\DEFENDANT'S SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION IN LIMINE
COMES NOW the defendant,________________________ by and through his attorney,
__________, Assistant Federal Public Defender, and files this Supplemental Brief in support of his Motion In Limine Regarding Alleged Prior Sexual Assaults.
INTRODUCTION
Federal Rules of Evidence 413, 414, and 415 were added to the final version of the Violent Crime Control and Law Enforcement Act of 1994. Rule 414 provides in pertinent part as follows:
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 or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. Rule 413 contains the same provision with the substitution of "sexual assault" for "child molestation."
The Act established a mechanism by which the rules would take effect in lieu of the longstanding Rules Enabling Act process which garnered input from the entire legal community. See 28 U.S.C. 2071-2077 (1994) and Fed. R. Evid. 1102. The effective date of the act was delayed 150 days in order for the Judicial Conference of the United States to review the rules and submit recommendations to Congress. If the Judicial Conference recommendations differed from the rules, an additional 150 days was provided for Congress to act on the recommendations. If Congress failed to act on the recommendations, the rules became law. That, in fact, is what occurred. The Judicial Conference recommended rejection of the proposed rules; Congress failed to act and the rules became effective on July 9, 1995. See Federal Rules of Evidence for the United States Court and Magistrates (West Publishing Co. September, 1995: Supplement, at 6)
The Report of the Judicial Conference, noted "the highly unusual unanimity of the members of the Standing and Advisory Committees, composed of over 40 judges, practicing lawyers, and academicians, in taking the view that Rules 413-415 are undesirable." The Judicial Conference noted the lack of empirical support for the new rules. The Report pointed to the danger that the new rules would allow admission of unfairly prejudicial evidence that would result in convictions based on past, rather than charged, behavior and on assessments that the defendant is a bad person.
The Report also noted that the new rules were poorly drafted. The language of Rules 413 and 414, quoted above, is mandatory. It provides without qualification that the evidence in question "is admissible," unlike Rule 412, which provides that evidence "is admissible if it is otherwise admissible under these Rules." (citing Rule 412(b)(2)). There is a serious question whether other evidence rules apply, including the hearsay rules and the Rule 403 balancing test. If judges have no discretion in admitting propensity evidence under Rules 413 and 414, the constitutionality of the rules is particularly questionable.
Rules 413 and 414 radically revised both the rules governing character evidence and the structure of the Federal Rules of Evidence. For the first time, Congress has provided for case-specific rules. Prosecutors may introduce character evidence under rules 413 and 414 in sexual assault and child molestation cases that would otherwise be excluded under Rule 404(a).
I. RULES 413 AND 414 ARE INAPPLICABLE TO THIS CASE BECAUSE IT COMMENCED OR SHOULD HAVE COMMENCED PRIOR TO THE EFFECTIVE DATE OF THE RULES.
The defendant is charged with one count of aggravated sexual abuse in violation of 18 U.S.C. 2241(c). Specifically, he is charged with digital penetration of his niece, (L), in the early morning hours of July 6, 1994. On July 6, 1994, the allegations were reported to the authorities, and (L) was given a medical examination for sexual abuse.
On July 7, 1994, the investigating government agents interviewed (L) and defendant's wife, about the allegations. On July 8, 1994, the investigating agents interviewed (X) about allegations that defendant had previously sexually assaulted her. The government has given notice that they seek to admit (X's) allegations under Fed.R.Evid. 404(b) and 414.
On July 11, 1994, the investigating agents, Gregory E. Calles of the FBI and Sampson Cowboy of the Navajo Department of Public Safety, interrogated defendant about these allegations in the Crownpoint, New Mexico, jail. Allegedly, defendant gave a statement concerning the charges. Despite initiating the investigation of the allegations on July 6, 1994, and completing the interviews and interrogations of the principles involved by July 11, 1994, the government did not file the indictment against defendant until August 2, 1995.
The legislation enacting rules 413 and 414 provide that the rules would apply only "to proceedings commenced on or after the effective date" of the rules. P.L. 103-322, Title XXXII, 320935(e). Rules 413 and 414 became effective on July 9, 1995. Rules 413 and 414 and their enacting legislation do not state when the proceedings are commenced. The court should find that the proceedings commenced or should have commenced before the effective date of the rules.
Since the government delayed in indicting defendant, the Court should find that the proceedings commenced on July 11,1994, when defendant was interrogated in custody by government agents. The purpose of the interrogation on July 11, 1994 of defendant was not to gather information but to coerce the confession. The government agents had already decided to prosecute defendant.
If it is determined that a proceeding commences at the filing of the indictment, the Court should still not apply Rules 413 and 414 to the instant cause. The government should not be allowed to benefit from their preindictment delay.
In order to establish that preindictment delay violated his constitutional rights, a defendant must show that he is substantially prejudiced by the delay and that the reasons for the prosecutor's delay are improper. Gutierrez v. Moriarty, 922 F.2d 1464, 1472 (10th Cir.), cert. denied, 112 S.Ct. 140 (1991). Pre-indictment delay violates the Due Process Clause when it violates those fundamental conceptions of justice which lie at the base of our civil and political institutions, and which define the community's sense of fair play and decency." U.S. v. Lovasco, 431 U.S. 783, 790 (1977). The Court has singled out for particular disapproval delay solely "to gain tactical advantage over the accused." U.S. v. Marion, 404 U.S. 307, 324 (1971).
In this case, the prosecutor deviated from "fundamental conceptions of
justice" and fair play by delaying the indictment until after July 9, 1995, the
effective date of Rule 414. It should be noted that defense counsel reviewed the cases
that the Office of the Federal Public Defender was appointed to in May, June, July and
August, 1995. In May and June, 1995, the Office of the Public Defender was not appointed
to any sex cases where Rule 413 and 414 were an issue. However, in August 1995, the Office
of the Federal Public Defender was appointed to at least two sex cases where the alleged
incident occurred during the summer of 1994 and the defenDD((IfXJ)Xv ;ц
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