DocketNumber： 93-5944
Judges： Williams, Lay
Filed Date： 7/14/1995
Status： Precedential
Modified Date： 10/19/2024
Before WILKINS and WILLIAMS, Circuit Judges, and LAY, Senior United States Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.
Affirmed by published opinion. Judge WILLIAMS wrote the majority opinion, in which Judge "WILKINS concurred. Senior Judge LAY wrote a separate, dissenting opinion.
OPINION
Grady William Powers appeals his conviction for aggravated sexual abuse of a minor in violation of 18 U.S.C. § 2241(c) (1988). Powers challenges several of the district court’s evidentiary rulings, alleging on appeal that the district court erred in admitting evidence of Powers’ prior bad acts, in excluding evidence of the victim’s sexual behavior, and in excluding testimony of Powers’ expert witnesses. Finding no error, we affirm.
I.
Powers was accused in 1992 of repeatedly raping his daughter, Brandi Powers, over the course of ten months between November 1989 and September 1990 when she was nine and ten years old. Duiing the time of the alleged rapes, Powers lived with Brandi, her brothers and sisters, and her mother Joyce Powers — now Joyce Powers Gregory (Gregory) — on the Cherokee Indian Reservation in Robbinsville, North Carolina. In November 1989, Powers had returned to his family in Robbinsville after working in Florida. The testimony at trial reflected that Powers repeatedly raped and molested Brandi, often several times a day, and that he would send her brother Brent out of the house so that he could sexually assault her. The record further reflects that, in the fall of 1990, Brandi told her brother Brent that she did not want to be left alone with her father because- he had been sexually molesting her. Brent told their mother, who confronted Powers. Powers initially denied Gregory’s allegation about the incest, but then admitted to molesting Brandi. Gregory told him to move out of the house. Gregory and Powers were later divorced. Gregory reported the rapes to the authorities in 1992.
Powers was indicted on ten counts of engaging in sexual acts with a person under the age of twelve within the territorial jurisdiction of the United States in violation of 18 U.S.C. § 2241(c).
Powers first argues that the district court erred in admitting evidence of his prior bad acts of family violence that he believes were intended to impugn his character under Federal Rule of Evidence 404(b). Powers contends that the district court should have excluded the following evidence of his violence towards his family and, in particular, towards Brandi:
Rule 404(b) states that “[ejvidenee of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Thus, “ ‘the prosecution may not introduce evidence of extrinsic offenses to demonstrate the defendant’s propensity to commit unlawful acts or to prove that the defendant committed the crime with which he is presently charged.’ ” United States v. Percy, 765 F.2d 1199, 1203 (4th Cir.1985) (quoting United States v. Davis, 657 F.2d 637, 639 (4th Cir.1981)). Such evidence “may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b).
The list of purposes for which prior bad acts may be admitted under Rule 404(b) is illustrative rather than exclusionary. Percy, 765 F.2d at 1203. Consequently, we have construed the exceptions to the inadmissibility of prior bad acts evidence broadly, and characterize Rule 404(b) “as an inclusive rule, admitting all evidence of other crimes or acts except that which tends to prove only criminal disposition.” Id. (emphasis added); United States v. Russell, 971 F.2d 1098, 1106 (4th Cir.1992) (“evidence of prior bad acts is admissible unless it is introduced for the sole purpose of proving criminal disposition”), cert. denied, — U.S. -, 113 S.Ct. 1013, 122 L.Ed.2d 161 (1993).
Evidence of prior bad acts is admissible if it is (1) relevant to an issue other than character, (2) necessary to show an essential part of the crime or the context of the crime, and (3) reliable. United States v. Rawle, 845 F.2d 1244, 1247 & n. 4 (4th Cir.1988). If these criteria are met, the evidence is admissible unless its “probative value is substantially outweighed by its prejudicial effect.” Morgan v. Foretich, 846 F.2d 941, 944 (4th Cir.1988) (emphasis in original); Rawle, 845 F.2d at 1247; Fed.R.Evid. 403. The district court’s decision to admit evidence under Rule 404(b) is discretionary, and we will not overturn its decision unless it is “arbitrary or irrational.” United States v. Haney, 914 F.2d 602, 607 (4th Cir.1990).
We conclude that the evidence of Powers’ violence against Brandi and her family members was admissible to explain Brandi’s submission to the acts and her delay in reporting the sexual abuse. See State v. Wilson, 60 Wash.App. 887, 808 P.2d 754, 757 (physical abuse of victim admissible under state’s version of Rule 404(b) in sex abuse case to explain, among other things, the delay in reporting the sexual abuse), rev. denied, 117 Wash.2d 1010, 816 P.2d 1224 (1991); State v. Bates, 784 P.2d 1126, 1127-28 (Utah 1989) (doctor’s testimony as to delays in reporting of abuse admissible under state’s version of
A.
Applying Rawle to this case, we first must consider whether evidence of prior bad acts is relevant to an issue other than character. The threshold for relevancy is relatively low. According to Fed.R.Evid. 401, relevant evidence is that “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” However, under Rule 404(b), “[i]n order for evidence to be relevant, it must be sufficiently related to the charged offense.” Rawle, 845 F.2d at 1247 n. 3 (citing United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984)).
The general relevance of this evidence to the sexual abuse is clear to us. Evidence of the beatings of both Brandi and her family provides a cogent explanation for Brandi’s failure to report the sexual abuse for almost eighteen months. Thus evidence of the beatings makes it more probable that Brandi failed to report the sexual abuse not because it never took place, but because of her fear of retribution.
Comparing the general character of physical violence, of the evidence at issue, and of rape, we further conclude that, in this case at least, the beatings were sufficiently related to the nature of the offense charged. In short, rape, as much as any beating suffered by Brandi and her family, is an act of violence. A majority of commentators now recognize the principle that rape is a violent act,
Before finishing our consideration of relevance, we pause to discuss one point of disagreement with the dissent: the dissent claims that the beatings were not sufficiently temporally related to satisfy the relevancy requirement under Rawle. Dissenting op. at 1476-77. We disagree. The evidence presented at trial clearly showed that Powers’ return to Robbinsville predated the sexual abuse by no more than one month. Importantly, Brandi testified that when Powers returned to Robbinsville, he resumed beating the children on a daily basis. (J.A. 26.) Furthermore, Gregory testified that shortly after moving back to Robbinsville, Powers “got [Gregory] and the kids all upstairs, the babies, too”, (R. 240), and threatened to burn down their home with Gregory and the children inside. In our opinion, these events, when taken as a whole with the earlier physical mistreatment, show that Powers’ abuse that he inflicted upon his family was, in reality, one continuous pattern of activity that existed whenever he was present in the home. Considering that “[t]he impact of the time differential is within the district court’s discretion,” United States v. Hadaway, 681 F.2d 214, 218 (4th Cir.1982), we are especially reluctant to reverse the district court on this ground. The timing of the beatings shows that they constituted yet another expression of the brutality with which Powers dominated Brandi and her family, creating an environment conducive to the further violence of rape. Accordingly, we disagree with the dissent and find that the district court did not abuse its discretion in admitting the evidence as relevant to issues other than Powers’ character.
B.
As to Rawle’s requirement that the evidence be “necessary,” we have made clear that prior bad acts evidence is considered “necessary and admissible [either] where it is an essential part of the crimes on trial, see United States v. Masters, 622 F.2d 83, 86 (4th Cir.1980), or where it ‘furnishes part of the context of the crime.’ United States v. Smith, 446 F.2d 200, 204 (4th Cir.1971).” Rawle, 845 F.2d at 1247 n. 4. Here, the evidence of the beatings was necessary to place the sexual abuse evidence in context.
We have approved bad acts evidence to show the context of the crime in many circumstances, often simply to complete the story of the offense. We stated in Masters that admission of bad acts evidence is necessary to show the context of the crime when the bad acts are “so intimately connected with and explanatory of the crime charged against the defendant and [are] so much a part of the setting of the case and its environment that [their] proof is appropriate in order to complete the story of the crime on trial by proving the immediate context of the res gestae.” 622 F.2d at 86.
Other Circuits have agreed with this approach. For instance, in United States v. Williford, 764 F.2d 1493 (11th Cir.1985), the Eleventh Circuit noted that regardless of whether the defendant’s intent was at issue, bad acts evidence explaining the context of the crime “is properly admitted if linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.” Id. at 1499. Therefore, even though the defendants were charged with sale of marijuana, the district court allowed the government to introduce other evidence that the defendants attempted to negotiate a large purchase of cocaine. In United States v. Brennan, 798 F.2d 581 (2nd Cir.1986), the Second Circuit allowed the government to introduce evidence of uncharged incidents of bribery against a judge charged with taking
As in the above-cited eases, Powers’ acts of violence against Brandi and her family and the violent sexual assaults he committed against his daughter were “so linked together in point of time and circumstances ... that one [could not] be fully shown without proving the other.” Masters, 622 F.2d at 86. To place the rape in context, the Government elicited testimony from Brandi to show Powers’ control over Brandi and the entire family and their inability to resist or report his violent acts. Brandi testified that she did not tell her mother of the sexual assaults for fear of arousing Powers’ anger. Indeed, Brandi testified Powers had threatened that if she reported the assaults, “something bad [would] happen to [her],” and everyone, especially she, would “be in trouble.” (J.A. 49, 42.) The evidence of Powers’ complete control over his family explains Brandi’s belief that, as long as Powers lived with the family, it would be futile for Brandi to report the assaults to her mother, who would not have been able to protect her. Thus, having seen the entire context of the crime, the jury could have found more credible Brandi’s inability to reject Powers’ advances and her explanation that she only told of the assaults when she could no longer face the fear and anxiety of being molested again.
The dissent argues that Brandi’s testimony as to Powers’ violent acts against his family was relevant solely to the extent that it reinforced Brandi’s own credibility. Dissenting op. at 1477. We disagree with the dissent’s broad construction of credibility reinforcement, at the expense of evidence properly placing the crime charged in context. Rather, Brandi’s testimony of Powers’ physical abuse of her and her other family members, and the fear generated by the continuing pattern of abuse, was linked to the effect of those actions: Powers created such fear to insure that Brandi submitted to the violence of his sexual abuse and to prevent Brandi from reporting the crime. The violent acts of physical abuse, when combined with the fear generated by those actions, comprise the factual context of the sexual abuse in this case.
C.
The “reliable” evidence requirement of Rawle need not detain us long. At trial, Brandi, Brent, and Gregory all testified about the beatings, and each of them independently offered similar stories, thereby confirming each others’ testimony. Because this eyewitness testimony was sufficient to allow the jury to “reasonably conclude that the act[s] occurred and that the defendant was the actor,” the evidence was reliable. Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988).
D.
Accordingly, the only remaining question is whether the probative value of this prior bad acts evidence was “substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403. Any prejudicial effect of this evidence “ ‘require[s] exclusion only in those instances where the trial judge believes that there is a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence.’” Masters, 622 F.2d at 87 (quoting Trautman, Logical or Legal Relevancy—A Conflict in Theory, 5 Vand.L.Rev. 385, 410 (1951-52)). The evidence here was highly probative. It explained Powers’ domination and control over his family, as reflected by Brandi’s failure to report the molestation for a significant period of time, and how that domination permitted Powers repeatedly to sexually abuse his daughter.
Powers’ counsel, however, did not object to the wording of either of these instructions. The Seventh Circuit confronted a similar situation in United States v. Herrera-Medina, 853 F.2d 564 (7th Cir.1988), where the defendant challenged the admission of various audio tapes showing that he was familiar with the routines and practices of a drug conspiracy. After finding a basis in the rules for admitting the evidence, the court turned to the Rule 403 balancing analysis. After noting that the district court instructed the jury not to consider irrelevant portions of the tape, the Seventh Circuit held that
The efficacy of such instructions may of course be questioned, but as [the defendant’s] attorney did not object to the limiting instruction at trial, the only question is whether we can conclude that the instruction must have been so inefficacious that the judge’s failure to exclude the tapes rather than limit the permissible use of them was a plain error; we cannot so conclude.
Id. at 566. Consistent with the widely accepted rule that an unobjected-to failure to give a limiting instruction at all is reviewed for plain error, the Seventh Circuit held that a failure to object to the specific wording of limiting instructions is also reviewed for plain error. Id. We agree and apply plain error review to the present case. See also Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) (“It is the rare case in which an improper jury instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.”); United States v. Hegwood, 977 F.2d 492, 495 (9th Cir.1992) (conducting a plain error review where the defendant did not object to the language of an erroneous initial jury charge), cert. denied, - U.S. -, 113 S.Ct. 2348, 124 L.Ed.2d 257 (1993). We do not find plain error here, especially considering the district court’s final jury instructions.
E.
In this case, the district court’s evidentiary ruling is admittedly a close question, and pushes the boundaries of Rule 404(b); however, we cannot say that the district court’s actions were beyond the scope of its discretion. “A district court’s evidentiary rulings are entitled to substantial deference, because a district court is much closer than a court of appeals to the pulse of the trial.” Russell, 971 F.2d at 1104 (citations and internal quotation marks omitted). Therefore, because the evidence was relevant to issues other than Powers’ character, was reliable and necessary, and was more probative than prejudicial, we find that the district court did not abuse its “wide discretion,” id. at 1105, in admitting the evidence of Powers’ acts of violence against his family and his daughter.
III.
Next, Powers argues that the district court’s exclusion of evidence regarding Brandi’s sexual relations with a boyfriend, which occurred over a year after the alleged rapes, violated his Sixth Amendment right to cross-examine and confront witnesses and his due process rights under the Fifth Amendment to present evidence relevant to his defense. Thus, Powers contends that the evidence should have been admitted under Fed.R.Evid. 412(b)(1).
IV.
Finally, Powers argues that the district court erred in excluding testimony of two experts who would have testified that Powers did not exhibit the characteristics of a fixated pedophile. Expert testimony explaining scientific evidence is admissible under Fed.R.Evid. 702 if it will assist the jury “to understand the evidence or determine a fact in issue.” When determining admissibility under Rule 702, a trial judge must ensure that all scientific testimony or evidence admitted is both relevant and rehable, and that its evidentiary reliability is based upon scientific validity. Daubert v. Merrell Dow Pharmaceuticals, Inc., — U.S. - at - & n. 9, 113 S.Ct. 2786 at 2795 & n. 9, 125 L.Ed.2d 469 (1993). As we recently noted:
[T]he Daubert Court set forth a two-part test which must be met in order for such expert testimony to be properly admitted under the FRE: (1) the expert testimony must consist of “scientific knowledge”— that is, the testimony must be supported by appropriate validation; and (2) the evidence or testimony must “assist the trier*1471 of fact to understand the evidence or to determine a fact in issue/
United States v. Dorsey, 45 F.3d 809, 813 (4th Cir.1995) (quoting Daubert, — U.S. at —, 113 S.Ct. at 2795). We review the district court’s refusal to admit scientific evidence for abuse of discretion. Dorsey, 45 F.3d at 814 (“[U]nder the Daubert analysis, a trial judge has a great deal of discretion in deciding whether to admit or exclude expert testimony.”); United States v. Bynum, 3 F.3d 769, 773 (4th Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 1105, 127 L.Ed.2d 416 (1994).
A.
The first question we must confront is whether the results of a penile plethysmograph test meet the scientific validity prong of Daubert. Specifically, Powers argues that the district court erred in excluding the testimony of a clinical psychologist who would have testified that the results of a penile plethysmograph test did not indicate that Powers exhibited pedophilie characteristics. The penile plethysmograph, or arousal, test measured Powers’ sexual arousal in response to pictures of nude females of various age groups. The district court excluded this evidence because, in its opinion, the test did not satisfy the “scientific validity” prong of Daubert.
In Dorsey, we enumerated the factors that the Supreme Court directed trial courts to consider when evaluating the scientific validity of proposed evidence:
(1) Whether the theory or technique used by the expert can be, and has been, tested;
(2) Whether the theory or technique has been subjected to peer review and publication;
(3) The known or potential rate of error of the method used; and
(4) The degree of the method’s or conclusion’s acceptance within the relevant scientific community.
Dorsey, 45 F.3d at 813 (discussing Daubert, — U.S. at —-—, 113 S.Ct. at 2796-97).
The evidence produced at trial clearly showed that these factors weighed against the admission of the penile plethysmograph test results. First, the Government proffered evidence that the scientific literature addressing penile plethysmography does not regard the test as a valid diagnostic tool because, although useful for treatment of sex offenders, it has no accepted standards in the scientific community.
B.
Next, Powers argues that the district court abused its discretion in excluding the testimony of Dr. Anthony Sciara. Dr. Sciara would have testified that Powers did not demonstrate the psychological profile of a fixated pedophile. The district court ruled that Powers failed to establish either the relevance or the scientific validity of psychological profiling as applied to the facts at issue. The arguments on appeal, however, focus our attention on the second prong of Daubert, namely, whether the evidence is “relevant” to the issue under consideration.
Once again, Dorsey provides the analytical framework for our analysis:
In determining whether the evidence meets the second prong of the two part test—that is, whether the evidence will be*1472 helpful to the trier of fact — the Supreme Court warned that throughout an admissibility determination, a judge must be mindful of other evidentiary rules, such as FRE 403, which permits the exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” [Daubert], — U.S. at -, 113 S.Ct. at 2798.
[The Daubert ] Court concluded:
Conjectures that are probably wrong are of little use ... in the project of reaching a quick, final, and binding legal judgment — often of great consequence— about a particular set of events in the past. We recognize that in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by the Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.
Id. at -, 113 S.Ct. at 2798-99.
Dorsey, 45 F.3d at 813-14.
Powers argues that Dr. Sciara’s psychological profile of him meets the relevancy criteria due to the direct relationship between the subject matter of the test and the crime charged. Counsel for Powers proffered the following evidence concerning Dr. Sciara’s psychological profile. Based on numerous interviews with child sex abusers and other research, Dr. Seiara has created a profile of the common characteristics of incest abusers. According to Seiara, the largest common denominator among incest abusers is that forty percent of the time they exhibit the characteristics of fixated pedophiles. Powers’ tests, however, revealed that he did not share this characteristic. From this data, Powers argues that “[t]his testimony was clearly relevant for the purpose of demonstrating that [he] was psychologically unlikely to have committed the alleged crimes charged against him.” Brief for the Appellant at 19. We disagree.
The difficulty with Powers’ argument is that he fails to provide a substantial link between the expert testimony and his theory of defense. At most, this evidence would have shown only that Powers did not belong to a group that comprised forty percent of incest abusers. Powers, however, was charged with statutory rape of his daughter — incest abuse — not with being a fixated pedophile. To be relevant, this testimony must show, in a very real way, that because Powers did not share a characteristic common to a large minority of incest perpetrators, he was less likely to be an incest perpetrator himself. The district court clearly understood this fundamental flaw when the testimony was proffered:
THE COURT: [L]et’s say that we did allow [Dr. Seiara] now to testify [without basing his opinion on the results of the penile plethysmography test]. And all he’s going to say is that this is not the kind of man who has a fixation on children.
[DEFENSE COUNSEL]: Correct, Your Honor.
THE COURT: What does that tell us?
[DEFENSE COUNSEL]: Judge, I don’t think it is end all and be all of our defense. I think it’s an important piece of evidence for the jury to have.
THE COURT: Why? ... [The Court questioned Defense Counsel about whether this evidence would really make it more likely than not that Powers did not commit the offense.]
[DEFENSE COUNSEL]: ... I don’t think there’s any question that some people that aren’t fixated pedophiles commit incest. But I think it would be a substantial percentage and I think it is information that is relevant.
(JA. 174.) If Powers had offered supporting evidence showing that those who are not fixated pedophiles are less likely to commit incest abuse (the crime with which Powers was charged), Dr. Sciara’s testimony might have been relevant. However, Powers offered no evidence to link a non-proclivity for pedophilia with a non-proclivity for incest abuse, even after the district court gave Powers ample opportunity to introduce evidence
V.
For the reasons stated above, we affirm the judgment of the district court.
AFFIRMED.
. 18 U.S.C. § 2241(c) reads:
Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal Prison, knowingly engages in a sexual act with another person who has not attained the age of 12 years, or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.
. The exact sequence of events is unclear from the testimony given at trial; we have attempted, however, to infer from the record the most reasonable order of events as displayed below.
. We have found no federal decisions under Rule 404(b) addressing the admissibility of physical violence against a victim and members of the family in a sexual abuse case. This is presumably due to the relatively narrow federal criminal jurisdiction in such cases. Accordingly, we look to state law for its persuasive force where applicable.
. See, e.g., Bates, 784 P.2d at 1127; Wilson, 808 P.2d at 757. In Bates, the Utah Supreme Court rejected the defendant’s Rule 404(b) objection to admission of evidence that the rape victim (his minor daughter) saw the defendant strike the victim's mother, who was his wife. That court stated "[t]he testimony was not offered to show defendant’s propensity for violence, but was elicited to describe the state of the mind of the victim. The victim had testified that the reason she did not report the incidents sooner was that she was afraid of the defendant.” Bates, 784 P.2d at 1127. Similarly, in Wilson, the Washington Court of Appeals allowed evidence of physical assaults against the minor victim which did not occur during the rapes. That court found the assaults were not offered to show the defendant’s violent character, but rather were admissible under Rule 404(b) "to explain the delay in reporting the sexual abuse and to rebut the implication that the molestation did not occur.” Wilson, 808 P.2d at 757. Both Utah and Washington have adopted the Federal Rules of Evidence for use in their state court systems.
.Linda Fairstein, Sexual Violence: Our War Against Rape 13 (1993) ("There is no doubt that rape and its related violations are crimes of violence.") (emphasis in original); 2 Bailey & Rothblatt, Crimes of Violence: Rape and Other Sex Crimes (1973); Dorothy E. Roberts, Rape, Violence, and Women’s Autonomy, 69 Chi.-Kent L.Rev. 359, 359 (1993) (noting traditional view of rape as a crime “centered on violence”); Thomas J. Reed, Admission of Uncharged Misconduct Evidence in Sex Offender Cases, 21 Am.J.Crim.L. 127, 154 (1993) ("The number of past violent criminal acts committed by a defendant in a rape case is relevant to proof of guilt because it proves habitual use of violence.”); Catherine F. Klein and Leslye E. Orloff, Providing Legal Protection for Battered Women, 21 Hofstra L.Rev. 801, 857 (1993) ("Marital rape is an integral part of marital violence.”); Janet Aitken, Rape Prosecutions, 60 Women LJ. 192, 192 (1974) (classifying rape as a "crime of violence which uses sex as its expression”) (citation omitted).
. We agree with the dissent that this evidence is not necessary or admissible to prove identity, modus operandi, or knowledge. However, simply because evidence might be inadmissible on one ground, it does not follow that the evidence is not admissible under other theories. See, e.g., United States v. Johnson, 54 F.3d 1150, 1156 (4th Cir.1995) ("[E]ven if the grounds that the district court gave for admitting the evidence are improper, generally this Court will reverse only if there are no grounds upon which the district court could have properly admitted the evidence.”); United States v. Gallo, 782 F.2d 1191, 1194 (4th Cir.1986) ("Once admitted, the evidence is deemed admissible on appeal if it is admissible under Rule 404(b) on any theory.").
. The dissent argues that it was error to allow the Government to introduce this evidence before
. For instance, in response to Powers' objection to testimony about the whippings, the district court instructed the jury that
[A]s we talk about this type of evidence, you will recall what the charges are in the case. Other types of activities which might seem similar or similar type acts are not evidence that the Defendant committed the acts of which he is charged. But if you ultimately find the Defendant did those acts with which he is charged, then you may consider other acts of similar type conduct for the purpose of showing [whether] his method of operation or lack of respect are shown by these types of acts that we're talking about. So that's what we're referring to when we talk about similar type acts. They do not prove that he committed the act with which he was charged, but you may consider them for the purpose of showing his actions and reasons for his actions, or lack of respect, if in fact you find he committed the acts with which he was charged.
(J.A. 20.)
. The district court's final charge to the jury stated:
During the course of this trial, as you know from the instructions I gave you at the time,*1469 testimony or evidence was received with respect to alleged similar acts of the Defendant. Such evidence that an act is done at one time or on one occasion is not any evidence of proof that a similar act was done at another time or on another occasion.... If the jury should find beyond a reasonable doubt from other evidence in the case that the defendant did the act charged in the indictment, then the Jury may consider evidence as to an alleged act of any like nature in determining the state of mind or intent with which the accused did the act charged in the indictment.
(J.A. 177-78.)
The dissent argues that United States v. Varner, 748 F.2d 925, 927 (4th Cir.1984), requires us to reverse a conviction whenever two instructions to the jury conflict. Dissenting op. at 1476 n. 4. In our opinion, however, Varner is easily distinguishable. Varner confronted a situation in which the district court gave conflicting and erroneous final instructions to the jury. We appropriately held that the conviction must be reversed because the jury "might have followed the erroneous instruction," and, therefore, its verdict might have been based on impermissible considerations. Here, however, we confront no such problem. When a limiting instruction conflicts with a final jury instruction, it is clear that the final instruction trumps any previous ones. See Hegwood, 977 F.2d at 495 (holding that an erroneous initial charge to the jury was rendered harmless by a correct final charge); cf. United States v. Hanley, 974 F.2d 14, 18 (4th Cir.1992) (holding that an incorrect final instruction on the jury’s duty regarding guilt was fixed by other correct instructions in the same charge). Otherwise, the district court would have no ability to correct erroneous limiting instructions, and any error would require a reversal.
. Rule 412 was amended effective December 1, 1994, and governs in all proceedings then pending "insofar as just and practicable." Order of the Supreme Court of the United States adopting
. Most of the other cases relied on by Powers involved evidence of incidents which occurred prior to the alleged assaults. The courts in those cases generally based admission under Rule 412 on the ground that the incidents tended to provide an alternative explanation to the conclusion that the defendant was the perpetrator of the sexual abuse. See, e.g., United States v. Begay, 937 F.2d 515, 519-21 (10th Cir.1991) (evidence of sexual assault prior to defendant's alleged assault).
. The Government presented no medical evidence of injury, enlarged hymen, or loss of virginity, thus there was nothing to be rebutted by evidence of Brandi’s subsequent sexual relations with her boyfriend.
. Powers has not provided, nor have we found, any decisions acknowledging the validity of the use of penile plethysmography other than in the treatment and monitoring of sex offenders. See, e.g., State v. Emery, 156 Vt. 364, 593 A.2d 77 (1991) (validity of penile plethysmography as part of offender's treatment); Walrath v. United States, 842 F.Supp. 299 (N.D.Ill.1993) (monitoring by penile plethysmograph as valid condition for parole), aff'd, 35 F.3d 277 (7th Cir.1994).
. The transcript reflects the following conversations between the district court and counsel:
THE COURT: All right. I will give you an opportunity to see if you can get [Dr. Sciara], I want you to get some lunch, but if you can get him and find out what he would say, the reduction of chances of this happening to someone who does not meet the profile as opposed to someone who does.
(Whereupon the Court reconvened and the following proceedings were had:)
Were you able to get any additional information at lunch?
[DEFENSE COUNSEL]: Your Honor, I was not able to get in touch with Dr. Sciara. It is my understanding that he is out and will be back- in his office at 3:00 [p.m.].
THE COURT: ... I am going to rule that there is no showing of a sufficient basis of a standard by which the information is gained to establish its validity. And secondly, that even if this could be established ... that it would not be material to what we are looking for in this case and what the issue in this case is.
I am going to still give you an opportunity to bring to my attention anything additionally which you want to because I want you to be protected completely on the record with everything that you want.
(J.A. 174-76.)