                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           May 20, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 14-4091
                                                 (D.C. No. 2:13-CR-00763-DAK-1)
MICHAEL JAMES PASCAL,                                        (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, SEYMOUR, and GORSUCH, Circuit Judges.
                  _________________________________

      A jury convicted Michael Pascal of abusive sexual contact. He appeals,

challenging the district court’s admission of a prior uncharged sex offense under

Federal Rule of Evidence 413. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

                                           I

      In 2013, Pascal boarded a commercial flight and sat in his assigned middle

seat. The adjacent window seat was occupied by an unaccompanied 14-year-old girl

(“RS”). Early in the flight RS fell asleep. She testified that she awoke to find that

the armrest separating her seat from Pascal’s had been raised and that his hand was

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
underneath her, gripping her buttocks. She elbowed him away, asked what he was

doing, and summoned a flight attendant to inform her about the incident. Pascal

testified that he was asleep during the incident and did not intentionally touch RS.

RS was interviewed by law enforcement after the flight.

      Pascal was charged with abusive sexual conduct in violation of federal law.

Before trial, the government moved to introduce evidence of a prior sexual assault

under Federal Rule of Evidence 413. That evidence was an allegation by a different

girl, “SB,” who stated that Pascal touched her inappropriately in 2006, when she was

12 years old. SB testified that her mother, Pascal’s friend and coworker, brought her

to Pascal’s home the night before a planned camping trip. After her mother went to

sleep, SB stayed up watching a movie with Pascal and his daughter in the living

room. SB joined her mother upstairs because Pascal was making her feel

uncomfortable by leaning his head against her knee. Later that night, SB testified

that she woke when she felt Pascal touching her back, and again when she felt him

rubbing his hand from her lower back to the top of her buttocks. SB alerted her

mother about the touching and Pascal left the room. They never reported the incident

to authorities. Pascal disputed SB’s allegations, testifying that he was asleep and did

not remember going into the room where SB and her mother spent the night.

      The district court granted the government’s motion to admit this evidence,

concluding that SB’s allegations qualified as either a prior “sexual assault” or

“attempted sexual assault.” It found that “S.B.’s body was touched from the bottom

of her back to the top of her buttocks.” The court concluded that a jury could

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reasonably find that a prior sexual assault had occurred by a preponderance of the

evidence, and that the admission was proper under our multi-factor test for the

admissibility of evidence under Rule 413. See United States v. Benally, 500 F.3d

1085, 1090 (10th Cir. 2007).

      At trial, SB, her mother, Pascal, and another witness testified about the 2006

incident, which the government offered to prove Pascal’s intent to touch RS in 2013.

A jury found Pascal guilty of abusive sexual conduct with a minor, in violation of 18

U.S.C. § 2244(a)(3). Pascal timely appealed.

                                          II

                                          A

      We review a district court’s evidentiary rulings for abuse of discretion. United

States v. Jenkins, 313 F.3d 549, 559 (10th Cir. 2002). We will not disturb a district

court’s evidentiary ruling “absent a distinct showing it was based on a clearly

erroneous finding of fact or an erroneous conclusion of law or manifests a clear error

of judgment.” United States v. Stiger, 413 F.3d 1185, 1197 (10th Cir. 2005)

(quotation omitted). Congress has instructed that Rule 413 is to be “liberally

construe[d].” United States v. Meacham, 115 F.3d 1488, 1492 (10th Cir. 1997)

(quotation omitted).

      Rule 413 provides that “[i]n a criminal case in which a defendant is accused of

a sexual assault, the court may admit evidence that the defendant committed any

other sexual assault.” Fed. R. Evid. 413(a). It defines sexual assault as, among other

activities, “any conduct prohibited by 18 U.S.C. chapter 109A.” Fed. R. Evid.

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413(d)(1). Chapter 109A prohibits abusive sexual contact with a minor, which is

defined in part as “the intentional touching, either directly or through the clothing, of

the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent

to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any

person.” 18 U.S.C. § 2246(3). A person need not have been convicted of or charged

with a previous assault for it to be admissible under the Rule. See Benally, 500 F.3d

at 1092-93 (affirming admission of prior uncharged sexual assault).

      Pascal argues that the evidence shows only that he touched SB on the lower

back, and that the district court thus erred because the 2006 incident does not meet

the legal definition of sexual assault or attempted sexual assault. During an

evidentiary hearing, SB was asked to describe in detail the part of her body that was

touched. She responded: “[t]he bottom of my back, the top of my buttocks.” She

then stood and demonstrated. The prosecutor characterized her gesture as pointing to

“the area from the small of her low back to the upper part of her buttocks.” Pascal’s

counsel characterized her gesture as pointing to “above the buttocks and lower part of

the back.” SB herself characterized the area as “[w]here the rise of my buttocks

begins, but not yet to the crack.”

      The district court found that Pascal touched SB from the “bottom of [her] back

to the top of [her] buttocks.” A factual finding is “clearly erroneous when although

there is evidence to support it, the reviewing court on the entire evidence is left with

a definite and firm conviction that a mistake has been committed.” McAllister v.

United States, 348 U.S. 19, 20 (1954). Given that SB testified that Pascal touched

                                           -4-
her on “the top of my buttocks” and in the area “[w]here the rise of my buttocks

begins,” we are not left with a definite and firm conviction that the district court

made a mistake by finding that Pascal did, in fact, touch her buttocks.

                                            B

      Evidence admitted pursuant to Rule 413 is subject to the Rule 403 balancing

test. United States v. Batton, 602 F.3d 1191, 1198 (10th Cir. 2010). Again, “[w]e

review a district court’s evidentiary rulings for abuse of discretion.” Stiger, 413 F.3d

at 1197 (quotation omitted). A district court must “make a clear record of the

reasoning behind its findings as to whether the evidence survives the Rule 403

balancing test.” Benally, 500 F.3d at 1091 (quotation omitted). The court must first

“make a preliminary finding that a jury could reasonably find that the other act

occurred by a preponderance of the evidence.” Id. at 1090 (quotations omitted). It

should then consider:

      1) how clearly the prior act has been proved; 2) how probative the
      evidence is of the material fact it is admitted to prove; 3) how seriously
      disputed the material fact is; and 4) whether the government can avail
      itself of any less prejudicial evidence. When analyzing the probative
      dangers, a court considers: 1) how likely it is such evidence will
      contribute to an improperly-based jury verdict; 2) the extent to which
      such evidence will distract the jury from the central issues of the trial;
      and 3) how time consuming it will be to prove the prior conduct.

Id. Considerations which may influence the court’s analysis of the probative value of

evidence include: “(1) the similarity of the prior acts and the charged acts, (2) the

time lapse between the other acts and the charged acts, (3) the frequency of the prior




                                           -5-
acts, (4) the occurrence of intervening events, and (5) the need for evidence beyond

the defendant’s and alleged victim’s testimony.” Id. at 1090-91.

      In its order, the district court acknowledged and followed these standards.

Pascal contends that the district court abused its discretion by improperly weighing

the frequency and time lapse factors. We disagree. The court noted that there had

been a lapse of seven years between the prior and charged offense, but explained that

the similarity of the two acts may outweigh concerns of remoteness in time. As to

frequency, the court correctly explained that lack of frequency is not an absolute bar

to admission under Rule 413. See United States v. Enjady, 134 F.3d 1427, 1434

(10th Cir. 1998) (affirming admission of Rule 413 evidence based on a single prior

incident).

      We will not reverse the district court’s ruling “if it falls within the bounds of

permissible choice in the circumstances and is not arbitrary, capricious or

whimsical.” United States v. Sturm, 673 F.3d 1274, 1286 (10th Cir. 2012) (quotation

omitted). The district court’s weighing of the Benally factors and its decision to

admit the Rule 413 evidence was within the bounds of its discretion.

                                          III

       The judgment of the district court is AFFIRMED.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge


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