                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 97-4162SD
                                   _____________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * On Appeal from the
      v.                                  * United States District
                                          * Court for the District
                                          * of South Dakota.
Alvin Ralph Mound,                        *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: May 12, 1998
                                  Filed: July 9, 1998
                                   ___________

Before RICHARD S. ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.

        Alvin Ralph Mound was convicted of two counts of aggravated sexual abuse of
a minor, in violation of 18 U.S.C. §§ 2241(c), 2246(2), two counts of aggravated sexual
abuse, in violation of 18 U.S.C. §§ 2241(c), 2246(2), two counts of assault resulting
in serious bodily injury, in violation of 18 U.S.C. § 113(a)(6), and one count of assault
with a dangerous weapon, in violation of 18 U.S.C. § 113(a)(3). On appeal, he
challenges the admission at trial of a prior conviction of child sexual abuse under
Federal Rule of Evidence 413 (Evidence of Similar Crimes in Sexual Assault Cases).
We affirm.
                                          I.

      Mound allegedly abused his daughter T.M. physically and sexually from 1993,
when she was ten, through January 1997. The alleged abuse included forced touching
and intercourse and beating with an axe handle.

       At trial, the government sought to introduce evidence of similar acts committed
by Mound in 1987, namely the sexual abuse of two girls, ages 12 and 16. Mound had
pleaded guilty to the first offense, in return for which the government dropped its
investigation of the second. The District Court1 admitted the conviction under Rule
413,2 but excluded evidence of the uncharged offense. The jury convicted Mound of
all seven sexual abuse and assault charges. He was sentenced to life imprisonment.

                                         II.

      Mound argues first that Federal Rule of Evidence 413 is unconstitutional. Rule
413 provides in relevant part:

      In a criminal case in which the defendant is accused of an offense of
      sexual assault, evidence of the defendant’s commission of another offense
      or offenses of sexual assault is admissible, and may be considered for its
      bearing on any matter to which it is relevant.




      1
      The Hon. Charles B. Kornmann, United States District Judge for the District of
South Dakota.
      2
       Rule 414 (Evidence of Similar Crimes in Child Molestation Cases), a
companion rule to Rule 413, addresses sexual offenses against children specifically.
However, the government offered, and the Court admitted, the evidence under Rule
413. We therefore proceed with a discussion of Rule 413, though our analysis applies
to Rule 414 also.

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In considering evidence offered under Rules 413, 414, and 415, a trial court must still
apply Rule 403, though in such a way as “to allow [the new rules their] intended
effect.” United States v. LeCompte, 131 F.3d 767, 769 (8th Cir. 1997). See also
United States v. Sumner, 119 F.3d 658, 661 (8th Cir. 1997). The question is thus
whether Rule 413, subject to the constraints of Rule 403, is constitutional. We hold
that it is.

       First, Rule 413 does not violate the Due Process Clause. To determine whether
the rule fails “the due process test of fundamental fairness,” we consider whether “the
introduction of this type of evidence is so extremely unfair that its admission violates
fundamental conceptions of justice.” Dowling v. United States, 493 U.S. 342, 352
(1990) (citation omitted). Mound argues that it does, because it “authorizes the jury
to overvalue character evidence, to punish a defendant for past acts and to convict the
defendant for who he is, rather than for what he has done.” Appellee’s Br. at 24.

       The Tenth Circuit recently addressed similar arguments in United States v.
Enjady, 134 F.3d 1427 (10th Cir. 1998), holding that, subject to the protections of Rule
403, Rule 413 did not violate the Due Process Clause. The Court stated, “[t]hat the
practice [of excluding prior bad acts evidence] is ancient does not mean it is embodied
in the Constitution.” Enjady, 134 F.3d at 1432. Discussing the Supreme Court’s
opinion in Spencer v. Texas, 385 U.S. 554 (1967), which rejected a due process
challenge to Texas statutes allowing admission of prior convictions for similar offenses,
it noted:

      One reason the majority in Spencer gave for upholding the validity of the
      Texas statutes was that “it has never been thought that [the Court’s Due
      Process Clause fundamental fairness] cases establish this Court as a rule-
      making organ for the promulgation of state rules of criminal procedure.”
      Rule 413 is a federal rule, of course, and most federal procedural rules are
      promulgated under the auspices of the Supreme Court and the Rules
      Enabling Act. But we must recognize that Congress has the ultimate




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      power over the enactment of rules, see 28 U.S.C. § 2074, which it
      exercised here.


Id. at 1432 (citation omitted). We too believe that it was within Congress’s power to
create exceptions to the longstanding practice of excluding prior-bad-acts evidence.

        We also reject Mound’s argument that Rule 413 is a violation of his equal-
protection rights. Because Rule 413 does not “burden[] a fundamental right,” and
because sex-offense defendants are not a “suspect class,” we must “uphold the
legislative classification so long as it bears a rational relation to some legitimate end.”
Romer v. Evans, 517 U.S. 620, 631 (1996). Promoting the effective prosecution of sex
offenses is a legitimate end. The legislative history of Rule 413 indicates good reasons
why Congress believed that the rule was “justified by the distinctive characteristics of
the cases it will affect.” 140 Cong. Rec. H8991 (daily ed. Aug. 21, 1994) (statement
of Rep. Molinari). These characteristics included the reliance of sex offense cases on
difficult credibility determinations that “would otherwise become unresolvable
swearing matches,” as well as, in the case of child sexual abuse, the “exceptionally
probative” value of a defendant’s sexual interest in children. Id. “Appellate courts
should not and do not try ‘to determine whether [the statute] was the correct judgment
or whether it best accomplishes Congressional objectives; rather, [courts] determine
[only] whether Congress’ judgment was rational.’ ” United States v. Buckner, 894
F.2d 975, 978 (8th Cir. 1990) (alterations in original) (citations omitted). We hold that
Congress’s judgment in enacting Rules 413, 414, and 415, was rational.

                                           III.

       We further hold that the District Court’s application of Rule 413 and Rule 403
to admit the prior conviction in this case was not an abuse of discretion. See United
States v. Ballew, 40 F.3d 936, 941 (8th Cir. 1994), cert. denied, 514 U.S. 1091 (1995).




                                           -4-
The Court first addressed the issue in pretrial proceedings, but deferred ruling until it
had heard the testimony of the alleged victim of the uncharged offense, which was the
other similar-acts evidence offered, in closed proceedings. At that time, it found that
evidence of the uncharged offense was inadmissible under Rule 403, but the prior
conviction was admissible.

       [W]hile I find that this evidence is relevant, I find that its probative value
       is substantially outweighed by the danger of unfair prejudice. And I
       further find that it would simply confuse the issues in this case, none of
       which are similar to the case of the witness . . .. I do find that is not the
       case with regard to the previous conviction of this defendant and I’m
       going to allow the government to present that evidence in its case in chief
       as to the previous conviction which does deal with a child sexual abuse
       situation.


Tr. at 175. Before the conviction was introduced, through the testimony of an FBI
agent, the judge issued a cautionary instruction to the jury:

       This defendant was convicted in 1988 of sexual abuse of a minor. This
       does not mean that he is guilty of any of the charges of aggravated sexual
       abuse or any other offense as to which he has pled not guilty in this case
       which you will be deciding. You may give such evidence and the
       testimony of this witness no weight or such weight as you think it is
       entitled to receive. . . . [T]his evidence is being received for a limited
       purpose only.


Tr. at 338-39.

      Clearly, contrary to Mound’s assertion, the Court was aware of its duty to apply
Rule 403, and performed it. During the resolution of pre-trial motions, the Court said,
“going back to . . . Rule 413 . . . I am clear to the effect that the Court needs to conduct




                                            -5-
a balancing test under Rule 403.” Tr. at 11. After hearing the testimony of the victim
of the uncharged offense, it evaluated both this testimony and the prior conviction under
Rule 403: though both were admissible evidence under Rule 413, only the conviction
survived the Court’s Rule 403 balancing.

       Nor can we say that the Court erred in determining that the conviction satisfied
Rule 403. The 1987 conviction was for sexual abuse of a 12-year-old girl by forced
intercourse, conduct that was similar to the aggravated sexual abuse and assault charges
against Mound in this case. In comparison, as the Court determined, the risk of unfair
prejudice -- in light of Rule 413's “underlying legislative judgment . . . that [such
evidence] is normally not outweighed by any risk of prejudice or other adverse effects,”
140 Cong. Rec. H8992 -- was small. The Court found, “Federal Rule 403 . . . defines
unfair prejudice as an undue tendency to suggest . . . a decision on an improper basis[,]
commonly, though not necessarily, an emotional one . . .. The simple conviction does
not go along those lines, whereas a type of incident as to which there was no
prosecution and to which the facts are entirely different would, I think, get into that
problem . . ..” Tr. at 178. There is no evidence that the prior conviction presented any
danger of unfair prejudice beyond that which “all propensity evidence in such trials
presents,” but is now allowed by Rule 413. LeCompte, 131 F.3d at 770. The Court’s
cautionary instruction to the jury further guarded against unfair prejudice.

      It is true that the Court found the disputed evidence inadmissible under Rule
404(b). However, it was Congress’s intent that “[t]he new rules . . . supersede in sex
offense cases the restrictive aspects of Federal Rule of Evidence 404(b).” 140 Cong.
Rec. H8991. Thus, there is no inherent error in admitting under Rule 413 evidence that
would be inadmissible under Rule 404(b): that is the rule’s intended effect.

      We affirm.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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