RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0281p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> Nos. 19-6363/21-5451/5490
│
v. │
│
GREGORY LEE HRUBY, │
Defendant-Appellant. │
┘
Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.
No. 5:18-cr-00171-1—Gregory F. Van Tatenhove, District Judge.
Decided and Filed: December 8, 2021
Before: MOORE, GRIFFIN, and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Alex Stewart, NASH MARSHALL, PLLC, Lexington, Kentucky, for Appellant.
James T. Chapman, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE,
Lexington, Kentucky, for Appellee.
_________________
OPINION
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GRIFFIN, Circuit Judge.
In most criminal cases, the prosecution cannot argue that a defendant is guilty of the
charged offense because he committed similar acts in the past. But child-molestation cases are
different. Under Federal Rule of Evidence 414(a), a court may admit evidence that a defendant
previously molested a child to show that he is inclined to molest children. Rule 414(a)’s only
express limitation is that the evidence must be offered on a relevant matter.
Nos. 19-6363/21-5451/5490 United States v. Hruby Page 2
Defendant Gregory Lee Hruby asks us to further restrict certain Rule 414(a) evidence.
Before his trial on child-molestation charges, he confessed to committing similar acts of child
molestation. The district court admitted his confession and the jury convicted. On appeal, he
argues that the government should have to corroborate a Rule 414(a) confession before the jury
can consider it. Finding no support for a corroboration requirement in the Federal Rules of
Evidence or elsewhere, we reject this argument. And because the district court did not otherwise
abuse its discretion by admitting Hruby’s statements, we affirm.
I.
The Kentucky Department of Criminal Investigations searches social media applications
to find people soliciting sex from children. During one of these routine investigations, Detective
Heather D’Hondt saw that Hruby, a Texas resident, was advertising himself online as a
“[g]randpa looking for open family.” According to D’Hondt, “[o]pen family is the concept that
parents are sexually active with their children [and] children are sexually active with each other.”
Posing as the mother of two girls under the age of twelve, D’Hondt responded to Hruby’s
advertisement. During the days-long, sexually charged conversation that followed, Hruby made
comments that caused D’Hondt to conclude that he had molested a child. The two ultimately
decided that Hruby would visit D’Hondt’s fictional family and that she would allow him to have
sexual contact with her children.
Hruby flew from Texas to Kentucky to meet D’Hondt’s children, but police officers
arrested him as soon as he landed. After a detective informed him of his Miranda rights, Hruby
admitted to having had “interactions” with a young girl. According to Hruby, one of his friends
“sent” his five-year-old daughter “to bed” with him. Hruby admitted that, for the next seven
years, he molested his friend’s daughter every few months. After the interview, investigators
found child pornography on Hruby’s cell phone.
A federal grand jury indicted Hruby on two counts of crossing state lines with the intent
to engage in a sexual act with a person who has not attained the age of twelve years, in violation
of 18 U.S.C. § 2241(c), and one count of possession of child pornography, in violation of
18 U.S.C. § 2252(a)(4)(B). Before trial, the government notified Hruby and the court that it
Nos. 19-6363/21-5451/5490 United States v. Hruby Page 3
intended to offer Rule 414(a) evidence, specifically Hruby’s messages to D’Hondt regarding his
history of child molestations and his post-arrest confession to molesting his friend’s daughter.
Over Hruby’s objection, the district court held that his statements satisfied Rule 414(a)’s
conditional-relevancy requirement and admitted them into evidence. The court also rejected
Hruby’s argument that the statements should be excluded under Rule 403 because their probative
value was substantially outweighed by the danger of unfair prejudice. After a three-day trial, the
jury convicted Hruby on all charges. Hruby then appealed, arguing that his statements were not
admissible under Rule 414(a) and, even if they were, that the district court should have excluded
them under Rule 403.
II.
“We review the district court’s decision to admit or exclude evidence for an abuse of
discretion,” United States v. Mack, 808 F.3d 1074, 1084 (6th Cir. 2015), and will reverse only if
we are “left with the definite and firm conviction that the district court committed a clear error of
judgment,” United States v. Dixon, 413 F.3d 540, 544 (6th Cir. 2005) (citation, brackets, and
ellipses omitted). “An abuse of discretion occurs when a district court relies on clearly erroneous
findings of fact, improperly applies the law, or uses an erroneous legal standard.” United States
v. Cleveland, 907 F.3d 423, 436 (6th Cir. 2018).
III.
Evidence of a defendant’s prior misdeeds usually cannot be admitted at trial to show his
propensity to commit the charged offense. See Fed. R. Evid. 404(b). But when the crime
charged involves child molestation, Rule 414(a) provides an exception. It says that “[i]n a
criminal case in which a defendant is accused of child molestation, the court may admit evidence
that the defendant committed any other child molestation. The evidence may be considered on
any matter to which it is relevant.” Fed. R. Evid. 414(a). Under the rule’s plain terms then,
evidence that a defendant previously molested a child may be admitted in a criminal case if he is
accused of child molestation and it is offered on a relevant matter.1
1The rule’s definition of “child molestation” sweeps in many crimes, including those listed in 18 U.S.C.
chapter 109A (which includes crossing state lines with intent to have sex with a child, 18 U.S.C. § 2241(c)); those
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Rule 414(a) evidence, like other similar-acts evidence, “is relevant only if the jury can
reasonably conclude that the act occurred and that the defendant was the actor.” Huddleston v.
United States, 485 U.S. 681, 689 (1988); see United States v. Norris, 428 F.3d 907, 913–14 (9th
Cir. 2005). A separate rule, Rule 104(b), governs this conditional-relevance inquiry. It states
that “[w]hen the relevance of evidence depends on whether a fact exists, proof must be
introduced sufficient to support a finding that the fact does exist.” Fed. R. Evid. 104(b). When
examining conditional relevance, the trial court does not decide if the defendant committed the
similar act or even if the similar act occurred. See Huddleston, 485 U.S. at 690. Instead, the
court only “examines all the evidence in the case and decides whether the jury could reasonably
find the conditional fact . . . by a preponderance of the evidence.” Id. (emphasis added).
The district court adhered to this framework here. After correctly stating the standard,
the court reviewed the proposed Rule 414(a) evidence and found that Hruby’s admissions were
“pretty powerful in terms of reaching that preponderance standard in this particular case.”
Accordingly, the court held that the jury could reasonably find that Hruby committed the prior
child molestations and that it was “appropriate to admit that evidence” under Rule 414(a).
Hruby faults the district court for relying solely on his own statements to make this
finding. He contends that Rule 414(a) has a non-textual corroboration requirement when the
proffered evidence is a defendant’s confession. Put differently, he thinks that his own words
were not enough to satisfy Rule 414(a)’s conditional-relevancy requirement and that the
government needed to offer “independent” corroborating evidence. Although some of our cases
have addressed the admission of similar acts that were independently proven (with, for example,
prior convictions, evidence of disciplinary proceedings, or testimony from the alleged victims),
see United States v. Underwood, 859 F.3d 386, 392–94 (6th Cir. 2017); United States v.
LaVictor, 848 F.3d 428, 448–50 (6th Cir. 2017); United States v. Trepanier, 576 F. App’x 531,
534 (6th Cir. 2014); United States v. Sanchez, 440 F. App’x 436, 438–39 (6th Cir. 2011), none
can be read to impose a categorical bar against uncorroborated confessions (as Hruby suggests);
listed in 18 U.S.C. chapter 110 (which includes possession of child pornography, 18 U.S.C. § 2252(a)(4)(B)); and
any other federal or state offense that involves “contact between any part of the defendant’s body . . . and a child’s
genitals” or “contact between the defendant’s genitals . . . and any part of a child’s body.” Fed. R. Evid.
414(d)(2)(A)–(D). Hruby does not contend that his conduct here falls outside this definition.
Nos. 19-6363/21-5451/5490 United States v. Hruby Page 5
they merely allowed certain evidence to be admitted under Rule 414(a) or another similar-acts
rule. We therefore must consider whether Rule 414(a) itself has a corroboration requirement.
We hold that it does not.
Our precedent on another evidentiary rule largely answers this question. A near twin to
Rule 414(a) in structure, text, and purpose, Rule 413(a) 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. The evidence may be considered on any matter to which it
is relevant.” Fed. R. Evid. 413(a). In LaVictor, we addressed and rejected a defendant’s
argument that testimony from his previous girlfriends regarding sexual assaults he committed
against them was improperly admitted because it was “uncorroborated.” 848 F.3d at 449. We
held that “the testimony of the witnesses need not be explicitly corroborated,” because “such a
requirement would run counter to the flexible nature of Rule 104(b), which governs the
admissibility of testimony that is conditionally relevant.” Id.
The only difference between Rules 413(a) and 414(a) is the types of crimes covered
(sexual assaults versus child molestations). We see no reason to treat these rules differently here.
As in LaVictor, grafting a corroboration requirement onto Rule 414(a) would “run counter to the
flexible nature of Rule 104(b).” Id. Relevance—not corroboration—is the only criterion for
admissibility. Id.; see also Fed. R. Evid. 414(a) (“The evidence may be considered on any
matter to which it is relevant.”).
This conclusion aligns with the decision of the only other federal court of appeals that has
squarely considered this issue. In Norris, the Ninth Circuit rejected the same
confession-corroboration argument we confront today, holding that “[u]nder Rule 414(a), the key
to admissibility is relevance, and no independent evidence of the commission of the prior bad act
is required.” 428 F.3d at 913. We see no reason to part ways with our sister circuit on this issue.
Hruby also asks us to apply the “corroboration rule,” which “says that no one may be
convicted of a crime based solely on his uncorroborated confession.” United States v. Brown,
617 F.3d 857, 860 (6th Cir. 2010). But that is not what happened here. The jury did not convict
Hruby of any crime arising out of the child molestations to which he confessed, so the evil
Nos. 19-6363/21-5451/5490 United States v. Hruby Page 6
prevented by the corroboration rule—“errors in convictions based upon untrue confessions
alone,” United States v. Davis, 459 F.2d 167, 170 (6th Cir. 1972) (emphasis added and citation
omitted)—has been avoided.
Hruby concedes that the corroboration rule does not, by its terms, apply to evidentiary
rulings, but argues that its underlying policy favors a Rule 414(a) confession-corroboration
requirement. We disagree. Our main defenses against false confessions are “[d]evelopments in
interrogation law,” such as Miranda and the requirement that confessions be voluntary. Brown,
617 F.3d at 861. Hruby does not argue that these safeguards were violated in his case or that
they were insufficient to preserve his rights. Further, the corroboration rule is an ill fit for Rule
414(a)’s conditional-relevance test, under which Hruby’s statements need only be sufficient to
show that he committed the prior acts, not that he could have been convicted for committing the
prior acts. See Huddleston, 485 U.S. at 690. In all, we see no reason to extend the corroboration
rule here.
That leaves us with Hruby’s fallback argument, which is unrelated to corroboration. He
argues that the district court erred in its conditional-relevance analysis because his statements
could be interpreted as “puffing,” “bragging,” or “otherwise intended to convince the listener of
[his] experience with unlawful activities.” He does not, however, dispute that his statements
could also be interpreted as admitting that he committed prior child molestations. In fact, that is
likely the better interpretation; it is difficult to see why Hruby would brag to police about
molesting a child. Moreover, the district court did not have to find that he committed the acts to
which he confessed. Instead, it only had to conclude that a jury could find, by a preponderance
of the evidence, that he molested his friend’s daughter. See id. Because his statements could be
interpreted as a confession, and given a confession’s probative value, see, e.g., England v. Hart,
970 F.3d 698, 712 (6th Cir. 2020), the court correctly admitted these statements and left the task
of interpreting them to the jury.
Accordingly, the district court’s Rule 414(a) ruling was not an abuse of discretion.
Nos. 19-6363/21-5451/5490 United States v. Hruby Page 7
IV.
Evidence offered under Rule 414(a) is subject to Rule 403, Underwood, 859 F.3d at 393,
which allows district courts to “exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . undue prejudice[.]” Fed. R. Evid. 403. “Broad discretion is given
to district courts in determinations of admissibility based on considerations of relevance and
prejudice, and those decisions will not be lightly overruled.” Dixon, 413 F.3d at 544 (citation
omitted). “In reviewing the trial court’s decision for an abuse of discretion, the appellate court
must view the evidence in the light most favorable to [the government], giving the evidence its
maximum reasonable probative force and its minimum reasonable prejudicial value.” United
States v. Whittington, 455 F.3d 736, 739 (6th Cir. 2006) (citation omitted).
Hruby argues that the district court should have excluded his statements under Rule 403
because they were unduly prejudicial. In his view, his prior acts of child molestations were
“fundamentally dissimilar” from his charged conduct because they involved “the sustained,
hands-on sexual abuse of a minor” whereas “none of [his] crimes of conviction involve actual,
physical abuse of a child.” He also asserts that the jury likely paid undue attention to the Rule
414(a) evidence because it was “so egregious as to inevitably shock the [conscience] of any jury
member.” And because Hruby was “never charged nor convicted of the alleged prior acts,” he
argues that there is a “very great” danger that the jury decided to convict him of his charged
crimes out of a sense of retribution rather than a determination of guilt.
The similarity between the Rule 414(a) conduct and the charged conduct forecloses
Hruby’s Rule 403 challenge. “‘[A]dmissible bad acts evidence need not show incidents identical
to the events charged, so long as they are closely related to the offense’ and ‘are probative of
intent.’” United States v. Lieu, 963 F.3d 122, 129 (D.C. Cir. 2020) (citation omitted). Indeed,
we have held that if the charged conduct and the Rule 414(a) conduct are “sufficiently similar,”
the evidence satisfies Rule 403’s balancing test. Underwood, 859 F.3d at 393 (citation omitted).
The similarity between the two is sufficient here because, in both instances, Hruby arranged with
a parent to have a sexual relationship with their child. His commission of the prior acts was
therefore probative of what he intended to do when he got to Kentucky: start a long-term, family-
like relationship with the two girls and, with their parent’s permission, engage in sexual acts with
Nos. 19-6363/21-5451/5490 United States v. Hruby Page 8
them. These bad acts also countered his argument at trial that he was just “an old man who
would like to be a grandfather.” Because the prior conduct was sufficiently similar to the
charged conduct and indicative of intent, Hruby’s Rule 403 challenge fails. Id. (“[I]f the charged
conduct and the prior Rule 414 conduct are ‘sufficiently similar,’ the prejudicial effect of such
evidence is outweighed by its probative value.”).
“Taking the ‘maximal view of the probative effect of the evidence and a minimal view of
its unfairly prejudicial effect’ and granting the district court ‘very broad’ discretion,” United
States v. Libbey-Tipton, 948 F.3d 694, 705 (6th Cir. 2020) (citations omitted), the district court’s
decision to allow Hruby’s statements under Rule 403 was not an abuse of discretion.
V.
For these reasons, we affirm the district court’s judgment.