FILED
NOT FOR PUBLICATION AUG 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30381
Plaintiff - Appellee, D.C. No. CR 09-00022-RFC-1
v.
MEMORANDUM*
GERHARD CURTIS STERN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted July 12, 2010
Seattle, Washington
Before: REINHARDT, GRABER, and PAEZ, Circuit Judges.
A jury convicted Defendant Gerhard Stern of one count of aggravated sexual
abuse of his four-year-old daughter. Defendant appeals on the ground that the
district court erred by allowing Defendant’s younger sister to testify that he had
sexually abused her repeatedly when he was between 11 and 13 years old. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
review the district court’s ruling for an abuse of discretion. United States v.
LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001).
"In a criminal case in which the defendant is accused of an offense of child
molestation, evidence of the defendant’s commission of another offense or
offenses of child molestation is admissible . . . ." Fed. R. Evid. 414. To determine
whether evidence is admissible under Rule 414, several factors are relevant: (1)
the similarity of the prior act to the act charged; (2) the closeness in time of the
prior act to the act charged; (3) the frequency of prior acts; (4) the presence or lack
of intervening circumstances; and (5) the necessity for evidence beyond the
testimony already offered at trial. LeMay, 260 F.3d at 1027-28.
Here, the district court did not abuse its discretion. Properly citing and
applying Rule 414 and the framework set forth in LeMay, the district court
permissibly allowed Defendant’s sister to testify. The acts of sexual abuse were
quite similar because both cases involved very young female victims who are close
relatives of Defendant and who were living in his household at the time of the
abuse. The passage of time and the small number of victims are not factors in
Defendant’s favor because there is no indication that he had any similar
opportunities to offend target victims of choice, in part because he was
incarcerated for a number of the intervening years. Nor does the fact that he
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engaged in unlawful sexual acts on young female relatives as a teenager, or
pre-teenager, and then again as an adult, suggest that the passage of time
constitutes an intervening circumstance that favors him under the fourth factor.
Contrary to Defendant’s argument, the district court also permissibly concluded
that the sister’s testimony was necessary in view of the other evidence presented at
trial, particularly because of the young age of the testifying daughter. Accordingly,
more than one of the LeMay factors supported the court’s ruling.
AFFIRMED.
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FILED
United States v. Stern, No. 09-30381 AUG 04 2010
MOLLY C. DWYER, CLERK
PAEZ, J., dissenting: U.S. COURT OF APPEALS
I respectfully dissent. I would conclude that the district court abused its
discretion in admitting under Federal Rule of Evidence 414 the highly prejudicial,
and questionably probative, evidence that Stern had sexually abused his younger
sister when he was between 11 and 13 years old. Of the five LeMay factors for
determining admissibility of such evidence, I believe that only one—the “necessity
of the evidence beyond the testimonies already offered at trial”—weighed in favor
of admitting the evidence. See United States v. LeMay, 260 F.3d 1018, 1028 (9th
Cir. 2001).
First, the majority’s conclusion that the acts of sexual abuse were “quite
similar” fails to account for a significant fact: At the time of the alleged prior
abuse, Stern was between 11 and 13 years old, and only four years older than his
victim, while he was approximately 27 years older than the four-year-old victim of
the charged offense. At least one military court of appeals has recognized that acts
like those here—where the defendant abused someone close to his age as an
adolescent—are “extremely dissimilar” to abuse perpetrated as an adult on
someone much younger and under the defendant’s parental control. See United
States v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004). Indeed, evidence that
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Stern abused his sister when he was a young boy does not suggest that he is a
pedophile, or that he takes advantage of positions of authority.
To be sure, in LeMay, we upheld the admission of Rule 414 evidence after
concluding that a defendant’s prior sexual abuse of his cousins was “very similar”
to the charged crimes, even though the defendant was only 12 years old at the time
of the prior abuse. LeMay, 260 F.3d at 1028. There, however, the defendant’s
prior abuse did suggest pedophilia, or a propensity to take advantage of positions
of authority. In particular, that defendant was significantly older and larger than
his victims in both instances: he had been ten or more years older than the two-
year-old and infant victims of his prior crime, and 13–15 years older than the
seven- and nine-year-old victims of the crime for which he was being tried. Id. at
1022, 1030.
Second, the acts were not close in time—20 years intervened between the
abuse of Sonja and the alleged abuse of S. Although courts have sometimes
upheld admission of Rule 414 evidence of acts far in the past, the defendant in
those cases had been an adult at the time of the prior abuse. See United States v.
Meacham, 115 F.3d 1488, 1493, 1495 (10th Cir. 1997); United States v. Larson,
112 F.3d 600, 605 (2d Cir. 1997); United States v. McDonald, 53 M.J. 593, 594–96
(N-M. Ct. Crim. App. 2000).
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Third, there is no indication that Stern abused anyone else in these
intervening 20 years. Even assuming, as the majority does, that he had no
opportunity to abuse anyone else in this period, this factor is at best neutral and
cannot weigh in favor of admitting the evidence.
Fourth, an important intervening circumstance weighs against admitting the
evidence: Stern grew from an adolescent into an adult during the 20 years that
passed between the offenses. A military appeals court has recognized a
defendant’s “growth from childhood to adulthood” constituted a “notable
intervening circumstance” weighing in favor of excluding evidence of prior
abusive acts. United States v. Berry, 61 M.J. 91, 97 (C.A.A.F. 2005). According
to that court, we should not simply assume that a defendant’s mens rea as an adult
is the same as when he was an adolescent because “adolescents undergo a critical
period of transition during which they experience rapid transformations in
emotional, intellectual, physical, and social capacities” between ages 12 and 17.
Id. (quoting Kim Taylor-Thompson, States of Mind/States of Development, 14
Stan. L. & Pol’y Rev. 143, 152–53 (2003)).
That leaves only the fifth factor—the practical necessity of the evidence—to
weigh in favor of admitting the evidence. See LeMay, 260 F.3d at 1029. I doubt
that necessity alone, however, can justify admitting evidence under Rule 414, as
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that would not account for the danger of unfair prejudice to the defendant that Rule
403 requires us to consider. See Fed. R. Evid. 403; LeMay, 260 F.3d at 1026 (“As
long as the protections of Rule 403 remain in place to ensure that potentially
devastating evidence of little probative value will not reach the jury, the right to a
fair trial remains adequately safeguarded.”).
Applying the LeMay factors, I would conclude that the highly prejudicial
testimony of Stern’s sister was of limited probative value, and that the district court
therefore abused its discretion in admitting it. Because the government made no
argument in its briefs that the admission of the evidence was harmless, I would
“deem the issue waived” because the error’s harmlessness is certainly not “clear
beyond serious debate.” United States v. Gonzalez-Flores, 418 F.3d 1093, 1100
(9th Cir. 2005). Indeed, the government itself strongly suggested in its brief that
the admission of this evidence was harmful. I would accordingly reverse Stern’s
conviction and remand for a new trial.
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