## Facts

- Fred James LeMay III, a member of the Fort Peck Indian Tribe, intermittently lived with his sister and her husband on the Fort Peck Indian Reservation in Montana and frequently babysat their children.
- In summer 1997, while babysitting two nephews (ages five and seven), LeMay forced both boys to perform oral sex and threatened them if they disclosed the abuse.
- The boys reported the conduct to their mother the next morning; law enforcement later learned of the allegations, leading to federal prosecution.
- LeMay was charged in federal district court with two counts of aggravated sexual abuse under 18 U.S.C. § 2241, based on conduct on the reservation.
- The government sought to introduce evidence that in 1989, when LeMay was about twelve, he had been adjudicated delinquent for raping two younger cousins under highly similar circumstances (young relatives, forced oral sex, and abuse of trust while babysitting).
- Over defense objection, the district court admitted the prior-acts evidence under Federal Rule of Evidence 414 after conducting a Rule 403 balancing analysis and gave limiting instructions.
- The jury convicted LeMay on both counts, and the district court imposed a 405-month sentence.

## Issues

1. Whether Federal Rule of Evidence 414, which permits evidence of prior child-molestation acts in child-molestation prosecutions, violates the Due Process Clause by authorizing propensity evidence.
2. Whether the district court abused its discretion, and thereby violated due process, by admitting LeMay’s prior juvenile molestation evidence under Rule 414 without proper exclusion under Rule 403.

## Decision

- The Ninth Circuit affirmed the convictions and sentence.
- The court held Rule 414 is constitutional on its face and as applied because Rule 403 continues to govern admissibility and can prevent fundamentally unfair trials.
- The court held Rule 414 does not authorize admission of prior-act evidence without meaningful Rule 403 scrutiny and an adequate record for appellate review.
- The court found no abuse of discretion in the district court’s Rule 403 analysis because the prior acts were highly probative and not substantially outweighed by unfair prejudice.

## Legal Principles

- Rule 414 permits admission of a defendant’s prior acts of child molestation in a child-molestation prosecution, including for propensity, subject to ordinary evidentiary limits.
- Due process is not violated merely because propensity evidence is admitted; the constitutional concern arises when evidence is so prejudicial and so weakly probative that the trial becomes fundamentally unfair.
- Rule 403 remains fully applicable to Rule 414 evidence; trial courts must exclude prior-act evidence when unfair prejudice substantially outweighs probative value.
- In applying Rule 403 to Rule 414 evidence, courts may consider similarity to the charged conduct, temporal distance, probative need (including credibility disputes), and safeguards such as pretrial hearings and limiting instructions.
- Appellate review focuses on whether the district court conducted a reasoned, reviewable balancing analysis and whether admission was within the court’s discretion.

## Conclusion

The Ninth Circuit upheld the use of Rule 414 in child-molestation prosecutions, ruling that due process is protected by conscientious Rule 403 balancing and that the district court acted within its discretion in admitting LeMay’s similar prior juvenile molestation acts.


United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001)