                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 02-4978
ROBERT L. FITZGERALD,
               Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
            Richard L. Williams, Senior District Judge.
                           (CR-02-164)

                         Argued: June 3, 2003

                      Decided: November 17, 2003

    Before MICHAEL, TRAXLER, and KING, Circuit Judges.



Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion. Judge Traxler wrote a separate concurring opinion.


                             COUNSEL

ARGUED: Michael James Elston, Assistant United States Attorney,
Alexandria, Virginia, for Appellant. Paul Geoffrey Gill, Assistant
Federal Public Defender, Richmond, Virginia, for Appellee. ON
BRIEF: Paul J. McNulty, United States Attorney, Sara E. Flannery,
Assistant United States Attorney, S. David Schiller, Assistant United
States Attorney, Alexandria, Virginia, for Appellant. Frank W. Dun-
ham, Jr., Federal Public Defender, Richmond, Virginia, for Appellee.
2                    UNITED STATES v. FITZGERALD
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Sgt. Robert Fitzgerald (U.S. Army, Ret.) has been charged in a fed-
eral indictment with abusive sexual contact with minors. The district
court excluded certain evidence proffered by the government, specifi-
cally, expert testimony about the patterns of typical child molesters
and lay testimony about Fitzgerald’s prior conduct. We affirm the
decision to exclude the expert testimony; we vacate the decision to
exclude the lay testimony about the defendant’s prior conduct, and we
remand for further consideration of the admissibility of the lay testi-
mony.

                                   I.

   Fitzgerald was an instructor for Junior ROTC (JROTC) in Chester-
field County, Virginia, public high schools between 1996 and 2001.
His duties included the supervision of JROTC units while they partic-
ipated in training exercises, competitions, and leadership courses at
various U.S. military installations. The indictment charges Fitzgerald
with two counts of abusive sexual contact with a minor, see 18 U.S.C.
§ 2244(a)(3), and three counts of abusive sexual contact through the
use of fear, see 18 U.S.C. § 2244(a)(2), all allegedly occurring on fed-
eral property. Fitzgerald is charged under statutes that punish "inten-
tional touching, either directly or through the clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks." Id. § 2246(3).
The contact must be committed with "an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of any person."
Id.

   Count One (abusive sexual contact of a minor) and Count Two
(abusive sexual contact through use of fear) charge that Fitzgerald
touched the buttocks of ADW, a fifteen-year-old JROTC student,
through her clothing. ADW alleges that Fitzgerald slapped her on the
                     UNITED STATES v. FITZGERALD                      3
buttocks as she was getting off a bus. Count Three (abusive sexual
contact of a minor) charges that Fitzgerald touched one of ADW’s
breasts through her clothing. ADW alleges that Fitzgerald rubbed her
shoulders and moved his hands down her chest until they touched the
top of her breasts and that he squeezed the side of one of her breasts
and said "excuse me." Count Four (abusive sexual contact through use
of fear) charges that Fitzgerald again touched ADW’s breast when he
put his arm around her after she had been in a water fight. Count Five
(abusive sexual contact through use of fear) charges that Fitzgerald
rubbed the inner thigh and genitals of TMS, a seventeen-year-old
JROTC member, through her clothing. According to TMS, the two
were sitting in Fitzgerald’s truck when he told her to come to him if
she wanted to have sex with an older black man; he then moved his
hand up her leg and touched her genitals with the side of his hand.

   In pretrial discovery the government listed a psychologist, Anthony
J. Pinizzotto, Ph.D., as an expert witness. Pinizzotto works for the
FBI as a clinical forensic psychologist. He was to testify about the
methodology and behavior of child molesters. He would offer the
opinion that a child molester often begins by engaging in seemingly
innocuous behavior to gain a child’s trust and then moves to border-
line behavior to test whether the child is receptive or suspicious.
Pinizzotto was originally slated to offer the additional opinion that
Fitzgerald’s actions were consistent with those of a typical child
molester. The district court granted Fitzgerald’s motion in limine to
exclude Pinizzotto’s testimony, concluding that it did not meet the
reliability requirements for admission as expert testimony and that it
would not assist the trier of fact. On appeal the government chal-
lenges only the district court’s exclusion of Pinizzotto’s expert testi-
mony about the methodology and behavior of child molesters; it does
not challenge the court’s exclusion of the testimony that Fitzgerald’s
conduct fit the typical pattern of a child molester.

   The government also gave notice that it intended to call seven other
female JROTC students who would testify about inappropriate sexual
contact or comments by Fitzgerald. The government argued to the
district court that this testimony was admissible both as evidence of
prior sexual assaults, Fed. R. Evid. 413, and as evidence of prior bad
acts, Fed. R. Evid. 404(b). The district court granted Fitzgerald’s
motion to exclude on the ground that the testimony was not admissi-
4                     UNITED STATES v. FITZGERALD
ble for the "limited purposes" permitted by Rule 413; the court did not
address Rule 404(b).

   On appeal the government divides the seven other female JROTC
students into two groups, claiming that the testimony of two is admis-
sible under Rule 413 and that the testimony of the remaining five is
admissible under Rule 404(b). The two girls whose testimony the
government seeks to introduce under Rule 413 allege that Fitzgerald
touched them inappropriately. The first girl, JLE, would testify that
Fitzgerald made inappropriate comments to her and that he touched
her buttocks through her clothing at school. The second girl, HMM,
would testify that Fitzgerald approached her before a competition
ostensibly to straighten her name tag and said that he was "not going
to do anything funny." When he adjusted the tag, however, he
brushed her breast with his hand. The government argues that Fitzger-
ald’s conduct toward these two girls would have been punishable
under § 2244 if he had acted on federal property and that testimony
about this conduct is admissible as evidence of prior sexual assaults
under Rule 413. The five remaining female students all would testify
that Fitzgerald directed sexually suggestive comments, questions, and
gestures toward them, and two would also testify that he gave them
extended hugs. This testimony, the government argues, is about prior
bad acts of the defendant that is admissible under Rule 404(b).

   The government has perfected an interlocutory appeal from the dis-
trict court’s order excluding the testimony of the psychologist and the
seven other female JROTC students. See 18 U.S.C. § 3731 (allowing
an interlocutory appeal of a district court’s order excluding evidence
"if the United States attorney certifies . . . that the appeal is not taken
for purpose of delay and that the evidence is a substantial proof of a
fact material in the proceeding.").

                                    II.

  We turn first to the district court’s exclusion of the government’s
expert witness, Dr. Pinizzotto, who is a psychologist. The government
would use Dr. Pinizzotto’s testimony about the methodology and
behavior of child molesters to assist in proving Fitzgerald’s intent to
molest the alleged victims. Dr. Pinizzotto would testify that a child
molester typically begins by befriending the child in order to gain the
                      UNITED STATES v. FITZGERALD                         5
child’s trust. The molester then engages in borderline behavior to test
whether the child is receptive or suspicious. We review the district
court’s order excluding this expert testimony for abuse of discretion.
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997). Expert testimony
is admissible if it is reliable and "will assist the trier of fact to under-
stand the evidence or to determine a fact in issue." Fed. R. Evid. 702.
The district court excluded Dr. Pinizzotto’s expert testimony because
it did not satisfy the reliability factors spelled out by Daubert v. Mer-
rell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and because it
would not be helpful to the trier of fact. For the reasons that follow,
we affirm this ruling.

   We start with the reliability issue. Daubert sets forth the following
non-exclusive checklist for assessing the reliability of expert testi-
mony: (1) whether the expert’s theory can be or has been tested; (2)
whether the theory has withstood peer review and publication; (3)
whether there is a known or potential rate of error; (4) whether stan-
dards exist for the application of the theory; and (5) whether the the-
ory has been generally accepted by the relevant scientific community.
See Daubert, 509 U.S. at 593-94; United States v. Crisp, 324 F.3d
261, 265-66 (4th Cir. 2003). In an effort to establish that Pinizzotto’s
testimony would be reliable, the government provided the district
court with an affidavit from Pinizzotto, a list of his publications, and
one of his articles. Fitzgerald contested reliability in his motion in
limine. The record does not indicate how the district court analyzed
each of the Daubert factors, but the record allows us to review the
factors.

   First, testing. Pinizzotto states in his affidavit that certain "testing,
evaluation and assessment methods establish behavioral patterns to
target and seduce child victims." According to Pinizzotto, this testing
has produced a body of data that corroborates and forms a basis for
his opinions. He cites one article that discusses the application of the
research to teachers and other school personnel who have molested
children. However, Pinizzotto’s affidavit does not provide any indica-
tion of how his theories have been tested or how the testing supports
the conclusions he would offer. At bottom, we have little more than
assertions about testing, and this is not enough to establish that Piniz-
zotto’s theory has been adequately tested.
6                    UNITED STATES v. FITZGERALD
   Second, peer review and publication. Pinizzotto’s affidavit asserts
that his theories have been published and subjected to peer review.
The publication list he provides shows that some of his work has been
published, but there is no indication of what, if any, of his work has
been peer reviewed. Pinizzotto’s affidavit also cites published articles
and books written by others on the techniques of child molesters, but
there is no indication whether the works of these other authors have
been peer reviewed either. We give Pinizzotto some credit for publi-
cation, but we simply do not know whether his work has been sub-
jected to peer review.

  Third, known or potential rate of error. Pinizzotto’s materials do
not mention error rate, so this factor is not satisfied.

   Fourth, standards for application of the theory. Pinizzotto states
that the studies he cites use "standards and controls appropriate for
and approved for scientifically valid psychological studies," but he
does not say what these standards and controls are or whether he
abides by them.

  Fifth, acceptance in the scientific community. Pinizzotto offers the
conclusion that his opinions "are generally accepted within the rele-
vant scientific community." He does not, however, provide sufficient
detail for this statement to be accepted.

   When we measure the record against the Daubert factors, as we
just have, we cannot say that the district court abused its discretion
when it concluded that the government "failed to prove in any way
that [Pinizzotto’s] alleged expert testimony would pass [Daubert’s]
reliability test."

   The district court also concluded that Dr. Pinizzotto’s testimony
would not be helpful to the trier of fact. See Fed. R. Evid. 702. As the
government points out, we have held that Rule 702 allows the admis-
sion of the expert testimony of an experienced narcotics officer who
describes the methodology and tools of drug dealers. The officer typi-
cally offers an opinion that a particular defendant’s activity and tools
are consistent with drug distribution, not personal use; such an opin-
ion suggests that the government’s evidence establishes intent to dis-
tribute. See, e.g., United States v. Hopkins, 310 F.3d 145, 150-51 (4th
                     UNITED STATES v. FITZGERALD                      7
Cir. 2002); United States v. Gastiaburo, 16 F.3d 582, 588-89 (4th Cir.
1994). The drug distribution cases and this case present very different
issues for a jury. The average juror is not likely to be familiar with
how drug dealers operate. Thus, a narcotics officer’s specialized
knowledge can be useful to a juror in understanding the evidence in
a drug case. See Fed. R. Evid. 702. On the other hand, the basic ques-
tion in this case is whether the defendant’s comments and conduct
amount to abusive sexual contact with minors. This appears to be a
question that an average juror can decide without the assistance of
expert testimony about the methodology of child molesters. An aver-
age juror, in other words, can figure out from the testimony of lay
witnesses whether a comment or touch is innocent or evidence of sex-
ual abuse.

   The government relies heavily on the Seventh Circuit’s decision in
United States v. Romero, 189 F.3d 576 (7th Cir. 1999), to argue for
the admissibility of Pinizzotto’s testimony. In Romero the court con-
cluded that it was not an abuse of discretion to admit the testimony
of an expert who testified about the methods of "preferential child
molesters," that is, molesters who definitely prefer sexual contact with
children and methodically pursue that contact. Id. at 483. The intent
element in Romero looks markedly different from the intent element
the government must prove in this case. In Romero the government
had to prove that the defendant traveled (and convinced a minor to
travel) across state lines with the intent to engage in sexual activity.
No sexual contact was alleged. Id. at 581; see also United States v.
Long, 328 F.3d 655, 659-60 (D.C. Cir. 2003). The court concluded in
Romero that expert testimony would help the jury interpret the defen-
dant’s seemingly innocent actions, much of which involved on-line
discussions with young boys about UFOs, extra-terrestrials, and the
occult. Romero, 189 F.3d at 584-85. But in Fitzgerald’s case, the
question is whether when he touched ADW and TMS, he intended to
"abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person." 18 U.S.C. § 2246(3). Pinizzotto’s testimony on
the methodology and behavior of child molesters would not be as
helpful to the jury as it was in Romero in determining intent. As the
district court here noted, the average juror can understand whether a
touch is innocent or abusive from lay testimony about the events in
question. We cannot say, therefore, that the district court abused its
8                    UNITED STATES v. FITZGERALD
discretion in concluding that Pinizzotto’s expert testimony would not
be helpful to the trier of fact.

   Because the district court did not abuse its discretion by excluding
the government’s proffered expert testimony, both because it did not
meet Daubert’s reliability requirements and because it would not be
helpful to the trier of fact, we affirm this ruling.

                                  III.

   We turn next to the district court’s decision to exclude the testi-
mony of seven other female JROTC students, who allege that they
were also targets of Fitzgerald’s inappropriate conduct. Again, we
review the district court’s decisions for abuse of discretion, and we
note that an error of law amounts to an abuse of discretion. United
States v. Stitt, 250 F.3d 878, 896 (4th Cir. 2001).

                                  A.

   JLE and HMM, two female JROTC students, would testify that
Fitzgerald touched them inappropriately when they were not at U.S.
military facilities. The government seeks to admit this testimony
under Rule 413, which governs the admission of prior acts of sexual
assault by a defendant. Although the specific basis for the district
court’s decision to exclude this testimony is unclear, it appears that
the court believed conduct falling within Rule 413’s parameters is
admissible only for limited purposes not shown by the government in
this case. See J.A. 137 ("Rule 413 permits such evidence for limited
purposes, and . . . the United States has failed to show any of these
limited purposes.").

   A broader analysis of the Rules of Evidence is required. While
Rule 404(b) limits the purposes for which prior bad act evidence may
be used, Rule 413 explicitly states that evidence of prior acts of sex-
ual assault is admissible for "any matter to which it is relevant." This
does not mean that any evidence fitting within the scope of Rule 413
is automatically admissible. Evidence that is relevant under Rule 413
is also subject to Rule 403.
                     UNITED STATES v. FITZGERALD                       9
   Evidence offered under Rule 413 must satisfy three elements: (1)
the defendant must be accused of an offense of sexual assault as
defined by Rule 413(d); (2) the evidence must pertain to the defen-
dant’s commission of another sexual assault offense; (3) and the evi-
dence 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). Only the second element is in contention
here. In applying the second element of Rule 413, the court must
determine whether a reasonable jury could conclude that the defen-
dant committed a prior sexual assault offense. See Johnson v. Elk
Lake Sch. Dist., 283 F.3d 138, 154-55 (3d Cir. 2002); United States
v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998); see also Huddleston
v. United States, 485 U.S. 681, 690 (1988). The defendant does not
have to have been convicted of, or even charged with, the prior act.
Johnson, 283 F.3d at 151-52 (discussing the legislative history). This,
of course, means that the district court must also determine whether
a reasonable jury could conclude that the defendant acted with the
requisite intent when he committed the prior act. Here, in other words,
the government must present sufficient evidence to allow a reasonable
jury to conclude that when Fitzgerald touched JLE and HMM, he did
so with the intent to "abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person" for the evidence to be admis-
sible under Rule 413. 18 U.S.C. § 2246(3).

   Even if the district court concludes that the conduct is admissible
under Rule 413, 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. Johnson, 283 F.3d at
155; Doe, 232 F.3d at 1268-69; Guardia, 135 F.3d at 1330; United
States v. Sumner, 119 F.3d 658, 661 (8th Cir. 1997); United States v.
Larson, 112 F.3d 600, 604-05 (2d Cir. 1997). As part of its Rule 403
analysis, the 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 closeness 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; see also Johnson, 283
F.3d at 155-56 (listing factors). Because the district court is responsi-
ble for screening evidence for its admissibility under the rules in the
10                   UNITED STATES v. FITZGERALD
first instance, see Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579, 592-93 (1993), we remand for the district court to consider the
evidence proffered under Rule 413 in accordance with the framework
we have just described.

                                   B.

   The district court excluded the testimony of five more JROTC stu-
dents who allege that Fitzgerald directed inappropriate comments,
questions, and gestures toward them. The government proffers this
testimony as evidence of prior bad acts under Rule 404(b). Evidence
of prior bad acts is admissible under 404(b) if it is (1) relevant for a
purpose other than propensity (such as to prove intent, for example),
(2) probative of something essential to the case, and (3) reliable.
United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997). Because
of the risk that the jury will use prior bad act evidence to decide the
case based on the defendant’s propensity to commit illegal acts, a dis-
trict court should exercise "greater care" in determining the admissi-
bility of this evidence. Id. at 995. The more similar the prior acts are
to the acts at issue, the more likely they are to be relevant. Id. at 996.
Moreover, "similar act evidence is relevant only if the jury can rea-
sonably conclude that the act occurred and that the defendant was the
actor." Huddleston, 485 U.S. at 685. The court must therefore deter-
mine whether there is "sufficient evidence to support a finding by the
jury that the defendant committed the similar act." Id. at 685. Finally,
even if the evidence is admissible under Rule 404(b), it is still subject
to the balancing required by Rule 403 to ensure that the probative
value is not substantially outweighed by the risk of confusion, preju-
dice, or undue delay. See Queen, 132 F.3d at 997-98; see also Fed.
R. Evid. 403. The district court has not analyzed whether the testi-
mony of the five other girls is admissible under Rule 404(b) or
excludable under Rule 403. We remand for that analysis.

                                   IV.

   We affirm the district court’s decision to exclude the expert testi-
mony of the psychologist, Anthony J. Pinizzotto, Ph.D. We vacate the
court’s decision to exclude the testimony of the seven female JROTC
students who would testify about non-charged acts allegedly commit-
                     UNITED STATES v. FITZGERALD                    11
ted by the defendant; on remand the court will reconsider the admissi-
bility of that testimony.

                                   AFFIRMED IN PART, VACATED
                                      IN PART, AND REMANDED

TRAXLER, Circuit Judge, concurring:

   I concur in the results reached in the majority’s opinion and write
separately to add a few thoughts on the exclusion of the testimony of
the government’s proposed expert. We review this decision for abuse
of discretion. We are not at liberty to substitute our own judgment for
that of the district judge, even if we as individuals would have ruled
differently. Because the evidence in the record regarding the qualifi-
cations of the proposed expert in this particular area was weak and
because the basis for his opinion likewise lacked solid support, I can-
not say that the district judge abused his discretion in ruling out the
opinion of the proposed expert. If there had been a firmer foundation
for this testimony, my vote would have been different.
