Johnson v. Elk Lake Sch Dist

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

3-1-2002

Johnson v. Elk Lake Sch Dist

Precedential or Non-Precedential:

Docket 0-1549

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PRECEDENTIAL

Filed March 1, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1549

BETSY SUE JOHNSON, Appellant

v.

ELK LAKE SCHOOL DISTRICT; WAYNE STEVENS;

CHARLOTTE A. SLOCUM; SCHOOL BOARD ELK LAKE

SCHOOL DISTRICT

On Appeal From the United States District Court

For the Middle District of Pennsylvania

(D.C. Civ. No. 96-cv-01471)

District Judge: Honorable James F. McClure, Jr.

Argued: September 6, 2001

Before: BECKER, Chief Judge, ALITO and

BARRY, Circuit Judges.

(Filed: March 1, 2002)

PETER G. LOFTUS, ESQUIRE

(ARGUED)

The Loftus Law Firm, P.C.

P.O. Box V, 1207 Main Street

Waverly, PA 18471

Counsel for Appellant

JEFFREY H. QUINN, ESQUIRE

(ARGUED)

Dickie, McCamey & Chilcote, P.C.

150 South Independence Mall, West

901 Public Ledger Building

Philadelphia, PA 19106

Counsel for Appellees Elk Lake

School District, Charlotte A. Slocum,

School Board Elk Lake School District

ROBERT A. MAZZONI, ESQUIRE

JULIA K. MUNLEY, ESQUIRE

(ARGUED)

Mazzoni & Karam

321 Spruce Street

Bank Towers, Suite 201

Scranton, PA 18503

Counsel for Appellee Wayne Stevens

OPINION OF THE COURT

BECKER, Chief Judge.

This case arises out of plaintiff Betsy Sue Johnson's

claim that her guidance counselor Wayne Stevens sexually

harassed and abused her while she was a high school

student in the Elk Lake School District. Johnson sought

damages from Stevens in the District Court for the Middle

District of Pennsylvania, claiming violations of 42 U.S.C.

S 1983 and state tort law. Johnson also sought damages

from the School District, the Elk Lake School Board, and

District Superintendent Charlotte Slocum (to whom we

shall collectively refer as "the Administration"), claiming

that they too were liable under S 1983 for having failed to

prevent Stevens's abuse.

In essence, Johnson asserted that the Administration

knew or should have known of Stevens's propensity for

sexual abuse, but was deliberately indifferent to this

danger. The District Court granted summary judgment for

the Administration, and Johnson appeals. Stevens too

2

moved for summary judgment, but his motion was denied,

and a four-day trial ensued, after which a jury returned a

unanimous verdict in his favor. Johnson moved for a new

trial on the basis of alleged trial errors. The District Court

denied this motion, which Johnson now also appeals.

We agree with the District Court that Johnson has failed

to adduce any credible evidence showing that Stevens's

supervisors knew or should have known of any danger of

abuse at a time at which they could have acted to prevent

Johnson's injuries. Accordingly, we will affirm the District

Court's order granting summary judgment for the

Administration. The principal question arising out of the

District Court's denial of the motion for a new trial is

whether the Court abused its discretion in refusing to

admit the testimony of Karen Radwanski, a former co-

worker of Stevens, regarding a bizarre incident in which

Stevens allegedly picked her up off the floor in another

teacher's office and, in the course of doing so, touched her

in the crotch area. Johnson had sought to present this

testimony as evidence of Stevens's propensity for sexual

abuse under Federal Rule of Evidence 415, which allows for

the introduction of evidence of past sexual assaults in civil

cases in which the claim for damages is predicated on the

defendant's alleged commission of a sexual assault.

In reviewing the District Court's ruling, we are called

upon to consider, for the first time, the standards for

admission of prior sexual misconduct evidence under Rule

415. We conclude that in considering evidence of past

sexual assaults, the trial court need not make a preliminary

finding by a preponderance of the evidence under Federal

Rule of Evidence 104(a) that the act in question qualifies as

a sexual assault and that it was committed by the

defendant. Rather, the court may admit the evidence so

long as it is satisfied that the evidence is relevant, with

relevancy determined by whether a jury could reasonably

conclude by a preponderance of the evidence that the past

act was a sexual assault and that it was committed by the

defendant. See Fed. R. Evid. 104(b).

We also conclude, however, that even when the evidence

of a past sexual offense is relevant, the trial court retains

discretion to exclude it under Federal Rule of Evidence 403

3

if the evidence's "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." We think that in cases where the

past act is demonstrated with specificity and is

substantially similar to the act(s) for which the defendant is

being sued, it is Congress's intent that the probative value

of the similar act be presumed to outweigh Rule 403's

concerns. In a case such as this one, however, in which the

evidence of the past act of sexual offense is equivocal and

the past act differs from the charged act in important ways,

we believe that no presumption in favor of admissibility is

in order, and that the trial court retains significant

authority to exclude the proffered evidence under Rule 403.

We conclude that the District Court did not abuse its

discretion in excluding Radwanski's testimony, and, finding

that Johnson's other allegations of trial error are without

merit, will affirm the District Court's order denying

Johnson's motion for a new trial.

I. Facts and Procedural History

Johnson entered the Elk Lake School District high school

as a freshman in September 1991. Sometime in November

or December of that year Johnson began making regular

visits to Stevens's office to discuss family difficulties.

Johnson contends that shortly thereafter, in December

1991, Stevens began sexually harassing and abusing her.

She alleges that for the next two years Stevens repeatedly

sent her letters, roses, cards, and other suggestive

correspondence, attempted on numerous occasions to hug

and kiss her without her consent, and at one point fondled

her breasts and vagina.

Johnson's complaint sought relief from both Stevens and

the Administration for the violation of her civil rights under

42 U.S.C. SS 1983, 1985, and 1986, as well as for the

commission of the torts of conspiracy, negligence, assault

and battery, and intentional infliction of emotional distress.

The District Court dismissed Johnson's section 1985 and

1986 claims as to all the defendants for failure to state a

claim upon which relief could be granted. The Court also

4

dismissed Johnson's state tort claims against the

Administration, concluding that such claims were barred by

the Pennsylvania Political Subdivisions Tort Claims Act, 42

Pa. Cons. Stat. Ann. SS 8541-64. Johnson does not appeal

any of these dismissals. The District Court eventually

granted summary judgment for the Administration with

respect to the remaining S 1983 claim. The District Court

denied Johnson's motion for reconsideration, and Johnson

now appeals. We have examined the merits of Johnson's

claim against the Administration and for the reasons given

in the margin, we conclude that summary judgment was

appropriate.1

_________________________________________________________________

1. Because the gravamen of Johnson's claim against the Administration

was that Stevens had violated her constitutional rights, we need not

dwell on this claim in light of the jury verdict finding no constitutional

or state tort law violations on the part of Stevens. Nevertheless, we note

that Johnson presented no credible evidence demonstrating that school

officials knew of the alleged risk of sexual abuse posed by Stevens at a

time at which they could have prevented her alleged injuries. See Beers-

Capitol v. Whetzel, 256 F.3d 120, 137 (3d Cir. 2001) (requiring plaintiff

in a S 1983 action to demonstrate "that the defendant knew of the risk

to the plaintiff before the plaintiff 's injury occurred"). She therefore

has

failed to establish, as she must under the Supreme Court's decision in

Monell v. New York City Department of Social Services, 475 U.S. 469

(1986), that her injuries were caused by a "policy or custom" of the

Administration. Id. at 694.

Johnson points to a conversation that took place between her sister,

Lisa, and a guidance counselor, Jeffrey LaFrance, as evidence of the

school's knowledge of Stevens's abuse. During this conversation Lisa

remembers telling LaFrance that "something funny" was going on

between her sister and Stevens, but she does not remember mentioning

any specific allegations of sexual harassment or abuse. While it is fair

to

say that an allegation of "something funny" going on between a student

and counselor should have been cause for concern on the part of

LaFrance, we are unwilling to say that this allegation alone, without

evidence of any specific mention of sexual harassment or abuse, put

LaFrance on notice as to an ongoing constitutional violation by Stevens.

Moreover, even if we thought that it did, this conversation would still

fail

to establish S 1983 liability on the part of the Administration because

LaFrance, as a guidance counselor, does not qualify as the type of

policy-making or supervisory official on account of whose inaction a

municipality may be held liable under S 1983. See Pembaur v. City of

Cincinnati, 475 U.S. 469, 483 (1986).

5

Stevens also moved for summary judgment on Johnson's

S 1983 claim against him, as well as on the state tort

claims, but the District Court denied his motion. These

claims were eventually tried before a jury, which returned

a unanimous verdict in favor of Stevens. Following the

verdict, Johnson filed a motion for a new trial in which she

alleged three flaws in the way the trial had been conducted.

The District Court rejected Johnson's motion for a new trial

on all three grounds, two of which we address below and

one which we describe in the margin.2 Johnson now

appeals.

_________________________________________________________________

Alternatively, Johnson contends that even if the Administration was

not aware of Stevens's abuse of her, it can be held liable for failing to

respond to the danger posed by Stevens's well-known proclivity for

sexually harassing and abusing female students. In other words,

Johnson attempts to demonstrate that the Administration had a custom

of being deliberately indifferent to Stevens's potential for committing

constitutional violations, and that this "deliberate indifference" was the

proximate cause of the injuries she sustained. See Beck v. City of

Pittsburgh, 89 F.3d 966, 973-74 (3d Cir. 1996); Kneipp v. Tedder, 95

F.3d 1199, 1213 (3d Cir. 1996).

As evidence of Stevens's proclivity for sexual harassment, Johnson

brought forth various stories and rumors about Stevens walking too

closely to female students in the hallway, frequently calling female

students out of class to his office, and giving gifts to female students.

Even if all of these allegations were true, however, Johnson presented no

evidence that they were ever brought to the attention of a supervisory or

policy-making official of the administration either before or during (or

even after) the time of Stevens's alleged abuse of Johnson. Moreover,

even if school officials had been made aware of these stories before or

during Stevens's alleged improper relationship with Johnson, we share

the District Court's reluctance "to impose on the district an obligation

to

treat as true, all rumors, until proven otherwise." In the absence of any

direct complaints made to school officials, the mere floating around of

unsubstantiated rumors regarding a particular employee -- particularly

in the high school setting, which is notoriously rife with adolescent

gossip -- does not constitute the kind of notice for which a school

district can be held liable under Monell's"policy or custom" requirement.

2. During cross-examination, Johnson's counsel sought to question

Stevens about having lied about making the dean's list in college on the

resume he submitted when he first applied for a job with the Elk Lake

6

First, Johnson alleges that the District Court erred by not

declaring a mistrial when Stevens's counsel mentioned to

the jury in his opening statement that his client had never

been arrested for any crime relating to the alleged incidents

_________________________________________________________________

School District. Stevens's attorney objected before Johnson's counsel

began the inquiry, contending that the issue was far too remote in time

and relevance to have any bearing on Stevens's credibility as a witness.

The trial judge agreed, sustaining the objection because he thought the

inquiry too "out in left field" to have any"immediate bearing on the

case." Johnson argues that the District Court erred under Federal Rule

of Evidence 608(b), which allows inquiry into specific instances of

conduct that "concern[ ] the witness' character for truthfulness or

untruthfulness" during cross-examination.

We review a district court's evidentiary rulings for abuse of discretion.

See Abrams v. Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir. 1995).

Moreover, where the applicable evidentiary rule is itself discretionary,

as

it is here, see Fed. R. Evid. 608(b) (stating that specific instances of

conduct "may" be inquired into "at the discretion of the court"), we give

the trial court's ruling "substantial deference." Elcock v. Kmart Corp.,

233

F.3d 734, 754 (3d Cir. 2000) (quoting Hurley v. Atlantic City Police

Dep't,

174 F.3d 95, 110 (3d Cir. 1999)).

Although lying about the dean's list is arguably probative of Stevens's

character for untruthfulness, the District Court acted within its

discretion when it concluded that the remoteness in time of the incident

-- Stevens submitted the resume more than nine years before the trial

-- substantially diminished its probative value. See 4 Weinstein's Federal

Evidence (Joseph M. McLaughlin ed., 2d ed. 2001), S 608.22[2][c], at

608-63 & nn.42-43 (noting that "remoteness in time" is a factor properly

considered by the trial court in limiting cross-examination under Rule

608(b)). Furthermore, the trial court was within its discretion to

conclude

that Stevens's lying on his resume, although duplicitous and wrong, was

not so indicative of moral turpitude as to be particularly probative of

his

character for untruthfulness. See id. at 608-64 (recognizing "[t]he

character of the previous conduct" as another factor properly considered

by the trial court under Rule 608(b)).

In addition to the Rule 608(b) argument, Johnson also contends that

the questioning should have been allowed under Federal Rule of

Evidence 405(b), which permits evidence of specific instances of conduct

when "character or a trait of character of a person is an essential

element of a charge, claim, or defense." This argument is misplaced,

however, for Stevens's character is not an essential element of any of the

charges against him.

7

with Johnson. The District Court, however, found that no

new trial was warranted because the Court's prompt

admonition to the jury to disregard the statement cured

any potential prejudice.

Second, as noted above, Johnson contends that the

District Court erred in refusing to permit Radwanski to

testify as to the touching incident with Stevens under

Federal Rule of Evidence 415. Although it did not state so

explicitly, it appears to us that the District Court excluded

the evidence pursuant to Federal Rule of Evidence 403's

balancing inquiry, concluding that the slim probative value

of Radwanski's testimony was outweighed by its potential

for unfairly prejudicing Stevens, misleading the jury,

confusing the issues, and wasting time.

II. Remarks by Stevens's Counsel in His Opening

Statement.

Near the end of his opening statement, Stevens's attorney

commented, "Betsy Sue Johnson reported [the allegations

regarding Stevens] in July of 1995. She talked to the state

police. No arrest." Shortly thereafter, upon the completion

of Stevens's attorney's opening statement, Johnson's

attorney approached the bench and objected to opposing

counsel's mention of "[n]o arrest," asking the trial judge to

declare a mistrial. The judge denied Johnson's motion, but

indicated that he would instruct the jury to ignore what

Stevens's counsel had just said.

Soon thereafter the judge told the jury:

The one thing I do want to tell you as a result of[the

sidebar conference] is that the reference by Mr.

Mazzoni [Stevens's counsel] in his opening to what did

or did not happen to Mr. Stevens as a result of the

complaint being lodged with the police is immaterial in

this case. Forget about that. It has nothing to do with

your determination in this case as to what happened.

After the jury returned its verdict in favor of Stevens,

Johnson moved for a new trial in part based on her

assertion that the District Court erred in denying her

request for a mistrial. Johnson argued that the opposing

8

counsel's improper reference to "[n]o arrest" influenced the

jury's verdict. The District Court disagreed, finding that the

limited nature of the improper reference, as well as the

clear and strong curative instructions given to the jury

upon plaintiff 's objection, "rendered it extremely unlikely

that the verdict, rendered three days later, was influenced

in the slightest respect by the improper statement."

We review the District Court's denial of a motion for a

new trial for abuse of discretion. See Blanche Rd. Corp. v.

Bensalem Twp., 57 F.3d 253, 264 (3d Cir. 1995). Such a

deferential standard of review is appropriate because "the

trial judge . . . is in a far better position than we to

appraise the effect of the improper argument of counsel."

Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 207

(3d Cir. 1992) (quoting Reed v. Phila. Bethlehem & New

England R.R. Co., 939 F.2d 128, 133 (3d Cir. 1991)).

There is no doubt that the mention of "[n]o arrest" by

Stevens's attorney was improper, for evidence of non-arrest,

like evidence of nonprosecution or acquittal of a crime, is

generally inadmissible in a civil trial concerning the same

incident. See Am. Home Assurance Co. v. Sunshine

Supermarket, Inc., 753 F.2d 321, 325 (3d Cir. 1985). This

rule is primarily based on the fact that criminal and civil

trials require different burdens of proof for proving guilt

and liability, respectively. A decision not to arrest,

therefore, may be based on law enforcement authorities'

belief that they would be unable to prove to a jury beyond

a reasonable doubt that the defendant committed the

suspected crime, which does not necessarily indicate that a

plaintiff cannot prove the same by a preponderance of the

evidence in a civil trial. Furthermore, the decision not to

arrest may take into account many factors irrelevant to a

civil suit, such as the allocation of law enforcement

resources and other considerations of prosecutorial

discretion. See id. Because the probative value of evidence

of non-arrest is very limited, courts exclude it in order to

avoid the danger of the jury in a civil trial exaggerating its

worth. Cf. 5 Weinstein's Federal Evidence (Joseph M.

McLaughlin ed., 2d ed. 2001), S 803.28[7], at 803-134

9

(discussing the reasons for the exclusion of judgments of

acquittal).3

As an initial matter, it is important to recognize that the

"[n]o arrest" comment, as part of Stevens's attorney's

opening statement, was never formally admitted into

evidence.4 Upon being alerted to the inappropriateness of

the comment by Johnson's attorney, the trial judge swiftly

moved to remedy the situation by instructing the jury to

disregard this statement. The District Court, therefore,

never endorsed as admissible the inappropriate comment of

defense counsel.

To be sure, there are exceptional situations in which a

new trial should be granted due to an attorney's

inappropriate remarks even when the trial judge issues

curative instructions. This is because, as the Supreme

Court recognized in Bruton v. United States, 391 U.S. 123

(1968), jury instructions to disregard particular statements

can sometimes be "intrinsically ineffective" because the

"nonadmissible declaration cannot be wiped from the

brains of the jurors." Id. at 129 (quoting Delli Paoli v. United

States, 352 U.S. 232, 247 (1957) (Frankfurter, J.,

dissenting)).

Despite these concerns, our system of justice,

particularly in the civil context, where the consequences of

_________________________________________________________________

3. Moreover, to the extent that a decision not to arrest is likely based

on

knowledge outside the personal experience of the law enforcement official

responsible for the decision, it amounts to an inadmissible opinion

under Federal Rules of Evidence 602 and 701. See Am. Home Assurance

Co., 753 F.2d at 325.

4. This is in contrast to cases like American Home and Galbraith v.

Hartford Fire Insurance Co., 464 F.2d 225 (3d Cir. 1972), in which we

reversed in part because the trial judges affirmatively permitted counsel

to introduce evidence of nonprosecution. In American Home, for example,

the plaintiff insurance company filed a motion in limine to prevent the

introduction of evidence of nonprosecution for defendant's alleged arson.

The trial court allowed the evidence to be introduced under certain

circumstances, and we reversed, holding that "[t]he admission of this

evidence" was error. 753 F.2d at 325. In Galbraith, the trial court

allowed the defendant to testify as to his nonprosecution. 464 F.2d at

226. We reversed, noting that this testimony was inadmissible and

"highly prejudicial." Id. at 227.

10

jury error are not as grave as in the criminal setting, "relies

upon the ability of the jury to follow instructions." Opper v.

United States, 348 U.S. 84, 95 (1954). Even in the criminal

context, exceptions to this general presumption are rare,

made only when 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 to the defendant." Greer v. Miller, 483 U.S.

756, 766 n.8 (1987) (internal quotation marks and citations

omitted). Consequently, because the District Court gave

clear instructions promptly upon plaintiff 's objection to the

mention of "[n]o arrest," we assume that the jury followed

these instructions and ignored the inappropriate remark.

We therefore conclude that the District Court did not abuse

its discretion in declining to grant a mistrial in response to

Stevens's attorney's improper remarks.5

_________________________________________________________________

5. Moreover, the particular circumstances of this incident lead us to

believe that it is not "reasonably probable that the verdict was

influenced

by prejudicial statements." Greenleaf v. Garlock, Inc., 174 F.3d 352, 363-

64 (3d Cir. 1999) (internal quotation marks and citations omitted).

Notably, the remark was an isolated incident occurring on the first day

-- indeed, within the first hour -- of a four-day trial, and likely faded

from the jurors' memories as the trial wore on. This fact distinguishes

this case from others in which our sister courts of appeals have found

that a new trial is warranted even when the trial judge instructed the

jury to ignore counsel's prejudicial remarks. See Rabon v. Great

Southwest Fire Ins. Co., 818 F.2d 306 (4th Cir. 1987) (counsel made

repeated references to nonprosecution in his closing argument); Roberts

v. State Farm Fire & Casualty Co., 809 F.2d 1247, 1251 (6th Cir. 1987)

(counsel emphasized nonprosecution in both his opening statement and

closing argument, and was also permitted to question witnesses about

the subject).

Furthermore, the reference to non-arrest here was not particularly

inflammatory, consisting only of the matter-of-fact utterance "[n]o

arrest." By contrast, in Rabon, which was a civil arson trial, the

defendant's attorney used the issue of nonprosecution to berate the

plaintiff insurance company in his closing argument, making outrageous

statements like, "They are asking you to do what they couldn't get done

in criminal courts," and "[A]fter law enforcement investigated this

matter,

they dismissed the charges, and nobody has gone forward with it but

[the insurance company's private investigator]." 818 F.2d at 308. The

non-inflammatory nature of Stevens's counsel's remark makes it much

more likely that the jury was able to heed the Court's instructions to

ignore it.

11

III. Exclusion of Radwanski's Testimony Under

Rule 415

A. The Incident

During the course of the trial, Johnson attempted to

introduce the testimony of Karen Radwanski, a teacher's

associate in the high school's restaurant training program

and a friend of Stevens, regarding an incident in which

Stevens allegedly sexually assaulted her in the office of

another teacher, Tony Blaisure. Radwanski had just walked

into the office carrying lunch when Stevens allegedly picked

her up and threw her over his shoulder. According to

Radwanski, who was wearing a skirt at the time, Stevens's

hand went up her skirt and touched her in the crotch area

while he raised her off the floor. Stevens soon let her down

to the floor and the two of them, along with Blaisure,

proceeded to sit down and eat lunch together.

Whether Stevens's alleged touching of Radwanski's crotch

was intentional or accidental is unclear from the record, as

Radwanski offered somewhat inconsistent accounts of the

incident. In her deposition Radwanski was asked whether

Stevens's finger "linger[ed] . . . on [her] crotch for any

period of time." She responded, "I have to say no." In an

earlier interview conducted by Johnson's attorney outside

the presence of opposing counsel, Radwanski, under oath,

was asked if Stevens had "left his hand [on her crotch] for

a while, a moment, two moments or so," to which she

responded, "Yeah." When asked during her deposition

whether she thought the touching was intentional,

Radwanski seemed unsure: "I guess maybe at the time I

didn't feel right, but I guess the greater part of me not

wanting to think anything was just like, you know,

shrugged it off, no big deal."

B. The District Court's Ruling

Federal Rule of Evidence 415 permits the introduction of

evidence of a similar "offense . . . of sexual assault" in a

civil trial in which a claim for damages, as in this case, "is

predicated on a party's alleged commission of conduct

constituting an offense of sexual assault. . . ." Pursuant to

12

this rule, Johnson sought to introduce Karen Radwanski's

testimony as to the alleged touching incident in an effort to

establish Stevens's propensity for sexual abuse. The

District Court, however, refused to permit Radwanski to

testify because it concluded that the touching incident did

not qualify as an "offense of sexual assault" under the

applicable definition provided by Rule 413(d).6 The District

_________________________________________________________________

6. As an alternative ground for excluding Radwanski's testimony, the

District Court suggested that Johnson had failed to abide by Rule 415's

disclosure requirement. We disagree. Rule 415(b) requires that:

A party who intends to offer evidence under this Rule shall

disclose

the evidence to the party against whom it will be offered,

including

statements of witnesses or a summary of the substance of any

testimony that is expected to be offered, at least fifteen days

before

the scheduled date of trial or at such later time as the court may

allow for good cause.

Johnson claimed that because defense counsel had been present at

Radwanski's deposition, during which the touching incident had been

inquired into by both parties, Stevens was fully aware that Radwanski

was likely to testify as to the incident at trial, particularly because

Johnson's pretrial memorandum, which was filed more than two years

before the trial began, listed Radwanski as a witness and included

Radwanski's deposition in its List of Exhibits. The District Court,

however, found this argument unconvincing, appearing to conclude that

Rule 415(b) required Johnson to provide some form of special

notification of her intent to introduce past sexual assault evidence under

Rule 415. Since Johnson had failed to provide any such special

notification, she was precluded from presenting Radwanski's testimony.

We acknowledge that there are some advantages to the District Court's

interpretation of Rule 415(b), especially from the standpoint of trial

management. Providing specific notice of an intent to present evidence

under Rule 415 may prompt defense counsel to raise the issue in a

pretrial motion in limine rather than in the midst of trial, thereby

enabling the trial judge to focus more sharply on the issue.

Despite these countervailing considerations, we think that in this case

the primary purpose of Rule 415(b)'s disclosure provision -- preventing

a plaintiff from unfairly surprising a defendant at trial with evidence of

an alleged past offense of sexual assault -- was not offended. Cf. United

States v. Carter, 756 F.2d 310, 311-12 (3d Cir. 1985) (declining to

reverse conviction where government failed to provide list of "alibi

rebuttal" witnesses to the defendant as required by Fed. R. Crim. P. 12.1

13

Court excluded the testimony without holding an in limine

hearing on the matter, as requested by Johnson. 7

The precise basis for the District Court's conclusion that

the touching incident did not meet Rule 413's definition of

an "offense of sexual assault" is not clear, as the Court did

not make a formal finding on the issue. Rather, it resolved

the matter in several statements that appear in the trial

transcript. It appears from these passages and from the

opinion accompanying the denial of Johnson's motion for a

new trial that the Court was particularly troubled by

concerns about the intentionality of Stevens's conduct. In

its remarks on the record, the Court stated:

I think there's insufficient evidence that the touching

was in any way intentional. . . . It was obviously a part

of horseplay in the presence of another person, and the

conduct of the parties indicated at the time that it was

not viewed as an intentional touching of that area.

As further evidence of the lack of intentional conduct on

the part of Stevens, the Court considered it important that

Radwanski declined to mention the incident to the state

police when being interviewed in connection with Johnson's

criminal complaint against Stevens. As the Court noted, "I

have great uncertainty that [the touching incident] qualifies

as a sexual assault under any of [Rule 413's] terms when

[Radwanski] didn't think it was sufficiently offensive to tell

the state police when she's being interviewed about this

conduct."

_________________________________________________________________

and this failure did not result in any "surprise" to the defendant at

trial).

Because defense counsel was present at Radwanski's deposition and

questioned her specifically about the touching incident, we think that

the evidence had been adduced in such a way that Stevens would

reasonably understand its significance. Consequently, permitting

Radwanski to testify as to the incident at trial would not have unfairly

surprised Stevens, and we cannot say that Rule 415(b)'s disclosure

provision was offended.

7. Actually, at trial Johnson objected to the Court's refusal to hold an

"in

camera proceeding." We assume, however, that what Johnson was

requesting was not an in camera proceeding but an in limine hearing.

14

While it did not do so in terms, our reading of the

transcript persuades us that what the Court really did was

to engage in a kind of balancing exercise, see Fed. R. Evid.

403, whereby it excluded the evidence because its slight

probative value was outweighed by other factors such as

the danger of unfair prejudice, confusion of the issues, and

waste of time.

C. History and Background of Rules 413-15

Federal Rules of Evidence 413-15 are relatively recent

additions to the Rules, adopted by Congress as part of the

Violent Crime Control and Law Enforcement Act of 1994.

Pub. L. No. 103-322, 108 Stat. 1796 (1994). Evidence law

has historically prohibited the admission into evidence of

"other crimes, wrongs, or acts . . . to prove the character of

a person in order to show action in conformity therewith."

Fed. R. Evid. 404(b). Rules 413-15 establish exceptions to

the general prohibition on character evidence in cases

involving sexual assault and child molestation. Rules 413

and 414 apply to criminal proceedings, while Rule 415

applies to civil trials.

Ever since their initial proposal, Rules 413-15 have been

met with hostility by the legal establishment. See Judicial

Conference of the U.S., Report of the Judicial Conference on

the Admission of Character Evidence in Certain Sexual

Misconduct Cases, 159 F.R.D. 51, 52 (1995) [hereinafter

Judicial Conference Report] (observing the opposition of an

"overwhelming majority of judges, lawyers, law professors,

and legal organizations" to the proposed rules); Christopher

B. Mueller & Laird C. Kirkpatrick, Evidence Under the Rules

475 (3d ed. 1996) (noting that "the professional reaction to

[Rules 413-15] has been strongly negative"). Although

Congress bypassed the ordinary rulemaking procedures

when adopting Rules 413-15, the enacting legislation

provided the Judicial Conference 150 days within which to

make and submit alternative recommendations on the rules

to Congress. The Judicial Conference's Advisory Committee

on Evidence Rules, with what it noted was "highly unusual

unanimity," ardently opposed the new rules, fearing that

they "could diminish significantly the protections that have

safeguarded persons accused in criminal cases and parties

15

in civil cases against undue prejudice." Judicial Conference

Report, 159 F.R.D. at 53. Embracing the views of the

Advisory Committee, the Conference recommended that

Congress "reconsider its policy determinations underlying

Evidence Rules 413-415" or, in the alternative, adopt

amendments to Rules 404 and 405 proposed by the

Advisory Committee. Id. at 54. Congress rejected both

alternatives, and the rules stand today as originally

enacted.

D. Standards for Admission of Evidence under

Rule 415

In order for evidence of a past act to be admitted under

Rule 415, the District Court must determine whether the

act satisfies the applicable definition of an "offense of

sexual assault" provided by Rule 413(d), which states:

For purposes of this rule and Rule 415, "offense of

sexual assault" means a crime under Federal law or

the law of a State . . . that involved --

(1) any conduct proscribed by chapter 109A of title

18, United States Code;

(2) contact, without consent, between any part of the

defendant's body or an object and the genitals or

anus of another person;

(3) contact, without consent, between the genitals or

anus of the defendant and any part of another

person's body;

(4) deriving sexual pleasure or gratification from the

infliction of death, bodily injury, or physical pain on

another person; or

(5) an attempt or conspiracy to engage in conduct

described in paragraphs (1)-(4).

Although the language of Rule 413(d) is ambiguous as to

whether the past "offense of sexual assault" must be a

conviction, the legislative history of Rules 413-15 indicates

that Congress intended to allow admission not only of prior

convictions for sexual offenses, but also of uncharged

conduct. See 140 Cong. Rec. 23,603 (1994) (Statement of

16

Rep. Molinari) ("The practical effect of the new rules is to

put evidence of uncharged offenses in sexual assault and

child molestation cases on the same footing as other types

of relevant evidence that are not subject to a special

exclusionary rule.") (emphasis added); see also United

States v. Meacham, 115 F.3d 1488, 1492 (10th Cir. 1997);

2 Weinstein's Federal Evidence (Joseph M. McLaughlin ed.,

2d ed. 2001), S 413.03[1], at 413-6-7. But see 140 Cong.

Rec. 15,209 (1994) (statement of Rep. Kyl) (stating that the

new rules will not apply to "allegations" but only to "prior

offenses" where "an accused has been convicted of similar

conduct") (emphasis added).

While uncharged conduct is admissible under Rule 415,

some limits, of course, need to be placed on its

admissibility in order to ensure that the plaintiff may not

"parade past the jury a litany of potentially prejudicial

similar acts that have been established or connected to the

defendant only by unsubstantiated innuendo." Huddleston

v. United States, 485 U.S. 681, 689 (1988). At the same

time, for reasons of judicial efficiency and economy, the

district court cannot be expected to conduct a "trial within

a trial" to determine the veracity of the proffered evidence.

So exactly what must a district court do before deciding

whether to admit or exclude evidence of prior sexual

assaults under Rules 413-15? The text of Rules 413-15 is

silent on this issue, and the Supreme Court has never

answered this question in the specific context of these

rules. The Supreme Court has, however, in Huddleston,

considered the same issue in the context of Federal Rule of

Evidence 404(b), which allows for the introduction of

evidence of "other crimes, wrongs, or acts" to prove issues

other than character.

In Huddleston, the prosecution introduced evidence of

another act of the defendant in an attempt to prove his

knowledge of the crime for which he was being tried,

consistent with Rule 404(b). Arguing that "evidence of

similar acts has a grave potential for causing improper

prejudice," the defendant submitted that to avoid this

danger the trial court must make a preliminary finding by

a preponderance of the evidence under Federal Rule of

Evidence 104(a) that the defendant committed the past act.

17

485 U.S. at 686-87. The Supreme Court, in a unanimous

opinion, rejected the defendant's position, concluding "that

a preliminary finding by the court that the Government has

proved the act by a preponderance of the evidence is not

called for under Rule 104(a)." Id. at 689. Instead, the Court

identified Rule 104(b), which governs the relevancy of

evidence conditioned on fact, as the applicable safeguard

against the risk of introducing prejudicial unsubstantiated

evidence.

Huddleston identified Rule 104(b) as appropriate because

the question of the defendant's commission of the past act

"was simply one of conditional relevancy -- the relevancy of

the bad act is conditioned on the defendant's having

committed it." Federal Rules of Evidence Manual 388-89

(Stephen A. Saltzburg et al. eds., 7th ed. 1998). Under Rule

104(b), no preliminary finding is required; rather, the trial

"court simply examines all the evidence in the case and

decides whether the jury could reasonably find the

conditional fact -- [whether the defendant committed the

prior act] -- by a preponderance of the evidence."

Huddleston, 485 U.S. at 690.

To recapitulate, Huddleston does not require that a trial

judge make a finding by a preponderance of the evidence;

it simply requires the judge to ask whether "a jury could

reasonably" make such a finding. Presumably, this once-

removed determination of the trial judge lowers the burden

for the party seeking to introduce the prior act evidence,

although exactly by how much is hard to say, as the

standard appears designed to provide the trial court

substantial discretion in admitting conditionally relevant

information. See id. at 690.

In part because of the similarity between Rules 404(b)

and Rules 413-15 -- both allow the admission of past acts,

including uncharged conduct, albeit for different purposes

-- the few courts and commentators that have considered

the issue have concluded that Huddleston's standard for

screening uncharged conduct applies to Rules 413-15. See

United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir.

1998); 2 Weinstein's Federal Evidence, S 413.03[1], at 413-

7. As explained in the margin, we find this position

somewhat problematic in light of the difference between the

18

types of evidence that are likely to be introduced under

Rules 404(b) and 413-15: the former allows for the

introduction of "other crimes, wrongs, or acts," whereas the

latter allow evidence of offenses of sexual assault or child

molestation.8 Were it within our power to select the better

rule, therefore, we would be inclined to adopt the more

exacting standard for the admission of past act evidence

rejected by the Court in Huddleston: a preponderance of the

evidence finding under Rule 104(a). We find ourselves

constrained from doing so, however, by the texts of Rules

413-15 as well as by their legislative history, which

indicates that Congress intended that the Huddleston

standard apply in this context.

As noted above, the texts of Rules 413-15 are silent as to

the appropriate standard for admitting evidence of past acts

of sexual assault. Following the Court's reasoning in

Huddleston, this silence alone is an important reason for

not imposing a Rule 104(a) requirement on evidence

introduced under Rules 413-15. In interpreting Rule 404(b),

the Huddleston Court considered it important that Rule

404(b)'s "text contains no intimation . . . that any

_________________________________________________________________

8. In our view, because of the severe social stigma attached to crimes of

sexual assault and child molestation, evidence of these past acts poses

a higher risk, on the whole, of influencing the jury to punish the

defendant for the similar act rather than the charged act than the type

of evidence that is often introduced under Rule 404(b). See Doe ex rel.

Rudy-Glanzer v. Glanzer, 232 F.2d 1258, 1268 (9th Cir. 2000) (noting

"the strong prejudicial qualities" of evidence submitted under Rule 415)

(quoting United States v. Guardia, 135 F.3d 1326, 1330 (10th Cir.

1998)). In light of this higher risk of unfair prejudice, we think the

need

to guard against the introduction of unsubstantiated evidence is greater,

and would be best addressed by requiring the trial court to make a

finding by a preponderance of the evidence under Rule 104(a).

To be sure, certain past acts likely to be introduced under Rule 404(b)

are similarly, if not more highly, stigmatized -- such as murders or

assaults and batteries -- and thereby present a significant risk of

inappropriate punishment. However, many, if not most, of the past acts

introduced under Rule 404(b) -- e.g., burglaries, thefts, etc -- are not

as

potentially inflammatory as offenses of sexual assault or child

molestation. On the whole, therefore, we believe that the risk of unfair

prejudice is less in the Rule 404(b) context than in the context of Rules

413-15.

19

preliminary showing is necessary," and that such a

requirement was "nowhere apparent from the language of "

the rule. 485 U.S. at 687-88. Similarly, Rules 413-15 do

not contain any language indicating that a preliminary

finding is necessary.

Moreover, just as in Huddleston the Court noted that the

legislative history counseled against imposing a Rule 104(a)

finding requirement on evidence introduced under Rule

404(b), see 485 U.S. at 688, the legislative history of Rules

413-15 points to the same conclusion in this context. The

principal sponsors of Rules 413-15, Representative Susan

Molinari and Senator Robert Dole, declared in their floor

statements supporting the new rules that an address

delivered to the Evidence section of the Association of

American Law Schools by David J. Karp -- then Senior

Counsel at the Office of Policy Development at the

Department of Justice and the drafter of Rules 413-15 --

was to serve as an "authoritative" part of the Rules'

legislative history.9 140 Cong. Rec. 23,602 (1994)

(statement of Rep. Molinari); 140 Cong. Rec. 24,799 (1994)

(statement of Sen. Dole). In the referenced speech, Mr. Karp

stated clearly that "the standard of proof with respect to

uncharged offenses under the new rules would be governed

by the Supreme Court's decision in Huddleston v. United

States." Evidence of Propensity, 70 Chi.-Kent L. Rev. at 19.

Representative Molinari's and Senator Dole's reference to

a non-legislator's address is a somewhat unusual method

of establishing "authoritative" legislative history.10

_________________________________________________________________

9. The address was reprinted as Evidence of Propensity and Probability in

Sex Offense Cases and Other Cases, 70 Chi.-Kent L. Rev. 15 (1994)

[hereinafter Evidence of Propensity].

10. While relying on the work of a non-legislator is a somewhat unusual

method of establishing legislative history, it is not entirely unknown.

For

instance, the portion of the Private Securities Litigation Reform Act of

1995 that establishes the procedure for selecting a lead plaintiff and for

choosing and retaining lead counsel in securities class actions, 15 U.S.C.

S 78u-4(a)(3), was clearly based on a law review article by Professors

Elliott J. Weiss and John S. Beckerman. See S. Rep. No. 104-98, at 11

n.32 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 690 n.32 (stating that

the article -- Let the Money Do the Monitoring: How Institutional

Investors

20

Nevertheless, "[w]e are bound by the intent of Congress, as

we perceive it," and it appears that this reference to Mr.

Karp's address was intended by Congress as a guide to the

judiciary in interpreting Rules 413-15.11 Sperling v.

Hoffmann-La Roche, Inc., 24 F.3d 463, 470 (3d Cir. 1994).

Moreover, we can find nothing in the legislative record to

the contrary. Consequently, we conclude, albeit with some

reluctance, see supra note 8, that Huddleston's standard

for the admission of evidence applies to Rule 415. As such,

a trial court considering evidence offered under Rule 415

must decide under Rule 104(b) whether a reasonable jury

could find by a preponderance of the evidence that the past

act was an "offense of sexual assault" under Rule 413(d)'s

definition and that it was committed by the defendant.

_________________________________________________________________

Can Reduce Agency Costs in Securities Class Actions , 104 Yale L. J. 2053

(1995) -- "provided the basis for the `most adequate Plaintiff '

provision"

of the PSLRA). Although Congress did not refer to the Weiss/Beckerman

article as an "authoritative" part of the legislative history -- as

Representative Molinari and Senator Dole did here with respect to Mr.

Karp's address -- courts interpreting S 78u-4(a)(3) of the PSLRA have

nevertheless taken note of Congress's heavy reliance on the

Weiss/Beckerman article and given it considerable weight when

construing the provision. See, e.g., In re Cendant Corp. Litig., 264 F.3d

201, 262 (3d Cir. 2001).

Similarly, in enacting 11 U.S.C. S 510(b), which provides for the

subordination of any claim for damages "arising from the purchase or

sale" of a security of the debtor, Congress noted that it was relying

heavily on a law review article written by Professors John J. Slain and

Homer Kripke, The Interface Between Securities Regulation and

Bankruptcy -- Allocating the Risk of Illegal Securities Issuance Between

Securityholders and the Issuer's Creditors, 48 N.Y.U. L. Rev. 261 (1973).

See H.R. Rep. No. 95-595, at 196 (summarizing the argument in the

Slain/Kripke article and stating that "[t]he bill generally adopts the

Slain/Kripke position"). The courts construingS 510(b) have accordingly

given considerable weight to the Slain/Kripke article. See, e.g., In re

Granite Partners, 208 B.R. 332, 336 (Bankr. S.D.N.Y. 1997) ("Any

discussion of section 510(b) must begin with the 1973 law review article

authored by Professors John J. Slain and Homer Kripke . . . .").

11. Judge Alito agrees that Huddleston applies here for essentially the

same reasons given in Huddleston, and he expresses no view on whether

this is the best procedure in this situation and does not rely on Mr.

Karp's speech, which is discussed supra.

21

Even if a trial court is satisfied that the proffered past act

evidence satisfies Rule 104(b), however, it may still exclude

it under Federal Rule of Evidence 403, which allows for

evidence to "be excluded 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." Initially, there was

some doubt as to whether Rule 403's balancing inquiry was

at all applicable to Rules 413-15. Because the rules state

that evidence of past sexual offenses "is admissible," some

commentators, including the Judicial Conference Advisory

Committee on the Rules of Evidence, interpreted this

language as possibly indicating that the admission of past

sexual offense evidence is mandatory, unconstrained by

Rule 403's prejudice inquiry. Judicial Conference Report,

159 F.R.D. at 53.12

It appears from the legislative history of Rules 413-15,

however, that despite the seemingly absolutist tone of the

"is admissible" language, Congress did not intend for the

admission of past sexual offense evidence to be mandatory;

rather, Congress contemplated that Rule 403 would apply

to Rules 413-15. See, e.g., 140 Cong. Rec. 24,799 (1994)

(Statement of Sen. Dole) ("[T]he general standards of the

rules of evidence will continue to apply [to Rules 413-15],

including . . . the court's authority under rule 403 to

exclude evidence whose probative value is substantially

outweighed by its prejudicial effect.").13

Having concluded that Rule 403 is applicable to Rules

413-15, we now turn to the manner in which the balancing

inquiry ought to be performed. Relying on the legislative

_________________________________________________________________

12. While we express no view on the matter, we note that a policy of

mandatory admission, particularly in the criminal context, has been

thought to raise serious constitutional concerns under the Due Process

Clause. See Enjady, 134 F.3d at 1430; Judicial Conference Report, 159

F.R.D. at 53.

13. While we again express no view on the matter, we note that the

presence of the Rule 403 safeguard has served to assuage the concerns

of at least one of our sister courts of appeals, the Tenth Circuit,

regarding the constitutionality of Rules 413-15 under the Due Process

Clause. See Enjady, 134 F.3d at 1433.

22

history, a number of courts and commentators have

concluded that Rule 403 should be applied to Rules 413-15

with a thumb on the scale in favor of admissibility. See

United States v. Larson, 112 F.3d 600, 604 (2d Cir. 1997)

("With respect to the Rule 403 balancing . . . the sponsors

[of Rules 413-15] stated that `[t]he presumption is that the

evidence admissible pursuant to these rules is typically

relevant and probative, and that its probative value is not

outweighed by any risk of prejudice.' ") (quoting 140 Cong.

Rec. S12,990 (daily ed. Sept. 20, 1994) (Statement of Sen.

Dole)); see also United States v. LeCompte, 131 F.3d 767,

769 (8th Cir. 1997) (noting the "strong legislative judgment

that evidence of prior sexual offenses should ordinarily be

admissible"). Indeed, in his speech that is referenced as

part of the "authoritative" legislative history of Rules 413-

15, David Karp observed that there is "an underlying

legislative judgment . . . that the sort of evidence that is

admissible pursuant to proposed Rules 413-15 is typically

relevant and probative, and that its probative value is

normally not outweighed by any risk of prejudice or other

adverse considerations." Evidence of Propensity, 70 Chi.-

Kent L. Rev. at 19.

In our view, this characterization of the role of Rule 403

is overly simplified. It makes sense when the past act

sought to be introduced under Rules 413-15 is

demonstrated with specificity, see Enjady, 134 F.3d at

1433 (identifying "how clearly the prior act has been

proved" as a factor to be considered in assessing the

probative value of evidence of past sexual assaults), and is

sufficiently similar to the type of sexual assault allegedly

committed by the defendant. See United States v. Guardia,

135 F.3d 1326, 1331 (10th Cir. 1998) (noting that"the

similarity of the prior acts" to the acts at issue in the case

is a factor to be considered in determining their probative

value). In these archetypal cases, where the propensity

inference that can be drawn from the past act evidence is

greatest, Congress surely intended for the probative value

of the evidence to outweigh its prejudicial effect, and,

conversely, did not want Rule 403 factors such as undue

delay, waste of time, confusion of the issues, etc., to justify

exclusion. See, e.g., 140 C.R. 15,209 (1994) (Statement of

Rep. Kyl) (recognizing as the archetypal case one in which

23

"there is a clear pattern of conduct by an accused who has

been convicted of similar conduct") (emphases added).

In other cases, however, where the past act is not

substantially similar to the act for which the defendant is

being tried, and/or where the past act cannot be

demonstrated with sufficient specificity, the propensity

inference provided by the past act is weaker, and no

presumption in favor of admissibility is warranted. Where a

past act cannot be shown with reasonable certainty, its

probative value is reduced and it may prejudice the

defendant unfairly, confuse the issues, mislead the jury,

and result in undue delay and wasted time -- all reasons

for excluding evidence under Rule 403. The same can be

said of evidence of past acts that are dissimilar to the act

for which the defendant is being tried; in particular, the

introduction of dissimilar past acts runs the risk of

confusing the issues in the trial and wasting valuable time.

Also relevant to the Rule 403 balancing analysis are the

additional factors recognized by the Tenth Circuit in

Guardia: "the closeness in time of the prior acts to the

charged acts, the frequency of the prior acts, the presence

or lack of intervening events, and the need for evidence

beyond the testimony of the defendant and alleged victim."

135 F.3d at 1330 (internal citations omitted).

Finally, it bears repeating that despite these general

guidelines, the Rule 403 balancing inquiry is, at its core, an

essentially discretionary one that gives the trial court

significant latitude to exclude evidence. See Elcock v. Kmart

Corp., 233 F.3d 734, 754 (3d Cir. 2000).

E. Discussion

Johnson contends that Radwanski's testimony as to the

touching incident with Stevens qualified as an "offense of

sexual assault" under Rules 413 and 415, and that the

District Court therefore erred in excluding it. Moreover, at

trial she objected to the fact that the Court did not hold an

in limine hearing on the matter. We apply the legal

standards described above, and review the District Court's

evidentiary rulings for abuse of discretion, see Abrams v.

Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir. 1995), although

24

our review of the Court's interpretation of the Federal Rules

of Evidence is plenary. See United States v. Brown, 254

F.3d 454, 458 (3d Cir. 2001).

The District Court correctly noted that in order for the

touching incident to qualify as an "offense of sexual

assault" under Rule 413(d)'s definition, Pennsylvania law,

as we explain in the margin, requires that the touching

have been done intentionally.14 As described in Part I,

supra, Radwanski gave conflicting descriptions of the

incident. In one account she implied that Stevens's hand

merely brushed by her crotch as he lifted her off the

ground; in another she indicated that his hand lingered on

her crotch for a moment or two. See supra at 12. When

asked during her deposition whether she thought the

touching incident was intentional, Radwanski replied, "I

guess maybe at the time it didn't feel right, but I guess the

greater part of me not wanting to think anything just was

like, you know, just shrugged it off, no big deal."15

In deciding to exclude Radwanski's testimony, the

District Court did not indicate what standard for admission

it was applying to the evidence. In keeping with Huddleston,

the Court was not obliged to hold an in limine hearing, as

requested by Johnson, or make a formal finding under Rule

104(a) when excluding the evidence.16 Under Huddleston,

_________________________________________________________________

14. Stevens's touching of Radwanski might be considered a crime of

"indecent assault" under Pennsylvania law, 18 Pa. Cons. Stat. Ann.

S 3126(a)(1-2), which is defined as consisting of "indecent contact."

"Indecent contact," in turn, is defined as touching "for the purpose of

arousing or gratifying sexual desire in either person." 18 Pa. Cons. Stat.

Ann. S 3101. The "for the purpose of " language of the indecent assault

statute clearly establishes that the conduct underlying an offense must

have been intentional.

15. We are aware that victims of sexual assault are often hesitant to

report their assailants for a variety of reasons. See United States

Department of Justice, Bureau of Justice Statistics, National Crime

Victimization Survey (2000) (noting that in 1999"rape or sexual assault

was [the violent crime] least often reported to law enforcement (28%)").

Indeed, for this reason we do not place too much emphasis on the fact

that Radwanski did not report the touching incident to the state police

when they interviewed her in response to Johnson's criminal complaint

against Stevens, a factor relied on by the District Court.

16. Although an in limine hearing is not required, district courts might

find this a useful technique for considering the admission of evidence

25

the Court needed only to ask itself whether a jury could

reasonably find by a preponderance of the evidence that

Stevens committed the act intentionally, provided that the

Court was satisfied that the evidence need not be excluded

under Rule 403. Although the Court did not say so

explicitly, it appears to us that the Court concluded that

Radwanski's testimony did not satisfy Rule 403, and it

accordingly -- and appropriately -- bypassed the

Huddleston reasonable jury determination.

The basis for the Court's Rule 403 determination seems

to have been that Radwanski's equivocal testimony was

insufficiently specific as to the intentionality of Stevens's

conduct. The District Court stated, "I think there's

insufficient evidence that the touching was in any way

intentional. . . .". Lacking more specific evidence of

intentionality, the Court apparently concluded that the

probative value of the evidence was slight and was

outweighed by Rule 403's concerns of prejudice, undue

delay, waste of time, etc. This judgment appears to us to be

sound given the equivocal nature of Radwanski's testimony

as regarding the intentionality of Stevens's conduct.17

(Text continued on page 28)

_________________________________________________________________

proffered under Rule 415. Moreover, while a formal"finding" under Rule

104(a) is not required, it would be helpful to our reviewing function if

district courts would state explicitly their reasons for admitting or

excluding evidence under Rules 413-15. See Glanzer, 232 F.3d at 1269

(exhorting the trial court to "make a clear record concerning its decision

whether or not to admit such evidence"). The failure of the District Court

to be more precise in this case is probably explained by the relative

newness of Rule 415. Indeed, this is the first opinion we have written on

Rules 413-15 since their promulgation in 1995.

17. In addition to its concerns about the intentionality of Stevens's

conduct, the District Court also expressed some worry about the fact

that Stevens did not touch Radwanski on the skin, but rather touched

her through her clothing. The Court noted:

So it would have to again be 413(d)(2). I started to read, contact

without consent between any part of the defendant's body or an

object in the genitals or anus of another person. Now, the fact

that

there was a touching of the crotch, presumably she was clothed and

unlike the testimony in our case, the Johnson case, there -- this

does not indicate that there was a touching actually of the

genitals

26

themselves as opposed to the crotch area. That may be a fine

distinction, but there is that distinction between that testimony.

It appears to us that the District Court thought that the touching

incident would not qualify as an "offense of sexual assault" under Rule

413(d)'s definition because it did not fit within subsection (2)'s

reference

to "contact, without consent, between any part of the defendant's body

. . . and the genitals . . . of another person." Assuming without deciding

that touching through the clothing would not meet the requirements of

subsection (2) by its literal terms, touching through the clothing does

satisfy the requirements of another subsection of Rule 413(d) --

subsection (1), which refers to "any conduct proscribed by chapter 109A

of title 18, United States Code."

Chapter 109A includes 18 U.S.C. S 2244, which proscribes "abusive

sexual contact." Subsection (b) of S 2244 makes it a criminal offense to

"knowingly engage[ ] in sexual contact with another person without that

other person's permission." (Emphasis added). 18 U.S.C. S 2246 makes

clear that "sexual contact" for the purposes of S 2244's "abusive sexual

contact" offense includes touching "either directly or through the

clothing,

of the genitalia, anus, groin, breast, inner thigh, or buttocks of any

person with an intent to abuse, humiliate, harass, degrade, or arouse or

gratify the sexual desire of any person." (Emphasis added). The fact that

Stevens may have touched Radwanski through the clothing, therefore,

does not preclude the act from qualifying as a sexual offense, provided,

of course, that it meets Rule 413(d)'s threshold requirement of being "a

crime under Federal law or the law of a State."

Under the law of Pennsylvania, skin-to-skin touching is not a

requirement for the commission of a crime of sexual assault.

Pennsylvania law defines "indecent assault" in relevant part as

consisting of "indecent contact" without the complainant's consent or by

forcible compulsion. 18 Pa. Cons. Stat. Ann. S 3126(a)(1-2). "Indecent

contact" is defined as "[a]ny touching of the sexual or other intimate

parts of the person for the purposes of arousing or gratifying sexual

desire, in either person." 18 Pa. Cons. Stat. Ann. S 3101. Unlike its

federal counterpart, Pennsylvania's statutory definition of "indecent

contact" does not explicitly mention whether such contact includes

touching through the clothing. Nevertheless, the Pennsylvania courts

interpreting "indecent contact" have concluded that this term

encompasses touching through the clothing. See Commonwealth v. Ricco,

437 Pa. Super. 629, 634 (1994) (concluding that touching through the

clothing may be considered "indecent contact" and rejecting a per se rule

requiring "skin-to-skin" contact); In the Interest of M.S., a Minor, 10

Pa.

27

Additionally, we find the exclusion of the evidence

justifiable for a reason not stressed by the District Court:

the differences between Stevens's alleged assaults of

Radwanski and Johnson. The former occurred in another

teacher's office with that teacher present, involved an adult

co-worker of Stevens, and consisted of a bizarre incident in

which Stevens lifted Radwanski off the ground and placed

her on his shoulders. The latter is said to have taken place

with no one else present in Stevens's office, involved a

minor to whom Stevens served as guidance counselor, and

allegedly involved Stevens making more direct sexual

advances upon a much younger female. In our view, these

dissimilarities reduced significantly the probative value of

Radwanski's testimony. The case law is in accord. See, e.g.,

Doe ex rel. Glanzer v. Rudy-Glanzer, 232 F.3d 1258, 1269-

70 (9th Cir. 2000) (upholding exclusion of prior sexual

assault evidence as too dissimilar because of age difference

between victims and the dissimilar circumstances of the

alleged misconduct).

We also consider it relevant that the alleged touching of

Radwanski appears to have been an isolated incident.

Although Johnson presented evidence of rumors of Stevens

acting inappropriately around female students in her

attempt to attach S 1983 liability to the Administration, see

supra note 1, during her trial against Stevens she did not

attempt to present any other evidence of offenses of sexual

assault allegedly perpetrated by Stevens besides the lone

incident with Radwanski. While the isolated nature of the

incident alone would probably not be enough to warrant

excluding it, we nevertheless consider it a relevant factor

supporting the District Court's decision. See Guardia, 135

_________________________________________________________________

D. & C. 4th 282, 283 (1990) ("The [`indecent contact'] element of

`touching' can be established even though the private parts of the victim

are touched over the clothing.").

In sum, the mere fact that Radwanski alleged to have been touched

through her clothing and not directly on her skin does not preclude the

incident from qualifying as an "offense of sexual assault" under Rule

413(d)'s definition. Hence, to the extent that the District Court's

comment indicates that it excluded Radwanski's testimony on the basis

of this factor, it was in error, though not error of consequence.

28

F.3d at 1331 (recognizing "the frequency of the prior acts"

as a factor in determining the evidence's probative value).

In sum, the uncertainty of the testimony regarding

intentionality, the dissimilarities between the similar and

alleged acts, and the isolated nature of the Radwanski

incident reduced significantly the probative value of

Radwanski's testimony. Given this reduced probative value,

any presumption in favor of admissibility was unwarranted,

and the District Court's exclusion of the evidence can be

justified on grounds that its introduction might have

prejudiced Stevens unfairly, misled the jury, confused the

issues, and wasted valuable trial time. Accordingly, we

cannot say that the Court abused its discretion in

excluding Radwanski's testimony.

Conclusion

For the foregoing reasons, we will affirm the District

Court's order granting summary judgment to the

Administration and its order denying Johnson's motion for

a new trial.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

29