Court Affirms Admission Of "Prior Bad Acts" Against Sexual Assault Defendant.In my blogs, I frequently try to write a humorous quip about the defendant, defense counsel, or the courts. I can find nothing, however, humorous in the facts found in United States v. LaVictor.
In this case, the defendant, LaVictor, and his girlfriend, returned to LaVictor's mother's house on the Sault Ste. Marie Tribe of Chippewa Indians Reservation after a night of heavy drinking. Early the following morning, LaVictor contacted emergency services and told them his girlfriend was bleeding from her vagina. Subsequent medical examinations revealed evidence of sexual assault, which the girlfriend confirmed in her statements to the authorities. The girlfriend subsequently repeated her allegations before a federal grand jury, which returned a five-count indictment charging LaVictor with: (1) attempted sexual abuse in violation of 18 U.S.C. § 2242(2)(B); (2) aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1); (3) assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6); and (4) domestic assault by a habitual offender in violation of 18 U.S.C. § 117.
After filing various pre-trial motions, LaVictor proceeded to trial. During the trial, the Government called LaVictor's girlfriend as a witness. The girlfriend subsequently recanted her testimony and testified that she consented to sex with LaVictor, even if he was "rough." Over LaVictor's objection, the district court admitted the girlfriend's grand jury testimony as evidence of her prior inconsistent statements. Additionally, after conducting a Daubert hearing, the district court permitted the Government to offer the testimony of an expert witness to testify about victim recantation. As a final blow to LaVictor's defense, the court permitted the Government to introduce several of LaVictor's former girlfriends, who testified about uncharged episodes of prior sexual abuse. It took the jury less than three hours to return guilty verdicts on all six counts.
LaVictor raised several arguments in favor of a reversal on appeal, including, among other things, the district court's decision to admit prior bad act evidence under FRE 404(b) and the entire grand jury transcript. In a lengthy published opinion, the Court affirmed LaVictor's conviction.
Of the many interesting holdings in the Court's opinion, it first dealt with the testimony of the recantation expert. Although it prior pronouncements on this issued had "been more muted," the Court held that expert testimony regarding a domestic violence victim's propensity to recant was relevant and not unduly prejudicial in LaVictor's case.
The Court then addressed the district court's decision to permit three of LaVictor's previous girlfriends to testify that they had previously been sexually assaulted by him, although they never reported the incidents to the police, and the police never charged him with a crime. Although the Court acknowledged such testimony is generally prejudicial in a sexual assault case, it held that the district court did not err in concluding the evidence was probative to show LaVictor's intent to sexually assault his then-girlfriend and that the assault was not an accident or mistake. The Court further held that the probative nature of the testimony outweighed the prejudice it caused under FRE 403. Finally, and perhaps most importantly, the Court concluded that even if the district court had erred, any error in admitting the testimony was harmless in that it would not have affected the jury's verdict.
As a final note, the Court made an interesting holding regarding the definition of an "intimate partner" under the habitual domestic assault statute, 18 U.S.C § 117. On appeal, LaVictor argued that the statute did not apply to him because he was not living with his girlfriend at the time he committed the sexual assault. Noting that the Sixth Circuit had not yet defined the term "intimate partner," the Court examined similar language found in 18 U.S.C. § 2266 -- a statute requiring states to recognize protection orders issued in other states -- and concluded that the term applied to LaVictor and his girlfriend since they had previously been engaged in a lengthy, romantic relationship.
While the facts of this case are sad and represent an all too common occurrence, the Court's lengthy opinion provides a great road map of the many issues counsel might face in defending a sexual assault case in Federal court. Counsel engaged in such a case should review this decision.