15‐2516‐cr
United States v. Schaffer
In the
United States Court of Appeals
for the Second Circuit
________
AUGUST TERM 2016
No. 15‐2516‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
GREGORY JOHN SCHAFFER, AKA JOHN ARCHAMBEAULT,
Defendant‐Appellant.
________
Appeal from the United States District Court
for the Eastern District of New York.
________
ARGUED: SEPTEMBER 27, 2016
DECIDED: MARCH 15, 2017
________
Before: WALKER, CABRANES, Circuit Judges, and BERMAN, Judge.*
________
* Judge Richard M. Berman, of the United States District Court for the
Southern District of New York, sitting by designation.
Gregory John Schaffer appeals from a judgment of conviction
entered on July 24, 2015, following a trial in the United States
District Court for the Eastern District of New York (Allyne R. Ross,
Judge). A jury convicted Schaffer of, among other crimes, coercing
and enticing a minor to engage in illegal sexual activity in violation
of 18 U.S.C. § 2422(b).
Prior to trial, Schaffer moved to suppress incriminating
statements he made to law enforcement on the ground that they
were made during a custodial interrogation without the benefit of a
Miranda warning. The District Court denied Schaffer’s motion,
holding that Schaffer was not in “custody” for purposes of Miranda.
Schaffer also opposed the government’s introduction at trial of
portions of four videos that showed him committing prior sexual
assaults on two minor girls. He asserted that the admission of these
videos would violate his right to due process. The District Court
permitted the government to introduce the videos after concluding
that they were admissible under Federal Rule of Evidence 413 and
were not unfairly prejudicial under Federal Rule of Evidence 403.
On appeal, Schaffer challenges both of the District Court’s rulings,
arguing, most notably, that Rule 413 violates the Due Process Clause
of the Fifth Amendment.
We hold that the District Court did not err in denying
Schaffer’s motion to suppress, because Schaffer was not in custody
at the time he made his incriminating statements. We further hold
that Rule 413 does not violate the Due Process Clause, and that the
2
District Court did not err by permitting the government to introduce
at trial portions of the four videos.
Accordingly, we AFFIRM the District Court’s judgment of
conviction.
________
ALLEGRA GLASHAUSSER, Federal Defenders of
New York, Inc., Appeals Bureau, New York, NY
for Defendant‐Appellant.
PETER W. BALDWIN, Assistant United States
Attorney (Amy Busa, Assistant United States
Attorney, on the brief) for Robert L. Capers, United
States Attorney for the Eastern District of New
York, Brooklyn, NY, for Appellee.
________
JOSÉ A. CABRANES, Circuit Judge:
Defendant‐Appellant Gregory John Schaffer appeals from a
judgment of conviction entered on July 24, 2015, following a trial in
the United States District Court for the Eastern District of New York
(Allyne R. Ross, Judge). A jury convicted Schaffer of, among other
crimes, coercing and enticing a minor to engage in illegal sexual
activity in violation of 18 U.S.C. § 2422(b).
Prior to trial, Schaffer moved to suppress incriminating
statements he made to Homeland Security Investigations (“HSI”)
3
agents on the ground that they were made during a custodial
interrogation without the benefit of a Miranda warning. The District
Court denied Schaffer’s motion, holding that the interview with
Schaffer was not a custodial interrogation.1
Schaffer also opposed the government’s introduction at trial
of portions of four videos that showed him committing prior sexual
assaults on two minor girls. The government asserted that the
videos were admissible under Federal Rule of Evidence 4132 and
were not unfairly prejudicial under Federal Rule of Evidence 403.3 In
opposition, Schaffer argued that Rule 413 violated the Due Process
Clause of the Fifth Amendment and that the videos were unfairly
prejudicial. The District Court did not explicitly rule on Schaffer’s
constitutional challenge, but permitted the government to introduce
limited portions of the videos pursuant to Rule 413 after concluding
that they were not precluded by Rule 403.
1 United States v. Schaffer, No. 12‐CR‐430 (ARR), 2014 WL 1515799, at *8–
*10 (E.D.N.Y. Apr. 18, 2014).
2 Rule 413 states in relevant part that “[i]n a criminal case in which a
defendant is accused of a sexual assault, the court may admit evidence that the
defendant committed any other sexual assault. The evidence may be considered
on any matter to which it is relevant.”
3 Rule 403 requires a district court to “exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.”
4
On appeal, Schaffer seeks to overturn his conviction on
grounds that the District Court should have: (1) suppressed his
incriminating statements to HSI agents because he was in custody
during the interview within the meaning of Miranda v. Arizona4 and
its progeny; (2) excluded the four videos showing prior sexual
assaults because Rule 413 violates the Due Process Clause; and (3)
excluded the four videos because they were unfairly prejudicial.
We hold that the District Court did not err in denying
Schaffer’s motion to suppress, because Schaffer was not in custody
at the time he made his incriminating statements. We further hold
that Rule 413 does not violate the Due Process Clause and that the
District Court did not err by permitting the government to introduce
portions of the four videos at trial.
Accordingly, we AFFIRM the District Court’s judgment of
conviction.
BACKGROUND
I. Factual Overview
We set forth the facts necessary to decide the claims addressed
in this opinion, and we view the evidence in the light most favorable
to the government.5
4 384 U.S. 436 (1966).
5 See, e.g., United States v. Friedman, 300 F.3d 111, 116 (2d Cir. 2002).
5
In March 2012, fifteen‐year‐old Strasia Sierra6 posted an
advertisement on the website Craigslist seeking a weekend or after‐
school job. Schaffer, then thirty‐three years old, responded to
Sierra’s online ad with an email seeking part‐time help at a retail
store he owned in Jersey City, New Jersey. After exchanging several
emails, including one in which Sierra informed Schaffer that she was
fifteen years old, Sierra agreed to travel from Brooklyn, New York to
Schaffer’s office in New Jersey for an in‐person job interview.
At the conclusion of her initial interview, during which
Schaffer asked Sierra numerous sexually suggestive questions,
Schaffer offered Sierra a job and directed her to return alone to his
office the following day. Because Sierra needed money to help her
family pays its bills, she accepted the position and returned to
Schaffer’s office as directed. During her second visit, Schaffer
sexually assaulted Sierra.
First, Schaffer instructed Sierra to try on several different
swimsuits and “adjusted” each new swimsuit she put on. These
“adjustments” entailed Schaffer touching the area around her
breasts, buttocks, and groin. Then, Schaffer put on his own
swimsuit, posed with Sierra for photographs, and placed her hands
over his groin. Finally, Schaffer forced Sierra to have sex with him
on his desk.
6 According to the government, both sides used the pseudonym “Strasia
Sierra” at trial in place of the victim’s real name.
6
Several days after the sexual assault occurred, a counselor
from Sierra’s school notified the New York City Police Department
about the incident. As part of the ensuing investigation, law
enforcement used Sierra’s email account to arrange for another
meeting between her and Schaffer. On the day that that meeting was
scheduled to occur, nine HSI agents arrived at Schaffer’s office
building to conduct a search of the premises.
When law enforcement first entered the building to serve
Schaffer with a warrant, some of the agents held Schaffer inside the
doorway while other agents conducted a security sweep of the area.
At no point did any of the agents handcuff Schaffer or draw their
firearms. When the approximately one‐minute‐long sweep was over,
Schaffer agreed to speak with Special Agents Robert Mancene and
Megan Buckley in an area of the building adjacent to his office.
At the outset of the interview, the two agents notified Schaffer
that he was not under arrest. They also did not handcuff or
otherwise restrain him at any time during the interview. Instead,
they permitted Schaffer to drink coffee and smoke cigarettes freely.
At one point, Schaffer asked the agents whether he should have an
attorney present. Agent Mancene informed Schaffer that he had a
right to have an attorney present, but told him that he would have to
decide for himself whether or not to exercise that right. At no point
thereafter did Schaffer request an attorney.
Schaffer did, however, ask Agent Mancene twice during the
interview if he could leave to collect money from an attorney located
7
down the street. Schaffer claimed that he needed the money to
purchase medication, but never asserted that there was a medical
emergency necessitating his purchase of the medication. He also
never claimed that the attorney was his attorney. Agent Mancene
denied both of Schaffer’s requests on the ground that it would create
a “security issue” and threaten the integrity of the search because
the agents had placed boxes of evidence “all over the floor by the
threshold of the doorway.”7 Ultimately, over the course of an
approximately one‐hour interview, Schaffer made several
incriminating statements to Agents Mancene and Buckley, including
admitting that he owned the email account used to communicate
with Sierra.
At the conclusion of the interview, and after the agents
reviewed the evidence collected during the search, Agent Mancene
called the United States Attorney’s Office for the Eastern District of
New York and arrested Schaffer. Then, only after handcuffing
Schaffer, Agent Mancene read him a Miranda warning.
During a subsequent forensic search of his office computer,
law enforcement agents discovered, among other things, four videos
showing Schaffer committing sexual assaults on two other minor
7 App’x 32. According to Agent Mancene, there was a second door
leading to the outside of the building, one unobstructed by the fruits of the
search. While he could not recall whether Schaffer specifically inquired about the
second door, Mancene testified that he would not have permitted Schaffer to
leave the premises through that door because it went through a private office
that was not covered by the search warrant.
8
girls. The first two videos showed Schaffer with a girl around the
age of eight or nine years old. The girl was trying on swimsuits and
Schaffer was fondling her body while “adjusting” the suits. One of
the videos showed the girl performing oral sex on Schaffer while the
other video showed Schaffer either having sex with, or masturbating
on top of, the girl. Both videos were approximately six minutes long
and neither of them included sound.
The third and fourth videos showed Schaffer interacting with
a different minor girl inside of a hotel room. This girl was
approximately twelve or thirteen years old. Both of these videos
included sound and they had a combined length of eighty‐seven
minutes. They showed Schaffer telling the girl he was an FBI agent,
offering her gifts, making her try on swimsuits, making her sit on
the bed naked, and taking her into the bathroom.
In July 2012, a federal grand jury filed a four‐count
indictment against Schaffer charging him with, among other crimes,
one count of coercing and enticing a minor to travel in interstate
commerce to engage in illegal sexual activity, in violation of 18
U.S.C. § 2422(b),8 and one count of attempting to commit a violation
of Section 2422(b). Two years later, a jury convicted Schaffer on all
8 Section 2422(b) states that, “[w]hoever, using the mail or any facility or
means of interstate or foreign commerce, or within the special maritime and
territorial jurisdiction of the United States knowingly persuades, induces, entices,
or coerces any individual who has not attained the age of 18 years, to engage in
prostitution or any sexual activity for which any person can be charged with a
criminal offense, or attempts to do so, shall be fined under this title and
imprisoned not less than 10 years or for life.”
9
four counts of the indictment. The District Court sentenced Schaffer
to 300 months’ imprisonment.
II. Schaffer’s Pretrial Motion to Suppress
Prior to trial, Schaffer moved to suppress the statements he
made during the interview with Agents Mancene and Buckley. He
claimed that the District Court should exclude his statements
because he made them during a custodial interrogation without
having first received a Miranda warning. More specifically, he
argued that he was in “custody” within the meaning of Miranda
because the agents prevented him from leaving the interview,
denied him access to an attorney, and denied him access to
medication. The government opposed Schaffer’s motion.
In order to resolve the motion, the District Court held a
suppression hearing, at which Agent Mancene testified. Agent
Mancene attested to the facts described above and the District Court
found his testimony credible.9 Relying on that testimony, the District
Court denied Schaffer’s motion to suppress, holding that no
reasonable person in Schaffer’s position would “have understood
that his interrogation was being conducted pursuant to arrest‐like
restraints.”10
9 Schaffer, 2014 WL 1515799, at *3.
10 Id. at *10 (quoting United States v. Newton, 369 F.3d 659, 677 (2d Cir.
2004)) (internal quotation marks omitted).
10
The District Court identified several factors leading to its
conclusion that Schaffer was not in custody.11 For example, the
District Court noted that the agents informed Schaffer he was not
under arrest, that Schaffer voluntarily agreed to speak with the
agents, and that the agents did not restrain Schaffer during the
interview.12 While the District Court also recognized that Agent
Mancene prevented Schaffer from leaving the interview, it
concluded that such a limited restriction on Schaffer’s freedom of
action was not indicative of “custody” under the circumstances
presented.13 It also found no credible evidence supporting Schaffer’s
claim that agents denied him an attorney or medication.14
III. The Government’s Motion In Limine Seeking Admission of
the Four Videos
The government moved in limine to admit as evidence at trial
fifteen minutes’ worth of clips from the four videos showing
Schaffer’s prior sexual assaults.15 Schaffer opposed the admission of
11 Id. at *8.
12 Id.
13 Id. at *9.
14 Id.
15 There is some confusion regarding the length of the video clips that the
government sought to introduce at trial. In his brief on appeal, Schaffer contends
that the government sought to introduce “almost 100 minutes of video.”
Defendant’s Br. 7. While that number approximates the total combined length of
11
the videos on grounds that (1) they were unfairly prejudicial under
Rule 403, and that (2) Rule 413, which permits a court to admit
evidence of a defendant’s prior sexual assaults, violated the Due
Process Clause.
After viewing the selected excerpts in camera,16 the District
Court permitted the government to introduce the edited videos at
trial.17 In its order granting the motion in limine, the District Court
stated three supporting conclusions. First, the District Court agreed
that the videos showed conduct qualifying as “sexual assault”
within the meaning of Rule 413.18 Second, it concluded that the
videos were “highly relevant to the charges against Schaffer”
because his intent to commit sexual acts with minors was at issue,
all four videos, there is no support in the record for Schaffer’s assertion that the
government showed, or intended to show, all ninety‐plus minutes to the jury.
Instead, the April 10, 2014 letter from the government to the District Court,
which accompanied its submission of the four videos for in camera review,
specifically noted certain segments that the government wished to introduce at
trial. Government App’x 58–59. Those segments amounted to approximately
fifteen minutes of video. See id. Although there is no indication in the trial
transcript of the amount of time the government played the videos at trial, the
fact that the District Court explicitly stated in its order granting the motion in
limine that “[t]he government seeks to admit as evidence at trial select portions of
the four videos,” Schaffer, 2014 WL 1515799, at *6, supports the government’s
assertion on appeal that it played only fifteen minutes of combined footage from
the videos at trial, Government’s Br. 12.
16 Schaffer, 2014 WL 1515799, at *6.
17 Id. at *10–11.
18 Id. at *10.
12
and the videos showed that Schaffer had a pattern of “enticing girls
into situations in which they are alone with him and making them
try on swimsuits before forcing them to engage in sexual conduct.”19
Third, it concluded that the videos were not unfairly prejudicial
because they did not show conduct more inflammatory than the
conduct alleged in the indictment and because the jury could not
discern that the other girls were significantly younger than Sierra.20
DISCUSSION
I. Schaffer’s Challenge to the District Court’s Denial of his
Motion to Suppress
a. Standard of Review
In an appeal of an order denying a motion to suppress, we
review a district court’s legal conclusions de novo and its factual
findings for clear error, viewing the evidence in the light most
favorable to the government.21 We will not overrule the credibility
findings of a district court unless they are clearly erroneous.22
19 Id.
20 Id. at *11.
21 In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 177, 198
(2d Cir. 2008).
22 United States v. Yousef, 327 F.3d 56, 124 (2d Cir. 2003).
13
b. The Principles Governing the Application of Miranda
Pursuant to the Supreme Court’s decision in Miranda v.
Arizona, the prosecution is prohibited from using at trial a
defendant’s statements made during a “custodial interrogation”
unless “it demonstrates the use of procedural safeguards effective to
secure the privilege against self‐incrimination.”23 There is no dispute
that Agent Mancene did not advise Schaffer of his Miranda rights
until after Schaffer had made his incriminating statements.
Accordingly, the only relevant issue on appeal is whether Schaffer
was in “custody” for purposes of Miranda when he spoke with law
enforcement agents.
As we have had occasion to observe, “‘[c]ustody’ for Miranda
purposes is not coterminous with . . . the colloquial understanding
of custody.”24 Instead, an individual is in “custody” only if two
conditions are met: (1) “a reasonable person would have thought he
was [not] free to leave the police encounter at issue” and (2) “a
reasonable person would have understood his freedom of action to
have been curtailed to a degree associated with formal arrest.”25
23 Miranda, 384 U.S. at 444. Miranda requires law enforcement to advise a
suspect that “he has a right to remain silent, that any statement he does make
may be used as evidence against him, and that he has a right to the presence of
an attorney, either retained or appointed.” Id.
24 United States v. Faux, 828 F.3d 130, 135 (2d Cir. 2016) (quoting United
States v. FNU LNU, 653 F.3d 144, 152–53 (2d Cir. 2011)).
25 Id. (quoting Newton, 369 F.3d at 672).
14
While the first condition—a seizure—is necessary for concluding
that a suspect was in custody, “not every seizure constitutes custody
for purposes of Miranda.”26 Thus, the “ultimate inquiry” is whether a
reasonable person would have understood the law enforcement
agents’ restraint on his freedom to equal “the degree associated with
a formal arrest.”27
To determine whether a suspect’s freedom of movement was
“curtailed to a degree associated with formal arrest,” courts are
required to conduct an objective examination of “all the surrounding
circumstances.”28 Because our case law requires an objective inquiry,
“[a]n individual’s subjective belief about his or her status generally
does not bear on the custody analysis.”29 Rather, a court should
consider a variety of factors including:
(1) the interrogation’s duration; (2) its location (e.g., at
the suspect’s home, in public, in a police station, or at
the border); (3) whether the suspect volunteered for the
interview; (4) whether the officers used restraints; (5)
whether weapons were present and especially whether
26 Newton, 369 F.3d at 672.
27 Id. at 670 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)).
28 Faux, 828 F.3d at 135.
29 Id.
15
they were drawn; and (6) whether officers told the
suspect he was free to leave or under suspicion.30
Ultimately, if a court determines that it was reasonable for the
individual being interrogated to conclude that his detention was
“not likely to be temporary and brief” and to feel that he was
“completely at the mercy of [the] police,” then the individual was in
“custody” and Miranda’s protections apply.31
c. Schaffer Was Not in “Custody” during the Interview
Schaffer argues that the District Court erred by denying his
motion to suppress because he was in “custody” during his
interview with Agents Mancene and Buckley. Specifically, Schaffer
contends that his interview was “custodial” because Agent Mancene
twice denied his request to leave the office. The District Court
examined all of the surrounding circumstances, including the denial
of Schaffer’s two requests to leave, and concluded that a reasonable
person in Schaffer’s position would not have considered himself
subject to arrest‐like constraints and, thus, Schaffer was not in
“custody.”32 We agree. Under the circumstances presented here, a
reasonable person would not believe that his freedom of movement
30 Id. (internal quotation marks omitted).
31 Id. (internal quotation marks omitted).
32 Schaffer, 2014 WL 1515799, at *10.
16
was “curtailed to a degree associated with formal arrest.”33 The fact
that law enforcement agents denied Schaffer’s requests to leave his
office would not cause a reasonable person to think otherwise,
because a reasonable person would have viewed the agents’ limited
restriction on his freedom of movement as necessary to protect the
integrity of the ongoing search.
As an initial matter, the District Court held an evidentiary
hearing on Schaffer’s motion to suppress, at which it found the
testimony of Agent Mancene to be credible, “particularly in light of
the fact that it [was] controverted only by Schaffer’s own self‐serving
declaration.”34 On appeal, Schaffer does not contest the District
Court’s credibility finding or its resulting factual findings.
Accordingly, we adopt the findings of the District Court and review
only its legal conclusion that Schaffer was not in “custody.”
In holding that Schaffer was not in “custody,” the District
Court considered the following facts: (1) Schaffer was not
handcuffed or otherwise physically restrained during his interview;
(2) at no point did any of the agents have their weapons drawn; (3)
the agents interviewed Schaffer in the familiar surroundings of his
office and permitted him to drink coffee and smoke cigarettes; (4)
the agents informed Schaffer that he was not under arrest; (5)
Schaffer voluntarily agreed to speak with the agents; (6) the
33 Newton, 369 F.3d at 672.
34 Schaffer, 2014 WL 1515799, at *3.
17
interview lasted only about an hour; and, (7) there was no evidence
that Schaffer asked for an attorney or that the agents denied a
request for an attorney.35 The District Court concluded that each of
those facts cut against holding that Schaffer was in custody.36 It also
considered the fact that Agent Mancene denied Schaffer’s two
requests to leave, understanding that fact to suggest that Schaffer’s
freedom of movement was indeed curtailed, but it declined to treat
that fact as decisive because it reflected only a limited restriction on
Schaffer’s freedom of movement.37
Because “not every seizure constitutes custody for purposes of
Miranda,”38 a custodial interrogation will be found only where a
reasonable person would have understood the restraint on his
freedom of movement to be “of the degree associated with a formal
arrest.”39 Where there is evidence that an individual’s freedom to
move was limited, courts should consider whether “the relevant
environment presents the same inherently coercive pressures as the
35 Id. at *8–9.
36 Id.
37 Id. at *9.
38 Newton, 369 F.3d at 672; see also Howes v. Fields, 565 U.S. 499, 509 (2012)
(“Not all restraints on freedom of movement amount to custody for purposes of
Miranda.”).
39 Newton, 369 F.3d at 670 (internal quotation marks omitted).
18
type of station house questioning at issue in Miranda.”40 Based on the
uncontested factual findings of the District Court, it is clear that
Schaffer’s interview did not constitute a coercive environment
tantamount to a formal arrest.41
The fact that there were nine agents in the office during the
interview and that Agent Mancene denied Schaffer the ability to
leave the interview while the search of his office continued do not
compel a different conclusion. First, as we have explained before,
“the number of officers is typically not dispositive” of custody.42
Moreover, while there were nine agents inside Schaffer’s office
during the search, only Agents Mancene and Buckley conducted the
interview, which took place in a separate part of the office away
40 Fields, 565 U.S. at 509.
41 See, e.g., Faux, 828 F.3d at 138–39 (holding that individual was not in
custody for purposes of Miranda where law enforcement agents questioned her
inside her own home, did not handcuff her, did not display their weapons, and
informed her that she was not under arrest); FNU LNU, 653 F.3d at 155 (holding
that defendant subject to interview at airport was not in custody where officers
never drew their weapons, did not restrain the defendant, and asked questions
relevant to defendant’s admissibility to the United States); United States v.
Badmus, 325 F.3d 133, 138–39 (2d Cir. 2003) (holding that a reasonable person
would not have considered himself in custody where law enforcement agents
questioned him in his own home, did not draw their weapons, and told him he
was not under arrest).
42 Faux, 828 F.3d at 136; see Badmus, 325 F.3d at 139 (holding that there was
no custodial interrogation even though there were six law enforcement officers
present in one small apartment); Newton, 369 F.3d at 675 (observing that the
presence of six officers “would not, by itself, have led a reasonable person . . . to
conclude that he was in custody”).
19
from the other seven agents. A reasonable person would not have
felt “completely at the mercy of [the] police”43 simply because he
knew seven other agents were searching his office.
Second, a reasonable person in Schaffer’s position would not
have concluded that being prohibited from leaving his office during
an ongoing search was equivalent to a formal arrest. Instead, he
would have considered the restriction on his freedom of movement
to be a “sensible precaution” designed to protect the integrity of an
ongoing search.44 Agent Mancene testified that he instructed
Schaffer that leaving the office would present a “security issue”
because the “agents had set up . . . the boxes [of evidence] and the
chains of custody, and they were all over the floor by the threshold
43 Faux, 828 F.3d at 135 (internal quotation marks omitted).
44 Id. at 137 (explaining that “[a] reasonable person would understand that
being accompanied in one’s home by agents who are legally present to execute a
search warrant is a sensible precaution and that (absent other hallmarks of
custody) freedom of action is not being curtailed to a degree associated with
formal arrest” (internal quotation marks omitted)).
While there was a second, unobstructed exit out of the building, there is
no evidence that Schaffer inquired about that door in particular or that Mancene
gave a separate explanation for why Schaffer could not leave through that door.
For that reason, there was no basis for Schaffer to have believed that Agent
Mancene’s explanation did not describe the conditions of both possible exits.
Thus, the fact that Schaffer may have known about a second door, without more,
does not establish that a reasonable person would have considered Agent
Mancene’s denial of a request to leave to be equal to an arrest.
20
of the doorway . . . .”45 Considering the other conditions present
during Schaffer’s interview, no reasonable person in his position
would have interpreted Agent Mancene’s explanation as pretextual.
Rather, his explanation that the exit was blocked by agents collecting
and cataloguing evidence reasonably suggests that Schaffer’s
detention would be “temporary and brief.”46 A reasonable person in
Schaffer’s position would have assumed that law enforcement
would permit him to leave the office once they had completed their
search.
The reasonableness of Agent Mancene’s precautionary denial
is underscored by the triviality of Schaffer’s request to leave.
Schaffer asked to leave the office because he wanted to collect
money from an acquaintance. A reasonable person would not have
expected law enforcement to permit him to leave the site of an
ongoing search for such an inconsequential purpose. In contrast, if
Schaffer had requested permission to depart the interview because
he needed to address some timely emergency, and if law
enforcement agents had denied such a request, it might be
reasonable for Schaffer to have felt more “completely at the mercy of
[the] police.”47 No such exigency, however, was mentioned here.
Consequently, while Agent Mancene did curtail Schaffer’s freedom
45 App’x 32.
46 Faux, 828 F.3d at 135 (internal quotation marks omitted).
47 Id. (internal quotation marks omitted).
21
of action, his denial of Schaffer’s request to leave was not, on the
facts presented, indicative of an arrest‐like restraint.48
In sum, a reasonable person in Schaffer’s position would not
have concluded that “his freedom of action [was] curtailed to a
degree associated with formal arrest.”49 Schaffer, therefore, was not
in “custody” and law enforcement were not required to deliver a
Miranda warning before questioning him. The District Court
properly denied his motion to suppress.
II. Schaffer’s Challenge to the District Court’s Admission at
Trial of Four Videos Showing Prior Sexual Assaults
a. Standard of Review
We review de novo a challenge to the constitutionality of a
statute.50 And, “mindful of [a district court’s] superior position to
assess relevancy and to weigh the probative value of evidence
48 See id. at 137 (holding that defendant was not in custody even though
she “was not permitted to move freely about her home during the two‐hour
interrogation [and] agents accompanied her to the bathroom and to her bedroom
to fetch a sweater”); Badmus, 325 F.3d at 139 (holding that defendant was not in
custody even though the “[d]efendant and his wife were asked to stay seated in
the living room and not allowed to move freely about the apartment”); United
States v. Ross, 719 F.2d 615, 622 (2d Cir. 1983) (“The mere fact that Ross was told
he would be accompanied by an IRS agent when he moved about the restaurant
did not place him in custody within the meaning of Miranda.”).
49 Newton, 369 F.3d at 672.
50 United States v. Murphy, 979 F.2d 287, 289 (2d Cir. 1992).
22
against its potential for unfair prejudice,” we review a district
court’s evidentiary rulings for “abuse of discretion.”51
b. Federal Rule of Evidence 413 Does Not Violate the Due
Process Clause
Schaffer asserts that the District Court’s admission of portions
of four videos showing his prior sexual assaults under Rule 413
violated the right to due process of law guaranteed by the Fifth
Amendment. He argues that the “common‐law tradition”52 of
prohibiting prosecutors from using evidence of prior bad acts to
establish a probability of guilt is so fundamental in our criminal
justice system that the admission of propensity evidence53 pursuant
51 United States v. Abu‐Jihaad, 630 F.3d 102, 131 (2d Cir. 2010). We have
often explained that “abuse of discretion is a distinctive term of art that is not
meant as a derogatory statement about the district judge whose decision is found
wanting.” Vill. of Freeport v. Barrella, 814 F.3d 594, 610–11 (2d Cir. 2016) (internal
quotation marks omitted). “[T]he term merely signifies that a district court based
its ruling on an erroneous view of the law or on a clearly erroneous assessment
of the evidence, or rendered a decision that cannot be located within the range of
permissible decisions.” Id. (internal quotation marks omitted).
52 Michelson v. United States, 335 U.S. 469, 475 (1948).
53 The term “propensity evidence” refers to evidence of a defendant’s
prior criminal acts, which a prosecutor uses for the purpose of suggesting that
“because the defendant is a person of criminal character, it is more probable that
he committed the crime for which he is on trial.” 1 GEORGE E. DIX ET AL.,
MCCORMICK ON EVIDENCE § 190 (Kenneth S. Broun & Robert P. Mosteller eds.,
7th ed. 2013 & Supp. 2016).
23
to Rule 413 “violates fundamental conceptions of justice.”54 While
we recognize that Rule 413 represents an exception to the general
“ban against propensity evidence,”55 we agree with every other
court of appeals that has addressed this issue and hold that, in light
of the safeguards provided by Rule 403, Rule 413 on its face does not
violate the Due Process Clause.56
Rule 413 provides that “[i]n a criminal case in which a
defendant is accused of a sexual assault, the court may admit
evidence that the defendant committed any other sexual assault.”
Unlike Federal Rule of Evidence 404(b), which allows prior bad act
evidence to be used for purposes other than to show a defendant’s
propensity to commit a particular crime, Rule 413 permits the jury to
consider the evidence “on any matter to which it is relevant.” In
54 Dowling v. United States, 493 U.S. 342, 352 (1990) (internal quotation
marks omitted).
55 United States v. Enjady, 134 F.3d 1427, 1432 (10th Cir. 1998); see also
Michelson, 335 U.S. at 475 (explaining that “[c]ourts that follow the common‐law
tradition almost unanimously have come to disallow resort by the prosecution to
any kind of evidence of a defendant’s evil character to establish a probability of
his guilt”).
56 See United States v. Mound, 149 F.3d 799, 801 (8th Cir. 1998) (holding that
Rule 413 does not violate the Due Process Clause); Enjady, 134 F.3d at 1430–33
(same); see also United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001) (holding
that Federal Rule of Evidence 414, a companion to Rule 413 addressing the
admission of propensity evidence in cases of child molestation, is constitutional
on its face); cf. United States v. Julian, 427 F.3d 471, 487 (7th Cir. 2005) (holding
that Rule 413 does not deprive a defendant of the equal protection of the law in
violation of the Due Process Clause).
24
other words, a prosecutor may use evidence of prior sexual assaults
precisely to show that a defendant has a pattern or propensity for
committing sexual assault.57 In passing Rule 413, Congress
considered “[k]nowledge that the defendant has committed rapes on
other occasions [to be] critical in assessing the relative plausibility of
[sexual assault] claims and accurately deciding cases that would
otherwise become unresolvable swearing matches.”58
For Schaffer to succeed on his claim that Rule 413 offends the
Due Process Clause, he must show that its presumption favoring the
admission of propensity evidence in sexual assault cases “violates
those fundamental conceptions of justice which lie at the base of our
civil and political institutions.”59 The necessary predicate to such a
showing, of course, would be a determination that prohibiting the
use of propensity evidence in prosecutions for sexual assault is a
“fundamental conception[ ] of justice.” To ascertain whether that is
57 See Enjady, 134 F.3d at 1431 (explaining that “[i]n passing Rule 413
Congress believed it necessary to lower the obstacles to admission of propensity
evidence in a defined class of cases”); 2 JACK B. WEINSTEIN & MARGARET A.
BERGER, WEINSTEIN’S FEDERAL EVIDENCE § 413.04 (Mark S. Brodin, ed., Matthew
Bender 2d ed. 2017) (explaining that Rule 413 “was designed to overcome the
limitation imposed by Rule 404(b) against using evidence of other crimes or bad
acts to show that the defendant had the propensity to commit the act charged”).
58 Enjady, 134 F.3d at 1431 (quoting 140 CONG. REC. S12990–01, S12990
(daily ed. Sept. 20, 1994) (statement of Sen. Robert Dole)).
59 Dowling, 493 U.S. at 353 (internal quotation marks omitted).
25
indeed the case, we must examine “historical practice.”60 In
conducting that inquiry, we are mindful of the Supreme Court’s
admonition that “[j]udges are not free, in defining ‘due process,’ to
impose on law enforcement officials our ‘personal and private
notions’ of fairness and to ‘disregard the limits that bind judges in
their judicial function.’”61 To that end, the Supreme Court has
“defined the category of infractions that violate ‘fundamental
fairness’ very narrowly” and instructed that “[b]eyond the specific
guarantees enumerated in the Bill of Rights, the Due Process Clause
has limited operation.”62
Schaffer argues that the historical practice of courts in this
country is to prohibit the use of propensity evidence in criminal
prosecutions. As a general matter, Schaffer is correct.63 Not only is a
60 Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (stating that “[o]ur primary
guide in determining whether the principle in question is fundamental is, of
course, historical practice”).
61 United States v. Lovasco, 431 U.S. 783, 790 (1977) (quoting Rochin v.
California, 342 U.S. 165, 170 (1952)).
62 Dowling, 493 U.S. at 352.
63 See, e.g., Boyd v. United States, 142 U.S. 450, 458 (1892) (reversing
conviction on the ground that the jury convicted defendants on the basis of
evidence relating to the commission of prior crimes and not on the basis of
competent evidence of the specific crimes charged); see also LeMay, 260 F.3d at
1025 (“[I]t seems clear that the general ban on propensity evidence has the
requisite historical pedigree to qualify for constitutional status.”); United States v.
Castillo, 140 F.3d 874, 881 (10th Cir. 1998) (assuming, without deciding, that the
26
general prohibition on propensity evidence embodied in Rule
404(b),64 but the Supreme Court has repeatedly extolled, though
often in dicta, the virtues of the “common‐law tradition” of
“disallow[ing] resort by the prosecution to any kind of evidence of a
defendant’s evil character to establish a probability of guilt.”65
However, as other courts of appeals have explained, the evidence
regarding the historical practice of allowing (or disallowing)
propensity evidence in prosecutions for sex crimes is mixed.66 For
example, many jurisdictions presently have evidentiary rules
analogous to both Rule 413 and its companion rule addressing child
molestation, Federal Rule of Evidence 414,67 and have had rules
general ban on the use of propensity evidence is a protection guaranteed by the
Due Process Clause).
64 Rule 404(b) states in relevant part that, “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the character.”
65 Michelson, 335 U.S. at 475; see also Old Chief v. United States, 519 U.S. 172,
182 (observing in dicta that “[t]here is . . . no question that propensity would be
an ‘improper basis’ for conviction”).
66 See LeMay, 260 F.3d at 1025–26 (explaining that “[i]n many American
jurisdictions, evidence of a defendant’s prior acts of sexual misconduct is
commonly admitted in prosecutions for offenses such as rape, incest, adultery,
and child molestation”); Castillo, 140 F.3d at 881 (concluding that “the historical
record regarding evidence of one’s sexual character is much more ambiguous”).
67 See, e.g., GEORGE E. DIX ET AL., ante note 53 (explaining that “many
jurisdictions now admit proof of other sex offenses with other persons, at least as
to offenses involving sexual aberrations. Furthermore, courts in many of the
jurisdictions that still do not overtly admit evidence of sex crimes with other
27
permitting the use of various kinds of propensity evidence in
prosecutions for sex crimes for the past century and a half.68
Short of citing three recent cases in the highest courts of
Washington,69 Iowa,70 and Missouri,71 all of which invalidated, for
one reason or another, state laws parallel to Rule 413, Schaffer fails
to present evidence compelling a different historical analysis.
Because Schaffer bears the burden of establishing72 that the
prohibition of propensity evidence in sexual‐offense cases is a
“fundamental conception[ ] of justice,”73 the lack of conclusive
historical evidence is a sufficient ground on which to reject his due
victims as revealing an incriminating propensity achieve a similar result by
stretching to find a nonpropensity purpose” (footnotes omitted)).
68 See, e.g., Thomas J. Reed, Reading Gaol Revisited: Admission of Uncharged
Misconduct Evidence in Sex Offender Cases, 21 AM. J. CRIM. L. 127, 169–182 (1993)
(describing the historical development of evidentiary rules permitting the
introduction of certain kinds of propensity evidence in prosecutions for statutory
rape, rape, incest, adultery, and sodomy); GEORGE E. DIX ET AL., ante note 53
(explaining that courts initially admitted evidence of prior sexual acts if it
involved the same parties).
69 State v. Gresham, 269 P.3d 207 (Wash. 2012).
70 State v. Cox, 781 N.W.2d 757 (Iowa 2010).
71 State v. Ellison, 239 S.W.3d 603 (Mo. 2007).
72 Egelhoff, 518 U.S. at 47 (explaining that the respondent, and not the
state, bears the burden of demonstrating that the principle violated by the rule in
question is “deeply rooted”).
73 Dowling, 493 U.S. at 353 (internal quotation mark omitted).
28
process claim. Nevertheless, because the admission of propensity
evidence raises the specter of unfairness, we do not rely solely on
the lack of any established historical practice of prohibiting the
admission of propensity evidence in sexual‐assault cases to deny
Schaffer’s constitutional challenge. Instead, we independently
conclude that Rule 413 does not threaten a defendant’s right to due
process.
Justice Robert H. Jackson, writing for the Court in Michelson v.
United States, described the justification for the general policy of
excluding propensity evidence as follows:
The state may not show defendant’s prior trouble with
the law, specific criminal acts, or ill name among his
neighbors, even though such facts might logically be
persuasive that he is by propensity a probable
perpetrator of the crime. The inquiry is not rejected
because character is irrelevant; on the contrary, it is said
to weigh too much with the jury and to so overpersuade
them as to prejudge one with a bad general record and
deny him a fair opportunity to defend against a
particular charge. The overriding policy of excluding
such evidence, despite its admitted probative value, is
the practical experience that its disallowance tends to
prevent confusion of issues, unfair surprise and undue
prejudice.74
74 Michelson, 335 U.S. at 475–76 (footnotes omitted).
29
We share Justice Jackson’s concern that propensity evidence may
cause “undue prejudice” to a defendant and, as a result, threaten his
right to a fair trial. However, we conclude, like the Eighth, Ninth,
and Tenth Circuits before us, that the protections provided in Rule
403, which we now explicitly hold apply to evidence being offered
pursuant to Rule 413, effectively mitigate the danger of unfair
prejudice resulting from the admission of propensity evidence in
sexual‐assault cases.75 Because Rule 403 requires a district court to
determine whether the probative value of any evidence “is
substantially outweighed by a danger of . . . unfair prejudice,”76 the
practical effect of Rule 413 is to create a presumption that evidence
of prior sexual assaults is relevant and probative in a prosecution for
sexual assault.77 It does not require or guarantee the admission of all
propensity evidence in every sexual‐assault case. Where in a
particular instance the admission of evidence of prior sexual assaults
would create “undue prejudice” and threaten due process, district
courts can and should, by operation of Rule 403, exclude that
evidence and ensure the defendant’s right to a fair trial.
75 See Enjady, 134 F.3d at 1431, 1433 (holding that admission of evidence
under Rule 413 does not violate Due Process Clause because it is subject to Rule
403’s balancing test); Mound, 149 F.3d at 800–01 (same); LeMay, 260 F.3d at 1026
(holding that Rule 414 does not violate Due Process Clause because Rule 403
applies to the admission of evidence under Rule 414); see also United States v.
Larson, 112 F.3d 600, 604–05 (2d Cir. 1997) (holding that Rule 403’s balancing test
applied to evidence being offered under Rule 414).
76 FED. R. EVID. 403.
77 See Enjady, 134 F.3d at 1431.
30
Schaffer’s primary argument on appeal is his contention that
Rule 413’s fundamental assumption “that past sex offenses are valid
proof of future ones” is not supported by empirical evidence.78 To
bolster his claim, Schaffer describes the serious opposition to Rule
413 at the time Congress enacted it79 as well as the continued
opposition to the Rule since its passage.80 However, our conclusion
that Rule 413 does not on its face violate the Due Process Clause
does not turn on our assessment (much less our endorsement) of the
Rule’s underlying rationale.81 As the Supreme Court has observed in
78 Defendant’s Br. 40.
79 See, e.g., Report of the Judicial Conference on the Admission of
Character Evidence in Certain Sexual Misconduct Cases, transmitted to Congress
on Feb. 9, 1995, 159 F.R.D. 51, 53 (1995) (opposing enactment of Rules 413, 414,
and 415 on the ground, among others, that “the new rules, which are not
supported by empirical evidence, could diminish significantly the protections
that have safeguarded persons accused in criminal cases and parties in civil cases
against undue prejudice”).
80 See, e.g., Tamara Rice Lave & Aviva Orenstein, Empirical Fallacies of
Evidence Law: A Critical Look at the Admission of Prior Sex Crimes, 81 U. CIN. L. REV.
795, 796 (2013) (arguing “that the psychological and criminological research on
sex offenders does not support the high probative value assigned to prior bad
acts in sex cases”).
81 See David J. Karp, Evidence of Propensity and Probability in Sex Offense
Cases and Other Cases, 70 CHI.–KENT L. REV. 15, 20 (1994) (explaining that one of
the primary arguments in favor of Rule 413 was that “the past conduct” of “[a]
person with a history of rape or child molestation . . . provides evidence that he
has the combination of aggressive and sexual impulses that motivates the
commission of such crimes, that he lacks effective inhibitions against acting on
these impulses, and that the risks involved do not deter him. A charge of rape or
31
another context, “[t]he criterion of constitutionality is not whether
we believe the law to be for the public good.”82 The wisdom of an
evidentiary rule permitting the use of propensity evidence in
prosecutions for sexual assault is not “the concern of the courts.”83
Rather, our concern is only whether Rule 413 violates fundamental
principles of due process. We conclude that it does not. Deliberating
the merits and demerits of Rule 413 is a matter for Congress alone.
c. The District Court Did Not Err by Permitting the Government
to Introduce the Four Videos at Trial
Schaffer also argues that, even if Rule 413 is constitutional, the
District Court erred in admitting at trial excerpts from four videos
showing him sexually assaulting two other minor girls.84 He
child molestation has greater plausibility against a person with such a
background”); see also 140 CONG. REC. at S12990 (statement of Sen. Robert Dole,
principal sponsor of Rule 413, referring to David Karp’s work as “provid[ing] a
detailed account of the views of the legislative sponsors and the administration
concerning the proposed reform, and should also be considered an authoritative
part of its legislative history”).
82 Ferguson v. Skrupa, 372 U.S. 726, 730 (1963) (internal quotation marks
omitted) (quoting Adkins v. Childrenʹs Hosp. of the D.C., 261 U.S. 525, 570 (1923)
(Holmes, J., dissenting)).
83 I.N.S. v. Chadha, 462 U.S. 919, 944 (1983) (explaining that the
constitutionality, rather than the wisdom, of a particular statute is the “concern
of the courts”).
84 Schaffer does not dispute that the videos were admissible under Rule
413: he was charged with offenses qualifying as “sexual assaults” within the
32
contends that the probative value of the videos was minimal and
that the videos created unfair prejudice.
The District Court reviewed the videos in camera and
concluded that they were highly relevant to the charges against
Schaffer and that the resulting prejudice was not unfair. We agree.
The video evidence was certainly prejudicial, but that prejudice did
not substantially outweigh the probative value of the evidence given
the severity of the crimes charged, the similarity between Schaffer’s
acts in the videos and the acts alleged in the indictment, and the fact
that Schaffer argued at trial that the government failed to prove his
intent to engage Sierra in illegal sex. In these circumstances, we
cannot conclude that the District Court erred in admitting the video
evidence.
Rule 403 requires a district court to “exclude relevant evidence
if its probative value is substantially outweighed by a danger of . . .
unfair prejudice.” However, the fact that evidence “may be highly
prejudicial” does not necessarily mean that it is “unfairly
prejudicial.”85 The distinction between “highly prejudicial” evidence
and “unfairly prejudicial” evidence “will often be difficult to
meaning of Rule 413 and the conduct shown on the four videos similarly
qualified as “sexual assault.”
85 United States v. Davis, 624 F.3d 508, 512 (2d Cir. 2010) (internal quotation
marks omitted) (holding that a district court did not abuse its discretion in
admitting at trial a nineteen‐year old conviction for child molestation).
33
determine.”86 For that reason, “we accord great deference to the
district court’s assessment of the relevancy and unfair prejudice of
proffered evidence, mindful that it sees the witnesses, the parties,
the jurors, and the attorneys, and is thus in a superior position to
evaluate the likely impact of the evidence.”87
The government introduced at trial approximately fifteen
minutes’ worth of video evidence showing Schaffer committing
sexual assaults on two other minor girls. The video clips showed
two girls between the ages of eight and thirteen years old trying on
swimsuits for Schaffer and having their bodies fondled by him. Two
of the videos also showed one of the girls performing sexual acts on
Schaffer.
The District Court concluded that these video clips were
“highly relevant to the charges against Schaffer.”88 Specifically, the
District Court reasoned that:
Schaffer’s prior acts demonstrating his sexual interest in
minor females are extremely relevant to the question of
his intent here. This is particularly so because of the
similarities between the conduct shown on the videos
and Schaffer’s alleged conduct with [Sierra]. The videos
86 Id. (internal quotation marks omitted).
87 United States v. Quinones, 511 F.3d 289, 310 (2d Cir. 2007) (internal
quotation marks omitted).
88 Schaffer, 2014 WL 1515799 at *10.
34
show a pattern of Schaffer’s enticing girls into situations
in which they are alone with him and making them try
on swimsuits before forcing them to engage in sexual
conduct. This pattern is highly probative of the question
of his intent here.89
On appeal, Schaffer argues that the probative value of the videos
was negligible because: (1) the significant age difference between the
girls in the videos and Sierra undermines the idea that Schaffer has a
predilection for girls of a certain age, (2) the existence of a video
showing Sierra trying on swimsuits already puts his practice of
having girls try on swimsuits beyond dispute, and (3) the videos
were not necessary to corroborate Sierra’s testimony because
Schaffer did not put forth a credibility or consent defense.
We agree with the District Court that the videos were highly
probative of Schaffer’s guilt. To prove that Schaffer committed the
crimes charged in the indictment, the government had to establish
that Schaffer intended to engage in sexual acts with Sierra at the
time he asked her to travel to New Jersey. The video evidence
challenged here tended to demonstrate Schaffer’s sexual intent at the
time he contacted Sierra because it reveals a pattern of illegal
conduct that involved having minor girls visit him alone and try on
swimsuits as a precursor to sexual assault. While it is true that
Schaffer did not put forth a consent defense and did not challenge
the credibility of Sierra’s testimony, his defense at trial was
89 Id.
35
predicated on questioning the government’s ability to establish his
intent to entice Sierra into unlawful sexual acts.
Contrary to Schaffer’s arguments on appeal, the fact that the
girls in the videos were slightly younger than Sierra does not
undercut the probative value of the evidence regarding Schaffer’s
guilt in this case. Not only does Section 2422(b) criminalize enticing
all individuals under the age of 18, drawing no distinction between
nine‐, thirteen‐, or fifteen‐year‐old victims,90 but evidence that
Schaffer had a sexual interest in nine‐ and thirteen‐year‐old girls
makes it more likely, not less, that he would have a sexual interest in
the fifteen‐year‐old victim. Furthermore, the existence of video
evidence showing Sierra trying on swimsuits enhances, rather than
diminishes, the probative value of the four challenged videos
because it demonstrates a clear pattern of sexual behavior.
The District Court also concluded that the probative value of
the videos was not substantially outweighed by the danger of unfair
prejudice. It considered the age difference between Sierra and the
two girls in the videos and found that a viewer could not readily
discern that there were any significant differences in age.91 It
concluded also that the conduct in the videos was no more
inflammatory than the conduct alleged in the indictment, namely
90 See ante note 8.
91 Schaffer, 2014 WL 1515799 at *11.
36
nonconsensual sexual acts with a fifteen‐year‐old girl.92 And, it
determined that the government limited the potential for unfair
prejudice by showing the jury only short portions of the videos.93
Schaffer, of course, disagrees. He argues that the prejudicial
effect of the evidence was unfair because: (1) the videos showing his
sexual assaults on young children were too inflammatory, (2) the
videos were graphic and there was no video of his alleged sexual
assault on Sierra, and (3) the District Court instructed the jury that
they could consider the videos for any purpose.
We find no error in the District Court’s conclusion that the
videos did not cause unfair prejudice. First, the conduct portrayed in
the videos was not more inflammatory than the conduct for which
Schaffer was being tried. Rather, all of the sexual conduct was
essentially identical. The fact that the girls in the video were slightly
younger than Sierra does not make his assaults on them more
inflammatory because there were no observable differences in age.
Second, any prejudice produced by the graphic nature of the videos
was minimized by the government limiting the total runtime of the
videos to only fifteen minutes. And third, the District Court’s
evidentiary instruction was legally correct: Rule 413 explicitly
permits a jury to consider evidence of prior sexual assaults for “any
matter to which it is relevant.”
92 Id.
93 Id.
37
In fact, the District Court’s cautionary instructions to the jury,
which it gave both at the time the government introduced the videos
and immediately prior to the commencement of deliberations,
further reduced the risk of unfair prejudice.94 It informed the jurors,
among other things, that Schaffer was not being charged for the
conduct presented in the videos and that “evidence of another
offense on its own is not sufficient to prove the defendant guilty of
the crimes charged in the indictment in this case.”95
In enacting Rule 413, Congress intended to create a
presumption that evidence of prior sexual assaults, such as the video
evidence at issue here, is relevant and probative in prosecutions for
sexual assault.96 As we have held, that presumption does not violate
the Due Process Clause in a particular case so long as a district court
weighs the prejudicial effect of the evidence against its probative
value. Here, the District Court considered the four videos consistent
with the dictates of Rule 413 and, after conducting a Rule 403
analysis, found the videos to be relevant and highly probative of
Schaffer’s intent and not unfairly prejudicial. After careful review of
94 See United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980) (“In
assessing the risk of prejudice against the defendant, the trial court should
carefully consider the likely effectiveness of a cautionary instruction that tries to
limit the juryʹs consideration of the evidence to the purpose for which it is
admissible. Whatever the criticism of such instructions, they remain an accepted
part of our present trial system.” (footnote omitted)).
95 App’x 210.
96 See, e.g., Enjady, 134 F.3d at 1431.
38
the record and bearing in mind the “great deference” accorded to
district courts in resolving evidentiary questions,97 we conclude that
the District Court did not exceed its discretion in admitting the four
videos at trial.
CONCLUSION
To summarize: we hold (1) that the District Court did not err
in denying Schaffer’s motion to suppress because Schaffer was not
in custody during his interview, (2) that Rule 413 does not violate
the Due Process Clause, and (3) that the District Court did not err by
admitting portions of the four videos at trial.
For the reasons set out above, we AFFIRM the District Court’s
judgment of conviction.
97 Quinones, 511 F.3d at 310 (internal quotation mark omitted).
39
United States v. Schaffer
Combined Opinion