Federal Evidence Review

In prosecution for traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a minor trial, admitting the defendant’s prior conviction 22 years earlier for the attempted rape of a 12 year-old under FRE 414(a) and FRE 403, in United States v. Kelly, 510 F.3d 433 (4th Cir. Dec. 12, 2007) (No. 06-5173)

Under FRE 414, Congress established standards to admit evidence of similar crimes in child molestation cases. FRE 414(a) provides that in criminal child molestation cases, “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.”. Evidence that may be barred under FRE 404(b), may be admissible under the more generous standards of FRE 414. As previously noted, courts have applied different standards in determining whether to admit FRE 414 evidence. See No Presumptive Time Limits Apply to FRE 414 Prior Child Molestation Evidence. A Fourth Circuit case noted a split between the Ninth and Seventh Circuits.

In the case, defendant Kelly, a long-haul trucker, regularly met with a prostitute on one of his routes. When he expressed interest in having sex with a 12-year-old virgin as his “birthday present,” she notified local law enforcement, who gave her a recording device. After recorded conversations captured his plan, he was arrested. At trial, the government introduced the defendant’s prior 1984 conviction for the attempted rape of a 12 year-old under FRE 414(a). The defendant was convicted and was sentenced to 63 months in prison. On appeal, he challenged the admission of his prior conviction.

The Fourth Circuit affirmed the admission of his prior conviction under FRE 414 which permits prior child molestation offenses to be admitted in child molestation prosecutions. As the circuit noted, FRE 414 embodies the congressional policy decision “that this propensity evidence ‘is typically relevant and probative.’” Kelly, 510 F.3d at 437 (quoting 140 Cong. Rec. S12990 (daily ed. Sept. 20, 1994) (statement of Sen. Dole); citing United States v. LeCompte, 131 F.3d 767, 769 (8th Cir. 1997) (noting the “strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible”)).

However, as with other evidence, relevant evidence under FRE 414 remains subject to admission under FRE 403. The Fourth Circuit noted that different standards were applied in the Ninth and Seventh Circuits:

“There is a circuit split on whether a district court must address these or other specific factors and make findings. The Ninth Circuit requires this, whereas the Seventh Circuit adopts a more flexible approach and does not dictate a specific analysis. Compare [United States v.] LeMay, 260 F.3d [1018,] 1027-28 [(9th Cir. 2001)], with [United States v.]
Hawpetoss, 478 F.3d [820,] 825-26 [(7th Cir. 2007)]. Although disposition of this case does not require choosing between these views, the Seventh Circuit’s more flexible approach seems preferable in view of this circuit’s general view that a district court has ‘wide discretion’ in admitting or excluding evidence under Rule 403. See United States v. Heyward, 729 F.2d 297, 301 n.2 (4th Cir. 1984). This deferential standard reflects the fact that ‘a district court is much closer than a court of appeals to the “pulse of a trial.’” See United States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992).”

Kelly, 510 F.3d at 437 n.3. The Fourth Circuit identified some non-exclusive factors:

“In applying the Rule 403 balancing test to prior offenses admissible under Rule 414, a district court should consider a number of factors, including (i) the similarity between the previous offense and the charged crime, (ii) the temporal proximity between the two crimes, (iii) the frequency of the prior acts, (iv) the presence or absence of any intervening acts, and (v) the reliability of the evidence of the past offense.…Importantly, we defer to the district court’s Rule 403 balancing using these or other factors ‘unless it is an arbitrary or irrational exercise of discretion.’” Kelly, 510 F.3d at 437 (quoting United States v. Heater, 63 F.3d 311, 321 (4th Cir. 1995) (quoting Garraghty v. Jordan, 830 F.2d 1295, 1298 (4th Cir. 1987); other citations omitted).

Kelly, 510 F.3d at 437 n.3. Under these factors, there was no abuse of discretion in admitting the prior conviction:

“The similarity between the two offenses was striking. Kelly’s past conviction was for attempting to rape a 12 year-old, and he was charged here with traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a 12 year-old. And while Kelly’s prior conviction was 22 years prior to the crimes charged, this fact alone, given the factual similarities in the offenses, does not render the conviction inadmissible.”

Kelly, 510 F.3d at 437 (footnote omitted). The evidence was not unfairly prejudicial. The circuit observed that the government did not seek “inflammatory testimony about Kelly’s prior conviction, but instead presented only the official conviction record,” which served to mitigate the prejudicial impact.” Kelly, 510 F.3d at 437.

The Kelly case underscores the permissive acceptance of conduct qualifying under FRE 414. The remoteness of the prior conviction was not a bar to its introduction. Finally, the circuits have taken different approaches to admit this type of evidence.