                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                  v.
                                                 No. 03-4777
NED EDWARD STAMPER, JR., a/k/a
Eddie Stamper, a/k/a Eddie,
               Defendant-Appellant.
                                       
           Appeal from the United States District Court
    for the Western District of North Carolina, at Bryson City.
               Lacy H. Thornburg, District Judge.
                            (CR-02-74)

                       Submitted: June 30, 2004

                       Decided: August 11, 2004

         Before MICHAEL and KING, Circuit Judges, and
                HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant. Robert J. Conrad, Jr., United States Attorney,
Donald D. Gast, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
2                      UNITED STATES v. STAMPER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Ned Edward Stamper, Jr., was convicted by a jury for committing
a sexual act on a person physically incapable of declining participa-
tion, 18 U.S.C. §§ 1153, 2242(2) (2000), and committing a sexual act
with a minor between the ages of twelve and sixteen, 18 U.S.C.
§§ 1153, 2243(a) (2000). He received a 136-month sentence. Stamper
maintains on appeal that, while the admission of the testimony of two
victims of prior sex offenses is governed by Rules 413 and 414 of the
Federal Rules of Evidence, the district court erred in not excluding the
testimony under Fed. R. Evid. 403 because the prejudicial effect of
admitting the evidence outweighed its probative value. Assuming that
the testimony was admissible, Stamper further argues that Rules 413
and 414, as applied to him in this case, violate the Fifth Amendment
to the U.S. Constitution by treating similarly situated persons differ-
ently absent a rational basis for doing so. Finding no reversible error,
we affirm.

   This Court reviews a district court’s evidentiary rulings for abuse
of discretion. United States v. Leftenant, 341 F.3d 338, 342 (4th Cir.
2003), cert. denied, 124 S. Ct. 1183 (2004). This Court defers to the
balancing engaged in by the district court under Rule 403 "unless it
is an arbitrary or irrational exercise of discretion." United States v.
Heater, 63 F.3d 311, 321 (4th Cir. 1995).

   Rules 413 and 414 of the Federal Rules of Evidence create excep-
tions to the general rule that evidence of past crimes may not be used
"to prove the character of a person in order to show action in confor-
mity therewith." See Fed. R. Evid. 404(b). While 404(b) limits the
purposes for which prior bad act evidence may be used, Rule 413
explicitly states that evidence of prior acts of sexual assault is admis-
sible for "any matter to which it is relevant" in an ongoing sexual
assault prosecution. See Fed. R. Evid. 413. Likewise, Rule 414 per-
                      UNITED STATES v. STAMPER                       3
mits the introduction of evidence of past child molestation offenses
in child molestation prosecutions. See Fed. R. Evid. 414. Hence,
unlike Rule 404(b), Rules 413 and 414 allow the admission of evi-
dence for the purpose of establishing propensity to commit other sex-
ual offenses. See United States v. Castillo, 140 F.3d 874, 879 (10th
Cir. 1998) (stating that in child molestation cases, Rule 414 replaces
Rule 404(b) and allows the prosecution to use evidence of a defen-
dant’s prior acts for the purpose of demonstrating to the jury that the
defendant had a disposition of character, or propensity, to commit
child molestation); United States v. LeCompte, 131 F.3d 767, 769-70
(8th Cir. 1997) (acknowledging Congressional intent that the new
rules, Rule 413 and Rule 414, will supersede in sex offense cases the
restrictive aspects of 404(b)); United States v. Larson, 112 F.3d 600,
604 (2d Cir. 1997) (noting that in contrast to Rule 404(b), Rule 414
permits evidence of other instances of child molestation as proof of,
inter alia, a "propensity" of the defendant to commit child molesta-
tion offenses).

   Evidence offered under Rules 413 and 414 must satisfy three ele-
ments: (1) the defendant must be accused of an offense of sexual
assault or child molestation; (2) the evidence proffered must pertain
to the defendant’s commission of another sexual assault or child
molestation; and (3) the evidence must be relevant. Fed. R. Evid.
413(a); Doe v. Glanzer, 232 F.3d 1258, 1268 (9th Cir. 2000); United
States v. Guardia, 135 F.3d 1326, 1328 (10th Cir. 1998).

   Evidence that is relevant under Rules 413 and 414, however, is also
subject to Fed. R. Evid. 403. See Castillo, 140 F.3d at 884 (applying
Rule 403 to Rule 414 evidence); Guardia, 135 F.3d at 1330 (holding
that the balancing test of Rule 403 applies to Rule 413 evidence).
Therefore, even if the district court concludes that the proffered evi-
dence falls within the ambit of either Rule 413 or 414, it must still
consider whether the probative value of the evidence is "substantially
outweighed" by the risk of prejudice, confusion, or undue delay. Fed.
R. Evid. 403. However, Rule 403 must be applied to allow Rules 413
and 414 their intended effect. LeCompte, 131 F.3d at 769; see also
Guardia, 135 F.3d at 1331 (noting Congressional intent that the pre-
sumption be in favor of admission); Larson, 112 F.3d at 604 (quoting
Congressional sponsors’ statements that "[t]he presumption is that the
evidence admissible pursuant to these rules is typically relevant and
4                      UNITED STATES v. STAMPER
probative, and that its probative value is not outweighed by any risk
of prejudice").

   As part of its Rule 403 analysis, the district court should consider
factors that affect the probative value of the proffered evidence,
including the similarity of the prior acts to the act charged, the close-
ness in time of the prior acts to the charged conduct, the frequency
of the prior acts, the presence or absence of intervening events, and
the need for additional testimony to explain the prior acts. Blind-Doan
v. Sanders, 291 F.3d 1079, 1082 (9th Cir. 2002); Guardia, 135 F.3d
at 1331. In light of the sensitive nature of the evidence proffered, it
is important that the district court fully evaluate these factors and oth-
ers that might arise on a case-by-case basis, and make a clear record
concerning its decision whether or not to admit such evidence. Blind-
Doan, 291 F.3d at 1082; Guardia, 135 F.3d at 1331. We find that the
district court did not abuse its discretion in admitting the evidence.

   Stamper next argues that Rules 413 and 414 are unconstitutional as
applied to him because Congress lacked a rational basis to enact the
rules. The constitutionality of a statute is reviewed de novo. United
States v. Sun, 278 F.3d 302, 308 (4th Cir. 2002). We reject Stamper’s
argument of the constitutionality on equal protection grounds. See
United States v. McHorse, 179 F.3d 889, 897 (10th Cir. 1999) (reject-
ing defendant’s argument that Rule 414(a) violates the Fifth Amend-
ment’s equal protection guarantees because federal sex crime
prosecutions are disproportionately targeted at Native Americans);
Castillo, 140 F.3d at 883 (holding that Congress’ objective of enhanc-
ing effective prosecution of child sexual abuse is a rational basis for
Rule 414(a)); United States v. Enjady, 134 F.3d 1427, 1434 (10th Cir.
1998) (rejecting equal protection claim stating that nature of sex
offense prosecutions frequently involve victim-witnesses who are
traumatized and unable to effectively testify, and offenders who often
have committed many similar crimes before their arrest on the
charged crime); see also United States v. LeMay, 260 F.3d 1018, 1027
(9th Cir. 2001) (holding that Rule 414 does not violate the Due Pro-
cess Clause of the Constitution); United States v. Mound, 149 F.3d
799, 800-01 (8th Cir. 1998) (concluding that Rule 413 passes consti-
tutional muster if Rule 403 protections remain in place).

   Accordingly, we affirm Stamper’s convictions and sentence. We
dispense with oral argument because the facts and legal contentions
                     UNITED STATES v. STAMPER                     5
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

                                                        AFFIRMED
