                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-1-2002

Johnson v. Elk Lake Sch Dist
Precedential or Non-Precedential:

Docket 0-1549




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PRECEDENTIAL

       Filed March 1, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1549

BETSY SUE JOHNSON, Appellant

v.

ELK LAKE SCHOOL DISTRICT; WAYNE STEVENS;
CHARLOTTE A. SLOCUM; SCHOOL BOARD ELK LAKE
SCHOOL DISTRICT

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 96-cv-01471)
District Judge: Honorable James F. McClure, Jr.

Argued: September 6, 2001

Before: BECKER, Chief Judge, ALITO and
BARRY, Circuit Judges.

(Filed: March 1, 2002)

       PETER G. LOFTUS, ESQUIRE
        (ARGUED)
       The Loftus Law Firm, P.C.
       P.O. Box V, 1207 Main Street
       Waverly, PA 18471

       Counsel for Appellant
       JEFFREY H. QUINN, ESQUIRE
        (ARGUED)
       Dickie, McCamey & Chilcote, P.C.
       150 South Independence Mall, West
       901 Public Ledger Building
       Philadelphia, PA 19106

       Counsel for Appellees Elk Lake
       School District, Charlotte A. Slocum,
       School Board Elk Lake School District

       ROBERT A. MAZZONI, ESQUIRE
       JULIA K. MUNLEY, ESQUIRE
        (ARGUED)
       Mazzoni & Karam
       321 Spruce Street
       Bank Towers, Suite 201
       Scranton, PA 18503

       Counsel for Appellee Wayne Stevens

OPINION OF THE COURT

BECKER, Chief Judge.

This case arises out of plaintiff Betsy Sue Johnson's
claim that her guidance counselor Wayne Stevens sexually
harassed and abused her while she was a high school
student in the Elk Lake School District. Johnson sought
damages from Stevens in the District Court for the Middle
District of Pennsylvania, claiming violations of 42 U.S.C.
S 1983 and state tort law. Johnson also sought damages
from the School District, the Elk Lake School Board, and
District Superintendent Charlotte Slocum (to whom we
shall collectively refer as "the Administration"), claiming
that they too were liable under S 1983 for having failed to
prevent Stevens's abuse.

In essence, Johnson asserted that the Administration
knew or should have known of Stevens's propensity for
sexual abuse, but was deliberately indifferent to this
danger. The District Court granted summary judgment for
the Administration, and Johnson appeals. Stevens too

                               2
moved for summary judgment, but his motion was denied,
and a four-day trial ensued, after which a jury returned a
unanimous verdict in his favor. Johnson moved for a new
trial on the basis of alleged trial errors. The District Court
denied this motion, which Johnson now also appeals.

We agree with the District Court that Johnson has failed
to adduce any credible evidence showing that Stevens's
supervisors knew or should have known of any danger of
abuse at a time at which they could have acted to prevent
Johnson's injuries. Accordingly, we will affirm the District
Court's order granting summary judgment for the
Administration. The principal question arising out of the
District Court's denial of the motion for a new trial is
whether the Court abused its discretion in refusing to
admit the testimony of Karen Radwanski, a former co-
worker of Stevens, regarding a bizarre incident in which
Stevens allegedly picked her up off the floor in another
teacher's office and, in the course of doing so, touched her
in the crotch area. Johnson had sought to present this
testimony as evidence of Stevens's propensity for sexual
abuse under Federal Rule of Evidence 415, which allows for
the introduction of evidence of past sexual assaults in civil
cases in which the claim for damages is predicated on the
defendant's alleged commission of a sexual assault.

In reviewing the District Court's ruling, we are called
upon to consider, for the first time, the standards for
admission of prior sexual misconduct evidence under Rule
415. We conclude that in considering evidence of past
sexual assaults, the trial court need not make a preliminary
finding by a preponderance of the evidence under Federal
Rule of Evidence 104(a) that the act in question qualifies as
a sexual assault and that it was committed by the
defendant. Rather, the court may admit the evidence so
long as it is satisfied that the evidence is relevant, with
relevancy determined by whether a jury could reasonably
conclude by a preponderance of the evidence that the past
act was a sexual assault and that it was committed by the
defendant. See Fed. R. Evid. 104(b).

We also conclude, however, that even when the evidence
of a past sexual offense is relevant, the trial court retains
discretion to exclude it under Federal Rule of Evidence 403

                               3
if the evidence's "probative value is substantially
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence." We think that in cases where the
past act is demonstrated with specificity and is
substantially similar to the act(s) for which the defendant is
being sued, it is Congress's intent that the probative value
of the similar act be presumed to outweigh Rule 403's
concerns. In a case such as this one, however, in which the
evidence of the past act of sexual offense is equivocal and
the past act differs from the charged act in important ways,
we believe that no presumption in favor of admissibility is
in order, and that the trial court retains significant
authority to exclude the proffered evidence under Rule 403.
We conclude that the District Court did not abuse its
discretion in excluding Radwanski's testimony, and, finding
that Johnson's other allegations of trial error are without
merit, will affirm the District Court's order denying
Johnson's motion for a new trial.

I. Facts and Procedural History

Johnson entered the Elk Lake School District high school
as a freshman in September 1991. Sometime in November
or December of that year Johnson began making regular
visits to Stevens's office to discuss family difficulties.
Johnson contends that shortly thereafter, in December
1991, Stevens began sexually harassing and abusing her.
She alleges that for the next two years Stevens repeatedly
sent her letters, roses, cards, and other suggestive
correspondence, attempted on numerous occasions to hug
and kiss her without her consent, and at one point fondled
her breasts and vagina.

Johnson's complaint sought relief from both Stevens and
the Administration for the violation of her civil rights under
42 U.S.C. SS 1983, 1985, and 1986, as well as for the
commission of the torts of conspiracy, negligence, assault
and battery, and intentional infliction of emotional distress.
The District Court dismissed Johnson's section 1985 and
1986 claims as to all the defendants for failure to state a
claim upon which relief could be granted. The Court also

                                  4
dismissed Johnson's state tort claims against the
Administration, concluding that such claims were barred by
the Pennsylvania Political Subdivisions Tort Claims Act, 42
Pa. Cons. Stat. Ann. SS 8541-64. Johnson does not appeal
any of these dismissals. The District Court eventually
granted summary judgment for the Administration with
respect to the remaining S 1983 claim. The District Court
denied Johnson's motion for reconsideration, and Johnson
now appeals. We have examined the merits of Johnson's
claim against the Administration and for the reasons given
in the margin, we conclude that summary judgment was
appropriate.1
_________________________________________________________________

1. Because the gravamen of Johnson's claim against the Administration
was that Stevens had violated her constitutional rights, we need not
dwell on this claim in light of the jury verdict finding no constitutional
or state tort law violations on the part of Stevens. Nevertheless, we note
that Johnson presented no credible evidence demonstrating that school
officials knew of the alleged risk of sexual abuse posed by Stevens at a
time at which they could have prevented her alleged injuries. See Beers-
Capitol v. Whetzel, 256 F.3d 120, 137 (3d Cir. 2001) (requiring plaintiff
in a S 1983 action to demonstrate "that the defendant knew of the risk
to the plaintiff before the plaintiff 's injury occurred"). She therefore
has
failed to establish, as she must under the Supreme Court's decision in
Monell v. New York City Department of Social Services, 475 U.S. 469
(1986), that her injuries were caused by a "policy or custom" of the
Administration. Id. at 694.

Johnson points to a conversation that took place between her sister,
Lisa, and a guidance counselor, Jeffrey LaFrance, as evidence of the
school's knowledge of Stevens's abuse. During this conversation Lisa
remembers telling LaFrance that "something funny" was going on
between her sister and Stevens, but she does not remember mentioning
any specific allegations of sexual harassment or abuse. While it is fair
to
say that an allegation of "something funny" going on between a student
and counselor should have been cause for concern on the part of
LaFrance, we are unwilling to say that this allegation alone, without
evidence of any specific mention of sexual harassment or abuse, put
LaFrance on notice as to an ongoing constitutional violation by Stevens.
Moreover, even if we thought that it did, this conversation would still
fail
to establish S 1983 liability on the part of the Administration because
LaFrance, as a guidance counselor, does not qualify as the type of
policy-making or supervisory official on account of whose inaction a
municipality may be held liable under S 1983. See Pembaur v. City of
Cincinnati, 475 U.S. 469, 483 (1986).

                               5
Stevens also moved for summary judgment on Johnson's
S 1983 claim against him, as well as on the state tort
claims, but the District Court denied his motion. These
claims were eventually tried before a jury, which returned
a unanimous verdict in favor of Stevens. Following the
verdict, Johnson filed a motion for a new trial in which she
alleged three flaws in the way the trial had been conducted.
The District Court rejected Johnson's motion for a new trial
on all three grounds, two of which we address below and
one which we describe in the margin.2 Johnson now
appeals.
_________________________________________________________________

Alternatively, Johnson contends that even if the Administration was
not aware of Stevens's abuse of her, it can be held liable for failing to
respond to the danger posed by Stevens's well-known proclivity for
sexually harassing and abusing female students. In other words,
Johnson attempts to demonstrate that the Administration had a custom
of being deliberately indifferent to Stevens's potential for committing
constitutional violations, and that this "deliberate indifference" was the
proximate cause of the injuries she sustained. See Beck v. City of
Pittsburgh, 89 F.3d 966, 973-74 (3d Cir. 1996); Kneipp v. Tedder, 95
F.3d 1199, 1213 (3d Cir. 1996).

As evidence of Stevens's proclivity for sexual harassment, Johnson
brought forth various stories and rumors about Stevens walking too
closely to female students in the hallway, frequently calling female
students out of class to his office, and giving gifts to female students.
Even if all of these allegations were true, however, Johnson presented no
evidence that they were ever brought to the attention of a supervisory or
policy-making official of the administration either before or during (or
even after) the time of Stevens's alleged abuse of Johnson. Moreover,
even if school officials had been made aware of these stories before or
during Stevens's alleged improper relationship with Johnson, we share
the District Court's reluctance "to impose on the district an obligation
to
treat as true, all rumors, until proven otherwise." In the absence of any
direct complaints made to school officials, the mere floating around of
unsubstantiated rumors regarding a particular employee -- particularly
in the high school setting, which is notoriously rife with adolescent
gossip -- does not constitute the kind of notice for which a school
district can be held liable under Monell's"policy or custom" requirement.

2. During cross-examination, Johnson's counsel sought to question
Stevens about having lied about making the dean's list in college on the
resume he submitted when he first applied for a job with the Elk Lake

                               6
First, Johnson alleges that the District Court erred by not
declaring a mistrial when Stevens's counsel mentioned to
the jury in his opening statement that his client had never
been arrested for any crime relating to the alleged incidents
_________________________________________________________________

School District. Stevens's attorney objected before Johnson's counsel
began the inquiry, contending that the issue was far too remote in time
and relevance to have any bearing on Stevens's credibility as a witness.
The trial judge agreed, sustaining the objection because he thought the
inquiry too "out in left field" to have any"immediate bearing on the
case." Johnson argues that the District Court erred under Federal Rule
of Evidence 608(b), which allows inquiry into specific instances of
conduct that "concern[ ] the witness' character for truthfulness or
untruthfulness" during cross-examination.

We review a district court's evidentiary rulings for abuse of discretion.
See Abrams v. Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir. 1995).
Moreover, where the applicable evidentiary rule is itself discretionary,
as
it is here, see Fed. R. Evid. 608(b) (stating that specific instances of
conduct "may" be inquired into "at the discretion of the court"), we give
the trial court's ruling "substantial deference." Elcock v. Kmart Corp.,
233
F.3d 734, 754 (3d Cir. 2000) (quoting Hurley v. Atlantic City Police
Dep't,
174 F.3d 95, 110 (3d Cir. 1999)).

Although lying about the dean's list is arguably probative of Stevens's
character for untruthfulness, the District Court acted within its
discretion when it concluded that the remoteness in time of the incident
-- Stevens submitted the resume more than nine years before the trial
-- substantially diminished its probative value. See 4 Weinstein's Federal
Evidence (Joseph M. McLaughlin ed., 2d ed. 2001), S 608.22[2][c], at
608-63 & nn.42-43 (noting that "remoteness in time" is a factor properly
considered by the trial court in limiting cross-examination under Rule
608(b)). Furthermore, the trial court was within its discretion to
conclude
that Stevens's lying on his resume, although duplicitous and wrong, was
not so indicative of moral turpitude as to be particularly probative of
his
character for untruthfulness. See id. at 608-64 (recognizing "[t]he
character of the previous conduct" as another factor properly considered
by the trial court under Rule 608(b)).

In addition to the Rule 608(b) argument, Johnson also contends that
the questioning should have been allowed under Federal Rule of
Evidence 405(b), which permits evidence of specific instances of conduct
when "character or a trait of character of a person is an essential
element of a charge, claim, or defense." This argument is misplaced,
however, for Stevens's character is not an essential element of any of the
charges against him.
7
with Johnson.   The District Court, however, found that no
new trial was   warranted because the Court's prompt
admonition to   the jury to disregard the statement cured
any potential   prejudice.

Second, as noted above, Johnson contends that the
District Court erred in refusing to permit Radwanski to
testify as to the touching incident with Stevens under
Federal Rule of Evidence 415. Although it did not state so
explicitly, it appears to us that the District Court excluded
the evidence pursuant to Federal Rule of Evidence 403's
balancing inquiry, concluding that the slim probative value
of Radwanski's testimony was outweighed by its potential
for unfairly prejudicing Stevens, misleading the jury,
confusing the issues, and wasting time.

II. Remarks by Stevens's Counsel in His Opening
Statement.

Near the end of his opening statement, Stevens's attorney
commented, "Betsy Sue Johnson reported [the allegations
regarding Stevens] in July of 1995. She talked to the state
police. No arrest." Shortly thereafter, upon the completion
of Stevens's attorney's opening statement, Johnson's
attorney approached the bench and objected to opposing
counsel's mention of "[n]o arrest," asking the trial judge to
declare a mistrial. The judge denied Johnson's motion, but
indicated that he would instruct the jury to ignore what
Stevens's counsel had just said.

Soon thereafter the judge told the jury:

       The one thing I do want to tell you as a result of[the
       sidebar conference] is that the reference by Mr.
       Mazzoni [Stevens's counsel] in his opening to what did
       or did not happen to Mr. Stevens as a result of the
       complaint being lodged with the police is immaterial in
       this case. Forget about that. It has nothing to do with
       your determination in this case as to what happened.

After the jury returned its verdict in favor of Stevens,
Johnson moved for a new trial in part based on her
assertion that the District Court erred in denying her
request for a mistrial. Johnson argued that the opposing

                                 8
counsel's improper reference to "[n]o arrest" influenced the
jury's verdict. The District Court disagreed, finding that the
limited nature of the improper reference, as well as the
clear and strong curative instructions given to the jury
upon plaintiff 's objection, "rendered it extremely unlikely
that the verdict, rendered three days later, was influenced
in the slightest respect by the improper statement."

We review the District Court's denial of a motion for a
new trial for abuse of discretion. See Blanche Rd. Corp. v.
Bensalem Twp., 57 F.3d 253, 264 (3d Cir. 1995). Such a
deferential standard of review is appropriate because "the
trial judge . . . is in a far better position than we to
appraise the effect of the improper argument of counsel."
Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 207
(3d Cir. 1992) (quoting Reed v. Phila. Bethlehem & New
England R.R. Co., 939 F.2d 128, 133 (3d Cir. 1991)).

There is no doubt that the mention of "[n]o arrest" by
Stevens's attorney was improper, for evidence of non-arrest,
like evidence of nonprosecution or acquittal of a crime, is
generally inadmissible in a civil trial concerning the same
incident. See Am. Home Assurance Co. v. Sunshine
Supermarket, Inc., 753 F.2d 321, 325 (3d Cir. 1985). This
rule is primarily based on the fact that criminal and civil
trials require different burdens of proof for proving guilt
and liability, respectively. A decision not to arrest,
therefore, may be based on law enforcement authorities'
belief that they would be unable to prove to a jury beyond
a reasonable doubt that the defendant committed the
suspected crime, which does not necessarily indicate that a
plaintiff cannot prove the same by a preponderance of the
evidence in a civil trial. Furthermore, the decision not to
arrest may take into account many factors irrelevant to a
civil suit, such as the allocation of law enforcement
resources and other considerations of prosecutorial
discretion. See id. Because the probative value of evidence
of non-arrest is very limited, courts exclude it in order to
avoid the danger of the jury in a civil trial exaggerating its
worth. Cf. 5 Weinstein's Federal Evidence (Joseph M.
McLaughlin ed., 2d ed. 2001), S 803.28[7], at 803-134

                               9
(discussing the reasons for the exclusion of judgments of
acquittal).3

As an initial matter, it is important to recognize that the
"[n]o arrest" comment, as part of Stevens's attorney's
opening statement, was never formally admitted into
evidence.4 Upon being alerted to the inappropriateness of
the comment by Johnson's attorney, the trial judge swiftly
moved to remedy the situation by instructing the jury to
disregard this statement. The District Court, therefore,
never endorsed as admissible the inappropriate comment of
defense counsel.

To be sure, there are exceptional situations in which a
new trial should be granted due to an attorney's
inappropriate remarks even when the trial judge issues
curative instructions. This is because, as the Supreme
Court recognized in Bruton v. United States, 391 U.S. 123
(1968), jury instructions to disregard particular statements
can sometimes be "intrinsically ineffective" because the
"nonadmissible declaration cannot be wiped from the
brains of the jurors." Id. at 129 (quoting Delli Paoli v. United
States, 352 U.S. 232, 247 (1957) (Frankfurter, J.,
dissenting)).

Despite these concerns, our system of justice,
particularly in the civil context, where the consequences of
_________________________________________________________________

3. Moreover, to the extent that a decision not to arrest is likely based
on
knowledge outside the personal experience of the law enforcement official
responsible for the decision, it amounts to an inadmissible opinion
under Federal Rules of Evidence 602 and 701. See Am. Home Assurance
Co., 753 F.2d at 325.

4. This is in contrast to cases like American Home and Galbraith v.
Hartford Fire Insurance Co., 464 F.2d 225 (3d Cir. 1972), in which we
reversed in part because the trial judges affirmatively permitted counsel
to introduce evidence of nonprosecution. In American Home, for example,
the plaintiff insurance company filed a motion in limine to prevent the
introduction of evidence of nonprosecution for defendant's alleged arson.
The trial court allowed the evidence to be introduced under certain
circumstances, and we reversed, holding that "[t]he admission of this
evidence" was error. 753 F.2d at 325. In Galbraith, the trial court
allowed the defendant to testify as to his nonprosecution. 464 F.2d at
226. We reversed, noting that this testimony was inadmissible and
"highly prejudicial." Id. at 227.

                               10
jury error are not as grave as in the criminal setting, "relies
upon the ability of the jury to follow instructions." Opper v.
United States, 348 U.S. 84, 95 (1954). Even in the criminal
context, exceptions to this general presumption are rare,
made only when there is an "overwhelming probability that
the jury will be unable to follow the court's instructions,
and a strong likelihood that the effect of the evidence would
be devastating to the defendant." Greer v. Miller, 483 U.S.
756, 766 n.8 (1987) (internal quotation marks and citations
omitted). Consequently, because the District Court gave
clear instructions promptly upon plaintiff 's objection to the
mention of "[n]o arrest," we assume that the jury followed
these instructions and ignored the inappropriate remark.
We therefore conclude that the District Court did not abuse
its discretion in declining to grant a mistrial in response to
Stevens's attorney's improper remarks.5
_________________________________________________________________

5. Moreover, the particular circumstances of this incident lead us to
believe that it is not "reasonably probable that the verdict was
influenced
by prejudicial statements." Greenleaf v. Garlock, Inc., 174 F.3d 352, 363-
64 (3d Cir. 1999) (internal quotation marks and citations omitted).
Notably, the remark was an isolated incident occurring on the first day
-- indeed, within the first hour -- of a four-day trial, and likely faded
from the jurors' memories as the trial wore on. This fact distinguishes
this case from others in which our sister courts of appeals have found
that a new trial is warranted even when the trial judge instructed the
jury to ignore counsel's prejudicial remarks. See Rabon v. Great
Southwest Fire Ins. Co., 818 F.2d 306 (4th Cir. 1987) (counsel made
repeated references to nonprosecution in his closing argument); Roberts
v. State Farm Fire & Casualty Co., 809 F.2d 1247, 1251 (6th Cir. 1987)
(counsel emphasized nonprosecution in both his opening statement and
closing argument, and was also permitted to question witnesses about
the subject).

Furthermore, the reference to non-arrest here was not particularly
inflammatory, consisting only of the matter-of-fact utterance "[n]o
arrest." By contrast, in Rabon, which was a civil arson trial, the
defendant's attorney used the issue of nonprosecution to berate the
plaintiff insurance company in his closing argument, making outrageous
statements like, "They are asking you to do what they couldn't get done
in criminal courts," and "[A]fter law enforcement investigated this
matter,
they dismissed the charges, and nobody has gone forward with it but
[the insurance company's private investigator]." 818 F.2d at 308. The
non-inflammatory nature of Stevens's counsel's remark makes it much
more likely that the jury was able to heed the Court's instructions to
ignore it.

                               11
III. Exclusion of Radwanski's Testimony Under
Rule 415

A. The Incident

During the course of the trial, Johnson attempted to
introduce the testimony of Karen Radwanski, a teacher's
associate in the high school's restaurant training program
and a friend of Stevens, regarding an incident in which
Stevens allegedly sexually assaulted her in the office of
another teacher, Tony Blaisure. Radwanski had just walked
into the office carrying lunch when Stevens allegedly picked
her up and threw her over his shoulder. According to
Radwanski, who was wearing a skirt at the time, Stevens's
hand went up her skirt and touched her in the crotch area
while he raised her off the floor. Stevens soon let her down
to the floor and the two of them, along with Blaisure,
proceeded to sit down and eat lunch together.

Whether Stevens's alleged touching of Radwanski's crotch
was intentional or accidental is unclear from the record, as
Radwanski offered somewhat inconsistent accounts of the
incident. In her deposition Radwanski was asked whether
Stevens's finger "linger[ed] . . . on [her] crotch for any
period of time." She responded, "I have to say no." In an
earlier interview conducted by Johnson's attorney outside
the presence of opposing counsel, Radwanski, under oath,
was asked if Stevens had "left his hand [on her crotch] for
a while, a moment, two moments or so," to which she
responded, "Yeah." When asked during her deposition
whether she thought the touching was intentional,
Radwanski seemed unsure: "I guess maybe at the time I
didn't feel right, but I guess the greater part of me not
wanting to think anything was just like, you know,
shrugged it off, no big deal."

B. The District Court's Ruling

Federal Rule of Evidence 415 permits the introduction of
evidence of a similar "offense . . . of sexual assault" in a
civil trial in which a claim for damages, as in this case, "is
predicated on a party's alleged commission of conduct
constituting an offense of sexual assault. . . ." Pursuant to

                                 12
this rule, Johnson sought to introduce Karen Radwanski's
testimony as to the alleged touching incident in an effort to
establish Stevens's propensity for sexual abuse. The
District Court, however, refused to permit Radwanski to
testify because it concluded that the touching incident did
not qualify as an "offense of sexual assault" under the
applicable definition provided by Rule 413(d).6 The District
_________________________________________________________________

6. As an alternative ground for excluding Radwanski's testimony, the
District Court suggested that Johnson had failed to abide by Rule 415's
disclosure requirement. We disagree. Rule 415(b) requires that:

       A party who intends to offer evidence under this Rule shall
disclose
       the evidence to the party against whom it will be offered,
including
       statements of witnesses or a summary of the substance of any
       testimony that is expected to be offered, at least fifteen days
before
       the scheduled date of trial or at such later time as the court may
       allow for good cause.

Johnson claimed that because defense counsel had been present at
Radwanski's deposition, during which the touching incident had been
inquired into by both parties, Stevens was fully aware that Radwanski
was likely to testify as to the incident at trial, particularly because
Johnson's pretrial memorandum, which was filed more than two years
before the trial began, listed Radwanski as a witness and included
Radwanski's deposition in its List of Exhibits. The District Court,
however, found this argument unconvincing, appearing to conclude that
Rule 415(b) required Johnson to provide some form of special
notification of her intent to introduce past sexual assault evidence under
Rule 415. Since Johnson had failed to provide any such special
notification, she was precluded from presenting Radwanski's testimony.

We acknowledge that there are some advantages to the District Court's
interpretation of Rule 415(b), especially from the standpoint of trial
management. Providing specific notice of an intent to present evidence
under Rule 415 may prompt defense counsel to raise the issue in a
pretrial motion in limine rather than in the midst of trial, thereby
enabling the trial judge to focus more sharply on the issue.

Despite these countervailing considerations, we think that in this case
the primary purpose of Rule 415(b)'s disclosure provision -- preventing
a plaintiff from unfairly surprising a defendant at trial with evidence of
an alleged past offense of sexual assault -- was not offended. Cf. United
States v. Carter, 756 F.2d 310, 311-12 (3d Cir. 1985) (declining to
reverse conviction where government failed to provide list of "alibi
rebuttal" witnesses to the defendant as required by Fed. R. Crim. P. 12.1

                               13
Court excluded the testimony without holding an in limine
hearing on the matter, as requested by Johnson. 7

The precise basis for the District Court's conclusion that
the touching incident did not meet Rule 413's definition of
an "offense of sexual assault" is not clear, as the Court did
not make a formal finding on the issue. Rather, it resolved
the matter in several statements that appear in the trial
transcript. It appears from these passages and from the
opinion accompanying the denial of Johnson's motion for a
new trial that the Court was particularly troubled by
concerns about the intentionality of Stevens's conduct. In
its remarks on the record, the Court stated:

       I think there's insufficient evidence that the touching
       was in any way intentional. . . . It was obviously a part
       of horseplay in the presence of another person, and the
       conduct of the parties indicated at the time that it was
       not viewed as an intentional touching of that area.

As further evidence of the lack of intentional conduct on
the part of Stevens, the Court considered it important that
Radwanski declined to mention the incident to the state
police when being interviewed in connection with Johnson's
criminal complaint against Stevens. As the Court noted, "I
have great uncertainty that [the touching incident] qualifies
as a sexual assault under any of [Rule 413's] terms when
[Radwanski] didn't think it was sufficiently offensive to tell
the state police when she's being interviewed about this
conduct."
_________________________________________________________________

and this failure did not result in any "surprise" to the defendant at
trial).
Because defense counsel was present at Radwanski's deposition and
questioned her specifically about the touching incident, we think that
the evidence had been adduced in such a way that Stevens would
reasonably understand its significance. Consequently, permitting
Radwanski to testify as to the incident at trial would not have unfairly
surprised Stevens, and we cannot say that Rule 415(b)'s disclosure
provision was offended.

7. Actually, at trial Johnson objected to the Court's refusal to hold an
"in
camera proceeding." We assume, however, that what Johnson was
requesting was not an in camera proceeding but an in limine hearing.

                               14
While it did not do so in terms, our reading of the
transcript persuades us that what the Court really did was
to engage in a kind of balancing exercise, see Fed. R. Evid.
403, whereby it excluded the evidence because its slight
probative value was outweighed by other factors such as
the danger of unfair prejudice, confusion of the issues, and
waste of time.

C. History and Background of Rules 413-15

Federal Rules of Evidence 413-15 are relatively recent
additions to the Rules, adopted by Congress as part of the
Violent Crime Control and Law Enforcement Act of 1994.
Pub. L. No. 103-322, 108 Stat. 1796 (1994). Evidence law
has historically prohibited the admission into evidence of
"other crimes, wrongs, or acts . . . to prove the character of
a person in order to show action in conformity therewith."
Fed. R. Evid. 404(b). Rules 413-15 establish exceptions to
the general prohibition on character evidence in cases
involving sexual assault and child molestation. Rules 413
and 414 apply to criminal proceedings, while Rule 415
applies to civil trials.

Ever since their initial proposal, Rules 413-15 have been
met with hostility by the legal establishment. See Judicial
Conference of the U.S., Report of the Judicial Conference on
the Admission of Character Evidence in Certain Sexual
Misconduct Cases, 159 F.R.D. 51, 52 (1995) [hereinafter
Judicial Conference Report] (observing the opposition of an
"overwhelming majority of judges, lawyers, law professors,
and legal organizations" to the proposed rules); Christopher
B. Mueller & Laird C. Kirkpatrick, Evidence Under the Rules
475 (3d ed. 1996) (noting that "the professional reaction to
[Rules 413-15] has been strongly negative"). Although
Congress bypassed the ordinary rulemaking procedures
when adopting Rules 413-15, the enacting legislation
provided the Judicial Conference 150 days within which to
make and submit alternative recommendations on the rules
to Congress. The Judicial Conference's Advisory Committee
on Evidence Rules, with what it noted was "highly unusual
unanimity," ardently opposed the new rules, fearing that
they "could diminish significantly the protections that have
safeguarded persons accused in criminal cases and parties

                               15
in civil cases against undue prejudice." Judicial Conference
Report, 159 F.R.D. at 53. Embracing the views of the
Advisory Committee, the Conference recommended that
Congress "reconsider its policy determinations underlying
Evidence Rules 413-415" or, in the alternative, adopt
amendments to Rules 404 and 405 proposed by the
Advisory Committee. Id. at 54. Congress rejected both
alternatives, and the rules stand today as originally
enacted.

D. Standards for Admission of Evidence under
Rule 415

In order for evidence of a past act to be admitted under
Rule 415, the District Court must determine whether the
act satisfies the applicable definition of an "offense of
sexual assault" provided by Rule 413(d), which states:

       For purposes of this rule and Rule 415, "offense of
       sexual assault" means a crime under Federal law or
       the law of a State . . . that involved --

       (1) any conduct proscribed by chapter 109A of title
       18, United States Code;

       (2) contact, without consent, between any part of the
       defendant's body or an object and the genitals or
       anus of another person;

       (3) contact, without consent, between the genitals or
       anus of the defendant and any part of another
       person's body;

       (4) deriving sexual pleasure or gratification from the
       infliction of death, bodily injury, or physical pain on
       another person; or

       (5) an attempt or conspiracy to engage in conduct
       described in paragraphs (1)-(4).

Although the language of Rule 413(d) is ambiguous as to
whether the past "offense of sexual assault" must be a
conviction, the legislative history of Rules 413-15 indicates
that Congress intended to allow admission not only of prior
convictions for sexual offenses, but also of uncharged
conduct. See 140 Cong. Rec. 23,603 (1994) (Statement of

                               16
Rep. Molinari) ("The practical effect of the new rules is to
put evidence of uncharged offenses in sexual assault and
child molestation cases on the same footing as other types
of relevant evidence that are not subject to a special
exclusionary rule.") (emphasis added); see also United
States v. Meacham, 115 F.3d 1488, 1492 (10th Cir. 1997);
2 Weinstein's Federal Evidence (Joseph M. McLaughlin ed.,
2d ed. 2001), S 413.03[1], at 413-6-7. But see 140 Cong.
Rec. 15,209 (1994) (statement of Rep. Kyl) (stating that the
new rules will not apply to "allegations" but only to "prior
offenses" where "an accused has been convicted of similar
conduct") (emphasis added).

While uncharged conduct is admissible under Rule 415,
some limits, of course, need to be placed on its
admissibility in order to ensure that the plaintiff may not
"parade past the jury a litany of potentially prejudicial
similar acts that have been established or connected to the
defendant only by unsubstantiated innuendo." Huddleston
v. United States, 485 U.S. 681, 689 (1988). At the same
time, for reasons of judicial efficiency and economy, the
district court cannot be expected to conduct a "trial within
a trial" to determine the veracity of the proffered evidence.
So exactly what must a district court do before deciding
whether to admit or exclude evidence of prior sexual
assaults under Rules 413-15? The text of Rules 413-15 is
silent on this issue, and the Supreme Court has never
answered this question in the specific context of these
rules. The Supreme Court has, however, in Huddleston,
considered the same issue in the context of Federal Rule of
Evidence 404(b), which allows for the introduction of
evidence of "other crimes, wrongs, or acts" to prove issues
other than character.

In Huddleston, the prosecution introduced evidence of
another act of the defendant in an attempt to prove his
knowledge of the crime for which he was being tried,
consistent with Rule 404(b). Arguing that "evidence of
similar acts has a grave potential for causing improper
prejudice," the defendant submitted that to avoid this
danger the trial court must make a preliminary finding by
a preponderance of the evidence under Federal Rule of
Evidence 104(a) that the defendant committed the past act.

                                17
485 U.S. at 686-87. The Supreme Court, in a unanimous
opinion, rejected the defendant's position, concluding "that
a preliminary finding by the court that the Government has
proved the act by a preponderance of the evidence is not
called for under Rule 104(a)." Id. at 689. Instead, the Court
identified Rule 104(b), which governs the relevancy of
evidence conditioned on fact, as the applicable safeguard
against the risk of introducing prejudicial unsubstantiated
evidence.

Huddleston identified Rule 104(b) as appropriate because
the question of the defendant's commission of the past act
"was simply one of conditional relevancy -- the relevancy of
the bad act is conditioned on the defendant's having
committed it." Federal Rules of Evidence Manual 388-89
(Stephen A. Saltzburg et al. eds., 7th ed. 1998). Under Rule
104(b), no preliminary finding is required; rather, the trial
"court simply examines all the evidence in the case and
decides whether the jury could reasonably find the
conditional fact -- [whether the defendant committed the
prior act] -- by a preponderance of the evidence."
Huddleston, 485 U.S. at 690.

To recapitulate, Huddleston does not require that a trial
judge make a finding by a preponderance of the evidence;
it simply requires the judge to ask whether "a jury could
reasonably" make such a finding. Presumably, this once-
removed determination of the trial judge lowers the burden
for the party seeking to introduce the prior act evidence,
although exactly by how much is hard to say, as the
standard appears designed to provide the trial court
substantial discretion in admitting conditionally relevant
information. See id. at 690.

In part because of the similarity between Rules 404(b)
and Rules 413-15 -- both allow the admission of past acts,
including uncharged conduct, albeit for different purposes
-- the few courts and commentators that have considered
the issue have concluded that Huddleston's standard for
screening uncharged conduct applies to Rules 413-15. See
United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir.
1998); 2 Weinstein's Federal Evidence, S 413.03[1], at 413-
7. As explained in the margin, we find this position
somewhat problematic in light of the difference between the

                               18
types of evidence that are likely to be introduced under
Rules 404(b) and 413-15: the former allows for the
introduction of "other crimes, wrongs, or acts," whereas the
latter allow evidence of offenses of sexual assault or child
molestation.8 Were it within our power to select the better
rule, therefore, we would be inclined to adopt the more
exacting standard for the admission of past act evidence
rejected by the Court in Huddleston: a preponderance of the
evidence finding under Rule 104(a). We find ourselves
constrained from doing so, however, by the texts of Rules
413-15 as well as by their legislative history, which
indicates that Congress intended that the Huddleston
standard apply in this context.

As noted above, the texts of Rules 413-15 are silent as to
the appropriate standard for admitting evidence of past acts
of sexual assault. Following the Court's reasoning in
Huddleston, this silence alone is an important reason for
not imposing a Rule 104(a) requirement on evidence
introduced under Rules 413-15. In interpreting Rule 404(b),
the Huddleston Court considered it important that Rule
404(b)'s "text contains no intimation . . . that any
_________________________________________________________________

8. In our view, because of the severe social stigma attached to crimes of
sexual assault and child molestation, evidence of these past acts poses
a higher risk, on the whole, of influencing the jury to punish the
defendant for the similar act rather than the charged act than the type
of evidence that is often introduced under Rule 404(b). See Doe ex rel.
Rudy-Glanzer v. Glanzer, 232 F.2d 1258, 1268 (9th Cir. 2000) (noting
"the strong prejudicial qualities" of evidence submitted under Rule 415)
(quoting United States v. Guardia, 135 F.3d 1326, 1330 (10th Cir.
1998)). In light of this higher risk of unfair prejudice, we think the
need
to guard against the introduction of unsubstantiated evidence is greater,
and would be best addressed by requiring the trial court to make a
finding by a preponderance of the evidence under Rule 104(a).

To be sure, certain past acts likely to be introduced under Rule 404(b)
are similarly, if not more highly, stigmatized -- such as murders or
assaults and batteries -- and thereby present a significant risk of
inappropriate punishment. However, many, if not most, of the past acts
introduced under Rule 404(b) -- e.g., burglaries, thefts, etc -- are not
as
potentially inflammatory as offenses of sexual assault or child
molestation. On the whole, therefore, we believe that the risk of unfair
prejudice is less in the Rule 404(b) context than in the context of Rules
413-15.

                               19
preliminary showing is necessary," and that such a
requirement was "nowhere apparent from the language of "
the rule. 485 U.S. at 687-88. Similarly, Rules 413-15 do
not contain any language indicating that a preliminary
finding is necessary.

Moreover, just as in Huddleston the Court noted that the
legislative history counseled against imposing a Rule 104(a)
finding requirement on evidence introduced under Rule
404(b), see 485 U.S. at 688, the legislative history of Rules
413-15 points to the same conclusion in this context. The
principal sponsors of Rules 413-15, Representative Susan
Molinari and Senator Robert Dole, declared in their floor
statements supporting the new rules that an address
delivered to the Evidence section of the Association of
American Law Schools by David J. Karp -- then Senior
Counsel at the Office of Policy Development at the
Department of Justice and the drafter of Rules 413-15 --
was to serve as an "authoritative" part of the Rules'
legislative history.9 140 Cong. Rec. 23,602 (1994)
(statement of Rep. Molinari); 140 Cong. Rec. 24,799 (1994)
(statement of Sen. Dole). In the referenced speech, Mr. Karp
stated clearly that "the standard of proof with respect to
uncharged offenses under the new rules would be governed
by the Supreme Court's decision in Huddleston v. United
States." Evidence of Propensity, 70 Chi.-Kent L. Rev. at 19.

Representative Molinari's and Senator Dole's reference to
a non-legislator's address is a somewhat unusual method
of establishing "authoritative" legislative history.10
_________________________________________________________________

9. The address was reprinted as Evidence of Propensity and Probability in
Sex Offense Cases and Other Cases, 70 Chi.-Kent L. Rev. 15 (1994)
[hereinafter Evidence of Propensity].

10. While relying on the work of a non-legislator is a somewhat unusual
method of establishing legislative history, it is not entirely unknown.
For
instance, the portion of the Private Securities Litigation Reform Act of
1995 that establishes the procedure for selecting a lead plaintiff and for
choosing and retaining lead counsel in securities class actions, 15 U.S.C.
S 78u-4(a)(3), was clearly based on a law review article by Professors
Elliott J. Weiss and John S. Beckerman. See S. Rep. No. 104-98, at 11
n.32 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 690 n.32 (stating that
the article -- Let the Money Do the Monitoring: How Institutional
Investors

                               20
Nevertheless, "[w]e are bound by the intent of Congress, as
we perceive it," and it appears that this reference to Mr.
Karp's address was intended by Congress as a guide to the
judiciary in interpreting Rules 413-15.11 Sperling v.
Hoffmann-La Roche, Inc., 24 F.3d 463, 470 (3d Cir. 1994).
Moreover, we can find nothing in the legislative record to
the contrary. Consequently, we conclude, albeit with some
reluctance, see supra note 8, that Huddleston's standard
for the admission of evidence applies to Rule 415. As such,
a trial court considering evidence offered under Rule 415
must decide under Rule 104(b) whether a reasonable jury
could find by a preponderance of the evidence that the past
act was an "offense of sexual assault" under Rule 413(d)'s
definition and that it was committed by the defendant.
_________________________________________________________________

Can Reduce Agency Costs in Securities Class Actions , 104 Yale L. J. 2053
(1995) -- "provided the basis for the `most adequate Plaintiff '
provision"
of the PSLRA). Although Congress did not refer to the Weiss/Beckerman
article as an "authoritative" part of the legislative history -- as
Representative Molinari and Senator Dole did here with respect to Mr.
Karp's address -- courts interpreting S 78u-4(a)(3) of the PSLRA have
nevertheless taken note of Congress's heavy reliance on the
Weiss/Beckerman article and given it considerable weight when
construing the provision. See, e.g., In re Cendant Corp. Litig., 264 F.3d
201, 262 (3d Cir. 2001).

Similarly, in enacting 11 U.S.C. S 510(b), which provides for the
subordination of any claim for damages "arising from the purchase or
sale" of a security of the debtor, Congress noted that it was relying
heavily on a law review article written by Professors John J. Slain and
Homer Kripke, The Interface Between Securities Regulation and
Bankruptcy -- Allocating the Risk of Illegal Securities Issuance Between
Securityholders and the Issuer's Creditors, 48 N.Y.U. L. Rev. 261 (1973).
See H.R. Rep. No. 95-595, at 196 (summarizing the argument in the
Slain/Kripke article and stating that "[t]he bill generally adopts the
Slain/Kripke position"). The courts construingS 510(b) have accordingly
given considerable weight to the Slain/Kripke article. See, e.g., In re
Granite Partners, 208 B.R. 332, 336 (Bankr. S.D.N.Y. 1997) ("Any
discussion of section 510(b) must begin with the 1973 law review article
authored by Professors John J. Slain and Homer Kripke . . . .").

11. Judge Alito agrees that Huddleston applies here for essentially the
same reasons given in Huddleston, and he expresses no view on whether
this is the best procedure in this situation and does not rely on Mr.
Karp's speech, which is discussed supra.

                               21
Even if a trial court is satisfied that the proffered past act
evidence satisfies Rule 104(b), however, it may still exclude
it under Federal Rule of Evidence 403, which allows for
evidence to "be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence." Initially, there was
some doubt as to whether Rule 403's balancing inquiry was
at all applicable to Rules 413-15. Because the rules state
that evidence of past sexual offenses "is admissible," some
commentators, including the Judicial Conference Advisory
Committee on the Rules of Evidence, interpreted this
language as possibly indicating that the admission of past
sexual offense evidence is mandatory, unconstrained by
Rule 403's prejudice inquiry. Judicial Conference Report,
159 F.R.D. at 53.12

It appears from the legislative history of Rules 413-15,
however, that despite the seemingly absolutist tone of the
"is admissible" language, Congress did not intend for the
admission of past sexual offense evidence to be mandatory;
rather, Congress contemplated that Rule 403 would apply
to Rules 413-15. See, e.g., 140 Cong. Rec. 24,799 (1994)
(Statement of Sen. Dole) ("[T]he general standards of the
rules of evidence will continue to apply [to Rules 413-15],
including . . . the court's authority under rule 403 to
exclude evidence whose probative value is substantially
outweighed by its prejudicial effect.").13

Having concluded that Rule 403 is applicable to Rules
413-15, we now turn to the manner in which the balancing
inquiry ought to be performed. Relying on the legislative
_________________________________________________________________

12. While we express no view on the matter, we note that a policy of
mandatory admission, particularly in the criminal context, has been
thought to raise serious constitutional concerns under the Due Process
Clause. See Enjady, 134 F.3d at 1430; Judicial Conference Report, 159
F.R.D. at 53.

13. While we again express no view on the matter, we note that the
presence of the Rule 403 safeguard has served to assuage the concerns
of at least one of our sister courts of appeals, the Tenth Circuit,
regarding the constitutionality of Rules 413-15 under the Due Process
Clause. See Enjady, 134 F.3d at 1433.

                               22
history, a number of courts and commentators have
concluded that Rule 403 should be applied to Rules 413-15
with a thumb on the scale in favor of admissibility. See
United States v. Larson, 112 F.3d 600, 604 (2d Cir. 1997)
("With respect to the Rule 403 balancing . . . the sponsors
[of Rules 413-15] stated that `[t]he presumption is that the
evidence admissible pursuant to these rules is typically
relevant and probative, and that its probative value is not
outweighed by any risk of prejudice.' ") (quoting 140 Cong.
Rec. S12,990 (daily ed. Sept. 20, 1994) (Statement of Sen.
Dole)); see also United States v. LeCompte, 131 F.3d 767,
769 (8th Cir. 1997) (noting the "strong legislative judgment
that evidence of prior sexual offenses should ordinarily be
admissible"). Indeed, in his speech that is referenced as
part of the "authoritative" legislative history of Rules 413-
15, David Karp observed that there is "an underlying
legislative judgment . . . that the sort of evidence that is
admissible pursuant to proposed Rules 413-15 is typically
relevant and probative, and that its probative value is
normally not outweighed by any risk of prejudice or other
adverse considerations." Evidence of Propensity, 70 Chi.-
Kent L. Rev. at 19.

In our view, this characterization of the role of Rule 403
is overly simplified. It makes sense when the past act
sought to be introduced under Rules 413-15 is
demonstrated with specificity, see Enjady, 134 F.3d at
1433 (identifying "how clearly the prior act has been
proved" as a factor to be considered in assessing the
probative value of evidence of past sexual assaults), and is
sufficiently similar to the type of sexual assault allegedly
committed by the defendant. See United States v. Guardia,
135 F.3d 1326, 1331 (10th Cir. 1998) (noting that"the
similarity of the prior acts" to the acts at issue in the case
is a factor to be considered in determining their probative
value). In these archetypal cases, where the propensity
inference that can be drawn from the past act evidence is
greatest, Congress surely intended for the probative value
of the evidence to outweigh its prejudicial effect, and,
conversely, did not want Rule 403 factors such as undue
delay, waste of time, confusion of the issues, etc., to justify
exclusion. See, e.g., 140 C.R. 15,209 (1994) (Statement of
Rep. Kyl) (recognizing as the archetypal case one in which

                               23
"there is a clear pattern of conduct by an accused who has
been convicted of similar conduct") (emphases added).

In other cases, however, where the past act is not
substantially similar to the act for which the defendant is
being tried, and/or where the past act cannot be
demonstrated with sufficient specificity, the propensity
inference provided by the past act is weaker, and no
presumption in favor of admissibility is warranted. Where a
past act cannot be shown with reasonable certainty, its
probative value is reduced and it may prejudice the
defendant unfairly, confuse the issues, mislead the jury,
and result in undue delay and wasted time -- all reasons
for excluding evidence under Rule 403. The same can be
said of evidence of past acts that are dissimilar to the act
for which the defendant is being tried; in particular, the
introduction of dissimilar past acts runs the risk of
confusing the issues in the trial and wasting valuable time.
Also relevant to the Rule 403 balancing analysis are the
additional factors recognized by the Tenth Circuit in
Guardia: "the closeness in time of the prior acts to the
charged acts, the frequency of the prior acts, the presence
or lack of intervening events, and the need for evidence
beyond the testimony of the defendant and alleged victim."
135 F.3d at 1330 (internal citations omitted).

Finally, it bears repeating that despite these general
guidelines, the Rule 403 balancing inquiry is, at its core, an
essentially discretionary one that gives the trial court
significant latitude to exclude evidence. See Elcock v. Kmart
Corp., 233 F.3d 734, 754 (3d Cir. 2000).

E. Discussion

Johnson contends that Radwanski's testimony as to the
touching incident with Stevens qualified as an "offense of
sexual assault" under Rules 413 and 415, and that the
District Court therefore erred in excluding it. Moreover, at
trial she objected to the fact that the Court did not hold an
in limine hearing on the matter. We apply the legal
standards described above, and review the District Court's
evidentiary rulings for abuse of discretion, see Abrams v.
Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir. 1995), although

                                24
our review of the Court's interpretation of the Federal Rules
of Evidence is plenary. See United States v. Brown, 254
F.3d 454, 458 (3d Cir. 2001).

The District Court correctly noted that in order for the
touching incident to qualify as an "offense of sexual
assault" under Rule 413(d)'s definition, Pennsylvania law,
as we explain in the margin, requires that the touching
have been done intentionally.14 As described in Part I,
supra, Radwanski gave conflicting descriptions of the
incident. In one account she implied that Stevens's hand
merely brushed by her crotch as he lifted her off the
ground; in another she indicated that his hand lingered on
her crotch for a moment or two. See supra at 12. When
asked during her deposition whether she thought the
touching incident was intentional, Radwanski replied, "I
guess maybe at the time it didn't feel right, but I guess the
greater part of me not wanting to think anything just was
like, you know, just shrugged it off, no big deal."15

In deciding to exclude Radwanski's testimony, the
District Court did not indicate what standard for admission
it was applying to the evidence. In keeping with Huddleston,
the Court was not obliged to hold an in limine hearing, as
requested by Johnson, or make a formal finding under Rule
104(a) when excluding the evidence.16 Under Huddleston,
_________________________________________________________________

14. Stevens's touching of Radwanski might be considered a crime of
"indecent assault" under Pennsylvania law, 18 Pa. Cons. Stat. Ann.
S 3126(a)(1-2), which is defined as consisting of "indecent contact."
"Indecent contact," in turn, is defined as touching "for the purpose of
arousing or gratifying sexual desire in either person." 18 Pa. Cons. Stat.
Ann. S 3101. The "for the purpose of " language of the indecent assault
statute clearly establishes that the conduct underlying an offense must
have been intentional.

15. We are aware that victims of sexual assault are often hesitant to
report their assailants for a variety of reasons. See United States
Department of Justice, Bureau of Justice Statistics, National Crime
Victimization Survey (2000) (noting that in 1999"rape or sexual assault
was [the violent crime] least often reported to law enforcement (28%)").
Indeed, for this reason we do not place too much emphasis on the fact
that Radwanski did not report the touching incident to the state police
when they interviewed her in response to Johnson's criminal complaint
against Stevens, a factor relied on by the District Court.
16. Although an in limine hearing is not required, district courts might
find this a useful technique for considering the admission of evidence

                               25
the Court needed only to ask itself whether a jury could
reasonably find by a preponderance of the evidence that
Stevens committed the act intentionally, provided that the
Court was satisfied that the evidence need not be excluded
under Rule 403. Although the Court did not say so
explicitly, it appears to us that the Court concluded that
Radwanski's testimony did not satisfy Rule 403, and it
accordingly -- and appropriately -- bypassed the
Huddleston reasonable jury determination.

The basis for the Court's Rule 403 determination seems
to have been that Radwanski's equivocal testimony was
insufficiently specific as to the intentionality of Stevens's
conduct. The District Court stated, "I think there's
insufficient evidence that the touching was in any way
intentional. . . .". Lacking more specific evidence of
intentionality, the Court apparently concluded that the
probative value of the evidence was slight and was
outweighed by Rule 403's concerns of prejudice, undue
delay, waste of time, etc. This judgment appears to us to be
sound given the equivocal nature of Radwanski's testimony
as regarding the intentionality of Stevens's conduct.17

(Text continued on page 28)
_________________________________________________________________

proffered under Rule 415. Moreover, while a formal"finding" under Rule
104(a) is not required, it would be helpful to our reviewing function if
district courts would state explicitly their reasons for admitting or
excluding evidence under Rules 413-15. See Glanzer, 232 F.3d at 1269
(exhorting the trial court to "make a clear record concerning its decision
whether or not to admit such evidence"). The failure of the District Court
to be more precise in this case is probably explained by the relative
newness of Rule 415. Indeed, this is the first opinion we have written on
Rules 413-15 since their promulgation in 1995.

17. In addition to its concerns about the intentionality of Stevens's
conduct, the District Court also expressed some worry about the fact
that Stevens did not touch Radwanski on the skin, but rather touched
her through her clothing. The Court noted:

       So it would have to again be 413(d)(2). I started to read, contact
       without consent between any part of the defendant's body or an
       object in the genitals or anus of another person. Now, the fact
that
       there was a touching of the crotch, presumably she was clothed and
       unlike the testimony in our case, the Johnson case, there -- this
       does not indicate that there was a touching actually of the
genitals

                                26
       themselves as opposed to the crotch area. That may be a fine
       distinction, but there is that distinction between that testimony.

It appears to us that the District Court thought that the touching
incident would not qualify as an "offense of sexual assault" under Rule
413(d)'s definition because it did not fit within subsection (2)'s
reference
to "contact, without consent, between any part of the defendant's body
. . . and the genitals . . . of another person." Assuming without deciding
that touching through the clothing would not meet the requirements of
subsection (2) by its literal terms, touching through the clothing does
satisfy the requirements of another subsection of Rule 413(d) --
subsection (1), which refers to "any conduct proscribed by chapter 109A
of title 18, United States Code."

Chapter 109A includes 18 U.S.C. S 2244, which proscribes "abusive
sexual contact." Subsection (b) of S 2244 makes it a criminal offense to
"knowingly engage[ ] in sexual contact with another person without that
other person's permission." (Emphasis added). 18 U.S.C. S 2246 makes
clear that "sexual contact" for the purposes of S 2244's "abusive sexual
contact" offense includes 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." (Emphasis added). The fact that
Stevens may have touched Radwanski through the clothing, therefore,
does not preclude the act from qualifying as a sexual offense, provided,
of course, that it meets Rule 413(d)'s threshold requirement of being "a
crime under Federal law or the law of a State."

Under the law of Pennsylvania, skin-to-skin touching is not a
requirement for the commission of a crime of sexual assault.
Pennsylvania law defines "indecent assault" in relevant part as
consisting of "indecent contact" without the complainant's consent or by
forcible compulsion. 18 Pa. Cons. Stat. Ann. S 3126(a)(1-2). "Indecent
contact" is defined as "[a]ny touching of the sexual or other intimate
parts of the person for the purposes of arousing or gratifying sexual
desire, in either person." 18 Pa. Cons. Stat. Ann. S 3101. Unlike its
federal counterpart, Pennsylvania's statutory definition of "indecent
contact" does not explicitly mention whether such contact includes
touching through the clothing. Nevertheless, the Pennsylvania courts
interpreting "indecent contact" have concluded that this term
encompasses touching through the clothing. See Commonwealth v. Ricco,
437 Pa. Super. 629, 634 (1994) (concluding that touching through the
clothing may be considered "indecent contact" and rejecting a per se rule
requiring "skin-to-skin" contact); In the Interest of M.S., a Minor, 10
Pa.

                               27
Additionally, we find the exclusion of the evidence
justifiable for a reason not stressed by the District Court:
the differences between Stevens's alleged assaults of
Radwanski and Johnson. The former occurred in another
teacher's office with that teacher present, involved an adult
co-worker of Stevens, and consisted of a bizarre incident in
which Stevens lifted Radwanski off the ground and placed
her on his shoulders. The latter is said to have taken place
with no one else present in Stevens's office, involved a
minor to whom Stevens served as guidance counselor, and
allegedly involved Stevens making more direct sexual
advances upon a much younger female. In our view, these
dissimilarities reduced significantly the probative value of
Radwanski's testimony. The case law is in accord. See, e.g.,
Doe ex rel. Glanzer v. Rudy-Glanzer, 232 F.3d 1258, 1269-
70 (9th Cir. 2000) (upholding exclusion of prior sexual
assault evidence as too dissimilar because of age difference
between victims and the dissimilar circumstances of the
alleged misconduct).

We also consider it relevant that the alleged touching of
Radwanski appears to have been an isolated incident.
Although Johnson presented evidence of rumors of Stevens
acting inappropriately around female students in her
attempt to attach S 1983 liability to the Administration, see
supra note 1, during her trial against Stevens she did not
attempt to present any other evidence of offenses of sexual
assault allegedly perpetrated by Stevens besides the lone
incident with Radwanski. While the isolated nature of the
incident alone would probably not be enough to warrant
excluding it, we nevertheless consider it a relevant factor
supporting the District Court's decision. See Guardia, 135
_________________________________________________________________

D. & C. 4th 282, 283 (1990) ("The [`indecent contact'] element of
`touching' can be established even though the private parts of the victim
are touched over the clothing.").

In sum, the mere fact that Radwanski alleged to have been touched
through her clothing and not directly on her skin does not preclude the
incident from qualifying as an "offense of sexual assault" under Rule
413(d)'s definition. Hence, to the extent that the District Court's
comment indicates that it excluded Radwanski's testimony on the basis
of this factor, it was in error, though not error of consequence.

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F.3d at 1331 (recognizing "the frequency of the prior acts"
as a factor in determining the evidence's probative value).

In sum, the uncertainty of the testimony regarding
intentionality, the dissimilarities between the similar and
alleged acts, and the isolated nature of the Radwanski
incident reduced significantly the probative value of
Radwanski's testimony. Given this reduced probative value,
any presumption in favor of admissibility was unwarranted,
and the District Court's exclusion of the evidence can be
justified on grounds that its introduction might have
prejudiced Stevens unfairly, misled the jury, confused the
issues, and wasted valuable trial time. Accordingly, we
cannot say that the Court abused its discretion in
excluding Radwanski's testimony.

Conclusion

For the foregoing reasons, we will affirm the District
Court's order granting summary judgment to the
Administration and its order denying Johnson's motion for
a new trial.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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