toiled as an elementary-school music teacher in Auburn, Maine. On two different occasions in July and August of 2007, he invited an eleven-year-old pupil and her nine-year-old sister to Canobie Lake Park, an amusement park in Salem, New Hampshire. On each occasion he drove the girls, unaccompanied by any other adult, from their family's home in Maine to the park.

The district court found that at least one of the defendant's motives for these trips was “sexual contact with the eleven-year-old if the opportunity should arise.” Id. at 162–63. During the July trip, the defendant touched the eleven-year-old's buttocks three times. Id. at 162. He apologized each time that this occurred. During the August trip, the defendant touched the eleven-year-old's buttocks once again. Id. at 163. The district court determined that the buttocks-touching incidents were intentional and carried out for the purpose of sexual gratification. Id. at 162–64.

In adjudging the defendant guilty, the district court attached decretory significanceto four pieces of evidence: the victim's testimony; other students' testimony about a June 2007 school-sponsored bus trip to Canobie Lake during which they observed the defendant rubbing his hand on the victim's legs; the testimony of another young girl who stated that the defendant “touched her buttocks under her skirt at school” in October 2007; ¹ and a videotaped interview with police in which the defendant discussed “his physical urge to touch young girls' buttocks” and his habit of “masturbating once or twice a week about kids.” Id. at 163 (internal quotation marks omitted). With respect to the June 2007 bus trip, the court also noted that the victim herself testified that the defendant “put his hand inside her shirt on her belly and ... on the back of her leg toward her butt.” Id.

Following the defendant's conviction, the probation department prepared a presentence investigation report (PSI Report). The final version of the PSI Report set the advisory guideline sentencing range (GSR) at 262 to 327 months. The district court imposed a below-the-range prison sentence of twelve years. This timely appeal ensued.

II. ANALYSIS

In this venue, the defendant advances three claims of error. We discuss these claims sequentially.

A. Rule 404(b) Evidence.

The defendant argues that the district court improperly admitted evidence of both his contact with the victim during the June 2007 bus trip and his inappropriate conduct with another young girl in October of that year. ² The admission of both of these pieces of evidence implicates Federal Rule of Evidence 404(b) and engenders review for abuse of discretion. United States v. Varoudakis, 233 F.3d 113, 118 (1st Cir.2000).

At the time of the defendant's trial in 2010, Rule 404(b) provided: ³

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

The admission of prior bad acts evidence in this case fits within the confines of Rule 404(b). We explain briefly.

The statute of conviction provides in relevant part:

A person who knowingly transports an individual who has not attained the age of 18 years in interstate ... commerce, ... with intent that the individual engage ... in any sexual activity for which any person can be charged with a criminal offense, shall be [punished as provided by law].

18 U.S.C. § 2423(a). Under this statute, the government does not need to prove an exclusive intent to engage in the proscribed activity. It suffices if such an intent is one of the purposes of the interstatetransportation. United States v. Ellis, 935 F.2d 385, 390 (1st Cir.1991).

In the case at hand, the district court found that the defendant's activities were chargeable under both New Hampshire law and Maine law. See Raymond, 710 F.Supp.2d at 166–67 (citing N.H.Rev.Stat. Ann. §§ 632–A:3(III), 632–A:1(IV) and Me.Rev.Stat. Ann. tit. 17–A, §§ 260(1)(C), 251(1)(G)). Moreover, there was no question that the trips with the victim and her younger sister actually occurred; the defendant conceded as much. The pivotal issue, then, was the defendant's intent.

With this in mind, the government asked the court in a pretrial motion, seeFed.R.Evid. 404(b) (mandating advance notice of the government's intention to offer Rule 404(b) evidence in a criminal case), for leave to present Rule 404(b) evidence (including the evidence about which the defendant complains on appeal). The government maintained that this evidence tended to show the defendant's intent to engage in unlawful sexual activity during the July and August 2007 trips.

The defendant opposed this proffer. The court overruled the defendant's objection in relevant part and authorized the government to offer the testimony challenged on appeal. It is this ruling that the defendant now assails.

There is, however, a threshold question. The government insists that the defendant failed to preserve his right to challenge this evidence on appeal because he did not renew at trial his objection to its admissibility. We addressed a similar question in United States v. Griffin, 818 F.2d 97 (1st Cir.1987). There, we concluded that, in order to preserve a challenge to an evidentiary ruling for appeal, “a party must obtain the order admitting or excluding the controversial evidence in the actual setting of the trial,” even if a conditional pretrial ruling was previously made. Id. at 105. We reached this conclusion by analogy to Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), in which the Supreme Court held that “to raise and preserve for review [a] claim of improper impeachment with a prior conviction, a defendant must testify” at trial, notwithstanding an earlier in limine ruling. Id. at 43, 105 S.Ct. 460.Griffin is still good law: “[i]t is settled in this circuit that, when the district court tentatively denies a pretrial motion in limine, or temporizes on it, the party objecting to the preliminary in limine determination must renew his objection during the trial, and the failure to do so forfeits any objection.” United States v. Noah, 130 F.3d 490, 496 (1st Cir.1997); accord United States v. Joost, 133 F.3d 125, 129 (1st Cir.1998).⁴

In this instance, the defendant has eschewed any response to the government's argument that the pretrial ruling, by itself, failed to preserve his claim of error. The reason for the defendant's silence is obvious: the pretrial ruling was not definitive, see supra note 4, and the defendant was therefore obliged to object, on pain of forfeiture, when the government sought to introduce the challenged evidence at trial. Because he did not do so, his claim of error is forfeit.

Of course, even forfeited claims may be reviewed for plain error. Puckett v. United States, 556 U.S. 129, 134–35, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Here, however, there was no error, plain or otherwise.

Even if the defendant had preserved his claim for review, the district court did not abuse its discretion in allowing the challenged evidence. While bad acts evidence may not be admitted either to show a defendant's deplorable character or his propensity to act in unattractive ways, such evidence is admissible to show, among other things, his intent and the absence of mistake. SeeFed.R.Evid. 404(b).

The Supreme Court has explained that, in evaluating the admissibility of Rule 404(b) evidence, a court initially must decide whether the evidence submitted “is probative of a material issue other than character.” Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). To implement this directive, we have required that Rule 404(b) evidence be shown to “have special relevance to an issue in the case such as intent or knowledge.” Varoudakis, 233 F.3d at 118 (internal quotation marks omitted). In evaluating this showing, the timing of the proffered bad act and its degree of resemblance to the conduct charged in the case are relevant considerations. See id. at 119.

We hasten to add that special relevance is a necessary but not a sufficient condition for the admissibility of Rule 404(b) evidence. Such evidence also must pass through the filter of Federal Rule of Evidence 403, which demands that the probative value of the evidence must substantially outweigh any danger of unfair prejudice. Fed.R.Evid. 403. This balancing is best performed by the trial judge, who has an intimate familiarity with the ebb and flow of the...