United States v. LeMay

United States Court of Appeals for the Ninth Circuit · 2001 · Evidence

260 F.3d 1018 (9th Cir. 2001)

Updated August 22, 2026

EvidenceFederal Rule of Evidence 414Federal Rule of Evidence 403propensity evidencechild molestationdue processequal protectionprior sexual misconduct

Facts

LeMay was charged with molesting his two young nephews on the Fort Peck Indian Reservation by forcing them to orally copulate with him while he was babysitting them. At trial, the government's case largely depended on the boys' testimony, and LeMay attacked their credibility and emphasized the lack of medical, scientific, or eyewitness corroboration. The government then offered evidence under Rule 414 that, when LeMay was twelve, he had sexually abused two young female relatives while babysitting them in Oregon, including a juvenile rape adjudication arising from that conduct. The district court admitted the prior-act evidence after hearing the trial evidence, gave limiting instructions, and the jury convicted LeMay.

Issue

Whether Federal Rule of Evidence 414 violates due process by permitting propensity evidence in child-molestation prosecutions, and whether the district court abused its discretion under Rule 403 by admitting LeMay's prior acts of child molestation. The case also presented related equal protection and other constitutional objections to Rule 414.

Rule

Rule 414 does not violate due process on its face because Rule 403 continues to apply and, if conscientiously used, protects defendants from unfairly prejudicial propensity evidence. In deciding whether to admit Rule 414 evidence, district courts must carefully balance probative value against unfair prejudice under Rule 403, considering factors including similarity, temporal proximity, frequency, intervening circumstances, and the necessity of the evidence, along with any other case-specific factors such as how clearly the prior act has been proved.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a federal child-molestation prosecution in Phoenix, the government offers proof that Noah Mercer molested another child years earlier. Mercer argues that the rule permitting this evidence is facially unconstitutional because it authorizes propensity reasoning.

How should the court rule on Mercer's facial due process challenge?

Explanation. The majority held that Rule 414 is not facially unconstitutional. Its constitutional safeguard is the continued applicability of Rule 403, which allows exclusion of potentially devastating evidence whose unfair prejudice substantially outweighs probative value. The court rejected the argument that propensity evidence is always forbidden by due process.