United States v. Clark Betts, Jr. , 911 F.3d 523 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3592
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Clark Wesley Betts, Jr.
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: September 28, 2018
Filed: December 18, 2018
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Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
In June 2017, a jury found Clark Wesley Betts, Jr., guilty of one count of sex
trafficking of a minor under the age of 18, one count of sex trafficking of a minor
under the age of 14, and three counts of distribution of crack cocaine to a person
under the age of 21 in violation of 18 U.S.C. §§ 2, 1591 and 21 U.S.C. §§ 841(a)(1),
859. Betts appeals his conviction, alleging multiple evidentiary errors. Having
jurisdiction under 28 U.S.C. § 1291 and for the reasons set forth below, we affirm the
judgment of the district court.1
I.
In early 2016, Betts, a crack cocaine addict, taught his 15-year-old daughter,
T.B., how to use the drug. He began smoking crack cocaine with T.B. multiple times
a week until she became addicted. On one occasion, while both Betts and T.B. were
high, Betts had sexual intercourse with T.B. and told her he would continue to
provide her with crack cocaine only if she continued to have sexual intercourse with
him. Betts later asked T.B. if her 12-year-old cousin, A.K., would be interested in
smoking crack cocaine with them. T.B. discussed the matter with A.K., and on a later
date, Betts and T.B. taught A.K. how to smoke the substance. A.K. also became
addicted to crack cocaine. During an overnight trip with the two girls, Betts broached
the topic of having sexual intercourse with A.K., pressuring her to agree. Betts then
had sexual intercourse with T.B. in front of A.K. before having sexual intercourse
with A.K. in front of T.B. After the trip, Betts continued to ply the girls with crack
cocaine and have sexual intercourse with them in front of each other, at times using
force or restraint to do so.
In the spring of 2016, Betts first brought A.K. and T.B. to the house where he
bought crack cocaine from drug dealer Vance Cooper. Betts often lingered in the
house after his purchases to smoke with Cooper and Cooper’s housemate, Robert
Terry. Betts began bringing the girls to the house to purchase drugs and smoke with
Cooper and Terry multiple times a week. On one occasion, T.B. and A.K. performed
a sexual “dance” for Betts, Cooper, and Terry, for which Cooper gave them crack
cocaine. On another occasion, Betts dropped A.K. off at the house so that she could
1
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
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exchange sexual acts for crack cocaine for herself and Betts. Betts agreed to allow
T.B. to do the same.
Betts thought one of T.B.’s friends, M.M., was attractive and wanted to
introduce her to Cooper. Betts brought T.B. and M.M. to Cooper’s residence and
purchased crack cocaine for them. M.M. did not exchange any sexual acts for the
drugs because she quickly had to leave, having received a phone call from her
mother.
In late March 2016, Betts was arrested for a probation violation. A few months
later, Cooper and Terry were arrested on federal drug charges. Cooper identified
Betts as his most frequent customer, admitting that Betts had trafficked his female
relatives in exchange for crack cocaine. Law enforcement conducted welfare checks
on the girls. In her first forensic interview in August 2016, A.K. denied that Betts
allowed Cooper to engage in sex with her or T.B. However, in her second interview
in February 2017, she admitted that she lied and that the allegations were true. In
April 2017, a grand jury indicted Betts for sex trafficking and distribution of crack
cocaine.
At Betts’s trial, the government tied Betts’s trafficking of T.B. and A.K. to a
larger pattern of grooming. It sought to introduce evidence of an incident occurring
in March 2015, at M.M.’s birthday party, at which Betts plied T.B., M.M., and other
minor girls with alcohol and attempted to elude a police chase. The government also
wanted to introduce evidence of Betts’s prior sexual abuse of T.B. and A.K. as well
as physical violence he exhibited and that T.B. and A.K. observed. Betts moved in
limine to exclude the evidence. The district court admitted the evidence of the March
2015 incident and conditionally admitted evidence of Betts’s past violent behavior
provided that the government’s expert linked the girls’ observation of Betts’s
violence to their later acquiescent behavior. When an expert on sexual abuse victims
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testified that viewing an abuser’s violence makes a victim less likely to resist or
disclose abuse, the district court admitted the evidence.
The government sought to exclude Betts’s evidence that T.B. and A.K. had
returned to Cooper’s house to exchange sexual acts for crack cocaine after Betts’s
arrest and while he was incarcerated. Pursuant to Fed. R. Evid. 412, the district court
excluded the sexual component of the testimony, allowing the jury to hear only that
T.B. and A.K. had returned to the house for drugs.
Both T.B. and A.K. testified at Betts’s trial. During cross-examination of A.K.,
defense counsel asked whether her initial forensic interview “exonerated” Betts. The
government objected, noting the question called for a legal conclusion. The district
court sustained the objection. It then prevented Betts’s counsel, who was holding a
transcript of A.K.’s forensic interview, from going through the transcript to point out
inconsistencies between it and her later testimony, stating, “Once she admitted she
made the inconsistent statements [in the first interview], the extrinsic [evidence] of
[them] is not admissible[.]” The jury found Betts guilty on all counts. The district
court sentenced Betts to life imprisonment on the sex trafficking counts and 40 years
on each of the three drug charges, all to run concurrently.
II.
Betts first contends that the district court violated his Sixth Amendment right
to confront A.K. when it restricted his cross-examination of her. “We review
evidentiary rulings regarding the scope of a cross examination for abuse of discretion,
but where the Confrontation Clause is implicated, we consider the matter de novo.”
United States v. Kenyon, 481 F.3d 1054, 1063 (8th Cir. 2007) (citations omitted).
While “the Confrontation Clause guarantees an opportunity for effective cross-
examination,” it does not guarantee “cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474
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U.S. 15, 20 (1985) (per curiam). “To state a viable Confrontation Clause challenge
to the district court’s decision to limit cross-examination, the defendant must
establish ‘that a reasonable jury might have received a significantly different
impression of a witness’s credibility had counsel been permitted to pursue the
proposed line of cross-examination.’” United States v. Petters, 663 F.3d 375, 382
(8th Cir. 2011) (quoting United States v. Dale, 614 F.3d 942, 957 (8th Cir. 2010)).
“We will not reverse a court’s decision to limit cross examination ‘unless there has
been a clear abuse of discretion and a showing of prejudice to the defendant.’”
United States v. Williams, 796 F.3d 951, 961 (8th Cir. 2015) (quoting Petters, 663
F.3d at 382).
Betts alleges that the district court erred in precluding him from further cross-
examination of A.K. with respect to her first forensic interview, arguing this
prevented him from fully presenting his defense that he was entirely uninvolved in
sex trafficking the girls. However, prior to the district court’s limitation of his
questioning, Betts had the opportunity to mention several inconsistencies between
A.K.’s first forensic interview and her later allegations without objection from the
government or the district court. For instance, under questioning, A.K. admitted that
she originally suggested T.B., not Betts, first introduced her to crack cocaine and that
Betts did not want the girls to start the drug. Even after the district court’s
intervention, Betts cross-examined A.K. about inconsistencies in her second forensic
interview, including that she had said Betts was passed out during the sexual “dance”
and that he did not sell her and T.B. on purpose. At one point, defense counsel asked
A.K., “You stated to law enforcement . . . that Mr. Betts did not have any sexual
activity with you or supply drugs to you?” and A.K. responded, “Yes.” That defense
counsel asked A.K. about the crux of his defense—that he was entirely uninvolved
in trafficking her—particularly suggests that the cross-examination in this case was
not unfairly limited. Additionally, because defense counsel demonstrated that A.K.’s
testimony was inconsistent in various respects, Betts has failed to establish that the
jury would have received a “significantly different impression” of A.K.’s credibility
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had he been able to cross-examine A.K. further as to inconsistencies between her trial
testimony and the prior interviews. Petters, 663 F.3d at 382. Thus, we find that the
district court’s action did not violate the Confrontation Clause or constitute a clear
abuse of discretion.
III.
Betts next argues that the district court violated his Sixth Amendment
confrontation rights by excluding, under Fed. R. Evid. 412, evidence demonstrating
that T.B. and A.K. returned to Cooper’s house to exchange sexual acts for crack
cocaine while Betts was in post-arrest custody. We review evidentiary rulings for
abuse of discretion. United States v. Roy, 781 F.3d 416, 419 (8th Cir. 2015).
“[W]here the Confrontation Clause is implicated, we consider the matter de novo.”
Kenyon, 481 F.3d at 1063 (citation omitted).
In sexual misconduct cases, Rule 412 generally excludes “any evidence about
a victim’s sexual behavior[.]” Wilson v. City of Des Moines, 442 F.3d 637, 642 (8th
Cir. 2006) (citing Fed. R. Evid. 412(a)). Rule 412’s limitations “on a defendant’s
ability to present evidence ‘[are] not arbitrary or disproportionate to the purpose it is
designed to serve,’ because the exclusion serves an important interest—the
prevention of ‘potential embarrassment or harassment of alleged victims of sexual
abuse.’” United States v. Elbert, 561 F.3d 771, 776 (8th Cir. 2009) (quoting United
States v. Bordeaux, 400 F.3d 548, 558 (8th Cir. 2005)).
Here, Betts’s argument fails both procedurally and substantively. Procedurally,
a party seeking to introduce evidence of a victim’s other sexual behavior under one
of Rule 412’s exceptions must “file a motion that specifically describes the evidence
and states the purpose for which it is to be offered” no less than 14 days before trial.
Fed. R. Evid. 412(c). The motion must notify the victim or her guardian of the use
of the evidence. Id. Betts filed no such notice in this case. This failure alone
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constitutes “sufficient grounds to uphold the district court’s decision” to exclude the
evidence. Roy, 781 F.3d at 421 (quoting United States v. Eagle, 137 F.3d 1011, 1015
(8th Cir. 1998)).
Betts attempts to avoid this procedural bar by alleging that, substantively, the
evidence does not constitute “other sexual behavior” by the victims but rather the
same behavior—engaging in sexual acts with Cooper and Terry—alleged throughout
the case. Therefore, he argues he does not need to qualify his evidence under a Rule
412 exception because Rule 412 should not apply at all. However, that the girls
prostituted themselves at some later date does not make it any less likely that, during
the times alleged, Betts trafficked them, too. See id. at 420 (“The victim’s
participation in prostitution either before or after the time period in the indictment has
no relevance to whether [the defendant] . . . cause[d] her to engage in commercial
sex.”). This is particularly true given that both A.K. and T.B. were minors who could
not consent to engaging in sexual activity with another. See Elbert, 561 F.3d at 777(“Whether the children engaged in acts of prostitution before or after their encounters
with [the defendant] is irrelevant, and would only prove other people may be guilty
of similar offenses of recruiting, enticing, or causing these victims to engage in a
commercial sex act.”). Furthermore, the district court did not, in fact, preclude Betts
from presenting any such evidence. The jury heard that the girls returned to Cooper’s
house for drugs and that Terry committed a sex act against A.K. after Betts’s
incarceration. Therefore, the district court did not violate Betts’s confrontation rights
or abuse its discretion in limiting the evidence.
IV.
Finally, Betts contends that the district court erred in admitting prior bad acts
evidence against him. “We review a district court’s decision to admit evidence for
an abuse of discretion.” United States v. O’Dell, 204 F.3d 829, 833 (8th Cir. 2000)
(citing United States v. McMurray, 34 F.3d 1405, 1411 (8th Cir. 1994)).
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Under Fed. R. Evid. 404(b), the government may introduce extrinsic evidence
of a defendant’s prior bad acts only for a limited class of permitted uses, such as
proving motive. However, Rule 404 does not limit intrinsic evidence offered to
provide “the context in which the charged crime occurred.” United States v.
Johnson, 463 F.3d 803, 808 (8th Cir. 2006) (citing United States v. Forcelle, 86 F.3d
838, 842 (8th Cir. 1996)). Nonetheless, the probative value of intrinsic evidence must
not be substantially outweighed by its prejudicial effect. O’Dell, 204 F.3d at 834.
The district court admitted evidence of Betts supplying alcohol to minor girls,
including T.B. and M.M.; sexually assaulting T.B. and A.K.; and behaving violently
in front of T.B. and A.K. At a motion hearing, the district court identified these
behaviors as being intrinsic to the government’s “theory of the case” that Betts
“progressively groomed” the girls “by first supplying alcohol” and eventually
“pimping the girls out to his crack cocaine suppliers.” At trial, it again deemed the
evidence intrinsic and did not include a Rule 404(b) jury instruction.
The evidence here supplied necessary context by “fill[ing] the gaps in the jury’s
understanding of the crime charged.” United States v. Young, 753 F.3d 757, 770 (8th
Cir. 2014). Evidence of Betts’s grooming of T.B. and A.K. provided contextual
background explaining that the girls used hard drugs and participated in sexual
activity with their father and uncle. The evidence allowed the jury to reasonably infer
that Betts used drugs and alcohol as a “carrot” and violence as a “stick” to control his
relationship with the girls over time. See United States v. Campbell, 49 F.3d 1079,
1084 (5th Cir. 1995) (describing a similar pattern of treatment in a sex trafficking
context). The evidence was more probative than prejudicial, as it demonstrated that
Betts actively controlled the girls’ behavior rather than passively remained present
as bad acts occurred around him. Therefore, the district court did not abuse its
discretion in admitting the prior bad acts evidence.
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V.
For the foregoing reasons, we affirm.
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