United States District Court, D. New Mexico
ORDER ON DEFENDANT'S RULE 412 MOTION
Sitting by Designation United States Circuit Judge
MATTER came on for consideration of Defendant's Rule 412
Motion filed April 23, 2018, (ECF No. 208) and the court
heard argument from the parties in accordance with Rule
412(c)(2) on May 4, 2018. Upon consideration thereof, the
Motion is not well taken and should be denied.
court considered Mr. Russell's proffer under Fed.R.Evid.
412(b)(1)(A)-(C). Although not argued at the hearing, Mr.
Russell also argues that the procedure required by Rule 412
is unconstitutional and violates due process, the right
against self-incrimination, and the right to counsel as
outlined in the Fifth and Sixth Amendments. ECF No. 208, at
1. He maintains that Rule 412 penalizes him by making him
provide the government with attorney work-product including
his trial strategy. The court finds no authority supporting
the proposition; the case relied upon, Spevack v.
Klein, 385 U.S. 511 (1967), held that disbarring a
lawyer for the mere invocation of the Fifth Amendment
privilege against self-incrimination was unconstitutional.
Here, Mr. Russell is free to pursue his trial strategy, but
he must do it with relevant and admissible evidence. Just as
a court may place reasonable limits on cross-examination, so
too may it apply procedures to ensure that the concerns of
Rule 412 are satisfied. See United States v. Torres,
937 F.2d 1469, 1473 (9th Cir. 1991). Moreover, Rule 412
expressly allows admissibility when exclusion would
compromise constitutional rights, Fed.R.Evid. 412(b)(1)(C),
so the court finds no basis for concluding that the procedure
itself violates his constitutional rights.
Russell seeks to admit evidence that the alleged victim had
vaginal intercourse with someone other than Mr. Russell
within five days of the incident in question. He suggests
that someone else could be responsible for her injuries,
particularly given her medical condition. Fed.R.Evid.
412(b)(1)(A). He also seeks to admit evidence that he had
consensual sex with the alleged victim one month prior to the
incident in question, ostensibly to demonstrate later
consent. Fed.R.Evid. 412(b)(1)(B). He also contends that his
proposed evidence satisfies Rule 412(b)(1)(C) which allows
admission of specific instances of sexual behavior when
exclusion would violate his constitutional rights. As became
clear at the hearing, Mr. Russell also seeks to admit as
impeachment evidence the alleged victim's initial
statement to the SANE nurse that she had consensual sex
within five days of the alleged sexual assault, in contrast
to her current position that she does not remember. Rule 412
plainly applies to cross-examination of the alleged victim
about past sexual behavior. Torres, 937 F.2d at
1472-73; see also Fed.R.Evid. 412 advisory
committee's note to 1994 amendment (noting that Rule 412
bars “evidence relating to the alleged victim's
sexual behavior or alleged sexual predisposition, whether
offered as substantive evidence or for
impeachment.” (emphasis added)).
on the record to date, Mr. Russell has brought no specific
evidence to the court's attention tending to show that
someone else was responsible for the alleged victim's
injuries or that the prior sexual encounter was in any way
violent or rough. Fed.R.Evid. 412(c)(1)(A). The SANE nurse
indicated that the injuries suggest violent or rough sex, and
no evidence suggests otherwise. The defendant's
“proffered evidence bears no adequate connection”
to the injuries or events in this case. See United States
v. Pablo, 696 F.3d 1280, 1299 (10th Cir. 2012)
(upholding exclusion where the evidence bears “only a
speculative and tenuous relationship” to the claim that
others may have caused the injuries). In short, the proffer
comes up short, and after considering the alternative bases
urged, Fed.R.Evid. 412(b)(1)(A), (C), the court concludes
that exclusion is warranted.
Russell is correct that under Fed.R.Evid. 412(b)(1)(B), the
court may admit evidence of his prior sexual encounter with
the alleged victim if offered to prove consent. The
government disputes that the prior sexual encounter was
consensual, ECF No. 217, at 7, and for that reason as well as
the tenuous connection between the prior sexual encounter and
this alleged sexual assault (there is no evidence of bruising
or physical trauma in the prior sexual encounter like there
is in the present case), it seems dubious that the evidence
would fall under 412's exception. See United States
v. Pumpkin Seed, 572 F.3d 552, 560 (8th Cir. 2009).
However, assuming that the evidence would cross 412's
barrier, the court must still conduct a Rule 403 balancing
test to determine admissibility. See United States v.
Powell, 226 F.3d 1181, 1198 (10th Cir. 2000). The court
finds that having (disputed) consensual sex once one month
prior contains very little probative value to the issues
presented. As mentioned above, no evidence has been presented
that the prior sexual encounter resulted in injuries or
bruising as in the present case, making the connection
between the two encounters dubious. Indeed, Mr. Russell's
varying characterization of his conduct for the present case
toward the alleged victim ranges from denial to lack of
memory to rape, and now consent. Finally, the evidence that
the prior sexual encounter was consensual is thin at best.
The court finds that this evidence would be unfairly
prejudicial, confuse and mislead the jury, and be a waste of
time. These dangers substantially outweigh any probative
value the evidence has and so the evidence should be
as impeaching the alleged victim with her prior statement
about consensual intercourse, the court believes this
evidence should be excluded under Rule 412 because it does
not fall into any of the exceptions. See United States v.
Withorn, 204 F.3d 790, 795 (8th Cir. 2000)
(“[I]mpeaching the victim's truthfulness and
showing her capability to fabricate a story ‘are not
recognized exceptions to Rule 412.'” (quoting
United States v. White Buffalo, 84 F.3d 1052, 1054
(8th Cir.1996))). Furthermore, the court is persuaded that
the probative value is minimal given the circumstances of
this alleged offense. See United States v. Azure,
845 F.2d 1503, 1506 (8th Cir. 1988). The exclusion of such
evidence is not arbitrary or disproportionate given the
purposes which Rule 412 is designed to serve. See Pumpkin
Seed, 572 F.3d at 560.
THEREFORE, IT IS SO ORDERED that Defendant's Rule 412
Motion filed April ...