United States v. Perrault

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 21, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2184
ARTHUR PERRAULT,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:17-CR-02558-MV-1)
_________________________________
Aric Elsenheimer, Assistant Federal Public Defender, Albuquerque, New Mexico, for
Defendant-Appellant.
Sean J. Sullivan, Assistant United States Attorney (John C. Anderson, United States
Attorney, with him on the briefs), Albuquerque, New Mexico, for Plaintiff-Appellee.
_________________________________
Before PHILLIPS, SEYMOUR, and CARSON, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
In the early 1990s, a television reporter in Albuquerque, New Mexico, began
investigating reports that a well-known Catholic priest had sexually abused numerous
boys during his decades-long tenure at several local parishes. Upon learning of the
imminent, breaking-news story, that priest, Arthur Perrault, departed early for a
previously planned sabbatical. Foregoing his original plans to stay in the United
States, he instead opted for an international destination. After a two-week sojourn in
Canada, Perrault made a new life in Morocco—a country, as it so happens, that
doesn’t share an extradition treaty with the United States.
Fast-forward twenty-five years. In 2017, a federal grand jury sitting in the
District of New Mexico charged Perrault with seven counts of sexual abuse, all
stemming from Perrault’s relationship with John Doe 1 in the early 1990s. Doe 1 was
about age ten at the time of the charged abuse. The Moroccan government agreed to
expel Perrault, the FBI brought him back from Morocco, and Perrault stood trial in
the community he had fled over two decades earlier. During the trial, seven other
victims testified that Perrault had sexually abused them when they were just boys.
The jury convicted Perrault of all seven counts.
To hear Perrault tell it, his trial was more character assassination than solemn
search for the truth. On that score, he faults the district court for permitting so many
former victims to testify. He also argues that the district court plainly erred in seating
the jurors that convicted him, who, according to Perrault, had predetermined his guilt
before hearing any evidence. Perrault also disputes certain jury instructions as well as
his sentence.
We don’t share Perrault’s view of the proceedings in the trial court. Rather,
after reviewing the record, the parties’ briefing, and the relevant law, we are
convinced that Perrault received a fundamentally fair trial in compliance with his
constitutional rights. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
2
BACKGROUND
I. Events Leading Up to Perrault’s Trial
From the mid-1960s to 1992, Perrault was a Catholic priest at several parishes
in Albuquerque, New Mexico. Most of Perrault’s acts underlying the Indictment’s
charges occurred while he served as the pastor of St. Bernadette’s Church, though
other victims encountered Perrault while he was a priest at Our Lady of Guadalupe
Church and Our Lady of the Assumption. As detailed below, numerous victims
testified that Perrault sexually abused them over the three decades Perrault was a
Catholic priest in Albuquerque.1
In 1992, a local television reporter began investigating allegations that Perrault
had sexually abused young boys. Almost immediately after learning of the
investigation, Perrault told his congregation that he would be taking a sabbatical in
Canada, not in Denver, Colorado, as he had planned. After spending two weeks in
Vancouver, Canada, Perrault flew to Morocco, where he lived for the next twenty-
five years.
In September 2017, a federal grand jury charged Perrault with six counts of
aggravated sexual abuse, see 18 U.S.C. § 2241(c), and one count of abusive sexual
contact, see 18 U.S.C. § 2244(a)(5). The charges, summarized in the chart below, all
relate to Doe 1, whom Perrault abused in 1991 and 1992.
1
In addition to the eight victims who testified at trial, the government
represented that it “is aware of dozens of additional victims” who have made similar
allegations against Perrault. R. vol. 1 at 568 n.3.
3
Count Act Alleged Location Statute Violated
1 Digital Kirtland Air §§ 2241(c),
penetration of Force Base 2246(2)(C)
Doe 1’s anus
2 Digital Kirtland Air §§ 2241(c),
penetration of Force Base 2246(2)(C)
Doe 1’s anus,
separate and apart
from the act
charged in Count
1
7 Digital Santa Fe National §§ 2241(c),
penetration of Cemetery 2246(2)(C)
Doe 1’s anus
3 Contact between Kirtland Air §§ 2241(c),
Perrault’s mouth Force Base 2246(2)(B)
and Doe 1’s penis
6 Contact between Santa Fe National §§ 2241(c),
Perrault’s mouth Cemetery 2246(2)(B)
and Doe 1’s penis
4 Touching Doe 1’s Kirtland Air §§ 2241(c),
genitalia directly Force Base 2246(2)(D)
5 Touching Doe 1’s Kirtland Air §§ 2244(a)(5),
genitalia directly Force Base 2246(3)
and through the
clothing
In 2018, FBI Agents traveled to Morocco to return Perrault to the United
States to stand trial. Sometime earlier, the Moroccan government agreed to expel
Perrault, and it held him in custody until the FBI came to retrieve him. While Perrault
was detained in Morocco, a state department official visited him to ensure that the
Moroccan government had been treating him properly. During this visit, Perrault
4
expressed frustration that the United States was continuing to pursue charges against
him related to sexual abuse but admitted to “many transgressions” that the Catholic
Church “had dealt with” in the 1980s and 1990s. R. vol. 3 at 1306:6–12.
On the flight from Morocco to the United States, Perrault spoke further with
his FBI escort. He admitted that he had sexually abused Doe 8, including performing
oral sex on him “and said he may have also used his hands.” Id. at 1437:14–1438:12.
He also admitted having “touched” Doe 3 and writing a letter to Doe 3’s parents
apologizing for what he had done. Id. at 1439:10–1440:3. The government introduced
all these admissions at trial.
II. Trial
A. Voir Dire
Though the district court ordered an expanded venire panel of over 110
citizens, the parties still were able to complete jury selection in just one day. In the
morning, the district court told the prospective jurors that it would be questioning
them about their personal experiences with sexual abuse, and it encouraged them to
approach the bench to discuss those matters. One juror chose to discuss her
experience in front of the entire venire. She related, “I have been sexually assaulted
twice, and I thought I was okay, and clearly I’m not. But . . . I’m going to claim it
because I was the victim. So I don’t care who hears it. I’m not embarrassed by it. But
to say I’m biased is a little underrated.” R. vol. 4 at 99:1–5. After hearing her story,
some members of the venire applauded by clapping. The court excused her for cause.
5
Perrault moved for a mistrial based on the venire members’ applause, but the district
court denied the motion.
After lunch, counsel began questioning the jurors. As expected, many of the
prospective jurors had already heard or seen news accounts about the case, including
Perrault’s extradition from Morocco. Also as expected, many prospective jurors
stated they had already formed an opinion about Perrault’s culpability. The court
excused those jurors for cause.
When the questioning turned to the general subject of sexual abuse by Catholic
priests, several members of the venire expressed disappointment. For instance, Juror
6 found the allegations “disheartening” and “upsetting.” Id. at 128:18–20. Juror 26
identified herself as a Catholic who had stopped going to Mass for reasons including
her “disappoint[ment] in the church for all the cover-ups.” Id. at 232:5–6. Juror 38
likewise had heard of “cover-ups” in the church. Id. at 233:11–14. But in response to
follow-up questions, each of the three stated that they could remain fair and
impartial.
In the end, the parties agreed on twelve jurors and four alternates. Though the
government exhausted each of its six peremptory challenges, Perrault used only six
of his ten. Perrault’s trial counsel thanked the government’s counsel for how voir dire
was handled, and the court complimented both parties on a “great job on voir dire.”
Id. at 269:22.
6
B. Witness Testimony
As discussed below, Rules 413 and 414 of the Federal Rules of Evidence
permit the government to introduce evidence that a defendant has committed other
sexual assaults or child molestation not charged in the indictment. See infra
Discussion Section II.B.1. Accordingly, in addition to Doe 1’s testimony, the
government called seven Rule 414 witnesses2 who testified that Perrault had sexually
abused them during his time in Albuquerque.3 Because Perrault’s primary challenge
on appeal is the district court’s admitting those witnesses’ testimony, we summarize
their testimony below.
1. Doe 1
In 1990, at age nine, Doe 1 became an altar server at St. Bernadette’s Church.
Perrault was then the priest there. Doe 1 spent considerable time with Perrault while
assisting him with Mass. Back then, Doe 1 described Perrault as his “best friend,” R.
vol. 3 at 1211:4–5, and Perrault referred to Doe 1 as “[h]is boy,” id. at 16–17. At
some point, Perrault gifted Doe 1 a “St. Michael’s medal.” Id. at 1225:14. Because he
admired Perrault, Doe 1 hoped to become a priest.
2
Though the government moved to admit the sexual-assault testimony of its
witnesses under both Rules 413 and 414, we refer to all of them as Rule 414
witnesses for simplicity.
3
The government moved to allow eight other victims to testify, but only seven
testified at trial.
7
Doe 1 testified that Perrault began sexually abusing him when Doe 1 was age
ten. Though Doe 1 failed to provide specific dates, he testified that Perrault had
abused him at three geographical locations: the rectory4 at St. Bernadette’s, Kirtland
Air Force Base (the “Base”), and Santa Fe National Cemetery. Addressing the abuse
on the Base, Doe 1 testified that Perrault abused him both in a Base chapel and inside
Perrault’s car at a Base parking lot. Sometimes Perrault would fondle Doe 1’s penis
and testicles, both through Doe 1’s pants and skin-to-skin. Perrault also put his mouth
directly on Doe 1’s penis on several occasions.5 Other times, Perrault used his fingers
to penetrate Doe 1’s anus, sometimes causing bleeding. Including the times Perrault
hugged and kissed him, Doe 1 testified that Perrault sexually abused him close to a
hundred times. Perrault also told Doe 1 that the abuse “was our secret” and that if he
spoke ill of a priest he would go to hell. Id. at 1234:19–25, 1235:10–14.
2. John Does 2–3, 5–96
Doe 9 first met Perrault in the fall of 1966 as a freshman in high school at St.
Pius X. Perrault was his teacher. When Doe 9 was around thirteen or fourteen,
Perrault began taking him to the movies. While there, Doe 9 testified that Perrault
would “put his hands inside of my shirt and he would fondle my breasts, fondle my
4
A “rectory” is housing that a church provides for its clergy.
5
At trial, neither Doe 1 nor the government used the phrase “oral sex.” Doe 1
clarified that he viewed Perrault’s abuse “as a kiss versus [i.e., as opposed to] oral
sex.” R. vol. 3 at 1258:3–18.
6
Because all the witnesses who testified at trial were male, we refer to each
throughout as simply “Doe,” adopting the same numbering scheme as the parties.
8
nipples.” Id. at 924:20–21. At some point, Perrault gave Doe 9 gifts, including a
tobacco pipe and a brass crucifix. Doe 9 also testified that Perrault regularly gave
him inappropriate hugs in which Perrault “would embrace [him] and then [Perrault]
would rub his thigh between [Doe 9’s] legs up into [his] crotch.” Id. at 927:15–16.
Doe 9 estimated that Perrault hugged him that way anywhere from fifty to a hundred
times.
The most jarring sexual encounter happened when Doe 9 was seventeen.
Rather than using the front door, visitors to Doe 9’s home often used a side gate to go
directly into the backyard. Doe 9’s room was accessible from the backyard by a
sliding glass door. One Sunday morning, Perrault used the side gate and sliding door
to enter Doe’s 9 room and climb into bed with him. Perrault began fondling Doe 9’s
penis until Doe 9 ejaculated. After, Perrault told Doe 9 to keep the episode between
the two of them.
Doe 8 became an altar boy at Our Lady of Guadalupe in 1970 at age twelve.
He assisted Perrault with Mass, funerals, and weddings, and Perrault eventually made
Doe 8 head altar boy. Perrault would take Doe 8 on excursions to the Albuquerque
Little Theater and the Base. Perrault also gave Doe 8 a leather necklace with stained
glass. The first time Perrault abused Doe 8, Doe 8 was a passenger in Perrault’s car.
Perrault parked along the roadside, pulled Doe 8’s pants down, and masturbated him.
Perrault told him that it was their “secret” and not to tell anyone. Id. at 896:24–897:1.
Over a two-year period, Perrault abused Doe 8 “at least 100” times. Id. at 894:6–9.
The abuse included oral sex, anal sex, masturbation, and fondling. Doe 8 also
9
testified about two specific incidents that occurred on the Base—in Perrault’s office
and in the parking lot. Doe 8 tried to report the abuse to his mother, but she told him
“to never talk about a Catholic priest like that.” Id. at 904:19–20. As noted above, the
government admitted into evidence Perrault’s pre-trial statements acknowledging that
he had sexually abused Doe 8.
Like Doe 8, Doe 3 met Perrault through his service as an altar boy at Our Lady
of Guadalupe. Unlike many of the victims who testified, Perrault abused Doe 3 only
once. On December 4, 1971, when Doe 3 was twelve, Perrault asked Doe 3 to
accompany him to Perrault’s private room in the rectory of Our Lady of Guadalupe.
Once inside the room, Perrault closed and locked the door. After telling Doe 3 to sit
on the bed, Perrault began touching Doe 3’s legs and kissing his shoulder, chest, and
neck. Perrault also started touching Doe 3’s genitals through the outside of his
clothing. Eventually, Perrault unbuttoned Doe 3’s pants and touched Doe 3’s testicles
and penis directly on the skin.
Doe 3 managed to escape. He ran from the church to a friend’s house and
called his mother. Doe 3 later told his father what had happened, and the two of them
returned to the church to confront Perrault. Perrault told Doe 3’s father that “he was
sorry, that he didn’t mean to do that.” Id. at 840:1–3. Perrault also wrote Doe 3’s
mother a letter apologizing for what he had done, which the government entered into
evidence. Additionally, Doe 3’s father had Doe 3 write down what had happened,
which Doe 3 read into evidence. The Archbishop had assured Doe 3’s parents that
“Father Perrault would be taken out of the church and would never be in the church
10
again around kids[,]” id. at 844:8–12, but in 1992 they were “shocked” to learn that
Perrault was a pastor at St. Bernadette’s, id. at 846:17–20.
Does 5 and 6 are brothers. They met Perrault around 1974 through their
church, Our Lady of Assumption, where they both served as altar boys. Doe 5 was
then about age ten; Doe 6 was eleven. Their parents often invited Perrault over for
dinner, and Perrault also took the boys to the Base one time. Does 5 and 6 testified
that Perrault regularly abused them at their home. Doe 5 testified that he would sit on
Perrault’s lap and that Perrault would fondle his penis through his pajama bottoms.
Sometimes Perrault would tuck the boys in bed at night, and he would fondle Doe 5’s
penis through his pajamas. Doe 5 estimated that Perrault had sexually touched him at
least 50 times. Doe 6 testified that Perrault sexually abused him in his bedroom after
Perrault had taken Doe 6’s confession. Perrault would fondle Doe 6’s penis through
his underwear, and the last time the abuse occurred, Perrault also forced Doe 6 to
fondle Perrault’s penis.
Doe 5 also described the last time Perrault abused him. Perrault came to the
house when his parents weren’t home and brought a gift for Does 5 and 6 and their
sister (“some kind of a drawing game”). Id. at 973:23–25. Perrault told Doe 5, “Now
that I’ve given you a gift, I need you to give me something.” Id. at 973:25–974:1. He
led Doe 5 to Doe 5’s bedroom and began fondling Doe 5’s penis through his
underwear. Perrault also guided Doe 5’s hand down Perrault’s pants and had Doe 5
fondle Perrault’s penis through his boxers. During this episode, Doe 5 kept repeating,
11
“I don’t want to do this.” Id. at 975:21–22. After that incident, Does 5 and 6 told
their parents about what had happened that day, but not about the other abuse.
Unlike the other Does, Doe 7 testified to being abused by two Catholic priests.
When he was thirteen, Doe 7 met Perrault while in another priest’s private room in
the rectory of Queen of Heaven Church. When Perrault arrived, Doe 7 was sitting on
a couch watching TV, unclothed, with only a sheet “kind of on top” of him. Id. at
1026:20–1027:4. Perrault entered the room and pulled away the sheet, exposing Doe
7’s penis. Then Perrault sat down and started masturbating, and Doe 7 began
masturbating as well. After that initial encounter, Doe 7 saw Perrault regularly. Doe 7
testified that Perrault sexually abused him about thirty times, including while at the
Base. The abuse ranged from fondling to oral and anal sex.
In 1983, Doe 2 became an altar boy at St. Bernadette’s when he was about age
twelve. Perrault cultivated a relationship with Doe 2 by taking him to a dinner on the
Base with a few other altar boys and by giving him gifts. Doe 2 was fourteen the first
time Perrault sexually abused him. Though Doe 2 testified that his “memories are
blocked,” id. at 1174:12, he remembers Perrault kissing him on the lips in a bedroom
in St. Bernadette’s rectory. Doe 2 also testified that he went to Perrault’s personal
condominium two or three times. While there, Perrault would hug Doe 2, and Doe 2
“could feel [Perrault’s] erect penis up against” his thigh. Id. at 1176:22–1177:4.
When Doe 2 talked to his mother about what had happened at Perrault’s condo, Doe
2 “was made to feel that by allowing Perrault to do what he did,” he “was doing a
service.” Id. at 1177:18–20.
12
III. Verdict and Sentencing
After a six-day trial, the jury found Perrault guilty of all seven counts of sexual
abuse. In September 2019, the district court sentenced Perrault to 365 months for the
six counts of aggravated sexual abuse and to a concurrent term of 120 months for the
abusive sexual contact count. The district court adopted the Presentence Investigation
Report’s (“PSR”) recommended guidelines calculation in setting Perrault’s sentence.
That calculation included a two-offense-level adjustment for an obstruction-of-justice
enhancement, tied to Perrault’s fleeing to Morocco.
This appeal followed, and we have appellate jurisdiction under 28 U.S.C.
§ 1291.
DISCUSSION
Perrault raises five issues on appeal. First, he argues that he was denied his
Sixth Amendment right to be tried by an impartial jury. Second, he argues that the
district court erred by allowing testimony from seven Rule 414 witnesses about
numerous incidents of uncharged sexual abuse. Third, he argues that the jury
instructions lacked specificity, violating the requirement of jury unanimity and the
prohibition against double jeopardy. Fourth, he argues that the district court
improperly included an obstruction-of-justice enhancement in calculating his
sentence. Fifth, he argues that the cumulative effect of multiple errors denied him a
fair trial. We address each argument in turn, finding merit in none of them.
13
I. Perrault Was Tried by an Impartial Jury
Perrault argues that he was denied his Sixth Amendment right to an impartial
jury. Specifically, he maintains that the venire was tainted by a mix of pretrial
publicity and preconceived notions about sexual abuse by Catholic priests—both
generally and within New Mexico. But because Perrault didn’t object to the jury
panel, he can succeed only by proving the district court plainly erred in seating the
jurors who rendered his guilty verdict. United States v. Portillo-Quezada, 469 F.3d
1345, 1349 (10th Cir. 2006). Under that standard, we reverse only if “(1) the district
court committed error; (2) the error was plain—that is, it was obvious under current
well-settled law; (3) the error affected the Defendant’s substantial rights; and (4) the
error seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Chavez-Morales, 894 F.3d 1206, 1214 (10th Cir.
2018).7 Perrault’s claim fails at step one.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy trial, by an impartial jury.” U.S. Const.
amend. VI. “In essence, the right to jury trial guarantees to the criminally accused a
fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717,
722 (1961). An impartial jury renders a verdict “based upon the evidence developed
7
The government argues that Perrault has waived this jury-partiality argument
by failing to object in the trial court. But we conclude that Perrault’s failure to object
came about by neglect, rather than an intentional waiver. So we review his claim for
plain error. See United States v. Malone, 937 F.3d 1325, 1327 (10th Cir. 2019)
(“While forfeiture comes about through neglect, waiver is accomplished by intent.”
(citation omitted)).
14
at the trial”—not based on a previously formed opinion. Id. “[D]efendants bear the
burden of establishing juror partiality.” Goss v. Nelson, 439 F.3d 621, 627 (10th Cir.
2006) (citing Irvin, 366 U.S. at 723).
Many of our decisions assessing claims of jury partiality involve defendants
who sought (or opposed) transfers of venue. See Gardner v. Galetka, 568 F.3d 862,
887–90 (10th Cir. 2009); House v. Hatch, 527 F.3d 1010, 1023–25 (10th Cir. 2008);
Goss, 439 F.3d at 627–28; Hale v. Gibson, 227 F.3d 1298, 1331–34 (10th Cir. 2000);
Brecheen v. Reynolds, 41 F.3d 1343, 1350–51 (10th Cir. 1994). But despite now
claiming that no impartial jury could have been drawn from the community in which
he was convicted, Perrault never sought a venue transfer. See Fed. R. Crim. P. 21(a)
(“Upon the defendant’s motion, the court must transfer the proceeding against that
defendant to another district if the court is satisfied that so great a prejudice against
the defendant exists in the transferring district that the defendant cannot obtain a fair
and impartial trial there.”). Nevertheless, we find that line of cases instructive
because they address the same question that we must answer here: was the defendant
tried by an impartial jury as guaranteed by the Sixth Amendment?
In considering that question, we have distinguished between “presumed” and
“actual” prejudice. House, 527 F.3d at 1023. Though Perrault doesn’t use the words
“presumed” or “actual” prejudice, his arguments generally fit into those analytical
categories. We address his arguments accordingly.
15
A. Presumed Prejudice
Claims of presumed prejudice are “rarely invoked and only in extreme
circumstances.” Hale, 227 F.3d at 1332 (quoting Stafford v. Saffle, 34 F.3d 1557,
1566 (10th Cir. 1994)). This type of prejudice claim usually falls into one of two
camps. Goss, 439 F.3d at 628. Sometimes defendants in high-profile cases assert that
pretrial publicity was so widespread, so inflammatory, and so egregious that it’s
obvious “we cannot expect to find an unbiased jury pool in the community.” Id. From
our reading of Perrault’s argument, that’s not what he’s claiming. In the background
section of his brief, he now asserts that he appeared “on the front page” four times in
the six months leading up to trial. Appellant’s Opening Br. at 3. And he notes the
following excerpt from the front page of a local newspaper the day before jury
selection: “More than 26 years have elapsed since the Rev. Arthur Perrault vanished
from New Mexico, leaving behind police, prosecutors and nearly 40 children he
allegedly molested and who have had to bear in secret their shame and sorrow.” Id.But Perrault never refers back to these articles in the argument portion of his brief,
nor asserts that this particular reporting biased the jury pool.
Instead, we understand Perrault’s argument as falling into the second category
of presumed-prejudice claims, which considers whether voir dire demonstrated that
the entire jury pool was tainted by “preconceived opinions about the crime.” Goss,
439 F.3d at 633. Perrault insists that voir dire revealed the jury pool’s collective
biases:
16
The pervasive belief [among prospective jurors] that the Catholic Church
routinely sheltered predatory priests, the knowledge that the Servants of
Paraclete laundered pedophile priests into New Mexico, the unspoken
mantra of “always believe the victim” . . . , the revelation [that] those in
the venire who knew Mr. Perrault universally characterized their
relationship as “unfortunate”, along with the belief that more allegations
equated to guilt, combined so there was no chance despite any claim of
impartiality that Mr. Perrault . . . could receive a fair trial.
Appellant’s Opening Br. at 29. According to Perrault, the district court excused for
cause over half of the prospective jurors, which he asserts is strong evidence that no
impartial jury could be drawn from the venire.
Indeed, a high rate of juror excusal for cause may indicate that no impartial
jury can be drawn from a community. See Murphy v. Florida, 421 U.S. 794, 802–03
(1975) (“The length to which the trial court must go in order to select jurors who
appear to be impartial is another factor relevant in evaluating those jurors’ assurances
of impartiality.”). That’s because “[i]n a community where most veniremen will
admit to a disqualifying prejudice, the reliability of the others’ protestations may be
drawn into question; for it is then more probable that they are part of a community
deeply hostile to the accused, and more likely that they may unwittingly have been
influenced by it.” Id. at 803. In other words, if enough of the venire admits partiality,
courts have some reason to be skeptical of prospective jurors who claim impartiality.
For instance, in Irvin, the Supreme Court vacated a defendant’s conviction where the
trial court excused just over 62% of the venire for cause (268 jurors excused for
17
cause/430-person venire). 366 U.S. at 727, 729.8 In contrast, in Murphy the Supreme
Court concluded that an excusal rate of just over 25% “by no means suggests a
community with sentiment so poisoned against petitioner as to impeach the
indifference of jurors who displayed no animus of their own.” 421 U.S. at 803.
Our circuit has consistently rejected claims of jury partiality based on an
allegedly high excusal rate. For example, in Goss, the trial court excused for cause
39% of the prospective jurors examined by counsel after they expressed “a
predisposed opinion of Goss’s guilt.” 439 F.3d at 634. Though we acknowledged that
39% was “not an insignificant percentage,” we concluded it wasn’t enough to
presume that the community as a whole was prejudiced against the defendant. Id.Likewise, in Brecheen we ruled, “the fact that slightly over one-quarter of the venire
was excluded for cause does not indicate a pervasive community or courtroom
hostility toward [Defendant].” 41 F.3d at 1351 (citing Murphy, 421 U.S. at 803).
Here, the parties dispute the true excusal rate: they disagree about both the
numerator—how many jurors the district court excused for cause—and the
denominator—how many potential jurors made up the venire. In claiming that the
district court excused over half of the venire for cause, Perrault includes jurors
excused for miscellaneous personal reasons (age, health, previously arranged travel
plans, etc.). But the Supreme Court considers only those excused for having
8
In Irvin, apart from the high rate of excusal for cause, eight of the twelve
impaneled jurors had admitted during voir dire that they “thought [the defendant] was
guilty.” 366 U.S. at 727.
18
predetermined the defendant’s guilt when assessing whether the community is
generally hostile to the defendant—after all, juror X’s previously planned trip to the
Bahamas wouldn’t say much about community animus. See Murphy, 421 U.S. at 796,
803 (ignoring the thirty jurors excused for personal reasons). After accounting for
jurors excused for personal reasons, we see forty-one jurors who said they couldn’t
be impartial.9
As for the denominator, Perrault claims that the venire consisted of 126
potential jurors; the government asserts there were 149. Perrault bases his figure on
the number of seats available in the courtroom. But the government provided a list of
jurors excused for cause that shows numbered jurors up to 149. Because we have no
reason to believe that the district court skipped numbers when assigning juror
numbers, the government’s number appears more accurate.10
As for presumed prejudice, we conclude that the district court didn’t err in
seating the jury that convicted Perrault. Using the government’s numbers, the district
court excused 41 of 149 jurors for cause, an excusal rate of about 28%. As seen,
9
In his Reply, Perrault argues that we should include two jurors that the
district court excused for cause because they had been sexually abused. We disagree.
The reason those jurors couldn’t be impartial was because the issue was too personal
to them, not because they had already made up their minds about Perrault’s guilt. So
those two jurors’ inability to assess Perrault’s case impartially doesn’t bear on
whether the community as a whole was hostile to Perrault.
10
The result would remain the same even using Perrault’s number. That would
produce an excusal rate of 32.5% (41 jurors excused for cause divided by 126
prospective jurors), still appreciably below the kind of rates that would indicate
overwhelming prejudice.
19
Supreme Court and Tenth Circuit precedents consider this rate insufficient to
demonstrate that the community sentiment was “so poisoned against [the defendant]
as to impeach the indifference of jurors who displayed no animus of their own.”
Murphy, 421 U.S. at 803; see also Goss, 439 F.3d at 634. We thus find no reason to
doubt the avowals of prospective jurors who affirmed that they could remain
impartial. Perrault has failed to meet his burden to show presumed prejudice.
B. Actual Prejudice
To establish actual prejudice, Perrault “must demonstrate ‘the actual existence
of [ ] an opinion in the mind of the juror’” that shows partiality. House, 527 F.3d at
1024 (brackets in original) (quoting Murphy, 421 U.S. at 800). In reviewing this, we
examine “the totality of the circumstances” surrounding voir dire to assess whether
“the accused receive[d] a fair trial by an impartial jury free from outside influences.”
Hale, 227 F.3d at 1333 (first quoting Stafford, 34 F.3d at 1567; and then quoting
United States v. Abello-Silva, 948 F.2d 1168, 1177 (10th Cir. 1991)).
Perrault argues that numerous prospective jurors’ statements during voir dire
revealed their evident biases against him. Along this line, he asserts that the venire
demonstrated “that it would religiously ‘believe the victim.’” Appellant’s Opening
Br. at 25. Perrault draws this conclusion based on some prospective jurors’
statements and from the episode in which some venire members clapped for a juror
who admitted for the first time out loud that she had been sexually abused. We’re
unpersuaded.
20
Initially, we note that Perrault highlights the actions and statements of several
prospective jurors who were never seated on the jury. But we limit our review of
juror impartiality to the actual jurors. See Ross v. Oklahoma, 487 U.S. 81, 86 (1988)
(“Any claim that the jury was not impartial, therefore, must focus not on [the
challenged juror], but on the jurors who ultimately sat.”); United States v. McVeigh,
153 F.3d 1166, 1205 n.33 (10th Cir. 1998) (“We need only consider the voir dire of
the twelve jurors who decided McVeigh’s case, because the bias of unseated jurors is
irrelevant to whether McVeigh had an impartial jury.”). To the extent Perrault argues
that statements by other venire members exemplify general bias or commonly-held
views in the community, we have addressed that claim above. Even though some
prospective jurors announced that they couldn’t remain impartial, that doesn’t mean
the entire venire was poisoned.11
Perrault fails to show that the jurors actually seated harbored actual bias
against him.
Impartiality does not mean jurors are totally ignorant of the case. Indeed,
it is difficult to imagine how an intelligent venireman could be completely
uninformed of significant events in his community. “It is sufficient if the
11
Even if a clapping venire member sat as a juror, we agree with the district
court that the clapping was to show emotional support. That doesn’t demonstrate an
“always believe the victim” mentality. See R. vol. 4 at 107 (“I think it was they
clapped . . . when she said she wanted to own it, that she didn’t want to be ashamed
of it . . . . [M]y interpretation of it was . . . they clapped[] when she was finding it
difficult to say it in public, that she had been assaulted . . . . [T]he jurors clapped as if
to encourage her, the fact that she did not want to be ashamed of it. So it wasn’t that
they were applauding the fact that she had been sexually assaulted . . . . It was the
fact that they were encouraging her taking a stance at finally not being ashamed of
being a victim.”).
21
juror can lay aside his impression or opinion and render a verdict based
on the evidence presented in court.”
Abello-Silva, 948 F.2d at 1178 (quoting Irvin, 366 U.S. at 723). In brief, that jurors
are generally aware of allegations of sexual abuse by Catholic priests, support the
#metoo movement, or may have heard about the allegations against Perrault doesn’t
preclude them from serving on the jury.
Perrault attributes a colorable claim of actual bias to a single juror. He points
to this exchange between his trial counsel and Juror 26:
MR. WINDER: Okay . . . . Now, how many individuals have read about
the allegations against my client in the news media, Journal, seen it on
the news stations, or read it on the Internet? All right. There’s a number
of individuals . . . . What type of media have you seen with regard to my
client?
JUROR [26]: I believe it was the news, a couple of different times. I don't
think it was the newspaper, possibly the Internet. Basically it was the
news.
MR. WINDER: Did you form any opinion based upon what you saw on
the news?
JUROR [26]: Well, you know, knowing that he was indicted and
extradited from another country, that affected me. I don’t think it said --
I don’t recall it saying how many allegations there were. All I remember
was the indictment and then the extradition, and then when he finally
came to Albuquerque.
MR. WINDER: So you saw that he had been extradited. Are you saying
that you had an opinion with regard to whether he was innocent or guilty?
JUROR [26]: I don’t know if I had an opinion. I just -- you know, like I
said before, I was saddened at the -- what has happened to the Catholic
Church. And, to me, it was like, oh, gosh, here we go again.
MR. WINDER: All right. Thank you.
22
R. vol. 4 at 241:4–242:8. Perrault points to Juror 26 to show that the jurors’ promises
to consider his case fairly couldn’t be trusted.
But Juror 26’s statements hardly rise to the level of actual prejudice. To start,
though her statement, “oh, gosh, here we go again,” might suggest she harbored
general suspicions about Catholic priests’ propensity for sexual abuse, she denied
having an opinion about Perrault’s guilt or innocence. See id. at 242:4–7. The
Supreme Court has found that more-concerning statements don’t necessarily prove
juror partiality, especially when jurors represent that they can remain impartial. See
Murphy, 421 U.S. at 801–02 (rejecting petitioner’s claim of jury impartiality despite
one juror’s having “conceded that his prior impression of petitioner would dispose
him to convict”). Indeed, “we give due deference to jurors’ declarations of
impartiality and the trial court’s credibility determination that those declarations are
sincere.” McVeigh, 153 F.3d at 1184 (collecting cases). And, though Juror 26
expressed disappointment in the Catholic Church’s alleged cover-ups of sexual
abuse, she didn’t waver when Perrault’s trial counsel asked if she would hold that
against Perrault: “No. Like I said . . . , I would be able to separate those issues from
what is in front of us now.” R. vol. 4 at 232:16–18.
Moreover, we also consider what directions, if any, the district court provided
to the venire to remind them of the importance of remaining impartial. See McVeigh,
153 F.3d at 1183 (noting that “the district court went to great lengths to admonish all
potential jurors to ignore the publicity surrounding the issues of the case”). Though
the district court didn’t instruct the jury specifically about ignoring publicity
23
surrounding the case, it urged the venire to take the process “extremely seriously”
and to focus on the “ultimate question . . . . Can I be fair? . . . Can I make a decision
in this case based on the evidence that is going to come from the witness
stand . . . [?]” R. vol. 4 at 31:22–32:6 (emphasis added).
Perrault’s claims of presumed and actual jury prejudice fail. The district court
wasn’t forced to excuse enough jurors for cause to support an inference of
widespread community prejudice. Nor has Perrault presented compelling evidence
that the jurors who convicted him harbored biases that rendered them unfit to serve.
We thus see no error in the district court’s accepting the jurors’ avowals that they
could objectively evaluate the charges against Perrault.12
12
Perrault has filed a Rule 28(j) letter directing us to United States v.
Tsarnaev, 968 F.3d 24, 37 (1st Cir. 2020), cert. granted, No. 20-443, 2021 WL
1072279 (U.S. Mar. 22, 2021). That case involved the trial and sentence of Dzhokhar
Tsarnaev, one the so-called “Boston Bombers,” whose terrorist acts garnered national
and international news coverage. See id. at 48, 113 n.96. There, the First Circuit
reversed after determining that the district court had failed to adequately question
prospective jurors about the kinds of media they had been exposed to related to the
case. See id. at 57 (noting that voir dire should elicit “the kind and degree of
prospective juror[s’] exposure to the case or the parties” (internal quotation marks
omitted)). Perrault argues that we too must reverse, on grounds that the district court
failed to independently examine the venire about the details of its exposure to media
concerning the case. We disagree. To our knowledge, our precedent has never
required district courts to press prospective jurors about what specific media they
may have been exposed to about a case before allowing them to sit on the jury—even
in high-profile cases. But even if we decided to adopt the First Circuit’s heightened
requirement, that wouldn’t affect the result. We’re reviewing the district court’s
ruling for plain error. Questioning jurors about the particular media they had seen
about Perrault’s case wouldn’t have been obvious to the district court when our
precedents don’t require it and when the standard Perrault urges us to adopt was
established by the First Circuit over a year after the district court oversaw voir dire.
24
II. The District Court Properly Allowed the Government’s Rule 414
Witnesses to Testify
A. Standard of Review
We review the district court’s evidentiary rulings for an abuse of discretion.
United States v. Sturm, 673 F.3d 1274, 1285 (10th Cir. 2012). Whether “to exclude
evidence under Rule 403 is within the sound discretion of the trial court, and will be
reversed only upon a showing of a clear abuse of that discretion.” United States v.
Guardia, 135 F.3d 1326, 1331 (10th Cir. 1998) (citation omitted). A court abuses its
discretion when it “renders a judgment that is arbitrary, capricious, whimsical, or
manifestly unreasonable.” United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th
Cir. 2008) (internal quotation marks and citation omitted).
B. The District Court Didn’t Abuse Its Discretion by Allowing the
Government’s Seven Rule 414 Witnesses to Testify
1. Legal Framework
Federal Rule of Evidence 413 provides: “In a criminal case in which a
defendant is accused of a sexual assault, the court may admit evidence that the
defendant committed any other sexual assault. The evidence may be considered on
any matter to which it is relevant.” Fed. R. Evid. 413(a). Federal Rule of Evidence
414 mirrors Rule 413, substituting “child molestation” for “sexual assault.”
Fed. R. Evid. 414(a).13 These rules constitute exceptions to the general rule of 404(a)
prohibiting admission of evidence to show a defendant’s propensity to commit bad
13
“Child” means a person under the age of fourteen. Fed. R. Evid. 414(d)(1).
25
acts. See Guardia, 135 F.3d at 1331 (“[T]hese rules carve out exceptions to Rule
404(a) and reflect a legislative judgment that certain types of propensity evidence
should be admitted.”). Congress enacted these rules in part to address a frequent
problem in sexual-assault cases—trials presenting he-said, she-said stalemates, what
Congress described as “unresolvable swearing matches.” United States v. Enjady,
134 F.3d 1427, 1431 (10th Cir. 1998) (quoting 140 Cong. Rec. S129901–01, S12990
(R. Dole, Sept. 20, 1994)).
Before the government may admit Rule 413 or Rule 414 evidence, it must
overcome “several hurdles.” Guardia, 135 F.3d at 1332. First, the evidence must
meet three threshold requirements. A district court must determine (1) “that the
defendant is accused of an offense of sexual assault”; (2) that the evidence proffered
is “evidence of the defendant’s commission of another offense of sexual assault”; and
(3) that the evidence is relevant. Id. at 1328 (ellipsis and citations omitted). Perrault
doesn’t challenge the district court’s ruling that the evidence met these threshold
requirements, so we don’t discuss them further.
Second, the district court must conduct a Rule 403 balancing test to assess
whether the evidence’s “probative value is substantially outweighed by the danger of
unfair prejudice.” United States v. Benally, 500 F.3d 1085, 1090 (10th Cir. 2007)
(quoting Guardia, 135 F.3d at 1329; Fed. R. Evid. 403); see also Charles Alan
Wright & Arthur R. Miller 23 Fed. Prac. & Proc. Evid. § 5387 (2d ed.) (“The starting
point of that analysis is the proposition that evidence offered under Rule 413 [or 414]
is not unfairly prejudicial simply because it is offered to show a propensity to commit
26
sexual assault. While the evidence is prejudicial when offered for that purpose, that
prejudice is not unfair since the rule makes the evidence admissible for that very
purpose.”).
The balancing test proceeds in two phases. First, the district court must
consider what have become known as the four “Enjady” factors:
(1) how clearly the prior act has been proved;14
(2) how probative the evidence is of the material fact it is admitted to prove;
(3) how seriously disputed the material fact is;15 and
(4) whether the government can avail itself of any less prejudicial evidence.
Enjady, 134 F.3d at 1433 (citation omitted). In considering the above factors, “no
single factor is dispositive.” United States v. Mann, 193 F.3d 1172, 1175 (10th Cir.
1999).
Second, district courts must weigh the Enjady factors against “the probative
dangers,” by assessing three additional factors:
(1) how likely is it such evidence will contribute to an improperly-based jury
verdict;
(2) the extent to which such evidence will distract the jury from the central
issues of the trial; and
14
Under this factor, the district court must conclude by a preponderance of
evidence that a jury could reasonably find that the “other act” occurred. Enjady, 134
F.3d at 1433 (citation omitted).
15
“The third factor requires the district court to ‘evaluate the seriousness of
the dispute over the material fact the Rule 414 evidence is admitted to prove.’”
Sturm, 673 F.3d at 1286 (emphasis added) (quoting Mann, 193 F.3d at 1174).
Perhaps counterintuitively, “[t]he more seriously disputed the material fact, the more
heavily this factor weighs in favor of admissibility.” Id. (citation omitted).
27
(3) how time consuming it will be to prove the prior conduct.
Enjady, 134 F.3d at 1433 (citation omitted). In conducting this balancing, our
precedents caution that “the exclusion of relevant evidence under Rule 403 should be
used infrequently, reflecting Congress’ legislative judgment that the [Rule 413 and
414] evidence normally should be admitted.” Id. (internal quotation marks and
citation omitted); see also Benally, 500 F.3d at 1090 (“Consistent with congressional
intent regarding the admission of evidence tending to show the defendant’s
propensity to commit sexual assault or child molestation, ‘courts are to “liberally”
admit evidence of prior uncharged sex offenses.’” (quoting United States v.
Meacham, 115 F.3d 1488, 1492 (10th Cir. 1997))).
2. Perrault’s Arguments on Appeal
In two thorough orders, the district court carefully weighed the four Enjady
factors against the probative dangers, concluding that the Rule 414 witnesses’
testimony was both relevant and probative. Perrault doesn’t dispute the district
court’s conclusions regarding three of the four Enjady factors: he concedes that the
government proved by a preponderance of the evidence that he had committed the
other sexual abuse; that the material fact (Perrault’s abuse of Doe 1) was seriously
disputed; and that the government couldn’t avail itself of any less-prejudicial
evidence. Instead, Perrault raises two challenges to the district court’s Rule 403
ruling related to the evidence’s probativeness (the second Enjady factor) and two
challenges related to unfair prejudice. We address each in turn.
28
a. Probative Value of the Evidence
When considering the probative value of evidence, we have enumerated five
considerations to guide our analysis:
(1) the similarity of the prior acts and the charged acts;
(2) the time lapse between the other acts and the charged acts;
(3) the frequency of the prior acts;
(4) the occurrence of intervening events; and
(5) the need for evidence beyond the defendant’s and alleged victim’s
testimony.
Benally, 500 F.3d at 1090–91 (citing Guardia, 135 F.3d at 1331). The district court
concluded that each of these factors favored admitting the other victims’ testimony.
We agree.
Perrault disputes the probative value of the uncharged-acts evidence on two
grounds, neither of which is persuasive. First, Perrault argues that evidence of his
giving alleged victims gifts and taking them on excursions is probative
“only . . . with a prior belief in Mr. Perrault’s guilt—otherwise the significance of
such a detail as a priest giving a parishioner a religious medallion is indeterminate.”
Appellant’s Opening Br. at 35. True, a priest can give a congregant something
without raising any suspicion of ulterior motive. But Perrault ignores that gift-giving
is a common grooming technique. See R. vol. 3 at 1374 (expert testimony introduced
29
at trial describing ways perpetrators groom victims).16 And we permit courts to admit
prior-act evidence to show a defendant’s “pattern of grooming.” United States v.
Batton, 602 F.3d 1191, 1198 (10th Cir. 2010).
Second, Perrault argues that the district court should have excluded the
testimony of Does 2, 7, and 9 as being too dissimilar from Doe 1. Because Doe 1
“was prepubescent” (age 10–11) when Perrault allegedly assaulted him, Perrault
maintains that Does 2, 7, and 9 weren’t similar to Doe 1 because they were all
adolescents when Perrault abused them.17 Appellant’s Opening Br. at 35. In support,
Perrault cites the Sentencing Guidelines, which recommend harsher sentences for
abuse of minors under age twelve compared to abuse of minors between twelve and
sixteen. Id. (citing U.S.S.G. § 2G2.1(b)(1)). He also cites the American Psychiatric
Association’s 2013 Diagnostic and Statistical Manual of Mental Disorders (5th ed.),
16
“[T]he term ‘grooming’ is often used in the child sexual abuse research field
to look at how some perpetrators will gradually involve a child in sexual abuse. So it
might start with favoring the child, praising the child, patting the child, hugging, and
gradually more and more gets into more sexual acts. At the same time, you see the
offenders then saying, you know, ‘Don’t tell. Keep it a secret.’ And that grooming
process, you’re building up a relationship with the child, sometimes with the parents
as well. And at the same time, you’re gradually increasing the sexual part of the
activity.” R. vol. 3 at 1374 (expert testimony introduced at trial).
17
Doe 2 testified that he was fourteen when Perrault began abusing him. Doe 7
was thirteen when Perrault first abused him, but the record suggests that the abuse
continued into Doe 7’s later teen years. See R. vol. 3 at 1035:19–20 (Judge Vazquez
cautioned the government, “I don’t want you to get into anything more past his age of
16.”). Doe 9 was between the ages of thirteen and seventeen when Perrault abused
him.
30
which defines pedophilia as attraction to prepubescent children (typically under age
thirteen).
But Perrault fails to explain why these sources bear on the probativeness of the
evidence. The relevant question here is whether Perrault’s prior acts of abusing
young men ages thirteen to seventeen are similar to his accused conduct of abusing
Doe 1. They are. That Does 2, 7, and 9 were a few years older than Doe 1 doesn’t
mean the prior abuse isn’t probative of Perrault’s propensity to abuse young boys.
Nor does our precedent establish such a rigid rule. In Benally, the defendant was
charged with sexually abusing his twelve-year-old granddaughter. 500 F.3d at 1086.
At trial, the district court allowed the government to introduce four Rule 414
witnesses, each of whom testified that the defendant had sexually assaulted them. Id.
at 1088. Those witnesses’ ages ranged from ten to twenty years old when the
defendant sexually assaulted them. Id. Yet even though the defendant had assaulted
one of the witnesses when she was an adult, we nonetheless upheld the district
court’s ruling that the Rule 414 witness testimony was probative in part because
“each [assault] involved a young woman whom [Defendant] previously knew.” Id. at
1092. Though the other victims were not the same ages as the defendant’s
granddaughter, we still concluded that the similar ages and circumstances supported
admitting the evidence. See id. at 1091. This holds with even greater force here when
all the Rule 414 witnesses were adolescents.
31
In sum, the substantial, detailed Rule 414 evidence was highly probative of the
material fact that it was admitted to prove—that Perrault had a propensity to sexually
abuse boys.
b. Prejudice
Perrault argues that the prejudice of the Rule 414 witnesses’ testimony
substantially outweighed its probative value. Perrault maintains that this testimony
(1) was cumulative and confused the jury, and (2) resulted in an improperly-based
jury verdict. We find neither argument persuasive.
“Evidence is cumulative if its probative effect is already achieved by other
evidence in the record; that is, ‘if the small increment of probability it adds may not
warrant the time spent in introducing it.’” Jewell v. Life Ins. Co. of N. Am., 508 F.3d
1303, 1314 (10th Cir. 2007) (quoting United States v. Davis, 40 F.3d 1069, 1076
(10th Cir. 1994)). This stands in contrast to corroborative evidence, “which buttresses
weak or assailable evidence, often by establishing data which refute possible
discrediting circumstances.” Id. (internal quotation marks and citation omitted).
We have never directly assessed a challenge like the one Perrault asserts
here—that the sheer number of Rule 414 witnesses who testified unduly prejudiced
the jury. Most of our decisions addressing Rule 414 witnesses have concerned
challenges involving three witnesses or fewer. See, e.g., Batton, 602 F.3d at 1195,
1202 (finding no error in district court’s admitting evidence of the defendant’s prior
conviction for sexual abuse); United States v. McHorse, 179 F.3d 889, 894 (10th Cir.
1999) (upholding district court that allowed testimony by two other alleged victims);
32
Meacham, 115 F.3d at 1491 (two other victims); United States v. Mercer, 653 F.
App’x 622, 624–25 (10th Cir. 2016) (unpublished) (three other victims). But we have
affirmed district-court rulings that have allowed more Rule 414 witnesses. For
instance, in Benally, we found no error in the district court’s admitting four Rule 414
witnesses, 500 F.3d at 1088–89, nor did we question the admission of six such
witnesses in United States v. Magnan, 756 F. App’x 807, 820 (10th Cir. 2018)
(unpublished).18
At least one of our sister circuits has discouraged district courts from
admitting more than five Rule 414 witnesses: “We are troubled by the district court’s
admission of six Rule 413 and 414 witnesses . . . . [I]n this case, six such witnesses
injects cumulative evidence with little additional probative value.” United States v.
Never Misses A Shot, 781 F.3d 1017, 1028 (8th Cir. 2015). Though the court clarified
that it “state[d] no inflexible rule that provides a maximum limit of Rule 413 or 414
witnesses that can testify,” id. at 1028 n.6, it reasoned that, “at some
point . . . enough is enough,” id. at 1028 (citation omitted).
Like the Eighth Circuit, we decline to set a maximum number of Rule 414
witnesses that district courts may allow. Instead, when a defendant challenges Rule
414 testimony as cumulative, the district court should consider the diminishing
18
But Magnan differs from our case. There, the allegations of five of the six
women provided the basis for the twelve counts of sexual abuse brought against the
defendant. Magnan, 756 F. App’x at 811. That is, only one of the women testified
solely to show the defendant’s propensity to sexually abuse young women. Here, all
seven of the Rule 414 witnesses testified solely to demonstrate Perrault’s propensity
to sexually abuse young men.
33
marginal return on each additional witness’s testimony. Cf. United States v.
Cunningham, 694 F.3d 372, 389–90 (3d. Cir. 2012) (reversing the district court for
permitting the government to show numerous video clips of child pornography
because, “[e]ven though the . . . videos were probative, . . . the law of diminishing
marginal returns still operates”). Particularly in cases when the government seeks to
introduce a large number of Rule 414 witnesses at trial (more than four), this may
require district courts to consider the proffered testimony seriatim to determine
whether each additional witness’s testimony provides enough probative value in view
of the testimony already permitted.
This isn’t to say that each Rule 414 witness’s testimony must be uniquely
different from other Rule 414 witnesses’ testimony. In Benally, for example, four
Rule 413 and 414 witnesses testified that the defendant had raped them. 500 F.3d at
1088. Though the specific facts of each witness’s experience varied, each testified for
one purpose: to show the defendant’s propensity to commit sexual assault. See id. at
1088–89. That didn’t render the testimony cumulative. Juries may find one Rule 414
witness’s testimony credible, while dismissing the next. For that reason, the
government may need multiple Rule 414 witnesses to effectively bolster the
credibility of the victim tied to the indictment, particularly where the government’s
case would otherwise rely on that victim’s testimony alone. And we have repeatedly
affirmed that, consistent with Congress’s intent in enacting Rules 413 and 414,
“courts are to liberally admit evidence of prior uncharged sex offenses.” Id. at 1090(internal quotation marks and citation omitted).
34
But, like the Eighth Circuit, we recognize that at some point enough is enough,
and the probative value of the fifth, sixth, or seventh Rule 414 witness is probably
less than the first three or four. See Never Misses A Shot, 781 F.3d at 1028. Thus, in
those rarer cases involving numerous Rule 414 witnesses, district courts may assure
themselves that each witness’s testimony remains corroborative by identifying
specifically how it “buttresses weak or assailable evidence.” Jewell, 508 F.3d at
1314.
Here, the district court allowed testimony from seven Rule 414 witnesses,
many of whom testified about dozens of instances of Perrault’s sexual abuse. Though
the number of witnesses and allegations gives us pause, we conclude that the district
court acted within its discretion by admitting their testimony. Contrary to Perrault’s
contention, none of the seven witnesses merely parroted identical accusations. Each
witness’s testimony “buttresse[d] weak or assailable evidence.” Id. Because the
government lacked physical evidence supporting Doe 1’s claims of sexual assault all
those years ago, the testimony of other alleged victims bolstered Doe 1’s credibility,
thus reducing the likelihood that the trial would reduce to an “unresolvable swearing
match[].” Enjady, 134 F.3d at 1431 (citation omitted). For example, the testimony of
Does 3 and 8 was especially probative and important to the government’s case
because the government introduced Perrault’s own admissions that he had abused
those witnesses. Doe 7’s testimony differed from most of the others because, apart
from Doe 8, he was the only other witness to testify that Perrault had abused him at
the Base—important to corroborate Doe 1’s allegations that he too had been abused
35
there. The testimony of Does 5, 6, and 9 collectively helped establish Perrault’s
pattern of gift-giving and grooming methods. Finally, Doe 2 served a specific
purpose in refuting Perrault’s defense. At trial, Perrault attempted to discredit Doe 1
by highlighting the $300,000 civil settlement that Doe 1 had obtained from the
Catholic Church, presumably to suggest Doe 1 had a financial incentive to fabricate
his allegations. But Doe 2 testified that, despite being sexually abused by Perrault, he
had never pursued a civil action against Perrault or the Catholic Church. Thus, Doe
2’s testimony served to rebut Perrault’s suggestion that many supposed victims had
come forward to accuse him solely in search of a payout from the Catholic Church. In
short, because we conclude that each of the Rule 414 witnesses retained independent
probative value, we reject Perrault’s argument that their testimony amounted to
“needless[] . . . cumulative evidence.” Fed. R. Evid. 403.
In a similar vein, Perrault insists that the Rule 414 witness testimony unfairly
prejudiced him because it led the jury to convict him based on the emotional impact
of those witnesses’ testimony, rather than because he had sexually abused Doe 1. In
effect, Perrault argues that the government convinced the jury that he was a monster
and that it convicted him for that reason. But “Rule 414 evidence will almost always
have a profound impact on the jury and cause it to feel disgust toward the defendant.”
Mercer, 653 F. App’x at 629. Against the advice of the Federal Judicial Conference,
Congress adopted Rules 413 and 414 anyway. See id. at 630 n.4. So although Rule
414 witnesses undoubtedly produce a powerful emotional impact on jurors, that alone
isn’t sufficient to justify excluding their testimony. Indeed, if we accepted Perrault’s
36
argument, courts could rarely, if ever, admit Rule 414 witnesses for fear of the
emotional impact their testimony would have on the jury.
Moreover, we have recognized that district courts can mitigate any potential
jury bias from Rule 414 witnesses by giving limiting instructions. Benally, 500 F.3d
at 1093 (“[A]ny jury bias that may have resulted from the district court’s decision to
admit [the Rule 413 or 414] evidence would have been mitigated by the court’s two
separate instructions to the jury regarding the jury’s permissible and impermissible
uses of the evidence.”). At least five times during the trial, including as part of the
final instructions, the district court gave the jury a limiting instruction along these
lines:
Ladies and Gentlemen, you are instructed that the evidence of conduct by
the Defendant on a previous occasion with other young boys has been
offered by the Government for its bearing on any matter to which it is
relevant, including the Defendant’s disposition or propensity to commit
the offense that is charged in the Indictment and the improbability that
the Defendant has been falsely or mistakenly accused of these crimes. It
is entirely up to the jury to determine what weight, if any, such other
conduct evidence deserves . . . . However, you are cautioned that the
Defendant is not on trial here for any acts or crimes not alleged in the
Indictment. The Defendant may not be convicted of the crimes charged in
the Indictment if you are to find only that he committed other crimes at
such other time.
R. vol. 3 at 1022 (emphasis added); see also id. at 915, 954–55, 1166–67, 1766–67.
We’re confident that after hearing this instruction five times, the jury knew it
couldn’t convict Perrault of abusing Doe 1 solely on account of a belief that he had
abused other young boys at other times.
37
c. Balancing the Probative Value Against Possible
Prejudice
Despite Perrault’s argument on appeal, we conclude that the district court
properly weighed the Enjady factors against the probative dangers. At bottom, the
Rule 414 witness testimony here was both highly probative and highly prejudicial.
But to exclude this kind of relevant evidence under Rule 403, the prejudice must
substantially outweigh the probative value. Because the district court acted within its
discretion in weighing the value and danger of the evidence, we affirm the admission
of this evidence.
III. The District Court Didn’t Plainly Err in Adopting the Challenged Jury
Instructions
A. Background
Before trial, the parties jointly submitted proposed jury instructions. Besides
one minor dispute not relevant here, the parties agreed on the language for each
instruction. They also agreed on consolidating into a single jury instruction multiple
counts charging the same kind of sexual abuse. So, for example, counts 1, 2, and 7
charging Perrault with digitally penetrating Doe 1’s anus on three separate occasions
were grouped into a single instruction (Instruction 16):
The defendant, Arthur Perrault, is charged in counts 1, 2, and 7 of the
indictment with Aggravated Sexual Abuse . . . . To find Mr. Perrault
guilty of the crime of Aggravated Sexual Abuse as charged in counts 1,
2, and 7 of the indictment, you must be convinced that the government
has proved each of the following beyond a reasonable doubt:
First: The Defendant knowingly engaged in a sexual act
with John Doe;
38
Second: The sexual act was committed in the special maritime
and territorial jurisdiction of the United States; and
Third: At the time of the sexual act, John Doe had not
attained the age of 12 years.
For purposes of counts 1, 2, and 7 of the indictment, “sexual act” is
defined as the penetration, however slight, of the anal or genital opening
of another by a hand or finger or by any object, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person.
***
You are instructed, as a matter of law, that Kirtland Air Force Base and
the Santa Fe National Cemetery are within the special maritime and
territorial jurisdiction of the United States. Accordingly, if you find
beyond a reasonable doubt that such offense occurred in the location
described in the indictment in Counts 1, 2, and 7, then you are instructed
that the alleged aggravated sexual abuse occurred within the special
maritime and territorial jurisdiction of the United States.
R. vol. 1 at 508 (emphasis added). Similarly, counts 3 and 6 charging Perrault with
“contact between the mouth and the penis” were grouped into Instruction 17. Id. at
509.
The parties also jointly proposed that the district court incorporate the
Indictment into Instruction 1. In reading this instruction to the jury at the start of the
trial, the court read aloud the Indictment. But the parties’ proposed Instruction 1
didn’t make it into the final jury instructions for the jury to have during deliberations.
At the jury-instruction conference held at the end of the fourth day of trial, the
district court addressed the already given Instruction 1, stating: “So we start with
Jury Instruction No. 1 . . . , and it [includes] the Indictment. That’s a preliminary
39
instruction, so that one’s already been given.” R. vol. 3 at 1516:25–1517:2. The court
then turned to Jury Instruction 2, and no one addressed Instruction 1 further.
The final jury instructions that the court distributed to the jurors skipped the
parties’ proposed Instruction 1, instead beginning with their proposed Instruction 2.
We’re unsure whether the parties intended for the district court to remove that
instruction from the jury packet. But Perrault didn’t object before, during, or after the
court read the jury its instructions.
On appeal, Perrault argues that the jury needed the Indictment to understand
the instructions referring to multiple counts of associated conduct. Absent giving the
jury a physical copy of the Indictment, he says, the instructions were vague, causing
juror unanimity and double-jeopardy problems. To illustrate this argument, we turn to
Jury Instruction 16. Because the court followed the parties’ lead and included counts
1, 2, and 7 in this instruction, Perrault now maintains that the jury may have believed
that it could convict him of all three counts based on a single incident of sexual
abuse. He phrases it this way: “The instructions did not inform the jury they all had
to agree that three distinct acts in three different locations occurred for three
convictions.” Appellant’s Opening Br. at 46. The Indictment, Perrault says, would
have cleared up any confusion because it “clearly separated out each count with each
act in each place needed to secure a conviction.” Reply Br. at 17.
The government urges us not to reach the merits of Perrault’s argument,
asserting that the invited-error doctrine applies. Alternatively, the government argues
that Perrault’s argument can’t withstand plain-error review. Though we conclude that
40
the invited-error doctrine doesn’t apply, we agree that Perrault has failed to show that
the district court plainly erred in adopting the challenged jury instructions.
B. The Invited-Error Doctrine Doesn’t Apply
The government argues that the invited-error doctrine bars Perrault’s claim
because Perrault and the government jointly proposed the now-challenged jury
instructions. According to the government, this issue is open-and-shut—after all, we
regularly apply the doctrine when defendants challenge jury instructions on appeal
that they proffered in the trial court. See, e.g., United States v. Jereb, 882 F.3d 1325,
1335–41 (10th Cir. 2018); Sturm, 673 F.3d at 1280–81. But this case isn’t so
straightforward.
As we have previously recognized, the invited-error doctrine is rooted in
reliance interests: it “prevents a party who induces an erroneous ruling from being
able to have it set aside on appeal.” Jereb, 882 F.3d at 1338 (quoting United States v.
Morrison, 771 F.3d 687, 694 (10th Cir. 2014)). “[T]his Court will not engage in
appellate review when a defendant has waived his right to challenge a jury
instruction by affirmatively approving it at trial.” Id. at 1335 (quoting United States
v. Cornelius, 696 F.3d 1307, 1319 (10th Cir. 2012)). So the question here is whether
Perrault affirmatively approved the final jury instructions even though the district
court removed the parties’ proposed Instruction 1. We conclude that he didn’t.
In Jereb, we considered a similar argument by the government that the invited-
error doctrine precluded the defendant’s appeal based on erroneous jury instructions.
Id. at 1335. There, the defendant had been charged with violating 18 U.S.C. § 111,
41
which subjects to liability anyone who “forcibly assaults, resists, opposes, impedes,
intimidates, or interferes with” various federal officials. Id. at 1333. The defendant
proffered a jury instruction to clarify that, though the government needn’t prove all
the different acts, the jury must unanimously agree that he committed at least one of
those acts. Id. at 1336. The jury did just that, unanimously finding that the defendant
“forcibly opposed” a federal officer. Id. at 1334. But the jury didn’t find that the
defendant had assaulted the officer. Id. On appeal, the defendant argued that was a
problem because this Circuit’s precedents establish that “assault is an element of
every conviction under 18 U.S.C. § 111(a)(1).” Id. at 1335 (quoting United States v.
Wolfname, 835 F.3d 1214, 1216 (10th Cir. 2016)). Because the jury didn’t find an
assault, the defendant maintained that his conviction couldn’t stand. Id. at 1334.
We concluded that the invited-error doctrine barred the defendant’s challenge
to the jury instructions because his argument on appeal “directly contradict[ed]” what
he argued in the trial court. Id. at 1341. The defendant urged the district court to
adopt a jury instruction that allowed the jury to convict even if it didn’t find an
assault; on appeal, he argued that the jury’s verdict had to be reversed because it
didn’t find an assault. Id. In ruling that the defendant had induced the complained-of
error, we emphasized the defendant’s active involvement in crafting the jury
instruction he challenged on appeal. See id. at 1339 (“The record further reflects that
[the defendant] meaningfully participated in crafting the jury instruction actually
given at trial, which reflected the language [the defendant] sought.”); id. at 1340(noting that the defendant “requested (and received) jury instructions construing a
42
statute that contradict the construction he now prefers on appeal”). In contrast, we
reaffirmed that mere passivity on the defendant’s part doesn’t trigger the doctrine:
A defendant’s failure to object to a district court’s proposed jury
instruction, or even the affirmative statement, “No, Your Honor,” in
response to the court’s query “Any objection?”, is not the same as a
defendant who proffers his or her own instruction, persuades the court to
adopt it, and then later seeks to attack the sufficiency of that instruction.
Id. at 1341 (quoting United States v. Harris, 695 F.3d 1125, 1130 n.4 (10th Cir.
2012)).
If Perrault had not proffered a jury instruction reciting the Indictment, Jereb
would squarely foreclose his challenge—he couldn’t dismiss the Indictment’s
importance below only to challenge its exclusion on appeal. That’s not what
happened here. It’s true that Perrault jointly proposed the instructions that he now
challenges on appeal. But the district court didn’t include in the jury packet all the
instructions that the parties proposed; it omitted Instruction 1, which incorporated the
Indictment. That omission, Perrault argues, rendered the otherwise-acceptable jury
instructions “a morass.” Reply Br. at 18. Perrault maintains that the jury couldn’t
properly interpret the instructions without the Indictment too. See id. at 17 (“Had the
indictment gone back with the jury instructions, there could be no claim of
confusion.”). In other words, Perrault contemplated jury instructions in which the
Indictment was part and parcel; once the district court removed that piece, he no
longer found them adequate.
And, unlike the defendant in Jereb, Perrault never affirmatively approved the
instructions without the Indictment. The closest he came to doing so was at the jury-
43
instruction conference when the district court arguably suggested that it wasn’t going
to include the parties’ proposed Instruction 1 in the jury’s instruction packet. But the
district court didn’t say it was going to remove proposed Instruction 1 from the jury’s
instruction packet. And even had the court done so, Perrault’s failing to object
wouldn’t automatically trigger the invited-error doctrine. See Jereb, 882 F.3d at
1341. Perrault’s proffered jury instructions included the full text of the Indictment,
and he never induced the court to remove it. The court did that on its own.
Still, if Perrault believed, as he argues now, that the final jury instructions
were deficient without the parties’ proposed Instruction 1, he should have objected.
He didn’t. Nor did he object to the district court’s failing to send the Indictment back
with the jury. So we review his challenge to the jury instructions only for plain error.
Id. at 1335.
C. The District Court Didn’t Plainly Err in Adopting the Challenged
Jury Instructions
Perrault argues that vagueness in the jury instructions violated two of his
constitutional rights—his Sixth Amendment right to a unanimous jury verdict and his
Fifth Amendment right against double jeopardy. The Sixth Amendment guarantees
that “[a] jury must reach a unanimous verdict in order to convict.” Ramos v.
Louisiana, 140 S.Ct. 1390, 1395 (2020); id. at 1396 (“This Court has, repeatedly and
over many years, recognized that the Sixth Amendment requires unanimity.”); see
also United States v. McElhiney, 275 F.3d 928, 935 (10th Cir. 2001) (“The Sixth
Amendment guarantees a federal criminal defendant the right to a unanimous
44
verdict.” (citation omitted)). This generally requires a jury “to be unanimous as to the
elements of [each] offense” charged in the indictment. United States v. Allen, 603
F.3d 1202, 1214 (10th Cir. 2010). And the Double Jeopardy Clause of the Fifth
Amendment “protects a defendant from being punished multiple times for the same
offense.” United States v. Worku, 800 F.3d 1195, 1198 (10th Cir. 2015) (citation
omitted).
As noted, Perrault challenges jury Instructions 16 and 17 for addressing
multiple counts in a single instruction without clarifying that the jury had to
unanimously agree on what separate acts supported a conviction on each count.19
Based on Instruction 16, Perrault asserts that the jury may have convicted him on
counts 1, 2, and 7 even if it concluded that he had penetrated Doe 1’s anus only once.
And because Instruction 17 similarly groups counts 3 and 6 together, Perrault argues
the jury may have convicted him of both counts even if it found only a single incident
with Doe 1 of “contact between the mouth and penis.”
We conclude that Perrault has failed to establish that the district court plainly
erred and, even if it had, Perrault has failed to show that the error affected his
substantial rights. See Chavez-Morales, 894 F.3d at 1214. Perrault derives his
argument from our unpublished decision, United States v. McGill, 359 F. App’x 56
(10th Cir. 2010). There, we considered the defendant’s appeal challenging a jury
19
Perrault advances a similar claim about counts 4 and 5, reflected in
Instructions 18 and 19, respectively. But his challenges concerning jury unanimity
and double jeopardy fail for the same reasons explained below.
45
conviction of six counts of aggravated sexual abuse. Id. at 57–58. We cautioned that
“[t]he use of generic, facially indistinguishable counts with broad overlapping time
frames could potentially raise . . . double-jeopardy and jury-unanimity concerns.” Id.
at 60. “As for double jeopardy, the jury could be misled into convicting the defendant
on more than one count for the same conduct; as for jury-unanimity, different jurors
might vote to convict on the same count on the basis of different conduct.” Id. But we
concluded that the jury instructions there “obviated” those concerns because they
“linked specific counts with particular incidents identified by unique factual
circumstances.” Id. We also noted that the government in its closing argument helped
dispel possible confusion “by highlighting the specific incidents linked to each
count.” Id. at 61 (citation omitted).
Perrault also relies on another decision in which the defendant raised a
challenge like his, United States v. Davis, 55 F.3d 517 (10th Cir. 1995). In Davis,
police found two firearms in the defendant’s car after conducting a lawful search. Id.
at 519. The indictment charged the defendant with “using or carrying a .25 caliber
firearm in connection with possession of powder cocaine (Count 4)” and “using or
carrying a .22 caliber firearm in connection with possession of crack cocaine (Count
5).” Id. But the district court combined the counts into a single jury instruction. Id. at
520. Relevant here, that instruction required the jury to find that “the defendant used
the specific firearm alleged in the Indictment.” Id. We rejected the defendant’s
argument that the jury instruction “afforded the jury the opportunity to convict [the
46
defendant] of two § 924(c) firearm counts based on one underlying offense.” Id. The
key was the indictment:
Reading Jury Instruction No. 23 in light of the Indictment, we are able to
determine that the jury linked each alleged § 924(c) conviction to a
separate underlying offense, because each count of the Indictment clearly
pairs one of the firearms to one of the drug charges. We find it significant,
therefore, that the Indictment was included in the jury instructions . . . .
Id. (emphasis added) (citations omitted).
These decisions clarify that, when reviewing challenges to allegedly vague
jury instructions, the inquiry turns on “if the reviewing court can determine whether
the jury linked each alleged [criminal] violation to a separate underlying offense.” Id.
(internal quotation marks and citation omitted). Together, Davis and McGill suggest
several ways courts can verify that the jury did so: whether the instructions included
unique identifiers that clearly relate to only one count (for example, by specifying the
location where a particular offense occurred); whether the instructions incorporated
the indictment; and whether the government clarified during the trial which specific
conduct related to each count. See id.; McGill, 359 F. App’x at 60–61. And we must
be mindful that “[w]hen reviewing claims of error in regard to jury instructions, we
review the instructions as a whole . . . .” United States v. Allen, 603 F.3d 1202, 1213
(10th Cir. 2010). Thus, other instructions can alert the jury that they must link each
count to separate conduct.
Considering the record and instructions as a whole, including the
government’s clarifying remarks during its closing argument, we are satisfied that the
jury linked each count to a separate underlying offense. First, though the district
47
court didn’t include the Indictment in the jury’s instruction packet, it did read the
Indictment aloud to the jurors at the start of jury selection and again at the start of the
trial. And, as Perrault concedes, the Indictment meaningfully separated the counts.
For example, the Indictment informed the jury that counts 1 and 2 charged Perrault
with twice sexually abusing Doe 1 at the Base, and count 7 charged Perrault with
sexually abusing Doe 1 at Santa Fe National Cemetery. The jurors twice heard the
Indictment’s language clarifying that each count referred to separate acts of abuse at
different locations.
Second, Instruction 14 further clarified that each count related to separate
conduct:
A separate crime is charged against Mr. Perrault in each count of
the Indictment. You must separately consider the evidence against Mr.
Perrault as to each count and return a separate verdict for each count.
Your verdict as to any one count . . . should not influence your
verdict as to any other counts.
R. vol. 1 at 506 (emphasis added).
Third, though Instructions 16 and 17 referenced multiple counts in single
instructions, the verdict form separated each of the counts. This would have again
suggested to the jury that it had to identify separate conduct to find Perrault guilty of
each count.
Fourth, in its closing argument, the government reviewed each of the counts,
linking the specific evidence that supported each count. For example, in discussing
counts 1, 2, and 7, the government directed the jury to Doe 1’s testimony: “He said
48
that the Defendant put his fingers in his rectum several times, at the base, at the
cemetery. While at the base, different times, in the chapel, in the car, in the parking
lot field area. So you’ve got enough evidence on Counts 1, 2 and 7.” R. vol. 3 at
1803. This highlighted separate acts of sexual abuse in distinct locations. With regard
to counts 3 and 6, the government again referenced Doe 1’s testimony and
distinguished the counts based on separate conduct at separate locations—one count
for the sexual abuse at the Base and one count for the abuse at Santa Fe National
Cemetery. Based on the above, we’re confident the jury linked each count to separate
acts of sexual abuse.
Even so, we agree with Perrault that the jointly submitted instructions weren’t
ideal. Perhaps the simplest, most effective revision would have been to include a
separate jury instruction for each count. Or the district court could have stuck with
the parties’ proposed Instruction 1, which included the Indictment. The Indictment
would have reminded the jury that several of the counts took place in different
locations and that each count related to a distinct charge of sexual abuse.
But even if we concluded that the district court erred by failing to make the
instructions clearer, we couldn’t conclude that the error was plain—“obvious under
current well-settled law”—as required when conducting plain-error review. Chavez-
Morales, 894 F.3d at 1214. Perrault directs us to no authority from either the
Supreme Court or our Circuit holding that a district court erred by referencing
multiple counts in a single instruction or by failing to include the indictment as part
of the jury instructions. Though this case demonstrates the perils of that course, our
49
precedents compel us to uphold the instructions when, as here, we can see how the
jury linked individual counts to separate conduct. See McGill, 359 F. App’x at 60–61;
Davis, 55 F.3d at 520.
Finally, even if Perrault managed to clear the first two hurdles of plain error
review, he couldn’t surmount the third, which requires a showing that the error
affected his substantial rights. United States v. Mendoza, 698 F.3d 1303, 1310 (10th
Cir. 2012). To prove that the district court’s error affected his substantial rights,
Perrault has the burden to show “a reasonable probability that, but for the error
claimed, the result of the proceeding would have been different.” Id. (quoting United
States v. Weiss, 630 F.3d 1263, 1274 (10th Cir. 2010)). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” United States v.
Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014) (citation omitted). “We
therefore must ask whether we are in doubt that,” had the jury received clearer jury
instructions, it would not have convicted Perrault of all seven counts. See id.We are confident that, even if the district court had given the jury instructions
revised as Perrault suggests, the jury would have returned the same guilty verdict.
Doe 1’s testimony—bolstered by seven Rule 414 witnesses’ testimony—provided
ample evidence to support the jury’s guilty verdict. Doe 1 testified that Perrault
sexually abused him on dozens of occasions, including at least ten times at both the
Base and the Santa Fe National Cemetery. The jury obviously found Doe 1 credible.
Perrault fails to explain why the jury would believe Doe 1’s allegations about some
but not all of the incidents of sexual abuse. And even beyond Doe 1’s testimony, the
50
government submitted compelling evidence that Perrault had admitted abusing other
boys. In the face of this considerable evidence, Perrault fails to persuade us of a
reasonable probability the outcome would have been different with better
instructions.20
IV. The District Court Didn’t Plainly Err by Enhancing Perrault’s Sentence
for Obstructing Justice
Perrault argues that the district court erroneously included an obstruction-of-
justice enhancement in calculating his advisory guideline range. Perrault concedes
that he failed to object to the enhancement, but he maintains that his challenge meets
plain-error review. So he must demonstrate plain error that affected his substantial
rights and seriously affected the fairness and integrity of the proceeding. See Chavez-
Morales, 894 F.3d at 1214. Though we agree with Perrault that the district court
erred by applying the obstruction-of-justice enhancement for his flight to Morocco,
we affirm on a different ground.21
20
Perrault also argues that, because “counts 1, 2 and 7 for sexual abuse by
digital penetration [18 U.S.C. § 2241(c)] subsume counts 4 and 5 for sexual contact
[18 U.S.C. § 2244(a)(5),] . . . conviction on both results in double jeopardy.”
Appellant’s Opening Br. at 51 (citation omitted). But Perrault concedes that “[t]his
court has not determined whether digital sexual abuse subsumes digital sexual
contact as a lesser included offense.” Id. at 52 (citation omitted). Thus, because we’re
reviewing for plain error, we needn’t take up this argument—any error wouldn’t have
been “plain.”
21
The government argues that Perrault’s argument “is so conclusory that this
Court should consider the argument waived.” Appellee’s Answer Br. at 42 (citation
omitted). But we view Perrault’s argument as concise, not conclusory, and deserving
of our review.
51
The PSR states: “After Perrault discovered an investigation against him was
initiated, he obstructed justice by taking a sabbatical and leaving the country.” R. vol.
2 at 223. The PSR then recommends adding two offense levels to each of the seven
counts when calculating Perrault’s sentence. The district court adopted the PSR’s
guidelines calculation, placing Perrault at an offense level of 40. Because his
criminal-history category was I, the advisory guideline range was 292 to 365 months.
On counts 1-4, 6, and 7 the district court sentenced Perrault to a 365-month prison
term. On count 5, it sentenced him to a concurrent term of 120 months.
But we conclude that the PSR improperly recommended applying the
obstruction enhancement for Perrault’s flight to Morocco. Under the applicable
guideline, sentencing courts impose a two-level adjustment for obstructing justice
when “the defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice during the investigation, prosecution, or
sentencing of the instant offense.” U.S. Sentencing Guidelines Manual § 3C1.1 (U.S.
Sentencing Comm’n 1991). The application notes provide that the adjustment is not
warranted based on a defendant’s “avoiding or fleeing from arrest.” Id. cmt. n.4(d).
As mentioned, § 3C1.1 applies to obstructive conduct “during the
investigation, prosecution, or sentencing of the instant offense.” United States v.
Gacnik, 50 F.3d 848, 851 (10th Cir. 1995); see also United States v. Stolba, 357 F.3d
850, 852 (8th Cir. 2004) (“We conclude that an obstruction adjustment was
unavailable . . . because no official investigation relating to Mr. Stolba’s offenses
was underway when he directed Ms. Morgan to delete the computer files. Section
52
3C1.1 unambiguously requires obstructive conduct to have occurred ‘during’
investigation, prosecution, or sentencing, and at the time that Mr. Stolba directed Ms.
Morgan to delete the files, no governmental entity had started investigating or even
become aware of Mr. Stolba’s fraudulent conduct.”).
Here, the government never established that law enforcement had even begun
investigating Perrault when he fled the country. On appeal, it merely asserts that
“Perrault knew he was under investigation when he fled to Morocco.” Appellee’s
Answer Br. at 43. But like the PSR, the government omits who was investigating. It
was a local reporter, not any governmental entity, who had begun investigating
claims about Perrault’s misconduct. Though the reporter’s investigation likely
precipitated Perrault’s flight, that situation doesn’t meet § 3C1.1’s plain language.
The government’s arguments fail to persuade us otherwise. It cites two cases
to establish that defendants who have fled arrest warrants receive the obstruction
enhancement. But in both cases, the defendant fled after he had previously been
arrested and had been released pending trial. See United States v. Glenn, 166 F.3d
1222 (10th Cir. 1999) (unpublished table decision); United States v. Cisneros, 846
F.3d 972, 974–75 (7th Cir. 2017). Because law enforcement had begun criminal
investigations at the time the defendants fled arrest, those decisions comport with
§ 3C1.1’s plain language requiring that the obstruction of justice occur “during” an
investigation, prosecution, or sentencing. See Gacnik, 50 F.3d at 852.
But we affirm on a different ground. See Spring Creek Expl. & Prod. Co., LLC
v. Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1032–33 (10th Cir. 2018) (“[W]e may
53
affirm the district court for any reason supported by the record.” (quoting Amro v.
Boeing Co., 232 F.3d 790, 796 (10th Cir. 2000))). Though the government focused its
argument on Perrault’s leaving the country (before law enforcement had launched an
investigation), we’re more concerned with his failure to return voluntarily to stand
trial. Other circuits have concluded that putting the government to the expense and
hassle of retrieving a defendant from a foreign country constitutes obstruction of
justice. See United States v. Nduribe, 703 F.3d 1049, 1050–51 (7th Cir. 2013)
(affirming the district court’s applying an obstruction enhancement when the
defendant had “delayed his apprehension by five years and during that period put the
government to the expense of searching for him on three continents before finally
procuring his arrest and extradition, which undoubtedly involved our government’s
active participation in the extradition proceeding”); see also United States v. Carty,
264 F.3d 191, 195 (2d Cir. 2001) (upholding application of obstruction enhancement
in part because the defendant “did not return to the United States after being ordered
to do so by a D.E.A. agent”). We agree with those decisions that this kind of conduct
ordinarily triggers the obstruction enhancement.
Here, even after he was detained by the Moroccan government at the United
States’ request, Perrault fought his removal from Morocco. See R. vol. 3 at 1425:24–
25 (“Morocco agreed to expel him from the country, so we [i.e., FBI agents] had to
go over there to recover him.”). He even wrote a letter to Morocco’s King, pleading
for permission to stay in Morocco. By then, Perrault was well-aware of the charges
against him. But he still put the government to the expense and trouble of retrieving
54
him from abroad. This supports the district court’s imposing the obstruction-of-
justice enhancement, and we affirm on that basis.
V. Perrault Fails to Demonstrate That Cumulative Error Tainted His Trial
A. Standard of Review
A cumulative-error analysis “is an extension of the harmless-error rule.”
United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (en banc). This
doctrine recognizes that “[t]he cumulative effect of two or more individually
harmless errors has the potential to prejudice a defendant to the same extent as a
single reversible error.” Id. To assess that possibility, we “aggregate[] all errors
found to be harmless and analyze[] whether their cumulative effect on the outcome of
the trial is such that collectively they can no longer be determined to be harmless.”
Grant v. Royal, 886 F.3d 874, 954 (10th Cir. 2018) (quoting Hooks v. Workman, 689
F.3d 1148, 1194 (10th Cir. 2012)). Unless the court identifies at least two harmless
errors, we will decline to undertake a cumulative-error analysis. Hooks, 689 F.3d at
1195.
B. There Was No Cumulative Error
Besides the alleged errors already discussed,22 Perrault argues that two
additional errors tainted his trial. He asserts that the district court erred by
22
In arguing for cumulative error, Perrault repackages his arguments that the
Rule 414 witnesses were overly prejudicial and that the jury instructions lacked
clarity. Because we have already addressed those arguments above, we don’t
separately consider them here.
55
(1) denying his motion for a continuance and (2) denying his motion for a mistrial.
Neither argument has merit.
We review for an abuse of discretion the district court’s decision to deny
Perrault’s motion for a continuance, United States v. Toombs, 574 F.3d 1262, 1268
(10th Cir. 2009), and his motion for a mistrial, United States v. Wells, 739 F.3d 511,
533 (10th Cir. 2014). We will reverse only if we have “a definite and firm conviction
that the lower court has made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances.” United States v. Hargrove, 911 F.3d 1306,
1316 (10th Cir. 2019) (citation omitted).
1. The District Court Acted Within Its Discretion in Denying
Perrault’s Motion for a Continuance
Perrault asserts that “[n]o attorney could have prepared adequately for this trial
in six-months.” Reply Br. at 25. According to Perrault, the district court’s denying
his third motion to continue prejudiced his trial preparation. We disagree.
The district court granted (at least in part) two of Perrault’s three motions for a
continuance. The court originally scheduled Perrault’s trial for November 26, 2018.
But the district court granted Perrault’s first unopposed motion to postpone the trial
by three months to February 25, 2019. In January 2019, Perrault filed a second
motion to continue, asking for another ninety-day extension. The district court
granted an extension of just over thirty days and rescheduled the trial for April 1,
2019.
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But when Perrault moved for a third time to continue the trial an additional
forty-five days, the district court denied the motion. It determined that Perrault had
failed to meet the Toombs requirements because he had failed to explain “what
further investigation is necessary or what possible motions might be filed.” R. vol. 1
at 366. Under Toombs, “short, conclusory statements lacking in detail” are
“insufficient” to justify a continuance under the ends-of justice exception to the
Speedy Trial Act. 574 F.3d at 1271–72.
Perrault offered only conclusory statements to the district court, and that’s all
he offers now. He continues to rest on his assertion that it was “obvious” that his trial
counsel couldn’t adequately prepare for his trial in six months. Reply Br. at 25. Yet
he never explains what he would have done with the extra time or how the denial of
his request for a continuance prejudiced his trial preparation. Given Perrault’s
inability to articulate why he needed additional time to prepare, the district court
acted within its discretion in denying his third motion for a continuance.
2. The District Court Didn’t Err in Denying Perrault’s Motion
for a Mistrial
When attempting to impeach Perrault’s character witness, a friend of his, the
government queried, “When [Perrault] returned to the United States in 2018, you
visited him in jail; isn’t that right?” R. vol. 3 at 1633. Perrault immediately moved
for a mistrial, arguing that the question violated Perrault’s presumption of innocence.
Though the district court acknowledged that the question “should not have been
asked,” it denied Perrault’s motion for a mistrial. Id. at 1649, 1651. Considering the
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question in the context of all the evidence, the district court concluded that a curative
instruction would protect Perrault’s right to a fair trial.
The district court didn’t abuse its discretion in denying Perrault’s motion for a
mistrial. A “district court has discretion to grant a mistrial only when a defendant’s
right to a fair and impartial trial has been impaired.” United States v. Meridyth, 364
F.3d 1181, 1183 (10th Cir. 2004) (citing United States v. Kravchuk, 335 F.3d 1147,
1155 (10th Cir. 2003)). In assessing whether that right was impaired, we consider
“the prejudicial impact of an error or errors when viewed in the context of an entire
case.” Id. (quoting United States v. Gabaldon, 91 F.3d 91, 93–94 (10th Cir. 1996)).
Here, Perrault received a fair and impartial trial notwithstanding the government’s
improper question. It was no secret that Perrault had been detained before trial; the
jury had already heard evidence that the Moroccan government had detained Perrault
and that FBI agents had traveled overseas to retrieve him. The district court’s
curative instruction redressed whatever minimal prejudicial impact the prosecutor’s
question had on the trial. In short, the district court acted within its discretion in
denying the motion.
CONCLUSION
For the foregoing reasons, we affirm.
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