                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 4 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-30020

                Plaintiff-Appellee,             D.C. No.
                                                2:15-cr-00279-EJL-1
 v.

JEREMY J. BOHLMAN, AKA Jeremy                   MEMORANDUM*
Joseph Bottleman,

                Defendant-Appellant.

                   Appeal from the United States District Court
                             for the District of Idaho
                    Edward J. Lodge, District Judge, Presiding

                      Argued and Submitted February 7, 2018
                               Seattle, Washington

Before: M. SMITH and MURGUIA, Circuit Judges, and ROBRENO,** District
Judge.

      Jeremy Bohlman (“Bohlman”) appeals his jury conviction of one count of

aggravated sexual abuse in Indian Country and one count of sexual abuse in Indian

Country for the rape of his adult half-sister. Bohlman argues on appeal that the


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
district court abused its discretion when it (1) allowed the Government to introduce

at trial the fact of Bohlman’s prior conviction for sexual abuse of a minor pursuant

to Federal Rules of Evidence 401, 402, 403 and 413; and (2) precluded evidence of

the victim’s consensual sexual activity with a third party within twenty-four hours

after the alleged rape pursuant to Federal Rules of Evidence 403 and 412. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1.     We review a district court’s evidentiary rulings for abuse of

discretion. United States v. Hayat, 710 F.3d 875, 893 (9th Cir. 2013). Rule 413

provides that “[i]n a criminal case in which a defendant is accused of a sexual

assault, the court may admit evidence that the defendant committed any other

sexual assault.” Fed. R. Evid. 413(a). We have explained that a district court

deciding whether to admit evidence under the related Rule 414 should consider:

             (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)). We follow

decisions interpreting Rule 414 in cases interpreting Rule 413. United States v.

Sioux, 362 F.3d 1241, 1244 n.4 (9th Cir. 2004).

      Here, the district court found that Bohlman’s instant charges and prior

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conviction both fell within the definition of “sexual assault” for purposes of Rule

413 because both offenses involved contact “without consent.” Although

Bohlman’s prior conviction for sexual abuse of a minor in violation of 18 U.S.C.

§ 2243(a) did not include lack of consent as an element of the offense, the district

court found that the prior conviction was without consent because it involved a

minor victim who was fifteen years old at the time of the offense and therefore

unable to consent as a matter of law. The court then concluded that the fact of

Bohlman’s prior conviction was relevant under Rule 401, and that its probative

value was not outweighed by any undue prejudice under Rules 402 and 403

because the prior conviction was probative of Bohlman’s disposition to commit the

instant sexual assault offenses.

      Although the district court cited LeMay in its analysis, the district court did

not engage in a discussion of the LeMay factors. Instead, the court focused on

whether the admission of Bohlman’s prior conviction satisfied the Rule 403

balancing test. The court erred by failing to engage in a fulsome discussion of

each of the LeMay factors prior to admitting the fact of the prior conviction,

including by performing a side-by-side comparison of the two offenses. However,

when the entire record is considered in light of the LeMay factors, the court’s

decision to admit the fact of the prior conviction did not constitute an abuse of

discretion: both offenses involved an imbalance of power between Bohlman and



                                          3
the victim; the time period between offenses was shorter than in LeMay; Bohlman

was incarcerated for the majority of the time between the two offenses; and the

evidence was necessary to bolster the credibility of the victim given the lack of

other evidence corroborating her testimony.1 See LeMay, 260 F.3d at 1028.

Further, unlike LeMay, where the district court had permitted the mother of the

victims of the prior offense to testify at trial regarding their abuse, the district court

here denied the Government’s request to introduce the underlying facts of the prior

conviction and provided a limiting instruction to the jury regarding its

consideration of the fact of Bohlman’s prior conviction.

      2.     The district court did not abuse its discretion in denying Bohlman’s

motion in limine to admit evidence of the victim’s subsequent consensual sexual

activity with a third party pursuant to Rule 412. Under Rule 412, in a “criminal

proceeding involving alleged sexual misconduct,” evidence is not admissible if

“offered to prove that a victim engaged in other sexual behavior.” Fed. R. Evid.

412(a). The district court correctly found that the evidence Bohlman sought to

admit was inadmissible under the plain language of Rule 412. The district court


      1
        The Government argued in its briefing in the district court that the prior
offense was also non-consensual based upon factual circumstances aside from the
victim’s age. However, the facts the Government identified were not included in
the indictment, the guilty plea agreement, or the judgment, and instead appear to be
based on the unsworn statement of the victim, whom Bohlman never had the
opportunity to cross-examine. Therefore, the district court properly declined to
consider these facts.

                                            4
also did not abuse its discretion in finding that excluding evidence of the victim’s

consensual sexual activity with a third party did not violate Bohlman’s

constitutional rights under the Confrontation Clause of the Sixth Amendment. See

Fed. R. Evid. 412(b)(1)(C) (providing an exception for “evidence whose exclusion

would violate the defendant’s constitutional rights”); see also Wood v. Alaska, 957

F.2d 1544, 1549-50 (9th Cir. 1992) (affirming the exclusion of evidence regarding

the victim’s activity in the adult film industry and holding that exclusion of such

evidence under Rule 412 does not violate a defendant’s rights under the

Confrontation Clause). Although Bohlman was not permitted to introduce

evidence of the sexual activity itself, the court permitted the defense to attack the

victim’s credibility by introducing testimony from the same third party regarding

her activities and behavior in the hours after the alleged rape occurred, including

evidence that she slept in his car the following night. Therefore, Bohlman was

able to cross-examine the victim sufficiently, and the district court did not abuse its

discretion in finding no violation of Bohlman’s confrontation clause rights. See

Wood, 957 F.2d at 1550 (“A trial court does not abuse its discretion so long as the

jury has sufficient information upon which to assess the credibility of witnesses.”)

(internal quotation marks and citation omitted).

      AFFIRMED.




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