United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE
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
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
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.
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v. Rubio, 87 F.3d 1309 (4th Cir. 1996)(unpublished table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)).
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.
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."
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).