United States v. Lane

          ORDER

          G. MURRAY SNOW CHIEF UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Defendant Bo Lane's Motion to Preclude Propensity Evidence (Doc. 125). For the following reasons the motion is denied without prejudice.

         BACKGROUND

         On May 24, 2019, the Government filed its Notice of Intent to Introduce Evidence Pursuant to Fed.R.Evid. 414 (Doc. 124). In the Notice, the Government indicates that it plans to introduce testimony from S.B., a twenty-one-year-old woman, who will testify that Defendant “put his penis in her mouth” on multiple occasions when she was between five and seven years old. (Doc. 124 at 2.) The Government intends to introduce this evidence under Federal Rule of Evidence 414.

         DISCUSSION

         Rule 414 provides that “[i]n a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.” Fed.R.Evid. 414(a). The government is required to disclose any such evidence “at least 15 days before trial or at a later time that the court allows for good cause.” Id. (b).

         Evidence proffered under Rule 414 must undergo Rule 403 scrutiny. Rule 403 allows courts to “exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury.” Fed.R.Evid. 403. “Rule 414 is not a blank check entitling the government to introduce whatever evidence it wishes, no matter how minimally relevant and potentially devastating to the defendant.” United States v. LeMay, 260 F.3d 1018, 1022 (9th Cir. 2001). However, so long as Rule 403 is applied to adequately safeguard a defendant's right to a fair trial, “there is nothing fundamentally unfair about the allowance of propensity evidence under Rule 414.” Id. at 1026.

         As an initial matter, the Government's notice of its intent to use Rule 414 evidence was provided more than fifteen days before trial and was therefore timely.

         The Ninth Circuit has articulated several factors to consider when determining whether to admit evidence of a defendant's prior acts of sexual misconduct. Factors include:

(1) the similarity of the prior acts to the acts charged, (2) the closeness in time of the prior acts to the acts charged, (3) the frequency of the prior acts, (4) the presence or lack of intervening circumstances, and (5) the necessity of the evidence beyond the testimonies already offered at trial.

Id. at 1027-28 (quoting Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1268 (9th Cir. 2000)) (quotation marks omitted).

         Similarity of the prior acts to the acts charged.

         The testimony the Government seeks to introduce from S.B. consists of testimony that Defendant engaged in prior conduct that is identical to the conduct charged in Counts One, Two, and Five of the superseding indictment-i.e., Defendant allegedly made penile-oral contact with S.B., Jane Doe 1, and Jane Doe 2. Both the prior and charged conduct allegedly took place in Defendant's home. The alleged victims were all young girls at the time of the alleged conduct. Because the conduct alleged by the victims is essentially identical, this factor favors admission of S.B.'s testimony. See Id. at 1028 (noting that evidence of a defendant's prior acts of child molestation were “highly relevant” because the prior conduct and the charged conduct were of the same nature and the victims were of similar ages).

         The closeness in time of the prior ...