                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAR 12 2018
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-30295

               Plaintiff-Appellee,               D.C. No.
                                                 CR 15-21-BLG-SPW
 v.

GEORGE CHAD DEPUTEE,                             MEMORANDUM*

               Defendant-Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Susan P. Watters, District Judge, Presiding

                              Submitted March 6, 2018**
                                 Seattle, Washington

Before: RAWLINSON and CHRISTEN, Circuit Judges, and BENCIVENGO,***
District Judge.




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
         ***
             The Honorable Cathy Ann Bencivengo, United States District Judge
for the Southern District of California, sitting by designation.
      George Chad Deputee appeals a jury verdict finding him guilty on two

counts of sexual abuse of a minor in violation of 18 U.S.C. §§ 1153(a), 2241(c),

and 2244(a)(1). He argues that the district court erred when it admitted testimony

from the victim’s sister (“Sister”) about uncharged sexual abuse by Deputee. We

have jurisdiction under 28 U.S.C. § 1291 and affirm.

      Deputee does not dispute that Sister’s testimony fell within the scope of

Federal Rules of Evidence 413 and 414, which permit the admission of evidence

that the defendant committed any other sexual assault, or any other child

molestation, respectively. Instead, Deputee contends that the district court did not

balance whether Sister’s testimony about uncharged abuse was more probative

than prejudicial pursuant to Rule 403.

      When determining whether to admit evidence of a defendant’s prior acts of

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

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

‘closeness in time of the prior acts to the acts charged,’ (3) ‘the frequency of the

prior acts,’ (4) the ‘presence or lack of intervening circumstances,’ and (5) ‘the

necessity of the evidence beyond the testimonies already offered at trial.’” United

States v. LeMay, 260 F.3d 1018, 1028 (9th Cir. 2001) (quoting Doe ex rel. Rudy-

Glanzer v. Glanzer, 232 F.3d 1258, 1268 (9th Cir. 2000)). The district court


                                            2
considered each of these factors when it denied Deputee’s motion in limine to

exclude Sister’s testimony about Deputee’s uncharged abuse. We therefore review

the district court’s ruling for an abuse of discretion. Id. at 1024.

      Deputee contends that the district court abused its discretion because it did

not consider the credibility of Sister’s testimony. Specifically, Deputee argues that

the requirements of Federal Rule of Evidence 104(b) were not satisfied. Rule

104(b), however, did not require the district court to weigh Sister’s credibility or

determine that the government had proved that Deputee abused Sister by a

preponderance of the evidence. The district court was required only to examine

“all the evidence in the case and decide[] whether the jury could reasonably find

the conditional fact—[here, that Deputee had abused Sister]—by a preponderance

of the evidence.” Huddleston v. United States, 485 U.S. 681, 690 (1988). Sister’s

testimony was sufficient, without more, to allow a jury to find by a preponderance

that Deputee had abused Sister. See United States v. Redlightning, 624 F.3d 1090,

1120 (9th Cir. 2010). Accordingly, Sister’s testimony satisfied Rule 104(b), and

the district court did not abuse its discretion when it admitted Sister’s testimony

under Rules 403, 413, and 414.

      AFFIRMED.




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