The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
Defendant Kevin L. Donaldson is charged with five counts of transporting and attempting to transport a minor in interstate commerce with the intent to engage in sexual activity, in violation of 18 USC §§ 2423(a) and (e). Three of the counts are related to defendant's alleged transportation of his two minor step-daughters ("Victim 1" and "Victim 3"). Two counts are related to defendant's alleged transportation of his minor niece ("Victim 2").
Defendant is also charged with one count of witness tampering in violation of 18 USC § 1512(b)(1). This count is related to letters allegedly sent by defendant to Victim 2, asking her to testify on his behalf at trial.
A Fourth Superseding Indictment alleges that defendant, an over-the-road truck driver, took each Victim as a passenger on one or more separate interstate trucking trips with the intent to engage in sexual contact, and did in fact sexually assault or rape the Victims on each trip. The interstate trucking trips occurred from in or around April 2004 through in or around July 2007.
Separate and apart from the alleged conduct during the interstate trucking trips that form the basis of the Fourth Superseding Indictment, Victim 1 and Victim 2 state that Defendant raped them on other occasions. These other alleged rapes occurred in New York, and are not part of the instant federal charges. Specifically, Victim 2, defendant's niece, alleges that defendant raped her at his residence in Mount Morris, New York, in the summer of 2003. Victim 1, defendant's step-daughter, alleges that defendant raped her at his residence in Mount Morris, New York in 2004. Victim 1 also alleges that Defendant raped her at his residence in January 2009. In November 2009, following a three day jury trial in New York state court, defendant was convicted of rape in the 3rd degree
and endangering the welfare of a child. The conviction arose from the January 2009 rape of Victim 1.
The Government has made a motion in limine to admit evidence of these other alleged rapes of Victim 1 and Victim 2 and Defendant's November 2009 rape conviction, pursuant to Federal Rules of Evidence 413 and 414, to show defendant's propensity to commit the offenses charged. The evidence sought to be admitted pursuant to Rules 413 and 414 specifically includes: (1) the fact of, and the underlying facts supporting, defendant's November 2009 state court conviction for rape of Victim 1; (2) defendant's alleged rape of Victim 1 at his residence in 2004; and (3) defendant's alleged rape of Victim 2 at his residence in 2003.*fn1 The Government intends to introduce this evidence through the direct testimony of Victim 1 and Victim 2.*fn2 The Government also intends to offer, as exhibits, defendant's November 2009 certified state court conviction for rape of Victim 1 and a recording of a January 2009 telephone call between Victim 1 and defendant, during which defendant makes statements evincing a consciousness of guilt. Defendant contends that while this evidence may be technically admissible, its probative value is substantially outweighed by its danger of unfair prejudice. Thus, defendant contends that it should be excluded pursuant to Federal Rule of Evidence 403.
In addition to the evidence regarding defendant's prior rapes, the Government seeks to introduce, in its case-in-chief, three derogatory or sexually explicit comments made by defendant in or around 2007. The Government contends that these statements are admissible pursuant to Federal Rule of Evidence of 404(b), as they demonstrate that defendant is "obsessed with sex" and therefore has motive to commit the instant offenses. The Government also states that should defendant testify, the Government intends to cross-examine him regarding his September 1994 conviction for theft of services, his August 1998 conviction for criminal possession of a forged instrument, and his failure to abide by a March 2009 Cattaraugus County Family Court order. Defendant objects to the use of any of this evidence.
As explained in detail below, the Court finds that the Government may elicit testimony from Victims 1 and 2 regarding other alleged rapes by defendant. The Court finds that the Government is also permitted to introduce a certified record of defendant's November 2009 state court conviction for rape of Victim 1 and the January 2009 recorded telephone call between defendant and Victim 1. In order to ensure that the jury keeps the evidence of alleged prior rapes in proper perspective, a limiting instruction will be provided at the time the evidence is first admitted and again during the final jury charge. The Government has submitted proposed limiting instructions, which the Court has taken under advisement.
However, the Government is not permitted to introduce defendant's sexually explicit comments or statements from 2007 nor is the Government permitted to cross-examine defendant regarding his prior convictions for theft of services and possession of a forged instrument, or his violation of the family court order.
Rule 413 and 414 Evidence
Generally, propensity evidence, or proof that a defendant engaged in similar conduct before and that, therefore, he or she is likely guilty of the charged act, is inadmissible. See Fed. R. Evid. 404(b). However, in 1994, Congress specifically altered this rule with respect to sex offense cases by adopting Rules 413 and 414 of the Federal Rules of Evidence. Federal Rule of Evidence 413(a) provides that "in a criminal case in which the defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault and the evidence may be considered on any matter to which it is relevant." Fed. R. Evid. 413(a). Similarly, Federal Rule of Evidence 414(a) provides that "in a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant." Fed. R. Evid. 414(a). Now, in sexual assault and child molestation cases, evidence that a ...