United States District Court, D. New Mexico
ORDER ON DEFENSE MOTION IN LIMINE TO EXCLUDE EVIDENCE
PURSUANT TO FED. R. EVID. 404(B), 413, AND 414
VAZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Mr. Perrault's
Motion in Limine to Exclude Evidence Pursuant to
Fed.R.Evid. 404(b), 413, and 414, [Doc. 40]. The Court heard
arguments on this Motion on March 21, 2019. Having reviewed
the briefs, oral arguments, relevant law, and being otherwise
fully informed, the Court finds that the motion will be
DENIED in part, as to the Rule 413/414
evidence. The Court will RESERVE its ruling
with regards to the 404(b) evidence.
matter was addressed at length by a previous Notice of
Hearing with respect to this motion wherein the Court
outlined the background of the instant motion and legal
standard for the admissibility of the proposed evidence. Doc.
103. The Court also conducted a preliminary Rule 413/414
analysis, finding that the evidence meets admissibility under
Rules 413/414. The Court then held a hearing on March 21,
2019 for counsel to address the balancing of the probative
value and prejudicial effect of this evidence under Rule 403.
The Court concludes, for the reasons set forth below, the
probative value of the proposed 413/414 evidence is not
substantially outweighed by unfair prejudice, and the
evidence will thus be admitted.
Preliminary Finding of Admissibility
Rule 413(a) of the Federal Rules of Evidence, “[i]n a
criminal case in which a defendant is accused of sexual
assault, the court may admit evidence that the defendant
committed any other sexual assault. The evidence may be
considered on any matter to which it is relevant.”
Fed.R.Evid. 413(a). Any evidence offered under Rule 413 must
meet three threshold requirements before a court can admit
it. United States v. Guardia, 135 F.3d 1326, 1328
(10th Cir. 1998). A district court must determine: (1) that
the defendant is accused of an offense of sexual assault; (2)
that the evidence proffered is evidence of the
defendant's commission of another offense of sexual
assault; and (3) that the evidence is relevant. Id.
Evidence is relevant if it has any tendency to make the
existence of any fact of consequence “more or less
probable than it would be without the evidence.”
Fed.R.Evid. 401. Rule 414 is identical to Rule 413 except
that it deals specifically with similar crimes in
child-molestation cases. Fed.R.Evid. 414. The three threshold
requirements under Rule 414 are identical to those under Rule
413, except that the 414 requirements pertain to child
molestation. United States v. McHorse, 179 F.3d 889,
897-98 (10th Cir. 1999).
Mr. Perrault is charged with six counts of Aggravated Sexual
Abuse and one count of Abusive Sexual Contact. The government
seeks to admit evidence that Mr. Perrault “engaged in
sexual acts with minors under the age of 12 and minors who
were over 12, but under 16, ” which qualifies as sexual
assault and child molestation under 18 U.S.C. chapter 109A.
Doc. 45 at 6. The evidence proffered thus meets the second
threshold requirement under Rules 413/414. This evidence is
relevant to establish that Mr. Perrault “has a
propensity for abusing young boys” [Id. at 7]
and to rebut Mr. Perrault's defense that John Doe 1 is
not credible. In particular, evidence of the alleged
misconduct with the other eight children is being offered to
show that Mr. Perrault engaged in similar behavior as he did
with John Doe 1, thereby decreasing the likelihood that the
case will be an “unresolvable swearing match”
between Mr. Perrault and John Doe 1. See United States v.
Enjady, 134 F.3d 1427, 1431 (10th Cir. 1998). In support
of its Intent to Offer Evidence Pursuant to Fed.R.Evid.
404(b), 413, and 414, the government has proffered extensive
evidence as to the nature of the allegations of the other
eight uncharged victims, including Federal Bureau of
Investigation 302 Reports and individual
depositions for each John Doe, as well of several of
Mr. Perrault's own statements in which he admits to
sexually abusing other children. Doc. 43 at 9; Doc. 44. The
Court is therefore satisfied that the three threshold
requirements for admissibility under Rules 413/414 have been
Rule 403 Balancing
courts must next balance the evidence's probative value
against its prejudicial effect under Rule 403. Rule 403
requires a court to exclude the evidence if it concludes that
the probative value of the similar crimes evidence is
outweighed by the risk of unfair prejudice. Enjady,
134 F.3d at 1433. However, the Tenth Circuit has held that
the exclusion of relevant evidence under Rule 403
“should be used infrequently, ” based on
Congress' intent that Rule 414 favors admissibility.
Id. See also United States v. Meacham, 115 F.3d
1488, 1492 (10th Cir. 1997) (Noting that although 403
balancing applies, under Rule 414 “courts are to
‘liberally' admit evidence of prior uncharged sex
offenses.”). Because Congress intended that these rules
favor admissibility, the typical prejudice associated with
these prior sexual acts will not be enough to outweigh the
context of sexual assault cases, Rule 403 balancing requires
that the court consider:
(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. Enjady, 134 F.3d at 1433
(citation omitted). When evaluating the probative dangers,
Enjady also instructs the court to consider: (1) how
likely it is that the evidence will contribute to an
improperly-based jury verdict; (2) the extent to which the
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. Id.
Clearly the Prior Act has Been Proved
respect to the first factor, under Rules 413/414, the
district court must make a preliminary finding that “a
jury could reasonably find by a preponderance of the evidence
that the ‘other act' occurred.” Id.
This preponderance of the evidence standard is a low standard
that ensures that the evidence in question is relevant.
United States v. Edwards, 282 F.Supp.3d 1270, 1278
(D.N.M. 2017) (citing Huddleston v. United States,
485 U.S. 681, 689 (1988)). The Tenth Circuit has held that
the “district court need not make detailed factual
findings in support of its Rule 403 determination.”
United States v. Castillo, 140 F.3d 847, 884 (10th
Cir. 1998). However, it must “fully evaluate the
proffered Rule 413 [or Rule 414] evidence and make a clear
record of the reasoning behind its findings.”
Id. (citing Guardia, 135 F.3d at 1331).
case, the government has provided Mr. Perrault and the Court
with statements in the form of FBI 302 reports and other
written materials including, in all but two cases (John Does
2 and 8) depositions from each of the victims describing the
specific abuse they experienced. In addition to the written
material that was submitted to the Court, the Court also
heard testimony from FBI Special Agent Christina Sandoval at
the March 21 hearing. The Court is satisfied that the written
materials provided coupled with Agent Sandoval's
testimony are sufficient to conclude that the government has
met the preponderance of the evidence standard.
evidence shows that the John Does cross-corroborate each
other. Several John Does also have additional forms of
corroboration. For example, John Doe 3 made statements to his
mother and wrote a contemporaneous letter following his
alleged abuse. John Does 5 and 6's mother corroborated
that they disclosed the alleged abuse and stated that Mr.
Perrault admitted to her that he touched them at least once.
Furthermore, Mr. Perrault's own statements provide
corroboration in his admissions that he knew John Doe 1, that
John Doe 1 was his altar boy for daily mass, and that he took
John Doe 1 in his personal car on at least a few occasions.
Furthermore, Mr. Perrault admitted that he abused John Doe 8,
admitted that he may have abused more than one boy, and in
his letter to the King of Morocco, stated that he would have
to admit to abusing a plural number of teens. The Court
therefore concludes, ...