United States v. George Mandoka , 869 F.3d 448 ( 2017 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0196p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 16-2376
v. │
│
│
GEORGE HOWARD MANDOKA, │
Defendant-Appellant. │
│
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 1:15-cr-20418-1—Thomas L. Ludington, District Judge.
Argued: August 3, 2017
Decided and Filed: August 24, 2017
Before: SILER, CLAY, and WHITE, Circuit Judges.
_________________
COUNSEL
ARGUED: Stevens J. Jacobs, JACOBS LAW OFFICE, Bay City, Michigan, for Appellant.
Roy Kranz, UNITED STATES ATTORNEY’S OFFICE, Bay City, Michigan, for Appellee. ON
BRIEF: Stevens J. Jacobs, JACOBS LAW OFFICE, Bay City, Michigan, for Appellant. Roy
Kranz, UNITED STATES ATTORNEY’S OFFICE, Bay City, Michigan, for Appellee.
_________________
OPINION
_________________
CLAY, Circuit Judge. Defendant George Howard Mandoka (“Defendant”) appeals from
the judgment entered by the district court on September 27, 2016, sentencing him to concurrent
terms of: (i) life in prison for three counts of aggravated sexual abuse, pursuant to
No. 16-2376 United States v. Mandoka Page 2
18 U.S.C. § 2241(c), one count of sexual abuse, pursuant to 18 U.S.C. § 2242(2), and one count
of abusive sexual contact, pursuant to 18 U.S.C. § 2244(a)(2), (5); (ii) fifteen years in prison for
two counts of sexual abuse of a minor, pursuant to 18 U.S.C. § 2243(a); and (iii) three years in
prison for one count of abusive sexual contact, pursuant to 18 U.S.C. § 2244(a)(2), (5). In brief,
Defendant was convicted of repeatedly sexually abusing his step-daughter and his niece over a
period of years. He argues that the district court erred in admitting evidence during his trial:
(i) of his past sexual assaults pursuant to Federal Rules of Evidence 413 and 403; and (ii) that his
victims witnessed him physically assault his wife pursuant to Federal Rules of Evidence 404(b)
and 403. He asks us to vacate his convictions and sentence and remand for a new trial. The
district court had original jurisdiction over these offenses because they occurred on tribal land,
and we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
For the reasons set forth below, we AFFIRM Defendant’s convictions.
BACKGROUND
I. Factual History
Defendant is a member of the Saginaw Chippewa Tribal Nation. Prior to his arrest and
incarceration, he resided on the Isabella Reservation in Mt. Pleasant, Michigan with his (now
former) wife, Darcy Mandoka (“Darcy”), and his step-daughter (Darcy’s daughter) B.J. This
case concerns Defendant’s sexual abuse of B.J. and his nieces, J.G. and E.B., when the three
were young children.1
A. Abuse of J.G. and E.B.
J.G. is the daughter of Defendant’s sister. At trial, J.G. testified that in the summer of
1988, when she was nine years old, she awoke to find Mr. Mandoka touching her vagina under
her clothing. Mr. Mandoka ceased this touching after J.G. began crying, but later renewed this
abuse on two separate occasions. Mr. Mandoka’s behavior towards J.G. apparently did not
escalate beyond genital fondling.
1
We use the victims’ initials to protect their privacy.
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E.B. is J.G.’s sister. E.B. testified that Defendant abused her from June 1995 through
September 1999, when E.B. was between ten and fourteen years old. During this period, E.B.
and J.G. would regularly spend the night at Defendant’s home. On these occasions, Defendant
would sometimes wake E.B. up and force her to watch pornographic movies with him while he
masturbated. After roughly a year of this behavior, Defendant progressed to waking E.B. up,
rubbing her breasts under her clothing, and penetrating her vagina with his fingers. This
occurred on more than ten occasions. E.B. did not report the abuse because she observed
Defendant physically abusing Darcy on several occasions, and was afraid that Defendant would
hurt her (E.B.) if she notified the police.
B. Abuse of B.J.
According to the testimony introduced at trial, Defendant repeatedly sexually abused B.J.
while she was living with him and Darcy at the family’s home on the Isabella Reservation. The
abuse commenced when B.J. was ten years old, and ceased when she was sixteen. During this
period, Defendant regularly sneaked into B.J.’s room at night while she was sleeping and
touched her breasts and genitals under her clothing. He often penetrated her vagina with his
finger, and sometimes forced her to masturbate him with her hand.
While B.J. was a child, she did not report Defendant’s abuse to either her mother or the
authorities.2 Later, when she turned eighteen, she wrote a letter to her mother detailing the
abuse. Darcy confronted Defendant with the letter, and he confessed to abusing B.J. Despite
this confession, neither B.J. nor Darcy reported the abuse to the police, because they did not want
to leave Darcy’s youngest children (B.J.’s step-siblings) fatherless. B.J. subsequently disclosed
the abuse to other family members, which led to a family meeting at which Defendant admitted
to having sexually abused B.J. Nevertheless, the abuse remained a family secret until 2015,
when Defendant and Darcy divorced. At that time, Darcy began taking her two youngest
daughters with her to group therapy for reasons related to the divorce. During these therapy
sessions, Defendant’s abuse of B.J. was disclosed to the counselor. The two girls subsequently
met individually with a second counselor, to whom at least one of the girls apparently also
2
She did, however, discuss the abuse with a friend at school in the sixth grade.
No. 16-2376 United States v. Mandoka Page 4
disclosed Defendant’s abuse of B.J. The second counselor reported the abuse to tribal
authorities, who contacted the police.
II. Procedural History
On July 8, 2015, a federal grand jury in the Eastern District of Michigan indicted
Defendant for five sex offenses related to his abuse of B.J. On July 22, 2015, the grand jury
returned a first superseding indictment adding a charge against Defendant for abusing J.G. The
grand jury subsequently returned a second superseding indictment on March 10, 2016, adding
charges related to Defendant’s abuse of E.B. Defendant elected to proceed to trial.
On June 9, 2016, the government filed a notice that it intended to offer testimony
that Defendant had physically abused Darcy in front of his victims as prior bad acts evidence
pursuant to Federal Rule of Evidence 404(b), on the ground that it would explain why
Defendant’s victims did not report the abuse. The next day, Defendant filed a motion in limine
to exclude the spousal abuse evidence as improper character evidence, arguing that the
government did not seek to offer the evidence for a proper purpose, and that it would unfairly
inflame the jury against Defendant. Subsequently, in preparing for trial, the government realized
that Defendant’s abuse of J.G. did not occur on territory administered by the federal government.
Thus, on June 16, 2016, the government filed a motion to dismiss Count 6 of the second
superseding indictment (which charged conduct related to J.G.’s abuse) for lack of subject matter
jurisdiction. In its motion, the government also announced its intent to present evidence that
Defendant abused J.G. as prior sexual assault evidence pursuant to Federal Rule of Evidence
413. Defendant responded with a second motion in limine, arguing, inter alia, that he had
received inadequate notice of the government’s intent to offer the evidence, in violation of Rule
413(b).
Defendant’s trial began on June 21, 2016. Prior to the opening statements, the district
court heard brief arguments as to the two pending motions. The district court ruled that most of
the spousal abuse evidence was admissible under Rule 404(b), and that Defendant’s molestation
of J.G. was admissible under Rule 413. Defendant was subsequently convicted on all counts.
No. 16-2376 United States v. Mandoka Page 5
On September 27, 2016, the district court entered a judgment sentencing Defendant to
life in prison, as well as lesser concurrent sentences. The next day, Defendant filed a timely
notice of appeal.
DISCUSSION
I. Rule 413 Challenges
A. Standard of Review
We review the admission of evidence under Federal Rule of Evidence 413 for abuse of
discretion. United States v. LaVictor, 848 F.3d 428, 448–49 (6th Cir. 2017); United States v.
Seymour, 468 F.3d 378, 386 (6th Cir. 2006). “A district court abuses its discretion when it
applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly
erroneous findings of fact.” United States v. Fowler, 819 F.3d 298, 303 (6th Cir. 2016) (quoting
United States v. Bridgewater, 606 F.3d 258, 260 (6th Cir. 2010)).
B. Analysis
Federal Rule of Evidence 413 provides in relevant part:
Permitted Uses. In a criminal case in which a defendant is accused of 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.
Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the
prosecutor must disclose it to the defendant, including witnesses’ statements or a
summary of the expected testimony. The prosecutor must do so at least 15 days
before trial or at a later time that the court allows for good cause.
Fed. R. Evid. 413(a)–(b). Additionally, we have explained that evidence “otherwise admissible
under Rule 413 is still subject to Rule 403 balancing.” LaVictor, 848 F.3d at 449. Federal Rule
of Evidence 403 provides that a “court may 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.” “On review, this Court must give ‘the evidence its maximum reasonable
No. 16-2376 United States v. Mandoka Page 6
probative force and its minimum reasonable prejudicial value.’” LaVictor, 848 F.3d at 449
(quoting Seymour, 468 F.3d at 386).
At trial, the government offered testimony by J.G. that Defendant had abused her when
she was a young child. The district court allowed the government to put on this evidence
because the abuse against J.G. was another of Defendant’s prior “sexual assault[s]” as that term
is defined in Rule 413. See Fed. R. Evid. 413(d). On appeal, Defendant argues that the district
court abused its discretion in admitting this evidence because: (i) “the sexual assault which J.G.
testified to was not relevant or similar to the sexual assaults described by E.B. and [B.J.];”
(ii) the government failed to give timely notice of J.G.’s testimony pursuant to Rule 413; and
(iii) “the evidence was unfairly prejudicial” in violation of Rule 403. (App. R. 22, Appellant’s
Br., at 18.) We will address each of these arguments in turn.
1. Relevance
Defendant first alleges that his sexual assault against J.G. was not relevant to his assaults
against E.B. and B.J., J.G.’s sister and cousin, respectively, because the assaults were too
dissimilar from one another to meet the relevance threshold specified by Rules 413 and 401. The
differences Defendant points to between the assaults are that: (i) while J.G. testified that
Defendant touched her vagina without penetrating it, E.B. and B.J. testified that Defendant
penetrated their vaginas with his finger; and (ii) B.J. testified that Defendant forced her to
masturbate him, while E.B. and J.G. did not testify to such abuse.
We make short work of this argument. Rule 413(a) permits the government to admit
evidence of a defendant’s prior sexual assaults as propensity evidence “on any matter to which
[the assaults are] relevant.” “Evidence is relevant if: (a) it has any tendency to make a fact more
or less probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Fed. R. Evid. 401. When applying Rule 413, evidence of prior assaults
is relevant when “[t]he facts of the previous sexual assaults” are similar to the charged offense.
LaVictor, 848 F.3d at 450. The assaults in this case were more than similar enough to pass this
“very low” threshold for relevance. See, e.g., United States v. Whittington, 455 F.3d 736, 739
(6th Cir. 2006) (noting that “the relevance threshold is very low under Rule 401”). All three
No. 16-2376 United States v. Mandoka Page 7
assaults involved Defendant fondling the genitals of three of his female family members—his
daughter and his two nieces—each of whom were roughly the same age at the time of their
respective assaults. J.G.’s abuse allegations made it more probable that Defendant committed
similar abusive acts against J.G.’s sister and cousin, and thus this evidence was relevant to
Defendant’s guilt of the offenses charged in the indictment. See, e.g., United States v. Crow
Eagle, 705 F.3d 325, 327–28 (8th Cir. 2013) (per curiam) (assaults were sufficiently similar for
Rule 413 purposes where “[w]hen allegedly abused, each [victim] was a younger family member
of [the defendant] between six and eleven years old” and “the methods of assault were similar,
all involving inappropriate touching”); United States v. Holy Bull, 613 F.3d 871, 873 (8th Cir.
2010) (assaults were sufficiently similar where both involved genital fondling of defendant’s
step-daughters).3
2. Rule 413(b)
Defendant’s second argument is that the district court should not have admitted evidence
of J.G.’s abuse because the government did not provide notice that it intended to offer this
evidence fifteen days before the start of trial as required by Rule 413(b). In order to clarify the
import of this argument, we will briefly summarize the sequence of events leading up to trial.
On July 22, 2015, the government filed its first superseding indictment, which added a
charge for sexual abuse under 18 U.S.C. §§ 2242(2), 1151 and 1153 (Count 6) against
Defendant for abusing J.G. It is undisputed that the substance of J.G.’s abuse allegations was
disclosed to Defendant on July 31, 2015—almost a year prior to trial.4 Count 6 was retained in
the government’s second superseding indictment, filed on March 10, 2016. Later, as the
3
Moreover, it does not matter that Defendant’s assaults of J.G. and E.B. occurred several years prior to the
assault of B.J., because the assaults were factually similar, and the victims were similar ages when the assaults
occurred. See LaVictor, 848 F.3d at 450 (collecting cases for the proposition that factually similar sexual assaults
are admissible under Rule 413 even though the assaults occurred more than twenty years apart).
4
Defendant was not permitted to review J.G.’s written statement regarding her abuse, or a video recording
of J.G.’s interview with law enforcement personnel, until six days prior to trial. However, the government
represented to the district court that the recording’s existence was disclosed to Defendant well in advance of trial,
and Defendant does not dispute that representation. Moreover, Defendant concedes that he was provided with a
transcript of J.G.’s grand jury testimony, which disclosed the substance of her allegations, in July of 2015.
Defendant does not argue that J.G. testified to any new material facts at trial that were not reflected in her grand jury
testimony. Nor does Defendant contend that the written statement or the video contained exculpatory evidence, or
that he was otherwise prejudiced by their disclosure so close to trial.
No. 16-2376 United States v. Mandoka Page 8
government was preparing for trial, it learned that Defendant’s abuse of J.G. occurred outside of
the Isabella Reservation,5 and thus there was no basis for federal subject matter jurisdiction over
Count 6. Accordingly, on June 16, 2016—six days before trial—the government moved to
dismiss Count 6, and simultaneously announced its intent to offer J.G.’s testimony as Rule 413
evidence. The district court admitted the evidence, and Defendant now argues that this decision
was an abuse of discretion because Rule 413(b) requires that past sexual assault evidence be
disclosed to the defendant at least fifteen days prior to trial. See Fed. R. Evid. 413(b) (“If the
prosecutor intends to offer [prior sexual assault] evidence, the prosecutor must disclose it to the
defendant, including witnesses’ statements or a summary of the expected testimony . . . at least
15 days before trial or at a later time that the court allows for good cause.”).
We reject Defendant’s argument, because he received all of the notice that Rule 413(b)
requires. We have little case law interpreting Rule 413(b), but the Tenth Circuit has explained
that the Rule’s “notice period protects against surprise and allows the defendant to investigate
and prepare cross-examination. It permits the defendant to counter uncharged crimes evidence
with rebuttal evidence and full assistance of counsel.” United States v. Enjady, 134 F.3d 1427,
1433 (10th Cir. 1998) (emphasis added). This purpose would not be served by reversing
Defendant’s convictions. In this case, Defendant knew that the prosecution intended to put on
evidence of J.G.’s abuse for a full year prior to trial, because Defendant was formally charged
with abusing J.G. in Count 6 of the first and second superseding indictments. It was only six
days prior to trial that defense counsel learned that Count 6 would be dropped for want of federal
jurisdiction; by then, defense counsel surely had sufficient time to investigate J.G.’s allegations
and prepare a defense. We decline to elevate form over function by reversing Defendant’s
convictions just because the government did not announce its intent to offer J.G.’s testimony
under Rule 413 at least fifteen days prior to trial, because there is no possibility that Defendant
was unfairly surprised by the evidence. See United States v. Benais, 460 F.3d 1059, 1062 (8th
Cir. 2006) (holding that Rule 413(b) only “requires disclosure of the evidence itself” fifteen days
prior to trial, and the Rule does not “impose[] on the Government a separate obligation to
specifically disclose or declare the intention to rely upon Rule 413 for admissibility”).
5
The Assistant United States Attorney prosecuting this case apparently misunderstood J.G.’s answers to his
questions about where and when the abuse had occurred, which led to the error in charging Count 6.
No. 16-2376 United States v. Mandoka Page 9
Additionally, Rule 413(b) permits a district court to excuse an untimely disclosure for good
cause. As the government points out, the district court found that any violation of the fifteen-day
rule was “excusable” because Rule 413 only became relevant upon the dismissal of Count 6, and
the government gave notice of its intent to rely on Rule 413 in conjunction with its request to
voluntarily dismiss that count. Defendant does not address this point at all, and we find no basis
to conclude that the district court abused its discretion in this regard. See United States v.
Guidry, 456 F.3d 493, 504 (5th Cir. 2006) (holding that the “Government had good cause for not
providing pretrial notice” because it “did not learn of [the victim’s] testimony until after the trial
had already started”).
Accordingly, we reject Defendant’s contention that the district court violated Rule 413(b)
by admitting J.G.’s testimony.
3. Rule 403
Finally, Defendant argues that J.G.’s testimony was inadmissible under Federal Rule of
Evidence 403 because it was unfairly inflammatory and might have led the jury to convict
Defendant on an improper basis. We reject this argument as well. Although J.G.’s testimony
was certainly prejudicial, Defendant has identified no reason why the testimony was unfairly
prejudicial. After all, J.G. testified to essentially the same (admittedly outrageous) abuse that
E.B. and B.J. testified to as part of the government’s case in chief, and so her testimony did not
alter the tone and tenor of the trial. As we have recently explained:
We recognize that Rule 413 evidence can be inherently prejudicial. By describing
violent and sexual conduct, the evidence may have a strong propensity to evoke a
visceral reaction from a lay jury. [Nevertheless], Congress’s decision to codify
Rule 413 reflects its belief of the probative nature of such testimony. As this
Court explained in United States v. Stout, 509 F.3d 796, 801–02 (6th Cir. 2007),
the codification of Rule[s] 413, 414, and 415 represent[s] an understanding that
sexual assault is different from regular prior bad acts. This difference is either
that “propensity evidence has special value in certain violent sexual misconduct
cases or that the difficulty of and need for convictions for these crimes warrants a
decrease in the usual protections against propensity and character evidence.” Id.
No. 16-2376 United States v. Mandoka Page 10
LaVictor, 848 F.3d at 450. Because Defendant does not offer any reason why the Rule 413
evidence in this case was any more unfairly prejudicial than child molestation evidence typically
is, we reject Defendant’s Rule 403 challenge as well.
II. Rule 404(b) Challenge
A. Standard of Review
Federal Rule of Evidence 404(b) provides as follows:
(1) Prohibited Uses. Evidence 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.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence
that the prosecutor intends to offer at trial; and
(B) do so before trial--or during trial if the court, for good cause, excuses
lack of pretrial notice.
Some panels of this Court have argued that there is an intra-circuit split regarding the
correct standard of review for a district court’s decision to admit Rule 404(b) evidence. As the
alleged split is typically described, one line of cases holds that the Supreme Court’s decision in
General Electric Co. v. Joiner, 522 U.S. 136, 141 (1997), mandates that Rule 404(b) decisions
be reviewed for abuse of discretion, see, e.g., United States v. Mack, 258 F.3d 548, 553 n.1 (6th
Cir. 2001); United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002); United States v. Allen,
619 F.3d 518, 524 n.2 (6th Cir. 2010), while another line of cases holds that we should use the
following three-step process in reviewing a district court’s decision to admit Rule 404(b)
evidence:
First, we review for clear error whether there is a sufficient factual basis for the
occurrence of the “bad act” that is being proffered as evidence (and challenged
pursuant to 404(b)). United States v. Murphy, 241 F.3d 447, 450 (6th Cir. 2001).
Second, we determine de novo whether the evidence was proffered for an
admissible purpose. Id. Third, we review for an abuse of discretion whether the
No. 16-2376 United States v. Mandoka Page 11
probative value of the proffered evidence is substantially outweighed by any
undue prejudice that will result from its admittance. Id.
United States v. Gibbs, 797 F.3d 416, 422 (6th Cir. 2015); see also United States v. Barnes,
822 F.3d 914, 921 (6th Cir. 2016); United States v. Clay, 667 F.3d 689, 693 (6th Cir. 2012).
The government urges us to review for abuse of discretion, and Defendant does not
contest this premise. However, as we have previously explained, the abuse of discretion and
tripartite standards of review “are not in fact inconsistent, because it is an abuse of discretion to
make errors of law or clear errors of factual determination.” United States v. Bell, 516 F.3d 432,
440 (6th Cir. 2008) (quoting United States v. Gainer, 468 F.3d 920, 925 (6th Cir. 2006)). The
tripartite framework is merely a recognition that we are faced with three distinct questions when
reviewing the admission of Rule 404(b) evidence: (i) the factual question of whether the prior
bad acts occurred; (ii) the legal question of whether the evidence was offered for an admissible
purpose; (iii) and the discretionary question of whether the district court permissibly applied the
Rule 403 balancing test. See Gibbs, 797 F.3d at 422. No matter which formulation we employ,
reversal is only proper if the district court committed a legal error by admitting the prior acts
evidence for an impermissible purpose, relied on clearly erroneous facts in finding that the prior
acts occurred, or abused its discretion in weighing the evidence’s probative and prejudicial value
under Rule 403’s balancing test. Bell, 516 F.3d at 440.
B. Analysis
At trial, the district court permitted the prosecution to put on evidence that Defendant
physically abused Darcy on several occasions in front of B.J. and E.B. Defendant argues that
this was an abuse of discretion because: (i) the evidence was not offered for a permissible
purpose under Rule 404(b)(2); and (ii) the evidence’s probative value was substantially
outweighed by its potential for unfair prejudice under the Rule 403 balancing test. We reject
these arguments as well.
1. Permissible Purpose
First, Defendant argues that the government offered testimony that Defendant abused
Darcy in front of his victims in order to show that Defendant acted in accordance with his
No. 16-2376 United States v. Mandoka Page 12
disposition towards violent criminal behavior, in violation of Rule 404(b)’s ban on propensity
evidence. The government argues that the evidence was offered for a valid purpose—to explain
why the victims did not report the abuse to the authorities, and thus counter any implication that
the allegations were fabricated. We agree with the government.
As stated earlier, none of the three abuse victims in this case reported their abuse to the
authorities, members of the community, or even to their parents while the abuse was ongoing.
Moreover, the victims did not come forward until they were all well into adulthood—B.J. was
twenty-four years old at time of trial, J.G. was thirty-seven, and E.B. was thirty-one. It would be
natural for a jury to wonder why the victims waited so long to come forward, and on that basis,
to suspect that they were not being truthful in their allegations against Defendant. To counter
this implication, the government introduced evidence that Defendant physically abused Darcy in
front of the victims in order to show why the victims would have been afraid to come forward
and accuse Defendant of abuse. To wit, B.J. testified that she became afraid after witnessing
Defendant assault her mother, and E.B. testified that she was fearful for her own safety and never
reported her sexual abuse because she was scared that Defendant would retaliate against her.
This testimony was proper under the circumstances presented here because it explained the
victims’ counter-intuitive behavior (tolerating rather than reporting their abuse), and did not
attempt to imply that Defendant must have been guilty of the conduct charged in the indictment
because he abused his wife.
Our holding is consistent with how state and federal courts have treated similar evidence
in sexual abuse cases. As the government points out, courts have repeatedly held that a
defendant’s prior bad acts are admissible under Rule 404(b) (and its state-law analogs) to explain
why a victim submitted to a sexual assault or delayed in reporting the assault to the police. See,
e.g., United States v. Plumman, 409 F.3d 919, 928 (8th Cir. 2005) (affirming decision to admit
404(b) evidence where the “physical assault evidence . . . provide[d] a reason why [the victim]
did not contact law enforcement”); United States v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995)
(affirming decision to admit 404(b) evidence where “[e]vidence of the beatings of both [the
victim] and her family provide[d] a cogent explanation for [the victim’s] failure to report the
sexual abuse for almost eighteen months” and made “it more probable that [the victim] failed to
No. 16-2376 United States v. Mandoka Page 13
report the sexual abuse not because it never took place, but because of her fear of retribution”);
United States v. Escarsega, 182 F. App’x 595, 598 (8th Cir. 2006) (affirming decision to admit
404(b) evidence where the “evidence of [the defendant’s] other assaults was relevant to how . . .
[the victim] feared bodily injury if she refused sexual intercourse”); Commonwealth v. Dillon,
925 A.2d 131, 139 (Pa. 2007) (“[T]here is no doubt that evidence of [the defendant’s] abuse of
[the victim’s] mother and brother was relevant for purposes other than to show his bad character
and criminal propensity . . . . [T]he evidence was probative of the reasons for [the victim’s]
significant delay in reporting the alleged sexual assaults—i.e., the evidence tends to show that
her experience with [the defendant], including those assaults on family members, caused her to
fear making a prompt report.”); People v. Chase, 277 A.D.2d 1045 (N.Y. App. Div. 2000)
(affirming admission of evidence “that defendant engaged in acts or threats of violence against
the victim or against other persons in the presence of the victim, and thus was directly relevant to
. . . explain the victim’s failure to make a prompt complaint”); People v. Brown, 883 P.2d 949,
958–59 (Cal. 1994); Commonwealth v. McKinnon, 620 N.E.2d 792, 796 (Mass. Ct. App. 1993)
(affirming admission of testimony that defendant abused victim’s mother in explaining victim’s
delay in reporting sexual abuse); State v. Bates, 784 P.2d 1126, 1127–28 (Utah 1989) (same).
We find the logic of these cases compelling. As the California Supreme Court has
persuasively explained in one representative case:
[W]hen the victim of an alleged sexual offense did not make a prompt complaint
but instead disclosed the alleged incident only some time later, evidence of the
fact and circumstances surrounding the delayed complaint also may be relevant to
the jury's evaluation of the likelihood that the offense did or did not occur. In the
absence of evidence of the circumstances under which the victim ultimately
reported the commission of an alleged offense, the jury in many instances may be
left with an incomplete or inaccurate view of all the pertinent facts. Admission of
evidence of the circumstances surrounding a delayed complaint, including those
that might shed light upon the reason for the delay, will reduce the risk that the
jury, perhaps influenced by outmoded myths regarding the “usual” or “natural”
response of victims of sexual offenses, will arrive at an erroneous conclusion with
regard to whether the offense occurred. Particularly in a case such as the present
one, in which the victim testifies to a series of alleged sexual offenses over a
considerable period of time, during which the victim had the opportunity to
disclose the alleged offenses to others but failed to do so, the exclusion of all
evidence relating to the context in which the victim ultimately disclosed the
alleged offenses to others is likely to leave the jury with an incomplete or
No. 16-2376 United States v. Mandoka Page 14
erroneous understanding of the victim's behavior. So long as the evidence that is
admitted is carefully limited to the fact that a complaint was made, and to the
circumstances surrounding the making of the complaint, thereby eliminating or at
least minimizing the risk that the jury will rely upon the evidence for an
impermissible hearsay purpose, admission of such relevant evidence should assist
in enlightening the jury without improperly prejudicing the defendant.
Brown, 883 P.2d at 958–59 (emphasis added, citations omitted).
Accordingly, we hold that the government may, subject to Rule 403’s balancing test,
introduce evidence of a defendant’s prior violent acts without violating Rule 404(b) when the
evidence is offered to show why the defendant’s victims submitted to the defendant’s abuse, or
failed to report the abuse in a timely manner.6 Applying this principle here, the district court did
not commit a legal error in admitting testimony that Defendant abused Darcy in front of E.B. and
B.J. E.B.’s testimony that she did not report Defendant’s abuse because she feared that
Defendant would hurt her in the same way that he hurt Darcy if she did so is a sufficient
foundation to show that the spousal abuse evidence was offered for a proper purpose.
2. Rule 403
Finally, Defendant offers a cursory argument the spousal abuse testimony was
inadmissible under the Rule 403 balancing test. Once again, Defendant fails to explain why this
evidence was unfairly prejudicial. The testimony relating to Defendant’s abuse of Darcy was not
extensive, graphic, or detailed, and we find it unlikely that the testimony could have inflamed the
jurors’ passions and motivated them to convict on an improper basis, particularly since the child
sexual abuse evidence that the government presented during its case in chief had far greater
inflammatory potential than the spousal abuse evidence. But even if the evidence was unfairly
prejudicial, the district court issued a thorough cautionary instruction to the jury designed to
prevent the jury from using this evidence improperly:
6
Of course, evidence of a defendant’s prior violent acts is only relevant to explain a victim’s inaction if the
victim witnessed or was aware of these acts. Otherwise, the prior violent acts cannot be said to have influenced the
victim’s behavior. In similar vein, the government must put forward some evidence suggesting that the defendant’s
prior violent acts influenced the victims’ decision not to report the defendant’s crimes. For example, if a victim
testifies that she was not afraid of retaliation by the defendant in spite of witnessing his violence towards third
persons, it would be error to admit the violent acts as Rule 404(b) evidence absent an independent evidentiary basis
to admit that evidence. In this case, E.B.’s testimony that she feared retaliation by Defendant after witnessing his
violence against Darcy was a sufficient foundation to admit the spousal abuse testimony under Rule 404(b).
No. 16-2376 United States v. Mandoka Page 15
Remember that Defendant is only on trial here for the crimes charged in the
second superseding indictment, and not any alleged domestic violence. You have
heard testimony that Defendant allegedly committed acts of domestic violence
against [Darcy]. If you find that Defendant did those acts, you can consider the
evidence only as it relates to the government’s claim that it explains why [B.J.]
and/or [E.B.] did not resist Defendant, call for help during the incidents, or report
the crimes committed against them to the police. You must not consider it for any
other purpose. Do not return a guilty verdict unless the government proves the
elements of the crimes charged in the second superseding indictment beyond a
reasonable doubt.
(R. 51, Jury Instructions, PageID #198.) If there was any prejudice from admitting the spousal
abuse testimony, this instruction was sufficient to cure it for Rule 403 purposes. See Plumman,
409 F.3d at 928–29 (affirming decision to admit evidence that the defendant committed prior
assaults to show why sexual assault victim delayed in reporting the abuse where “the district
court mitigated any undue prejudice by admitting the evidence for the limited purpose of
showing [that the victims] were afraid [of the defendant], and by giving the jury a proper limiting
instruction”).
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.