## Facts

- Alan Johnson was charged in federal court with abusive sexual contact committed on a commercial aircraft within the special aircraft jurisdiction of the United States.
- The prosecution alleged that, during the flight, Johnson (1) touched a flight attendant inappropriately, (2) grabbed a second flight attendant inappropriately, and (3) thrust his crotch against a fellow passenger.
- Before trial, the prosecution sought to admit evidence that Johnson had allegedly engaged in similar inappropriate physical contact with women on two prior occasions.
- In one prior incident, Johnson allegedly thrust his crotch against a female employee at a retail store.
- In a second prior incident, Johnson allegedly groped a female employee at another retail store.
- The district court admitted the prior-incident evidence over Johnson’s objection.
- A jury convicted Johnson, and he appealed the admission of the prior-incident evidence.

## Issues

1. Did the district court abuse its discretion by admitting evidence of Johnson’s prior alleged sexual-contact incidents in his prosecution for abusive sexual contact on an aircraft?
2. Should the prior-incident evidence have been excluded under Federal Rule of Evidence 403 because any probative value was substantially outweighed by a danger of unfair prejudice?

## Decision

- The Tenth Circuit affirmed.
- The court held that the district court did not abuse its discretion in admitting evidence of Johnson’s prior alleged sexual misconduct.
- The court concluded the district court’s Rule 403 assessment was not erroneous and that admitting the evidence did not render the trial unfair.

## Legal Principles

- In a sexual-assault prosecution, evidence that the defendant committed other sexual assaults may be admissible under Federal Rule of Evidence 413, subject to Federal Rule of Evidence 403.
- Even when evidence is relevant and admissible under a rule permitting other-acts evidence, the trial court must still decide whether its probative value is substantially outweighed by the danger of unfair prejudice under Rule 403.
- Appellate review of evidentiary rulings (including Rule 403 balancing) is for abuse of discretion.
- Similarity between the charged conduct and prior alleged misconduct can increase probative value when the government must prove intent and the absence of an innocent explanation for physical contact.
- Limiting instructions may reduce the risk that jurors will misuse other-acts evidence.

## Conclusion

In *United States v. Johnson*, the Tenth Circuit affirmed Johnson’s conviction for abusive sexual contact on an aircraft, holding that the district court acted within its discretion in admitting evidence of two prior alleged incidents of inappropriate sexual contact with retail-store employees and that the evidence was not so unfairly prejudicial under Rule 403 as to warrant reversal.


United States v. Johnson, 458 Fed. App’x 727 (2012)