TACHA, Circuit Judge.
On September 5, 1996, a federal grand jury in New Mexico returned an indictment
charging defendant David Guardia with two counts of sexual abuse in violation
of 18 U.S.C. § 2242(2)(A). In addition, the grand jury charged the
defendant under the Assimilative Crimes Statute, 18 U.S.C. § 13,
with two counts of criminal sexual penetration in violation of N.M. STAT.
ANN. § 30-9-11(E) (Michie Supp. 1997) and two counts of battery in
violation of N.M. STAT. ANN. § 30-3-4 (Michie 1978). These charges
arose from the defendant's allegedly improper behavior during gynecological
exams he performed at Kirtland Air Force Base in October and November
of 1995. Dr. Guardia moved in limine to exclude evidence proffered by
the United States under Federal Rule of Evidence 413. The district court
granted Dr. Guardia's motion, finding under Federal Rule of Evidence 403
that the risk of jury confusion substantially outweighed the probative
value of the Rule 413 evidence. See United States v. Guardia, 955 F. Supp.
115 (D.N.M. 1997). This appeal followed. We exercise jurisdiction under
18 U.S.C. § 3731 and affirm.
The indictment is based upon the complaints of two alleged victims who
contend that Dr. Guardia sexually abused them in the course of gynecological
procedures that he conducted at Kirtland. Both complainants, Carla G.
and Francesca L., allege that during an examination Dr. Guardia engaged
in ... contact that exceeded the bounds of medically appropriate examination
techniques and constituted sexual abuse. Francesca L. alleges that Dr.
Guardia demonstrated the sexual nature of his conduct by stating "I
love my job" during the examination. In addition, Carla G. alleges
that Dr. Guardia called her at home and performed other acts suggesting
his sexual interest in her. Neither of the examinations occurred in the
presence of a chaperon.
In addition to offering the testimony of Carla G. and Francesca L., the
government moved to introduce, under Rule 413, the testimony of four women
who allege that Dr. Guardia abused them during gynecological examinations
in a manner similar to the alleged abuse of Carla G. and Francesca L.
For example, two of the four additional witnesses also complained of excessive...
contact, and one complained of similarly suggestive comments. On the other
hand, the testimony of Carla G. and Francesca L. differs significantly
in some respects from the testimony of the Rule 413 witnesses. For instance,
one of the witnesses complains that Dr. Guardia improperly touched her
breasts, not her pelvic area. Another complains of the defendant's use
of a medical instrument, not his hands. Chaperons were present during
the examination of two of the four Rule 413 witnesses. All six women had
extraordinary gynecological problems that appeared to require different
courses of treatment and examination.
After considering the nature and content of the testimony proffered under
Rule 413, the district court applied Rule 403 and excluded the evidence.
The government appeals the district court's determination.
Congress recently enacted Federal Rule of Evidence 413, along with Rules
414 and 415, as part of the Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. No. 103-322, tit. XXXII, § 320935(a), 108 Stat.
1796, 2136 (1994). This case presents important questions regarding the
way in which Rule 413 interacts with Rule 403. The latter rule gives trial
courts discretionary authority to exclude certain evidence when the prejudicial
value of the evidence substantially outweighs its probative value. See
Fed. R. Evid. 403.
We review legal interpretations of the federal rules of evidence de novo.
See Reeder v. American Economy Ins. Co., 88 F.3d 892, 894 (10th Cir. 1996).
In this appeal, we first define the requirements for admission of evidence
under Rule 413. We then conclude, following United States v. Meacham,
115 F.3d 1488 (10th Cir. 1997), that Rule 403 applies to evidence introduced
under Rule 413. Finally, we explain how the Rule 403 balancing test should
proceed. We conclude that the district court made no error of legal interpretation
in this case. Having so found, we review the court's Rule 403 decision
for an abuse of discretion, see United States v. Davis, 40 F.3d 1069,
1076 (10th Cir. 1994), and find none.
I. Requirements of Rule 413
Rule 413 provides in pertinent part:
In a criminal case in which the defendant is accused of an offense of
sexual assault, evidence of the defendant's commission of another offense
or offenses of sexual assault is admissible, and may be considered for
its bearing on any matter to which it is relevant.
Fed. R. Evid. 413(a). Thus, evidence offered under Rule 413 must meet
three threshold requirements before a district court can admit it. A district
court must first determine that "the defendant is accused of an offense
of sexual assault." Id.; .... The district court implicitly recognized
these requirements in its hearing on the motion in limine and in its written
opinion. See United States v. Guardia, 955 F. Supp. 115, 117, 119 (D.N.M.
1997); Tr. of Mot. Hr'g, December 30, 1996, passim.
The third requirement, applicable to all evidence, is that the evidence
be relevant. See Fed. R. Evid. 402 ("Evidence which is not relevant
is not admissible."). The rules define relevant evidence as evidence
that "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.
A defendant with a propensity to commit acts similar to the charged crime
is more likely to have committed the charged crime than another. Evidence
of such a propensity is therefore relevant. See Old Chief v. United States,
519 U.S. 172, 136 L. Ed. 2d 574, 117 S. Ct. 644, 650 (1997) ("Propensity
evidence is relevant . . . .") (citations and internal quotation
marks omitted); Michelson v. United States, 335 U.S. 469, 475-76, 93 L.
Ed. 168, 69 S. Ct. 213 (1948) (noting the "admitted probative value"
of propensity evidence).
In most cases, though not in Rule 413 cases, the court must exclude propensity
evidence despite its acknowledged relevance. Rule 404(b) prohibits the
use of prior acts of a person "to prove the character of a person
in order to show action in conformity therewith." Fed. R. Evid. 404(b).
Under Rule 413, however, evidence of a defendant's other sexual assaults
may be admitted "for its bearing on any matter to which it is relevant."
Fed. R. Evid. 413 (emphasis added). Thus, Rule 413 supersedes Rule 404(b)'s
restriction and allows the government to offer evidence of a defendant's
prior conduct for the purpose of demonstrating a defendant's propensity
to commit the charged offense. ....
We turn now to the court's relevance finding in this particular case.
We will not upset the court's determination that evidence is relevant
absent a clear abuse of discretion. See United States v. Alexander, 849
F.2d 1293, 1301 (10th Cir. 1988). If believed, the Rule 413 evidence in
this case would demonstrate that the defendant has a propensity to take
advantage of female patients by touching them in a salacious manner and
making comments while doing so. Because the defendant's propensity is
to engage in conduct which closely matches that alleged in this case,
the evidence is probative of his guilt. The district court implicitly
recognized the relevance of this evidence by acknowledging that it contains
some, albeit limited, probative value to the government's case. ... We
find no abuse of discretion. The evidence proffered in this case, therefore,
satisfies Rule 413's three threshold requirements.
II. The Applicability of Rule 403
The district court also properly concluded that the Rule 403 balancing
test applies to evidence submitted under Rule 413. This conclusion is
a legal determination that we review de novo. .... Rule 403 allows a district
court to exclude evidence "if its probative value is substantially
outweighed by the danger of unfair prejudice" or other enumerated
considerations, including confusion of the issues or undue delay. Fed.
R. Evid. 403. Rule 403 applies to all evidence admitted in federal court,
except in those rare instances when other rules make an exception to it.
See, e.g., Fed. R. Evid. 609(a)(2) (mandating that prior conviction of
a witness be admitted for impeachment purposes if prior crime involved
The wording of Rule 413 has led some commentators to infer that it creates
an exception for itself to the Rule 403 balancing test. See Guardia, 955
F. Supp. at 117 (noting scholarly debate). Rule 413 states that evidence
meeting its criteria "is admissible." Fed. R. Evid. 413. Rule
412, on the other hand, which also allows evidence of prior sexual behavior,
states that certain evidence "is admissible, if otherwise admissible
under these rules." Fed. R. Evid. 412(b) (emphasis added). One could
assume from this fact that because the emphasized clause does not appear
in Rule 413, Congress intended to make the introduction of Rule 413 evidence
mandatory rather than subject to the discretion of the trial judge under
Rule 403. See Judicial Conference of the United States, Report of the
Judicial Conference on the Admission of Character Evidence in Certain
Sexual Misconduct Cases, 159 F.R.D. 51, 53 (1995) (noting that the advisory
committee believed the above position to be "arguable").
The other rules, however, demonstrate that the difference between Rule
412 and Rule 413 is not significant. Most importantly, Rule 402, the rule
allowing admission of all relevant evidence and a rule to which the 403
balancing test undoubtedly applies, contains language no more explicit
than that in Rule 413. The rule states simply that "all relevant
evidence is admissible." Fed. R. Evid. 402 (emphasis added). Furthermore,
when the drafters of the federal rules of evidence alter the 403 balancing
test or make it inapplicable to certain evidence, they use language much
more explicit than that found in Rule 413. See, e.g., Fed. R. Evid. 609(a)(2)
(stating that convictions involving dishonesty "shall be admitted"
for impeachment purposes); Fed. R. Evid. 609(a)(1) (requiring court to
find that the probative value of a prior conviction outweighs its prejudicial
effect on the accused).
Thus, in United States v. Meacham, 115 F.3d 1488, 1495 (10th Cir. 1997),
we found that evidence proffered under Rule 414, which concerns prior
acts of child molestation and uses language identical to Rule 413, is
subject to Rule 403 balancing. See also United States v. Sumner, 119 F.3d
658, 661 (8th Cir. 1997) (concluding that Rule 403 applies to Rule 414);
United States v. Larson, 112 F.3d 600, 604-05 (2d Cir. 1997) (same). Following
Meacham, and for the above reasons, we hold that the 403 balancing test
applies to Rule 413 evidence.
III. The 403 Balancing Test and Rule 413
In accordance with the above, after the district court resolves the three
threshold issues, including a finding that the proffered evidence is relevant,
it must proceed to balance the probative weight of the Rule 413 evidence
against "the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or . . . considerations of undue delay, waste
of time, or needless presentation of cumulative evidence." Fed. R.
Evid. 403. We hold that a court must perform the same 403 analysis that
it does in any other context, but with careful attention to both the significant
probative value and the strong prejudicial qualities inherent in all evidence
submitted under 413.
A. Legal Principles
Rule 413 marks a sea change in the federal rules' approach to character
evidence, a fact which could lead to at least two different misapplications
of the 403 balancing test. First, a court could be tempted to exclude
the Rule 413 evidence simply because character evidence traditionally
has been considered too prejudicial for admission. Cf. Old Chief v. United
States, 519 U.S. 172, 136 L. Ed. 2d 574, 117 S. Ct. 644, 651 (U.S. 1997)
(stating that Rule 404(b) merely "reflects . . . common law tradition").
Second, a court could perform a restrained 403 analysis because of the
belief that Rule 413 embodies a legislative judgment that propensity evidence
regarding sexual assaults is never too prejudicial or confusing and generally
should be admitted. See United States v. LeCompte, 131 F.3d 767, 1997
WL 781217, at *2 (8th Cir. 1997).
We find both interpretations illogical. With regard to the first position,
we note that this court refrains from construing the words and phrases
of a statute--or entire statutory provisions--in a way that renders them
superfluous. .... Rule 413 allows for evidence that otherwise would be
excluded to be admitted. If Rule 413 evidence were always too prejudicial
under 403, Rule 413 would never lead to the introduction of evidence.
Therefore, Rule 413 only has effect if we interpret it in a way that leaves
open the possibility of admission.
This interpretation harmonizes with the Supreme Court's comment in Old
Chief and similar statements in the advisory committee's notes to Rules
401 and 403 that the ban on character evidence is merely an application
of Rule 403 to a recurring issue. See Old Chief, 117 S. Ct. at 651. All
of the rules in Article IV of the Federal Rules of Evidence, not just
Rule 404, are "concrete applications [of rules 402 and 403] evolved
for particular situations." Fed. R. Evid. 403 advisory committee's
note. The fact that Congress created Rule 413 can only mean that Congress
intended to partially repeal the "concrete application" found
in 404(b) for a subset of cases in which Congress found 404(b)'s rigid
rule to be inappropriate. That conclusion is not surprising, given the
fact that propensity evidence has a unique probative value in sexual assault
trials and that such trials often suffer from a lack of any relevant evidence
beyond the testimony of the alleged victim and the defendant. See Mark
A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 AM.
CRIM. L. REV. 57, 69-70 (1995). Rule 413 is a refinement, and it exemplifies
the type of evolution of Rules 402 and 403 that one can expect to find
in Article IV.
While Rule 413 removes the per se exclusion of character evidence, courts
should continue to consider the traditional reasons for the prohibition
of character evidence as "risks of prejudice" weighing against
admission. For example, a court should, in each 413 case, take into account
the chance that "a jury will convict for crimes other than those
charged--or that, uncertain of guilt, it will convict anyway because a
bad person deserves punishment." Old Chief, 117 S. Ct. at 650 (citations
and internal quotation marks omitted). A court should also be aware that
evidence of prior acts can have the effect of confusing the issues in
a case. See Michelson v. United States, 335 U.S. 469, 476, 93 L. Ed. 168,
69 S. Ct. 213 (1948). These risks will be present every time evidence
is admitted under Rule 413. See United States v. Patterson, 20 F.3d 809,
814 (10th Cir. 1994) ("Evidence of prior bad acts will always be
prejudicial."). The size of the risk, of course, will depend on the
With regard to the second potential misapplication of Rule 413, the government
urges us to approve a lenient 403 balancing test. We agree that Rule 413,
like all other rules of admissibility, favors the introduction of evidence.
See 140 Cong. Rec. H8968-01, H8991 (Aug. 21, 1994) (statement of S. Molinari)
("The presumption is in favor of admission."), quoted in United
States v. Enjady, 134 F.3d 1427, 1998 U.S. App. LEXIS 737 (10th Cir. 1998).
Rule 413, however, contains no language that supports an especially lenient
application of Rule 403. Furthermore, courts apply Rule 403 in undiluted
form to Rules 404(a)(1)-(3), the other exceptions to the ban on propensity
evidence. Those rules allow a criminal defendant to use character evidence
of himself, his victim, or in limited circumstances, of other witnesses,
in order to "prove action in conformity therewith." Fed. R.
Evid. 404(a)(1-3). Like Rule 413, these rules carve out exceptions to
Rule 404(a) and reflect a legislative judgment that certain types of propensity
evidence should be admitted. Courts have never found, however, that because
the drafters made exceptions to the general rule of 404(a), they tempered
403 as well. ....
Similarly, under Rule 404(b), evidence of a person's prior acts can be
used for other purposes other than proving character. Despite Rule 404(b)'s
legislative judgment in favor of admission, Rule 403 applies with all
its vigor to Rule 404(b) evidence. See Huddleston v. United States, 485
U.S. 681, 687-88, 99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988) (noting that
rules of admissibility in Article IV are subject to "general strictures
. . . such as Rules 402 and 403").
When balancing Rule 413 evidence under 403, then, the district court should
not alter its normal process of weighing the probative value of the evidence
against the danger of unfair prejudice. In Rule 413 cases, the risk of
prejudice will be present to varying degrees. Propensity evidence, however,
has indisputable probative value. That value in a given case will depend
on innumerable considerations, including the similarity of the prior acts
to the acts charged, ...., the closeness in time of the prior acts to
the charged acts, see id., the frequency of the prior acts, the presence
or lack of intervening events,....and the need for evidence beyond the
testimony of the defendant and alleged victim. Because of the sensitive
nature of the balancing test in these cases, it will be particularly important
for a district court to fully evaluate the proffered Rule 413 evidence
and make a clear record of the reasoning behind its findings.....B. Balancing
in the Present Case
The decision to exclude evidence under Rule 403 is within the sound discretion
of the trial court, and will be reversed only upon a showing of a clear
abuse of that discretion. ..... During the motion hearing and in its written
decision, the district court made clear that its overriding, if not exclusive,
concern was the danger that the proffered testimony would confuse the
issues in the case, thereby misleading the jury. n1 The district court
properly exercised its discretion in determining that the potential for
confusion of the issues substantially outweighed the probative value of
the proffered testimony.
We must consider the trial court's ruling in light of the unusual nature
of this case. This trial undoubtedly will focus upon whether the manner
in which Dr. Guardia examined the complaining patients was medically appropriate.
Unlike other sexual assault cases, resolution of credibility issues alone
will not enable the jury to decide whether Dr. Guardia's act was proper.
Rather, the jury will be required to evaluate expert testimony regarding
the medical propriety of each examination to determine whether Dr. Guardia
acted within the scope of his patients' consent.
Because so much depends upon the medical propriety of Dr. Guardia's conduct
towards Carla G. and Francesca L., the fact that Dr. Guardia treated the
four additional witnesses under similar but distinct circumstances creates
a substantial risk of jury confusion. Admission of the testimony would
transform the trial of two incidents into the trial of six incidents,
each requiring description by lay witnesses and explanation by expert
witnesses. The subtle factual distinctions among these incidents would
make it difficult for the jury to separate the evidence of the uncharged
conduct from the charged conduct. See 23 Charles Alan Wright & [**20]
Kenneth W. Graham, Jr., Federal Practice and Procedure, § 5412, at
273 (Supp. 1997) (noting the potential for confusion when Rule 413 evidence
Expert testimony explaining the propriety of Dr. Guardia's conduct as
to each witness would exacerbate the risk of confusion by multiplying
conflicting and overlapping testimony. Although the evidence proffered
under Rule 413 is probative of Dr. Guardia's disposition and supports
the testimony of the complaining witnesses, we cannot conclude that the
district court exceeded the bounds of permissible choice by excluding
the evidence under the circumstances of this case.
Finally, we reject the government's contention that the district court
erred by failing to engineer a method of presenting the evidence to minimize
the risk of jury confusion. In Hill v. Bache Halsey Stuart Shields Inc.,
790 F.2d 817, 826-27 (10th Cir. 1986), we held that the district court
abused its discretion under Rule 403 because it excluded evidence that
had a high probative value even though its prejudicial effect could have
been minimized through a "less elaborate" method of presentation.
In this case, however, the evidence that the district court excluded is
not realistically susceptible to any less elaborate presentation than
that proposed by the government. Thus, the district court did not abuse
its discretion by failing to require such a presentation.
Evidence must pass several hurdles before it can be admitted under Rule
413. First, the defendant must be on trial for "an offense of sexual
assault." Second, the proffered evidence must be of "another
offense of . . . sexual assault." Third, the trial court must find
the evidence relevant--that is, the evidence must show both that the defendant
had a particular propensity, and that the propensity it demonstrates has
a bearing on the charged crime. Fourth and finally, the trial court must
make a reasoned, recorded finding that the prejudicial value of the evidence
does not substantially outweigh its probative value.
In this case, the district court's colloquy with the attorneys at the
motion hearing and the court's written decision reflect its thoughtful
consideration of both the relevance of the Rule 413 evidence and the policies
behind Rule 403. Given the deference due district courts in making Rule
403 determinations, we find that the district court did not abuse its
discretion in concluding under Rule 403 that the risk of jury confusion
substantially outweighed the probative value of the Rule 413 evidence
proffered by the government. Therefore, the decision of the district court