USA v. Thomas

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
ORDER
The Defendant is charged in this case with three counts of aggravated sexual abuse in
Indian Country, in violation of 18 U.S.C. §§ 2241(c), 2246(2)(D), 1151, and 1152 and one count
of abusive sexual contact in violation of 18 U.S.C. §§ 2241(c), 2246(3), 1151, and 1152.
Specifically, the Defendant is charged with sexually abusing his girlfriend’s daughter, C.J.,
between on or about January 1, 2020 and January 16, 2021, when she was approximately eight
(8) years old.
Now before the court are the Government’s notice of intent to admit evidence of other
child molestation under Fed. R. Evid. 414 [Docket No. 65] and the Defendant’s motion to
exclude evidence pursuant to Fed. R. Evid. 414 and 403 [Docket No. 74]. The Government
intends to introduce evidence of two other alleged minor victims of the Defendant not charged in
this case.1 The Defendant was married to both of the alleged minor victims’ mothers.
1 The Government submitted the audio recording of the interview with Witness #1 and the
audio/video recording of the interview with Witness #2. The Government also submitted reports
generated by the FBI regarding each of the two 414 witness.
UNITED STATES OF AMERICA,
Plaintiff,
v.
JEFFREY BRENT THOMAS
Defendant.
Case No. CR-21-290-RAW
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Witness #1 is now eighteen (18) years old and alleges that she was sexually abused by the
Defendant when she was between six (6) and eight (8) years old – so between nine (9) and
twelve (12) years ago. Witness #2 is now sixteen (16) years old and alleges that she was
sexually abused by the Defendant when she was approximately eight (8) years old – so
approximately eight (8) years ago.
While propensity evidence is generally prohibited under Rule 404(a), under Rules 413(a)
and 414(a), the court is to “‘liberally’ admit evidence of prior uncharged sex offenses” in sexual
assault and child molestation cases. United States v. Benally, 500 F.3d 1085, 1090 (10th Cir.
2007) (emphasis added) (citing United States v. Meacham, 115 F.3d 1488, 1492 (10th Cir.
1997)). Before the court admits such evidence, however, it must determine that: “(1) the
defendant is accused of a crime involving sexual assault or child molestation, (2) the evidence
proffered is evidence of the defendant’s commission of another offense or offenses involving
sexual assault or child molestation, and (3) the evidence is relevant.” Id. (citing United States v.
McHorse, 179 F.3d 889, 897-98 (10th Cir. 1999); United States v Guardia, 135 F.3d 1326, 1328
(10th Cir. 1998)). Relevant evidence is evidence that 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.
Of course, relevant Rule 413 and 414 evidence is also “subject to the Rule 403 balancing
test, which permits the exclusion of relevant evidence ‘if its probative value is substantially
outweighed by the danger of unfair prejudice.’” Id. (citing Guardia, 135 F.3d at 1329).
Nevertheless, “the exclusion of relevant evidence under Rule 403 should be used infrequently,
reflecting Congress’ legislative judgment that the evidence ‘normally’ should be admitted.”
United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998) (citations omitted). In the context
of sexual assault evidence, Rule 403 requires the court to consider:
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1) how clearly the prior act has been proved; 2) how probative the evidence is of the
material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4)
whether the government can avail itself of any less prejudicial evidence. When analyzing
the probative dangers, a court considers: 1) how likely is it such evidence will contribute
to an improperly-based jury verdict; 2) the extent to which such evidence will distract the
jury from the central issues of the trial; and 3) how time consuming it will be to prove the
prior conduct.
Id. (citation omitted). In considering the first factor, the court “must make a preliminary finding
that a jury could reasonably find by a preponderance of the evidence that the ‘other act’
occurred.” Id. (citation omitted).
In analyzing probativeness under the second Enjady factor, the court also considers the
following five subfactors: “(1) the similarity of the prior acts and the charged acts, (2) the time
lapse between the other acts and the charged acts, (3) the frequency of the prior acts, (4) the
occurrence of intervening events, and (5) the need for evidence beyond the defendant’s and
alleged victim’s testimony.” Benally, 500 F.3d at 1090-91 (citing Guardia, 135 F.3d at 1331)).
“In applying the Enjady test, ‘no single factor is dispositive.” United States v. Mercer,
653 Fed.Appx. 622, 626 (10th Cir. 2016) (citing United States v. Mann, 193 F.3d 1172, 1175
(10th Cir. 1999)). As instructed in Benally, this court must make a clear record of its reasoning
behind its findings as to whether the evidence survives the Rule 403 balancing test. Benally, 500
F.3d at 1091.
Threshold Requirements
In this case, the Defendant is accused of four crimes involving sexual assault or child
molestation, specifically, three counts of aggravated sexual abuse and one count of abusive
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sexual contact of C.J. who had not attained the age of 12 years.2 The evidence proffered is
evidence of the Defendant’s commission of other offenses involving sexual assault or child
molestation, specifically the sexual abuse by the Defendant of two minors who were his step-
daughters. Witness # 1 was between six and eight years old, and Witness #2 was approximately
8 years old at the time of the allegations. The allegations are also strikingly similar to the
allegations by C.J. in this case. The evidence is relevant, and if it is believed, it would tend to
make more probable the likelihood that the Defendant committed the acts charged herein.3
Enjady Factors
Pursuant to the first Enjady factor, the court examines how clearly the prior act has been
proved. As stated above, the court must consider the evidence and make a preliminary finding as
to whether it is sufficient that a jury could reasonably find by a preponderance of the evidence
that the prior act occurred. The Defendant argues that the Government has not presented
sufficient evidence to support a finding by a jury that the prior acts occurred. Specifically, he
argues that the only evidence is the alleged victim’s own statements and that there is no
corroborating evidence.
The court has listened to and considered the audio and video recordings of the two 414
witnesses. The court has also reviewed the reports generated by the FBI. Despite the
Defendant’s arguments to the contrary, the court finds that the evidence is sufficient that a
2 “‘[C]hild’ means a person below the age of 14.” Fed. R. Evid. 414(d)(1). “Child molestation”
is defined broadly and includes inter alia violations of federal and state criminal sexual assault statutes,
“contact between any part of the defendant’s body—or an object—and a child’s genitals or anus,”
“contact between the defendant’s genitals or anus and any part of a child’s body,” “deriving pleasure or
gratification from inflicting death, bodily injury, or physical pain on a child,” or an attempt or conspiracy
to engage in any such conduct. Fed. R. Evid. 414(d)(2).
3 “Evidence of other similar crimes involving sexual assault and child molestation was
determined by Congress to be probative of a defendant’s propensity to commit such crimes.” Benally,
500 F.3d at 1093 (citing Meacham, 115 F.3d at 1492).
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reasonable jury could find by a preponderance of the evidence that the Defendant sexually
abused the two 414 witnesses. The Defendant’s arguments may, of course, be advanced at trial.
Pursuant to the second Enjady factor in determining the probativeness of the other acts,
the court considers the five factors delineated above.4 First, the other acts are similar to the
charged act. The Defendant was dating C.J.’s mother and married to the two 414 witness’
mothers. The abuse they each described was very similar. Second, the time lapse between the
alleged acts is not substantial. C.J. alleges the Defendant abused her between five and six years
ago. The 414 witness’s allegations are eight years ago and between nine and twelve years ago.
All of the allegations of abuse are within a very close time period.
Moreover, “as a practical matter, evidence of other sex offenses by the defendant is often
probative and properly admitted, notwithstanding very substantial lapses of time in relation to
the charged offense or offenses.” Meacham, 115 F.3d at 1492 (citations omitted). As the
Government argues, in contrast to the decades-old acts allowed in Meacham and Benally, the
small time gap between the alleged abuse of C.J. and the 414 witnesses supports the admission
of the prior uncharged acts.
As to the third subfactor, three alleged victims in the span of seven years or so is
certainly frequent enough to support admission. As to the fourth subfactor, the parties have not
alerted the court to any intervening events. As to the fifth subfactor, considering that there are
no eyewitnesses or physical evidence in this case, the need for evidence beyond the Defendant’s
and C.J.’s testimony also supports admission.
4 Again, those subfactors are: “(1) the similarity of the prior acts and the charged acts, (2) the time
lapse between the other acts and the charged acts, (3) the frequency of the prior acts, (4) the occurrence of
intervening events, and (5) the need for evidence beyond the defendant’s and alleged victim’s testimony.”
Benally, 500 F.3d at 1090-91.
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As to the third Enjady factor, whether the Defendant sexually abused C.J. – the central
issue in this case – is in serious dispute. As to the fourth Enjady factor, the Government states
that it is unaware of any other less prejudicial evidence available to it. Finally, the court finds
that proposed evidence will not likely contribute to an improperly-based jury verdict, will not
distract the jury from the central issues of the trial, and will not be overly time consuming.
As stated herein, the court finds that each of the Enjady factors and subfactors support
admission of the proposed evidence. Accordingly, the Defendant’s motion to exclude evidence
pursuant to Fed. R. Evid. 414 and 403 [Docket No. 74] is hereby DENIED.
IT IS SO ORDERED this 4 th day of March, 2026.
______________________________________
THE HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA
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