In trial for kidnapping resulting in the victim’s death, two of the defendant’s prior state sexual assault convictions were admissible under FRE 413 to show modus operandi; the defendant’s prior conviction for kidnapping was inadmissible because the offense was not similar to a sexual assault under FRE 413; evidence of another sexual assault charge on which the defendant was acquitted was inadmissible as unfairly prejudicial, in United States v. Rodriguez, 581 F.3d 775 (8th Cir. Sept. 22, 2009) (No. 07-1316)
FRE 413 permits in a trial of an “offense of sexual assault” the admission of evidence that the defendant had committed another “offense” of sexual assault, so long as that evidence has a “bearing on any matter to which it is relevant” as to the charged crime. FRE 413. In the years since Congress adopted FRE 413 in 1995, the circuits have addressed a number issues concerning its application. For instance:
- Whether other sexual acts are admissible to show plan or scheme under FRE 404(b) or under FRE 413? See, e.g., United States v. Roberts, 185 F.3d 1125, 1140-42 (10th Cir. 1999) (in trial for sexual abuse of women in the workplace, admitting under FRE 404(b) evidence from six other workers about the defendant’s sexual abuse, even though the witnesses were not victims of charged offenses because this evidence showed a common scheme, noting admissibility under FRE 413 as well)
- How does FRE 413’s requirement of relevance between admitted evidence and charged offenses bear on the similarity, if any, between the two? See, e.g., United States v. Crawford, 413 F.3d 873, 874 (8th Cir. 2005) (in trial for abusive sexual conduct with an eight-year-old, admitting the defendant’s prior conviction for abusive contact with another eight-year-old because the conviction was for “a similar crime” to the one charged)
- How does the FRE 403 balance of probative value with prejudicial effect apply to FRE 413 evidence? See, e.g., United States v. Julian, 427 F.3d 471, 485 (7th Cir. 2005) (FRE 413 involves application of FRE 403 “to exclude evidence of a prior assault if its probative value is substantially outweighed by the danger of unfair prejudice”)
- Is a prior sexual offense admissible under FRE 413 even if that prior offense did not result in a conviction? See, e.g., United States v. Guidry, 456 F.3d 493, 503 (5th Cir. 2006) (admitting in former police officer’s sexual assault trial testimony of a victim that she was assaulted by the defendant, although his offense was never charged; witness’s testimony was not substantially outweighed by prejudice to defendant despite the lack of a conviction or even the lack of charges)
In a recent case, the Eighth Circuit had an opportunity to address a number of these issues concerning the admissibility of evidence under FRE 413. While the case broke little new ground in its disposition of the issues, it did provide a simple example of how numerous questions can arise from a single incident.
In the case, defendant Rodriguez was charged with kidnapping victim Sjodin in November 2003. In April 2004, the victim’s body was found in a drainage ditch in another state, apparently sexually assaulted but having died from asphyxiation. Suspicion focused on the defendant, based on his past convictions as a sex offender, his admitted physical proximity to the location of various incidents in the crime, and hair and fiber samples from the victim’s body that matched the defendant and his possessions. Rodriguez, 581 F.3d at 783-84.
In the bifurcated trial, the jury convicted the defendant of the charged offense and recommended a sentence of death. The defendant appealed on numerous grounds, including that the trial court erred in admitting the defendant’s prior sexual abuse offenses under FRE 413 evidence.
The Eighth Circuit found the trial court did not abuse its discretion in admitting some prior sexual abuse evidence and excluding other evidence. During the guilt phase of the trial, the prosecution sought to admit evidence of defendant’s three prior sexual assaults under state law and his acquittal of one charge of sexual assault as well. The prosecution argued that all four incidents showed the defendant’s modus operandi; specifically, that the defendant would approach young women, when alone, and using violence (or the threat of violence) sexually assault (or attempt to sexually assault) them. The trial court admitted only two of the prior convictions. The court excluded one prior conviction for an attempted kidnapping as not admissible under FRE 413 because it was not in the nature of a sexual offense required for admission under the rule. The trial judge also excluded evidence that the defendant had been acquitted of a sexual abuse crime because it was unduly prejudicial under FRE 403 and FRE 413 in relation to its minimal probative value.
The circuit found that the trial court did not abuse its discretion in its dispositions of the prior crimes evidence. In doing so, the circuit briefly addressed the issues identified in the bulleted propositions above:
- Whether other sexual acts are admissible to show plan or scheme under FRE 404(b) or under FRE 413? The circuit noted there was no error in admitting two prior sexual abuse convictions in that they demonstrated the defendant’s modus operandi under FRE 413. The evidence “allow[ed] the victims to testify about Rodriguez’s conduct. In both cases, Rodriguez approached a young woman by herself, forced her into a vehicle under threat of violence, and sexually assaulted her. Here, the government alleged Rodriguez approached Sjodin while alone in a parking lot, abducted her at knife point, forced her into a car, and sexually assaulted her before murdering her.” Rodriguez, 581 F.3d at 796.
- How does FRE 413’s requirement of relevance between admitted evidence and charged offense bear on the similarity, if any, between the two? In Rodriguez, the circuit focused on the FRE 413 requirement that the evidence of the prior acts be “relevant.” As explained by the circuit, “[a] relevant sexual assault is one committed in a manner similar to the charged offense. The district court admitted evidence of the 5438 and 5447 convictions under Rule 413, but excluded evidence of the 6192 conviction and the acquitted count. The court reasoned that Rodriguez’s conduct in the 6192 case showed a kidnapping attempt, not a sexual assault, and thus was insufficiently similar and therefore not relevant.” Rodriguez, 581 F.3d at 796. On the other hand, the prior crimes evidence of the 5438 and 5447 convictions were relevant because they were sufficiently similar. Rodriguez, 581 F.3d at 796 (citing United States v. Horn, 523 F.3d 882, 888 (8th Cir. 2008) (affirming the admission, under FRE 413, of a prior rape conviction, despite significant age differences between the victim of the prior conviction and those of the two charged offenses because all incidents involved sexual assaults of unconscious victims where the attacks ceased when the victims reacted”)
- How does the FRE 403 balance of probative value and prejudicial impact apply to FRE 413 evidence? The circuit noted that the government proffered evidence that the defendant had been charged in a sexual abuse case but that he was acquitted in the case. The exclusion of this evidence was not an abuse of discretion because the trial court, in making its FRE 413 assessment was “[a]pplying Rule 403 … concluding it [the acquitted charge evidence] was unfairly prejudicial to admit evidence of a crime where the jury did not convict.” Rodriguez, 581 F.3d at 796 (citation omitted).
- Is a prior sexual offense admissible under FRE 413 even if that prior offense did not result in a conviction? As explained in the prior item regarding the role of the FE 403 balancing test, the circuit found no abuse of discretion in the district judge’s finding that the acquitted case evidence was unfairly prejudicial under FRE 403. By implication, the circuit would find that otherwise the evidence is admissible, despite the lack of a conviction.
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