          United States Court of Appeals
                     For the First Circuit


No. 18-1396

                         UNITED STATES,

                            Appellee,

                               v.

                         WILLIAM GAUDET,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                             Before

                      Howard, Chief Judge,
              Thompson and Barron, Circuit Judges.


     Peter J. Cyr, with whom Law Offices of Peter J. Cyr was on
brief, for appellant.
     Renee M. Bunker, Assistant United States Attorney, Appellate
Chief, with whom Halsey B. Frank, United States Attorney, was on
brief, for appellee.


                         August 1, 2019
             BARRON,   Circuit     Judge.      In    2017,       William   Gaudet

("Gaudet")     was   convicted,    after    trial,   in    the    United   States

District Court for the District of Maine for federal sex offenses.

He was sentenced to life imprisonment.          Gaudet now challenges his

conviction and sentence on appeal.           We affirm.

                                      I.

             Gaudet was indicted on December 14, 2016, on one count

of Transportation of a Minor with the Intent to Engage in Criminal

Sexual Activity, 18 U.S.C. § 2423(a), and one count of Travel with

the   Intent    to   Engage   in   Illicit    Sexual      Conduct,    18   U.S.C.

§ 2423(b), in relation to allegations made by his daughter, T.G.

Specifically, she testified at trial that he sexually abused her

during a 2010 trip to Maine that he took with her and other family

members and during a 2010 trip that he took with her and other

family members to the Great Wolf Lodge in Pennsylvania.

             At his trial -- which took place between November 13,

2017, and November 16, 2017 -- the government relied, in part, on

recorded testimony given by Gaudet's other daughter, Jenny, from

a separate trial,1 which was admitted in evidence over Gaudet's

motion to exclude.      In that recorded testimony, Jenny stated that

Gaudet had, on two separate occasions during her childhood, abused

her in a manner similar to the abusive conduct described by T.G.


      1
      Jenny passed away prior to the instant case and was therefore
unable to testify in person.


                                    - 2 -
The government also introduced evidence of Gaudet's conviction for

sexually abusing Jenny that resulted from that separate trial.

            At the close of the government's case, Gaudet moved for

judgment of acquittal under Federal Rule of Criminal Procedure 29.

The District Court denied that motion.         Gaudet renewed his motion

after the close of all evidence.       The District Court again denied

his motion.    The jury found Gaudet guilty of both counts against

him.

            On May 1, 2018, the District Court sentenced Gaudet to

life imprisonment on Count One and 360 months of imprisonment on

Count Two.    In doing so, the District Court applied the United

States    Sentencing   Guidelines    enhancement   for   obstruction    of

justice, see U.S.S.G. § 3C1.1, which increased Gaudet's base

offense   level   ("BOL")   under    the    guidelines   by   two   levels.

According to the District Court, the enhancement for obstruction

of justice was warranted because Gaudet had "deliberately [given]

false testimony . . . involv[ing] a material matter [i.e. whether

he had sexually abused T.G.] and the testimony was not a result of

any mistake or faulty memory and was thus willful."           Gaudet timely

objected to the District Court's application of the sentence

enhancement, and the District Court overruled that objection.

Gaudet then filed this timely appeal.




                                    - 3 -
                                  II.

          Gaudet first contends that the District Court erred in

denying his Rule 29 motion because the evidence was not sufficient

to support his two convictions.      We review the denial of a Rule 29

motion for judgment of acquittal de novo.     United States v. Gómez-

Encarnación, 885 F.3d 52, 55 (1st Cir. 2018).        "[W]e must affirm

unless the evidence, viewed in the light most favorable to the

government, could not have persuaded any trier of fact of the

defendant's guilt beyond a reasonable doubt."       Id. (citing United

States v. Acevedo, 882 F.3d 251, 258 (1st Cir. 2018)).

          The government's case depended in substantial part on

the credibility of the testimony of T.G., who testified at trial

that Gaudet sexually abused her while she resided with him in

Stoneham, Massachusetts between 2008 and 2010, that he sexually

abused her during the 2010 family trip to Maine, and that he

sexually abused her during the 2010 trip to the Great Wolf Lodge

in Pennsylvania.   Gaudet points, however, to what he contends are

features of her account that so undermine her credibility as to

make it unreasonable for a jury to have credited it.

          Gaudet   emphasizes   in    particular   that   T.G.   did   not

disclose that she had been sexually abused by Gaudet until four

years after the alleged abuse occurred; that she did not disclose

the abuse to her mother until after her sister, Jenny, told her

mother that she suspected that Gaudet had abused T.G. as a child;


                                - 4 -
and that she denied that the abuse occurred when questioned by her

teacher.   Additionally, Gaudet argues that T.G.'s account of her

abuse at trial varied from the account that she provided during

the first of her two recorded interviews with a social worker in

2014.   In particular, Gaudet highlights the fact that, in that

first interview, T.G. stated that Gaudet had never penetrated her

during any of the alleged abusive conduct, while she stated during

her second interview, as she then also testified at trial, that

Gaudet had both penetrated her and forced her to perform oral sex

on him while they were in Maine.

           In reviewing a challenge to the sufficiency of evidence,

however, "[i]t is not our role to assess the credibility of trial

witnesses or to resolve conflicts in the evidence[;] instead we

must resolve all such issues in favor of the verdict."          United

States v. Hernandez, 218 F.3d 58, 66 n.5 (1st Cir. 2000).         And,

when T.G.'s testimony is viewed in that verdict-friendly light, as

well as in the context of the evidence as a whole, the aspects of

the record that Gaudet highlights do not require the conclusion

that her statements "could not have persuaded any trier of fact of

the   defendant's   guilt   beyond   a   reasonable   doubt."   Gómez-

Encarnación, 885 F.3d at 55 (quoting Acevedo, 882 F.3d at 258).

           T.G.'s basic story remained unchanged from her first

recorded interview, to her second, to her testimony at trial.       In

each instance, she recounted that her father sexually abused her


                                 - 5 -
while she lived with him in Massachusetts, that he sexually abused

her on their family trip to Maine, and that he sexually abused her

again on their subsequent trip to the Great Wolf Lodge.

             Moreover, the government provided expert testimony from

Dr. Ann Burgess -- an expert in the behavior of domestic and sexual

assault victims -- in which she testified that delayed disclosures

are "[v]ery common" in abuse victims and stem from the way the

brain processes, stores, and recalls traumatic experiences.                     Thus,

the government introduced evidence that a reasonable juror could

credit   as    offering    a     ready    explanation       for    what        Gaudet

characterizes as the inconsistencies in T.G.'s accounts over time

concerning his abuse.

             Gaudet    also      argues     that,     in     light        of     the

"inconsistencies" in T. G.'s accounts that we have just considered,

her testimony fails to provide a supportable basis for a rational

juror's finding of guilt because of the testimony of his son,

Matthew Danner.       He points out that, at trial, Danner testified

that he was sleeping near T.G. during both the Maine and Great

Wolf Lodge vacations and that he was not aware of any of the

abusive conduct that allegedly occurred.            Gaudet contends that, if

T.G.'s allegations were true, then Danner would have been awoken

by the noise and would have been aware of what occurred.

             But, Danner testified that he was a "heavy sleeper" and

may   have    had   difficulty    waking    even    if     there   were        nearby


                                    - 6 -
disturbances.      Thus, Danner's testimony hardly provides a basis

for concluding that no reasonable jury could have credited T.G.'s

testimony concerning the abuse that she endured.

          Wholly apart from Gaudet's challenge to the credibility

of T.G.'s testimony, he also contends that the evidence was

insufficient for a different reason.        He notes, rightly, that both

18 U.S.C. § 2423(a) and 18 U.S.C. § 2423(b) require that the

government prove that the defendant traveled "with intent to engage

in" the alleged sexual conduct.        18 U.S.C. §§ 2423(a), 2423(b).

He then argues that, even if T.G.'s testimony sufficed to permit

a reasonable juror to find that he had sexually abused her during

the Maine and Great Wolf Lodge trips, the government failed "to

present sufficient evidence relating to [his] intent . . . while

traveling/transporting in interstate commerce."            He bases that

contention largely on the fact that he testified at trial that his

sole intent in engaging in such travel was to take his children

whale   watching    in   Maine   and   to   the   Great   Wolf   Lodge   in

Pennsylvania.

          The intent element of these offenses, however, requires

proof only that "criminal sexual activity [was] one of the several

motives or purposes . . . not a mere incident of the trip or trips,

but instead was at least one of the defendant's motivations for

taking the trip in the first place."          United States v. Tavares,

705 F.3d 4, 17 (1st Cir. 2013) (quoting United States v. Ellis,


                                  - 7 -
935 F.2d 385, 390 (1st Cir. 1991)) (alteration in original)

(emphases added). Notwithstanding Gaudet's self-serving testimony

concerning what he contends was his innocuous intent in traveling

to Maine and the Great Wolf Lodge, a jury could have reasonably

found from this record that he undertook such travel with the

additional purpose of engaging in the sexual abuse that T.G.

alleged occurred.

            First, the government presented evidence from T.G. that

Gaudet had abused her repeatedly at their home in Stoneham,

Massachusetts before the interstate travel underlying the two

offenses ever occurred.    See Ellis, 935 F.2d at 391 (noting that

evidence of other instances of sexual abuse between the defendant

and the victim "is relevant on the issue of the purpose or intent

of   the   transportation").   Second,   the   government    presented

testimony from T.G. that Gaudet abused her during both the family

trip to Maine and the trip to the Great Wolf Lodge.         Cf. United

States v. Abrams, 761 F. App'x 670, 677 (9th Cir. 2019) ("Where

sexual misconduct occurs both before and after crossing state

lines, [a] rational trier of fact could have found that one of the

dominant purposes [of the interstate transportation was] immoral,

sexual purposes." (alterations in original) (citation omitted));

United States v. Al-Zubaidy, 283 F.3d 804, 809 (6th Cir. 2002)

(opining that evidence of "what actually happened" is relevant to

the questions of whether a defendant traveled interstate with the


                                - 8 -
intent to harm (quoting Washington v. Davis, 426 U.S. 229, 253

(1976)   (Stevens,    J.,    concurring))).     Finally,     the   government

presented evidence of Jenny's testimony from Gaudet's prior trial,

during which she accused him of earlier abusing her in precisely

the same manner as T.G. alleged he had abused her on the trips.

See United States v. Raymond, 697 F.3d 32, 38-39 (1st Cir. 2012)

(holding that one type of evidence probative of intent is evidence

that the defendant committed an earlier crime that "bore a strong

resemblance   to   the   charged   conduct").     In   the    face    of   this

evidence, a jury was not obliged to take Gaudet at his word about

the innocence of his intent.

                                    III.

           Gaudet also contends that, even if the evidence was

sufficient to support the convictions, they still may not stand,

due to evidentiary errors that the District Court committed.                In

particular, he challenges the District Court's decision to admit,

over his motion to exclude, Jenny's testimony from the earlier

trial and to admit into evidence his conviction from that trial.

           "This     Court   reviews   a   district   court's      evidentiary

rulings for abuse of discretion . . . ."        United States v. Sweeney,

887 F.3d 529, 537 (1st Cir. 2018).          Under that standard, we will

reverse "only if the Court is 'left with a definite and firm

conviction that the court made a clear error of judgment.'"                Id.




                                   - 9 -
(quoting United States v. Joubert, 778 F.3d 247, 253 (1st Cir.

2015)).

            We start with the District Court's decision to admit

Jenny's testimony.     Gaudet does not dispute the District Court's

determination that Jenny's testimony was admissible -- insofar as

its admission would not violate Federal Rule of Evidence 403 --

pursuant to Federal Rules of Evidence 413 and 414.2     Rather, he

contends only that the admission of that testimony did violate

Rule 403 because it was unduly prejudicial.

            We have consistently held, however, that there must be

more than mere prejudice for a court to exclude evidence under

Rule 403.    Instead, under a Rule 403 inquiry, a court must find

that the challenged evidence was "unfairly prejudicial" and that

such unfair prejudice "substantially outweighed" the evidence's

probative value.     Sweeney, 887 F.3d at 538 (emphasis added); see



     2 At oral argument, Gaudet did raise for the first time a
contention that his indictments under § 2423(a) and § 2423(b) did
not constitute "accus[ations]" of sexual assault within the
meaning of Rule 413.    We have not previously addressed whether
charges under § 2423(a) or § 2423(b) constitute accusations of
sexual assault within the meaning of Rule 413. There is, however,
precedent to support the conclusion that such charges do constitute
such accusations, though this precedent does not directly address
the relevant text of the Rule. See, e.g., United States v. Batton,
602 F.3d 1191, 1195-96 (10th Cir. 2010). But Gaudet conceded that
this argument was not raised, at least in any clear way, in his
briefing to us. Accordingly, we treat that argument as waived.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).




                                - 10 -
also id. at 539 (concluding that even though the challenged

evidence    was    "surely        prejudicial,"       it    was    not    "unfairly

prejudicial such that it violated [Rule 403]"); United States v.

Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989) ("By design,

all   evidence    is   meant      to    be   prejudicial;   it    is   only   unfair

prejudice which must be avoided.").               Our Court has defined unfair

prejudice as "an undue tendency to suggest decision on an improper

basis,    commonly,    though      not       necessarily,   an    emotional      one."

Sweeney, 887 F.3d at 538 (quoting United States v. Jones, 748 F.3d

64, 70 (1st Cir. 2014)).

            The District Court's balancing of the probative value of

evidence as compared to its tendency to unfairly prejudice the

defendant is entitled to great weight.                  Id. at 537-38.           Thus,

"[o]nly     rarely      --        and        in   extraordinarily        compelling

circumstances -- will we, from the vista of a cold appellate

record, reverse a district court's on-the-spot judgment concerning

the relative weighing of probative value and unfair effect."

Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988).

            Applying this past guidance here, we conclude that the

District Court did not abuse its discretion in ruling that the

prejudicial       impact     of        Jenny's     testimony      --     which     was

considerable -- did not "substantially outweigh" the testimony's

probative    value.        Jenny's      testimony    was,    after     all,   highly

probative of Gaudet's guilt in multiple ways.


                                         - 11 -
            First,    Jenny's    testimony     was   directly    probative       of

Gaudet's intent in traveling to Maine and the Great Wolf Lodge.

As stated previously, both § 2423(a) and § 2423(b) require that

the government prove beyond a reasonable doubt that the defendant

traveled "with intent to engage in" the alleged sexual conduct.

18 U.S.C. §§ 2423(a), 2423(b).         We have previously held that one

type of evidence probative of such intent is evidence that the

defendant    committed      an   earlier   crime     that     "bore    a    strong

resemblance to the charged conduct."           Raymond, 697 F.3d at 38-39.

Here, Gaudet's daughter, T.G., accused him, in part, of molesting

her as a young child by bringing her into his bedroom while she

slept, undressing her, and rubbing her inappropriately.                    In the

evidence    that   Gaudet    now    challenges,      Jenny,    Gaudet's      other

daughter, accused him of molesting her in precisely the same

manner: he transported her across state lines to his home in New

Hampshire, she fell asleep on the couch, he carried her into his

room, he undressed her, and he proceeded to rub her inappropriately

until she awoke.

            Second,   Jenny's      testimony   was    probative       because    it

helped to establish the credibility of T.G.'s testimony.                   Indeed,

much of Gaudet's strategy at trial involved discrediting T.G.'s

credibility by highlighting inconsistencies in her testimony.                   The

evidence of Jenny's testimony, therefore, was probative because

the near identical account of abuse that she offered helped to


                                    - 12 -
corroborate T.G.'s allegations by illustrating that his other

daughter had leveled nearly identical allegations against Gaudet

previously.      See Joubert, 778 F.3d at 254 ("The uncharged child

molestation testimony was probative of [the victim's] veracity

because   it    corroborated      aspects     of   [the   victim's]       testimony,

particularly the nature of the abuse and [the defendant's] modus

operandi in approaching his victims.").

            It is true that the abuse that Jenny described in her

recorded testimony occurred several years before the abuse that

T.G.   described      at    trial.     See    Raymond,    697   F.3d      at   39    n.5

(describing the importance of the "temporal proximity" between two

unrelated assaults as it pertained to the defendant's intent to

commit the more recent assault).              But Gaudet does not argue that

the challenged evidence was improperly admitted because the abuse

that Jenny described occurred too long ago.               And given the nearly

identical nature of the allegations included in Jenny's testimony

and those provided by T.G. at trial, the time gap between the two

incidents      does   not   in   and   of    itself   render    it   an    abuse      of

discretion for the District Court to have concluded that the

testimony was admissible under Rule 403's unfairly prejudicial

standard.

            In pressing his case under Rule 403, Gaudet relies

chiefly on Martinez v. Cui, 608 F.3d 54 (1st Cir. 2010).                            But,

there we merely upheld a District Court's exercise of discretion


                                       - 13 -
to preclude the admission of testimony concerning allegations of

a defendant's past sexual abuse on the ground that they were too

different from the allegations of sexual abuse for which the

defendant was being tried.   Id. at 60-62.   Thus, Martinez provides

no support for concluding that the District Court was required to

exclude Jenny's testimony of Gaudet's sexual abuse, when that

testimony alleged abuse nearly identical to the kind for which he

was charged.

          We turn, then, to Gaudet's challenge to the District

Court's decision to admit the evidence of his conviction.      But,

Gaudet does not explain why, if Jenny's testimony was admissible

under Rule 403, the admission of the conviction would not have

been.   We thus reject this challenge as well.    See United States

v. Majeroni, 784 F.3d 72, 75-76 (1st Cir. 2015) (considering

similar factors to those relied on here to determine that the

District Court did not err in admitting evidence of a prior

conviction of child molestation); Sweeney, 887 F.3d at 538-39

(admitting evidence of a prior assault and battery conviction in

a child pornography case).

                                IV.

          We come, then, to Gaudet's challenges to his sentence.

We review sentences imposed under the guidelines for abuse of

discretion.    United States v. Velez-Soto, 804 F.3d 75, 77 (1st

Cir. 2015).    Under this standard, we review factual findings for


                              - 14 -
clear error and the District Court's construction of the guidelines

de novo.     Id.

             First,       Gaudet      challenges      the   District       Court's

application of a two-level sentence enhancement for obstruction of

justice    under    §    3C1.1   of   the   Guidelines.        U.S.S.G.   §   3C1.1

(recommending a two-level sentence enhancement in cases where "the

defendant     willfully       obstructed    or   impeded,      or    attempted   to

obstruct or impede, the administration of justice"). Gaudet argues

to us -- as he did below -- that such an application was improper,

as there was no indication that he "willfully" provided false

testimony.    For that reason, Gaudet contends, the District Court's

perjury determination amounted to little more than a conclusion

that the defendant "disagree[d] with the Government's case" and

the jury's ultimate verdict.

             Gaudet is right that, to apply the § 3C1.1 enhancement,

the District Court was required to make "independent findings

necessary to establish" willfulness.               United States v. Dunnigan,

507 U.S. 87, 95 (1993).          But, the District Court expressly stated

that Gaudet had perjured himself at trial because, in the District

Court's view, "the defendant deliberately gave false testimony

denying the abuse . . . and the testimony was not a result of any

mistake or faulty memory and was thus willful."                     Given that the

District    Court       was   well-positioned    to   assess    the    defendant's

credibility independent of the jury's verdict or the government's


                                       - 15 -
evidentiary showing, see United States v. Shinderman, 515 F.3d 5,

19 (1st Cir. 2008) ("Where, as here, the sentencing judge has

presided over the trial, we must allow him reasonable latitude for

credibility assessments [regarding perjury]."), and that the ample

evidence   presented    at   trial    flatly     contradicted     Gaudet's

assertions that he never sexually abused T.G., we find no error in

the District Court's application of the obstruction of justice

enhancement, see id. (noting that the "irreconcilable differences"

between the defendant's testimony and that of a separate witness

supported the District Court's perjury determination).

           Gaudet's    challenges    to    the   reasonableness   of   his

sentence are also unpersuasive.           Gaudet first argues that the

District Court did not "impose a sentence sufficient, but not

greater than necessary," as required by 18 U.S.C § 3553(a).

Specifically, he contends that this is so because the District

Court did not appropriately consider his advanced age and the fact

that he was already facing imprisonment as a result of his separate

state sentence.   But, the District Court expressly stressed that

its aim was to impose a sentence that was "sufficient but not

greater than necessary to effectuate the goals of 18 U.S.C §

3553(a)," and, in doing so, explicitly addressed Gaudet's age and

existing state sentence as factors that it considered in imposing

the chosen sentence.     Accordingly, while Gaudet may have wished

that the District Court weighed these factors differently, our job


                                - 16 -
in reviewing a District Court's sentence is not to "substitute

[the defendant's] judgment for that of the sentencing court,"

United States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011),

because "the weighing of different sentencing factors is largely

within the court's informed discretion."             United States v. Colon-

Rodriguez, 696 F.3d 102, 108 (1st Cir. 2012) (internal quotation

omitted).

            Gaudet's other challenge also fails.                He contends that

the   District      Court   erred    by   imposing       its    sentence   without

considering "the totality of the circumstances," specifically, his

past abuse at the hands of his father and the fact that he spent

much of his adult life caring for his grandmother and the rest of

his family.      But, while the District Court did not expressly

address the two mitigating factors cited by the defendant, we have

no reason to believe that the District Court overlooked them. Each

of these aspects of Gaudet's background was expounded upon, in

detail, by defense counsel during the sentencing hearing, and the

District    Court    expressly      stated   that   it    had    considered   "the

evidence presented at the [sentencing] hearing" and "everything

[it] heard from counsel."            As we have stressed previously, the

District Court need not "walk, line by line, through" each of the

mitigating factors that a defendant presents during sentencing.

United States v. Cortés-Medina, 819 F.3d 566, 571 (1st Cir. 2016).

Accordingly, "we discern no abuse of discretion in the sentencing


                                      - 17 -
court's failure to acknowledge explicitly that it had mulled the

defendant's arguments."   Id.

                                  V.

          We, therefore, affirm Gaudet's conviction and sentence.




                                - 18 -
