## Facts

- A federal grand jury indicted Hollis Earl Roberts, Chief of the Choctaw Nation of Oklahoma, on sexual-offense charges based on allegations by three women who worked for him.
- The indictment charged two counts of aggravated sexual abuse (18 U.S.C. § 2241), one count of sexual abuse (18 U.S.C. § 2242), and five counts of abusive sexual contact (18 U.S.C. § 2244).
- The government sought to introduce testimony from nine additional women (not named in the indictment) alleging Roberts sexually abused them over a period of many years.
- The government also sought to introduce evidence that Roberts helped secure a change to a Choctaw Nation statute of limitations that would bar one named woman’s civil suit in tribal court.
- Federal Rule of Evidence 413 (permitting admission of other sexual-assault offenses as propensity evidence) became effective after the indictment but before trial.

## Issues

1. Whether Federal Rule of Evidence 413 applied to a prosecution in which the indictment was returned before Rule 413’s effective date.
2. Whether the district court properly excluded testimony from nine additional women under Federal Rules of Evidence 404(b) and 403.
3. Whether the district court properly excluded evidence that Roberts promoted a tribal statute-of-limitations change to impede a named woman’s civil suit, and what evidentiary standard governed admissibility.
4. Whether mandamus should issue to compel an additional Rule 404(b) ruling, and whether the case should be reassigned to a different district judge on remand.

## Decision

- The court held Rule 413 inapplicable because the case was already pending when the rule took effect.
- The court reversed the exclusion of the nine additional women’s testimony to the extent the district court had not conducted an adequate, individualized Rule 404(b) and Rule 403 analysis, and remanded for an evidentiary hearing and particularized findings.
- The court remanded the exclusion of the tribal statute-of-limitations-change evidence for the district court to assess relevance and admissibility under Rules 404(b) and 403.
- The court denied the government’s petition for a writ of mandamus and declined to order reassignment to a different district judge.
- Disposition: affirmed in part, reversed in part, and remanded.

## Legal Principles

- A newly effective Federal Rule of Evidence applies prospectively when Congress indicates it should not govern criminal cases already pending as of the effective date.
- When Rule 413 is inapplicable, other-acts evidence in sexual-assault prosecutions is governed by Rule 404(b) (must be offered for a non-character purpose) and Rule 403 (probative value must not be substantially outweighed by unfair prejudice or related dangers).
- Rule 404(b) determinations require a record-based, particularized evaluation of each proposed other act and each witness, rather than blanket admission or exclusion.
- Evidence of post-accusation or post-offense conduct aimed at avoiding liability may be relevant for a non-propensity purpose (such as consciousness of guilt), but remains subject to Rule 404(b) purpose limits and Rule 403 balancing.
- Mandamus is an extraordinary remedy requiring a clear and indisputable entitlement and lack of adequate alternative relief; interlocutory evidentiary disputes ordinarily do not satisfy that standard.
- Reassignment on remand requires a showing of circumstances such as demonstrated bias or comparable reasons justifying supervisory intervention.

## Conclusion

The Tenth Circuit concluded that Rule 413 did not apply to a prosecution initiated before the rule’s effective date and required the district court, on remand, to conduct individualized Rules 404(b) and 403 analyses before excluding or admitting the government’s proposed other-acts evidence, while rejecting mandamus and reassignment requests.


United States v. Roberts, 88 F.3d 872 (10th Cir. 1996)