                  United States Court of Appeals
                               For the Eighth Circuit
                           ___________________________

                                   No. 18-2604
                           ___________________________

                                United States of America

                           ll             Plaintiff - Appellee

                                           v.

                                     Ira Alan Arias

                       l               Defendant - Appellant
                                    ____________

                     Appeal from United States District Court
                    for the District of South Dakota - Aberdeen
                                   ____________

                                Submitted: June 13, 2019
                                 Filed: August 26, 2019
                                     ____________

Before COLLOTON, KELLY, and ERICKSON, Circuit Judges.
                          ____________

ERICKSON, Circuit Judge.

      Ira Alan Arias was convicted by a jury of three counts of aggravated sexual
abuse of a child. Arias raises three issues on appeal. First, he argues that the trial
court erred in permitting two witnesses to offer Federal Rule of Evidence 413
testimony because their allegations were not substantially similar to the instant
offense and were subject to exclusion under Federal Rule of Evidence 403 as unfairly
prejudicial to him. Second, he argues that a mistrial was required when a government
witness blurted a statement that violated an order in limine prohibiting references to
Arias’s incarceration. Third, he argues that the district court abused its discretion by
permitting testimony by the victim that she had been diagnosed with additional
mental health issues post-offense while failing to conduct an in camera review of
mental health records related to the diagnosis. We affirm the district court on the first
two issues, but remand to the district court for an in camera review of the mental
health records to determine whether refusal to allow access to the records was
harmless.

I.    Background

       Arias attended his sister’s wedding on May 2, 2015. His minor niece, K.P.,
also attended the wedding. K.P. later alleged that Arias sexually assaulted her in the
hotel room they were sharing for the wedding. In particular, K.P. alleged that Arias
groped her genitals before forcibly raping her. K.P. reported that she also suffered
scarring on her right arm from being pinned against a bed frame. There were no other
witnesses to the assault.

      Following a voluntary dismissal without prejudice of a second superceding
indictment, the grand jury indicted Arias on April 4, 2018, charging him with three
counts of Aggravated Sexual Abuse of a Child, in violation of 18 U.S.C. §§ 1153,
2241(c), and 2246(2)(A), (B), and (C). The trial commenced on April 16, 2018.

       Prior to trial, the district court ruled on several motions. The first dispute
centered around K.P.’s mental health records. Arias sought the production of K.P.’s
mental health records from a facility in Tennessee where K.P. reportedly received
treatment. Arias was aware of the records because K.P.’s grandmother stated that
K.P. was receiving treatment at the facility. The court denied the request deeming it
a “fishing expedition.” Arias next moved for production of mental health records pre-

                                          -2-
dating the alleged offense date. The district court denied the second motion, again
finding that the requests appeared to be a “fishing expedition” and that K.P.’s mental
health records were protected by the psychotherapist-patient privilege. At no point
during the relevant proceedings was the government in possession of the requested
treatment records. The court did, however, rule that Arias would be allowed to
question the victim regarding her diagnosis of bipolar disorder which pre-dated the
alleged assault.

       The government gave notice of five witnesses it intended to call to testify under
Federal Rule of Evidence 413. Arias moved to strike each of the witnesses,
contending that the testimony was not sufficiently similar and that any probative
value was substantially outweighed by its unfair prejudice. After reviewing the
proposed testimony, the district court excluded three of the witnesses’s testimony as
too dissimilar from the current offense to “establish a pattern of behavior” under Rule
413. The district court permitted the proposed testimony from the remaining two
witnesses. Each of those two witnesses was prepared to testify that, like K.P., she
knew Arias and was sexually assaulted by him. Each witness would also testify: that
Arias groped the witness’s breasts; that he otherwise used force throughout the
assault; that he used alcohol on the night of the assault; that the assault happened in
the early morning hours; and that he committed the assault in a location where the
witness was isolated. The district court held that this testimony was sufficiently
similar to the instant offense to support admission. Finally, the district court entered
an order in limine prohibiting the introduction of evidence regarding Arias’s
incarceration or recent release from incarceration.

      At trial the government sought to introduce the issue of K.P.’s mental health
on direct examination. The government began by asking K.P. whether her parents’
divorce had an effect on her health. K.P. responded that she was diagnosed with
depression. The government then asked her: “Have you been diagnosed with



                                          -3-
anything else?” K.P. responded, “Yes. After this incident had happened, not the
divorce.” Arias’s objection was overruled.

      The questioning continued. The government eventually asked the following
question: “Since the assault, have you since been diagnosed with something else?”
K.P. responded “Yes.” Arias’s objection was again overruled. The government
followed up, asking “What?”, to which K.P. responded, “Anxiety and PTSD.”

       Arias asked for leave to make a motion outside of the presence of the jury and
to strike the answer. In response, the court offered the following instruction:

      The Court will instruct you that psychologically – psychological
      symptoms diagnosed post-incident, post-May of 2015, are extremely
      limited relevance to you all, if any. What the Court was expecting is
      something that had been diagnosed prior to May of 2015 as the answer.
      But the Court does think that the testimony as given can stand.

During recess, Arias objected to the testimony and moved for a mistrial, arguing that
it was “a due process violation and a confrontation clause violation” to allow
testimony about K.P.’s mental health while denying access to the witness’s mental
health records. Arias noted that, without the records, he had no idea whether or not
that diagnosis had ever been made. The court denied the motion and stated that it did
not believe allowing the statement was “harmful in any significant way to the
defendant.”

       Arias renewed his objection the following day, reiterating the argument that a
diagnosis of PTSD by a mental health professional bolstered the credibility of K.P.’s
allegations and that fundamental fairness required that the mental health records be




                                         -4-
produced to allow for effective cross-examination of K.P. on that point.1 The district
court again denied the motion, explaining that allowing testimony about K.P.’s pre-
existing mental health issues was sufficient without requiring review of mental health
records.

       A police officer also testified about the investigation of Arias after the alleged
assault of one of the Rule 413 witnesses. During his testimony, he stated that Arias
was in custody in 2001 because Arias was “under arrest for a parole violation.” Arias
objected, arguing that the testimony violated the order in limine prohibiting evidence
about his prior incarceration. The court gave the jury the following curative
instruction:

             Disregard anything about a parole violation. People can be on
      parole for any small matter. And the fact that he was—had a parole
      violation isn’t to be considered by you in any way. The answer that the
      Court was looking for is that he was in custody. The Court will take up
      any further matters outside the hearing of the jury, but you are instructed
      to disregard that there was some parole violation.

       Arias was convicted on all three counts. The district court sentenced Arias to
three concurrent terms of 360 months’ imprisonment to be followed by six years of
supervised release. Arias timely appealed.

II.   Discussion

      A.     Admission of Evidence of Prior Sexual Misconduct



      1
        As Arias’s counsel put it, “After obtaining that Court’s ruling that the mental
health records will not be released, my position is the government opens the door by
asking K.P. about post-incident diagnosis, and K.P. waives her psychotherapist
privilege by disclosing her diagnosis.”

                                          -5-
       “We will not reverse a district court’s evidentiary rulings unless they constitute
a clear and prejudicial abuse of discretion.” United States v. Holy Bull, 613 F.3d 871,
873 (8th Cir. 2010). A “district court’s balance of the prejudicial and probative
impacts of evidence is accorded ‘great deference.’” United States v. Crow Eagle, 705
F.3d 325, 328 (8th Cir. 2013) (quoting United States v. Pumpkin Seed, 572 F.3d 552,
558 (8th Cir. 2009)).

       Rule 413(a) specifically allows the court to admit evidence that the accused has
committed “any other sexual assault.” Fed. R. Evid. 413(a). The evidence of prior
similar offenses may be considered for all relevant purposes “including the
defendant’s propensity to commit such offenses.” United States v. Gabe, 237 F.3d
954, 959 (8th Cir. 2001) (citing Fed. R. Evid. 413(a), 414(a)). Such evidence still
must satisfy Federal Rule of Evidence 403, but should be admitted “unless its
probative value is ‘substantially outweighed’ by one or more of the factors
enumerated in Rule 403, including ‘the danger of unfair prejudice.’” Id. (quoting
United States v. LeCompte, 131 F.3d 767, 769 (8th Cir. 1997)). Our standard for
admitting evidence under Rule 413 recognizes that the rule embodies a “strong
legislative judgment that evidence of prior sexual offenses should ordinarily be
admissible.” LeCompte, 131 F.3d at 769.

       Under our deferential standard of review, the district court’s decision to admit
the testimony of two witnesses who claimed they were sexually assaulted by Arias did
not amount to a clear and prejudicial abuse of discretion. The record reflects that the
district court engaged in the required balancing test before deciding to admit the
testimony of the two witnesses (and excluded three other witnesses because their
alleged incidents were not meaningfully similar to the instant case). The proposed
testimony of the two witnesses aimed to establish a pattern of behavior in which
Arias, after a night of drinking, felt emboldened to commit sexual assault on females
he was familiar with once they were in secluded locations. While there were other
factual discrepancies among the assaults, Arias was given the opportunity to cross-

                                          -6-
examine the witnesses regarding those differences and to argue to the jury that the
incidents were too dissimilar to be given any weight. Arias likewise had a chance to
address other issues concerning the reliability of the witnesses’ testimony, such as the
lapse in time since the prior assault, through cross-examination. Cf. Gabe, 237 F.3d
at 960 (affirming the admission of testimony of an assault that occurred twenty years
before the offense at issue by noting that issues of reliability were subject to cross-
examination).

       While we understand Arias’ objections that these incidents are not similar
enough or close enough in time and acknowledge that this presents a close question,
under our precedent applying Rule 413, the district court did not commit a clear and
prejudicial abuse of discretion by allowing testimony from the two witnesses. See
United States v. Never Misses A Shot, 781 F.3d 1017, 1028 (8th Cir. 2015) (affirming
that the applicable legal standard under Rule 413 and Rule 403 “doesn’t require that
the testimony be identical or nearly identical to what’s alleged in the indictment”).2

      B.     Denial of Motion for Mistrial Regarding Evidence of Arias’s Prior
             Incarceration

      “The denial of a motion for mistrial is reviewed for an abuse of discretion.”
United States v. Thompson, 533 F.3d 964, 971 (8th Cir. 2008) (citing United States
v. Smith, 487 F.3d 618, 622 (8th Cir. 2007)). “We give the district court ‘broad


      2
       Arias also argues that various remarks offered during the testimony of one of
the witnesses were so inflammatory that they could not be addressed via curative
action by the court. The court sustained objections to almost all of the challenged
testimony and specifically informed the jury to disregard several of the comments.
“A jury is presumed to follow its instructions.” United States v. Flute, 363 F.3d 676,
678 (8th Cir. 2004) (quoting Weeks v. Angelone, 528 U.S. 225, 234 (2000)). We see
no clear and prejudicial abuse of discretion with regard to the court’s treatment of the
comments.


                                          -7-
discretion to grant or deny a motion for mistrial because it is in a far better position
to weigh the effect’ of any possible prejudice.” United States v. Urqhart, 469 F.3d
745, 749 (8th Cir. 2006) (quoting United States v. Davidson, 122 F.3d 531, 538 (8th
Cir. 1997)). “Admission of a prejudicial statement is normally cured by striking the
testimony and instructing the jury to disregard the remark.” United States v. Brandon,
521 F.3d 1019, 1026 (8th Cir. 2008) (citing United States v. Urick, 431 F.3d 300, 304
(8th Cir. 2005)). “We assume that the jury followed the district court’s instruction.”
United States v. Fletcher, 322 F.3d 508, 516 (8th Cir. 2003). “[W]here there is
‘substantial evidence of appellant’s guilt, any error in the failure to declare a mistrial
was harmless.’” Urqhart, 469 F.3d at 749 (quoting Urick, 431 F.3d at 305).

       The district court did not abuse its discretion when it denied the motion for
mistrial. The court immediately struck the testimony and provided a thorough
curative instruction to dispel any possibility that the jury would consider it.
Considering the nature of the charged offenses and the evidence against Arias, a
blurted comment that Arias had previously committed a parole violation was not the
sort of evidence that would create “an overwhelming probability” that the jury would
be unable to follow the court’s curative instruction. See United States v. Uphoff, 232
F.3d 624, 626 (8th Cir. 2000). We affirm the district court’s denial of the motion for
mistrial.

      C.     Denial of Motion for Mistrial Concerning Statements Indicating a PTSD
             Diagnosis

       The Sixth Amendment recognizes the right of defendants to confront witnesses
in criminal proceedings. See U.S. Const. amend. VI. We ordinarily review
“evidentiary rulings regarding the scope of a cross examination for abuse of
discretion, but where the Confrontation Clause is implicated, we consider the matter
de novo.” United States v. White Plume, 847 F.3d 624, 629 (8th Cir. 2017) (quoting
United States v. Williams, 796 F.3d 951, 960 (8th Cir. 2015)). The Confrontation


                                           -8-
Clause “guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the
defense might wish.” United States v. Jasso, 701 F.3d 314, 316 (8th Cir. 2012)
(quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)). Arias argues
that the joint effect of the district court’s decision to both permit K.P.’s testimony that
she had been diagnosed with PTSD after the alleged assault and deny Arias’s request
that any records related to that diagnosis be produced for examination denied him the
opportunity to effectively cross-examine his accuser. The Confrontation Clause
provides two types of protection for a criminal defendant: the right to physically
confront his accuser and the right to conduct cross-examination. Pennsylvania v.
Ritchie, 480 U.S. 39, 51 (2018) (plurality opinion) (citing Fensterer, 474 U.S. at 18-
19 (1985)). We do not dispute the plurality view in Ritchie that the right of
confrontation is a trial right and not a “constitutionally compelled rule of pretrial
discovery.” Id. at 52 (plurality opinion).

       At the same time, we agree with Arias that K.P.’s testimony that she had
received a post-assault diagnosis of PTSD tends to substantially bolster her
accusation of a sexual assault. The clear implication of the testimony is that an
objective medical professional found that she had suffered a traumatic event, and the
timing of the diagnosis would tend to suggest to the jury that the assault was that
event.

       We likewise agree with Arias that the court’s decision to permit questioning
on other mental health issues, such as her pre-assault diagnosis of bipolar disorder,
did not address the bolstering issue. The district court’s response to Arias’s objection
reiterated that the defense would be able to question the victim’s reliability on the
basis of her mental health. But that theory of defense concerned whether, on the basis
of acknowledged pre-existing mental health issues, the victim may have erred or
otherwise made untrue statements regarding the assault (even if unknowingly).
Arias’s objections and motions for mistrial both at the time of the statement and the

                                           -9-
following day made clear that the PTSD-diagnosis testimony presented difficulties
different from K.P.’s pre-existing mental health issues. We conclude the district court
erred by failing to sustain Arias’s objection to the prosecutor’s questioning that
elicited testimony from K.P. about her post-assault PTSD diagnosis and after that
testimony was introduced by failing to strike it. Without access to the records, Arias
was unable to ascertain whether or not K.P.’s testimony that she had been diagnosed
with PTSD was accurate or whether other traumatic incidents were related to the
PTSD diagnosis—separate issues dealing with a distinct mental illness, and which
correspondingly would raise alternative theories of defense. And if the records
revealed that there was no diagnosis, then Arias was denied the opportunity to cross-
examine on an issue which would have directly related to K.P.’s credibility in a case
that rested entirely on conflicting testimony.

       We emphasize that the district court committed no error in its pretrial rulings;
however, once the questioning of K.P. opened the door to a line of questioning
regarding her PTSD, the Confrontation Clause became implicated, because if the
PTSD testimony was allowed to be weighed by the jury, the defendant had a
constitutionally protected opportunity for effective cross-examination. Our ability
to review and analyze Arias’s Confrontation Clause claim is hampered by the fact that
K.P.’s mental health records have never been produced. At this time we do not have
the means for effective appellate review because no court has ever examined the
records in question. As a result, we are unable to determine whether the failure to
allow access to the records was a permissible limitation on cross-examination or
whether Arias was denied access to information that might dramatically undermine
the testimony of his accuser, the sole eyewitness to the assault. It is possible that the
records contain no diagnosis of PTSD. It is possible that the records contain a
diagnosis of PTSD related to these offenses. It is also possible that K.P. might have
experienced other traumatic events in her life that led to the PTSD diagnosis.
Without some review of the records, we cannot evaluate Arias’s Confrontation Clause
claim.

                                          -10-
       Accordingly, we think it appropriate to remand the case for the limited purpose
of conducting an in camera review of the records to determine the appropriate course
of action. In United States v. Lapsley, we remanded to the district court for the
limited purpose of determining whether or not disclosure of the identity of a
confidential informant was “essential to a fair determination of the case.” 263 F.3d
839, 841 (8th Cir. 2001). In United States v. Garcia, we remanded the case so that
the district court could review the PSRs of two cooperating witnesses in camera to
determine whether the PSRs contained any Brady/Giglio information that would
satisfy the materiality standard. 562 F.3d 947, 952 (8th Cir. 2009). A similar review
is required in this case to evaluate whether the court’s refusal to allow access to
K.P.’s mental health records once K.P. testified she had been diagnosed with PTSD
after being sexually assaulted by Arias was harmless.

        We note that this is an unusual case in that we are unable to determine the
prejudicial impact of evidence that was put before the jury. The government suggests
that the limiting instruction that the court gave following the statement ensured no
prejudice resulted. The limiting instruction did not inform the jury to entirely
disregard the statement, but instead attempted to instruct the jury to give the statement
little weight. The instruction therefore contradicted the ordinary rule that weighing
the evidence “is the province of the jury”—a rule which the court explicitly re-
instructed the jury on at the close of trial. See United States v. McDonald, 826 F.3d
1066, 1073 (8th Cir. 2016) (quoting United States v. White, 794 F.3d 913, 918 (8th
Cir. 2015)). As a result, we are unable to rely on the principle that juries are
presumed to follow the court’s instructions.

       On remand, the court is to review the records in camera to evaluate whether the
failure to allow access to K.P.’s mental health records was harmless. If the court
determines that Arias was not harmed by their exclusion, it may leave the records
under seal to protect the witness’s privacy.



                                          -11-
III.   Conclusion

       We affirm the district court on all issues besides the motion for mistrial
regarding the accusing witness’s testimony that she received a diagnosis of PTSD
following the assault. We remand the case to the district court for the limited purpose
of conducting an in camera review of the records to determine whether the failure to
allow access to K.P.’s mental health records was harmless. If the in camera review
reveals no producible evidence and no possible Confrontation Clause violation exists,
the district court will notify the parties of this conclusion. If the in camera review
reveals that there may have been a violation of Arias’s rights, the court may provide
information to the parties for such further motions or briefing as is appropriate.

COLLOTON, Circuit Judge, dissenting.

       The right to confrontation under the Sixth Amendment guarantees a defendant
an opportunity for effective cross-examination. But it does not provide a right to
compelled discovery of information from a third party that might assist the defendant
in cross-examining a witness. The court’s ruling that the Confrontation Clause
required production of mental health records from witness K.P.’s psychotherapist for
use in cross-examining K.P. appears to be unprecedented. In my view, the decision
conflicts with the rationale of Pennsylvania v. Ritchie, 480 U.S. 39, 51-54 (1987)
(plurality opinion), and decisions from several circuits. I conclude that the district
court’s rulings did not infringe on appellant Arias’s constitutional right to
confrontation, and I would affirm the judgment.

      Decisions on the Confrontation Clause “fall into two broad categories: cases
involving the admission of out-of-court statements and cases involving restrictions
imposed by law or by the trial court on the scope of cross-examination.” Delaware
v. Fensterer, 474 U.S. 15, 18 (1985) (per curiam). Neither category is implicated
here.

                                         -12-
        The disputed issue concerns K.P.’s testimony that since Arias assaulted her, she
had been diagnosed with anxiety and PTSD. The witness testified in open court, so
Confrontation Clause cases in the first category involving out of court statements are
inapposite. This case also does not fall into the second category: the district court
“did not limit the scope or nature of defense counsel’s cross-examination in any way.”
Id. at 19; see Ritchie, 480 U.S. at 53 (plurality opinion).

       No ruling of the district court prevented counsel for Arias from questioning
K.P. about her PTSD diagnosis. Counsel could have asked for the who, what, when,
and where of the diagnosis to explore whether K.P. was credible in reporting it at
trial. He could have probed K.P. about her life and mental health history in an effort
to discern or suggest other possible causes of PTSD. If K.P. had successfully invoked
a psychotherapist-patient privilege to prevent cross-examination, then Arias could
have moved to strike her direct testimony about PTSD. See United States v. Singer,
785 F.2d 228, 242 (8th Cir. 1986). The district court expressly offered to consider
a different limiting instruction about K.P.’s testimony, but defense counsel did not
propose one. That counsel declined to pursue these avenues, of course, does not raise
an issue under the Confrontation Clause.

       It is not hard, moreover, to imagine sound strategic reasons for defense counsel
to forego the questioning. The witness made only one brief mention of PTSD. The
district court promptly instructed the jury that psychological symptoms diagnosed
after the alleged incident have “extremely limited relevance to you all, if any.” The
government never mentioned PTSD in final arguments to the jury. Questions from
the defense on the topic may well have amplified a fact that was otherwise
unmentioned by the prosecution and diminished by the judge’s instruction. As the
district court observed in discussions with counsel, “a lot of things can happen in
one’s life that can produce anxiety and PTSD.”




                                         -13-
       The majority concludes, however, that once K.P. testified about the diagnosis,
the Confrontation Clause required the district court to compel production of K.P.’s
treatment records from her psychotherapist and disclose them to Arias for use in
cross-examining K.P. The Supreme Court in Ritchie addressed a similar claim that
the Confrontation Clause entitled a defendant to compelled disclosure of a state
agency file. The file included statements made by the defendant’s daughter, who was
a witness for the prosecution, and the defendant sought to access the file for use in
cross-examining her. Only seven Justices voted on the merits, and a four-Justice
plurality squarely rejected the defendant’s argument under the Confrontation Clause.

       Like Arias, the defendant in Ritchie argued that he could not effectively
question a witness without the requested state agency file, because “he did not know
which types of questions would best expose the weaknesses in her testimony.” Id. at
51. The plurality dismissed his argument, saying that it would incorrectly “transform
the Confrontation Clause into a constitutionally compelled rule of pretrial discovery.”
Id. at 52. Because “defense counsel was able to cross-examine all of the trial
witnesses fully,” id. at 54, the plurality ruled that the failure to compel disclosure of
the agency file did not violate the Confrontation Clause. The court’s conclusion,
ante, at 10, that the district court’s refusal to allow the defense access to K.P.’s mental
health records was a “limitation on cross-examination” is contrary to Ritchie.

       The majority, ante, at 9, seems to believe that the reasoning in Ritchie is limited
to a request for pretrial discovery, and that the Confrontation Clause does create a
constitutionally compelled rule of in-trial discovery. Ritchie does not support that
conclusion. Of course, the defendant in Ritchie wanted the agency file during trial
too; that is when he would have used it.

       The state supreme court in Ritchie held that the defendant was entitled to
pretrial discovery of the agency file, so the Supreme Court addressed that particular
ruling, but the plurality’s rationale applies equally to a request for compelled

                                           -14-
discovery during trial. The Ritchie plurality explained that “the right to confrontation
is a trial right, designed to prevent improper restrictions on the types of questions that
defense counsel may ask during cross-examination.” 480 U.S. at 52 (second
emphasis added). The opinion thus concluded that “the Confrontation Clause was not
violated by the withholding of the [agency] file; it only would have been
impermissible for the judge to have prevented Ritchie’s lawyer from cross-examining
the daughter.” Id. at 54 (emphasis added). In light of Ritchie, several
circuits—without distinguishing between pretrial and in-trial discovery—have ruled
that the Confrontation Clause does not guarantee a right to compelled discovery.
United States v. Fattah, 914 F.3d 112, 179 (3d Cir. 2019); United States v. Sardinas,
386 F. App’x 927, 940-41 (11th Cir. 2010); United States v. Hargrove, 382 F. App’x
765, 774-75 (10th Cir. 2010); Isaac v. Grider, No. 98-6376, 2000 WL 571959, at *6-
7 (6th Cir. May 4, 2000); Tapia v. Tansy, 926 F.2d 1554, 1559-60 (10th Cir. 1991);
United States v. Tarantino, 846 F.2d 1384, 1415-16 (D.C. Cir. 1988) (per curiam).
The majority’s decision creates a stark conflict in the circuits.

       The district court’s rulings did not violate the Confrontation Clause, and there
is thus no reason to remand for an inquiry into whether a purported error was
harmless. I concur in the court’s rejection of Arias’s other contentions in Parts II.A
and II.B of the opinion, and I would affirm the judgment.
                        ______________________________




                                          -15-
