United States District Court, D. Arizona
MURRAY SNOW CHIEF UNITED STATES DISTRICT JUDGE.
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.
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 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).
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.
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.
Ninth Circuit has articulated several factors to consider
when determining whether to admit evidence of a
defendant's prior acts of sexual misconduct. Factors
(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).
of the prior acts to the acts charged.
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).
closeness in time of the prior ...