In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4211
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT M. HAWPETOSS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 CR 04—William C. Griesbach, Judge.
____________
ARGUED DECEMBER 1, 2006—DECIDED MARCH 6, 2007
____________
Before EASTERBROOK, Chief Judge, and RIPPLE and
MANION, Circuit Judges.
RIPPLE, Circuit Judge. Robert M. Hawpetoss was con-
victed of eight counts of commission or attempted com-
mission of sexual offenses, some against children under
the age of twelve. See 18 U.S.C. §§ 1153(a), 2241(c) and
2242(1). He now appeals the district court’s final judg-
ment of conviction and sentence. He submits that the
district court erred in granting the Government’s motion
in limine to admit evidence of uncharged sex offenses
allegedly committed by him. For the reasons set forth in
this opinion, we affirm the judgment of the district court.
2 No. 05-4211
I
BACKGROUND
A. Facts
Robert M. Hawpetoss is a Native American who lives
on the Menomenee Indian Reservation in Wisconsin.
He was charged, in a second superseding indictment,
with eight counts1 alleging that he violated 18 U.S.C.
§ 1153(a),2 § 2241(c)3 and § 2242(1)4 by
1
An additional count, originally contained in the second
superceding indictment, was dismissed on statute of limita-
tions grounds.
2
18 U.S.C. § 1153(a) provides:
Any Indian who commits against the person or property
of another Indian or other person any of the following
offenses, namely, murder, manslaughter, kidnapping,
maiming, a felony under chapter 109A, incest, assault
with intent to commit murder, assault with a dangerous
weapon, assault resulting in serious bodily injury (as
defined in section 1365 of this title), an assault against an
individual who has not attained the age of 16 years, felony
child abuse or neglect, arson, burglary, robbery, and a
felony under section 661 of this title within the Indian
country, shall be subject to the same law and penalties as
all other persons committing any of the above offenses,
within the exclusive jurisdiction of the United States.
3
18 U.S.C. § 2241(c) provides:
With children.—Whoever crosses a State line with intent
to engage in a sexual act with a person who has not at-
tained the age of 12 years, or in the special maritime and
territorial jurisdiction of the United States or in a Federal
(continued...)
No. 05-4211 3
attempting to engage and engaging in specified sexual acts
with three minor children. Count I alleged that Mr.
Hawpetoss attempted to engage in sexual acts with M.O.,
who was eight years old at the time. Counts II and III
3
(...continued)
prison, or in any prison, institution, or facility in which
persons are held in custody by direction of or pursuant to
a contract or agreement with the Attorney General, know-
ingly engages in a sexual act with another person who has
not attained the age of 12 years, or knowingly engages in a
sexual act under the circumstances described in subsec-
tions (a) and (b) with another person who has attained the
age of 12 years but has not attained the age of 16 years (and
is at least 4 years younger than the person so engaging), or
attempts to do so, shall be fined under this title and impris-
oned for not less than 30 years or for life. If the defendant
has previously been convicted of another Federal offense
under this subsection, or of a State offense that would
have been an offense under either such provision had the
offense occurred in a Federal prison, unless the death
penalty is imposed, the defendant shall be sentenced to
life in prison.
4
18 U.S.C. § 2242(1) provides:
Whoever, in the special maritime and territorial jurisdic-
tion of the United States or in a Federal prison, or in any
prison, institution, or facility in which persons are held in
custody by direction of or pursuant to a contract or agree-
ment with the Attorney General, knowingly—
1) causes another person to engage in a sexual act by
threatening or placing that other person in fear (other
than by threatening or placing that other person in
fear that any person will be subjected to death, serious
bodily injury, or kidnapping).
4 No. 05-4211
charged that, in 1985 and 1986, he sexually molested his
stepson, D.A.S., when the boy was between the ages of
eleven and twelve years old. Counts IV through VII alleged
that, beginning when his stepdaughter, F.B., was four
years old, he sexually molested her. Count VIII charged
that he had threatened F.B. at knife-point and had sexual
intercourse with her when she was fourteen years old.
With respect to Count I, M.O. testified that, when
she was eight years old, she was riding in a truck with
Mr. Hawpetoss and her mother and father. The truck
broke down, and Mr. Hawpetoss took her into the woods.
When they were alone, he propositioned her, using crude
and suggestive language that M.O. did not understand at
the time. She fled, reached the highway and flagged down
a car. The occupants, individuals going on a camping
trip, drove her home. M.O. told her sister about her ex-
perience with Mr. Hawpetoss, and they called the police;
M.O. told the police that she had been propositioned
sexually by Mr. Hawpetoss.
Before any evidence relating specifically to Counts II
through VIII of the indictment was heard by the jury, the
Government offered the testimony of two additional
children, S.C. and M.W., regarding uncharged conduct.
Specifically, S.C., Mr. Hawpetoss’ nephew, testified that
he was twice assaulted by Mr. Hawpetoss as a child.
Similarly, the Government offered the testimony of M.W.,
the son of Mr. Hawpetoss’ then live-in girlfriend. M.W.
stated that, while on a camping trip, he had slept in a tent
with Mr. Hawpetoss. He related that Mr. Hawpetoss had
requested that M.W. touch his genitals. M.W. refused and
went to sleep, but, later, Mr. Hawpetoss awakened him,
pulled down his shorts and underwear, fondled his
genitals, and rubbed his own genitals against the young
No. 05-4211 5
boy’s buttocks. Similar incidents, M.W. testified, occurred
throughout that same summer.
With respect to the remaining counts of the indictment,
D.A.S., Mr. Hawpetoss’ stepson, testified that, between
November 1985 and September 1986, and again in 1987,
Mr. Hawpetoss had assaulted him sexually. Mr. Hawpetoss
also demanded, he further testified, that D.A.S. perform
oral sex on him. When D.A.S. balked, Mr. Hawpetoss put
a knife to his throat and told him that, if he did not comply,
Mr. Hawpetoss would kill him. Mr. Hawpetoss continued
to assault sexually D.A.S. until the boy left for boarding
school when he was in the eighth grade.
Finally, Mr. Hawpetoss’ stepdaughter, F.B., testified that,
during the period of 1985 through 1989, he had assaulted
her sexually. She was under twelve years old through-
out this period. These assaults began, she testified, when
she was four years old. When F.B. was fourteen, Mr.
Hawpetoss had sexual intercourse with her, forcing her
to comply at knife-point.
B. The District Court’s Evidentiary Rulings
Before trial, the Government filed a motion in limine to
admit evidence under Rules 413 and 414 of the Federal
Rules of Evidence. Specifically, the Government sought to
admit evidence of uncharged conduct of Mr. Hawpetoss:
other instances of sexual molestation and assault of the
victims, M.O., D.A.S. and F.B., and the sexual molestation
of two other minors not mentioned in the indictment, S.C.
and M.W. In opposing the Government’s motion, Mr.
Hawpetoss argued that admission of this evidence vio-
lated Rule 403 of the Federal Rules of Evidence because it
was unfairly prejudicial. He further submitted that the
proffered evidence would be confusing, mislead the
6 No. 05-4211
jury, cause undue delay and be simply cumulative of
other evidence.
The district court first addressed the issues raised in the
Government’s motion in a written opinion issued before
trial. In that order, the court carefully analyzed the ratio-
nale behind the enactment of Federal Rules of Evidence
413 and 414. In its analysis, the district court relied primar-
ily on a Ninth Circuit decision, United States v. LeMay, 260
F.3d 1018, 1028 (9th Cir. 2001). LeMay articulated and
applied five factors that a court should consider in mak-
ing a Rule 403 determination with respect to evidence
otherwise admissible under Rules 413 and 414: similarity
of the conduct, proximity in time, frequency of prior acts
and the presence or lack of intervening circumstances
and whether the evidence was necessary beyond the
testimony already offered at trial. Id.
Having determined, at least tentatively, that the evi-
dence was admissible, the district court nevertheless
emphasized to the parties that its ruling was tentative. The
court expressed its intent to revisit this ruling in the course
of trial so that it could appraise the admission of the
evidence in light of the evidence actually presented at trial.
The trial began on June 20, 2005. The court forbade the
parties from addressing the Rules 413 and 414 evidence in
their opening statements. Prior to the admission of the
evidence the court required proffers with respect to each
witness and gave an explicit cautionary instruction.
II
DISCUSSION
Mr. Hawpetoss submits that the district court erred in
granting the Government’s motion in limine to admit
No. 05-4211 7
evidence of various uncharged sex offenses allegedly
committed by Mr. Hawpetoss. We review a district court’s
decision to admit evidence for abuse of discretion. United
States v. Wilson, 237 F.3d 827, 834 (7th Cir. 2001). Concern-
ing the admission of evidence of other acts of sexual
misconduct, the district court has wide discretion, and,
consequently, this court’s review is “highly deferential.”
United States v. Julian, 427 F.3d 471, 487 (7th Cir. 2005).
Federal Rules of Evidence 413 and 414 were enacted by
Congress as part of the Violent Crime Control and Law
Enforcement Act of 1994. Pub. L. No. 103-322, 108 Stat.
1796. These two rules create an exception to the general
prohibition against “propensity evidence” found in Fed-
eral Rule of Evidence 404(b) (evidence of other crimes
may not be used to “prove the character of a person in
order to show action in conformity therewith,” Fed. R.
Evid. 404(b)). Rule 413 expressly allows evidence of past
sexual assault offenses when a defendant is accused of
another offense of sexual assault to the extent such evi-
dence is relevant.5 Similarly, Rule 414 states that, in a
5
Specifically, Rule 413 of the Federal Rules of Evidence
provides:
Evidence of Similar Crimes in Sexual Assault Cases
(a) In a criminal case in which the defendant is accused
of an offense of sexual assault, evidence of the defen-
dant’s commission of another offense or offenses of
sexual assault is admissible, and may be considered
for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer
evidence under this rule, the attorney for the Govern-
ment shall disclose the evidence to the defendant,
including statements of witnesses or a summary of
(continued...)
8 No. 05-4211
criminal case in which the defendant is accused of child
molestation, evidence of past offenses of child molestation
is admissible to the extent these offenses are relevant.6 For
5
(...continued)
the substance of any testimony that is expected to be
offered, at least fifteen days before the scheduled
date of trial or at such later time as the court may al-
low for good cause.
(c) This rule shall not be construed to limit the ad-
mission or consideration of evidence under any other
rule.
(d) For purposes of this rule and Rule 415, “offense of
sexual assault” means a crime under Federal law or the
law of a State (as defined in section 513 of title 18,
United States Code) that involved—
(1) any conduct proscribed by chapter 109A of title
18, United States Code;
(2) contact, without consent, between any part of
the defendant’s body or an object and the genitals
or anus of another person;
(3) contact, without consent, between the genitals
or anus of the defendant and any part of another
person’s body;
(4) deriving sexual pleasure or gratification from
the infliction of death, bodily injury, or physical
pain on another person; or
(5) an attempt or conspiracy to engage in conduct
described in paragraphs (1)-(4).
6
Rule 414 of the Federal Rules of Evidence provides:
Evidence of Similar Crimes in Child Molestation Cases
(a) In a criminal case in which the defendant is accused
of an offense of child molestation, evidence of the
(continued...)
No. 05-4211 9
6
(...continued)
defendant’s commission of another offense or offenses
of child molestation is admissible, and may be con-
sidered for its bearing on any matter to which it is
relevant.
(b) In a case in which the Government intends to offer
evidence under this rule, the attorney for the Govern-
ment shall disclose the evidence to the defendant,
including statements of witnesses or a summary of
the substance of any testimony that is expected to be
offered, at least fifteen days before the scheduled date
of trial or at such later time as the court may allow
for good cause.
(c) This rule shall not be construed to limit the ad-
mission or consideration of evidence under any other
rule.
(d) For purposes of this rule and Rule 415, “child”
means a person below the age of fourteen, and “offense
of child molestation” means a crime under Federal law
or the law of a State (as defined in section 513 of title 18,
United States Code) that involved—
(1) any conduct proscribed by chapter 109A of title
18, United States Code, that was committed in
relation to a child;
(2) any conduct proscribed by chapter 110 of title
18, United States Code;
(3) contact between any part of the defendant’s
body or an object and the genitals or anus of a
child;
(4) contact between the genitals or anus of the
defendant and any part of the body of a child;
(5) deriving sexual pleasure or gratification from
(continued...)
10 No. 05-4211
the purposes of the rule, “child” refers to anyone under
the age of fourteen. Fed. R. Evid. 414. Neither rule places
any time limit on the other offenses that may be offered
into evidence.7
Rule 403 states that otherwise relevant evidence may be
excluded if its probative value is substantially outweighed
by the danger of unfair prejudice.8
We already have held that the admissibility of evidence
under Rule 413 does not “displace the court’s authority
6
(...continued)
the infliction of death, bodily injury, or physical
pain on a child; or
(6) an attempt or conspiracy to engage in con-
duct described in paragraphs (1)-(5).
7
Congress enacted these new rules to “protect[] the public from
rapists and child molesters . . . . In child molestation cases, for
example, a history of similar acts tends to be exceptionally
probative because it shows an unusual disposition of the
defendant . . . that simply does not exist in ordinary people.”
2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence § 414 App.01(2)(d), at 18-20 (Joseph M. McLaughlin ed.,
2d ed. 2005) (quoting 140 Cong. Rec. S12990 (daily ed. Sept. 20,
1994) (statement of Sen. Dole)).
8
Rule 403 of the Federal Rules of Evidence reads:
Exclusion of Relevant Evidence on Grounds of Prejudice,
Confusion, or Waste of Time:
Although relevant, evidence may be excluded 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.
No. 05-4211 11
pursuant to Rule 403 to exclude evidence of a prior assault
if its probative value is substantially outweighed by the
danger of unfair prejudice.” United States v. Julian, 427
F.3d 471, 487 (7th Cir. 2005). This view is consonant with
that of many other courts of appeals that have considered
the interplay between Rule 403 and the sexual assault
rules.9
Mr. Hawpetoss’ appeal is a focused one. He does not
contest the admission of any evidence relating to M.O.,
D.A.S. and F.B., the three victims in the counts of the
superceding indictment for which he was tried. He only
submits that evidence of his sexual molestation of S.C.
and M.W. should have been excluded.
Furthermore, Mr. Hawpetoss does not dispute much of
the district court’s analysis regarding whether to admit
the evidence under Rule 414. He concedes that the evi-
dence is relevant as required under Federal Rule of Evi-
dence 401.10 He further accepts that the district court’s
basic analysis, employing the factors set forth by the
Ninth Circuit in United States v. LeMay, is correct as to the
first four factors: similarity of the conduct, proximity in
9
See, e.g., United States v. Seymour, 468 F.3d 378 (6th Cir. 2006)
(applying Rule 403 to evidence admissible under Rule 414
and citing precedent from the Eight, Ninth and Tenth Circuits
holding the same); see also United States v. Guidry, 456 F.3d 493,
503-04 (5th Cir. 2006) (holding 403 applicable to 413 evidence);
United States v. Norris, 428 F.3d 907, 914 (9th Cir. 2005) (stating
that Rule 403 applies to the admission of evidence under
Rule 414); United States v. Castillo, 140 F.3d 874, 884 (10th Cir.
1998) (stating that Rule 403 adequately addresses concerns of
prejudice in an Eighth Amendment challenge to Rule 414).
10
Appellant’s Br. at 14.
12 No. 05-4211
time, frequency of prior acts and the presence or lack of
intervening circumstances.11 Mr. Hawpetoss disputes
only that the district court improperly analyzed the ques-
tion of whether the evidence was necessary beyond the
testimony already offered at trial.12
The LeMay five factor approach finds its roots in the
particular considerations employed by the Tenth Circuit in
United States v. Guardia, 135 F.3d 1326, 1331 (10th Cir.
1998), to determine whether evidence otherwise ad-
missible under Rule 414 survives the “microscope” of
Rule 403. LeMay, 260 F.3d at 1028. Notably, the Tenth
Circuit did not explicitly adopt a rigid five factor test
but instead highlighted that the factors mentioned were
among the “innumerable” considerations that a district
court might take into account. Id. As articulated in LeMay,
those factors are: “(1) the similarity of the prior acts to the
acts charged, (2) the closeness in time of the prior acts to
the acts charged, (3) the frequency of the prior acts, (4) the
presence or lack of intervening circumstances, and (5) the
necessity of the evidence beyond the testimonies already
offered at trial.” Id. at 1028 (internal quotation marks
omitted).13
This circuit has not expressly adopted the factors-based
test of LeMay. Instead, in Julian, we stressed that “the
district court enjoys wide discretion in admitting or
excluding evidence, and our review of its evidentiary
ruling is highly deferential.” Julian, 427 F.3d at 487. In
11
Id.
12
Id. at 14-15.
13
The Third Circuit has adopted substantially the same test. See
Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 156 (3d Cir. 2002).
No. 05-4211 13
effect, then, Julian adopts a more flexible approach than
LeMay and one more in harmony with the outlined ap-
proach of the Tenth Circuit in Guardia when it foresaw
that district courts would consider “innumerable” factors.
Guardia, 135 F.3d at 1331. At least one other circuit has
employed an approach more flexible than the one em-
ployed in LeMay.14 Given the relative paucity of case law
in this area, we are hesitant to cabin artificially the discre-
tion of the district courts through the imposition of a
relatively rigid multi-factor test. We believe that, while
the factors articulated in LeMay are certainly a helpful
guide for a district court in making the discretionary
determination on the admissibility of such evidence, the
more flexible course adopted in Julian is both the wise
and prudent course.
Mr. Hawpetoss claims that the district court incorrectly
granted the Government’s motion in limine because it
misapplied the fifth factor: “the necessity of the evidence
beyond the testimonies already offered at trial.” LeMay,
260 F.3d at 1028. Mr. Hawpetoss urges, without citation of
authority, that this factor is the most important of those
mentioned in LeMay. In his view, the nature of S.C. and
M.W.’s testimony is so prejudicial that it produces the
reaction “game over!” in the eyes of the jury before they
14
In considering whether to admit evidence under Rule 413, the
Eighth Circuit found sufficient that both the rape of the first
victim was close in time to the rape of the second victim, and
that it occurred under similar circumstances. United States v.
Benais, 460 F.3d 1059, 1063 (8th Cir. 2006).
14 No. 05-4211
have heard all the evidence.15 We believe that this argu-
ment substantially overstates the situation. The evidence
is concededly relevant and, in the context of this record,
its admission did not constitute an abuse of discretion by
the district court.
The district court first determined that the disputed
evidence was similar to the charged conduct. See R.65. All
of the charged acts involved children with whom the
defendant had a familial or quasi-familial relationship; it
was certainly reasonable of the district court to conclude
that this factor weighed in favor of admissibility. The
district court then examined the amount of elapsed time
between the prior uncharged offenses and the charged
offenses and concluded, reasonably, that the interval was
not so long as to preclude admissibility. The court also
took into account that the acts were frequent and con-
tinued over a long period of time, which likewise favored
admissibility in the district court’s analysis. The court
found no evidence of any intervening acts that might
have decreased the relevance of the disputed evidence.
Finally, the two victims about whom the Government
sought to introduce evidence of uncharged abuse were
already scheduled to testify at trial, and thus, the court
concluded, the testimony of S.C. and M.W. was unlikely
to violate Rule 403’s admonition against undue delay.
Even though the district court’s initial consideration of
the matter in the context of the motion in limine was
thoughtful and comprehensive, the district court did not
end its inquiry there. Instead, at the final pretrial confer-
ence, the district court emphasized that “decisions on
15
Appellant’s Br. at 18.
No. 05-4211 15
Motions in Limine are necessarily preliminary, and circum-
stances can change.” R.114 at 3. Referring to the Govern-
ment’s motion, the district court stated that its “initial
inclination and certainly reflected in [its] decision on the
matter is that it should be granted.” Id.16
Consonant with its statement, the district court did not
allow the Government to reference the testimony of S.C.
and M.W. during opening arguments and further required
an offer of proof before admitting this evidence at trial.
Notably, the district court also gave a limiting instruction
to the jury prior to allowing the introduction of this
testimony. When measured by any standard, the record
in this case reflects a careful, conscientious consideration
of the issue by the district court.
We have stated explicitly that a district court’s determi-
nation on an evidentiary matter is reviewed in a highly
deferential manner. We made it clear in Julian that this
principle must guide our determination even when re-
viewing the difficult situations necessarily posed in the
administration of Rules 413 and 414. See Julian, 427 F.3d
at 487. The record before us reflects careful, measured
consideration of the disputed evidence by the district
court. The district court very carefully considered the
disputed evidence and determined it to be both relevant
16
It is true that this evidence was provisionally admitted be-
fore any evidence on Counts II through VIII of the second
superceding indictment. However, during opening arguments
the Government had discussed, at some length, the evidence
pertaining to those counts. The district court therefore con-
sidered that evidence when making its final determination as to
whether to admit the uncharged misconduct evidence at the
actual trial.
16 No. 05-4211
and non-violative of Federal Rule of Evidence 403. We
certainly see no abuse of discretion in admitting evidence
of Mr. Hawpetoss’ molestation of both S.C. and M.W.
Conclusion
For these reasons, the judgment of the district court is
affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-6-07