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Second Circuit Rejects Novel Due Process Challenge to Rule Permitting Evidence of Prior Sexual Assaults

The Second Circuit joined its sister circuits and upheld the constitutionality Federal Rule of Evidence 413, which renders admissible propensity evidence about the defendant in sexual assault cases.  In United States v. Schaffer, 15-2516-cr (Walker, Cabranes, Berman[1]) the Circuit rejected as a matter of first impression the defendant’s argument that Rule 413 violates the Due Process Clause of the Fifth Amendment.  The Court also reviewed its jurisprudence on “custodial” interrogation in the course of affirming the admissibility of incriminating statements the defendant made to law enforcement agents prior to his arrest.

As is so often the case in the realm of sex crimes involving juveniles, the facts of the case are heart-breaking and one cannot read them without feeling great sorrow about what has happened to the defendant’s victims.  In March 2012, Gregory Schaffer responded to a Craigslist advertisement posted by a fifteen-year-old girl in Brooklyn seeking an afterschool job.  Schaffer invited the girl to his retail store in New Jersey for a job interview where he forced her to try on bathing suits while molesting her and then sexually assaulted her on his desk.  A school counselor reported the assault and in the course of the ensuing investigation, Schaffer’s office building was searched by nine federal agents.  During the search, Schaffer agreed to a short interview with two of the agents.  The agents notified Schaffer that he was not under arrest and did not handcuff or physically restrain him during the interview. When Schaffer asked whether he should have an attorney present the agents informed him of his right to an attorney, but he decided to continue the interview without one.  Schaffer did ask on two separate occasions whether he could leave to pick up some money from an attorney in order to purchase medication.  Schaffer did not indicate that the attorney represented him or that he was suffering from a medical emergency.  The agents denied his requests, explaining that his departure would create a security issue because the agents conducting the search had placed evidence all over the floor, blocking the doorway.  Over the course of the one-hour interview, Schaffer made several incriminating statements regarding the alleged assault.  At the conclusion of the interview, Schaffer was placed under arrest, handcuffed, and for the first time, Mirandized. 

In July 2012, Schaffer was indicted for coercing and enticing a minor to travel in interstate commerce to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b).  Prior to trial, Schaffer moved to suppress the statements he made during his pre-arrest interview, arguing that he made them during a custodial interrogation without having first received a Miranda warning.  The District Court denied the motion, holding that the interview was not “custodial” within the meaning of Miranda v. Arizona.[2] 

During his trial, the government moved in limine to admit four videos recovered from Schaffer’s office computer during a forensic search.  The videos depicted him sexually assaulting a girl between the ages of eight and nine and molesting her while she tried on swimsuits and sexually assaulting her.  The videos also showed Schaffer alone in a hotel room with a twelve- or thirteen-year-old girl while forcing her to try on bathing suits and sit naked on the bed.  Schaffer opposed the motion on the grounds that the videos were unfairly prejudicial under Rule 403 and that Rule 413 violated the Due Process Clause.  The District Court rejected both arguments and admitted the videos at trial.  Ultimately, Schaffer was convicted and sentenced to 300 months’ imprisonment.  Schaffer appealed the District Court’s ruling on both motions.

Judge Cabranes, writing for the panel, first addressed Schaffer’s motion to suppress his pre-arrest statements.  The Court provided a brief overview of its jurisprudence on “custodial” interrogation within the meaning of Miranda, explaining that the ultimate inquiry for determining whether a person was in “custody” such that his self-incriminating statements would be inadmissible “is whether a reasonable person would have understood law enforcement agents’ restraint on his freedom to equal the degree associated with formal arrest.”  Courts must look to a variety of factors when conducting this inquiry, including:   (1) the duration of the interrogation; (2) the location of the interrogation; (3) whether the suspect volunteered for the interview; (4) whether the officers used physical restraints on the suspect; (5) whether the agents were armed and brandishing their weapons; and (6) whether the suspect was informed he was free to leave.

Applying these factors, the Court determined that Schaffer’s interview did not constitute a “custodial” interrogation, and as such, his self-incriminating statements were admissible even though he had not been Mirandized prior to questioning.  The panel adopted the District Court’s findings of fact, including that Schaffer volunteered for the interview, he was not handcuffed, he was informed he was not under arrest, and  “there was no evidence that Schaffer asked for an attorney” or that the agents denied such a request. 

The Court rejected Schaffer’s arguments.  It first dismissed the fact that a large number of agents were present during the interview, noting that it has previously held that this factor is not dispositive and explaining that while there were nine officers present, only two conducted the interview.   The Court then turned to the agents’ refusal to let Schaffer leave his office during the search, concluding that a reasonable person in his position would not have viewed this as a restriction equivalent to a formal arrest.  The Court relied heavily on the agents’ testimony that they denied the request to protect the integrity of the ongoing search, which suggested that Schaffer’s detention would be “temporary and brief” and would end once the search was complete.  The Court also remarked that Schaffer’s request to leave was “trivial,” suggesting that if it had been tied to the need to address an emergency, the panel’s analysis may have been different.

The Court next considered Schaffer’s constitutional challenge to Rule 413.  Rule 413 provides that “[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.”  Fed. R. Evid. 413(a).  The gravamen of Schaffer’s argument was that the common-law tradition of prohibiting the use of prior bad acts evidence to establish propensity is so fundamental to the criminal justice system that the admission of such propensity evidence pursuant to Rule 413 violates fundamental conceptions of justice.  As noted by the panel, the Supreme Court has defined the scope of due process very narrowly, and has been especially hesitant to expand due process rights beyond the specific protections enumerated in the Bill of Rights.   In order to succeed on his constitutional challenge, Schaffer would have to establish a sufficiently consistent historical practice of barring such evidence to meet this high bar.

The Court conceded that as a general matter, U.S. courts have a long-standing practice of prohibiting propensity evidence.  Nonetheless, the Court noted that the historical record with respect to admitting propensity evidence in sex crime prosecutions is mixed.  Although this lack of conclusive historical evidence was a sufficient ground on which to reject Schaffer’s constitutional challenge, the Court went on to consider an independent rationale to uphold the constitutionality of Rule 413—the fact that the admission of evidence under the rule is subject to Rule 403 balancing.  The Court reasoned that Rule 413 essentially creates a presumption of probativeness for evidence of prior sexual assaults.[3]  Under the rule, however, a court must still consider whether the evidence’s potential to prejudice the jury substantially outweighs its probative value, thereby protecting defendants’ right to fundamental fairness in the exercise of justice. 

Having rejected Schaffer’s constitutional arguments, the Court took up Schaffer’s final argument on appeal—that the videos were unfairly prejudicial under Rule 403 and should not have been admitted.  Schaffer argued that the probative value of the videos was negligible in relation to their potential prejudice because:  (1) the significant age differential between the girls in the video and the victim in this case undermined the inference that he had a sexual predilection for girls of a certain age; (2) the fact that there was video of Schaffer forcing the victim to try on swimsuits rendered unnecessary additional corroborating evidence of this practice; and (3) Schaffer did not raise a credibility or consent defense at trial. 

The panel agreed with the District Court that the videos were highly probative of Schaffer’s guilt, because they tended to demonstrate his intent to engage in sexual acts with the victim at the time he asked her to travel to New Jersey.  Schaffer challenged the sufficiency of the government’s evidence with respect to this element at trial, and the videos demonstrated his established practice of inviting girls to meet with him alone in order to sexually assault them.   This was especially true in light of Schaffer’s repeated pattern of asking such girls to try on bathing suits during the assaults.  The Court further noted that the statute under which Schaffer was charged criminalizes enticing all children under the age of eighteen, and despite the difference in ages between Schaffer’s victims, they all fell within this category.

The Court also rejected Schaffer’s arguments that the prejudicial effect of the video was unfair in light of the relative youth of the victims depicted in the videos and their graphic nature.  The Court found that there was no observable difference in the ages of the victims based on the videos, and the government limited any potential prejudice by limiting the presentation of this graphic content to short excerpts.  The Court further held that the District Court correctly instructed the jury that the videos could be considered for any purpose, and reduced the risk of prejudice by including an instruction that Schaffer was not being charged for the conduct depicted in the videos and that the videos were not sufficient to prove him guilty of the crimes with which he was charged.

With Schaffer, the Second Circuit has now joined the Eighth, Ninth, and Tenth Circuits—every circuit to have considered the issue—in upholding the constitutionality of Rule 413.  It is a rare thing to declare a rule of evidence unconstitutional.  In essence, the defendant here sought to “constitutionalize” Federal Rule of Evidence 404(b), which prohibits a court from admitting “evidence of a crime, wrong or other act . . . to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”  The defendant’s argument, if accepted, would convert routine evidentiary rulings into decisions of constitutional dimension.  The Court declined to follow this path. 

The panel also cited with approval the Seventh Circuit’s decision in United States v. Julian,[4] which affirmed the constitutionality of Rule 414, a companion rule to Rule 413 that permits the use of propensity evidence in child molestation cases.  This uniformity of judicial opinion, accompanied with the Court’s refusal to consider Schaffer’s argument that recent studies have called into question the probative value of such propensity evidence,[5] suggests that the use of propensity evidence in cases involving sexual misconduct will continue absent an unlikely legislative change.

Schaffer also illustrates the high bar defendants face in establishing “custodial” interrogation.  Although the facts of this case are hardly sympathetic, Schaffer did inquire about his right to counsel and was twice denied permission to leave the interview with law enforcement before making the incriminating statements at issue.  Nonetheless, the Court concluded that this was insufficient to show that he understood himself to be subject to restraints akin to a formal arrest.  The panel’s suggestion that the outcome might have been different if Schaffer had asked to leave in order to address an emergency situation and been denied further underscores the extent to which courts expect defendants to resist speaking with law enforcement before their Miranda rights will be triggered.  It seems as if an interview conducted outside of the police precinct will be halted only upon an unmistakable request for an attorney or a refusal to answer questions.  It also will further encourage law enforcement to make productive use of the time while a search of a defendant’s office or home is being conducted; there is a neutral basis to deny the defendant’s request to leave (he is not free to go, but for a permissible reason) and in the meantime the questioning can continue.

-By Jackie Bonneau and Harry Sandick


[1] Judge Richard M. Berman of the United States District Court for the Southern District of New York, sitting by designation.

[2] 384 U.S. 436 (1966).

[3] The Court declined to consider Schaffer’s arguments that this presumption was not supported by scientific evidence, noting that the wisdom of the rule had no bearing on the Court’s evaluation of whether it violated the fundamental principles of due process.

[4] 427 F.3d 471 (7th Cir. 2005).

[5] See, e.g. Tamara Rice Lave & Aviva Orenstein, Empirical Fallacies of Evidence Law:  A Critical Look at the Admission of Prior Sex Crimes, 81 U. Cin. L. Rev. 795 (2013).