United States v. Cole

UNITED STATES OF AMERICA, Plaintiff, v. BRETT DEWAYNE COLE, Defendant.

No. 22-CR-98-JFH

United States District Court, E.D. Oklahoma

December 29, 2022

OPINION AND ORDER

JOHN F. HEIL, III UNITED STATES DISTRICT JUDGE

Before the Court is a response and objection to the Government's notice of intent to admit evidence of other child molestation (“Objection”) filed by Defendant Brett Dewayne Cole (“Defendant”). Dkt. No. 65. The United States of America (“Government”) filed a response in opposition. Dkt. No. 67. For the reasons stated, the Court VACATES its previous Order on the same evidence, entered December 2, 2022 [Dkt. No. 54]; after full consideration of the record before it, OVERRULES Defendant's Objection and rules that the evidence described by the Government's notice of intent to admit evidence of other child molestation (“Notice”) [Dkt. No. 28] is ADMISSIBLE.

PROCEDURAL BACKGROUND

Defendant is charged with three crimes: two (2) counts of aggravated sexual abuse in Indian country and one (1) count of abusive sexual contact in Indian country, all involving the same alleged victim. Dkt. No. 2. The indictment alleges that Defendant, a non-Indian, engaged in sexual acts with K.Z., an Indian who had not attained the age of twelve (12) years. Id. Trial is set for January 3, 2022.

On December 2, 2022, the Court issued an Order on the Government's Notice. Dkt. No. 28; Dkt. No. 54. Although Defendant had not responded to the Notice, pursuant to binding Tenth Circuit authority, the Court fully evaluated the evidence before it and made a record of its reasoning before ruling on the evidence. Dkt. No. 54. The Court ruled that the evidence described in the Notice was admissible, including testimony from Defendant's half-sister S.C., who told investigators that Defendant sexually molested her repeatedly when she was between five (5) and ten (10) years old; testimony from Defendant and S.C.'s brother M.C., who told investigators that he found Defendant and S.C. in rooms alone together repeatedly when S.C. was a minor, including one instance where M.C. walked into a room and saw Defendant zipping up his pants; and testimony from B.E., a step-cousin of Defendant, who told investigators that Defendant touched her genitalia under her clothing twice when she was between seven (7) and nine (9) years old.

On December 16, 2022, defense counsel requested leave to file the Objection out of time. Dkt. No. 63.^[1]Counsel explained that “evidence that [Defendant] was a juvenile at the time of the alleged other events was not before the Court in its consideration of the admissibility of the evidence.” Id. The Court granted Defendant's request [Dkt. No. 64] and Defendant filed his Objection on December 19, 2022 [Dkt. No. 65]. The Court invited a response from the Government [Dkt. No. 66], which the Government provided on December 21, 2022 [Dkt. No. 67].

FACTUAL BACKGROUND

The Government submitted both video files and PDF files of evidence regarding Defendant's alleged prior child molestation. Dkt. No. 53.

First the Government submitted an interview between S.C. and McCurtain County Sheriff's Office investigator Larry Hendrix (“Hendrix”). During the interview, SC tells Hendrix that Defendant molested her in multiple places when she was a child, including in a tack shop, behind their house, at a relative's house, while trail riding, on a couch, in Defendant's room, and at a baseball dugout. S.C. said that at various times, Defendant put his fingers in her vagina, put his mouth on her vulva, made her touch his penis with her hands, made her perform oral sex on him, and at least once, put his penis in her vagina.^[2]She also describes remembering it was painful when Defendant penetrated her vagina.

According to S.C., Defendant would tell her that she would get in trouble if she told anyone about his actions. While she was still in elementary school, SC saw a video at school teaching children what to do if they had been abused and encouraging children to talk to a counselor. S.C. tells Hendrix in the interview that she “broke loose” when she saw this video and talked to her teacher and a counselor about Defendant's actions. S.C. also tells Hendrix that after both she and Defendant were adults, she confronted Defendant through Facebook private message about how he had abused her. According to S.C., Defendant replied, apologized, and said he “never should have done it.” However, SC could not access the messages to provide them to Hendrix because she no longer had access to her Facebook account.

Next the Government provided a videoed interview between M.C. and Hendrix. M.C. tells the investigator that Defendant never physically molested him but that he “really vividly” remembered walking into a shed at their grandparents' house, seeing Defendant and S.C. alone together in the shed, and recognizing that Defendant was zipping up his pants. According to M.C., when he entered the shed, Defendant looked up “like he'd been caught.” M.C. estimated that he and S.C. were around five (5) to seven (7) years old at the time and remembered that Defendant told him not to say anything about what he had seen. However, M.C. tells Hendrix that the event “really stuck with him.” M.C. also describes to Hendrix that he would often walk into rooms at their home and find that it was “just them,” meaning Defendant and S.C., in the room.

Two of the PDF documents submitted by the Government reflect the S.C. and M.C. interviews. One is Hendrix's summary of the interviews. The other is a document on letterhead from the Seventeenth Judicial District's district attorney office seeking additional information on S.C. and another unnamed victim. The last PDF document is a statement signed by Hendrix describing B.E. The document states B.E. reported that Defendant molested her on two separate occasions when she was between seven (7) and nine (9) years old. During one instance, Defendant allegedly told B.E. that he had found a good hiding spot during a game of hide and seek. Once they were in the hiding spot, B.E. said Defendant “touched her vagina under her clothes” and said, “You know you like it.” The other instance occurred when B.E. was sleeping on a sofa. She told Hendrix that Defendant “came into the room where she was sleeping and again touched her vagina under her clothes.” The report states B.E. told Defendant she was going to “tell” and he replied, “Go ahead[,] no one will believe you.”

Defendant did not submit any evidence demonstrating that he was a juvenile himself during these alleged acts; however, for purposes of the Objection only, the Court accepts counsel's representation that Defendant was between the ages of ten (10) and fifteen (15) years old when the alleged acts described by S.C. and B.E. occurred.

AUTHORITY AND ANALYSIS

Defendant claims he was a juvenile between the ages of ten (10) and fifteen (15) years old when the alleged prior acts occurred and argues that the Federal Juvenile Justice and Delinquency Prevention Act, 18 U.S.C. §§ 5031-42 (2006) (“FJDA” or “the Act”) bars admission of the past act evidence under the Federal Rules of Evidence (“FRE”). Dkt. No. 65 at 6. If the Court determines that Defendant's alleged juvenile acts are not barred by the FJDA, Defendant asserts that the prior acts still are not admissible because they “cannot be proven by a preponderance of the evidence, [are] not similar to the alleged acts, []twenty years have passed, [are] likely to confuse and distract the jury, and [] will be time consuming to prove and defend.” Id.

I. Statutory Interpretation of FJDA and FRE

A. Standard for statutory interpretation

“[I]t is our primary task in interpreting statutes to determine congressional intent, using traditional tools of statutory construction.” Coffey v. Freeport McMoran Copper & Gold, 581 F.3d 1240, 1245 (10th Cir. 2009). “[I]n all cases requiring statutory construction, ‘we begin with the plain language of the law.'” St. Charles Inv. Co. v. Comm'r, 232 F.3d 773, 776 (10th Cir. 2000). “In so doing, we will assume that Congress's intent is expressed correctly in the ordinary meaning of the words it employs.” Id. (citing Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985). “There is no serious debate about the foundational interpretive principle that courts adhere to ordinary meaning, not literal meaning, when interpreting statutes.” Bostock v. Clayton Cnty., Ga., 140 S.Ct. 1731, 1825 (2020) (Kavanaugh, J., dissenting). “When there is a divide between the literal meaning and the ordinary meaning, courts must follow the ordinary meaning.” Id. at 1826. B. Rule 413/414's use of the word “crime”

The question Defendant presents is straightforward: is a sexual assault or child molestation committed by a juvenile a “crime” for purposes of Federal Rule of Evidence 414? The rule's plain language and the ordinary meaning of the word “crime” answer in the affirmative.

The Federal Rules of Evidence generally prohibit “the admission of evidence for the purpose of showing a defendant's propensity to commit bad acts.” United States v. Benally, 500 F.3d 1085, 1089 (10th Cir. 2007) (citing Fed.R.Evid. 404(a)). However, “[i]n a criminal case in which a defendant is accused of a 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). “Rule 414(a) contains identical language related to accusations of child molestation.” Benally, 500 F.3d at 1090. Both rules define their relevant terms:

“[S]exual assault” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:

any conduct prohibited by 18 U.S.C. chapter 109A;

contact,...