United States v. Porter

562 F.Supp.3d 1162

UNITED STATES of America, Plaintiff,

v.Charles PORTER, Defendants.

No. 1:21-cr-00042-JLT-SKO

United States District Court, E.D. California.

Signed April 1, 2022

Fresno Forfeiture Unit, Katherine Englander Schuh, Laura Jean Berger, Govt, Assistant US Attorneys, United States Attorney's Office, Fresno, CA, for Plaintiff.

ORDER RE MOTIONS IN LIMINE

Jennifer L. Thurston, UNITED STATES DISTRICT JUDGE

INTRODUCTION

On February 11, 2021, the grand jury returned an indictment in which it charged Defendant Charles Porter with one count of Assault with the Intent to Commit Aggravated Sexual Abuse, in violation of 18 U.S.C. § 113(a)(1) ; one count of Assault with the Intent to Commit Abusive Sexual Contact, in violation of 18 U.S.C. § 113(a)(2) ; one count of Attempted Aggravated Sexual Abuse, in violation of 18 U.S.C. § 2241(a)(1) ; one count of Abusive Sexual Contact, in violation of 18 U.S.C. § 2244(b) ; and one count of Assault by Striking or Wounding, in violation of 18 U.S.C. § 113(a)(5). (Doc. 1.) Trial is currently scheduled to commence April 4, 2022.

The allegations all relate to an incident that took place on April 14, 2020 in concession employee housing within Yosemite National Park. According to the Government, Defendant entered victim T.D.’s one-room cabin while T.D. was asleep and attempted to forcibly sexually assault T.D. Defendant allegedly punched T.D. several times during the course of the attempted assault. During the ensuing struggle, T.D. was able to yell for help and neighbors eventually removed Defendant from T.D.’s cabin.

The Government has submitted nine motions in limine for resolution before trial. (Doc. 40.) In addition, the Government has provided notice of its intent to offer the testimony of witness A.H. under Federal Rule of Evidence 413. (Doc. 41.) Defendant opposes admission of the Rule 413 evidence as well as several of the Government's motions in limine. (Doc. 51.) Oral argument on the motions took place on March 31, 2022. For the reasons discussed on the record and set forth below, the Court rules on the motions as follows.

A. Motion to Admit Testimony of A.H. Under Federal Rule of Evidence 413

The Government moves under Federal Rule of Evidence 413 to offer evidence that Defendant engaged in prior acts of sexual assault. (Doc. 41.) The proposed witness, A.H., was in a relationship with Defendant from approximately the spring of 2014 through February 2016. (Id. at 3.) A.H. lived with Defendant in Pomona, California starting in September 2015. (Id. ) While they were living together, according to the Government's proffer, Defendant physically and sexually assaulted A.H. (Id. ) The Government explains the proffered evidence and its relationship to the facts of the instant case as follows:

A.H. describes four specific sexual acts by the defendant that are strikingly similar to what T.D. describes. First, A.H. told investigators that, on more than one occasion, the defendant strangled her during sex to the point where she would lose consciousness. T.D. also described how the defendant strangled him to the point where he would lose consciousness. Second, A.H. told investigators that the defendant bit her forcefully during sex, including on her arms and chest, causing bleeding and bruising. T.D. also told investigators that the defendant bit him on his arms and his lip, and he took pictures several days after the assault that show severe bruising on his arms resulting from the defendant's bites. Third, A.H. told investigators that the defendant penetrated her anus digitally and with other objects against her consent, and in a way designed to cause her pain. T.D. told investigators that the defendant forcibly pulled down his underwear and attempted to penetrate his anus either digitally or with an object. T.D. told investigators that his anus was sore the next day. Fourth, both T.D. and A.H. also describe that the defendant pinned them down while they were lying on their backs, using his legs to prevent them from moving.

(Id. at 8.) The Government offers the evidence to corroborate T.D.’s account of the events at issue in the Indictment. (Id. at 7.)¹

Rule 413 provides that "[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." Fed. R. Evid. 413(a). The admissibility of such evidence also is subject to the balancing test set forth in Federal Rule of Evidence 403. Id. (indicating evidence admissible under Rule 413 "may be considered on any matter to which it is relevant"); see also United States v. LeMay , 260 F.3d 1018, 1022 (9th Cir. 2001). "Sexual assault" is defined for purposes of Rule 413 as "a crime under federal law or under state law ... involving: (1) any conduct prohibited by 18 U.S.C. chapter 109A; (2) contact, without consent, between any part of the defendant's body — or an object — and another person's genitals or anus; (3) contact, without consent, between the defendant's genitals or anus and any part of another person's body; (4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4)." Fed. R. Evid. 413(d).

As a threshold matter, on its face Rule 413 only applies if (1) the present case involves an accusation of a sexual assault and (2) the offered evidence also involves a sexual assault. Here, Defendant does not dispute that he is accused of at least one form of sexual assault that qualifies under Rule 413. (Doc. 51 at 1.) Defendant does argue that his relationship with A.H. was a consensual one, even if A.H. perceived some sex acts undertaken therein to be non-consensual. (See id. (arguing "the alleged assaults upon A.H. were during the course of their relationship, to which she, in part, allowed not objecting and continuing in the relationship that she knew would result in such behavior").) This argument at least arguably calls into question whether A.H. consented to Defendant's prior conduct and therefore whether that prior conduct qualifies as a "sexual assault" under Rule 413.

A prior sexual assault may be proved in many ways, including with a judgment of conviction, testimony of the victim, or the defendant's own admission. See United States v. Redlightning , 624 F.3d 1090, 1120 (9th Cir. 2010). Because Defendant's interactions with A.H. involve uncharged and contested conduct, to be admissible under Rule 413, the proffered evidence must also satisfy the rule of conditional relevance set forth in Federal Rule of Evidence Rule 104(b). See United States v. Norris , 428 F.3d 907, 913–14 (9th Cir. 2005). "When determining whether there is sufficient evidence to satisfy Rule 104(b), the court is not required to make a preliminary finding that the government has proved the conditional fact." Id. (applying standard set forth in Huddleston v. United States , 485 U.S. 681, 689, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), to admission of evidence under Rules 413 - 415 ). Rather, the court must examine all of the evidence and determine "whether the jury could reasonably find the conditional fact by a preponderance of the evidence." Id.

The Government indicates that A.H. gave several statements to law enforcement regarding her interactions with Defendant. According to the Government's proffer, A.H. told investigators that Defendant forced her to engage in sex acts against her expressed objections. At least one of A.H.’s statements was recorded and transcribed, and it was produced in discovery. Defense counsel conceded at oral argument that A.H. will testify that certain sexual interactions she had with Defendant during the course of their relationship were non-consensual. Based upon the record before the Court, and in the absence of any dispute that A.H. would testify consistently with her prior statements² , the Court finds a reasonable jury could find by a preponderance of the evidence that Defendant sexually assaulted A.H.

The Court must next evaluate whether the Rule 413 should nonetheless be excluded under Rule 403. Rule 403 provides that relevant evidence may be excluded, "if its probative value is substantially outweighed by a danger of ... unfair prejudice ..." Because Rule 413 is subject to Rule 403 balancing, it is "not a blank check entitling the government to introduce whatever evidence it wishes, no matter how minimally relevant and potentially devastating to the defendant." LeMay , 260 F.3d at 1022 ; see also id. at 1027 (urging district courts to "pay ‘careful attention to both the significant probative value and the strong prejudicial qualities’ " of propensity evidence). To determine whether to exclude under Rule 403 evidence that is admissible under Rule 413, the Ninth Circuit has instructed courts to consider the following non-exhaustive factors: (1) the similarity of the other acts to the acts charged; (2) the closeness in time of the other acts to the acts charged; (3) the frequency of the other acts; (4) the presence or lack of intervening circumstances; and (5) the necessity of the evidence beyond the testimonies already offered at trial. See LeMay , 260 F.3d at 1027–28 ; Blind–Doan v. Sanders , 291 F.3d 1079, 1082 (9th Cir. 2002) (applying factors in Rule 403 analysis of admissibility of evidence under Rule 413 ); see also Old Chief v. United States , 519 U.S. 172, 193, 117 S.Ct. 644, 136 L.Ed.2d 574, (1997) (internal quotations and citations omitted) ("Unfair prejudice as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party. Virtually all evidence is prejudicial or it isn't material. The prejudice must be unfair.").

1. Similarity

Defendant argues that his interactions with A.H. are not sufficiently similar to the allegations in this case which involve "a male acquaintance, committed outside of a sexual relationship, and allegedly with force." (Doc. 51 at 1.) The...