                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         AUG 4 1999
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,
             Plaintiff - Appellee,                      No. 98-2191
 v.                                                   (CR-95-634-JC)
 SEREFINO CASTILLO,                                  (D. New Mexico)
             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before KELLY, McKAY, and HENRY, Circuit Judges.



      Defendant Serefino Castillo was convicted by a jury of eight counts of

sexual abuse and sexual abuse of a minor in violation of 18 U.S.C. §§ 2242(1)

and 2243(a)(1). On direct appeal, this court affirmed Defendant’s conviction in

most respects. See United States v. Castillo, 140 F.3d 874, 889 (10th Cir. 1998).

Specifically, we held that Federal Rule of Evidence 414 was constitutional and

was effective at the time of Defendant’s trial. At the same time, we concluded

that the district court’s ruling on whether the Rule 414 evidence should have been



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
excluded under Federal Rule of Evidence 403 was insufficient for our review.

We therefore remanded for an explanation of the court’s ruling under Rule 403.

“Because of the unique nature of character evidence, . . . [we instructed] the trial

court [to] ‘make a reasoned, recorded’ statement of its 403 decision.” Id. at 884.

Defendant now appeals from the court’s Clarification of Reasoning on Remand.

We exercise jurisdiction under 28 U.S.C. § 1291.

         We review the admission of evidence for an abuse of discretion. See

United States v. Guardia, 135 F.3d 1326, 1328 (10th Cir. 1998). “A district court

has broad discretion in balancing the probative value of evidence against its

potential prejudicial effect[] and will be reversed only on a showing of abuse of

that discretion.” United States v. Scarborough, 128 F.3d 1373, 1378 (10th Cir.

1997).

         On appeal, Defendant argues that he is entitled to a new trial because the

Rule 414(a) evidence was improperly admitted in violation of Rule 403.

Specifically, he asserts that the probative value of the evidence was substantially

outweighed by its prejudicial effect on the jury because it was of limited

probative value, unnecessary, highly prejudicial, and confusing to the jury. Rule

403 imposes a balancing test which instructs the court to exclude relevant

evidence “if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury.” Fed. R. Evid.


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403. In United States v. Meacham, 115 F.3d 1488, 1495 (10th Cir. 1997), we

held that prior acts evidence under Rule 414 was subject to Rule 403. Our

statement providing that “courts are to ‘liberally’ admit evidence of prior

uncharged sex offenses” under Rule 414, id. at 1492, does not mean that they can

ignore the parameters of Rule 403. The “balancing [test] is still applicable.” Id.

Moreover, while propensity evidence is certainly suspect because of the risk that

the jury will convict a defendant on the basis of uncharged behavior, see United

States v. Enjady, 134 F.3d 1427, 1430 (10th Cir.), cert. denied,       U.S.    , 119

S. Ct. 202 (1998), it is clear that the district court must consider a series of

matters when conducting the Rule 403 balancing test. These matters include:

      1) how clearly the prior act has been proved; 2) how probative the
      evidence is of the material fact it is admitted to prove; 3) how
      seriously disputed the material fact is; and 4) whether the
      government can avail itself of any less prejudicial evidence. When
      analyzing the probative dangers, a court considers: 1) how likely is it
      such evidence will contribute to an improperly-based jury verdict;
      2) the extent to which such evidence will distract the jury from the
      central issues of the trial; and 3) how time consuming it will be to
      prove the prior conduct.

Id. at 1433 (quotation marks and citation omitted).

      In its thorough and well-reasoned explanation on remand, the district court

stated that it “conducted the balancing test of Rule 403 to find that the probative

value of the evidence substantially outweighed any unfair prejudice to the

defendant.” R., Vol. I, Doc. 70 at 1. Our review of the record demonstrates that


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the court clearly considered and applied the Enjady factors. The victims of the

charged acts in this case, Defendant’s two daughters, are the same victims of the

uncharged conduct. While one daughter testified to three acts of charged abuse

and one uncharged act, the other daughter testified to one act of charged abuse

and stated that the same conduct occurred two other times. The court found that

this testimony was “highly probative of the father’s sexual proclivities towards

his daughters and a demonstrated pattern of sexually abusing them.” Id. at 2.

The court further believed that the testimony “was probative in assessing the

girls’ credibility in light of any confusion of specific factual details as to the

charged acts.” Id. In addition, the court indicated that the evidence provided

context for the charged offenses because both the uncharged and the charged

conduct took place during the summer of 1994 and because the uncharged

“incidents were strikingly similar to those charged in the indictment.” Id. The

court also reasoned that the similarity of the abuse demonstrated that Defendant’s

“physical contact was intentional and pervasive.” Id. Finally, the court

determined that the jury could reasonably find that the other acts of abuse

occurred. See id. at 3.

      With respect to the danger of prejudice stemming from the testimony, the

court determined that, because the testimony regarding the uncharged acts of

sexual abuse took very little time (it was essentially only two sentences) and


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“[was] fleeting in character,” id. at 2, it would have neither “inflamed the jury’s

passion so as to prejudice the defendant,” nor confused or misled the jury. Id.

at 3.

        Having reviewed the record, we conclude that the district court did not

abuse its discretion under Federal Rules of Evidence 403 and 414 in admitting the

victims’ brief testimony of three uncharged acts of sexual abuse. First, we agree

that the uncharged act was sufficiently proved by the testimony of the victims and

corroborated by the doctors’ testimony. 1 Likewise, the victims’ testimony of

uncharged abuse corroborated the doctors’ testimony concerning Defendant’s

practice of abuse. “[E]vidence that the charged offense was part of a broader

pattern of molestation may be important to put the charge in perspective . . . .”

137 C ONG . R EC . S3242 (daily ed. Mar. 13, 1991). Indeed, we believe that the

uncharged acts were probative of establishing Defendant’s specific inclination or

disposition to engage in acts of sexual abuse against his daughters. See Castillo,

140 F.3d at 879 (“[Rule 414] allows the prosecution to use evidence of a

defendant’s prior acts for the purpose of demonstrating to the jury that the

defendant had a disposition of character, or propensity, to commit child




        We note that the admissibility of the doctors’ testimony concerning
        1

incidents of sexual abuse is not properly before us. See Castillo, 140 F.3d at 879
n.1 (stating that the district court admitted this testimony under Fed. R. Evid.
803(4)).

                                          -5-
molestation.”). The testimony was admitted to prove the material fact that

Defendant had abused his children, which was the only real issue at trial. Finally,

because the only other available evidence–the mother’s and doctors’

testimony–corroborated the daughters’ testimony by confirming the specific

charged acts of abuse and Defendant’s proclivities, we do not think that the

government could have availed itself of any less prejudicial evidence.

      With respect to the possible prejudice caused by this testimony, we agree

with the district court that the risk of unfair prejudice was low. It was not likely

that the testimony concerning three uncharged incidents contributed to an

improper decision by the jury, especially in light of the other evidence that

Defendant appears to concede abundantly shows his guilt. Further, the fact that

the uncharged acts were similar in nature to the charged abuse and occurred near

in time to the charged offenses does not mean that it was difficult for the jury to

separate the evidence of charged and uncharged instances. In fact, we think the

jury easily could have distinguished the evidence in light of the simplicity of the

conduct, both charged and uncharged, the fact that there were only two victims

who testified to both charged and uncharged acts, and the fact that there were

only four instances of charged abuse and three instances of uncharged abuse in

the case. The court’s instruction to the jury that “Defendant is not on trial for any

act, conduct, or offense not alleged in the Indictment” sufficiently cautioned the


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jury not to use evidence of uncharged abuse as proof of the charged acts. R., Vol.

I, Doc. 49 at Instr. No. 8. Further, the evidence was not likely to distract the jury

from the central issues of the trial because the central issues were simply to

determine whether Defendant committed four acts of sexual abuse against his two

daughters. Finally, the testimony was not at all time consuming, and we do not

think that any “cumulative impact” unfairly prejudiced Defendant. Appellant’s

Br. at 5.

       Accordingly, we hold that the district court fully considered and properly

applied the balancing test under Rule 403 and did not abuse its discretion by

determining that the evidence was not unfairly prejudicial to Defendant or

confusing to the jury.

       AFFIRMED.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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