United States v. Regalado

          OPINION AND ORDER

          CLAIRE V. EAGAN UNITED STATES DISTRICT JUDGE

         Now 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.

         I.

         On June 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).

         The 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.^[1] 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.

         The 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.

         M.S. 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.

         Fourteen-year-old I.U.F., ^[2] 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.

         Twelve-year-old 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.

         On 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)).

         Plaintiff 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.

         II.

         Rule 414

         The 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 Cir. 1997)).

         The 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 admission[:]”

(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 relevant.

Benally, 500 F.3d at 1090; see also United States v. Mercer, 653 Fed. App'x. 622, 626 (10th Cir. 2016) (unpublished)^[3] (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).

         Rule 404(b)

         Rule 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 character.

. . .

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).

         Rule 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).

         III.

         Rule 414

         Plaintiff 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.

         Rule 414 applies to acts of child molestation. Subsection (d)(2) of that Rule defines ...