F I L E D

United States Court of Appeals

Tenth Circuit

FEB 2 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

DAVID K. GUARDIA, M.D.,

Defendant - Appellee.

No. 97-2053

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D. Ct. No. CR 96-244 BB)

Tara C. Neda, Assistant U.S. Attorney (John J. Kelly, United States Attorney,

with her on the briefs), Office of the U.S. Attorney for the District of New

Mexico, Albuquerque, New Mexico, appearing for Plaintiff-Appellant.

Leigh A. Kenny (Charles W. Daniels and Nancy Hollander with her on the brief),

Freedman, Boyd, Daniels, Hollander, Guttmann & Goldberg, P.A., Albuquerque,

New Mexico, appearing for Defendant-Appellee.

Before TACHA, HENRY, and LUCERO, Circuit Judges.

TACHA, Circuit Judge.

On September 5, 1996, a federal grand jury in New Mexico returned an

indictment charging defendant David Guardia with two counts of sexual abuse in
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violation of 18 U.S.C. § 2242(2)(A). In addition, the grand jury charged the

defendant under the Assimilative Crimes Statute, 18 U.S.C. § 13, with two counts

of criminal sexual penetration in violation of N.M. STAT. ANN. § 30-9-11(E)

(Michie Supp. 1997) and two counts of battery in violation of N.M. STAT. ANN.

§ 30-3-4 (Michie 1978). These charges arose from the defendant’s allegedly

improper behavior during gynecological exams he performed at Kirtland Air

Force Base in October and November of 1995. Dr. Guardia moved in limine to

exclude evidence proffered by the United States under Federal Rule of Evidence

413. The district court granted Dr. Guardia’s motion, finding under Federal Rule

of Evidence 403 that the risk of jury confusion substantially outweighed the

probative value of the Rule 413 evidence. See United States v. Guardia, 955 F.

Supp. 115 (D.N.M. 1997). This appeal followed. We exercise jurisdiction under

18 U.S.C. § 3731 and affirm.

BACKGROUND

The indictment is based upon the complaints of two alleged victims who

contend that Dr. Guardia sexually abused them in the course of gynecological

procedures that he conducted at Kirtland. Both complainants, Carla G. and

Francesca L., allege that during an examination Dr. Guardia engaged in direct

clitoral contact that exceeded the bounds of medically appropriate examination

techniques and constituted sexual abuse. Francesca L. alleges that Dr. Guardia
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demonstrated the sexual nature of his conduct by stating “I love my job” during

the examination. In addition, Carla G. alleges that Dr. Guardia called her at home

and performed other acts suggesting his sexual interest in her. Neither of the

examinations occurred in the presence of a chaperon.

In addition to offering the testimony of Carla G. and Francesca L., the

government moved to introduce, under Rule 413, the testimony of four women

who allege that Dr. Guardia abused them during gynecological examinations in a

manner similar to the alleged abuse of Carla G. and Francesca L. For example,

two of the four additional witnesses also complained of excessive, direct clitoral

contact, and one complained of similarly suggestive comments. On the other

hand, the testimony of Carla G. and Francesca L. differs significantly in some

respects from the testimony of the Rule 413 witnesses. For instance, one of the

witnesses complains that Dr. Guardia improperly touched her breasts, not her

pelvic area. Another complains of the defendant’s use of a medical instrument,

not his hands. Chaperons were present during the examination of two of the four

Rule 413 witnesses. All six women had extraordinary gynecological problems

that appeared to require different courses of treatment and examination.

After considering the nature and content of the testimony proffered under

Rule 413, the district court applied Rule 403 and excluded the evidence. The

government appeals the district court’s determination.
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DISCUSSION

Congress recently enacted Federal Rule of Evidence 413, along with Rules

414 and 415, as part of the Violent Crime Control and Law Enforcement Act of

1994, Pub. L. No. 103-322, tit. XXXII, § 320935(a), 108 Stat. 1796, 2136 (1994). 

This case presents important questions regarding the way in which Rule 413

interacts with Rule 403. The latter rule gives trial courts discretionary authority

to exclude certain evidence when the prejudicial value of the evidence

substantially outweighs its probative value. See Fed. R. Evid. 403.

We review legal interpretations of the federal rules of evidence de novo.

See Reeder v. American Economy Ins. Co., 88 F.3d 892, 894 (10th Cir. 1996). In

this appeal, we first define the requirements for admission of evidence under Rule

413. We then conclude, following United States v. Meacham, 115 F.3d 1488

(10th Cir. 1997), that Rule 403 applies to evidence introduced under Rule 413. 

Finally, we explain how the Rule 403 balancing test should proceed. We

conclude that the district court made no error of legal interpretation in this case. 

Having so found, we review the court’s Rule 403 decision for an abuse of

discretion, see United States v. Davis, 40 F.3d 1069, 1076 (10th Cir. 1994), and

find none.
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I. Requirements of Rule 413

Rule 413 provides in pertinent part:

In a criminal case in which the defendant is accused of an offense of 

sexual assault, evidence of the defendant's commission of another

offense or offenses of sexual assault is admissible, and may be

considered for its bearing on any matter to which it is relevant.

Fed. R. Evid. 413(a). Thus, evidence offered under Rule 413 must meet three

threshold requirements before a district court can admit it. A district court must

first determine that “the defendant is accused of an offense of sexual assault.” 

Id.; cf. Fed. R. Evid. 413(d) (defining an “offense of sexual assault”); Frank v.

County of Hudson, 924 F. Supp. 620, 625 (D.N.J. 1996) (noting similar

requirement for Rule 413's companion Rule 415). Second, the court must find

that the evidence proffered is “evidence of the defendant’s commission of another

offense of . . . sexual assault.” Fed. R. Evid. 413(a); see also Frank, 924 F. Supp.

at 625. The district court implicitly recognized these requirements in its hearing

on the motion in limine and in its written opinion. See United States v. Guardia,

955 F. Supp. 115, 117, 119 (D.N.M. 1997); Tr. of Mot. Hr’g, December 30, 1996,

passim.

The third requirement, applicable to all evidence, is that the evidence be

relevant. See Fed. R. Evid. 402 (“Evidence which is not relevant is not

admissible.”). The rules define relevant evidence as evidence that “ha[s] any

tendency to make the existence of any fact that is of consequence to the
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determination of the action more probable or less probable than it would be

without the evidence.” Fed. R. Evid. 401. A defendant with a propensity to

commit acts similar to the charged crime is more likely to have committed the

charged crime than another. Evidence of such a propensity is therefore relevant. 

See Old Chief v. United States, 117 S. Ct. 644, 650 (1997) (“Propensity evidence

is relevant . . . .”) (citations and internal quotation marks omitted); Michelson v.

United States, 335 U.S. 469, 475-76 (1948) (noting the “admitted probative

value” of propensity evidence).

In most cases, though not in Rule 413 cases, the court must exclude

propensity evidence despite its acknowledged relevance. Rule 404(b) prohibits

the use of prior acts of a person “to prove the character of a person in order to

show action in conformity therewith.” Fed. R. Evid. 404(b). Under Rule 413,

however, evidence of a defendant’s other sexual assaults may be admitted “for its

bearing on any matter to which it is relevant.” Fed. R. Evid. 413 (emphasis

added). Thus, Rule 413 supersedes Rule 404(b)’s restriction and allows the

government to offer evidence of a defendant’s prior conduct for the purpose of

demonstrating a defendant’s propensity to commit the charged offense. See

United States v. Meacham, 115 F.3d 1488, 1491 (10th Cir. 1997); United States v.

Roberts, 88 F.3d 872, 876 (10th Cir. 1996) (per curiam); United States v. Larson,

112 F.3d 600, 604 (2d Cir. 1997) (finding that the similarly worded Rule 414
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allows evidence of a propensity to commit child molestation). The district court

made this same conclusion, see Guardia, 955 F. Supp. at 118, and did not err in

its legal interpretation.

We turn now to the court’s relevance finding in this particular case. We

will not upset the court’s determination that evidence is relevant absent a clear

abuse of discretion. See United States v. Alexander, 849 F.2d 1293, 1301 (10th

Cir. 1988). If believed, the Rule 413 evidence in this case would demonstrate

that the defendant has a propensity to take advantage of female patients by

touching them in a salacious manner and making comments while doing so. 

Because the defendant’s propensity is to engage in conduct which closely matches

that alleged in this case, the evidence is probative of his guilt. The district court

implicitly recognized the relevance of this evidence by acknowledging that it

contains some, albeit limited, probative value to the government’s case. See

United States v. Guardia, 955 F. Supp. 115, 118 (D.N.M. 1997). We find no

abuse of discretion. The evidence proffered in this case, therefore, satisfies Rule

413's three threshold requirements.

II. The Applicability of Rule 403

The district court also properly concluded that the Rule 403 balancing test

applies to evidence submitted under Rule 413. This conclusion is a legal

determination that we review de novo. See Reeder v. American Economy Ins.
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Co., 88 F.3d 892, 894 (10th Cir. 1996). Rule 403 allows a district court to

exclude evidence “if its probative value is substantially outweighed by the danger

of unfair prejudice” or other enumerated considerations, including confusion of

the issues or undue delay. Fed. R. Evid. 403. Rule 403 applies to all evidence

admitted in federal court, except in those rare instances when other rules make an

exception to it. See, e.g., Fed. R. Evid. 609(a)(2) (mandating that prior

conviction of a witness be admitted for impeachment purposes if prior crime

involved dishonesty).

The wording of Rule 413 has led some commentators to infer that it creates

an exception for itself to the Rule 403 balancing test. See Guardia, 955 F. Supp.

at 117 (noting scholarly debate). Rule 413 states that evidence meeting its

criteria “is admissible.” Fed. R. Evid. 413. Rule 412, on the other hand, which

also allows evidence of prior sexual behavior, states that certain evidence “is

admissible, if otherwise admissible under these rules.” Fed. R. Evid. 412(b)

(emphasis added). One could assume from this fact that because the emphasized

clause does not appear in Rule 413, Congress intended to make the introduction

of Rule 413 evidence mandatory rather than subject to the discretion of the trial

judge under Rule 403. See Judicial Conference of the United States, Report of

the Judicial Conference on the Admission of Character Evidence in Certain

Sexual Misconduct Cases, 159 F.R.D. 51, 53 (1995) (noting that the advisory
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committee believed the above position to be “arguable”).

The other rules, however, demonstrate that the difference between Rule 412

and Rule 413 is not significant. Most importantly, Rule 402, the rule allowing

admission of all relevant evidence and a rule to which the 403 balancing test

undoubtedly applies, contains language no more explicit than that in Rule 413. 

The rule states simply that “[a]ll relevant evidence is admissible.” Fed. R. Evid.

402 (emphasis added). Furthermore, when the drafters of the federal rules of

evidence alter the 403 balancing test or make it inapplicable to certain evidence,

they use language much more explicit than that found in Rule 413. See, e.g., Fed.

R. Evid. 609(a)(2) (stating that convictions involving dishonesty “shall be

admitted” for impeachment purposes); Fed. R. Evid. 609(a)(1) (requiring court to

find that the probative value of a prior conviction outweighs its prejudicial effect

on the accused).

Thus, in United States v. Meacham, 115 F.3d 1488, 1495 (10th Cir. 1997),

we found that evidence proffered under Rule 414, which concerns prior acts of

child molestation and uses language identical to Rule 413, is subject to Rule 403

balancing. See also United States v. Sumner, 119 F.3d 658, 661 (8th Cir. 1997)

(concluding that Rule 403 applies to Rule 414); United States v. Larson, 112 F.3d

600, 604-05 (2d Cir. 1997) (same). Following Meacham, and for the above

reasons, we hold that the 403 balancing test applies to Rule 413 evidence.
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III. The 403 Balancing Test and Rule 413

In accordance with the above, after the district court resolves the three

threshold issues, including a finding that the proffered evidence is relevant, it

must proceed to balance the probative weight of the Rule 413 evidence against

“the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

. . . considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Fed. R. Evid. 403. We hold that a court must perform the

same 403 analysis that it does in any other context, but with careful attention to

both the significant probative value and the strong prejudicial qualities inherent in

all evidence submitted under 413.

A. Legal Principles

Rule 413 marks a sea change in the federal rules’ approach to character

evidence, a fact which could lead to at least two different misapplications of the

403 balancing test. First, a court could be tempted to exclude the Rule 413

evidence simply because character evidence traditionally has been considered too

prejudicial for admission. Cf. Old Chief v. United States, 117 S. Ct. 644, 651

(U.S. 1997) (stating that Rule 404(b) merely “reflects . . . common law

tradition”). Second, a court could perform a restrained 403 analysis because of

the belief that Rule 413 embodies a legislative judgment that propensity evidence

regarding sexual assaults is never too prejudicial or confusing and generally
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should be admitted. See United States v. LeCompte, No. 97-1820SD, 1997 WL

781217, at *2 (8th Cir. 1997).

We find both interpretations illogical. With regard to the first position, we

note that this court refrains from construing the words and phrases of a statute--or

entire statutory provisions--in a way that renders them superfluous. See DePaoli

v. Commissioner, 62 F.3d 1259, 1264 (10th Cir. 1995); United States v. McHenry,

968 F.2d 1047, 1048 (10th Cir. 1992). Rule 413 allows for evidence that

otherwise would be excluded to be admitted. If Rule 413 evidence were always

too prejudicial under 403, Rule 413 would never lead to the introduction of

evidence. Therefore, Rule 413 only has effect if we interpret it in a way that

leaves open the possibility of admission.

This interpretation harmonizes with the Supreme Court’s comment in Old

Chief and similar statements in the advisory committee’s notes to Rules 401 and

403 that the ban on character evidence is merely an application of Rule 403 to a

recurring issue. See Old Chief, 117 S. Ct. at 651. All of the rules in Article IV

of the Federal Rules of Evidence, not just Rule 404, are “concrete applications [of

rules 402 and 403] evolved for particular situations.” Fed. R. Evid. 403 advisory

committee’s note. The fact that Congress created Rule 413 can only mean that

Congress intended to partially repeal the “concrete application” found in 404(b)

for a subset of cases in which Congress found 404(b)’s rigid rule to be
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inappropriate. That conclusion is not surprising, given the fact that propensity

evidence has a unique probative value in sexual assault trials and that such trials

often suffer from a lack of any relevant evidence beyond the testimony of the

alleged victim and the defendant. See Mark A. Sheft, Federal Rule of Evidence

413: A Dangerous New Frontier, 33 AM. CRIM. L. REV. 57, 69-70 (1995). Rule

413 is a refinement, and it exemplifies the type of evolution of Rules 402 and 403

that one can expect to find in Article IV.

While Rule 413 removes the per se exclusion of character evidence, courts

should continue to consider the traditional reasons for the prohibition of character

evidence as “risks of prejudice” weighing against admission. For example, a

court should, in each 413 case, take into account the chance that “a jury will

convict for crimes other than those charged--or that, uncertain of guilt, it will

convict anyway because a bad person deserves punishment.” Old Chief, 117 S.

Ct. at 650 (citations and internal quotation marks omitted). A court should also

be aware that evidence of prior acts can have the effect of confusing the issues in

a case. See Michelson v. United States, 335 U.S. 469, 476 (1948). These risks

will be present every time evidence is admitted under Rule 413. See United

States v. Patterson, 20 F.3d 809, 814 (10th Cir. 1994) (“Evidence of prior bad

acts will always be prejudicial.”). The size of the risk, of course, will depend on

the individual case.
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With regard to the second potential misapplication of Rule 413, the

government urges us to approve a lenient 403 balancing test. We agree that Rule

413, like all other rules of admissibility, favors the introduction of evidence. See

140 Cong. Rec. H8968-01, H8991 (Aug. 21, 1994) (statement of S. Molinari)

(“The presumption is in favor of admission.”), quoted in United States v. Enjady,

No. 96-2285 (10th Cir. 1998). Rule 413, however, contains no language that

supports an especially lenient application of Rule 403. Furthermore, courts apply

Rule 403 in undiluted form to Rules 404(a)(1)-(3), the other exceptions to the ban

on propensity evidence. Those rules allow a criminal defendant to use character

evidence of himself, his victim, or in limited circumstances, of other witnesses, in

order to “prov[e] action in conformity therewith.” Fed. R. Evid. 404(a)(1-3). 

Like Rule 413, these rules carve out exceptions to Rule 404(a) and reflect a

legislative judgment that certain types of propensity evidence should be admitted. 

Courts have never found, however, that because the drafters made exceptions to

the general rule of 404(a), they tempered 403 as well. See United States v.

Mangiameli, 668 F.2d 1172, 1176 (10th Cir. 1982) (finding that trial court did not

abuse its discretion in excluding Rule 404(a)(3) evidence); United States v.

Schatzle, 901 F.2d 252, 256 (2d Cir. 1990) (upholding exclusion of Rule

404(a)(2) evidence).

Similarly, under Rule 404(b), evidence of a person’s prior acts can be used
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for other purposes other than proving character. Despite Rule 404(b)’s legislative

judgment in favor of admission, Rule 403 applies with all its vigor to Rule 404(b)

evidence. See Huddleston v. United States, 485 U.S. 681, 687-88 (1988) (noting

that rules of admissibility in Article IV are subject to “general strictures . . . such

as Rules 402 and 403”).

When balancing Rule 413 evidence under 403, then, the district court

should not alter its normal process of weighing the probative value of the

evidence against the danger of unfair prejudice. In Rule 413 cases, the risk of

prejudice will be present to varying degrees. Propensity evidence, however, has

indisputable probative value. That value in a given case will depend on

innumerable considerations, including the similarity of the prior acts to the acts

charged, see United States v. Edwards, 69 F.3d 419, 436 (10th Cir. 1995), cert.

denied, 116 S. Ct. 2497 (1996), the closeness in time of the prior acts to the

charged acts, see id., the frequency of the prior acts, the presence or lack of

intervening events, see United States v. Wacker, 72 F.3d 1453, 1469 (10th Cir.),

cert. denied, 117 S. Ct. 136 (1996), and the need for evidence beyond the

testimony of the defendant and alleged victim. Because of the sensitive nature of

the balancing test in these cases, it will be particularly important for a district

court to fully evaluate the proffered Rule 413 evidence and make a clear record of

the reasoning behind its findings. See United States v. Roberts, 88 F.3d 872, 881
1

 To the extent that the district court discussed potential delay caused by a number of

additional witnesses, the record reveals that it was motivated by a fear that the jury would be

confused by the additional testimony.

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(10th Cir. 1996) (per curiam) (requiring findings for analysis of Rule 404(b)

evidence under Rule 403).

B. Balancing in the Present Case

The decision to exclude evidence under Rule 403 is within the sound

discretion of the trial court, and will be reversed only upon a showing of a clear

abuse of that discretion. See Wolfgang v. Mid-America Motorsports, Inc., 111

F.3d 1515, 1526 (10th Cir. 1997). During the motion hearing and in its written

decision, the district court made clear that its overriding, if not exclusive, concern

was the danger that the proffered testimony would confuse the issues in the case,

thereby misleading the jury.1

 The district court properly exercised its discretion

in determining that the potential for confusion of the issues substantially

outweighed the probative value of the proffered testimony.

We must consider the trial court’s ruling in light of the unusual nature of

this case. This trial undoubtedly will focus upon whether the manner in which

Dr. Guardia examined the complaining patients was medically appropriate. 

Unlike other sexual assault cases, resolution of credibility issues alone will not

enable the jury to decide whether Dr. Guardia’s act was proper. Rather, the jury

will be required to evaluate expert testimony regarding the medical propriety of
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each examination to determine whether Dr. Guardia acted within the scope of his

patients’ consent.

Because so much depends upon the medical propriety of Dr. Guardia’s

conduct towards Carla G. and Francesca L., the fact that Dr. Guardia treated the

four additional witnesses under similar but distinct circumstances creates a

substantial risk of jury confusion. Admission of the testimony would transform

the trial of two incidents into the trial of six incidents, each requiring description

by lay witnesses and explanation by expert witnesses. The subtle factual

distinctions among these incidents would make it difficult for the jury to separate

the evidence of the uncharged conduct from the charged conduct. See 23 Charles

Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure, § 5412,

at 273 (Supp. 1997) (noting the potential for confusion when Rule 413 evidence is

admitted).

Expert testimony explaining the propriety of Dr. Guardia’s conduct as to

each witness would exacerbate the risk of confusion by multiplying conflicting

and overlapping testimony. Although the evidence proffered under Rule 413 is

probative of Dr. Guardia’s disposition and supports the testimony of the

complaining witnesses, we cannot conclude that the district court exceeded the

bounds of permissible choice by excluding the evidence under the circumstances

of this case.
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Finally, we reject the government’s contention that the district court erred

by failing to engineer a method of presenting the evidence to minimize the risk of

jury confusion. In Hill v. Bache Halsey Stuart Shields Inc., 790 F.2d 817, 826-27

(10th Cir. 1986), we held that the district court abused its discretion under Rule

403 because it excluded evidence that had a high probative value even though its

prejudicial effect could have been minimized through a “less elaborate” method

of presentation. In this case, however, the evidence that the district court

excluded is not realistically susceptible to any less elaborate presentation than

that proposed by the government. Thus, the district court did not abuse its

discretion by failing to require such a presentation.

CONCLUSION

Evidence must pass several hurdles before it can be admitted under Rule

413. First, the defendant must be on trial for “an offense of sexual assault.” 

Second, the proffered evidence must be of “another offense of . . . sexual

assault.” Third, the trial court must find the evidence relevant--that is, the

evidence must show both that the defendant had a particular propensity, and that

the propensity it demonstrates has a bearing on the charged crime. Fourth and

finally, the trial court must make a reasoned, recorded finding that the prejudicial

value of the evidence does not substantially outweigh its probative value.

In this case, the district court’s colloquy with the attorneys at the motion
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hearing and the court’s written decision reflect its thoughtful consideration of

both the relevance of the Rule 413 evidence and the policies behind Rule 403. 

Given the deference due district courts in making Rule 403 determinations, we

find that the district court did not abuse its discretion in concluding under Rule

403 that the risk of jury confusion substantially outweighed the probative value of

the Rule 413 evidence proffered by the government. Therefore, the decision of the

district court is AFFIRMED.