United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE
before the Court is plaintiff's notice of intent to offer
evidence pursuant to Federal Rules of Evidence 414 and 404(b)
(Dkt. # 18). Plaintiff seeks to introduce evidence under
Federal Rule of Evidence 414 of three alleged prior acts of
child molestation in order to prove defendant's
propensity to commit the offense of attempted enticement of a
child. Plaintiff also seeks to introduce evidence, under
Federal Rule of Evidence 404(b), as to those as well as two
other minors. Defendant has filed a response (Dkt. # 21). The
Court held an evidentiary hearing on November 4, 2019. Prior
to the evidentiary hearing, defendant filed two motions in
limine (Dkt. ## 24, 25). The first motion in limine (Dkt. #
24) will be set for hearing, and the Court will rule
following the hearing. The second motion in limine (Dkt. #
25) will be addressed herein.
6, 2019, a grand jury returned an indictment (Dkt. # 2)
charging defendant with one count of attempted enticement of
a minor to engage in illegal sexual activity, in violation of
18 U.S.C. § 2422(b) (count one), and one count of
possession of a false lawful permanent resident card, in
violation of 18 U.S.C. §1546(a) (count two). As to count
one, it is a criminal offense to use a means or facility of
interstate commerce to persuade, induce, entice, or coerce or
attempt to persuade, induce, entice, or coerce any individual
less than eighteen years of age to engage in sexual activity
for which any person can be charged with a crime. 18 U.S.C.
§ 2422(b). The Tenth Circuit has stated that the
government must prove the following four elements to sustain
a conviction under this statute: “(1) use of a facility
of interstate commerce; (2) to knowingly persuade, induce,
entice, or coerce; (3) any individual who is younger than 18;
(4) to engage in any sexual activity for which any person can
be charged with a criminal offense, or attempting to do
so.” United States v. Faust, 795 F.3d 1243,
1248 (10th Cir. 2015).
allegations upon which count one of the indictment is based
are as follows: On April 28, 2019, eleven-year-old D.F.'s
mother, Dunia F., discovered Facebook messages of a sexual
nature between D.F. and defendant. Dkt. # 18, at 2. Defendant
had previously resided in “Rocio's house, ”
where D.F. had stayed. Id. at 3. Dunia then took over
D.F.'s Facebook account and began responding to
defendant's messages, pretending to be D.F. Id.
During the conversation, defendant sent nude photographs of
himself, requested sexually explicit photographs, discussed
previous touching, and proposed sexual intercourse in
exchange for $200. Id. Defendant also made a
Facebook call to D.F., during which Dunia overheard defendant
mention prior sexual contact with D.F., offer to marry D.F.
when she turned eighteen, offer money in exchange for sexual
intercourse, and made D.F. swear not to tell anyone so that
he would not go to jail. Id. On April 29, 2019,
Dunia informed the Tulsa Police Department (TPD) of
defendant's actions. Id. The TPD Cyber Crimes
Unit subsequently took over D.F.'s Facebook account in an
undercover capacity. Id. The officers received a
video of defendant masturbating and received repeated
solicitations of D.F. to engage in sexual intercourse for
money. Id. The undercover officers told defendant
that they (meaning D.F.) would leave school and meet him at a
local QuikTrip on the afternoon of May 1, 2019. Id.
Defendant was subsequently arrested while attempting to meet
D.F. at the QuickTrip. Id. After being read his
Miranda rights, defendant explained that he believed
it was D.F.'s mother with whom he was communicating,
rather than D.F. Id.
prior uncharged acts of child molestation that plaintiff
seeks to introduce at trial are as follows: After
defendant's arrest, D.F. took part in a forensic
interview at the Child Advocacy Center. Id. D.F.
reported two incidents of molestation by defendant that
occurred when she was nine-years-old and temporarily residing
with Rocio, from whom defendant rented a room. Id.
In both instances, D.F. stated that defendant touched her
breast area and genitals under her clothes, and then forced
her to touch his penis. Id. at 3-4. Defendant gave
D.F. ten dollars after the first incident and told her that
if she told her mother what had happened, she would get into
trouble and her mother would hit her. Id. at 4. D.F.
described the second incident as occurring while she was
watching a movie on the couch. Id. Finally, D.F.
stated that she had heard that defendant had exposed himself
to her cousins, M.S. and T.S. Id.
and T.S., the second and third minors, were staying at
Rocio's house at the time of their alleged abuse.
Id. During a forensic interview, seven-year-old M.S.
informed the Child Advocacy Center that, while staying at
Rocio's house two years prior to the interview, defendant
would frequently touch her face while watching television in
the house. Id. Defendant also allegedly touched
M.S.'s genitals and buttocks over the clothes.
Id. M.S. stated that she saw defendant touch her
sister, T.S., in the same places and take her into the
bathroom with him. Id. Five-year-old T.S. was also
forensically interviewed, but was unresponsive to
questioning. Id. Yolanda S., the mother of M.S. and
T.S., stated in an interview with the TPD that she walked in
on defendant sitting next to T.S. with his hand next to her
in an obscured location; when she arrived, defendant pulled
his hand away. Id. Yolanda at another time walked to
the first floor of Rocio's house and saw defendant with
both T.S. and M.S., with his belt unbuckled, pulling up his
pants. Id. at 4-5. When asked what he was doing,
defendant informed Yolanda that he had been sleeping.
Id. at 5.
I.U.F.,  the fourth minor, was forensically
interviewed on April 29, 2019. Id. I.U.F. was also
staying with Rocio at the time of defendant's alleged
conduct toward her. Id. I.U.F. described several
solicitations and grooming attempts by defendant.
Id. Defendant allegedly offered to give her a
cellular telephone if she would go into the basement of the
house with him for a kiss. Id. I.U.F. refused, but
defendant continued to tell her on multiple occasions that
she should have boyfriends his age because he would give her
phones and money. Id.
C.C., the fifth minor, was forensically interviewed on May 3,
2019. Id. She was living in Rocio's house, in a
separate room from defendant, at the time of defendant's
alleged conduct toward her. Id. C.C. stated that on
one occasion, defendant gave her five dollars and told her
not to tell her father about the money. Id. Both
C.C. and her father noticed that defendant would often stare
at C.C., and her father would always accompany her when she
went to the basement of the house where defendant lived.
Id. C.C.'s father would stand guard outside of
the bathroom when C.C. would shower. Id.
November 4, 2019, the Court held an evidentiary hearing on
the notice of intent, during which plaintiff introduced
plaintiff exhibits 1-7(a). These include: police report
excerpts, including witness statement summaries from minors
and mothers (plaintiff exhibit 1); a translated, transcribed
phone call among defendant, D.F., and Dunia (plaintiff
exhibit 2); a translated Facebook conversation among D.F.,
Dunia, and an undercover officer (plaintiff exhibit 3); an
interview of D.F. (plaintiff exhibit 4); an interview diagram
from D.F. (plaintiff exhibit 4(a)); an interview of M.S.
(plaintiff exhibit 5); a translation of the interview of M.S.
(plaintiff exhibit 5(a)); an interview diagram from M.S.
(plaintiff exhibit 5(b)); an interview of I.U.F. (plaintiff
exhibit 6); a translation of the interview of I.U.F.
(plaintiff exhibit 6(a)); an interview of C.C. (plaintiff
exhibit 7); and a translation of the interview of C.C.
(plaintiff exhibit 7(a)).
seeks to introduce under Rule 414 evidence of D.F.'s,
M.S.'s, and T.S.'s alleged abuse in order to prove
defendant's propensity to commit the offense of attempted
enticement of a child and, alternatively, under Rule 404(b)
to show motive, intent, plan, and absence of mistake. Dkt. #
18, at 1. Plaintiff argues that the acts as to D.F., M.S.,
and T.S. are intrinsic to the offense charged. Id.
at 2. Plaintiff seeks to introduce evidence of all five
minors' alleged abuse under Federal Rule of Evidence
404(b) to show motive, intent, plan, and absence of mistake.
Id. at 1. Defendant argues that the evidence is not
sufficiently similar to or relevant to the crime charged, and
is unduly prejudicial. Dkt. # 21, at 9-10, 11-14.
Federal Rules of Evidence generally prohibit “the
admission of evidence for the purpose of showing a
defendant's propensity to commit bad acts.”
United States v. Benally, 500 F.3d 1085, 1089 (10th
Cir. 2007) (citing Fed.R.Evid. 404(a)). However, Rule 414(a)
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.” “Courts are to
‘liberally' admit evidence of prior uncharged sex
offenses.” Benally, 500 F.3d at 1090 (quoting
United States v. Meacham, 115 F.3d 1488, 1492 (10th
Tenth Circuit has instructed that “evidence of a prior
sexual assault [or child molestation] must meet three
threshold requirements before it may be considered for
(1) the defendant is accused of a crime involving sexual
assault or child molestation,
(2) the evidence proffered is evidence of the defendant's
commission of another offense or offenses involving sexual
assault or child molestation, and (3) the evidence is
Benally, 500 F.3d at 1090; see also United
States v. Mercer, 653 Fed. App'x. 622, 626 (10th
Cir. 2016) (unpublished) (applying these factors to child
molestation). Relevant evidence has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Fed.R.Evid.
401. However, even relevant evidence under Rule 414 “is
subject to the Rule 403 balancing test, which permits the
exclusion of relevant evidence, if its probative value is
substantially outweighed by the danger of unfair
prejudice.'” Benally, 500 F.3d at 1090
(quoting Fed.R.Evid. 403).
In applying the Rule 403 test to Rule 414 evidence, the
district court should weigh ‘1) how clearly the prior
act has been proved; 2) how probative the evidence is of the
material fact it is admitted to prove; 3) how seriously
disputed the material fact is; and 4) whether the government
can avail itself of any less prejudicial evidence'
against ‘1) how likely [it is] such evidence will
contribute to an improperly-based jury verdict; 2) the extent
to which such evidence will distract the jury from the
central issues of the trial; and 3) how time consuming it
will be to prove the prior conduct.
Mercer, 653 Fed. App'x. at 626 (quoting
United States v. Enjady, 134 F.3d 1427, 1433 (10th
Cir. 1998)). The district court must make a “clear
record” of its findings as to the Rule 403 balancing
test. Id. at 1091 (internal quotation omitted). In
doing so, an evidentiary hearing is preferred. See
id. at 1088 (district court affirmed after holding
an evidentiary hearing for uncharged offense). Further,
“[i]n applying the Enjady test, no single
factor is dispositive.” Mercer, 653 Fed.
App'x. at 626 (internal quotation marks omitted).
404(b) provides, in pertinent part:
Evidence of a crime, wrong or other act is not admissible to
prove a person's character in order to show that on a
particular occasion the person acted in accordance with the
. . .
This evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.
Fed. R. Evid. 404(b). In addition, the Tenth Circuit has
“consistently held that evidence of ‘modus
operandi' or a common plan or scheme may be properly
submitted under 404(b).” United States v.
LaFlora, 146 Fed. App'x. 973, 975 (10th Cir. 2005)
(unpublished); see also United States v. Isabella,
918 F.3d 816, 840 (10th Cir. 2019).
404(b) does not apply to evidence that is admitted as proof
of the charged conduct; it applies only to evidence of acts
extrinsic to the charged crime. United States v.
Orr, 864 F.2d 1505, 1510 (10th Cir. 1988).
“‘An uncharged act [is not] extrinsic if it was
part of the scheme for which a defendant is being prosecuted,
or if it was ‘inextricably intertwined' with the
charged crime such that witness' testimony ‘would
have been confusing and incomplete without mention of the
prior act.'” United States v. DeLuna, 10
F.3d 1529, 1532 (10th Cir. 1993) (quoting United States
v. Record, 873 F.2d 1363, 1372 n.5 (10th Cir. 1989)). In
weighing the admissibility of evidence under Rule 404(b), the
Court must consider four factors: (1) whether the evidence is
offered for a proper purpose, (2) its relevancy, (3) whether
the probative value of the evidence is substantially
outweighed by its prejudicial effect, and (4) the court must
give a limiting instruction if the defendant so requests.
Huddleston v. United States, 485 U.S. 681, 691
(1988); United States v. Mares, 441 F.3d 1152, 1156
(10th Cir. 2006); United States v. Zamora, 222 F.3d
756, 762 (10th Cir. 2000).
argues that evidence of defendant's prior conduct toward
D.F., M.S., and T.S. should be admitted at trial under Rule
414. Dkt. # 18, at 1.
414 applies to acts of child molestation. Subsection (d)(2)
of that Rule defines ...