                                                                               FILED
                            NOT FOR PUBLICATION                                    FEB 17 2010

                                                                            MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 09-30081

             Plaintiff - Appellee,                D.C. No. 4:08-CR-00065-SEH

  v.
                                                  MEMORANDUM *
ROBERT JAMES CAPLETTE,

             Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                      Argued and Submitted February 5, 2010
                               Seattle, Washington

Before: ALARCÓN, W. FLETCHER and RAWLINSON, Circuit Judges.

       Appellant Robert James Caplette (“Caplette”) appeals from the district

court’s decision to permit the prosecution to introduce under Federal Rule of

Evidence 413 his prior juvenile adjudication for sexual assault in his trial for

sexual assault. Caplette contends that his juvenile status when he committed the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
prior sex crime is a significant “intervening event” counseling against admission

under the Rule 403 balancing test. Doe v. Glanzer, 232 F.3d 1258, 1268 (9th Cir.

2000).

      This case is controlled by this Court’s precedent in United States v. LeMay,

260 F.3d 1018 (9th Cir. 2001). In LeMay, we held that “courts must consider

whether the prior acts evidence was necessary to prove the case, along with other

factors.” Id. at 1029. Here, the district court acted within its discretion in

determining admission of the evidence was proper because the testimony of the

alleged victim that she was raped was challenged by the defendant who testified

that she consented. See id. Furthermore, the prior sex crime had strong probative

value because of the similar modus operandi. See id.

      Caplette’s reliance on Roper v. Simmons, 543 U.S. 551 (U.S. 2005) for the

proposition that juvenile crimes show less propensity to recommit such acts as an

adult is misplaced. Roper dealt only with the cruel and unusual imposition of the

death penalty on those below eighteen. Id. at 555-56. Although it relied in part on

sociological evidence that juveniles were less likely to be morally culpable, this

insight is not sufficient to overturn established and controlling Ninth Circuit

jurisprudence in an unrelated area of the law where Congressional intent was to

admit all prior sex crimes. Compare Fed. R. Evid. 413 (admitting all prior sex


                                           2
crimes) with Fed. R. Evid. 609(b) (only allowing prior convictions for

impeachment if they are less than ten years old). The fact that the prior crime was

committed by Caplette while he was a juvenile may be an appropriate

consideration in determining whether to admit evidence of that crime, but under

our established case law evidence of a juvenile crime is not categorically

inadmissible. The district court did not abuse its discretion in admitting Caplette’s

prior sexual assault conviction.

             AFFIRMED.




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