United States v. Perrault

995 F.3d 748

UNITED STATES of America, Plaintiff - Appellee,

v.Arthur PERRAULT, Defendant - Appellant.

No. 19-2184

United States Court of Appeals, Tenth Circuit.

FILED April 21, 2021

Aric Elsenheimer, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.

Sean J. Sullivan, Assistant United States Attorney (John C. Anderson, United States Attorney, with him on the briefs), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before PHILLIPS, SEYMOUR, and CARSON, Circuit Judges.

PHILLIPS, Circuit Judge.

In the early 1990s, a television reporter in Albuquerque, New Mexico, began investigating reports that a well-known Catholic priest had sexually abused numerous boys during his decades-long tenure at several local parishes. Upon learning of the imminent, breaking-news story, that priest, Arthur Perrault, departed early for a previously planned sabbatical. Foregoing his original plans to stay in the United States, he instead opted for an international destination. After a two-week sojourn in Canada, Perrault made a new life in Morocco—a country, as it so happens, that doesn't share an extradition treaty with the United States.

Fast-forward twenty-five years. In 2017, a federal grand jury sitting in the District of New Mexico charged Perrault with seven counts of sexual abuse, all stemming from Perrault's relationship with John Doe 1 in the early 1990s. Doe 1 was about age ten at the time of the charged abuse. The Moroccan government agreed to expel Perrault, the FBI brought him back from Morocco, and Perrault stood trial in the community he had fled over two decades earlier. During the trial, seven other victims testified that Perrault had sexually abused them when they were just boys. The jury convicted Perrault of all seven counts.

To hear Perrault tell it, his trial was more character assassination than solemn search for the truth. On that score, he faults the district court for permitting so many former victims to testify. He also argues that the district court plainly erred in seating the jurors that convicted him, who, according to Perrault, had predetermined his guilt before hearing any evidence. Perrault also disputes certain jury instructions as well as his sentence.

We don't share Perrault's view of the proceedings in the trial court. Rather, after reviewing the record, the parties’ briefing, and the relevant law, we are convinced that Perrault received a fundamentally fair trial in compliance with his constitutional rights. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

BACKGROUND

I. Events Leading Up to Perrault's Trial

From the mid-1960s to 1992, Perrault was a Catholic priest at several parishes in Albuquerque, New Mexico. Most of Perrault's acts underlying the Indictment's charges occurred while he served as the pastor of St. Bernadette's Church, though other victims encountered Perrault while he was a priest at Our Lady of Guadalupe Church and Our Lady of the Assumption. As detailed below, numerous victims testified that Perrault sexually abused them over the three decades Perrault was a Catholic priest in Albuquerque.¹

In 1992, a local television reporter began investigating allegations that Perrault had sexually abused young boys. Almost immediately after learning of the investigation, Perrault told his congregation that he would be taking a sabbatical in Canada, not in Denver, Colorado, as he had planned. After spending two weeks in Vancouver, Canada, Perrault flew to Morocco, where he lived for the next twenty-five years.

In September 2017, a federal grand jury charged Perrault with six counts of aggravated sexual abuse, see 18 U.S.C. § 2241(c), and one count of abusive sexual contact, see 18 U.S.C. § 2244(a)(5). The charges, summarized in the chart below, all relate to Doe 1, whom Perrault abused in 1991 and 1992.

Count	Act Alleged	Location	Statute Violated
1	Digital penetration of Doe 1's anus	Kirtland Air Force Base	§§ 2241(c), 2246(2)(C)
2	Digital penetration of Doe 1's anus, separate and apart from the act charged in Count 1	Kirtland Air Force Base	§§ 2241(c), 2246(2)(C)
7	Digital penetration of Doe 1's anus	Santa Fe National Cemetery	§§ 2241(c), 2246(2)(C)
3	Contact between Perrault's mouth and Doe 1's penis	Kirtland Air Force Base	§§ 2241(c), 2246(2)(B)
6	Contact between Perrault's mouth and Doe 1's penis	Santa Fe National Cemetery	§§ 2241(c), 2246(2)(B)
4	Touching Doe 1's genitalia directly	Kirtland Air Force Base	§§ 2241(c), 2246(2)(D)
5	Touching Doe 1's genitalia directly and through the clothing	Kirtland Air Force Base	§§ 2244(a)(5), 2246(3)

In 2018, FBI Agents traveled to Morocco to return Perrault to the United States to stand trial. Sometime earlier, the Moroccan government agreed to expel Perrault, and it held him in custody until the FBI came to retrieve him. While Perrault was detained in Morocco, a state department official visited him to ensure that the Moroccan government had been treating him properly. During this visit, Perrault expressed frustration that the United States was continuing to pursue charges against him related to sexual abuse but admitted to "many transgressions" that the Catholic Church "had dealt with" in the 1980s and 1990s. R. vol. 3 at 1306:6–12.

On the flight from Morocco to the United States, Perrault spoke further with his FBI escort. He admitted that he had sexually abused Doe 8, including performing oral sex on him "and said he may have also used his hands." Id. at 1437:14–1438:12. He also admitted having "touched" Doe 3 and writing a letter to Doe 3's parents apologizing for what he had done. Id. at 1439:10–1440:3. The government introduced all these admissions at trial.

II. Trial

A. Voir Dire

Though the district court ordered an expanded venire panel of over 110 citizens, the parties still were able to complete jury selection in just one day. In the morning, the district court told the prospective jurors that it would be questioning them about their personal experiences with sexual abuse, and it encouraged them to approach the bench to discuss those matters. One juror chose to discuss her experience in front of the entire venire. She related, "I have been sexually assaulted twice, and I thought I was okay, and clearly I'm not. But ... I'm going to claim it because I was the victim. So I don't care who hears it. I'm not embarrassed by it. But to say I'm biased is a little underrated." R. vol. 4 at 99:1–5. After hearing her story, some members of the venire applauded by clapping. The court excused her for cause. Perrault moved for a mistrial based on the venire members’ applause, but the district court denied the motion.

After lunch, counsel began questioning the jurors. As expected, many of the prospective jurors had already heard or seen news accounts about the case, including Perrault's extradition from Morocco. Also as expected, many prospective jurors stated they had already formed an opinion about Perrault's culpability. The court excused those jurors for cause.

When the questioning turned to the general subject of sexual abuse by Catholic priests, several members of the venire expressed disappointment. For instance, Juror 6 found the allegations "disheartening" and "upsetting." Id. at 128:18–20. Juror 26 identified herself as a Catholic who had stopped going to Mass for reasons including her "disappoint[ment] in the church for all the cover-ups." Id. at 232:5–6. Juror 38 likewise had heard of "cover-ups" in the church. Id. at 233:11–14. But in response to follow-up questions, each of the three stated that they could remain fair and impartial.

In the end, the parties agreed on twelve jurors and four alternates. Though the government exhausted each of its six peremptory challenges, Perrault used only six of his ten. Perrault's trial counsel thanked the government's counsel for how voir dire was handled, and the court complimented both parties on a "great job on voir dire." Id. at 269:22.

B. Witness Testimony

As discussed below, Rules 413 and 414 of the Federal Rules of Evidence permit the government to introduce evidence that a defendant has committed other sexual assaults or child molestation not charged in the indictment. See infra Discussion Section II.B.1. Accordingly, in addition to Doe 1's testimony, the government called seven Rule 414 witnesses² who testified that Perrault had sexually abused them during his time in Albuquerque.³ Because Perrault's primary challenge on appeal is the district court's admitting those witnesses’ testimony, we summarize their testimony below.

1. Doe 1

In 1990, at age nine, Doe 1 became an altar server at St. Bernadette's Church. Perrault was then the priest there. Doe 1 spent considerable time with Perrault while assisting him with Mass. Back then, Doe 1 described Perrault as his "best friend," R. vol. 3 at 1211:4–5, and Perrault referred to Doe 1 as "[h]is boy," id. at 16–17. At some point, Perrault gifted Doe 1 a "St. Michael's medal." Id. at 1225:14. Because he admired Perrault, Doe 1 hoped to become a priest.

Doe 1 testified that Perrault began sexually abusing him when Doe 1 was age ten. Though Doe 1 failed to provide specific dates, he testified that Perrault had abused him at three geographical locations: the rectory⁴ at St. Bernadette's, Kirtland Air Force Base (the "Base"), and Santa Fe National Cemetery. Addressing the abuse on the Base, Doe 1 testified that Perrault abused him both in a Base chapel and inside Perrault's car at a Base parking lot. Sometimes Perrault would fondle Doe 1's penis and testicles, both through Doe 1's pants and skin-to-skin. Perrault also put his mouth directly on Doe 1's penis on several occasions.⁵ Other times, Perrault used his fingers to penetrate Doe 1's anus, sometimes causing bleeding. Including the times Perrault hugged and kissed him, Doe 1 testified that Perrault sexually abused him close to a hundred times. Perrault also told Doe 1 that the abuse "was our secret" and that if he spoke ill of a priest he would go to hell. Id. at 1234:19–25, 1235:10–14.

2. John Does 2–3, 5–9⁶...