United States v. Roberts

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 7/8/96
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. Nos. 95-7158, 95-7168

HOLLIS EARL ROBERTS,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. CR-95-35-S)

Lisa Simotas, Attorney, Department of Justice (John W. Raley, United States
Attorney, Sheldon J. Sperling, Assistant United States Attorney, and Linda A.
Epperley, Assistant United States Attorney, Eastern District of Oklahoma, with
her on the briefs), Washington, D.C., for Plaintiff-Appellant.

Warren F. Bickford IV (Burck Bailey with him on the brief), Fellers, Snider,
Blankenship, Bailey & Tippens, Oklahoma City, OK, for Defendant-Appellee.

Before PORFILIO, BRORBY, and EBEL, Circuit Judges.

PER CURIAM.
 On June 9, 1995, Hollis Earl Roberts, Chief of the Choctaw Nation of

Oklahoma, was indicted on two counts of aggravated sexual abuse in violation of

18 U.S.C. § 2241, one count of sexual abuse in violation of 18 U.S.C. § 2242, and

five counts of abusive sexual contact in violation of 18 U.S.C. § 2244. The

allegations of three women comprise the substance of the indictment against Mr.

Roberts. The district court made three pretrial evidentiary rulings which the

government appeals pursuant to 18 U.S.C. § 3731.

First, the district court determined the new Fed. R. Evid. 413 was

inapplicable because the indictment against Mr. Roberts was filed prior to the

rule’s July 9, 1995 effective date. Second, the court, under Fed. R. Evid. 404(b)

and 403, excluded evidence from nine women not named in the indictment who

allege Mr. Roberts also sexually abused them over the past twenty years. Third,

in a Minute Order, the district court denied the government’s request to present

evidence Mr. Roberts successfully initiated a change in the applicable tribal

statute of limitations by the Choctaw Tribal Council to prevent one of the named

women from bringing a civil suit against him in tribal court. In addition, the

government has filed a petition for a writ of mandamus for this court to order the

district court to rule on another Fed. R. Evid. 404(b) issue concerning additional

testimony from the named women about events not charged in the indictment.

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Finally, the government asks us to exercise our inherent authority to assign a

different district court judge to this case on remand.

We conclude the amended Fed. R. Evid. 413 is inapplicable here. We

believe Congress intended Rule 413 to apply only to those criminal cases not

already pending at the time the Rule became effective. Second, we remand the

Fed. R. Evid. 404(b) issue concerning the nine additional women to the district

court for an appropriate hearing to determine whether the government has

established that Mr. Roberts engaged in a common scheme to abuse sexually

women subject to his authority and whether each woman’s testimony fits this

pattern. Third, we also remand the Fed. R. Evid. 404(b) issue dealing with the

tribal statute of limitations for the court to explain its reasoning in detail. Fourth,

we deny the government’s petition for a writ of mandamus. Fifth, and finally, we

decline to exercise our inherent authority to reassign this case to a different

district court judge on remand. 1

I.

1
In addition, Mr. Roberts has filed two motions to dismiss the
government’s appeals in this case. We have reviewed both motions and conclude
they are without merit.

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 Initially, we must determine whether the new Fed. R. Evid. 413 applies.

The text of the challenged Rule 413 reads as follows:

Rule 413. 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 defendant’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 Government 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 admission 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

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 (5) an attempt or conspiracy to engage in conduct described
in paragraphs (1)-(4).

Congress added Rule 413 to the Federal Rules of Evidence as part of the

1994 Crime Bill. See Violent Crime Control and Law Enforcement Act of 1994,

Pub. L. No. 103-322, Title XXXII, § 320935(a), 108 Stat. 2136 (1994). As is

evident from the text of the Rule, Fed. R. Evid. 413 was designed to create a

“general rule[] of admissibility in sexual assault . . . cases for evidence that the

defendant has committed offenses of the same type on other occasions.” Fed. R.

Evid. 413 historical notes (quoting 140 Cong. Rec. H8991-92 (daily ed. Aug. 21,

1994) (statement of Rep. Molinari)). Rule 413 provides a specific admissibility

standard in sexual assault cases, replacing Fed. R. Evid. 404(b)’s general criteria.

The new rules will supersede in sex offense cases the
restrictive aspects of Federal Rule of Evidence 404(b). In contrast to
Rule 404(b)’s general prohibition of evidence of character or
propensity, the new rules for sex offense cases authorize admission
and consideration of evidence of an uncharged offense for its bearing
“on any matter to which it is relevant.”

Id.

According to the enabling legislation, the amended evidentiary rules were

to "apply to proceedings commenced on or after the effective date of such

amendments." See Pub. L. No. 103-322, Title XXXII, § 320935(e). The effective

date of the amendments was to be determined based on the action taken by the

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Judicial Conference of the United States with respect to recommendations

concerning the proposed amendments. Id. § 320935(c)-(d). After the Violent

Crime Control and Law Enforcement Act was passed on September 13, 1994, the

Judicial Conference was given 150 days to "transmit to Congress a report

containing recommendations" regarding the proposed new rules. Id. § 320935(c).

If the recommendations from the Judicial Conference differed from the proposed

amendments, the new rules were to become effective "150 days after the

transmittal of the recommendations unless otherwise provided by law." Id. §

320935(d)(2). On February 9, 1995, the Judicial Conference transmitted its report

to Congress, in which it proposed alternatives to the amendments. See Fed. R.

Evid. 413 historical notes (discussing conference report). The alternatives

suggested by the Judicial Conference were not accepted by Congress, and thus

Rule 413 became effective 150 days later on July 9, 1995. Id.

Mr. Roberts argues that Rule 413 does not apply because his criminal

prosecution "commenced" when he was indicted on June 9, 1995--one month prior

to the effective date of Rule 413. The government, on the other hand, argues that

Rule 413 is applicable because Mr. Roberts' upcoming trial is itself a

"proceeding" which will be "commenced" after Rule 413's effective date. Thus,

the issue is whether the phrase "proceedings commenced" refers narrowly, as the

district court held, to the single commencement of the overall prosecution by the

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filing of the indictment, or whether it refers more broadly to the commencement

of each of the various stages (i.e., "proceedings") that occur during the

prosecution, such as a trial.

We review the district court’s legal interpretation of the effective date

provision for Fed. R. Evid. 413 de novo. United States v. Diaz, 989 F.2d 391,

392 (10th Cir. 1993); United States v. Maltais, 961 F.2d 1485, 1486 (10th Cir.

1992). As in all statutory interpretation cases, “the beginning point must be the

language of the statute.” Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

469, 475 (1992); FDIC v. Canfield, 967 F.2d 443, 445 (10th Cir.) (en banc), cert.

dismissed, 506 U.S. 993 (1992). Only if the statutory language is ambiguous

should a court turn to legislative history as an aid in determining the statute’s

meaning. O’Connor v. United States Dep't of Energy, 942 F.2d 771, 773 (10th

Cir. 1991).

Both parties agree the crucial phrase in the statute is the meaning of the

term “proceedings.” Because Congress did not define this term, its common and

ordinary usage may be obtained by reference to a dictionary. Black’s Law

Dictionary defines “proceedings” as:

The word may be used synonymously with “action” or “suit” to
describe the entire course of an action at law or suit in equity from
the issuance of the writ or filing of the complaint until the entry of a
final judgment, or may be used to describe any act done by authority
of a court of law and every step required to be taken in any cause by

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 either party. The proceedings of a suit embrace all matters that occur
in its progress judicially.

Term “proceeding” may refer not only to a complete remedy
but also to a mere procedural step that is part of a larger action or
special proceeding.

Black’s Law Dictionary 1204 (6th ed. 1990) (citations omitted). Similarly,

Webster’s defines “proceedings” as: “The course of procedure in a judicial action

or in a suit in litigation: legal action; a particular action at law or case in

litigation.” Webster’s Third New International Dictionary 1807 (1993). Quite

obviously, these dictionary definitions fail to clarify the issue. Both the

government’s and Mr. Roberts’ interpretation of the term fall within the common

usage and meaning of the word. “Proceedings” may be used either to refer to a

legal action or case in its entirety, or to any incremental stage in that same legal

action or case. Because the plain meaning of the statute does not resolve our

interpretative dilemma, we must proceed to other methods of statutory

interpretation.

Both the government and Mr. Roberts direct our attention to prior cases

purporting to define the term "proceedings." Not surprisingly, given the

conflicting dictionary definitions of the word, precedent exists to buttress the

positions of both parties. The government, for example, cites a number of cases

in which courts have implied that the word "proceedings" refers to all interim

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steps in a criminal prosecution from indictment to judgment. See, e.g., Hill v.

Martin, 296 U.S. 393, 403 (1935) (noting that the term "is comprehensive. It

includes all steps taken or which may be taken . . . from the institution to the

close of the final process"); United States v. Browning, Inc., 572 F.2d 720, 724

(10th Cir.) ("[T]he term 'proceeding' is not, as one might be inclined to believe,

limited to something in the nature of a trial."), cert. denied, 439 U.S. 822 (1978). 2

Similarly, Mr. Roberts invokes a number of cases suggesting that a "proceeding

commenced" refers to an entire case, beginning with the indictment or formal

charge. See, e.g., Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion)

(stating that criminal proceedings are generally initiated by "formal charge,

preliminary hearing, indictment, information, or arraignment"); United States v.

2
The government also cites a number of other federal statutes and rules
which draw at least a linguistic distinction between criminal "cases" and criminal
"proceedings." See, e.g., Fed. R. Evid. 1101(b) ("These rules apply generally to
civil actions and proceedings, . . . [and] to criminal cases and proceedings. . . .").
In addition, the government points out that although Congress used the phrase
"proceedings" in Rule 413's enabling legislation, it used the phrase "criminal
case" in the text of the Rule. In the government's view, this choice of words
suggests that Congress meant to refer to something other than an entire criminal
"case" when it used the broader term "proceedings." See City of Chicago v.
Environmental Defense Fund, 114 S. Ct. 1588, 1593 (1994) ("[I]t is generally
presumed that Congress acts intentionally and purposely when it includes
particular language in one section of a statute but omits it in another.") (internal
quotation marks omitted, alteration in original).

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Brian N., 900 F.2d 218, 223 ("Proceedings . . . commence with the filing of the

information.").

We acknowledge there is strong evidence pointing both ways as to the

intent of Congress in making Fed. R. Evid. 413 applicable to "proceedings

commenced." However, we find more persuasive the argument that criminal

"proceedings commence[]" when the defendant is charged, i.e., when the

indictment or information is filed. We find support for our position in a

comparison of the implementing language for the new rules of evidence with the

effective date language from the original Federal Rules of Evidence enacted in

1975. The 1975 implementing language provided:

These rules apply to actions, cases, and proceedings brought after the
rules take effect. These rules also apply to further procedure in
actions, cases, and proceedings then pending, except to the extent
that application of the rules would not be feasible, or would work
injustice, in which event former evidentiary principles apply.

Pub. L. No. 93-595, § 1, 88 Stat. 1926 (1975) (emphasis added). The 1975 rules

explicitly provided for their applicability to pending cases while the 1994 rules do

not. In addition, since 1975, the Supreme Court has used identical language in

almost every instance when amending any of the various Federal Rules:

That the foregoing amendments to the Federal Rules of Civil
Procedure shall take effect on December 1, 1993, and shall govern all
proceedings in civil cases thereafter commenced and, insofar as just
and practicable, all proceedings in civil cases then pending.

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Order of the United States Supreme Court Adopting and Amending the

Federal Rules of Civil Procedure (April 22, 1993), reprinted in 113 S.Ct. at 478

(introductory pages) (emphasis added). Because the proposed Federal Rules must

be transmitted to Congress when prescribed by the Supreme Court, see 28 U.S.C.

§§ 2072(a), 2074(a), and almost always contain this standard effective date

language, we may presume Congress was aware of how to make amended rules

applicable to pending cases. 3 Moreover, courts interpreting these effective date

provisos consistently have held that when it is “just and practicable,” new Federal

Rules may apply to a particular pending case. See, e.g., United States v. Platero,

72 F.3d 806, 811-13 (10th Cir. 1995) (Federal Rules of Evidence); Espinoza v.

United States, 52 F.3d 838, 840-41 (10th Cir. 1995) (Federal Rules of Civil

Procedure); Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1385-86 (10th Cir. 1994)

(Federal Rules of Appellate Procedure); Matter of Search of Premises Known As

6455 South Yosemite, Englewood, Colo., 897 F.2d 1549, 1553-54 (10th Cir.

1990) (Federal Rules of Criminal Procedure). Because Congress was aware of

3
We also note that when the Supreme Court prescribes a new rule of
evidence or procedure under the Rules Enabling Act, 28 U.S.C. § 2072, Congress
has authorized the Court to "fix the extent such rule shall apply to proceedings
then pending," 28 U.S.C. § 2074(a). Congress' use of the phrase "proceedings
then pending" in the precise statutory context we are now considering--i.e.,
retroactive application of new rules of evidence--is a strong indication that
Congress would have used the same phrase in Rule 413's enabling legislation if it
had intended the Rule to apply to criminal cases in midstream.

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how to make amended rules applicable to "proceedings then pending," we believe

Congress' failure to do so with respect to Fed. R. Evid. 413 indicates that the rule

was not intended to apply to criminal cases already pending as of the rule's

effective date. We therefore affirm the district court's ruling that Rule 413 does

not apply in this case.

II.

Additionally, the government challenges the district court’s exclusion of

evidence of Mr. Roberts’ commission of similar sexual abuse against nine women

not named in the indictment. Pursuant to Fed. R. Evid. 404(b) the government

sought to introduce evidence from these nine additional women. The district

court excluded this evidence on the ground its potential prejudice substantially

outweighed its probative value after conducting the required balancing inquiry of

Fed. R. Evid. 403.

On appeal, the government stresses Rule 404(b) is a rule of inclusion. The

government maintains the court erred in failing to explain in detail the rationale

behind its conclusion the evidence’s prejudicial impact outweighed its probative

value. Instead, the court improperly focused on its perception of the

government’s unstated motivation for introducing the evidence which the court

identified as an attempt to demonstrate Roberts acted in conformity with the other

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acts evidence. Further, the government argues the court failed to account for the

highly probative nature of the evidence to establish Mr. Roberts’ intent to commit

the crimes for which he faced charges by the longstanding pattern of his sexual

abuse against women.

In response, Mr. Roberts claims the district court correctly excluded the

evidence and offered sufficient justification in concluding the evidence was

unduly prejudicial to be admissible at trial. He also argues the government’s

motivation in introducing the evidence is a relevant consideration under Rule

404(b) since the rule prohibits other acts evidence from being introduced solely to

prove a defendant’s criminal disposition.

We review a decision to admit or exclude evidence under Fed. R. Evid.

404(b) for an abuse of discretion. United States v. Deninno, 29 F.3d 572, 577

(10th Cir. 1994), cert. denied, 115 S.Ct. 1117 (1995); United States v. Patterson,

20 F.3d 809, 813 (10th Cir.), cert. denied, 115 S.Ct. 128 (1994). Rule 404(b)

prohibits the government from offering evidence of other crimes, wrongs, or acts

to demonstrate the bad character, moral turpitude, or criminal disposition of a

defendant to prove he acted in conformity with the prior acts or events. However,

the rule permits the introduction of such evidence for other approved purposes,

including to demonstrate a defendant’s identity or intent to commit a crime by

demonstrating a common scheme or plan. United States v. McGuire, 27 F.3d

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457, 461 (10th Cir. 1994). The Supreme Court outlined the four procedural

safeguards to govern admission decisions under Rule 404(b) in Huddleston v.

United States, 485 U.S. 681 (1988). We have listed these four requirements as

follows:

(1) the evidence must be offered for a proper purpose; (2) the
evidence must be relevant; (3) the trial court must make a Rule 403
determination of whether the probative value of the similar acts is
substantially outweighed by its potential for unfair prejudice; and (4)
pursuant to Fed. R. Evid. 105, the trial court shall, upon request,
instruct the jury that evidence of similar acts is to be considered only
for the proper purpose for which it was admitted.

United States v. Jefferson, 925 F.2d 1242, 1258 (10th Cir.), cert. denied, 502

U.S. 884 (1991); see also Huddleston, 485 U.S. at 691-92. Huddleston adopted

an “inclusive approach” to admitting evidence under this rule. United States v.

Record, 873 F.2d 1363, 1375 (10th Cir. 1989).

The district court properly applied Huddleston in this case. It concluded

the first, second, and fourth requirements had been met but the evidence must be

excluded under Rule 403, the third requirement. The court reasoned:

The government has failed, however, to convince this court as
to the third element -- that the probative value of the proposed “other
acts” testimony is not substantially outweighed by its potential for
unfair prejudice. While the court does agree that the testimony of
other women as to Roberts’s allegedly sexually abusive behavior
directed towards them does have some limited probative value as to
the question of Roberts’s intent to sexually abuse [the three women
named in the indictment], the testimony will almost certainly result in
Roberts being denied a fair opportunity to defend the specific

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 charges set forth in the indictment. The limited probative value of
this proposed “other acts” testimony is significantly overshadowed by
the proclivity of the testimony to prove only Roberts’s criminal
disposition. It is apparent to the court that, contrary to the
government’s assertions otherwise, the principle reason for the
government’s introduction of the proposed “other acts” testimony is
to demonstrate a propensity on the part of Roberts to act in a similar
fashion, i.e., with the same criminal character suggested by the
“other acts”, with respect to the pending charges. Thus, the
government’s attempt to adversely reflect on Roberts’s character to
show that he acted in conformity with his previous bad acts will not
be countenanced.

(emphasis in original; alteration added).

We give substantial deference to a district court’s Rule 403 decisions.

Patterson, 20 F.3d at 814; United States v. Easter, 981 F.2d 1549, 1554 (10th

Cir. 1992), cert. denied, 508 U.S. 953 (1993). This deference is due to the trial

court’s suitability for the task given the judge’s familiarity with the full array of

the evidence. Joseph v. Terminix Int’l Co., 17 F.3d 1282, 1284 (10th Cir.

1994); United States v. Keys, 899 F.2d 983, 987 (10th Cir.), cert. denied, 498

U.S. 858 (1990). “Rule 403 gives the district court discretion to exclude relevant

evidence if its probative value is substantially outweighed by the danger of,

among other things, unfair prejudice, confusion of the issues, or misleading the

jury.” United States v. Galloway, 937 F.2d 542, 548 (10th Cir. 1991). “Evidence

is unfairly prejudicial if it ‘makes a conviction more likely because it provokes an

emotional response in the jury or otherwise tends to affect adversely the jury’s

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attitude toward the defendant wholly apart from its judgment as to his guilt or

innocence of the crime charged.’” United States v. Yazzie, 59 F.3d 807, 811 (9th

Cir. 1995) (quoting United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir.

1987)). However, despite the discretion afforded the district court, we have

previously cautioned, “Rule 403 is an extraordinary remedy and should be used

sparingly.” Wheeler v. John Deere Co., 862 F.2d 1404, 1408 (10th Cir. 1988);

K-B Trucking Co. v. Riss Int’l Corp., 763 F.2d 1148, 1155 (10th Cir. 1985).

We share the government’s concern the district court failed to analyze the

evidence from the nine women in sufficient detail. Initially, in its Rule 404(b)

notice the government informed Mr. Roberts it intended to introduce Rule 404(b)

evidence for all of the approved purposes outlined in the rule. In particular,

however, the government also noted, “such evidence will be introduced to show a

pattern of verbal and physical conduct and behavior by the defendant, . . . directed

toward the victims . . . during a time when said victims . . . were employed by the

Choctaw Nation of Oklahoma . . . .” Moreover, in response to Mr. Roberts'

motion in limine, the government stated the evidence would be used to show "the

defendant's knowledge that young female employees are easy to victimize without

fear of reprisal," and to establish the "defendant's opportunity, in that he used his

position as Chief" to take advantage of women subject to his authority. The

district court did not analyze the individual evidence concerning each of the nine

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women to determine whether the government had presented sufficient facts to

demonstrate Mr. Roberts engaged in a common scheme to abuse sexually women

working under his authority. Instead, the court focused exclusively on whether

the evidence demonstrated the defendant’s intent to abuse sexually the three

women named in the indictment.

Our review of the record indicates the government clearly raised the issue

of Mr. Roberts’ common scheme of sexually abusive behavior in all of its Rule

404(b) motions and at the Rule 404(b) hearing. Yet, the court failed to consider

and rule upon what we believe was the government’s strongest rationale for

introducing this evidence at trial. This omission was error.

Because our review of this evidence in its present posture indicates the

plausibility that Mr. Roberts’ sexual harassment and abuse of all twelve women

involved in this case was part of a common plan, we believe the district court

should have considered the government’s proffer in that context. Unfortunately,

the government offers limited evidence concerning the nine women’s probable

testimony at trial. The record on appeal is simply insufficient for us to

definitively determine whether it sustains the government’s hypothesis. The

government must produce additional information about the details of each of the

nine women’s proposed testimony before a firm conclusion on this issue is

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possible. The district court must make this determination in the first instance on

remand after holding an appropriate pretrial hearing.

We appreciate and understand the district court’s legitimate concern with

the overall potential prejudice of the evidence in question. We recognize and do

not minimize the potential for the cumulative impact of the Rule 404(b) evidence

to overwhelm the crimes for which Mr. Roberts has been indicted and will be

tried. However, we believe the district court must analyze each of the nine

women’s proposed testimony and evaluate it on its individual merit before making

the ultimate decision whether to exclude this evidence under Rule 403. The

government’s theory of a common scheme on Mr. Roberts' part sexually to harass

and abuse females under his authority requires this kind of attention rather than

an all or nothing determination of whether the government’s Rule 404(b) evidence

is admissible.

Nonetheless, this holding does not portend a requirement that district courts

conduct similar hearings in all Fed. R. Evid. 404(b) cases involving the

government’s attempt to establish the defendant's common scheme or plan. The

nature of the evidence relied upon by the prosecution will dictate how the issue

must be resolved. Under the unique and specific circumstances present here,

however, we believe a detailed investigation of the evidence is appropriate

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because the government failed to provide the district court or this court with a

sufficiently detailed record to effect an appropriate resolution of the issue.

Finally, the government takes issue with the district court’s reference to the

government’s improper motivation for seeking to introduce this Rule 404(b)

evidence. We agree with the government that its motives are irrelevant to a

proper analysis under Rule 404(b) and Huddleston. However, we also believe the

district court’s comment was an isolated reference which did not drive its

decision. Instead, the court’s resolution was based on its substantive legal

determination the potential prejudice of the evidence substantially outweighed its

probative value. As a result, while the court’s reference was intemperate, we do

not believe it was determinative.

III.

Next, the government appeals the district court’s decision not to allow it to

introduce evidence pursuant to Fed. R. Evid. 404(b) that Mr. Roberts initiated the

Choctaw Tribal Council’s decision to shorten the applicable tribal statute of

limitations for filing civil claims from twelve months to six months. As a result

of this change, the government argues the civil lawsuit instituted by one alleged

victim against Mr. Roberts for sexual assault was rendered untimely. The

government asserts this incident demonstrates Mr. Roberts’ consciousness of guilt

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making it relevant evidence for his trial. The district court ruled on this issue in a

minute order which, without discussion, found the “proposed evidence regarding

the shortening of the Statute of Limitations to be inadmissible.”

We were confronted with a similar disposition by minute order in Olcott v.

Delaware Flood Co., 76 F.3d 1538, 1559 (10th Cir. 1996). In Olcott, we noted,

“[t]he district court’s summary disposition of this issue renders it impossible for

us to review the propriety of its decision.” Id. We face an identical dilemma in

this case. Without any reasoned elaboration by the district court we have no way

of understanding the basis of its decision to exclude this evidence. As an

appellate court, we are in no position to speculate about the possible

considerations which might have informed the district court’s judgment. Instead,

we require an on the record decision by the court explaining its reasoning in

detail. Accordingly, we remand this issue to the district court for it to reveal why

it excluded the government’s evidence concerning the shortening of the statute of

limitations.

IV.

Further, the government requests us to issue a writ of mandamus directing

the district court to rule on the admissibility of the Fed. R. Evid. 404(b) evidence

from the three women named in the indictment. In ruling on the admissibility of

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the government’s Rule 404(b) evidence generally, the district court explicitly

declined to address this issue, explaining in a footnote:

As previously noted, the government apparently also intends to
introduce Rule 404(b) testimony from [the three women named in the
indictment]. Because the court cannot at this stage of the proceedings
determine what that testimony may be, the court reserves ruling on
any Rule 404(b) testimony from [them] until an appropriate objection
is made at trial.

The government raises two points in support of its application for a writ of

mandamus. First, it argues the district court was faced with identical evidence

concerning the proposed Rule 404(b) testimony of these women as it had

regarding the nine additional women. As a result, it is illogical for the court to

conclude it could not yet rule on this evidentiary issue since it was able to rule on

the admissibility of the other Rule 404(b) evidence. A simple comparison

between the FBI reports and the indictment would reveal the dates and locations

of the events Mr. Roberts was charged with, and those extrinsic events comprising

the Rule 404(b) evidence. Second, the government maintains a writ of mandamus

is appropriate because the district court’s failure to rule on this issue precludes

the government from appealing pursuant to 18 U.S.C. § 3731. And once Mr.

Roberts’ trial has begun and jeopardy has attached, the government will be unable

to appeal from any adverse evidentiary ruling.

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 In response, Mr. Roberts argues a writ of mandamus should not issue. He

contends allowing the government to seek a writ of mandamus in this instance

will open the floodgates for an alternative remedy where the government fears an

adverse evidentiary ruling at trial. Mandamus was not designed to be a second

avenue of appeal for the government in addition to 18 U.S.C. § 3731.

Mandamus is an extraordinary remedy. Allied Chemical Corp. v. Daiflon,

Inc., 449 U.S. 33, 35 (1980) (per curiam). The Supreme Court has long

maintained, “[t]he traditional use of the writ in aid of appellate jurisdiction both

at common law and in the federal courts has been to confine an inferior court to a

lawful exercise of its prescribed jurisdiction or to compel it to exercise its

authority when it has a duty to do so.” Mallard v. United States District Court,

490 U.S. 296, 308 (1989) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S.

21, 26 (1943)). The petitioner must demonstrate its right to a writ of mandamus

is clear and indisputable. Kaiser Steel Corp. v. Frates, 911 F.2d 380, 387 (10th

Cir. 1990). Mandamus cannot be used as a substitute for an appeal, so the

availability of review by an interlocutory appeal decreases the rationale for

granting mandamus relief. Workman v. Jordan, 958 F.2d 332, 334 (10th Cir.

1992).

We have identified the following five “nonconclusive guidelines” to

determine when a writ of mandamus should issue: (1) the petitioner seeking the

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writ has no other adequate means to secure the relief desired; (2) the petitioning

party will be damaged or prejudiced in a way not correctable on appeal; (3) the

district court’s order constitutes an abuse of discretion; (4) the court’s order

represents an often repeated error and manifests a persistent disregard of federal

rules; and (5) the district court’s order raises new and important problems or legal

issues of first impression. Pacificare of Oklahoma, Inc. v. Burrage, 59 F.3d

151, 153 (10th Cir. 1995); Kaiser Steel, 911 F.2d at 387; Dalton v. United States

(In re Dalton), 733 F.2d 710, 717 (10th Cir. 1984), cert. dismissed, 469 U.S.

1185 (1985).

We believe a writ of mandamus is inappropriate and unwarranted under the

circumstances of the present case. Essentially, the government’s petition asks us

to allow it to use a writ of mandamus to expand the scope of its limited appeal

rights pursuant to 18 U.S.C. § 3731. We are unpersuaded this case presents the

appropriate vehicle to do so.

We begin our analysis with the statute itself. In enacting 18 U.S.C. § 3731,

Congress granted the government a limited right of appeal in criminal cases. 4 The

4
18 U.S.C. § 3731 states:

§ 3731. Appeal by the United States

In a criminal case an appeal by the United States shall lie to a
(continued...)

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Supreme Court has held § 3731 allows government appeals in criminal cases

whenever constitutionally permitted by the Double Jeopardy Clause of the Fifth

Amendment. United States v. Zabawa, 39 F.3d 279, 282 (10th Cir. 1994) (citing

4
(...continued)
court of appeals from a decision, judgment, or order of a district
court dismissing an indictment or information or granting a new trial
after verdict or judgment, as to any one or more counts, except that
no appeal shall lie where the double jeopardy clause of the United
States Constitution prohibits further prosecution.

An appeal by the United States shall lie to a court of appeals
from a decision or order of a district courts suppressing or excluding
evidence or requiring the return of seized property in a criminal
proceeding, not made after the defendant has been put in jeopardy
and before the verdict or finding on an indictment or information, if
the United States attorney certifies to the district court that the
appeal is not taken for purpose of delay and that the evidence is a
substantial proof of a fact material in the proceeding.

An appeal by the United States shall lie to a court of appeals
from a decision or order, entered by a district court of the United
States, granting the release of a person charged with or convicted of
an offense, or denying the motion for revocation of, or modification
of the conditions of, a decision or order granting release.

The appeal in all such cases shall be taken within thirty days
after the decision, judgment or order has been rendered and shall be
diligently prosecuted.

Pending the prosecution and determination of the appeal in the
foregoing instances, the defendant shall be released in accordance
with chapter 207 of this title.

The provisions of this section shall be liberally construed to
effectuate its purposes.

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United States v. Wilson, 420 U.S. 332, 337 (1975)). Recently, in United States

v. Carrillo-Bernal, 58 F.3d 1490 (10th Cir. 1995), we surveyed in detail the

historical evolution of the government’s right to lodge appeals in criminal cases.

Id. at 1494-97. Specifically, Carrillo-Bernal involved the government’s failure

to file the requisite certification under § 3731, but we believe its discussion of the

historical development leading to the contemporary § 3731 has equal resonance

here. Before the turn of this century, government appeals in criminal cases were

considered verboten. Since then, Congress has progressively loosened the

government’s ability to receive appellate review of unfavorable district court

decisions in criminal matters. Id. at 1494-95. However, two general rules have

survived this historical evolution: the government may only initiate criminal

appeals based on specific statutory authority; and there is a presumption against

government criminal appeals. Id. After summarizing the relevant judicial and

congressional developments during the present century, we concluded:

In summary, this somewhat extended historical excursion has
illuminated the exceptional nature of governmental appeals in
criminal cases--proceedings that have been curbed by the courts and
carefully circumscribed by Congress out of a desire (among other
reasons) to safeguard individuals from the special hazards inherent in
prolonged litigation with the sovereign.

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Id. at 1497. See generally United States v. Scott, 437 U.S. 82, 84-7 (1978)

(summarizing the historical development of the government’s right to appeal in

criminal cases).

The central problem with the government’s position is its limited right to

appeal pursuant to 18 U.S.C. § 3731. Were we to accede to the government’s

request, we would be expanding the government’s right to bring interlocutory

criminal appeals beyond the terms of the statute. We do not believe mandamus

provides the appropriate avenue for such an expansion. Given the longstanding

interest of Congress in the reach of the government’s power in this area, the

preferable alternative is for the government to petition the legislature to remedy

any perceived problems with the existing statutory scheme. Indeed, Congress has

seen fit to amend this statute on several occasions, and if its wisdom so dictates,

will do so again in the future in response to the government’s entreaties.

Further, the cases which have used mandamus to direct a district court to

make an evidentiary ruling have arisen in a different factual context. The one

circuit which has granted a writ of mandamus in a case involving a pretrial

evidentiary ruling has done so on the occasion of a second trial where the trial

court had already heard all the evidence against the defendant. United States v.

Barletta, 644 F.2d 50, 52-3 (1st Cir. 1981); cf. United States v. Layton, 720 F.2d

548, 553 (9th Cir. 1983) (approving of the district court's decision to issue an

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evidentiary ruling before trial, because "[t]here has already been a trial, and the

government and defense plan to use the same evidence in the second trial"), cert.

denied, 465 U.S. 1069 (1984). The pretrial posture of this case presents an

altogether different factual scenario. The government has not cited, and we have

not discovered, any case granting a writ of mandamus to compel a district court to

make an evidentiary ruling in this particular context.

Finally, the government contends the district court’s inability to rule on the

Rule 404(b) evidence from the three women is illogical given its determination of

the other Rule 404(b) issue. Our remand for an appropriate hearing on the other

Rule 404(b) evidence eliminates this disparate treatment. Moreover, we do not

believe it was an abuse of discretion for the district court to await a fuller

understanding of these three women’s testimony before ruling. In particular, the

court’s ability to make a Rule 403 ruling on whether the evidence will confuse the

jury necessitates a detailed comprehension of the substance of both the women’s

testimony concerning the events of the indictment and the Rule 404(b) incidents.

In a prosecutor’s perfect world, district courts would make all their evidentiary

rulings prior to trial to enable the government to appeal pursuant to 18 U.S.C. §

3731. However, pretrial evidentiary rulings are neither always advisable nor even

possible. We hold the district court’s refusal to rule on this Rule 404(b) issue

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was appropriate under the circumstances. 5 Accordingly, we deny the

government’s petition for a writ of mandamus.

V.

Finally, the government argues the presiding judge has exhibited a personal

bias and an undisguised hostility to both the prosecution as a whole and the

individual government attorneys warranting the reassignment of the case to

another judge on remand. Principally, the government focuses on several out-of-

court comments the judge made to United States Attorney John W. Raley and

Assistant United States Attorney Sheldon J. Sperling. 6 The government also cites

5
Although mandamus is an extraordinary remedy, our holding does not
mean that a district court may always defer evidentiary rulings until trial. For
example, when it is clear from the record that the district court has deferred its
decision for the purpose of insulating its ruling from an appeal by the
government, we have the authority to intervene to ensure that the government's
"right to appeal is [not] adversely affected," Fed. R. Crim. P. 12(e). Cf. United
States v. Appawoo, 553 F.2d 1242, 1244 (10th Cir. 1977) (disapproving of "the
practice of this trial judge to hear pretrial motions after the jury has been sworn,"
and noting that "there are references in the records to show that this is done to
prevent appeals by the Government of rulings on such motions").
6
The government has filed a motion to supplement the record with an
affidavit of United States Attorney John W. Raley summarizing the presiding
judge’s comments. We have examined Mr. Raley’s affidavit, but our disposition
of the government’s request to reassign the case on remand renders this motion
moot.

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several of the judge’s substantive and procedural rulings in this case as further

evidence of his hostility and personal bias.

In O’Rourke v. City of Norman, 875 F.2d 1465 (10th Cir.), cert. denied,

493 U.S. 918 (1989), we discussed the circumstances under which we could

exercise our inherent authority to reassign a case to a different district court judge

on remand. We stated:

Ordinarily 28 U.S.C. § 144 and § 455 are invoked at the district court
level to effectuate recusal. However, these statutory provisions are
not the exclusive route for disqualification. The appellate court’s
authority to reassign exists apart from the judicial disqualification
statutes. However, absent proof of personal bias, we remand to a
new judge only under extreme circumstances.

Id. at 1475 (citations omitted). Since O’Rourke, this court has not readily

invoked its authority to reassign judges. In Women’s Health Care Services, P.A.

v. Operation Rescue, Nat’l, 24 F.3d 107, 110 (10th Cir. 1994) (per curiam), we

reassigned the case from the judge presiding in a civil case involving an

injunction against Operation Rescue for its protests in front of Wichita, Kansas,

abortion clinics during the summer of 1991. Our reassignment occurred after we

earlier determined the judge abused his discretion by not recusing himself in an

earlier related criminal case after his appearance on the ABC news program

Nightline during the protests to discuss his injunction and its violation by

Operation Rescue. Id.; United States v. Cooley, 1 F.3d 985, 995 (10th Cir.

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1993). Similarly, in Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996), we

reassigned the presiding judge from a 42 U.S.C. § 1983 prisoner lawsuit. Id. at

1449-50. In Mitchell, the judge expressed profound and repeated hostility to Mr.

Mitchell, his Eighth Amendment claim, and his counsel. We held a reassignment

on remand was appropriate despite our conclusion the judge harbored no personal

bias nor acted improperly. Id. at 1450.

Our extreme reluctance to exercise our inherent authority to reassign a

district court judge on remand is not accidental. We are unwilling to do so

because of the extraordinary nature of this remedy. Two concerns animate our

reassignment decisions. First, as an appellate court, we must always recognize

our basic and primary duty to ensure the availability of a fair tribunal and judicial

process for all litigants including the government. Id. at 1450; In re Murchison,

349 U.S. 133, 136 (1955). Second, “[w]e are also mindful that ‘charges of

misconduct or prejudice leveled at trial judges ‘should not be lightly made and,

once made, should not be casually treated by a reviewing court.’” Mitchell, 80

F.3d at 1450 (quoting United States v. Gigax, 605 F.2d 507, 510 (10th Cir. 1979)

(quoting United States v. Cardall, 550 F.2d 604, 606 (10th Cir. 1976), cert.

denied, 434 U.S. 841 (1977))).

We believe these competing concerns can be best satisfied by the rule a

party should only invoke our inherent authority to reassign a district judge in the

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most unusual and exceptional circumstances. In most cases, the appropriate

procedure will be to file a motion for recusal before the district court pursuant to

28 U.S.C. § 144 or § 455. This procedure will still allow us to review a district

court’s denial of a recusal motion since the established law of this circuit

provides mandamus is the appropriate vehicle to challenge such rulings. Nichols

v. Alley, 71 F.3d 347, 350 (10th Cir. 1995) (per curiam); Cooley, 1 F.3d at 996 n.

9 (collecting and cataloguing various courts of appeals cases).

Applying this standard, we conclude the government has failed to

demonstrate the extraordinary, exceptional, or unusual nature of this case

justifying the exercise of our inherent authority. Our review of the record on

appeal reveals no reason why the government could not file a motion for recusal

before the district court in the first instance. Under the totality of circumstances

presented, we decline to exercise our inherent authority to reassign this case to a

different district court judge on remand.

VI.

The district court’s orders are AFFIRMED IN PART, REVERSED IN

PART, and REMANDED for further proceedings consistent with this opinion.

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95-7158, 95-7169, United States v. Roberts

PORFILIO, Circuit Judge, Specially Concurring.

Because I am not persuaded the intent of Congress is as clearly expressed

as the court concludes in Part I, I can only concur in the results arrived at in that

section of the opinion. My reading of all the interpretive aids available to us

leaves me with a sense that as employed in Rule 413, the meaning of the word

“proceeding” is totally ambiguous. Every argument raised by the parties, and

every interpretation they offer, is equally sensible, and I cannot find one more

persuasive than the other. Thus, because there has to be an answer to this

dilemma, I would grasp at the reasoning behind the Rule of Lenity and interpret

the word in a manner that benefits the defendant. The result would be the same as

that reached by the court, so I write here only to express my belief the court has

reached the right decision, but the means it employed to do so are not as

satisfactory to me as they are to the majority. In all other respects, I join in the

court’s opinion.

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