                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 05 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10228

              Plaintiff - Appellee,              D.C. No. 3:11-cr-08074-JAT-1

  v.
                                                 MEMORANDUM*
JEFFERSON GATEWOOD,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                James A. Teilborg, Senior District Judge, Presiding

                      Argued and Submitted January 13, 2015
                            San Francisco California

Before: WALLACE, M. SMITH, and FRIEDLAND, Circuit Judges.

       Jefferson Gatewood appeals from his judgment of conviction following a

jury trial for 23 counts of aggravated sexual abuse, aggravated sexual abuse of a

minor, attempted aggravated sexual abuse of a minor, sexual abuse of a minor,

abusive sexual contact with a minor, and kidnapping. Gatewood argues that the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
district court improperly applied Rule 403 and violated his due process rights in

admitting prior acts evidence and that the district court should not have denied his

motion to sever. We have jurisdiction under 28 U.S.C. § 1291. We review for

abuse of discretion a district court’s ruling under Rule 403 that evidence is more

probative than prejudicial, United States v. LeMay, 260 F.3d 1018, 1024 (9th Cir.

2001), and a district court’s denial of a motion for severance, United States v.

Sullivan, 522 F.3d 967, 981 (9th Cir. 2008). We affirm.

      Under Federal Rule of Evidence 403, the district court may exclude relevant

evidence if its probative value is substantially outweighed by unfair prejudice. Fed.

R. Evid. 403. In determining whether to admit evidence of a defendant’s prior acts

of sexual misconduct under Rule 403, the district court should consider factors

including (1) “the similarity of the prior acts to the acts charged,” (2) the

“closeness in time of the prior acts to the acts charged,” (3) “the frequency of the

prior acts,” (4) the “presence or lack of intervening circumstances,” and (5) “the

necessity of the evidence beyond the testimonies already offered at trial.” LeMay,

260 F.3d at 1027–28.

      The district court correctly concluded that the prior acts evidence was

similar to the charged acts given that the prior acts were the same offenses for




                                           2
which Gatewood was charged and they were committed in the same context. See

id. at 1028. Gatewood does not disagree.

      The district court was also correct to conclude that the closeness in time

factor weighed in favor of admissibility, given that almost all of the prior acts

occurred during the same time period as the charged acts and that the earliest prior

act was ten or eleven years prior to the earliest charged act. See id. at 1029.

      The district court likewise correctly concluded that the frequency of the prior

acts weighed in favor of admissibility, and Gatewood does not disagree. The

district court properly concluded that the intervening circumstances factor was not

relevant in this case.

      Finally, the district court correctly concluded that the necessity factor

weighed in favor of admissibility because the prior acts evidence would help

corroborate the testimony of the victims of charged acts, a conclusion that was

supported by the defendants’ arguments that the victims were lying and that there

was no physical evidence supporting their allegations. See id. at 1028 (“prior acts

evidence was relevant to bolster the credibility of the victims after [the defendant]

suggested they could be fabricating the accusations” and to “counter[] [the

defendant]’s claim that there was no evidence corroborating the testimony of [the

victims of the charged conduct]”). The fact that the prior acts evidence may not


                                           3
have been absolutely necessary in order to convict Gatewood of the charged acts

does not mean that the prior acts evidence had no probative value. Id. at 1029

(“Prior acts evidence need not be absolutely necessary to the prosecution’s case in

order to be introduced; it must simply be helpful or practically necessary”).

      The district court was correct to weigh the five factors and conclude that

almost all of them weighed in favor of admissibility. The factors demonstrated that

in this case the “strong prejudicial qualities” inherent in this type of prior acts

evidence did not substantially outweigh the “significant probative value” of the

specific prior acts evidence offered. Id. at 1027. There is no reason to think that the

volume of similar evidence presented in this case would dramatically reduce the

probative value of the prior acts evidence while leaving the prejudicial qualities of

the prior acts evidence intact. Thus, the district court did not abuse its discretion in

admitting the evidence.

      Our holding that the prior acts were properly admitted under Rule 403

necessarily entails the conclusion that admission of the evidence did not violate

Gatewood’s due process rights. LeMay, 260 F.3d at 1027.

      With regard to Gatewood’s motion to sever, “[i]t is well-settled that the

motion to sever must be renewed at the close of evidence or it is waived,” United

States v. Sullivan, 522 F.3d 967, 981 (9th Cir. 2008) (internal quotation marks


                                            4
omitted), quoting United States v. Alvarez, 358 F.3d 1194, 1206 (9th Cir.2004).

The only exception to this rule is if the defendant “can show either that he

diligently pursued severance or that renewing the motion would have been an

unnecessary formality,” United States v. Decoud, 456 F.3d 996, 1008 (9th Cir.

2006). Gatewood failed to renew his motion to sever, and he does not mention the

issue in his opening brief or his reply brief. He has thus failed to show that the

exception should apply to him and has waived the issue.

      AFFIRMED.




                                           5
United States v. Gatewood, No. 13-10228                                   FILED
FRIEDLAND, Circuit Judge, dissenting:                                      MAY 5 2015
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
      Even when evidence of                   prior acts of sexual abuse is otherwise

admissible, [p]otentially devastating evidence of little or no relevance [must] be

excluded under Rule 403. United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir.

2001). If this limitation means anything, it means that we must reverse

                        . The district court admitted a staggering amount of

evidence                       testimony describing at least twenty-three

uncharged acts    that had virtually no probative value and ran an overwhelming

risk of unfair prejudice.

                                         I.

      Gatewood was charged with twenty-three counts of sexual assault and

kidnapping, arising out of fifteen separate incidents involving nine victims. Eight

of those victims were under the age of sixteen when the abuse began. Two of them

were nine years old.

      All nine victims of the charged conduct testified at trial. Each described

                                          , and each corroborated key aspects of the



troubled girls to spend time at his house, gave them alcohol (without drinking any

himself), and touched them inappropriately (sometimes under the guise of teaching

                                         1
them self-defense).Six additional eyewitnesses provided further corroboration for

                               timony for example, that Gatewood had given a

particular victim alcohol. The Government also produced physical evidence

suggesting that one victim had been forcibly penetrated.

      But all this consistent testimony from nine victims; corroborating

testimony from six additional eyewitnesses; further corroboration from physical

evidence

Government also introduced evidence that Gatewood had engaged in at least

twenty-three other, uncharged acts of sexual assault.

                                         II.

                 .



United States v. Wiggan, 700 F.3d 1204, 1213 (9th Cir. 2012) (quoting United

States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992)). Because the uncharged-acts

evidence at issue here had very slight (if any) probative value and gave rise to far

more than a modest likelihood of unfair prejudice, the district court abused its

discretion in admitting that evidence.

      In light of the                                               , the uncharged-

acts evidence had little or no probative value. The Government had an

overwhelming amount of other evidence with which to prove every point for which

                                          2
                                                  . The Government argued that

the uncharged-acts evidence was necessary to show that Gatewood has a

propensity to engage in sexual violence against young victims. But fifteen

witnesses, testifying about crimes with which Gatewood was charged, established

that Gatewood had such a propensity. The Government also argued that the

uncharged-

operandi                                           se acts by way of force or by



established that Gatewood committed the charged acts of sexual violence using

                                                                         charged

acts involved alcohol. Finally, the Government argued that the uncharged-acts

evidence was necessary to corroborate testimony from the nine victims of

                                   the Government offers no explanation for how

the uncharged-act

accomplished by the overlapping testimony of each of the other victims regarding

the charged counts, plus the testimony of six additional eyewitnesses, plus physical

evidence.

      When plenty of evidence is already available to prove a point, the probative

value of additional evidence on that same point is slight. Wiggan, 700 F.3d at

1214; see also Old Chief v. United States

                                            3
                                              . . . may be calculated by comparing

                             Here, the Government already had an overwhelming

amount of other evidence with which to prove every point for which it offered

evidence of Gatew                        , so the probative value of the uncharged-

acts evidence was (at most) slight.

        The uncharged-acts evidence was also overwhelmingly prejudicial.

eyes of ordinary Americans, the very worst child rapists    predators who seek out

and inflict serious physical and emotional injury on defenseless young children

                                       Kennedy v. Louisiana, 554 U.S. 407, 467

(2008) (Alito, J., dissenting). Given this revulsion, few things could be more likely

                                       Hitt, 981 F.2d at 424, than evidence of child

rape.

        And

uncharged acts of sexual violence were especially heinous. The uncharged-acts

evidence included testimony that:

              Gatewood regularly took a seven-year-old girl into a bathroom,

              pushed her onto her stomach, and forced his penis into her anus. The

              girl kicked and hit the floor to make noise while Gatewood raped her,

              apparently in a desperate effort to cry for help. On other occasions,

              Gatewood instead forced his penis into her vagina. On still other

                                          4
            penis, even as she pulled away.

            Gatewood raped one sixteen-year-old girl, and then immediately

            ordered that girl to bring a second girl to him. Gatewood physically

            dragged the second girl into a bedroom, while she struggled, and

            locked the door behind him. As she was dragged into the bedroom,



            Gatewood repeatedly abused a six- or seven-year-old girl by taking

            her into a bathroom, holding his penis against her vulva, and spitting

            on her.

            Gatewood approached a nineteen-year-old woman from behind, held a

            knife to her throat, and forced her into a ditch. Gatewood and two

            other men then gang-raped the woman in front of her boyfriend

            while she begged them to stop



      This uncharged-acts evidence was the most heinous evidence that the jury



minors necessarily were, none of the acts for which he actually was charged were

more stomach-churning than these four uncharged acts. There was thus far more

than a modest likelihood of unfair prejudice here. Wiggan, 700 F.3d at 1213.

                                        5
      The sheer volume of the uncharged-acts evidence exacerbates its prejudicial

effect. The Government introduced evidence that Gatewood committed at least

twenty-three uncharged acts of sexual assault. A large majority of the acts for

which evidence was presented at trial were uncharged: The Government

introduced evidence of one-and-a-half uncharged acts for every act charged in the

indictment. Indeed, this figure likely understates the volume of uncharged-acts

evidence, because some of the twenty-

patterns of behavior that spanned months or years. The amount of uncharged-acts

evidence admitted here was extreme      and with an extreme amount of uncharged-

acts evidence comes an extreme likelihood of unfair prejudice. 1

      The majority, like the district court, seeks to justify admission of the

uncharged-acts evidence under the five-factor test outlined in United States v.

LeMay, 260 F.3d 1018, 1027-30 (9th Cir. 2001). Many of the individual LeMay

factors do seem to weigh in favor of admission of the uncharged-acts evidence

here.2 But LeMay makes clear that, in addition to the particular factors it


1
       To my knowledge, no other federal court has ever admitted anything close to
the amount of uncharged-acts evidence that the district court admitted in this case.
Indeed, I can find only a single case People v. Cardamone, 885 N.E.2d 1159 (Ill.
App. Ct. 2008) in which a trial court admitted any comparable amount of
evidence of uncharged acts of sexual assault. See id. at 1182. The Illinois
Appellate Court reversed in Cardamone, holding that admission of that uncharged-
act evidence violated the state-law equivalent of Rule 403. Id. at 1186.
2
       Other circuits have criticized LeMay s efforts to impose a five-factor test on
the Rule 403 balancing inquiry. See Martínez v. Cui, 608 F.3d 54, 60 (1st Cir.
                                         6
             district judges must carefully evaluate the potential inflammatory

nature of the proffered testimony, and balance it with that which the jury has

already heard, the relevance of the evidence, [and] the necessity of introducing it.

260 F.3d at 1030. Here, the uncharged-acts evidence was so inflammatory, and its

probative value so slight, that it was an abuse of discretion for the district court to

conclude that the evidence could be admitted under Rule 403.3

                                          III.

        We must not give                     a blank check entitling [it] to introduce

whatever evidence it wishes, no matter how minimally relevant and potentially

devastating to the defendant. LeMay, 260 F.3d at 1022. Because I fear affirming

                               exactly that, I respectfully dissent.


2010)                              no reason to adopt special rules constraining
                usual exercise of discretion under Rule 403 when considering
evidence under Rule 415 United States v. Rogers, 587 F.3d 816, 823 (7th Cir.
2009)                                          would be helpful in [the Rule 403
balancing inquiry], we would offer one, but, unlike our colleagues in the Ninth
Circuit, we believe that lists are unhelpful in the end for this inquir     ; United
States v. Kelly, 510 F.3d 433, 437 n.3 (4th Cir. 2007)
         s more fle                                       LeMay). While we need not
revisit LeMay to conclude that the district court erred in this case, it is easy to see
how LeMay ive-
from properly conducting the two-factor balancing test that Rule 403 still requires.
3
       The government has not argued here that any error was harmless, so we
                                                                                  [were]
                              United States v. Gonzalez-Flores, 418 F.3d 1093, 1101
(9th Cir. 2005). The large number of charged counts and length of the record make
it impossible to say that the error here was harmless beyond reasonable debate as
to every individual count.
                                           7
