United States v. Velarde

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 2 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 99-2297
MEL LAMBERT VELARDE,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CR-98-391-JC)

Peter Schoenburg, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg,
LLP, Albuquerque, New Mexico, for appellant.

David B. Williams (Robert J. Gorence, United States Attorney, and Kathleen
Bliss, Assistant United States Attorney, on the brief), Albuquerque, New Mexico,
for appellee.

Before BRORBY , ANDERSON , and HENRY , Circuit Judges.

ANDERSON , Circuit Judge.
 Mel Lambert Velarde appeals his conviction by a jury on one count of

aggravated sexual abuse of a child, in violation of 18 U.S.C. § 2241(c), an offense

committed within Indian country under 18 U.S.C. § 1153. He was sentenced to

135 months imprisonment. Because we conclude that the district court erred in

permitting certain expert testimony, and that error was not harmless, we reverse

and remand for a new trial.

BACKGROUND

Mr. Velarde, a member of the Jicarilla Apache Indian tribe, ran his family’s

large ranch near Dulce, New Mexico. In July 1997, he entered into a relationship

with another Jicarilla tribe member, Angelita Veneno. Ms. Veneno lived with her

three children, Jordan, Shane and L., in a trailer home in Dulce, which is within

the Jicarilla Apache Indian Reservation. 1
On some weekends, Mr. Velarde stayed

overnight at the trailer home. L., then 8 years old, was accustomed to sleeping

with her mother in her mother’s bed. When Mr. Velarde spent the night, she had

to share her brothers’ bedroom. There was testimony that she would get upset

when Mr. Velarde visited, because she could not sleep with her mother. In fact,

1
The name of the alleged victim in this case is fully disclosed in the briefs
and in the record. However, Mr. Velarde’s briefs and the record have all been
sealed. To the extent it may assist in preserving her privacy, we refer to the
alleged victim by her initial.

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L. testified it made her “mad” when she could not sleep with her mother. R. Vol.

III at 53.

Ms. Veneno testified that, until L. was five years old, L.’s father, Levi

Vigil, who is also Shane’s and Jordan’s father, lived in the trailer home with

them. He was physically and verbally abusive towards Ms. Veneno, and L.

witnessed at least one instance of physical abuse and saw bruises on her mother

on a number of occasions. After he moved out of the trailer home, Mr. Vigil had

little interaction with his children and apparently refused to acknowledge them.

Ms. Veneno’s father also intermittently lived at the trailer home. There was

testimony that he had a serious alcohol abuse problem.

Mr. Velarde stayed at Ms. Veneno’s trailer on the night of February 1,

1998. Mr. Velarde testified that, when he awoke in the middle of the night to use

the bathroom, he noticed that the dome light was on in Ms. Veneno’s car parked

outside. As he usually did when he stayed at Ms. Veneno’s trailer, he used Shane

and Jordan’s bathroom down the hall. Ms. Veneno testified that she was awake

when Mr. Velarde left to use the bathroom and awoke when he returned. Id. at

80. Mr. Velarde testified that nothing unusual happened—he simply used the

bathroom, noticed the car light on, and returned to bed. He testified he was gone

from the bedroom “[c]lose to five minutes.” R. Vol. IV at 43.

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 Approximately a week later, L. told her mother a very different account of

the night of February 1. She told her mother that, on that night, she was sleeping

in Jordan’s bed, on the top bunk of her brothers’ bunk bed, as Shane slept below.

She testified that she woke up to discover Mr. Velarde pulling her off the bunk

bed. She further testified that he took her out into the hall, pulled her pajama

shorts down, placed his hand over her mouth, and “put his private part in [her]

private part.” R. Vol. III at 40. She testified that it hurt a little. She also stated

that she kicked at him. L. further stated that after Mr. Velarde got off her, he told

her not to tell anyone. She testified that she saw the light on in her mother’s car

parked outside the trailer home.

At Mr. Velarde’s trial, Ms. Veneno testified that L.’s behavior changed

after February 1:

[F]or one week she just stayed in her room, she was just quiet, she
didn’t come out until it was time to go to bed. And then after she
told me, she started acting up, like always, crying. She was wetting
the bed. She was getting nightmares. She was – she found a bottle
that she started nursing again, and that’s about how – how she was.

Id. at 81.

Upon hearing L.’s accusation of sexual abuse, Ms. Veneno called the

police, who came to the trailer home and took L.’s statement. The next day,

February 9, Ms. Veneno took L. to the San Juan General Hospital in Farmington,

New Mexico. Naida Ayers, a nurse, testified that she examined L., took her

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medical history and asked L. what had happened. She testified that L. told her

that Mr. Velarde came into the bedroom, pulled her out into the hall, and

“touched her private parts” or “put his private part into her.” Id. at 114. Ms.

Ayers testified that her physical examination of L. revealed no bruising or tears or

other evidence of physical injury. Ms. Ayers testified that L. was cooperative and

not frightened during the examination. Dr. Allen Hurt similarly examined L., also

found no physical evidence of any injury, and also testified that L. was

cooperative and acted normal during the examination. Dr. Hurt testified that the

examination neither proved nor disproved that sexual abuse had occurred.

On February 20, L. was examined by Dr. Renee Ornelas, a pediatrician at

the University of New Mexico. Dr. Ornelas took a patient history, recorded any

unusual symptoms, determined what further tests were needed, and conducted a

physical examination. Dr. Ornelas testified she used a colposcope, which enabled

her to magnify L.’s genital area. After examining L., Dr. Ornelas agreed with Dr.

Hurt that the results of the physical examination were normal. She testified that

L. had a “normal” hymen. R. Vol. V at 160.

Dr. Charlene McGiver, a clinical psychologist, interviewed L. and her

mother, separately and together, on October 12 and November 2. Dr. McGiver

testified that her interviews revealed that L. began having nightmares,

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experienced episodes of bed-wetting, feared men, and had angry outbursts after

the alleged sexual abuse occurred.

A federal grand jury returned an indictment against Mr. Velarde. He pled

not guilty. Prior to trial, Mr. Velarde, represented by an appointed public

defender, filed a motion to exclude the proposed testimony of Dr. Ornelas that “a

child’s statement as part of her medical history is consistent with child abuse,”

and asserted that the government had violated Fed. R. Crim. P. 16 by failing to

disclose the bases and reasons for her opinion. R. Vol. I, Tab 13 at 2. The court

denied the motion.

Then, represented by new retained counsel, Mr. Velarde filed another

motion in limine seeking to preclude or limit Dr. Ornelas’s testimony, challenging

her proposed testimony that L.’s statements and behavior are consistent with her

having been sexually abused. He argued that such testimony was not admissible

expert testimony under Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579

(1993), 2 and that such testimony would amount to impermissible vouching for the

child’s veracity. He requested a hearing under Daubert . He also challenged Dr.

Ornelas’s proffered testimony about the behavioral characteristics of child abuse

victims as grounded in psychology and therefore outside of her area of expertise,

2
Daubert set forth the trial judge’s general gatekeeping obligation to ensure
the reliability of expert scientific testimony presented pursuant to Fed. R. Evid.
702.

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and asserted that some of her proffered testimony was irrelevant. The district

court denied this second motion.

Mr. Velarde then filed a motion to preclude Dr. McGiver’s testimony and

sought a Daubert hearing to determine the reliability of the proposed testimony.

The court denied the motion and determined that an evidentiary hearing was

unnecessary.

Approximately a month before trial, the government gave notice that it

intended to present testimony from Trudy Harrison, Mr. Velarde’s niece, who was

prepared to testify that, twenty years before, when she was eight or nine years old,

Mr. Velarde had sexually assaulted her. Mr. Velarde filed a motion in limine to

preclude the presentation of this evidence, or to continue the case, asserting that

the late disclosure of this witness prejudiced him. He also argued that the trial

court must conduct a Fed. R. Evid. 403 balancing test to determine if the

probative value of the evidence outweighs any prejudicial effect. Without

explicitly conducting any Rule 403 balancing, the court held that the government

had given adequate notice of its intent to call Ms. Harrison, and ruled that the

government could call Ms. Harrison as part of its case-in-chief. Mr. Velarde

made numerous additional pre-trial motions relating to the government’s proposed

expert witnesses, all of which were denied. The court also denied his motions for

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an independent evaluation of L. and for disclosure of her psychological treatment

records.

The case proceeded to trial. On the first day of trial, March 23, 1999, the

Supreme Court issued its decision in Kumho Tire Co. v. Carmichael , 526 U.S.

137 (1999), holding that trial courts must conduct some kind of gatekeeping

reliability determination under Daubert with respect to all expert testimony, not

just to testimony based upon a particular scientific methodology. Mr. Velarde

renewed his request for a Daubert hearing with respect to the proposed testimony

of Dr. Ornelas and Dr. McGiver, and referred the court to Kumho . See R. Vol. V

at 267. The court subsequently denied his renewed request, stating, “Well, I’m

not going to hold a Daubert hearing. I’ve had this testimony before in trials, and

it’s not new and novel . . . .” Id. at 342. Accordingly, both Dr. Ornelas and Dr.

McGiver testified as government experts. Ms. Harrison also testified that Mr.

Velarde had sexually abused her twenty years before, when she was eight or nine

years old. Mr. Velarde took the stand and unequivocally denied ever sexually

abusing or touching either L. or Ms. Harrison. The jury found Mr. Velarde guilty.

He appeals his conviction, arguing: (1) the court erred in admitting the

testimony of governmental experts Drs. Ornelas and McGiver and in failing to

first determine the reliability and relevancy of that testimony; (2) the court erred

in admitting Ms. Harrison’s testimony under Rule 414; (3) the admission of that

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Rule 414 evidence violated Mr. Velarde’s right to due process, equal protection

and a fair trial; and (4) the court erred in failing to instruct the jury on the lesser

included offense of abusive sexual contact. Because we find that the district

court erred in failing to conduct, on the record, any kind of reliability

determination with respect to the government’s expert witnesses, we reverse and

remand.

DISCUSSION

I. Expert Testimony

The trial court’s admission of expert testimony, over a timely objection, is

reviewed for an abuse of discretion. Kumho Tire Co. , 526 U.S. at 152; United

States v. Charley , 189 F.3d 1251, 1261 (10th Cir. 1999), cert. denied , 120 S. Ct.

842 (2000). Fed. R. Evid. 702, which governs the admission of expert testimony,

provides as follows:

If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion or otherwise.

Rule 702 “imposes a special gatekeeping obligation on the trial judge to ensure

that an opinion offered by an expert is reliable.” Charley , 189 F.3d at 1266. As

the Supreme Court made clear in Kumho , “where [expert] testimony’s factual

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basis, data, principles, methods, or their application are called sufficiently into

question . . . the trial judge must determine whether the testimony has ‘a reliable

basis in the knowledge and experience of [the relevant] discipline.’” Kumho , 526

U.S. at 149 (quoting Daubert , 509 U.S. at 592). The trial judge has broad

discretion “to determine reliability in light of the particular facts and

circumstances of the particular case.” Id. at 158; see also Charley , 189 F.3d at

1266. The trial judge enjoys equally broad discretion in both deciding how to

assess an expert’s reliability, including what procedures to utilize in making that

assessment, as well as in making the ultimate determination of reliability.

Kumho , 516 U.S. at 152; see also Hynes v. Energy West, Inc. , No. 98-8023, 2000

WL 525961, at *9-10 (10th Cir. May 2, 2000). We review either exercise of

discretion for abuse.

Mr. Velarde argues the trial court abandoned its gatekeeping function, as

required by Kumho and Daubert , when it refused to inquire into the reliability of

the proposed expert testimony of Dr. Ornelas and Dr. McGiver. He also argues

that the testimony of both experts was, for a variety of reasons, unreliable.

A. Dr. Ornelas

Dr. Ornelas began her testimony by recounting her usual procedures in

examining a child where sexual abuse has been alleged. When asked what

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information she typically needed to obtain about an alleged perpetrator of sexual

abuse, she responded in part, “We have to make sure that the child is safe. So

just who they are and is the child away from that person.” R. Vol. V at 147. Dr.

Ornelas then testified that L. had a “normal” physical exam, which was, she

opined, “consistent with what [L.] said happened.” Id. at 155. Dr. Ornelas

testified that a normal exam is “the most common physical findings for a child

who has been sexually abused.” Id. at 149. This is so, Dr. Ornelas opined,

because “the type of contact that most commonly occurs between adults and

children that’s sexual is oral kinds of contact, touching, and what’s called labial

coitus.” Id.

Dr. Ornelas also testified that L.’s behavior of withdrawing from her

family, staying inside of her room, not being communicative, not being her

regular bubbly, running-around kind of self, and . . . waking up at night and

touching her mother to make sure that her mother was there in bed with her, . . .

having sleep disturbances and some behavioral changes,” id. at 156, was

“consistent with child sexual abuse,” id. at 155. Finally, she testified as follows:

Q. Doctor, if you had those symptoms or some of those symptoms
and a report by a child of sexual abuse, are you comfortable forming
a diagnosis of child sexual abuse in such a case?

A. I would base that diagnosis on the child’s statements about what
had happened to them.

Id. at 187.

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 Mr. Velarde argues the trial court erred in making no reliability findings at

all about Dr. Ornelas’s testimony, and he argues that, for numerous reasons, the

testimony was in fact unreliable. 3

While we recognize that the trial court is accorded great latitude in

determining how to make Daubert reliability findings before admitting expert

testimony, Kumho and Daubert make it clear that the court must, on the record,

make some kind of reliability determination. “[T]rial-court discretion in choosing

the manner of testing expert reliability [] is not discretion to abandon the

gatekeeping function.” Kumho , 526 U.S. at 158-59 (Scalia, J., concurring).

The record in this case reveals no such reliability determination. Even

when Kumho was specifically called to the court’s attention, thereby removing

any question that the expert testimony to be offered by Dr. Ornelas was subject to

Daubert /Kumho reliability standards, the court made no reliability findings.

Rather, the court seemed to assume that Dr. Ornelas’s proffered testimony fell

within the category of testimony in “ordinary” cases where courts may “avoid

unnecessary ‘reliability’ proceedings . . . where the reliability of an expert’s

methods is properly taken for granted.” Kumho , 526 U.S. at 152. However, the

court gave no indication why this case could be viewed as such an “ordinary”

case, or why Dr. Ornelas’s methods could be “properly taken for granted,” id. ,

Mr. Velarde does not challenge Dr. Ornelas’s credentials, expertise, or
3

qualifications to testify as an expert.

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except for the court’s remark that “I’ve had this testimony before in trials, and it’s

not new and novel,” R. Vol. IV at 75.

In several prior cases, we have reviewed testimony given by Dr. Ornelas.

See United States v. Koruh , No. 99-2138, 2000 WL 342252, at *2-3 (10th Cir.,

April 3, 2000); Charley , 189 F.3d at 1265-68; United States v. McHorse , 179 F.3d

889, 895 (10th Cir.), cert. denied , 120 S. Ct. 358 (1999); United States v.

Pacheco , 154 F.3d 1236, 1238 (10th Cir. 1998), cert. denied , 525 U.S. 1112

(1999). In Charley , a case also involving allegations of sexual abuse of young

girls, Dr. Ornelas gave testimony, similar to that given in this case, that the

victims had normal physical examinations, and exhibited behaviors consistent

with sexual abuse. 4
Moreover, as in this case, she expressed her belief that sexual

4
In Charley, we held that the trial court did not abuse its discretion when it
allowed an expert to “‘summarize the medical evidence and express an opinion
that the evidence is consistent or inconsistent with the victim’s allegations of
sexual abuse,’” and to “‘inform the jury of characteristics in sexually abused
children and describe the characteristics the alleged victim exhibits.’” Charley,
189 F.3d at 1264 (quoting United States v. Whitted, 11 F.3d 782, 785 (8th Cir.
1993)). Dr. Ornelas made similar “consistent with” statements in this case.
Our determination in Charley that the court did not abuse its discretion in
permitting such statements in no way implies that such expert testimony is not
subject to Daubert/Kumho reliability determinations. We were satisfied in that
case that, given the state of the law at the time, the court made sufficient
reliability determinations. Charley was a unique case in several respects. Kumho
had not yet been decided when the case was tried, and in our circuit, Compton v.
Subaru of America, Inc., 82 F.3d 1513 (10th Cir. 1996), dictated that trial courts
must conduct a gatekeeper inquiry only where evidence is based upon “a
particular methodology or technique,” and not where it is “based solely upon
experience or training.” Id. at 1518-19. Thus, the trial court in Charley was
(continued...)

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abuse had in fact occurred because the victim alleged that such abuse had

occurred. We stated as follows in Charley :

Regardless of whether Dr. Ornelas based her conclusion on the girls’
allegation of sexual abuse, or on the girls’ history of atypical medical
symptoms, her testimony is problematic. If the conclusion was based
on the girls’ medical symptoms, questions surrounding the reliability
of such a conclusion arise. On the other hand, if the conclusion was
based on the girls’ allegations, Dr. Ornelas was merely vouching for
the credibility of the child complainants.

Charley , 189 F.3d at 1266.

We held in Charley that the court erred in making no reliability

determination “with respect to Dr. Ornelas’s unconditional opinion that [the

alleged victims] were sexually abused.” Id. at 1266-67. We did not specify that

any particular type of reliability determination must be made. However, some

such reliability determination must be apparent from the record: the trial court’s

“evidentiary decisions do not warrant reversal if it determined, in some apparent

(...continued)
4

denied the benefit of Kumho’s explicit guidance and its abrogation of Compton.
Additionally, defense counsel in Charley failed to object at trial to expert
testimony that particular behaviors were “consistent with” sexual abuse.
In this case, by contrast, the court was specifically directed to Kumho,
decided on the second day of trial. Defense counsel made repeated objections to
Dr. Ornelas’s testimony and sought a Daubert hearing on its reliability, a request
he renewed following Kumho. Finally, the court made no reliability findings
anywhere in the record in this case, evidently believing that the expert testimony
presented was ordinary expert testimony whose reliability could be presumed.

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manner , that the expert testimony admitted was reliable.” Id. at 1261 n.11

(emphasis added). 5

Here, even with Kumho squarely before it, the district court made no

reliability determination with respect to Dr. Ornelas’s proposed testimony. We

conclude that, having failed to do so, the court abused its discretion when it

admitted that testimony. We need not reach the question of whether, assuming a

proper reliability determination preceded Dr. Ornelas’s testimony, we would

nonetheless find it error to admit particular portions of her testimony. 6

B. Dr. McGiver

Mr. Velarde challenges three parts of Dr. McGiver’s testimony as

unreliable and inadmissible: (1) Dr. McGiver’s testimony that certain of L.’s

behaviors (having nightmares, bed-wetting and angry outbursts) were “consistent

with” having been sexually abused; (2) Dr. McGiver’s testimony that she

recommended L. receive therapy; and (3) Dr. McGiver’s testimony that she found

5
As we also observed in Charley, on appeal “we do not make independent
findings of reliability; rather, we examine the record evidence presented to the
district court, and decide whether the district court’s decision, in the face of that
record evidence, to allow the testimony to be admitted was an abuse of
discretion.” Charley, 189 F.3d at 1261 n.10.

We note, however, that Dr. Ornelas’s statement that she would base her
6

diagnosis of child sexual abuse “on the child’s statements about what had
happened to them,” R. Vol. V at 187, appears to be impermissible vouching for
L.’s credibility. See Charley, 189 F.3d at 1267.

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no evidence that L. “was subject to either lying or overexaggerated fantasizing in

her life.” R. Vol. V at 202. Mr. Velarde sought and was denied a Daubert

reliability hearing on Dr. McGiver’s proposed testimony. The record reveals no

reliability determination with respect to that testimony. As with Dr. Ornelas, we

conclude that the district court abused its discretion in admitting Dr. McGiver’s

testimony after failing to make any kind of reliability determination with respect

thereto. We need not address whether, had a proper reliability determination been

made, any particular parts of Dr. McGiver’s testimony would have been

impermissible for any reason. We note, however, that, as we stated in Charley ,

testimony which essentially simply vouches for the truthfulness of another witness

is impermissible. See Charley , 189 F.3d at 1267.

C. Harmless Error

Since we have concluded that the district court erred in permitting the

testimony of Dr. Ornelas and Dr. McGiver without the requisite reliability

determinations, we must decide whether that error was harmless. “A non-

constitutional error, such as a decision whether to admit or exclude evidence, is

considered harmless ‘unless a substantial right of [a] party is affected.’” Charley ,

189 F.3d at 1270 (quoting Fed. R. Evid. 103(a)). We have defined an error

affecting a substantial right of a party as “an error which had a ‘“substantial

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influence” on the outcome or [which] leaves one in “grave doubt” as to whether it

had such an effect.’” Id. at 1270 (quoting United States v. Rivera , 900 F.2d 1462,

1469 (10th Cir. 1990) (en banc) (quoting Kotteakos v. United States , 328 U.S.

750, 765 (1946))). We review the record as a whole. The government bears the

burden of proving that an error is harmless. Id.

After reviewing the entire record in this case, we conclude that the error in

the admission of Dr. Ornelas’s and Dr. McGiver’s testimony was not harmless. In

asserting harmlessness, the government relies upon Charley , where we found the

error in the admission of certain expert testimony was harmless. This case is

significantly different from Charley , both in the quality and quantity of the

admissible evidence presented, and, more generally, in the entire presentation of

the case.

In Charley , two girls, both older than L., testified as to numerous instances

of sexual abuse over an extended period of time; detailed expert testimony from

the girls’ treating physician was properly admitted, as was the lengthy medical

history of one of the girls; at the time of the abuse, the defendant was on

supervised release following a conviction for sexual abuse of a child; defendant’s

testimony was “flatly contradicted” in three respects by other witnesses. By

contrast, in this case, a young girl testified to a single instance of alleged sexual

abuse; there was relatively little other evidence, besides the testimony of Drs.

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Ornelas and McGiver, suggesting that the abuse had occurred; Mr. Velarde’s

credibility was not obviously suspect; aside from Ms. Harrison’s accusation of

abuse occurring twenty years earlier, Mr. Velarde has no prior history of sexual

abuse. In sum, we conclude that the error in admitting the testimony of Dr.

Ornelas and Dr. McGiver did indeed substantially affect the trial’s outcome. It

was not harmless. We therefore reverse and remand for a new trial.

II. Rule 414 Evidence

As indicated, Mr. Velarde’s niece, Ms. Harrison, testified that Mr. Velarde

had sexually abused her twenty years earlier, when she was eight or nine years

old. The court permitted this testimony under Fed. R. Evid. 414, which provides

in pertinent part:

(a) 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, and
may be considered for its bearing on any matter to which it is
relevant.

Fed. R. Evid. 414(a).

Mr. Velarde challenges the admission of Ms. Harrison’s testimony on two

grounds: (1) the court failed to balance the relevance of that testimony against its

potentially prejudicial effect, as required by Fed. R. Evid. 403; and (2) the

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admission of that testimony under Rule 414 violated his constitutional rights to

due process, equal protection and a fair trial.

Mr. Velarde acknowledges that a panel of this court has recently upheld the

constitutionality of Rule 414 and the admission of evidence of prior offenses of

child molestation pursuant thereto. See United States v. Castillo , 140 F.3d 874,

883-84 (10th Cir. 1998); see also Charley , 189 F.3d at 1259-60. He further

acknowledges that one panel of this court cannot overrule another. See United

States v. Foster , 104 F.3d 1228, 1229 (10th Cir. 1997). This disposes of Mr.

Velarde’s arguments about the constitutionality of Rule 414.

We observed in Castillo that Fed. R. Evid. 403 “applies to Rule 414

evidence.” Castillo , 140 F.3d at 884; see also United States v. Meacham , 115

F.3d 1488, 1492 (10th Cir. 1997). Rule 403 permits the court to exclude evidence

“if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.”

Fed. R. Evid. 403. We have noted the importance of the Rule 403 balancing:

“[B]ecause of the unique nature of character evidence, it is important that the trial

court ‘make a reasoned, recorded’ statement of its 403 decision when it admits

evidence under Rules 413-415.” Castillo , 140 F.3d at 884 (quoting United States

v. Guardia , 135 F.3d 1326, 1332 (10th Cir. 1998)); see also United States v.

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Mann , 193 F.3d 1172, 1173 (10th Cir. 1999), cert. denied , 120 S. Ct. 1284 (2000)

(“‘Courts are to “liberally” admit evidence of prior uncharged sex offenses,’ but

cannot ignore the balancing requirement of Rule 403.”) (quoting Meacham , 115

F.3d at 1492)).

The government agrees with Mr. Velarde that the record reveals no Rule

403 balancing of the Rule 414 evidence admitted in this case, and concedes that a

remand to the district court is necessary. We have already determined to reverse

and remand this case for a new trial. On retrial, should the government seek

again to present Ms. Harrison’s testimony, the court must, on the record, conduct

the necessary Rule 403 balancing.

III. Lesser Included Offense Instruction

Finally, Mr. Velarde argues the district court erred in failing to instruct the

jury on the lesser included offense of abusive sexual contact. “Determining

whether a defendant was entitled to a lesser included offense instruction is a

question of law that we review de novo.” Castillo , 140 F.3d at 886.

Mr. Velarde was charged with aggravated sexual abuse of a child under the

age of twelve, in violation of 18 U.S.C. § 2241(c). He argues the evidence

supports at most a charge of abusive sexual contact, in violation of 18 U. S.C.

§ 2244. Mr. Velarde concedes that we have recently held that “[b]ecause section

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2244 contains a specific intent element that sections 2242 and 2243 do not have,

the crime of abusive sexual contact is not a lesser included offense of the crime of

sexual abuse.” Castillo , 140 F.3d at 886. This reasoning equally applies to

section 2241, which also lacks the specific intent element. Mr. Velarde

acknowledges that we are bound by Castillo . See Foster , 104 F.3d at 1229.

Mr. Velarde argues, however, that the better reasoned approach is that of

the Eighth Circuit in United States v. Demarrias , 876 F.2d 674, 676 (8th Cir.

1989), which concluded that one could be guilty of a “sexual act” under section

2243, or 2241 or 2242, without having the specific intent required under section

2244. Castillo specifically considered and rejected the Eighth Circuit’s reasoning

in Demarrias . That rejection controls our resolution of this issue.

CONCLUSION

For the foregoing reasons, we REVERSE and REMAND this case for a new

trial.

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