RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 17a0196p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

GEORGE HOWARD MANDOKA, 

Defendant-Appellant. 

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No. 16-2376 

Appeal from the United States District Court 

for the Eastern District of Michigan at Bay City. 

No. 1:15-cr-20418-1—Thomas L. Ludington, District Judge. 

Argued: August 3, 2017 

Decided and Filed: August 24, 2017 

 Before: SILER, CLAY, and WHITE, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Stevens J. Jacobs, JACOBS LAW OFFICE, Bay City, Michigan, for Appellant. 

Roy Kranz, UNITED STATES ATTORNEY’S OFFICE, Bay City, Michigan, for Appellee. ON 

BRIEF: Stevens J. Jacobs, JACOBS LAW OFFICE, Bay City, Michigan, for Appellant. Roy 

Kranz, UNITED STATES ATTORNEY’S OFFICE, Bay City, Michigan, for Appellee. 

_________________ 

OPINION 

_________________ 

CLAY, Circuit Judge. Defendant George Howard Mandoka (“Defendant”) appeals from 

the judgment entered by the district court on September 27, 2016, sentencing him to concurrent 

terms of: (i) life in prison for three counts of aggravated sexual abuse, pursuant to 

>
No. 16-2376 United States v. Mandoka Page 2

18 U.S.C. § 2241(c), one count of sexual abuse, pursuant to 18 U.S.C. § 2242(2), and one count 

of abusive sexual contact, pursuant to 18 U.S.C. § 2244(a)(2), (5); (ii) fifteen years in prison for 

two counts of sexual abuse of a minor, pursuant to 18 U.S.C. § 2243(a); and (iii) three years in 

prison for one count of abusive sexual contact, pursuant to 18 U.S.C. § 2244(a)(2), (5). In brief, 

Defendant was convicted of repeatedly sexually abusing his step-daughter and his niece over a 

period of years. He argues that the district court erred in admitting evidence during his trial: 

(i) of his past sexual assaults pursuant to Federal Rules of Evidence 413 and 403; and (ii) that his 

victims witnessed him physically assault his wife pursuant to Federal Rules of Evidence 404(b) 

and 403. He asks us to vacate his convictions and sentence and remand for a new trial. The 

district court had original jurisdiction over these offenses because they occurred on tribal land, 

and we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. 

For the reasons set forth below, we AFFIRM Defendant’s convictions. 

BACKGROUND 

I. Factual History 

 Defendant is a member of the Saginaw Chippewa Tribal Nation. Prior to his arrest and 

incarceration, he resided on the Isabella Reservation in Mt. Pleasant, Michigan with his (now 

former) wife, Darcy Mandoka (“Darcy”), and his step-daughter (Darcy’s daughter) B.J. This 

case concerns Defendant’s sexual abuse of B.J. and his nieces, J.G. and E.B., when the three 

were young children.1

A. Abuse of J.G. and E.B. 

 J.G. is the daughter of Defendant’s sister. At trial, J.G. testified that in the summer of 

1988, when she was nine years old, she awoke to find Mr. Mandoka touching her vagina under 

her clothing. Mr. Mandoka ceased this touching after J.G. began crying, but later renewed this 

abuse on two separate occasions. Mr. Mandoka’s behavior towards J.G. apparently did not 

escalate beyond genital fondling. 

 1

We use the victims’ initials to protect their privacy. 
No. 16-2376 United States v. Mandoka Page 3

E.B. is J.G.’s sister. E.B. testified that Defendant abused her from June 1995 through 

September 1999, when E.B. was between ten and fourteen years old. During this period, E.B. 

and J.G. would regularly spend the night at Defendant’s home. On these occasions, Defendant 

would sometimes wake E.B. up and force her to watch pornographic movies with him while he 

masturbated. After roughly a year of this behavior, Defendant progressed to waking E.B. up, 

rubbing her breasts under her clothing, and penetrating her vagina with his fingers. This 

occurred on more than ten occasions. E.B. did not report the abuse because she observed 

Defendant physically abusing Darcy on several occasions, and was afraid that Defendant would 

hurt her (E.B.) if she notified the police. 

B. Abuse of B.J. 

According to the testimony introduced at trial, Defendant repeatedly sexually abused B.J. 

while she was living with him and Darcy at the family’s home on the Isabella Reservation. The 

abuse commenced when B.J. was ten years old, and ceased when she was sixteen. During this 

period, Defendant regularly sneaked into B.J.’s room at night while she was sleeping and 

touched her breasts and genitals under her clothing. He often penetrated her vagina with his 

finger, and sometimes forced her to masturbate him with her hand. 

 While B.J. was a child, she did not report Defendant’s abuse to either her mother or the 

authorities.2

 Later, when she turned eighteen, she wrote a letter to her mother detailing the 

abuse. Darcy confronted Defendant with the letter, and he confessed to abusing B.J. Despite 

this confession, neither B.J. nor Darcy reported the abuse to the police, because they did not want 

to leave Darcy’s youngest children (B.J.’s step-siblings) fatherless. B.J. subsequently disclosed 

the abuse to other family members, which led to a family meeting at which Defendant admitted 

to having sexually abused B.J. Nevertheless, the abuse remained a family secret until 2015, 

when Defendant and Darcy divorced. At that time, Darcy began taking her two youngest 

daughters with her to group therapy for reasons related to the divorce. During these therapy 

sessions, Defendant’s abuse of B.J. was disclosed to the counselor. The two girls subsequently 

met individually with a second counselor, to whom at least one of the girls apparently also 

 2

She did, however, discuss the abuse with a friend at school in the sixth grade. 
No. 16-2376 United States v. Mandoka Page 4

disclosed Defendant’s abuse of B.J. The second counselor reported the abuse to tribal 

authorities, who contacted the police. 

II. Procedural History 

On July 8, 2015, a federal grand jury in the Eastern District of Michigan indicted 

Defendant for five sex offenses related to his abuse of B.J. On July 22, 2015, the grand jury 

returned a first superseding indictment adding a charge against Defendant for abusing J.G. The 

grand jury subsequently returned a second superseding indictment on March 10, 2016, adding 

charges related to Defendant’s abuse of E.B. Defendant elected to proceed to trial. 

 On June 9, 2016, the government filed a notice that it intended to offer testimony 

that Defendant had physically abused Darcy in front of his victims as prior bad acts evidence 

pursuant to Federal Rule of Evidence 404(b), on the ground that it would explain why 

Defendant’s victims did not report the abuse. The next day, Defendant filed a motion in limine

to exclude the spousal abuse evidence as improper character evidence, arguing that the 

government did not seek to offer the evidence for a proper purpose, and that it would unfairly 

inflame the jury against Defendant. Subsequently, in preparing for trial, the government realized 

that Defendant’s abuse of J.G. did not occur on territory administered by the federal government. 

Thus, on June 16, 2016, the government filed a motion to dismiss Count 6 of the second 

superseding indictment (which charged conduct related to J.G.’s abuse) for lack of subject matter 

jurisdiction. In its motion, the government also announced its intent to present evidence that 

Defendant abused J.G. as prior sexual assault evidence pursuant to Federal Rule of Evidence 

413. Defendant responded with a second motion in limine, arguing, inter alia, that he had 

received inadequate notice of the government’s intent to offer the evidence, in violation of Rule 

413(b). 

 Defendant’s trial began on June 21, 2016. Prior to the opening statements, the district 

court heard brief arguments as to the two pending motions. The district court ruled that most of 

the spousal abuse evidence was admissible under Rule 404(b), and that Defendant’s molestation 

of J.G. was admissible under Rule 413. Defendant was subsequently convicted on all counts. 
No. 16-2376 United States v. Mandoka Page 5

 On September 27, 2016, the district court entered a judgment sentencing Defendant to 

life in prison, as well as lesser concurrent sentences. The next day, Defendant filed a timely 

notice of appeal. 

DISCUSSION 

I. Rule 413 Challenges 

A. Standard of Review 

We review the admission of evidence under Federal Rule of Evidence 413 for abuse of 

discretion. United States v. LaVictor, 848 F.3d 428, 448–49 (6th Cir. 2017); United States v. 

Seymour, 468 F.3d 378, 386 (6th Cir. 2006). “A district court abuses its discretion when it 

applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly 

erroneous findings of fact.” United States v. Fowler, 819 F.3d 298, 303 (6th Cir. 2016) (quoting 

United States v. Bridgewater, 606 F.3d 258, 260 (6th Cir. 2010)). 

B. Analysis 

 Federal Rule of Evidence 413 provides in relevant part: 

Permitted Uses. In a criminal case in which a defendant is accused of 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. 

Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the 

prosecutor must disclose it to the defendant, including witnesses’ statements or a 

summary of the expected testimony. The prosecutor must do so at least 15 days 

before trial or at a later time that the court allows for good cause. 

Fed. R. Evid. 413(a)–(b). Additionally, we have explained that evidence “otherwise admissible 

under Rule 413 is still subject to Rule 403 balancing.” LaVictor, 848 F.3d at 449. Federal Rule 

of Evidence 403 provides that a “court may exclude relevant evidence if its probative value is 

substantially outweighed by a danger of one or more of the following: unfair prejudice, 

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.” “On review, this Court must give ‘the evidence its maximum reasonable 
No. 16-2376 United States v. Mandoka Page 6

probative force and its minimum reasonable prejudicial value.’” LaVictor, 848 F.3d at 449 

(quoting Seymour, 468 F.3d at 386). 

 At trial, the government offered testimony by J.G. that Defendant had abused her when 

she was a young child. The district court allowed the government to put on this evidence 

because the abuse against J.G. was another of Defendant’s prior “sexual assault[s]” as that term 

is defined in Rule 413. See Fed. R. Evid. 413(d). On appeal, Defendant argues that the district 

court abused its discretion in admitting this evidence because: (i) “the sexual assault which J.G. 

testified to was not relevant or similar to the sexual assaults described by E.B. and [B.J.];” 

(ii) the government failed to give timely notice of J.G.’s testimony pursuant to Rule 413; and 

(iii) “the evidence was unfairly prejudicial” in violation of Rule 403. (App. R. 22, Appellant’s 

Br., at 18.) We will address each of these arguments in turn. 

 1. Relevance 

 Defendant first alleges that his sexual assault against J.G. was not relevant to his assaults 

against E.B. and B.J., J.G.’s sister and cousin, respectively, because the assaults were too 

dissimilar from one another to meet the relevance threshold specified by Rules 413 and 401. The 

differences Defendant points to between the assaults are that: (i) while J.G. testified that 

Defendant touched her vagina without penetrating it, E.B. and B.J. testified that Defendant 

penetrated their vaginas with his finger; and (ii) B.J. testified that Defendant forced her to 

masturbate him, while E.B. and J.G. did not testify to such abuse. 

 We make short work of this argument. Rule 413(a) permits the government to admit 

evidence of a defendant’s prior sexual assaults as propensity evidence “on any matter to which 

[the assaults are] relevant.” “Evidence is relevant if: (a) it has any tendency to make a fact more 

or less probable than it would be without the evidence; and (b) the fact is of consequence in 

determining the action.” Fed. R. Evid. 401. When applying Rule 413, evidence of prior assaults 

is relevant when “[t]he facts of the previous sexual assaults” are similar to the charged offense. 

LaVictor, 848 F.3d at 450. The assaults in this case were more than similar enough to pass this 

“very low” threshold for relevance. See, e.g., United States v. Whittington, 455 F.3d 736, 739 

(6th Cir. 2006) (noting that “the relevance threshold is very low under Rule 401”). All three 
No. 16-2376 United States v. Mandoka Page 7

assaults involved Defendant fondling the genitals of three of his female family members—his 

daughter and his two nieces—each of whom were roughly the same age at the time of their 

respective assaults. J.G.’s abuse allegations made it more probable that Defendant committed 

similar abusive acts against J.G.’s sister and cousin, and thus this evidence was relevant to 

Defendant’s guilt of the offenses charged in the indictment. See, e.g., United States v. Crow 

Eagle, 705 F.3d 325, 327–28 (8th Cir. 2013) (per curiam) (assaults were sufficiently similar for 

Rule 413 purposes where “[w]hen allegedly abused, each [victim] was a younger family member 

of [the defendant] between six and eleven years old” and “the methods of assault were similar, 

all involving inappropriate touching”); United States v. Holy Bull, 613 F.3d 871, 873 (8th Cir. 

2010) (assaults were sufficiently similar where both involved genital fondling of defendant’s 

step-daughters).3 

 2. Rule 413(b) 

 Defendant’s second argument is that the district court should not have admitted evidence 

of J.G.’s abuse because the government did not provide notice that it intended to offer this 

evidence fifteen days before the start of trial as required by Rule 413(b). In order to clarify the 

import of this argument, we will briefly summarize the sequence of events leading up to trial. 

 On July 22, 2015, the government filed its first superseding indictment, which added a 

charge for sexual abuse under 18 U.S.C. §§ 2242(2), 1151 and 1153 (Count 6) against 

Defendant for abusing J.G. It is undisputed that the substance of J.G.’s abuse allegations was 

disclosed to Defendant on July 31, 2015—almost a year prior to trial.4

 Count 6 was retained in 

the government’s second superseding indictment, filed on March 10, 2016. Later, as the 

 3

Moreover, it does not matter that Defendant’s assaults of J.G. and E.B. occurred several years prior to the 

assault of B.J., because the assaults were factually similar, and the victims were similar ages when the assaults 

occurred. See LaVictor, 848 F.3d at 450 (collecting cases for the proposition that factually similar sexual assaults 

are admissible under Rule 413 even though the assaults occurred more than twenty years apart). 

4

Defendant was not permitted to review J.G.’s written statement regarding her abuse, or a video recording 

of J.G.’s interview with law enforcement personnel, until six days prior to trial. However, the government 

represented to the district court that the recording’s existence was disclosed to Defendant well in advance of trial, 

and Defendant does not dispute that representation. Moreover, Defendant concedes that he was provided with a 

transcript of J.G.’s grand jury testimony, which disclosed the substance of her allegations, in July of 2015. 

Defendant does not argue that J.G. testified to any new material facts at trial that were not reflected in her grand jury 

testimony. Nor does Defendant contend that the written statement or the video contained exculpatory evidence, or 

that he was otherwise prejudiced by their disclosure so close to trial. 
No. 16-2376 United States v. Mandoka Page 8

government was preparing for trial, it learned that Defendant’s abuse of J.G. occurred outside of 

the Isabella Reservation,5

 and thus there was no basis for federal subject matter jurisdiction over 

Count 6. Accordingly, on June 16, 2016—six days before trial—the government moved to 

dismiss Count 6, and simultaneously announced its intent to offer J.G.’s testimony as Rule 413 

evidence. The district court admitted the evidence, and Defendant now argues that this decision 

was an abuse of discretion because Rule 413(b) requires that past sexual assault evidence be 

disclosed to the defendant at least fifteen days prior to trial. See Fed. R. Evid. 413(b) (“If the 

prosecutor intends to offer [prior sexual assault] evidence, the prosecutor must disclose it to the 

defendant, including witnesses’ statements or a summary of the expected testimony . . . at least 

15 days before trial or at a later time that the court allows for good cause.”). 

 We reject Defendant’s argument, because he received all of the notice that Rule 413(b) 

requires. We have little case law interpreting Rule 413(b), but the Tenth Circuit has explained 

that the Rule’s “notice period protects against surprise and allows the defendant to investigate 

and prepare cross-examination. It permits the defendant to counter uncharged crimes evidence 

with rebuttal evidence and full assistance of counsel.” United States v. Enjady, 134 F.3d 1427, 

1433 (10th Cir. 1998) (emphasis added). This purpose would not be served by reversing 

Defendant’s convictions. In this case, Defendant knew that the prosecution intended to put on 

evidence of J.G.’s abuse for a full year prior to trial, because Defendant was formally charged 

with abusing J.G. in Count 6 of the first and second superseding indictments. It was only six 

days prior to trial that defense counsel learned that Count 6 would be dropped for want of federal 

jurisdiction; by then, defense counsel surely had sufficient time to investigate J.G.’s allegations 

and prepare a defense. We decline to elevate form over function by reversing Defendant’s 

convictions just because the government did not announce its intent to offer J.G.’s testimony 

under Rule 413 at least fifteen days prior to trial, because there is no possibility that Defendant 

was unfairly surprised by the evidence. See United States v. Benais, 460 F.3d 1059, 1062 (8th 

Cir. 2006) (holding that Rule 413(b) only “requires disclosure of the evidence itself” fifteen days 

prior to trial, and the Rule does not “impose[] on the Government a separate obligation to 

specifically disclose or declare the intention to rely upon Rule 413 for admissibility”). 

 5

The Assistant United States Attorney prosecuting this case apparently misunderstood J.G.’s answers to his 

questions about where and when the abuse had occurred, which led to the error in charging Count 6. 
No. 16-2376 United States v. Mandoka Page 9

Additionally, Rule 413(b) permits a district court to excuse an untimely disclosure for good 

cause. As the government points out, the district court found that any violation of the fifteen-day 

rule was “excusable” because Rule 413 only became relevant upon the dismissal of Count 6, and 

the government gave notice of its intent to rely on Rule 413 in conjunction with its request to 

voluntarily dismiss that count. Defendant does not address this point at all, and we find no basis 

to conclude that the district court abused its discretion in this regard. See United States v. 

Guidry, 456 F.3d 493, 504 (5th Cir. 2006) (holding that the “Government had good cause for not 

providing pretrial notice” because it “did not learn of [the victim’s] testimony until after the trial 

had already started”). 

Accordingly, we reject Defendant’s contention that the district court violated Rule 413(b) 

by admitting J.G.’s testimony. 

3. Rule 403 

 Finally, Defendant argues that J.G.’s testimony was inadmissible under Federal Rule of 

Evidence 403 because it was unfairly inflammatory and might have led the jury to convict 

Defendant on an improper basis. We reject this argument as well. Although J.G.’s testimony 

was certainly prejudicial, Defendant has identified no reason why the testimony was unfairly

prejudicial. After all, J.G. testified to essentially the same (admittedly outrageous) abuse that 

E.B. and B.J. testified to as part of the government’s case in chief, and so her testimony did not 

alter the tone and tenor of the trial. As we have recently explained: 

We recognize that Rule 413 evidence can be inherently prejudicial. By describing 

violent and sexual conduct, the evidence may have a strong propensity to evoke a 

visceral reaction from a lay jury. [Nevertheless], Congress’s decision to codify 

Rule 413 reflects its belief of the probative nature of such testimony. As this 

Court explained in United States v. Stout, 509 F.3d 796, 801–02 (6th Cir. 2007), 

the codification of Rule[s] 413, 414, and 415 represent[s] an understanding that 

sexual assault is different from regular prior bad acts. This difference is either 

that “propensity evidence has special value in certain violent sexual misconduct 

cases or that the difficulty of and need for convictions for these crimes warrants a 

decrease in the usual protections against propensity and character evidence.” Id.
No. 16-2376 United States v. Mandoka Page 10

LaVictor, 848 F.3d at 450. Because Defendant does not offer any reason why the Rule 413 

evidence in this case was any more unfairly prejudicial than child molestation evidence typically 

is, we reject Defendant’s Rule 403 challenge as well. 

II. Rule 404(b) Challenge 

A. Standard of Review 

Federal Rule of Evidence 404(b) provides as follows: 

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible 

to prove a person’s character in order to show that on a particular occasion the 

person acted in accordance with the character. 

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be 

admissible for another purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or lack of accident. 

On request by a defendant in a criminal case, the prosecutor must: 

(A) provide reasonable notice of the general nature of any such evidence 

that the prosecutor intends to offer at trial; and 

(B) do so before trial--or during trial if the court, for good cause, excuses 

lack of pretrial notice. 

Some panels of this Court have argued that there is an intra-circuit split regarding the 

correct standard of review for a district court’s decision to admit Rule 404(b) evidence. As the 

alleged split is typically described, one line of cases holds that the Supreme Court’s decision in 

General Electric Co. v. Joiner, 522 U.S. 136, 141 (1997), mandates that Rule 404(b) decisions 

be reviewed for abuse of discretion, see, e.g., United States v. Mack, 258 F.3d 548, 553 n.1 (6th 

Cir. 2001); United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002); United States v. Allen, 

619 F.3d 518, 524 n.2 (6th Cir. 2010), while another line of cases holds that we should use the 

following three-step process in reviewing a district court’s decision to admit Rule 404(b) 

evidence: 

First, we review for clear error whether there is a sufficient factual basis for the 

occurrence of the “bad act” that is being proffered as evidence (and challenged 

pursuant to 404(b)). United States v. Murphy, 241 F.3d 447, 450 (6th Cir. 2001). 

Second, we determine de novo whether the evidence was proffered for an 

admissible purpose. Id. Third, we review for an abuse of discretion whether the 
No. 16-2376 United States v. Mandoka Page 11

probative value of the proffered evidence is substantially outweighed by any 

undue prejudice that will result from its admittance. Id.

United States v. Gibbs, 797 F.3d 416, 422 (6th Cir. 2015); see also United States v. Barnes, 

822 F.3d 914, 921 (6th Cir. 2016); United States v. Clay, 667 F.3d 689, 693 (6th Cir. 2012). 

 The government urges us to review for abuse of discretion, and Defendant does not 

contest this premise. However, as we have previously explained, the abuse of discretion and 

tripartite standards of review “are not in fact inconsistent, because it is an abuse of discretion to 

make errors of law or clear errors of factual determination.” United States v. Bell, 516 F.3d 432, 

440 (6th Cir. 2008) (quoting United States v. Gainer, 468 F.3d 920, 925 (6th Cir. 2006)). The 

tripartite framework is merely a recognition that we are faced with three distinct questions when 

reviewing the admission of Rule 404(b) evidence: (i) the factual question of whether the prior 

bad acts occurred; (ii) the legal question of whether the evidence was offered for an admissible 

purpose; (iii) and the discretionary question of whether the district court permissibly applied the 

Rule 403 balancing test. See Gibbs, 797 F.3d at 422. No matter which formulation we employ, 

reversal is only proper if the district court committed a legal error by admitting the prior acts 

evidence for an impermissible purpose, relied on clearly erroneous facts in finding that the prior 

acts occurred, or abused its discretion in weighing the evidence’s probative and prejudicial value 

under Rule 403’s balancing test. Bell, 516 F.3d at 440. 

B. Analysis 

 At trial, the district court permitted the prosecution to put on evidence that Defendant 

physically abused Darcy on several occasions in front of B.J. and E.B. Defendant argues that 

this was an abuse of discretion because: (i) the evidence was not offered for a permissible 

purpose under Rule 404(b)(2); and (ii) the evidence’s probative value was substantially 

outweighed by its potential for unfair prejudice under the Rule 403 balancing test. We reject 

these arguments as well. 

 1. Permissible Purpose 

 First, Defendant argues that the government offered testimony that Defendant abused 

Darcy in front of his victims in order to show that Defendant acted in accordance with his 
No. 16-2376 United States v. Mandoka Page 12

disposition towards violent criminal behavior, in violation of Rule 404(b)’s ban on propensity 

evidence. The government argues that the evidence was offered for a valid purpose—to explain 

why the victims did not report the abuse to the authorities, and thus counter any implication that 

the allegations were fabricated. We agree with the government. 

 As stated earlier, none of the three abuse victims in this case reported their abuse to the 

authorities, members of the community, or even to their parents while the abuse was ongoing. 

Moreover, the victims did not come forward until they were all well into adulthood—B.J. was 

twenty-four years old at time of trial, J.G. was thirty-seven, and E.B. was thirty-one. It would be 

natural for a jury to wonder why the victims waited so long to come forward, and on that basis, 

to suspect that they were not being truthful in their allegations against Defendant. To counter 

this implication, the government introduced evidence that Defendant physically abused Darcy in 

front of the victims in order to show why the victims would have been afraid to come forward 

and accuse Defendant of abuse. To wit, B.J. testified that she became afraid after witnessing 

Defendant assault her mother, and E.B. testified that she was fearful for her own safety and never 

reported her sexual abuse because she was scared that Defendant would retaliate against her. 

This testimony was proper under the circumstances presented here because it explained the 

victims’ counter-intuitive behavior (tolerating rather than reporting their abuse), and did not 

attempt to imply that Defendant must have been guilty of the conduct charged in the indictment 

because he abused his wife. 

 Our holding is consistent with how state and federal courts have treated similar evidence 

in sexual abuse cases. As the government points out, courts have repeatedly held that a 

defendant’s prior bad acts are admissible under Rule 404(b) (and its state-law analogs) to explain 

why a victim submitted to a sexual assault or delayed in reporting the assault to the police. See, 

e.g., United States v. Plumman, 409 F.3d 919, 928 (8th Cir. 2005) (affirming decision to admit 

404(b) evidence where the “physical assault evidence . . . provide[d] a reason why [the victim] 

did not contact law enforcement”); United States v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995) 

(affirming decision to admit 404(b) evidence where “[e]vidence of the beatings of both [the 

victim] and her family provide[d] a cogent explanation for [the victim’s] failure to report the 

sexual abuse for almost eighteen months” and made “it more probable that [the victim] failed to 
No. 16-2376 United States v. Mandoka Page 13

report the sexual abuse not because it never took place, but because of her fear of retribution”); 

United States v. Escarsega, 182 F. App’x 595, 598 (8th Cir. 2006) (affirming decision to admit 

404(b) evidence where the “evidence of [the defendant’s] other assaults was relevant to how . . . 

[the victim] feared bodily injury if she refused sexual intercourse”); Commonwealth v. Dillon, 

925 A.2d 131, 139 (Pa. 2007) (“[T]here is no doubt that evidence of [the defendant’s] abuse of 

[the victim’s] mother and brother was relevant for purposes other than to show his bad character 

and criminal propensity . . . . [T]he evidence was probative of the reasons for [the victim’s] 

significant delay in reporting the alleged sexual assaults—i.e., the evidence tends to show that 

her experience with [the defendant], including those assaults on family members, caused her to 

fear making a prompt report.”); People v. Chase, 277 A.D.2d 1045 (N.Y. App. Div. 2000) 

(affirming admission of evidence “that defendant engaged in acts or threats of violence against 

the victim or against other persons in the presence of the victim, and thus was directly relevant to 

. . . explain the victim’s failure to make a prompt complaint”); People v. Brown, 883 P.2d 949, 

958–59 (Cal. 1994); Commonwealth v. McKinnon, 620 N.E.2d 792, 796 (Mass. Ct. App. 1993) 

(affirming admission of testimony that defendant abused victim’s mother in explaining victim’s 

delay in reporting sexual abuse); State v. Bates, 784 P.2d 1126, 1127–28 (Utah 1989) (same). 

 We find the logic of these cases compelling. As the California Supreme Court has 

persuasively explained in one representative case: 

[W]hen the victim of an alleged sexual offense did not make a prompt complaint 

but instead disclosed the alleged incident only some time later, evidence of the 

fact and circumstances surrounding the delayed complaint also may be relevant to 

the jury's evaluation of the likelihood that the offense did or did not occur. In the 

absence of evidence of the circumstances under which the victim ultimately 

reported the commission of an alleged offense, the jury in many instances may be 

left with an incomplete or inaccurate view of all the pertinent facts. Admission of 

evidence of the circumstances surrounding a delayed complaint, including those 

that might shed light upon the reason for the delay, will reduce the risk that the 

jury, perhaps influenced by outmoded myths regarding the “usual” or “natural” 

response of victims of sexual offenses, will arrive at an erroneous conclusion with 

regard to whether the offense occurred. Particularly in a case such as the present 

one, in which the victim testifies to a series of alleged sexual offenses over a 

considerable period of time, during which the victim had the opportunity to 

disclose the alleged offenses to others but failed to do so, the exclusion of all 

evidence relating to the context in which the victim ultimately disclosed the 

alleged offenses to others is likely to leave the jury with an incomplete or 
No. 16-2376 United States v. Mandoka Page 14

erroneous understanding of the victim's behavior. So long as the evidence that is 

admitted is carefully limited to the fact that a complaint was made, and to the 

circumstances surrounding the making of the complaint, thereby eliminating or at 

least minimizing the risk that the jury will rely upon the evidence for an 

impermissible hearsay purpose, admission of such relevant evidence should assist 

in enlightening the jury without improperly prejudicing the defendant. 

Brown, 883 P.2d at 958–59 (emphasis added, citations omitted). 

Accordingly, we hold that the government may, subject to Rule 403’s balancing test, 

introduce evidence of a defendant’s prior violent acts without violating Rule 404(b) when the 

evidence is offered to show why the defendant’s victims submitted to the defendant’s abuse, or 

failed to report the abuse in a timely manner.6

 Applying this principle here, the district court did 

not commit a legal error in admitting testimony that Defendant abused Darcy in front of E.B. and 

B.J. E.B.’s testimony that she did not report Defendant’s abuse because she feared that 

Defendant would hurt her in the same way that he hurt Darcy if she did so is a sufficient 

foundation to show that the spousal abuse evidence was offered for a proper purpose. 

 2. Rule 403 

 Finally, Defendant offers a cursory argument the spousal abuse testimony was 

inadmissible under the Rule 403 balancing test. Once again, Defendant fails to explain why this 

evidence was unfairly prejudicial. The testimony relating to Defendant’s abuse of Darcy was not 

extensive, graphic, or detailed, and we find it unlikely that the testimony could have inflamed the 

jurors’ passions and motivated them to convict on an improper basis, particularly since the child 

sexual abuse evidence that the government presented during its case in chief had far greater 

inflammatory potential than the spousal abuse evidence. But even if the evidence was unfairly 

prejudicial, the district court issued a thorough cautionary instruction to the jury designed to 

prevent the jury from using this evidence improperly: 

 6

Of course, evidence of a defendant’s prior violent acts is only relevant to explain a victim’s inaction if the 

victim witnessed or was aware of these acts. Otherwise, the prior violent acts cannot be said to have influenced the 

victim’s behavior. In similar vein, the government must put forward some evidence suggesting that the defendant’s 

prior violent acts influenced the victims’ decision not to report the defendant’s crimes. For example, if a victim 

testifies that she was not afraid of retaliation by the defendant in spite of witnessing his violence towards third 

persons, it would be error to admit the violent acts as Rule 404(b) evidence absent an independent evidentiary basis 

to admit that evidence. In this case, E.B.’s testimony that she feared retaliation by Defendant after witnessing his 

violence against Darcy was a sufficient foundation to admit the spousal abuse testimony under Rule 404(b). 
No. 16-2376 United States v. Mandoka Page 15

Remember that Defendant is only on trial here for the crimes charged in the 

second superseding indictment, and not any alleged domestic violence. You have 

heard testimony that Defendant allegedly committed acts of domestic violence 

against [Darcy]. If you find that Defendant did those acts, you can consider the 

evidence only as it relates to the government’s claim that it explains why [B.J.] 

and/or [E.B.] did not resist Defendant, call for help during the incidents, or report 

the crimes committed against them to the police. You must not consider it for any 

other purpose. Do not return a guilty verdict unless the government proves the 

elements of the crimes charged in the second superseding indictment beyond a 

reasonable doubt. 

(R. 51, Jury Instructions, PageID #198.) If there was any prejudice from admitting the spousal 

abuse testimony, this instruction was sufficient to cure it for Rule 403 purposes. See Plumman, 

409 F.3d at 928–29 (affirming decision to admit evidence that the defendant committed prior 

assaults to show why sexual assault victim delayed in reporting the abuse where “the district 

court mitigated any undue prejudice by admitting the evidence for the limited purpose of 

showing [that the victims] were afraid [of the defendant], and by giving the jury a proper limiting 

instruction”). 

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.