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United States v. Fenn

United States District Court, E.D. Virginia, Alexandria Division

July 12, 2016

UNITED STATES OF AMERICA,
v.
ROBERT FENN, Defendant.

          MEMORANDUM OPINION

          JAMES C. CACHERIS UNITED STATES DISTRICT COURT JUDGE

         This matter is now before the Court on the Government's Motion in Limine to Exclude Testimony Regarding Alleged Sexual Assault Unrelated to This Case [Dkt. 183]. The Government seeks to exclude, pursuant to Federal Rule of Evidence 403, testimony from two former stepdaughters of the Defendant Robert Fenn's ("Defendant") father, William Fenn, who are expected to testify that William Fenn sexually abused them over 45 years ago, when the stepdaughters were children.[1]

         I. Legal Standard

         Federal Rule of Evidence 404(b) provides that evidence of an individual's "prior ‘crimes, wrongs, or acts' is generally admissible except when it is offered to prove ‘the character of a person in order to show action in conformity therewith.'" United States v. Queen, 132 F.3d 991, 994 (4th Cir. 1997)(quoting Fed.R.Evid. 404(b)). Federal Rule of Evidence 403 provides:

The court may exclude evidence if it's probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Fed. R. Evid. 403. In Queen, The Fourth Circuit explained the interaction of Rules 404(b) and 403, holding:

[E]vidence of prior acts becomes admissible under Rules 404(b) and 403 if it meets the following criteria: (1) The evidence must be relevant to an issue, such as an element of an offense, and must not be offered to establish the general character of the defendant. In this regard, the more similar the prior act is (in terms of physical similarity or mental state) to the act being proved, the more relevant it becomes. (2) The Act must be necessary in the sense that it is probative of an essential claim or an element of the defense. (3) The evidence must be reliable. And (4) the evidence's probative value must not be substantially outweighed by confusion or unfair prejudice in the sense that it tends to subordinate the factfinding process.

132 F.3d at 997.

         A defendant's use of the prior bad acts of a third party to show that the third party is more likely to have committed the charged offense "invokes a rarely used variant of Rule 404(b), known as reverse 404(b)." United States v. Rubio, 87 F.3d 1309 (4th Cir. 1996)(unpublished table opinion). Reverse 404(b) evidence is subject to the same test as standard 404(b) evidence, but must also "tend[], alone or with other evidence, to negate [the accused's] guilt of the crime charged against him." Id. (quoting United States v. Stevens, 935 F.2d 1380, 1401-02 (3d Cir. 1991)).

         II. Analysis

         The Government seeks to exclude expected testimony from William Fenn's stepdaughters that he sexually abused them over 45 years ago. This Court has previously considered the expected testimony of William Fenn's stepdaughters in the context of Defendant's Motion for a New Trial pursuant to Federal Rule of Criminal Procedure 33. See United States v. Fenn, No. 1:12cr510 (JCC), 2014 WL 1338672 (E.D. Va. April 3, 2014). In that prior holding, the Court found that while "[w]hether these prior acts are too dissimilar and attenuated in time from the instant offense to be material is a very close question, " William Fenn's "prior acts of sexual abuse of children are sufficiently similar in time and nature to be material to the issues involved in this case." Id. at *5-6.

         The materiality of the prior bad acts is only the first hurdle which proposed reverse 404(b) evidence must overcome. The Court must also determine whether the probative value of the testimony regarding William Fenn's alleged child molestation is "substantially outweighed" by the risk such evidence poses of "unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403.

         In the similar but crucially distinct context of applying Rule 403 to evidence of the defendant's prior molestation of children offered pursuant to Rule 414, the Fourth Circuit has explained that the 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." United States v. Kelly, 510 F.3d 433, 437 (4th Cir. 2007).[2]

         A. Relative ...


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