United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1820SD

_____________ United States of America, * * Appellant, * * On Appeal from the United v. * States District Court * for the District of * South Dakota. Leo LeCompte, * * Appellee. *

___________ Submitted: October 21, 1997 Filed: December 22, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges.

___________ RICHARD S. ARNOLD, Chief Judge. Before the trial o f Leo LeCompte for the alleged sexual abuse of his wife’s 11- year ol d niece, “C.D.,” under 18 U.S.C. §§ 2244(a)(1) and 2246(3) (1994), th e defendant moved in limine to exclude evidence of prior uncharged sex offenses against another nie ce by marriage, “T.T.” The government argued that the evidence wa s admissibl e under Federal Rule of Evidence 414 (Evidence of Similar Crimes in Child Molestation Cases). The District Court excluded the evidence under Rule 403. The government appeals this evidentiary ruling . Such pretrial appeals are authorized by 18-2-

U.S.C. § 3731 (1994). We re verse and hold that the motion in limineshould not have been granted. We do so in order to give effect to the decision of Congress, expressed in recently enacted Ru le 414, to loosen to a substantial degree the restrictions of prior law on the admissibility of such evidence.
I.
LeCo mpte is charged with child sex offenses allegedly committed in January 1995

. According to the victim C.D., prior to January 1995, LeCompte had playe d game s with her at her aunt’s trailer and had exposed himself to her on at least on e occasion. The actual incidents of molestation allegedly occurred while she was lying on a couch at her aunt’s, with her siblings sl eeping on the floor next to her. LeCompte alleged lyjoined her on the couch, forced her to touch his penis, and touched he r breasts.
The gov ernment offered evidence of sex offenses committed by LeCompt e against a niece of his first wife during that marriage, between 1985 and 1987. Thi s niece, T.T., would testify that LeCompte had played games with her at her aunt’ s house, had exposed hims elf to her, had forced her to touch his penis, and had touched her private parts.
The admissibility of T.T.’s testimony has been considered by this Court onc e before. In LeCompte’s first trial, the government offered the evidence under Rul e 404(b). It was not then able to offer the evidence under Rule 414 because of its failure to pro vide timely notice of the offer, as required by Rule 414. The District Court admit ted the evidence, and the jury convicted LeCompte. On appeal, this Court held that the District Court’s admission of the evidence under Rule 404(b) was improper, and reversed LeCompte’s conviction. United States v. LeCompte , 99 F.3d 274 (8t h Cir. 1996). We now consider the admissibility of T.T.’s testimony in LeCompte’s-3-

retrial, u nder Rule 414, the government having given timely notice the second tim e around.
II.
On remand, LeCompte moved in limineto exclude the evidence. The District Court ruled that T.T.’s testimony was potentially admissible under Rule 414, bu t excluded by Rule 4 03. It noted that although the evidence’s only relevance was as to LeCompte’s propensity to commit child sexual abuse, Rule 414 expressly allowed its use on that basis. The Court then turned to a Rule 403 analysis of the evidence. As to the evidence’s probative value, the Court recognized the similarities between C.D.’s and T.T.’s accounts: they were both young nieces of LeCompte at the time h e molested t hem, he forced them both to touch him, he touched them both in simila r places, and he exposed himself to both of them. The Court found that the evidence’s probative value was limited, however, byseveral differences. First, the acts allegedly committed against C.D. occurred with her siblings present, while the acts against T.T. occurred in isolation. Second, LeCompte had not played games with C.D. immediately before molesting her, as he had with T .T. Finally, the acts against C.D. and T.T. were separate d by a period of eight years. The District Court concluded that the probative value of T.T.’s testimony was limited. On the other hand, it

found that the risk of unfair prejudice was high, reasoning that “T.T.’s testimony is obviously highly prejudicial evidence against defendant. . . . ‘child s exual abuse deservedly carries a unique stigma in our society; such highl y p rejudicial evidence should therefore carry a very high degree of probative value if it is to be admitted.’ ” District Court Order at 4 (citation omitted). The Court therefore excluded the evidence under Rule 403.
III.-4-

We first n ote that no procedural bars prevent the government from offering the evidence under Rule 414 at this time. First, as the District Court reasoned, the law of the c ase doctrine is inapplicable; this Court’s holding that the evidence wa s inadmissi ble under Rule 404 at the first trial does not foreclose consideration o f admissibility under a diff

erent rule of evidence on retrial. Second, LeCompte’s retrial will fall after Rule 414’s effective date, July 9, 1995. Th e Rule applies in all trials held after this o riginal effective date. Act of September 30, 1996, Pub. L. No. 104-208 , § 120, 110 Stat. 3009-25. Rule 414 provides in relevant part: (a) Ina criminal case in which the defendant is accused of an offense of child molestation, evidence of th e de fendant’s commission of another offense o r offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

Rule 414 and its companion rules -- Rule 413 (Evidence of Similar Crimes in Sexual Assau lt Cases), and Rule 415 (Evidence of Similar Acts in Civil Cases Concernin g Sexual Assault or Molestation) -- are “general rules of admissibility in sexual assault and child molestation case s for evidence that the defendant has committed offenses of the same type o n other occasions. . . . The new rules will supersede in sex offens e cases the restrictive aspects of Federal Rule of Evidence 404(b).” 140 Cong. Rec

. H8992 (daily ed. Aug. 21, 1994) (statement of Rep. Molinari). Evidence offered under Rule 414 is still subject to th e requirements of Rule 403. Id. This Court has recognized that evidence otherwise admissible under Rule 414 may be excluded under Rule 403’s balancing test. United States v. Sumner , 119 F.3d 658, 661 (8th Cir. 1997). See also United States v. Meacham , 115 F.3d 1488, 1492 (10th-5-

Cir. 1997 ); United States v. Larson , 112 F.3d 600, 604-05 (2d Cir. 1997). However, Rule 403 must be applied to allow Rule 414 its intended effect.
We review the D istrict Court’s application of Rule 403 for abuse of discretion. United States v . Johnson , 56 F.3d 947, 952 (8th Cir. 1995). In light of the stron g legislat ive judgment that evidence of prior sexual offenses should ordinarily b e admissible, we think the Distr ict Court erred in its assessment that the probative value of T.T.’s testimony was substantially outweighed by the danger of unfair prejudice

. The s exual offenses committed against T.T. were substantially similar to thos e alle gedly committed against C.D. By comparison, the differences were small. I n particular, the District Court itself ackn owledged that the time lapse between incidents “may not be as significant as it appears at first glance, because defendant wa s imprisoned for a portion of the time between 1987 and 1995, whic h deprived defendant of the opportunity to abuse any children.” District Court Order at 4. Moreover, the danger of unfair prejudice noted by the District Court was tha t presented by the “unique stigma” of child sexual abuse, on account of which LeCompte mig ht be convicted not for the charged offense, but for his sexual abuse of T.T. This danger is one that all propensity evidence in such trials presents. It is for this reason that the evidence was previously excluded, and it is precisely such holdings tha t Congress intended to overrule. Compare United S tates v. Fawbush , 900 F.2d 150 (8th Cir. 1990) (prior acts of child sexual abuse inadmissible to show propensity under Rule 404(b) ). On balance, then, we hold that the motion in limineshould not have bee n granted.
The order of the District Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.-6-

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.