## 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. Kell y, United States Attorney, with her on the briefs), Office of the U.S. Attorne y for the District of New Mexico, Albuquerque, New Mexico, appearing for Plai ntiff-Appellant. Leigh A. Kenny (Charles W. Daniels and Nancy Hollan der with her on the brief), Freedman, Boyd, Daniels, Hollander, Guttmann & Gold berg, 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 M exico returned an indictment charging defendant David Guardia with tw o counts of sexual abuse in- 2 -

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. S TAT
. ANN . § 30-9-11(E) (Michie Supp. 1997) and two counts of battery in vi olation of N.M. S TAT
. ANN
. § 30-3-4 (Michie 1978). These charges arose from t he defendant’s allegedly improper behavior during gynecological exams he per formed at Kirtland Air Force Base in October and November of 1995. Dr. Gu ardia moved in limine to exclude evidence proffered by the United States und er Federal Rule of Evidence 413. The district court granted Dr. Guardia’s moti on, finding under Federal Rule of Evidence 403 that the risk of jury confusion sub stantially 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 th e 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 medica lly appropriate examination techniques and constituted sexual abuse. FrancescaL. alleges that Dr. Guardia- 3 -

demonstrated the sexual nature of his conduct by st ating “I love my job” during the examination. In addition, Carla G. alleges tha t Dr. Guardia called her at home and performed other acts suggesting his sexual inte rest in her. Neither of the examinations occurred in the presence of a chaperon

. In addition to offering the testimony of Carla G. a nd Francesca L., the government moved to introduce, under Rule 413, the testimony of four women who allege that Dr. Guardia abused them during gyne cological examinations in a manner similar to the alleged abuse of Carla G. and Francesca L. For example, two of the four additional witnesses also complaine d of excessive, direct clitoral contact, and one complained of similarly suggestive comments. On the other hand, the testimony of Carla G. and Francesca L. di ffers significantly in some respects from the testimony of the Rule 413 witness es. For instance, one of the witnesses complains that Dr. Guardia improperly tou ched 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 e xamination of two of the four Rule 413 witnesses. All six women had extraordinary gynecological problems that appeared to require different courses of treat ment and examination. After considering the nature and content of the tes timony proffered under Rule 413, the district court applied Rule 403 and e xcluded the evidence. The government appeals the district court’s determinati on.- 4 - DISCUSSION Congress recently enacted Federal Rule of Evidence 413, along with Rules 414 and 415, as part of the Violent Crime Control a nd 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 th e way in which Rule 413 interacts with Rule 403. The latter rule gives tri al courts discretionary authority to exclude certain evidence when the prejudicial va lue of the evidence substantially outweighs its probative value. See Fed. R. Evid. 403. We review legal interpretations of the federal rule s 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 a dmission 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 testshould proceed. We conclude that the district court made no error of l egal interpretation in this case. Having so found, we review the court’s Rule 403 dec ision for an abuse of discretion, see United States v. Davis , 40 F.3d 1069, 1076 (10th Cir. 1994), and find none.- 5 -

I. Requirements of Rule 413 Rule 413 provides in pertinent part: In a criminal case in which the defendant is accuse d of an offense of sexual assault, evidence of the defendant's commiss ion of another offense or offenses of sexual assault is admissible , and may be considered for its bearing on any matter to which i t is relevant. Fed. R. Evid. 413(a). Thus, evidence offered underRule 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 a n offense of sexual assault.” Id. ; cf. Fed. R. Evid. 413(d) (defining an “offense of sexual assault”); F rank v. County of Hudson , 924 F. Supp. 620, 625 (D.N.J. 1996) (noting simil ar requirement for Rule 413's companion Rule 415). Se cond, the court must find that the evidence proffered is “evidence of the def endant’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 t hese 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 Mo t. 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- 6 -

determination of the action more probable or less p robable than it would be without the evidence.” Fed. R. Evid. 401. A defen dant with a propensity to commit acts similar to the charged crime is more li kely to have committed the charged crime than another. Evidence of such a pro pensity is therefore relevant. See Old Chief v. United States , 117 S. Ct. 644, 650 (1997) (“Propensity evidence is relevant . . . .”) (citations and internal quota tion 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 co urt must exclude propensity evidence despite its acknowledged releva nce. Rule 404(b) prohibits the use of prior acts of a person “to prove the cha racter 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 ass aults may be admitted “for its bearing on anymatter to which it is relevant.” Fed. R. Evid. 41 3 (emphasis added). Thus, Rule 413 supersedes Rule 404(b)’s re striction and allows the government to offer evidence of a defendant’s priorconduct for the purpose of demonstrating a defendant’s propensity to commit th e charged offense. See United States v. Meacham , 115 F.3d 1488, 1491 (10th Cir. 1997); United Stat es v. Roberts , 88 F.3d 872, 876 (10th Cir. 1996) (per curiam); U nited States v. Larson , 112 F.3d 600, 604 (2d Cir. 1997) (finding that the similarly worded Rule 414- 7 -

allows evidence of a propensity to commit child mol estation). 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 thi s particular case. We will not upset the court’s determination that evide nce 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 advanta ge of female patients by touching them in a salacious manner and making comm ents while doing so. Because the defendant’s propensity is to engage in conduct which closely matches that alleged in this case, the evidence is probativ e of his guilt. The district court implicitly recognized the relevance of this evidenc e by acknowledging that it contains some, albeit limited, probative value to t he 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 thi s 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.- 8 -

Co. , 88 F.3d 892, 894 (10th Cir. 1996). Rule 403 allo ws a district court to exclude evidence “if its probative value is substan tially outweighed by the danger of unfair prejudice” or other enumerated considerat ions, 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 ins tances 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 impeachmentpurposes if prior crime involved dishonesty). The wording of Rule 413 has led some commentators t o infer that it creates an exception for itself to the Rule 403 balancing t est. 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, stat es that certain evidence “is admissible, if otherwise admissible under these rul es .” 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 intend ed 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 o f the Judicial Conference on the Admission of Charact er Evidence in Certain Sexual Misconduct Cases , 159 F.R.D. 51, 53 (1995) (noting that the advisory- 9 -

committee believed the above position to be “arguab le”). The other rules, however, demonstrate that the diff erence 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 wh ich the 403 balancing test undoubtedly applies, contains language no more expl icit than that in Rule 413. The rule states simply that “[a]ll relevant evidenc e is admissible .” Fed. R. Evid. 402 (emphasis added). Furthermore, when the drafte rs of the federal rules of evidence alter the 403 balancing test or make it in applicable to certain evidence, they use language much more explicit than that foun d in Rule 413. See , e.g. , Fed. R. Evid. 609(a)(2) (stating that convictions involv ing 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, wh ich concerns prior acts of child molestation and uses language identical to Ru le 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); Uni ted States v. Larson , 112 F.3d 600, 604-05 (2d Cir. 1997) (same). Following Meach am , and for the above reasons, we hold that the 403 balancing test applie s to Rule 413 evidence.- 10 -

III. The 403 Balancing Test and Rule 413 In accordance with the above, after the district co urt resolves the three threshold issues, including a finding that the prof fered 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 i ssues, 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 d ifferent misapplications of the 403 balancing test. First, a court could be tempte d to exclude the Rule 413 evidence simply because character evidence traditio nally 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 “refle cts . . . common law tradition”). Second, a court could perform a restr ained 403 analysis because of the belief that Rule 413 embodies a legislative jud gment that propensity evidence regarding sexual assaults is never too prejudicial or confusing and generally- 11 -

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 regar d to the first position, we note that this court refrains from construing the w ords 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 State s v. McHenry , 968 F.2d 1047, 1048 (10th Cir. 1992). Rule 413 all ows for evidence that otherwise would be excluded to be admitted. If Rul e 413 evidence were always too prejudicial under 403, Rule 413 would never lea d to the introduction of evidence. Therefore, Rule 413 only has effect if w e interpret it in a way that leaves open the possibility of admission. This interpretation harmonizes with the Supreme Cou rt’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 I V of the Federal Rules of Evidence, not just Rule 404 , are “concrete applications [of rules 402 and 403] evolved for particular situation s.” 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- 12 -

inappropriate. That conclusion is not surprising, given the fact that propensity evidence has a unique probative value in sexual ass ault trials and that such trials often suffer from a lack of any relevant evidence b eyond the testimony of the alleged victim and the defendant. See Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier , 33 A M
. C RIM
. 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 char acter evidence, courts should continue to consider the traditional reasons for the prohibition of character evidence as “risks of prejudice” weighing against a dmission. For example, a court should, in each 413 case, take into account t he 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 punish ment.” 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 e ffect 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 und er Rule 413. See United States v. Patterson , 20 F.3d 809, 814 (10th Cir. 1994) (“Evidence of p rior bad acts will always be prejudicial.”). The size of th e risk, of course, will depend on the individual case.- 13 -

With regard to the second potential misapplication of Rule 413, the government urges us to approve a lenient 403 balanc ing 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.”), quot ed inUnited States v. Enjady , No. 96-2285 (10th Cir. 1998). Rule 413, however, c ontains 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 crimin al defendant to use character evidence of himself, his victim, or in limited circ umstances, 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 propensi ty 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 we ll. 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) ev idence); United States v. Schatzle , 901 F.2d 252, 256 (2d Cir. 1990) (upholding exclu sion of Rule 404(a)(2) evidence). Similarly, under Rule 404(b), evidence of a person’ s prior acts can be used- 14 -

for other purposes other than proving character. D espite Rule 404(b)’s legislative judgment in favor of admission, Rule 403 applies wi th 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 subje ct to “general strictures . . . such as Rules 402 and 403”). When balancing Rule 413 evidence under 403, then, t he district court should not alter its normal process of weighing the probative value of the evidence against the danger of unfair prejudice. I n Rule 413 cases, the risk of prejudice will be present to varying degrees. Prop ensity evidence, however, has indisputable probative value. That value in a give n 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. Bec ause of the sensitive nature of the balancing test in these cases, it will be parti cularly important for a district court to fully evaluate the proffered Rule 413 evid ence and make a clear record of the reasoning behind its findings. See United States v. Roberts , 88 F.3d 872, 8811 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 thejury would be confused by the additional testimony. - 15 - (10th Cir. 1996) (per curiam) (requiring findings f or 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 motio n hearing and in its written decision, the district court made clear that its ov erriding, if not exclusive, concern was the danger that the proffered testimony would c onfuse the issues in the case, thereby misleading the jury. 1 The district court properly exercised its discret ion in determining that the potential for confusion of the issues substantially outweighed the probative value of the proffered tes timony. 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 m edically appropriate. Unlike other sexual assault cases, resolution of cr edibility issues alone will not enable the jury to decide whether Dr. Guardia’s actwas proper. Rather, the jury will be required to evaluate expert testimony regar ding the medical propriety of- 16 -

each examination to determine whether Dr. Guardia a cted 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 factthat Dr. Guardia treated the four additional witnesses under similar but distinc t circumstances creates a substantial risk of jury confusion. Admission of t he testimony would transform the trial of two incidents into the trial of six in cidents, each requiring description by lay witnesses and explanation by expert witnesse s. The subtle factual distinctions among these incidents would make it di fficult for the jury to separate the evidence of the uncharged conduct from the char ged conduct. See 23 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Pract ice and Procedure , § 5412, at 273 (Supp. 1997) (noting the potential for confu sion when Rule 413 evidence is admitted). Expert testimony explaining the propriety of Dr. Gu ardia’s conduct as to each witness would exacerbate the risk of confusion by multiplying conflicting and overlapping testimony. Although the evidence p roffered 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 evide nce under the circumstances of this case.- 17 -

Finally, we reject the government’s contention thatthe district court erred by failing to engineer a method of presenting the e vidence to minimize the risk of jury confusion. In Hill v. Bache Halsey Stuart Shi elds Inc. , 790 F.2d 817, 826-27 (10th Cir. 1986), we held that the district court a bused its discretion under Rule 403 because it excluded evidence that had a high pr obative value even though its prejudicial effect could have been minimized throug h a “less elaborate” method of presentation. In this case, however, the eviden ce that the district court excluded is not realistically susceptible to any le ss elaborate presentation than that proposed by the government. Thus, the distric t court did not abuse its discretion by failing to require such a presentatio n. 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 evi dence relevant--that is, the evidence must show both that the defendant had a pa rticular propensity, and that the propensity it demonstrates has a bearing on the charged crime. Fourth and finally, the trial court must make a reasoned, reco rded finding that the prejudicial value of the evidence does not substantially outwei gh its probative value. In this case, the district court’s colloquy with th e attorneys at the motion- 18 -

hearing and the court’s written decision reflect it s 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 disc retion in concluding under Rule 403 that the risk of jury confusion substantially o utweighed the probative value of the Rule 413 evidence proffered by the government. Therefore, the decision of the district court is AFFIRMED.