                                  ___________

                                  No. 96-1308
                                  ___________

United States of America,              *
                                       *
     Plaintiff-Appellee,               *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * District of South Dakota.
Leo LeCompte,                          *
                                       *
     Defendant-Appellant.              *
                                  ___________

                     Submitted:   July 26, 1996

                         Filed:   November 1, 1996
                                  ___________

Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
                               ___________


LOKEN, Circuit Judge.


     Leo LeCompte appeals his conviction and sentence for abusive sexual
contact with his eleven-year-old niece in Indian country.       See 18 U.S.C.
§§ 1153, 2244(a)(1), and 2246(3).      We conclude that the district court
abused its discretion under Rule 404(b) of the Federal Rules of Evidence
by admitting testimony describing LeCompte's prior sexual abuse of another
child.    Accordingly, we reverse and remand for a new trial.


                                      I.


     On the eve of trial, the government served notice that it would offer
evidence that LeCompte had previously molested three other children.      The
district court ruled this offer untimely and inadequate under Rules 413(b)
and 414(b), the new rules governing evidence of similar crimes in sexual
assault and child molestation
prosecutions.    The court ruled the government's notice timely and adequate
under Rule 404(b) and reserved decision as to Rule 404(b)         admissibility
until trial.


        Early in the trial, LeCompte's niece, C.D., described the charged
offense as follows.   One evening in January 1995, during an overnight visit
to the LeCompte home, she was lying on a couch watching a movie while her
siblings had fallen asleep on the floor.         LeCompte lay down on the couch
behind her, repeatedly placed her hand on his penis, and reached under her
shirt and brassiere to touch her breasts.        When LeCompte began to move his
hand toward her groin area, she left the couch and joined her sister on the
floor.    LeCompte then left the room.


        After C.D. testified, the government called one of the three prior
victims, T.T., another of LeCompte's nieces, to make a Rule 404(b) offer
of proof outside the jury's presence.       T.T. stated that from 1985 through
1987, when she was nine to eleven years old, LeCompte repeatedly exposed
himself to her, forced her to masturbate him, and touched her in the groin
area.    She testified that many of the touching incidents arose during or
after games LeCompte would play, including hide-and-seek.         After hearing
this testimony, the district court overruled LeCompte's objection to this
testimony:


        [A]rguably, the defendant was playing games and ingratiating
        himself with the intended victim in each case. So, in that
        sense it is part of a plan and preparation.

              I do not think that identity is any issue. Motive is not
        an issue. Knowledge is not an issue. Absence of mistake or
        accident is not an issue.

                              *   *    *     *     *

              This is a very close issue in this case. . . . I feel
        that the evidence should be admitted.      That while it is
        definitely prejudicial evidence, that the prejudicial




                                      -2-
     evidence does not overweigh the probative value as to plan,
     preparation, and modus operandi.

                              *   *    *    *   *

           And the Court feels that the evidence is relevant as to
     the game playing, the exposure incidents, which the Court
     believes the jury could find were intended to condition the
     child, or children, and to lay the groundwork, so to speak, for
     later sexual activities which would follow upon the exposures
     and the establishing of a game-like relationship between the
     defendant and the victims.


     The government then recalled C.D. to lay foundation for the Rule
404(b) evidence.    She testified that, on another occasion, LeCompte invited
her into his bedroom, where he was dressed in only a shirt, and "asked me
if I wanted to play hide and go seek."          T.T. then took the stand and
repeated her testimony to the jury, over LeCompte's objection, and the
district court gave a cautionary Rule 404(b) instruction.            The jury
convicted LeCompte of the two counts charged in the indictment.           The
district court, departing upward, sentenced him to eighty-four months in
prison.


                                      II.


     Under Rule 404(b), testimony concerning other bad acts is admissible
"if it is relevant to a material issue, established by a preponderance of
the evidence, more probative than prejudicial, and similar in kind and
close in time."    United States v. Baker, 82 F.3d 273, 276 (8th Cir. 1996).
Such evidence is not admissible "solely to prove the defendant's criminal
disposition."      United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir.
1995).    On appeal, LeCompte argues that T.T.'s testimony of prior sexual
abuse was relevant only as proof of LeCompte's bad character and criminal
disposition.    The district court's decision to admit evidence under Rule
404(b) is reviewed for abuse of discretion.     See United States v. Williams,
95 F.3d 723, 730 (8th Cir. 1996).




                                      -3-
     The question whether evidence of prior sexual abuse is admissible
under Rule 404(b) in a sex abuse prosecution has been a thorny, frequently
litigated issue.   In general, at least in this circuit, "prior sex offenses
committed upon the victim of the charged offense" are usually admissible,
but "[w]e are far more hesitant to affirm the admission of evidence of
prior sexual acts or crimes committed against persons other than the victim
of the charged offense."      United States v. Yellow, 18 F.3d 1438, 1440 & n.2
(8th Cir. 1994).      This case falls within the latter category, so the
government's burden to establish that T.T.'s testimony was relevant under
Rule 404(b), and more probative than prejudicial under Rule 403, is greater
than if C.D., who accused him of the charged offense, was the victim of
prior sexual abuse.


     The district court admitted T.T.'s testimony as relevant to proving
"plan,   preparation,   and    modus   operandi."   Rule   404(b)   specifically
authorizes use of prior bad acts evidence to prove "plan" or "preparation."
In many cases, such evidence has been admitted because it showed the
planning of or preparation for the charged offense.        See United States v.
Ratliff, 893 F.2d 161, 165 (8th Cir. 1990) (dealings with another investor
in the same fraudulent scheme), cert. denied, 498 U.S. 840 (1990); United
States v. Calvert, 523 F.2d 895, 907 (8th Cir. 1975) (efforts to attract
an accomplice), cert. denied, 424 U.S. 911 (1976).             In other cases,
evidence of related or similar prior offenses has been admitted because it
tended to prove that defendant employed a "common scheme" to commit a
series of similar crimes.      See Baker, 82 F.3d at 276 ("remarkably similar"
extortion of other motorists); United States v. Crouch, 46 F.3d 871, 875
(8th Cir. 1995) (prior illegal gun sales), cert. denied sub nom. Mandacina
v. U.S., 116 S. Ct. 193 (1995); United States v. Sanchez, 963 F.2d 152, 155
(8th Cir. 1992) (similar dealings with other aliens); United States v.
Gano, 560 F.2d 990, 993 (10th Cir. 1977) (prior sexual intercourse with
mother was "indispensable to a complete showing" of the alleged sexual
offense against her daughter).




                                        -4-
       In this case, the Rule 404(b) evidence was not part of the charged
offense and did not tend to prove a "common scheme or plan."              The victims
were different, and the events were far apart in time.                    Absent more
specific linkage, such evidence is relevant to "plan" or "preparation" only
insofar as it tends to prove a propensity to commit crimes, which Rule
404(b) prohibits.        See Government of the Virgin Islands v. Pinney, 967 F.2d
912,     916    (3rd   Cir.   1992)   (evidence   defendant   raped   victim's   sister
excluded); United States v. Has No Horse, 11 F.3d 104, 106 (8th Cir. 1993)
(evidence defendant propositioned two other teen-aged girls excluded);
United States v. Fawbush, 900 F.2d 150, 151-52 (8th Cir. 1990) (evidence
defendant sexually abused his daughters excluded); United States v.
Mothershed, 859 F.2d 585, 590 (8th Cir. 1988) ("[n]or did the evidence tend
to show a plan, unless on the pure speculation that a similar plan underlay
the earlier conviction").


       However, the government argues, and the district court agreed, that
in this case there is sufficient linkage between the Rule 404(b) evidence
and the charged offense because the unrelated prior bad acts establish a
"signature" modus operandi, that is, "other crimes by the accused so nearly
identical in method as to earmark them as the handiwork of the accused."
United States v. Drew, 894 F.2d 965, 970 (8th Cir. 1990), cert. denied, 494
U.S. 1089 (1990), quoting McCormick on Evidence § 190(3), at 559 (3d ed.
1984).    The theory is that a "jury can rationally infer from evidence that
the defendant committed a prior crime in an unusual and distinctive manner
and [from] evidence that a second similar crime was committed in the same
unusual and distinctive manner that the defendant committed the second
crime."        Pinney, 967 F.2d at 916.


       Normally, this type of evidence is offered to prove identity in cases
where it is clear that a crime has been committed and the issue is whether
defendant committed it.          In this case, identity is not at issue.         It is
undisputed that LeCompte was the only adult present at the time of the
alleged offense.        The issue is whether




                                           -5-
the alleged offense occurred.       Although the use of "signature" crime
evidence in a case of this type is more unusual than when identity is at
issue, and although its use is arguably nothing more than proof of
propensity, the above-quoted theory encompasses this issue (whether a crime
was committed at all) as well as the identity issue (a crime was committed,
but did defendant do it).   Thus, we will assume that legitimate "signature"
evidence would be admissible for this purpose as well, at least if the
charged offense fit the "signature" pattern established by the prior bad
acts.    But to be admissible for this purpose, the government must meet the
standard applicable when identity is at issue, that is, a "much greater
degree of similarity between the charged crime and the uncharged crime is
required when the evidence of the other crime is introduced to prove
identity than when it is introduced to prove a state of mind."          United
States v. Myers, 550 F.2d 1036, 1045 (5th Cir. 1977).      Thus, "signature"
evidence must tend to prove a "unique modus operandi."         Mothershed, 859
F.2d at 590.


        The government argues that LeCompte's pattern of playing games with
a child to gain her confidence, exposing himself to her, and later sexually
assaulting her was evidence of a sufficiently unique modus operandi.        On
this record, we disagree.    LeCompte was a member of each child's extended
family.    The fact that he played games with each niece (particularly a game
as common as hide and seek), and the fact that he gained each child's
"confidence," are such commonplace family occurrences that they do not
evidence "signature" criminal behavior.      While an abusive family member
might play games and gain rapport with children to prepare to commit sex
crimes,     the   initial   game   playing   and   resulting     rapport   are
indistinguishable from the behavior of innocent family members.
        Moreover, even if LeCompte's game playing with T.T. was far more
elaborate and sinister than the behavior of an innocent uncle, there was
no evidence that he prepared to commit the charged offense in a similarly
elaborate manner.    True, the crimes are




                                     -6-
similar, but the charged offense as described by C.D. at trial was the
product of unplanned opportunity, not "signature" preparation.                                To the
extent that the prior abuse of T.T. and the charged offense are in fact
similar,    they   reflect      misconduct     common        to    all    too   many      child    sex
offenders.     Therefore, T.T.'s testimony was not relevant to prove plan,
preparation, or modus operandi.         See Fawbush, 900 F.2d at 151 (defendant's
sexual abuse of another victim "did not show a unique method also present
in the charged offenses that tended to establish" identity).


        Alternatively,    the    Government         argues    that       T.T.'s     testimony      was
relevant to prove that LeCompte acted with the intent necessary to violate
18 U.S.C. § 2246(3).           When prior crimes evidence is relevant to prove
intent, it need only be similar to the charged offense; it need not
evidence a "signature" modus operandi.               See United States v. Burkett, 821
F.2d 1306, 1309 (8th Cir. 1987).          However, the district court did not admit
T.T.'s testimony to prove intent.            Intent was not a serious issue in this
case.    If the jurors believed C.D.'s testimony as to LeCompte's conduct,
they would hardly doubt that he intended criminal sexual contact.                                 Such
seriously    prejudicial       evidence      should    not        be    admitted     if   its     only
legitimate    purpose     is    to   prove    a     nominally          contested     issue.       See
Mothershed, 859 F.2d at 590 ("if the evidence were relevant to intent, its
relevance    would   be   so    slight,      when    compared          with   the   devastatingly
prejudicial impact of such evidence in the mind of a jury, that to admit
it would be an abuse of discretion under Rule 403"); accord United States
v. LaChapelle, 969 F.2d 632, 638 (8th Cir. 1992); Pinney, 967 F.2d at 917-
18; United States v. Herman, 589 F.2d 1191, 1198 (3d Cir. 1978) (weak but
highly prejudicial modus operandi evidence must be excluded under Rule
403), cert. denied, 441 U.S. 913 (1979).


        This prosecution turned on whether the jury believed C.D.'s testimony
of sexual abuse.      Though LeCompte did not testify, other members of his
extended family contradicted various aspects of




                                             -7-
C.D.'s testimony.       The evidence supporting conviction was by no means
overwhelming, so the admission of highly prejudicial Rule 404(b) evidence
cannot be dismissed as harmless error.          In these circumstances, we conclude
that   the   district   court   abused   its     discretion   in   admitting   T.T.'s
testimony, and LeCompte is entitled to a new trial.


                                         III.


       Our conclusion that LeCompte is entitled to a new trial makes it
unnecessary to consider his other claims of trial and sentencing error.
However, we will briefly discuss two sentencing issues that may recur if
LeCompte is again tried and convicted for one or both of the charged
offenses.    After determining that LeCompte's Guidelines sentencing range
is thirty-three to forty-one months in prison, the district court departed
upward and imposed an eighty-four-month sentence because LeCompte did not
receive an adequate sentence for a prior conviction, and because the
"victim . . . suffered psychological injury much more serious than that
normally resulting from commission of the offense,"           U.S.S.G. § 5K2.3.    We
have two problems with this upward departure.


       First, in departing upward, the court relied in part on Commentary
5 to U.S.S.G. § 2A3.4:      "If the defendant's criminal history includes a
prior sentence for conduct that is similar to the instant offense, an
upward departure may be warranted."       However, Commentary 5 was added to the
Guidelines on November 1, 1995, after LeCompte's January 1995 offense.            The
Ex Post Facto Clause precludes use of a Guideline in effect at the time of
sentencing if its use produces a harsher sentence than the Guidelines in
effect when the crime was committed.        See United States v. Bell, 991 F.2d
1445, 1452 (8th Cir. 1993).


       The district court also invoked its inherent authority to depart
upward because of aggravating circumstances "not adequately




                                         -8-
taken into consideration by the Sentencing Commission in formulating the
guidelines."   18 U.S.C. § 3553(b).      However, in U.S.S.G. § 4A1.3, the
Sentencing Commission has specifically prescribed how upward departures
should be imposed "when the criminal history category significantly under-
represents the seriousness of the defendant's criminal history or the
likelihood that the defendant will commit further crimes."   As we explained
in United States v. Day, 998 F.2d 622, 625 (8th Cir. 1993), cert. denied,
114 S. Ct. 2140 (1994):


     [t]o impose an upward departure under § 4A1.3, the sentencing
     court first must proceed along the criminal history axis of the
     sentencing matrix, comparing the defendant's criminal history
     with the criminal histories of other offenders in each higher
     category. If the court reaches the highest criminal history
     category, Category VI, and concludes that the Guidelines range
     is still inadequate, it may impose a reasonable sentence above
     the Category VI range.


In this case, the record suggests that the district court did not follow
this prescribed method of calculating an upward departure based upon
criminal history.   Though our prior cases do not make compliance with
§ 4A1.3 a "ritualistic exercise," the record must reflect that this
Guideline has been properly applied.     See Day, 998 F.2d at 625.


     Second, "before a district court can depart upward on a ground not
identified . . . either in the presentence report or in a prehearing
submission by the Government, Rule 32 [of the Federal Rules of Criminal
Procedure] requires that the district court give the parties reasonable
notice that it is contemplating such a ruling."     Burns v. United States,
501 U.S. 129, 138 (1991).    In this case, LeCompte's presentence report
stated that a departure might be appropriate under Commentary 5 to § 2A3.4.
However, the district court first disclosed that it was departing in part
because of psychological injury to the victim just before




                                   -9-
pronouncing sentence.   Because the psychological injury issue is fact
intensive, notice of a possible departure on this ground should be given
prior to the sentencing hearing.


     The judgment of the district court is reversed and the case is
remanded for a new trial.


     A true copy.


           Attest:


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




                                   -10-
