United States v. George Deputee , 714 F. App'x 778 ( 2018 )

FILED
NOT FOR PUBLICATION
MAR 12 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30295
Plaintiff-Appellee, D.C. No.
CR 15-21-BLG-SPW
v.
GEORGE CHAD DEPUTEE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted March 6, 2018**
Seattle, Washington
Before: RAWLINSON and CHRISTEN, Circuit Judges, and BENCIVENGO,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Cathy Ann Bencivengo, United States District Judge
for the Southern District of California, sitting by designation.
George Chad Deputee appeals a jury verdict finding him guilty on two
counts of sexual abuse of a minor in violation of 18 U.S.C. §§ 1153(a), 2241(c),
and 2244(a)(1). He argues that the district court erred when it admitted testimony
from the victim’s sister (“Sister”) about uncharged sexual abuse by Deputee. We
have jurisdiction under 28 U.S.C. § 1291 and affirm.
Deputee does not dispute that Sister’s testimony fell within the scope of
Federal Rules of Evidence 413 and 414, which permit the admission of evidence
that the defendant committed any other sexual assault, or any other child
molestation, respectively. Instead, Deputee contends that the district court did not
balance whether Sister’s testimony about uncharged abuse was more probative
than prejudicial pursuant to Rule 403.
When determining whether to admit evidence of a defendant’s prior acts of
sexual misconduct under Rule 403, the district court should consider factors
including “(1) ‘the similarity of the prior acts to the acts charged,’ (2) the
‘closeness in time of the prior acts to the acts charged,’ (3) ‘the frequency of the
prior acts,’ (4) the ‘presence or lack of intervening circumstances,’ and (5) ‘the
necessity of the evidence beyond the testimonies already offered at trial.’” United
States v. LeMay, 260 F.3d 1018, 1028 (9th Cir. 2001) (quoting Doe ex rel. Rudy-
Glanzer v. Glanzer, 232 F.3d 1258, 1268 (9th Cir. 2000)). The district court
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considered each of these factors when it denied Deputee’s motion in limine to
exclude Sister’s testimony about Deputee’s uncharged abuse. We therefore review
the district court’s ruling for an abuse of discretion. Id. at 1024.
Deputee contends that the district court abused its discretion because it did
not consider the credibility of Sister’s testimony. Specifically, Deputee argues that
the requirements of Federal Rule of Evidence 104(b) were not satisfied. Rule
104(b), however, did not require the district court to weigh Sister’s credibility or
determine that the government had proved that Deputee abused Sister by a
preponderance of the evidence. The district court was required only to examine
“all the evidence in the case and decide[] whether the jury could reasonably find
the conditional fact—[here, that Deputee had abused Sister]—by a preponderance
of the evidence.” Huddleston v. United States, 485 U.S. 681, 690 (1988). Sister’s
testimony was sufficient, without more, to allow a jury to find by a preponderance
that Deputee had abused Sister. See United States v. Redlightning, 624 F.3d 1090,
1120 (9th Cir. 2010). Accordingly, Sister’s testimony satisfied Rule 104(b), and
the district court did not abuse its discretion when it admitted Sister’s testimony
under Rules 403, 413, and 414.
AFFIRMED.
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