United States v. Joubert

980 F. Supp. 2d 47, 2013 DNH 143, 2013 WL 5878955, 2013 U.S. Dist. LEXIS 157921
CourtDistrict Court, D. New Hampshire
DecidedOctober 28, 2013
DocketCriminal No. 12-cr-142-JL
StatusPublished

This text of 980 F. Supp. 2d 47 (United States v. Joubert) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Joubert, 980 F. Supp. 2d 47, 2013 DNH 143, 2013 WL 5878955, 2013 U.S. Dist. LEXIS 157921 (D.N.H. 2013).

Opinion

MEMORANDUM ORDER

JOSEPH N. LAPLANTE, District Judge.

In advance of his jury trial on three counts of sexual exploitation of children, see 18 U.S.C. § 2251(a), and one count of possession of child pornography, see 18 U.S.C. § 2252A(a)(5), defendant Robert Joubert has filed a motion in limine seeking the court’s rulings on the admissibility of certain evidence. See L. Cr. R. 12.1(c). Specifically, Joubert asks the court to exclude from the prosecution’s case-in-chief evidence (a) of his sexual misconduct with minors other than “John Doe #2,” the alleged victim of the crimes with which Joubert is charged; and (b) that he took non-pornographic videos and photographs of children “engaged in sports or other outdoor activities.”1 After reviewing the [49]*49parties’ submissions and hearing oral argument, the court rules on the motion in limine as set forth below.

I. Sexual misconduct with other minors

Joubert first moves to exclude evidence that he “engaged in sexual misconduct or other inappropriate behavior with any minor child” other than “John Doe # 2,” the alleged victim of the crimes with which he is charged. While acknowledging that “Rule 414(a) of the Federal Rules of Evidence permits admission in a child molestation case of evidence that the defendant molested any other child,” Joubert argues that the court should nonetheless exclude such evidence under Rule 403 because any probative value it has “is substantially outweighed by the risk that [Joubert] would be unfairly prejudiced by the jury improperly considering that evidence to show propensity to molest minors.” Rule 414(a), however, contemplates that the jury will use the evidence for exactly that purpose, so any prejudice to Joubert from its introduction cannot be characterized as unfair. Joubert’s motion is therefore denied (with one exception discussed below) insofar as it seeks to exclude such evidence.

Ordinarily, the Federal Rules of Evidence prohibit a party from using a person’s prior acts “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed.R.Evid. 404(b)(1). In other words, the rules prohibit the prosecution from introducing “evidence that is extrinsic to the crime charged” solely “for the purpose of showing villainous propensity.” United States v. Roszkowski, 700 F.3d 50, 56 (1st Cir.2012). Rule 414(a), however, provides that “[i]n a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation” and that this “evidence may be considered on any matter to which it is relevant.” This rule “supersede^] Rule 404(b)’s prohibition on evidence of like conduct showing propensity in [molestation] cases.” Martinez v. Cui 608 F.3d 54, 59 (1st Cir.2010); see also United States v. Stokes, 726 F.3d 880, 896 (7th Cir.2013) (Rule 414 “overrides] the propensity bar” in Rule 404); United States v. Davis, 624 F.3d 508, 511-12 (2d Cir.2010) (Rule 414 “is an exception to the usual proscription against admission of prior crimes” to show propensity).

Yet Rule 414(a) does not permit the introduction of any and all evidence of other acts of child molestation in a molestation prosecution. The rule remains subject to scrutiny under Rule 403, which permits the court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” See Cui, 608 F.3d at 60; United States v. Majeroni No. 13-cr-37, 2013 WL 4852317, *1 (D.Me. Sept. 10, 2013). In seeking exclusion of evidence of his alleged molestation of children other than “John Doe #2,” Joubert invokes this principle. He argues that there is a significant danger of unfair prejudice because the jury may “draw the improper inference that evidence of uncharged sex acts against other [50]*50minors shows that he committed the acts charged,” i.e., that the jury will consider evidence of other acts of molestation by him “to show propensity to molest minors.”

Although, as noted at the beginning of this section, Joubert pays lip service to Rule 414(a), this argument ignores that rule entirely. As just discussed, Rule 414(a) explicitly permits the jury to infer from a defendant’s prior acts of molestation that he was more likely to have committed the act of molestation of which he stands accused. In fact, the Court of Appeals has instructed the district courts of this circuit to keep in mind the fact that Rule 414 “reflects a congressional judgment to remove the propensity bar to admissibility of certain evidence” when applying Rule 403 to Rule 414 evidence. Cui, 608 F.3d at 59. So there is nothing improper or unfair about the jury drawing the inference that Joubert has a propensity to molest children from evidence of other, uncharged acts of molestation. See United States v. Bentley, 561 F.3d 803, 815 (8th Cir.2009) (“Because propensity evidence is admissible under Rule 414, the fact that evidence of prior acts suggests a propensity to molest children is not unfair prejudice.”) (emphasis in original; internal quotations omitted). Stated plainly, Rule 414 evidence “cannot be excluded under Rule 403 simply because it tends to show that the defendant has a propensity to commit a sex offense.”2 United States v. Loughry, 660 F.3d 965, 970 (7th Cir.2011).

To be sure, there may be other reasons that the probative value of evidence that a defendant committed other acts of child molestation is substantially outweighed by one of the concerns identified in Rule 403. The probative value of evidence of some acts may be diminished because those acts are dissimilar to, or distant in time from, the acts of which the defendant is accused. Some acts may present a risk of unfair prejudice because they are even more abhorrent in nature than the acts charged in the indictment. If the other acts are numerous, evidence of them may be needlessly cumulative (although, arguably, a greater number of other acts demonstrates a greater propensity to commit such acts).

Joubert’s motion, however, does not argue that these factors—or any other factors that take the other acts of child molestation the government might seek to introduce outside Rule 414’s heartland— are present in this case. And, based upon the prosecution’s description of the evidence it intends to offer regarding those other acts, no such factors are present.

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Related

Martinez v. Cui
608 F.3d 54 (First Circuit, 2010)
United States v. Davis
624 F.3d 508 (Second Circuit, 2010)
United States v. Varoudakis
233 F.3d 113 (First Circuit, 2000)
United States v. Giggey
551 F.3d 27 (First Circuit, 2008)
United States v. Phillip Sanchez
440 F. App'x 436 (Sixth Circuit, 2011)
United States v. Loughry
660 F.3d 965 (Seventh Circuit, 2011)
United States v. Douglas Ebersbach
489 F. App'x 635 (Fourth Circuit, 2012)
United States v. Roszkowski
700 F.3d 50 (First Circuit, 2012)
State v. Byington
977 P.2d 211 (Idaho Court of Appeals, 1998)
State v. Byington
977 P.2d 203 (Idaho Supreme Court, 1999)
United States v. Bentley
561 F.3d 803 (Eighth Circuit, 2009)
United States v. Charles Stokes
726 F.3d 880 (Seventh Circuit, 2013)

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Bluebook (online)
980 F. Supp. 2d 47, 2013 DNH 143, 2013 WL 5878955, 2013 U.S. Dist. LEXIS 157921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joubert-nhd-2013.