Friday, January 24, 2014
In Order Categorical: 7th Circuit Rejects Categorical Approach to Defining "Sexual Assault" Under Rule 413
Federal Rule of Evidence 413(a) provides that
In 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. The evidence may be considered on any matter to which it is relevant.
Moreover, Federal Rule of Evidence 413(d) indicates that
In this rule and Rule 415, “sexual assault” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:
(1) any conduct prohibited by 18 U.S.C. chapter 109A;
(2) contact, without consent, between any part of the defendant’s body — or an object — and another person’s genitals or anus;
(3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s body;
(4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4).
Usually, it is clear whether the charges against the defendant satisfy (or don't satisfy) the Rule 413(d) test. In United States v. Foley, 2014 WL 228686 (7th Cir. 2014), however, the defendant used an interesting analogy to claim that such clarity was lacking. But was he successful?
In Foley, David Foley was charged with three counts of producing child pornography, one count of distributing child pornography, one count of taking a child across state lines for the purpose of a sex act, and one count of possessing child pornography. At trial, the prosecution introduced "the testimony of “Minor Male B,” who told the jury that several years earlier, when he was between eleven and thirteen years old, he had been sexually molested by Foley in a gym locker room."
After he was convicted, Foley appealed, claiming, inter alia, that the admission of this evidence was error because the prosecution failed to prove that he was charged with "sexual assault" as defined in Rule 413. Specifically,
Foley argue[d] that the district court erred in failing to apply the "categorical approach" to analyze whether any of his charged crimes fit the terms of Rule 413. Under the categorical approach used under the Armed Career Criminal Act, the court examines the statutory elements of the charged offenses instead of a defendant's actual conduct. See generally United States v. Miller, 721 F.3d 435, 437 (7th Cir.2013) (explaining categorical approach under Armed Career Criminal Act). Foley argue[d] that because the government could prove all of his charged crimes without proving that he committed an actual sexual assault, he was not charged with a sexual assault under the categorical approach, so the definition set forth in Rule 413 was not satisfied.
The Seventh Circuit, however, turned this argument aside, concluding that
Foley point[ed] to no authority requiring courts to apply the categorical approach to Rule 413, nor d[id] he offer any persuasive authority or policy reason why the rule should be interpreted that way. The focus of the Federal Rules of Evidence is on facts, and the policy rationale for Rule 413 is that a person who has engaged in the covered conduct is likely to engage in it again. Rule 413 uses statutory definitions to designate the covered conduct, but the focus is on the conduct itself rather than how the charges have been drafted.