United States Court of Appeals

for the Fifth Circuit

____________

No. 22-50697

____________

United States of America, 

Plaintiff—Appellee,

versus

Marco Antonio Abundiz, 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 3:20-CR-2409-1

______________________________

Before Higginbotham, Higginson, and Duncan, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:

Convicted under 18 U.S.C. § 2241(c) and sentenced to life 

imprisonment for sexually abusing his six-year-old niece, K.Z., Marco 

Antonio Abundiz argues the district court erred by: (1) denying his right to 

confrontation by allowing K.Z. to testify via CCTV; (2) failing to make the

findings required under 18 U.S.C § 3509 before allowing K.Z. to testify via 

CCTV; (3) admitting evidence of a previous sexual assault; (4) admitting 

evidence that he possessed child pornography; and (5) instructing the jury 

regarding evidence admitted under Federal Rules of Evidence 413 and 414. 

We AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

February 20, 2024

Lyle W. Cayce

Clerk

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I.

In 2020, six-year-old K.Z. told her mother, Adriana Zapata, that 

Abundiz (K.Z.’s uncle and Adriana’s brother) had been sexually abusing her 

while babysitting her in their home on the Fort Bliss Army Base in El Paso, 

Texas. According to testimony at trial, K.Z. reported to her parents and 

multiple medical professionals that on multiple occasions, Abundiz would 

sexually molest her.

Further investigation revealed that Abundiz previously sexually 

abused his minor cousin, who testified that Abundiz had sex with her 

numerous times over an eight-year time span before she was sixteen.

1

Abundiz was charged with one count of aggravated sexual abuse of a minor 

under the age of 12 years in violation of 18 U.S.C. § 2241(c).

A. K.Z. Testimony

1. CCTV

Before trial, the Government moved to allow K.Z. to testify via CCTV 

outside the personal presence of Abundiz and the jury, in accordance with 

18 U.S.C. § 3509, the federal statute defining child victims’ rights when they 

are required to testify at trial.2 At a March 28, 2022 hearing on the motion, 

the Government called Dr. Lubit, an expert in forensic, child, and adolescent 

_____________________

1 Abundiz was never prosecuted for this conduct.

2 Prior to the hearing, the district court also issued a written order explaining the 

law under 18 U.S.C. § 3509 and establishing the relevant standards for the hearing.

Abundiz notes that the Government’s initial request for CCTV testimony had a “fatal 

failure” in that it did not request a hearing despite the fact that “every single circuit court 

that considered this issue [child victims testifying under 18 U.S.C. § 3509] required that a 

hearing be held.” The Fifth Circuit has not addressed whether hearings are necessary and 

need not reach this issue because the district court cured any error by holding a hearing.

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psychiatry.3 Lubit began by providing general testimony about child victims 

who testify in the presence of their abusers. He testified that, in his opinion 

and based on scientific literature, child victims who must “be confronted by 

or see” their abusers are “re-traumatize[d]” by the experience as it can be 

an “immense traumatic trigger causing a great deal of fear, anxiety, and 

distress.” Lubit further explained that forcing a child victim to be in the same 

space as her abuser causes “betrayal trauma,” which may make the child 

distrust society, the police, and the legal system, “damag[ing] [their] ability 

to trust adults in general.”

Turning to K.Z., Lubit testified that he spoke with her three times but 

that K.Z. was hesitant to discuss the assault on all three occasions because 

“it was too painful.” Lubit opined it was “too anxiety provoking” for her. 

Lubit further testified that K.Z. was scared of Abundiz and had substantial 

anxiety about seeing him and speaking about the assault. He explained that 

“[s]he reports very clearly she is frightened of [Abundiz].” If K.Z. were 

forced to speak about the assault in Abundiz’s presence, Lubit opined that 

K.Z. would be “so flooded with anxiety, that she wouldn’t be able to” testify. 

He also stated that having to testify in front of Abundiz would “retraumatize” K.Z., “deepen the trauma she has,” and cause more than de 

minimis “betrayal trauma.” Moreover, Lubit suggested that being in the 

same room as Abundiz would, “to a reasonable degree of medical 

certainty . . . prevent [K.Z.] from being able to testify” and that having an 

adult attendant in the courtroom would not resolve this issue. Finally, Lubit 

testified K.Z. faced a higher risk of trauma if she were required to testify in 

the presence of Abundiz rather than permitted to testify via CCTV.

_____________________

3 At no time did Abundiz object to Lubit’s qualifications as an expert.

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According to Lubit, this risk of trauma was more than mere nervousness or 

reluctance.

Following this testimony, the district court granted the Government’s 

request to allow K.Z. to testify via CCTV:

I find that the tender age of the child dictates that she be 

allowed to testify via closed-circuit TV. The combination of the 

time elapsed since the incident and the facts and circumstances 

leading to the incident and what has transpired since the 

incident, again, dictates that this testimony happen -- her 

testimony take place in the less stressful set of circumstances 

that can be fashioned to do so. I find that to avoid the 

appearance for any -- to avoid any misapprehensions, 

misperceptions, or any presumption of guilt or of risk to the 

child, only the child should be on camera when she is testifying.

The court specified procedures for K.Z.’s CCTV testimony and 

requested to meet with K.Z., her guardians, and counsel in chambers to 

explain the process and instill upon K.Z. the need to testify truthfully. Then, 

the following exchange occurred:

AUSA: Is your Honor finding under Section 3509(b)(1)(B)(ii) 

that there is a substantial likelihood established by expert 

testimony that the child would suffer emotional trauma from 

testifying?

Court: Yes.

2. K.Z. Testimony

Pursuant to the district court’s order, K.Z. testified via CCTV. K.Z., 

who was seven-years-old and in second grade at the time of trial, testified that 

she remembered living in Texas and that Abundiz babysat her. When asked 

what Abundiz did to her, K.Z. said “he always does something bad to me,” 

he “always see[s] my private part [sic],” and he “licks” her private parts. 

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She said this occurred “more than one time” while Abundiz was “sitting on 

his bed” and she was “laying down.”4

B. Maria Feliz Ramirez & Rosalva Hernandez Testimony

The Government also offered the testimony of Maria Feliz Ramirez, 

Abundiz’s sister, and Rosalva Hernandez, Abundiz’s stepsister. 

Maria explained that she lived with Abundiz until she was fourteen 

and recalled a moment when Abundiz told her he was dating their stepsister, 

Rosalva, who would have been no more than 11 years old at the time. Maria 

recalled Abundiz asking her to remember when she walked in on him and 

Rosalva having sex:

So he told me that they were dating. And I was 16, so I didn’t 

even know how to react. I was just like, Oh, that’s cool. And 

then he was like, Oh, you walked in on us one time. And I was 

like, Oh, no, I didn’t. He was all, like, Yeah, you came into my 

room to, like, clean. And I put the blanket over me really quick.

Rosalva also testified and confirmed these allegations. She said that 

she lived with Abundiz as a child and that she had sex with him from when 

she was eight until she was sixteen, numerous times “on a weekly basis.”

_____________________

4 K.Z. made similar reports to medical professionals who testified at trial. Alena 

Cummings, an EMT who responded to the scene, testified to K.Z.’s statements on the day 

of the arrest. On that day, Cummings spoke privately with K.Z. and later testified that K.Z. 

shared “that her uncle told her to go up to the room. . . . and then he kissed her on her lips 

and touched her in her genital area,” which K.Z. called her “pee-pee” while “point[ing] 

to her vagina.” Although K.Z. could not identify the day this happened, Cummings 

understood that the assault occurred in the house. Leticia Sprinkle, the registered nurse 

who examined K.Z. the day she was brought to the hospital, also testified that K.Z. made 

similar statements during the examination. Furthermore, K.Z. indicated to Sprinkle that 

Abundiz kissed her genitalia and mouth with his lips and tongue, but not her breasts. K.Z. 

denied penetration and other sexual acts, but she said “it was wet” when she was asked 

how she knew Abundiz used his tongue. Based on her examination, Sprinkle believed that 

the assault happened a few days prior.

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In response to the Government’s motion in limine and over Abundiz’s 

objections, the district court admitted this evidence under Federal Rule of 

Evidence 413 (“FRE 413”). First, the district court determined that FRE 

413 authorized this testimony as evidence of “any other” prior sexual assault

admissible under the rule. Under FRE 413, “[i]n a criminal case in which a 

defendant is accused of a sexual assault, the court may admit evidence that 

the defendant committed any other sexual assault.”5 “Sexual assault” 

includes a crime under federal or state law involving “any conduct prohibited 

by 18 U.S.C. chapter 109A.”6 Because Abundiz was charged under 18 

U.S.C. § 2241(c), which falls within 18 U.S.C. chapter 109A, the court 

concluded that Rosalva and Maria’s testimony fell squarely within the Rule’s 

ambit.

The district court further explained that “[c]onduct admissible under 

Rule 413 need not have been conduct for which Defendant was convicted or 

even charged” and that “[a]ll that is required by the rule is the evidence be 

relevant.” The court then found the testimony was relevant because “[i]t is 

certainly relevant if, in a trial for aggravated sexual abuse, the defendant has 

a history of allegations of sexual assault.” Lastly, the court found that “the 

probative value of this testimony . . . is not substantially outweighed by the 

concerns in Rule 403,” noting that FRE 413 “is a rule of inclusion and 

presumes the admissibility of evidence that falls under the rule.”7

_____________________

5 Fed. R. Evid. 413(a).

6 Fed. R. Evid. 413(d)(1).

7 As discussed, infra Section III.A.1, the district court excluded a third alleged 

assault between Maria and Abundiz under Federal Rule of Evidence 403 as “needlessly 

cumulative.”

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C. Kathleen Fronczak Testimony

Kathleen Fronczak, an FBI task force officer, appeared on behalf of 

the Government and testified that the FBI flagged Abundiz one year earlier 

after his name matched the physical mailing address associated with an IP 

address that had shared child pornography files. After K.Z.’s mother 

reported the assault, Fronczak interviewed Abundiz at a hospital, where he 

was staying due to a COVID-19 exposure. Abundiz waived his Miranda rights

and told Fronczak that K.Z. told her mother he “kissed her upstairs in his 

bedroom.” Abundiz “explained that he didn’t know why she had said 

something like that, that he thought maybe she was mad at him . . . because 

she had been punished earlier in the day for misbehaving, and he had laughed 

at her.” Abundiz also “couldn’t advise how she would get an idea to say 

something like this or would even know to say something like this.”

Abundiz also admitted to Fronczak that he had previously 

downloaded child pornography using the UTorrent network, which was the 

same software used by the IP address that shared child pornography in 2019.

Specifically, Abundiz recalled downloading a large file with a bunch of 

smaller files in it and explained that he would search for material using the 

terms “CP” (child pornography) and “PTHC” (pre-teen hard core). He also 

said he downloaded content such as “The Anarchist Cookbook,” “anime,”

and “videos of animals and children being killed” and that he believed he 

would one day be caught and go to jail because of the child pornography.

Under Federal Rule of Evidence 414, the district court admitted 

Fronczak’s testimony regarding the FBI’s child pornography investigation as 

well as her statements that Abundiz admitted to accessing child 

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pornography.

8 Rule 414 permits courts “[i]n a criminal case in which a 

defendant is accused of child molestation” to “admit evidence that the 

defendant committed any other child molestation” for “any matter to which 

it is relevant.”9 The court explained that FRE 414 “presumes the 

admissibility of evidence that falls under the rule” and “makes clear that a 

defendant’s alleged possession of child pornography is relevant to a case 

involving an accusation of child molestation.” The court admitted 

Fronczak’s testimony after finding that the probative value of testimony 

regarding Defendant’s possession of child pornography was not 

“substantially outweighed by undue prejudice or any of the other concerns 

in Rule 403.” 

D. Jury Instructions

This Circuit has yet to adopt a FRE 413 and FRE 414 pattern jury 

instruction. As a result, the district court crafted its own, declining to adopt 

the exact instructions used by the Ninth or Eighth Circuits that the 

Government suggested, modeling its instructions on those of the Eighth 

Circuit.10

_____________________

8 See infra Section III.B. The district court rejected Abundiz’s argument that the 

statements were involuntary because of his hospitalization, finding that Abundiz 

“provide[d] no documentation regarding the extent of his illness,” nor “provide[d] an 

argument that, considering the totality of circumstances, his will was overborne” by the 

interviewers, and that Abundiz received his Miranda warnings. Abundiz does not advance 

his involuntariness argument on appeal.

9 Fed. R. Evid. 414(a).

10 The final instruction read:

PREVIOUS ACTS OF SEXUAL ABUSE AND CHILD 

PORNOGRAPHY

You have heard evidence that the defendant may have committed other 

offenses of sexual abuse and downloading of child pornography and child 

sexual abuse material. The defendant was not convicted of any of these 

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On April 1, 2022, the jury found Abundiz guilty, and the district court 

sentenced him to life in prison, five years of supervised release if he were to 

be released, and a $100 special assessment.

Abundiz timely appealed. This Court has jurisdiction under 

28 U.S.C. § 1291.

II.

Abundiz contends the district court erred by allowing K.Z. to testify 

via CCTV. We find no error. 

A. 

First, Abundiz argues that allowing K.Z. to testify via CCTV violated 

his Sixth Amendment right to confrontation as outlined in Crawford v. 

Washington. This issue is reviewed de novo and rejected by this Court.11

_____________________

offenses. The defendant is not charged with any of these offenses. You may 

consider the evidence of any of these offenses only if you unanimously find 

that the offense or offenses you are considering is more likely true than not 

true of having occurred.

You decide that by considering all of the evidence of the given offense and 

deciding whether it is more likely than not to have occurred. This is a lower 

standard than beyond a reasonable doubt.

You must disregard the offense or offenses you find to have not been 

proved as stated in the previous paragraph. The offense or offenses that 

you find to have been proved as previously stated, can be considered by 

you in deciding any matter for which you find them relevant.

11 United States v. Cotto-Flores, 970 F.3d 17, 39 (1st Cir. 2020) (citing United States 

v. Turning Bear, 357 F.3d 730, 735–36 (8th Cir. 2004)); United States v. Jimenez, 464 F.3d 

555, 558 (5th Cir. 2006) (citing United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004) 

(“Alleged violations of the Confrontation Clause [of the Sixth Amendment] are reviewed 

de novo, but are subject to a harmless error analysis.”) (alteration and emphasis in original).

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The Sixth Amendment guarantees a criminal defendant the right to 

confront witnesses who testify against them.12 However, the Supreme Court 

has recognized several exceptions to the right to physically confront 

witnesses.13 Relevant here, the Supreme Court in Maryland v. Craig held:

[I]f the State makes an adequate showing of necessity, the state 

interest in protecting child witnesses from the trauma of 

testifying in a child abuse case is sufficiently important to 

justify the use of a special procedure that permits a child 

witness in such cases to testify at trial against a defendant in the 

absence of face-to-face confrontation with the defendant.14

Following Craig, Congress enacted 18 U.S.C. § 3509(b) to “specify[] 

the procedures to be used in federal courts to allow a child victim to testify 

via [CCTV].”15 Of note, § 3509(b) permits 2-way CCTV under certain 

_____________________

12 U.S. Const. amend. VI.

13 See, e.g., Mattox v. United States, 156 U.S. 237, 243 (1895) (former testimony of 

unavailable witness); Ohio v. Roberts, 448 U.S. 56, 63 (1980) (hearsay exceptions); Bourjaily 

v. United States, 483 U.S. 171, 183–84 (1987) (hearsay statements of nontestifying 

coconspirators); Illinois v. Allen, 397 U.S. 337, 345–46 (1970) (trial judge may remove 

defendant from courtroom for disruptive behavior). As the Bourjaily Court explained:

While a literal interpretation of the Confrontation Clause could bar the use 

of any out-of-court statements when the declarant is unavailable, this 

Court has rejected that view as “unintended and too extreme.” Rather, we 

have attempted to harmonize the goal of the Clause—placing limits on the 

kind of evidence that may be received against a defendant—with a societal 

interest in accurate factfinding, which may require consideration of out-ofcourt statements.

Bourjaily, 483 U.S. at 182 (citations omitted).

14 Maryland v. Craig, 497 U.S. 836, 855 (1990).

15 United States v. Farley, 992 F.2d 1122, 1124 (10th Cir. 1993).

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circumstances, providing a greater ability for defendants to confront 

witnesses than the Craig Court, which upheld the use of 1-way CCTV.16

In 2004, the Supreme Court in Crawford v. Washington held that 

testimonial out-of-court statements by witnesses are barred by the 

Confrontation Clause unless the witness is otherwise unavailable and the 

defendant had a previous opportunity for cross-examination.17 Abundiz 

argues that the Supreme Court’s holding in Crawford “conflict[s]” with 

Craig—and presumably by extension, 18 U.S.C. § 3509(b)—and that 

“various courts and scholars have struggled to reconcile Craig with the 

Court’s subsequent holding in Crawford.” Abundiz’s argument reduces to 

his contention that “given Crawford’s protections, it’s just a matter of time

before a clash between the two makes its way to the Supreme Court.”

Abundiz provides no supporting citations for these assertions but 

properly concedes that “Crawford did not overturn Craig” and that “Craig

governs this case.”18 He has also failed to elaborate on how having a child 

testify in real time, subject to cross-examination, via CCTV in response to

expert findings that she is likely to be traumatized, conflicts with Craig. Nor 

has Abundiz explained how this situation differs from other exceptions to the 

_____________________

16 Compare Craig, 497 U.S. at 860 (“So long as a trial court makes such a casespecific finding of necessity, the Confrontation Clause does not prohibit a State from using 

a one-way closed circuit television procedure for the receipt of testimony by a child witness 

in a child abuse case.”), with 18 U.S.C. § 3509(b)(1)(A) (“In a proceeding involving an 

alleged offense against a child, the attorney for the Government . . . may apply for an order 

that the child’s testimony . . . be televised by 2-way closed circuit television.”).

17 Crawford v. Washington, 541 U.S. 36, 54 (2004) (“[T]he common law in 1791 

conditioned admissibility of an absent witness's examination on unavailability and a prior 

opportunity to cross-examine. The Sixth Amendment therefore incorporates those 

limitations.”).

18 See United States v. Cox, 871 F.3d 479, 492 (6th Cir. 2017) (Sutton, J., concurring) 

(“Crawford did not overturn Craig.”).

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Confrontation Clause that the Supreme Court and all Circuit Courts have 

repeatedly upheld.19

B.

Second, Abundiz argues that the district court failed to make the 

requisite factual findings under 18 U.S.C. § 3509(b). Section 3509(b) “sets 

forth the conditions under which a child may testify by closed-circuit 

television.”20 Specifically, it provides that “[i]n a proceeding involving an 

alleged offense against a child, the attorney for the Government . . . may 

apply for an order that the child’s testimony be taken in a room outside the 

courtroom and be televised by 2-way closed circuit television.”21 If the court 

finds, inter alia, that “[t]he child is unable to testify because of fear” or 

“[t]here is a substantial likelihood, established by expert testimony, that the 

child would suffer emotional trauma from testifying” in open court, then 

“[t]he court may order that the testimony of the child be taken by closedcircuit television.”22 Accordingly, Abundiz argues the district court failed to 

find on the record that K.Z. would be unable to testify in open court because 

of either fear or a substantial likelihood, established by expert testimony, that 

she would suffer emotional trauma.23

Whether the district court’s relevant factual findings under 

18 U.S.C. § 3509 were supported by evidence in the record is reviewed for 

_____________________

19 See supra note 13.

20 Cox, 871 F.3d at 484 (citing United States v. Moses, 137 F.3d 894, 898 (6th Cir. 

1998)).

21 18 U.S.C. § 3509(b)(1)(A).

22 18 U.S.C. § 3509(b)(1)(B)(i), (ii).

23 At oral argument, Abundiz appeared to concede this issue; but to the extent he 

does not, this Court rejects the argument.

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clear error, although whether such factual findings are “sufficient to permit 

the use of closed-circuit television testimony” is a legal question reviewed de 

novo.24 Upon review, this Court finds no error.

As described supra Section I.A.1, the district court held a pre-trial 

hearing, heard expert testimony on this issue, and concluded K.Z. would be 

unable to testify in open court because there was a substantial likelihood she 

would suffer emotional trauma if forced to do so. Dr. Lubit testified that it 

was “too anxiety provoking” for K.Z. to discuss the assault one-on-one with 

him and that K.Z. repeatedly expressed she would be “quite afraid if she had 

to see [Abundiz].” Lubit testified that K.Z. was afraid to see Abundiz in the 

courtroom and that “if she had to talk about it, she would even be worse.” 

Lubit opined that K.Z. would be “so flooded with anxiety, that she would not 

be able to” testify in court, and that her fear would, “to a reasonable degree 

of medical certainty . . . prevent her from being able to testify.” Lubit further 

explained that in-court testimony would “re-traumatize her,” “deepen the 

trauma she has,” and cause “betrayal trauma”; moreover, Lubit said the risk 

of trauma was substantially more likely if K.Z. testified in front of Abundiz 

than apart from him. Finally, Lubit explained that courtroom 

accommodations would not reduce the risk of trauma and that K.Z. would 

still be “traumatized and very, very anxious.”

After hearing from Lubit, the district permitted K.Z. to testify via 

CCTV given her “tender age,” “[t]he combination of the time elapsed since 

the incident and the facts and circumstances leading to the incident,” and 

_____________________

24 Cotto-Flores, 970 F.3d at 39 (citing Turning Bear, 357 F.3d at 735–36); Turning 

Bear, 357 at 735–36 (“The district court was required to make certain findings in order to 

permit [the child victim] to testify by closed-circuit television. Whether the district court’s 

relevant factual findings were supported by evidence in the record is reviewable under the 

‘clearly erroneous’ standard . . . .”).

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“what has transpired since the incident.” Then, the court confirmed on the 

record that these findings supported its ruling under 

18 U.S.C. § 3509(1)(B)(ii). Finally, the judge limited his ruling so that K.Z. 

would be the only witness allowed to appear on camera to avoid any 

“misapprehensions, misperceptions, or any presumption of guilt.”

The district court’s findings are plausible, supported by Lubit’s 

testimony, and stated on the record. Abundiz’s argument fails.

25

III.

Abundiz contends the district court erroneously admitted evidence 

regarding prior sexual assaults and his possession of child pornography.26 We 

find no error.

A.

Abundiz argues the district court erred in admitting Maria and 

Rosalva’s testimony pursuant to Federal Rule of Evidence 413 for two 

reasons. First, Abundiz contends the testimony was unfairly prejudicial 

under Federal Rule of Evidence 403. Second, Abundiz claims the district 

court improperly admitted the testimony as evidence of his character without 

_____________________

25 There is little precedent in this Court addressing the requirements under 

18 U.S.C. § 3509, but the district court’s findings comport with those of other circuits. See, 

e.g., United States v. Wandahsega, 924 F.3d 868, 878 (6th Cir. 2019) (in dicta, describing 

that an expert witness with extensive experience in assessing trauma in sexually abused 

children forming an individualized opinion that a child victim would suffer trauma from 

testifying in front of the defendant would be a sufficient factual finding to support use of 

CCTV under §3509(b)(1)(B)(ii)).

26 Although Abundiz’s briefs refer to “two” prior sexual assaults—of both Maria 

and Rosalva—a review of the record shows that Rosalva and Maria testified about 

Abundiz’s abuse of Rosalva during his youth. As a result, this Court will consider only 

allegations of Rosalva’s sexual assault.

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making on-the-record findings regarding the alleged assaults. We reject both 

arguments.

1. Relevancy and Prejudice

The district court admitted Maria and Rosalva’s testimony pursuant 

to Federal Rule of Evidence 413. Abundiz argues that this testimony should 

not have been admitted because it lacked probative value and was unfairly 

prejudicial under Federal Rule of Evidence 403. As Abundiz preserved this 

argument, we review for an abuse of discretion subject to a harmless error 

analysis.27 “A district court abuses its discretion if it bases its decision on an 

error of law or a clearly erroneous assessment of the evidence.”28 However, 

an evidentiary error may “be excused if it was harmless, particularly if there 

is ‘other overwhelming evidence of the defendant’s guilt.’”29

Under Federal Rule of Evidence 402, relevant evidence is generally 

admissible unless otherwise provided by the federal Constitution, statute, or 

the Federal Rules of Evidence.30 Although Rule 404(b) prohibits otherwise-

_____________________

27 United States v. Dillon, 532 F.3d 379, 387 (5th Cir. 2008); United States v. 

Escalante–Reyes, 689 F.3d 415, 418 (5th Cir. 2012) (en banc); United States v. Girod, 646 

F.3d 304, 318 (5th Cir. 2011); United States v. Sanders, 343 F.3d 511, 519 (5th Cir. 2003) 

(“[F]or any of the evidentiary rulings to be reversible error, the admission of the evidence 

in question must have substantially prejudiced Sanders’s rights.”).

28 United States v. Caillier, 80 F.4th 564, 569 (5th Cir. 2023) (citing United States 

v. Castillo, 430 F.3d 230, 239–40 (5th Cir. 2005)).

29 United States v. Nguyen, 504 F.3d 561, 571 (5th Cir. 2007) (citing United States v. 

Williams, 957 F.2d 1238, 1241 (5th Cir. 1992)) (cleaned up).

30 Fed. R. Evid. 402. Evidence is relevant if it “has any tendency to make a fact 

more or less probable than it would be without the evidence” and “the fact is of 

consequence in determining the action.” Fed. R. Evid. 401.

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relevant “propensity” evidence,

31 FRE 413 provides a “broad exception” to 

FRE 404(b) and expressly allows the admission of character and propensity 

evidence in sexual assault cases to prove a defendant acted in conformity with 

that character.32 Nevertheless, evidence admitted under FRE 413 remains

subject to FRE 403’s balancing test under which a “court may exclude 

relevant evidence if its probative value is substantially outweighed by a 

danger of . . . unfair prejudice.”33 Unfair prejudice may be “mitigated by the 

district court’s careful instruction to the jury” that the defendant is on trial 

only for the charged crimes, not for the other conduct, act, or offense.34

Ultimately, it is a “rare case” that would “warrant[] reversal of a district 

court’s Rule 403 analysis.”35

_____________________

31 “Propensity” evidence refers to “evidence of any other crime, wrong, or act 

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

person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). 

32 Fed. R. Evid. 413(a) (“In a criminal case in which a defendant is accused of a 

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.”); United 

States v. Guidry, 456 F.3d 493, 503 (5th Cir. 2006) (“Congress intended to expand the 

admissibility of character or propensity evidence relating to sexual assault by creating a 

broad exception to the prohibition in Rule 404(b).”).

33 Fed. R. Evid. 413; Fed. R. Evid. 403. 

34 United States v. Lewis, 796 F.3d 543, 548 (5th Cir. 2015).

35 Id. (citing Dillon, 532 F.3d at 387). In Dillon, this Court stated:

A district court’s determination under Rule 403 with respect to whether 

the probative value of evidence is substantially outweighed by the danger 

of unfair prejudice is reviewed under an abuse of discretion standard but, 

at least generally, with “an especially high level of deference to” the 

district court, with reversal called for only “rarely and only when there has 

been a clear abuse of discretion.”

Dillon, 532 F.3d at 387 (internal quotations and citations omitted).

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After reviewing the record, we find that the district court did not 

abuse its discretion in admitting this testimony. First, Abundiz argues that 

Maria and Rosalva’s testimony lacked probative value and was not relevant 

to the case at hand because Rosalva’s alleged assaults were remote in time

and “unadjudicated.”36 The district court disagreed and in doing so, 

explained its application of the Rules of Evidence to the facts. The court 

began this analysis by noting that FRE 413 is a rule “of inclusion and 

presumes the admissibility of evidence that falls under the rule.” The district 

court appropriately found that Rosalva’s alleged assaults need only be 

relevant to be admissible under FRE 413; Abundiz did not need to be 

formally charged or convicted for the conduct to be admissible. The court 

found the evidence regarding a defendant’s “history of allegations of sexual 

assault” probative “in a trial for aggravated sexual abuse” and not 

“substantially outweighed by the concerns in Rule 403.”

We agree and find that the district court did not abuse its discretion in 

finding the testimony probative and relevant. An “alleged sexual assault does 

not need to have been identical” to the charged sexual assault for it “to be 

admissible, but aspects of the assault must have sufficient probative value as 

to some element of the charged offense to not be substantially outweighed by 

its danger of unfair prejudice.”37 Rosalva’s testimony that Abundiz raped her 

as a child speaks to Abundiz’s tendency to commit sexual assault generally, 

and with children and family members specifically. Maria’s testimony 

corroborates Rosalva’s account. And statements by Abundiz’s counsel at 

trial—notably, that “there is great similarity” between the “prior acts” and 

“the act charged”—refute Abundiz’s current argument that the assaults are 

_____________________

36 Abundiz also objects on the grounds that the assault occurred within the context 

of “child abuse and unlawful status.” However, he failed to elaborate on this argument.

37 Dillon, 532 F.3d at 389.

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too dissimilar to offer value. Finally, because part of Abundiz’s defense was 

that K.Z. misidentified the perpetrator, this evidence that he committed 

previous sexual assaults is particularly probative.38 

Abundiz’s second argument—that the testimony was unfairly 

prejudicial—fares no better. While Maria and Rosalva’s testimony may be 

prejudicial, “prejudice” is not enough: Rule 403 only prohibits evidence 

when its probative value is substantially outweighed by the danger of unfair

prejudice.39 Abundiz’s only contention regarding unfair prejudice is that 

“the admission of this kind of evidence caused undue prejudice with the jury 

who was likely moved with undue passion and emotion to punish the 

appellant.”

That the district court “took great care in weighing the evidence of” 

additional alleged assaults and “admitted [only] those that it determined to 

be relevant” supports the conclusion that it appropriately exercised its 

discretion.40 Specifically, the district court declined to admit “additional 

evidence relating to Abundiz[’s] abuse of [Maria]” in part because it did not 

_____________________

38 Although the district court did not expressly address Abundiz’s arguments that 

the assaults were “unadjudicated” or “undermined by the underlying parental child 

abuse,” the court sufficiently justified its ultimate ruling and implicitly addressed 

Abundiz’s objections.

39 Fed. R. Evid. 403.

40 Dillon, 532 F.3d at 391 (“[The district court] held that their testimony would 

have been unfairly prejudicial because those two alleged sexual assaults were remote in time 

and dissimilar in their commission to the charged offenses. The district court took great 

care in weighing the evidence of all these prior sexual assaults. It admitted those that it 

determined to be relevant, and it excluded those that it determined to be unfairly 

prejudicial. In making these decisions, we are unable to conclude, under the applicable 

standard of review, that the district court abused its discretion.”).

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comply with Rule 403.41 In short, the district court did not blindly admit all 

evidence of prior sexual incidents but carefully considered the admissibility 

of each instance under the appropriate legal standards. We conclude that the 

district court did not abuse its discretion in admitting Maria and Rosalva’s 

testimony.42

2. FRE 104(b)

Second, Abundiz argues that the district court erred in admitting 

Maria and Rosalva’s testimony because it did not “make a preliminary 

finding that a jury could reasonably find by a preponderance of the evidence 

that the defendant committed the other act and that it constituted an ‘offense 

of sexual assault’ for purposes of Fed. R. Evid. 413.”43 He also appears to 

suggest that the district court was required to make this finding on the record. 

While Abundiz objected to the want of a “probable cause finding” 

before the district court, he did not reference Federal Rule of Evidence 104 

or the correct “preponderance of the evidence” standard applicable to 

whether uncharged acts under FRE 413 may be submitted to the jury.44

_____________________

41 The district court found the evidence inadmissible in part because it was 

“needlessly cumulative” under FRE 403.

42 Further, without the evidence relating to Maria and Rosalva, the trial would have 

been little more than “a swearing match between K.Z. and Abundiz, which is a primary 

reason Rules 413 and 414 were enacted.” See Guidry, 456 F.3d at 502–03 (“Because sexual 

assault allegations are often reduced to a swearing match, Congress aimed to assist the fact 

finder’s assessment of credibility through allowing evidence of the defendant’s extrinsic 

sexual misconduct as character or propensity evidence.”).

43 On appeal, Abundiz uses both “probable cause” and “preponderance of the 

evidence” language to describe his objections.

44 Fed. R. Evid. 104; Dillon, 532 F.3d at 387 (describing that the preponderance 

of the evidence standard applies to evidence proffered under Rule 413).

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Because Abundiz’s objections below did not put the district court on 

sufficient notice of his claim, we review for plain error.

45

Federal Rule of Evidence 104 requires courts to decide preliminary 

questions about whether evidence is relevant and admissible.46 Under Rule 

104(b), “[w]hen the relevance of evidence depends on whether a fact exists, 

proof must be introduced sufficient to support a finding that the fact does 

exist,” but courts are permitted to preliminarily admit the evidence, so long 

as the required proof is introduced later.47 In certain instances, courts are 

required to conduct a hearing on a preliminary question, but there is 

otherwise no requirement that a district court make “on the record” findings 

regarding preliminary issues.

48 Moreover, this Court has held:

To be admissible under Rule 413, the uncharged “offense of 

sexual assault” need not be established by a conviction . . . but 

the district court must make a preliminary finding that a jury 

could reasonably find by a preponderance of the evidence that 

the defendant committed the other act and that it constituted 

an “offense of sexual assault” for purposes of Rule 413. 49

_____________________

45 Because Abundiz cited the wrong standard in his objection below, he likely did 

not provide the district court with sufficient notice of his claim and, as such, did not 

preserve the error. See Lewis, 796 F.3d at 545 (“To preserve error, an evidentiary objection 

must ‘state[ ] the specific ground, unless it was apparent from the context.’”) (citation 

omitted) (alteration in original). Furthermore, the record indicates that the district court 

did not address his concern, increasing the likelihood that Abundiz failed to sufficiently 

apprise the court of his objection. See id. at 546 (ruling that plain error review applied when 

defendant argued before the district court that FRE 413 evidence should not be admitted 

because it was intrastate and not interstate but on appeal, defendant argued the same 

evidence should not have been admitted for a different reason).

46 Fed. R. Evid. 104(a).

47 Fed. R. Evid. 104(b).

48 Fed. R. Evid. 104(c).

49 Dillon, 532 F.3d at 387 (internal citations omitted).

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Thus, although the district court made no on-the-record findings 

pursuant to Federal Rule of Evidence 104(b) that the alleged assaults 

occurred, the failure was not plain error. To start, Rule 104(b) does not on its 

face require an explicit finding, nor does Abundiz offer case law suggesting

otherwise. Instead, the text of Rule 104(b) merely requires the existence of

“proof” that is “sufficient to support a finding” that the incident occurred.

Here, the district court made implicit findings that the assaults took place 

when it found the allegations probative.

More telling is the district court’s instruction to the jury that it “may 

consider the evidence of any of these offenses [FRE 413 and FRE 414 

evidence] only if you unanimously find that the [prior] offense or offenses 

you are considering is [sic] more likely true than not true of having 

occurred.” As a result, the absence of an express finding under FRE 104(b) 

by the district court was not plain error: the court implicitly made the Rule 

104(b) finding and cured any potential error by jury instruction.50

B.

We turn next to Abundiz’s argument that it was unfairly prejudicial 

for the district court to admit evidence that Abundiz possessed child 

pornography under FRE 414, which “in a criminal case in which a defendant 

is accused of child molestation, [allows] the court [to] admit evidence that 

the defendant committed any other child molestation.”51 In particular, the 

district court admitted Abundiz’s statements to FBI Agent Fronczak as well 

as the results of an independent FBI investigation showing that a device with 

_____________________

50 Moreover, Abundiz does not claim the Court should exercise its discretion due 

to a serious effect on “the fairness, integrity or public reputation of judicial proceedings.”

See Escalante–Reyes, 689 F.3d at 419 (internal quotation marks and alteration omitted).

51 Fed. R. Evid. 414(a).

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an IP address linked to his mailing address shared such materials. Before the 

district court, Abundiz objected to this evidence on the basis that his 

statements to Fronczak were involuntary. He has abandoned this argument 

on appeal and instead argues that the evidence was unfairly prejudicial. 

Because his prejudice argument was not made below, this Court reviews the 

objection for plain error and finds none.

As a threshold matter, Abundiz gives this issue little attention, 

devoting only two lines of his brief to arguing the evidence was prejudicial 

because “he was convicted and received a life sentence.”52 He does not 

explain how this evidence was unfairly prejudicial as required under FRE 

403. Finally, even assuming some error, Abundiz presents no argument that 

the error was clear or that it affected his substantial rights. We find no plain 

error. 

IV.

Finally, Abundiz contends the jury instructions regarding evidence 

admitted under FRE 413 and 414 were erroneous because they “did not 

clearly state how the jury would use all of the 413/414 evidence,” 

“confuse[d] the standard of proof required to convict,” and “g[a]ve the jury 

the ability to convict using a ‘lower standard’ of proof.”53

_____________________

52 Abundiz argues:

Even if Fed. R. Evid. 414(a) allows [the evidence] in as a similar act of child 

molestation, the prejudicial effect when combined with the R.H. and M.R. 

testimony cannot be overstated. In fact, there is no way to quantify the 

prejudice this admission caused the appellant’s right to a fair trial other 

than he was convicted and received a life sentence.

53 Abundiz sufficiently preserved this objection.

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We review this challenge for an abuse of discretion.54 When 

considering whether a jury instruction was supported by the evidence, this 

Court “view[s] the evidence and all reasonable inferences that may be drawn 

from the evidence in the light most favorable to the Government.”55

Erroneous jury instructions are considered harmless if a court, “after a 

‘thorough examination of the record,’ is able to ‘conclude beyond a 

reasonable doubt that the jury verdict would have been the same absent the 

error.’”56

Upon review, Abundiz’s arguments are unpersuasive. The district 

court appropriately exercised its discretion to draft jury instructions57 as this 

Circuit does not have pattern jury instructions for FRE 413 and FRE 414 

evidence. And more to the point, the district court’s instructions were 

_____________________

54 United States v. Elashyi, 554 F.3d 480, 504 (5th Cir. 2008).

55 United States v. Nguyen, 493 F.3d 613, 619 (5th Cir. 2007) (citations omitted).

56 United States v. Skilling, 638 F.3d 480, 482 (5th Cir. 2011) (quoting Neder v. 

United States, 527 U.S. 1, 19 (1999)).

57 PREVIOUS ACTS OF SEXUAL ABUSE AND CHILD 

PORNOGRAPHY

You have heard evidence that the defendant may have committed other 

offenses of sexual abuse and downloading of child pornography and child 

sexual abuse material. The defendant was not convicted of any of these 

offenses. The defendant is not chargedwith any of these offenses. You may 

consider the evidence of any of these offenses only if you unanimously find 

that the offense or offenses you are considering is more likely true than not 

true of having occurred.

You decide that by considering all of the evidence of the given offense and 

deciding whether it is more likely than not to have occurred. This is a lower 

standard than beyond a reasonable doubt.

You must disregard the offense or offenses you find to have not been 

proved as stated in the previous paragraph. The offense or offenses that 

you find to have been proved as previously stated, can be considered by 

you in deciding any matter for which you find them relevant.

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sufficient and do not indicate clear, reversible error. The court modeled the 

language from the Eighth Circuit’s pattern instructions but modified them in 

three major ways: (1) removing the word “believable” from the fourth line; 

(2) repeating the preponderance standard to avoid reducing the standard of 

proof for prior act evidence; and (3) removing language suggesting specific 

ways that the jury could use the evidence to avoid “nudg[ing]” the jury.58 As 

_____________________

58 The Eighth Circuit’s pattern instructions stated:

2.08A DEFENDANT’S PRIOR SIMILAR ACTS IN SEXUAL 

ASSAULT AND CHILD MOLESTATION CASES (FED. R. EVID. 413 

AND 414) 

You [are about to hear] [have heard] evidence that the defendant may have 

previously committed [another] [other] offense[s] of [sexual assault] [child 

molestation]. The defendant is not charged with [this] [these] other 

offense[s]. You may consider this evidence only if you unanimously find it 

is more likely true than not true. You decide that by considering all of the 

evidence and deciding what evidence is more believable. This is a lower 

standard than proof beyond a reasonable doubt. If you find that [this 

offense has] [these offenses have] not been proved, you must disregard [it] 

[them]. If you find that [this offense has] [these offenses have] been 

proved, you may consider [it] [them] to help you decide any matter to 

which [it is] [they are] relevant. You should give [it] [them] the weight and 

value you believe [it is] [they are] entitled to receive. You may consider the 

evidence of such other act[s] of [sexual assault] [child molestation] for its 

tendency, if any, to show the defendant’s propensity to engage in [sexual assault] 

[child molestation] [.] [, as well as its tendency, if any, to [determine whether the

defendant committed the acts charged in the Indictment] [determine the 

defendant’s intent] [determine the identity of the person who committed the 

act[s] charged in the Indictment] [determine the defendant’s (motive) (plan) 

(design) (opportunity) to commit the act[s] charged in the Indictment] 

[determine the defendant’s knowledge] [rebut the contention of the defendant 

that [his] [her] participation in the offense[s] charged in the Indictment was the 

result of (accident) (mistake) (entrapment)] [rebut the issue of __________ 

raised by the defense].] Remember, the defendant is on trial only for the crime[s] 

charged. You may not convict a person simply because you believe [he] [she] may 

have committed similar acts in the past.

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modified, the district court appropriately informed the jury that evidence 

admitted under FRE 413 and 414 may be used for any relevant purpose only 

if it was proven by a preponderance of the evidence. As drafted, the 

instructions track the language of the Rules of Evidence and do not 

improperly suggest how the jury should use the evidence.59

Contrary to Abundiz’s assertions, the instructions do not allow the 

jury to convict using a lower standard of proof, nor do they confuse the 

preponderance and beyond a reasonable doubt standards. And although the

instructions do not specifically instruct the jury on how to use the evidence, 

they need not do so because the Federal Rules of Evidence permit juries to

use the evidence for any relevant purpose. In short, as the Government 

argues, “[t]he district court’s thoughtful consideration of how to craft this 

jury instruction in the absence of a pattern instruction was well-balanced and 

aimed to ensure that the jury followed the law regarding consideration of the 

Rule 413 and 414 evidence;” there was no abuse of discretion.

V.

The district court properly allowed K.Z. to testify via CCTV and did 

not err in admitting testimony of Abundiz’s previous sexual assault or in 

crafting jury instructions about using evidence admitted under FRE 413 and 

414. We AFFIRM.

_____________________

Manuel of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit 

§2.08A (2021) (emphasis added only on parts removed or changed when comparing this 

instruction to the district court’s instruction in this case.)

59 Fed. R. Evid. 413; Fed. R. Evid. 414.

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