                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS                April 9, 2008
                                                                Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                   Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellant,

 v.                                                      No. 07-7014

 WINFRED JAMES GRIGSBY,                          (D.C. No. CR-06-047-RAW)
                                                       (E.D. Oklahoma)
          Defendant-Appellee.



                             ORDER AND JUDGMENT *


Before BRISCOE and LUCERO, Circuit Judges, and BRIMMER, ** District
Judge.

      The Defendant, Winfred Grigsby, was convicted of aggravated sexual abuse

of a minor in Indian Country, in violation of 18 U.S.C. §§ 1151, 1153, 2241 and

2246(2)(C). Following the conviction, the Defendant filed a motion for a new

trial. The district court granted the motion. The United States appeals the district

court’s order granting the motion for a new trial.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
        The Honorable Clarence A. Brimmer, United States District Judge for the
District of Wyoming, sitting by designation.
I.    Background

      The Defendant, Winfred Grigsby, was charged in September, 2006, with

molesting his grandniece. The abuse allegedly occurred when the victim spent

the night with the Defendant and his grandchildren. According to testimony

presented at trial, the victim told her father the morning following the sleep-over

that the Defendant had been “nasty” to her and had touched her in a private part.

ROA, Vol. I at 73-74. The allegations were eventually reported by the victim’s

mother to a nurse practitioner, who contacted Indian Child Welfare.

Approximately two months after receiving a report of the alleged abuse, the

Cherokee Nation Marshal Service interviewed the Defendant and obtained a

confession.

      In its order granting the Defendant a new trial, the district court found that

the fairness of the trial had been undermined by the testimony of the Defendant’s

niece (not the alleged victim in the present case). The niece testified that the

Defendant had sexually abused her on one occasion, twenty years earlier. The

district court explained in its order granting a new trial:

      The motion for new trial centers on the testimony of Capri Blakely.
      The testimony was admitted pursuant to Rules 413 & 414 F.R.Evid.
      and involved alleged prior sexual abuse of the witness by the
      defendant. During cross-examination, evidence of possible perjury
      about a collateral matter was elicited, and a possible motive to lie
      about the alleged prior sexual abuse was established. The Court
      instructed the jury to disregard the testimony in its totality.

ROA, Vol II at 474-75 (footnote omitted).

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         The district court went on to conclude that, in the context of the whole trial,

the testimony of Capri Blakely was prejudicial and that the interest of justice

required a new trial. The district court also found that the fairness of the trial was

undermined by an incorrect statement in the prosecutor’s closing argument that

the presumption of innocence was gone. The government argues in this appeal

that neither the prior abuse testimony nor the prosecutor’s misstatement was a

valid ground for a new trial.

II.      Standard of Review

         The trial court’s decision to grant or deny a motion for a new trial rests in

the trial court’s discretion. United States v. Patterson, 41 F.3d 577, 579 (10th

Cir. 1994). Under this standard, the district court's decision is overturned only if

it is arbitrary, capricious, whimsical, or manifestly unreasonable. United States v.

v. Austin, 231 F.3d 1278, 1281 (10th Cir. 2000). Thus, we will reverse the

court's decision only if we have a definite and firm conviction that the lower court

made a clear error of judgment or exceeded the bounds of permissible choice in

the circumstances. Mayhue v. St. Francis Hosp., 969 F.2d 919, 922 (10th Cir.

1992).

         Applying the abuse of discretion standard, we conclude the district court’s

order granting the new trial should be affirmed.




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III.   Discussion

       The trial court concentrated its decision to grant a new trial on the

prejudicial impact of Capri Blakely’s testimony. The district court explained that

it initially admitted Ms. Blakely’s testimony of prior sexual assault under Federal

Rules of Evidence 403, 413 and 414. Federal Rules of Evidence 413 and 414

address propensity evidence in the context of sexual assault and child

molestation. United States v. Benally, 500 F.3d 1085, 1089-90 (10th Cir. 2007).

These rules provide an exception to the general rule codified in Rule 404(a),

which prohibits the admission of evidence for the purpose of showing a

defendant's propensity to commit bad acts. Benally, 500 F.3d at 1089-90. Rule

413 provides, in pertinent part:

       In a criminal case in which the defendant is accused of an offense of
       sexual assault, evidence of the defendant's commission of another
       offense or offenses of sexual assault is admissible, and may be
       considered for its bearing on any matter to which it is relevant.

Federal Rule of Evidence 414 contains identical language related to accusations

of child molestation and similarly reads, in pertinent part:

       In a criminal case in which the defendant is accused of an offense of
       child molestation, evidence of the defendant's commission of another
       offense or offenses of child molestation is admissible, and may be
       considered for its bearing on any matter to which it is relevant.

       The district court granted a new trial after balancing the probative value of

Capri Blakely’s testimony under Rules 413 and 414 with the danger of undue

prejudice under Federal Rule of Evidence 403. Even though evidence of a prior

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sexual offense is admissible under Rules 413 and 414, the evidence is still subject

to the balancing test of Federal Rule of Evidence 403. Benally, 500 F.3d at 1090;

United States v. Velarde, 214 F.3d 1204, 1212 (10th Cir. 2000). Rule 403 permits

the court to exclude evidence “if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury,

or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Fed. R. Evid. 403; see also United States v. Enjady, 134

F.3d 1427, 1433 (10th Cir. 1998) (“Rule 403 requires that if the trial court

concludes the probative value of the similar crimes evidence is outweighed by the

risk of unfair prejudice it must exclude the evidence.”).

      After Capri Blakely testified, the district court instructed the jury to

disregard the testimony in its totality. ROA, Vol. II at 288. After the conclusion

of the trial, however, the district court questioned whether the instruction was

sufficient to overcome the risk of prejudice her testimony presented. The trial

court explained:

      . . . I feel bad because I don’t think -- I don’t think the jury did
      anything wrong. They are presumed to follow my instructions. I
      don’t know how to unring the bell from the troubling testimony . . . .
      And I know he’s not entitled to a perfect trial, but I’m not sure he got
      a fair trial here.

Id. at 460. The trial court ultimately determined that the probative value of Capri

Blakely’s testimony was outweighed by the risk of unfair prejudice to the

Defendant and that a new trial was necessary to correct the erroneous admission

                                          -5-
of her testimony.

      The government asserts on appeal that Capri Blakely’s testimony of prior

abuse was not a valid justification for a new trial because: 1) the jury is presumed

to have followed the court’s instruction to disregard the testimony, 2) the jury

would not have found the testimony credible, and 3) the verdict was strongly

supported by the victim’s statements and the Defendant’s confession. The Court

is not persuaded by the government’s assertions.

      The government’s first assertion, that the jury is presumed to have followed

the district court’s instruction to disregard Blakely’s testimony, does not bear on

whether the district court properly granted the motion for a new trial. Jurors are

presumed to follow instructions to disregard evidence unless there is an

overwhelming probability that the jury will be unable to follow the court’s

instructions, and a strong likelihood that the effect of the evidence would be

devastating. United States v. Caballero, 277 F.3d 1235, 1243 (10th Cir. 2002).

The district court found that even after its instruction to the jury to disregard

Capri Blakely’s testimony, the fairness of the trial was still undermined by the

initial admission of the prior molestation accusation. The district court was in the

best position to evaluate the effect of the offending evidence on the jury and the

effect of the court’s curative instruction. United States v. Behrens, 689 F.2d 154,

162 (10th Cir. 1982). The government has failed to show that the court’s

determination was in any way arbitrary, capricious or a gross abuse of discretion.

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      This Court is also not persuaded by the government’s second contention

that Capri Blakely’s testimony could not have been prejudicial because her

credibility was so undermined that the jury would not have believed her

accusation. Ms. Blakely testified that when she was eleven years old the

Defendant got into her bed and tried to fondle her between the legs and tried to

force her to touch his penis. ROA, Vol. I at 251-53. The government insists that

her testimony was not credible for various reasons made known to the jury,

including that she had two forgery convictions and a motive for fabricating the

abuse allegation.

      The Court agrees with the government that the defense elicited evidence

which could have weakened the testimony of Ms. Blakely in the eyes of the

jurors. The difficulty with the government’s argument, however, is that the

district court was in the unique position of assessing whether the jury could have

believed Ms. Blakely’s testimony with respect to the prior abuse, even though she

may have had reasons to fabricate her accusation. In this unique position, the

district court concluded that not only was Ms. Blakely’s testimony prejudicial, the

court further found that the testimony would have been unfairly prejudicial even

absent the serious credibility challenges to her testimony. ROA, Vol. II at 475.

We must accord particular deference to the district court’s determination:

      . . . we give due deference to the [trial] court's evaluation of the
      salience and credibility of testimony . . . . We will not challenge that
      evaluation unless it finds no support in the record, deviates from the

                                         -7-
      appropriate legal standard, or follows from a plainly implausible,
      irrational, or erroneous reading of the record.

Tanberg v. Sholtis, 401 F.3d 1151, 1160 (10th Cir. 2005) (citing United States v.

Robinson, 39 F.3d 1115, 1116 (10th Cir. 1994)). The government has not shown

that the trial court’s findings were irrational or implausible. We consequently

cannot find fault with the district court’s assessment that the probative value of

the testimony was substantially outweighed by the danger of unfair prejudice and

that the prejudicial accusation possibly prompted the verdict.

      Finally, this Court is not persuaded by the government’s assertion that the

verdict was strongly supported by the victim’s testimony and the Defendant’s

confession. To the contrary, both the confession and the victim’s statements are

subject to challenge. The victim’s testimony and the victim’s statements to the

Child Abuse Network were particularly troublesome. It is apparent that the

victim did not distinguish truth from imagination. During the interview and

during the trial, the victim stated that the Defendant had stabbed one of the other

children at the Defendant’s home the night of the alleged abuse. ROA, Vol. I at

63-64. The other child testified, however, that nothing strange happened to her

during the night and an investigator testified that the other child had not been

stabbed; thus, the victim’s statement was not true. ROA, Vol. II at 315, Vol. I at

192. There were also strong implications in the victim’s responses to initial

background questions during her interview with the Child Abuse Network that the


                                         -8-
victim was not distinguishing truth from fabrication. It was not evident

whatsoever from the victim’s interview or testimony that she recognized the

difference between reality and fantasy. The verdict was consequently not

strongly supported by the victim’s statements.

      As to the government’s assertion that the Defendant’s confession was

strong evidence, the Court also disagrees. The Defendant’s confession was

obtained by an investigator with the Cherokee Nation Marshal Service. The

testimony of the investigator raised justifiable concerns as to the integrity of the

interrogation. The investigator admitted that the words and phrases in the

confession were his own, and not those of the Defendant. Id. at 180-84, 216. The

investigator’s testimony also appeared to contain curious inconsistencies with his

prior testimony at the suppression hearing. The district court understandably

expressed concerns as to investigator’s credibility. Id. at 203-04, 247.

      The Court finds that the district court rationally considered the evidence

presented and appropriately applied the required balancing test under Federal

Rule of Evidence 403. The district court did not abuse its discretion in granting

the Defendant a new trial on the basis that Capri Blakely’s testimony should not

have been admitted into evidence and was extremely devastating. This Court has

ruled many times that the trial judge has broad discretion in deciding whether to

grant a new trial, and the court’s ruling on such a motion will not be disturbed on

appeal unless there is a gross abuse of discretion. Deters v. Equifax Credit

                                          -9-
Information Servs., Inc., 202 F.3d 1262, 1268 (10th Cir. 2000); Capstick v.

Allstate Ins. Co., 998 F.2d 810, 819 (10th Cir. 1993); and United States v. Lopez,

576 F.2d 840, 846 (10th Cir. 1978). The district court’s decision to grant the

Defendant a new trial was justified and reasonable and well within its discretion.

      Because the Court finds that the trial court appropriately granted the

Defendant’s motion for a new trial based on the unfair prejudice created by Capri

Blakely’s testimony, it is not necessary to address the government’s contention

that the prosecutor’s improper statement in closing argument was not a valid

ground for a new trial.

      The Government’s Motion to Seal Appendix is GRANTED in accordance

with the privacy policy of the Judicial Conference of the United States,

http://www.privacy.uscourts.gov/Policy.htm. The Motion of the United States to

Include Non-Record Material in the Addendum to its Reply Brief is DENIED as

the material is not necessary to disclose what occurred in the district court. See

Fed. R. App. P. 10(e).

      The order granting a new trial is AFFIRMED.


                                       Entered by the Court:


                                       Clarence A. Brimmer
                                       United States Circuit Judge




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