*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

APR 13 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID KEE MANN,

Defendant - Appellant.

No. 96-2283

(D. Ct. No. CR-94-732-LH)

(D. N. Mex.)

ORDER AND JUDGMENT*

Before TACHA, HOLLOWAY, and MURPHY, Circuit Judges.

David Kee Mann was acquitted on one count of aggravated sexual abuse

and convicted on another similar count. On appeal, Mr. Mann objects to evidence

admitted against him under Federal Rule of Evidence 414 on three different

bases: (1) Rule 414 was not effective at the time of his trial, (2) the Rule 414

evidence violated his rights to due process and equal protection of the law, and

(3) the trial court should have excluded the evidence under Rule 403 because it

was more prejudicial than probative. Mr. Mann also argues that restrictions on
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his ability to cross examine one of his victims violated his Sixth Amendment right

to confront witnesses against him. We take jurisdiction under 18 U.S.C. § 1291

and affirm in part and remand for further findings on the Rule 403 balancing test.

Background

David Kee Mann is a Navajo medicine man who lived on a family

compound in Red Rock, New Mexico. He was charged with sexually abusing two

members of his extended family who also lived on the compound, his grand niece

S.Y. and his grand niece K.C. The defendant was also charged with abusive

contact towards another grand niece, R.K., but the district court dismissed that

charge before trial. At trial the district court allowed R.K. to testify regarding the

defendant’s alleged abuse of her. The district court allowed that testimony under

Rule 414. 

Discussion

I. Federal Rule of Evidence 414

A. The Effective Date Provision

This Circuit recently held that Federal Rules of Evidence 413-415 “apply to

all trials commenced after July 10, 1995.” United States v. Enjady, __ F.3d __,

__, 1998 WL 17344, at *2 (10th Cir. Jan. 20, 1998). Mr. Mann’s trial commenced

in January 1996, well after July 10, 1995. Accordingly, Rule 414 applies to his

trial.
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B. The Constitutional Challenges

In another recently filed case, United States v. Castillo, __ F.3d __ (10th

Cir. 1998), we decided the constitutional questions presented by Mr. Mann. 

Specifically, we found that Rule 414 violates neither the Due Process Clause of

the Fifth Amendment nor that amendment’s equal protection principles. See id. at

__, __.

C. The 403 Balancing Test

Mr. Mann argues that the district court erred in refusing to exclude the Rule

414 testimony under Rule 403. We review a district court’s application of Rule

403 for abuse of discretion. See United States v. Guardia, 1998 WL 37575, at *2

(10th Cir. 1998). Rule 403 allows the court to exclude evidence if its probative

value is “substantially outweighed” by dangers such as unfair prejudice or

confusion of the issues. Fed. R. Evid. 403. The Rule 403 balancing test applies

to all evidence admitted under Rule 414. See United States v. Meachum, 115

F.3d 1488, 1492 (10th Cir. 1997). “Because of the unique nature of character

evidence, it is important that the trial court ‘make a reasoned, recorded’ statement

of its 403 decision when it admits evidence under Rules 413-415.” Castillo, __

F.3d at __ (quoting Guardia, 1998 WL 37575, at *8, __ F.3d at __).

Here, the trial court listened to the defense argument regarding Rule 403

and stated, “I’m going to admit the proffered testimony under Rule 414.” Tr. Vol.
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II at 21. “Without any reasoned elaboration by the district court we have no way

of understanding the basis of [this] decision . . . . Instead, we require an on the

record decision by the court explaining its reasoning in detail.” United States v.

Roberts, 88 F.3d 872, 882 (10th Cir. 1996). We therefore remand this case to the

district court for further explanation of its 403 ruling.

II. The Confrontation Clause

Mr. Mann argues that the district court violated his Sixth Amendment right

to confront witnesses against him when the court limited his cross-examination of

S.Y. We review de novo the question of whether restrictions on crossexamination violated the Confrontation Clause. See United States v. Pedraza, 27

F.3d 1515, 1529 (10th Cir. 1994).

The main purpose of the Confrontation Clause is to ensure that the

defendant has an opportunity to cross-examine adverse witnesses. See Davis v.

Alaska, 415 U.S. 308, 315-16 (1974). An important part of this constitutionally

protected right is the opportunity to expose the witness’s motivation in testifying. 

See Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986) (quoting Davis, 415

U.S. at 316)).

In this case, the defendant argued that S.Y. lied when she testified that the

defendant abused her. The defendant had a colorable theory about why she lied. 

In 1989, the Child Protective Services agency removed S.Y. and her sister from
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their parents’ home because of a report of suspected abuse and neglect. S.Y. had

a burn on her arm. According to testimony at trial, S.Y. gave conflicting stories

regarding this burn in 1989. First, she said that she received it when her father

pushed her into a stove. Later, S.Y. denied that her father had pushed her. When

Child Protective Services was not able to substantiate a case of child abuse, they

returned S.Y. and her sister to their parents. The defense argued that S.Y.

accused the defendant—instead of her father—of the sexual abuse in this case

because she did not want to be removed from her parents again, as she was in

1989. Nonetheless, the court sustained objections to questions that the defense

posed to S.Y. about the events in 1989. 

Because the court limited the defense’s exploration of S.Y.’s possible

motivation to lie, there are constitutional concerns here. The Sixth Amendment,

however, does not prevent a trial court from placing any restrictions on cross

examination about witness motivation. See Van Arsdall, 475 U.S. at 679 (“[T]rial

judges retain wide latitude . . . to impose reasonable limits on such cross

examination . . . .”). A Sixth Amendment violation occurs when the restriction on

questioning prevents the jury from having “sufficient information to make a

discriminating appraisal of the witness’ motives and bias.” United States v.

Swingler, 758 F.2d 477, 498 (10th Cir. 1985) (citations and internal quotation

marks omitted).
1

 The trial court sustained the government objections on relevance grounds,

apparently not realizing that the questions related to the witness’s motivation. Cf. United

States v. Abel, 469 U.S. 45, 52 (1984) (“Proof of bias is almost always relevant because 

the jury, as finder of fact and weigher of credibility, has historically been entitled to

assess all evidence which might bear on the accuracy and truth of a witness’[s]

testimony.”). The defense informed the trial court of its theory of S.Y.’s motivation at a

sidebar, which the court had delayed until after questioning of S.Y. was complete. At that

point, the court recognized the relevance of the questioning, see Tr. at 375 (“Sounds like

a good jury argument. I’ll let you make it.”), but did not permit the defense to recall S.Y.

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In this case, the district court prevented all questioning of S.Y. about the

1989 burn incident. The court also sustained an objection to questioning about

whether S.Y. had previously falsely accused her father of anything. Furthermore,

the district court refused defense questioning about whether S.Y. was ever taken

from her parents. While the defense was allowed to ask S.Y. how she felt about

her parents’ current separation, it was not able to ask her how she felt about being

removed from both of them in 1989. These rulings shut off all questions that

could have helped the defense establish its theory of S.Y.’s motivation to testify

against Mr. Mann.1 “By thus cutting off all questioning about an event that the

State conceded had taken place and that a jury might reasonably have found

furnished a motive for favoring the prosecution in [her] testimony, the court’s

ruling violated [the defendant]’s rights secured by the Confrontation Clause.” 

Van Arsdall, 475 U.S. at 679.

We will reverse the trial court’s decision, then, unless “beyond a reasonable
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doubt . . . the error complained of did not contribute to the verdict obtained.” 

Van Arsdall, 475 U.S. at 680 (citations and internal quotation marks omitted). In

determining whether an error of the type found here is harmless, we consider “the

importance of the witness’ testimony in the prosecution’s case, whether the

testimony was cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, the extent of cross

examination otherwise permitted, and, of course, the overall strength of the

prosecution’s case.” Id. at 684. Although S.Y.’s testimony was important to the

prosecution—S.Y. was the victim and the only witness to the abuse against

her—she was not the only important witness in the case. Three others, Kevin

Sweeny, Ellouise Darwin, and Valerie Raon Horse Lee, testified about statements

that S.Y. had made about the sexual abuse. The defense, on the other hand, failed

to contradict S.Y.’s testimony on its material points. 

Most importantly, the defense was able to introduce its theory about S.Y.’s

motivation to lie through cross-examination of five different witnesses. The

defense brought up the 1989 incident and the effect that it had on S.Y. in its cross

examination of the doctor who examined S.Y. for the burn and for the sexual

abuse, a school nurse, S.Y.’s therapist, a Navajo social service worker who

investigated the burn incident, and S.Y.’s mother. Furthermore, although the

restrictions on the cross-examination of S.Y. were constitutionally infirm, the
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defense managed to ask S.Y. how she felt when separated from her parents, where

her father was at the time of the criminal act, and whether she had ever accused

her father of something he had not done. These questions, and more importantly

the questioning of the five other witnesses, allowed the jury to fully evaluate the

defense’s theory about S.Y. That argument was presented, without restriction, at

closing argument. Because we have no doubt that the jury would have evaluated

the defense’s theory in the same manner absent the constitutional violation, we

decline to reverse on this ground.

Conclusion

We REMAND this case to the district court for an elaboration of the

reasoning behind its decision to admit the evidence over the defendant’s Rule

403-based objection. We AFFIRM the district court in all other respects.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge