USA v. Roubideaux

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff 4:22-cr-40033
vs.
SKY THOMAS ROUBIDEAUX, MEMORANDUM
Defendant AND ORDER
Pending before the Court is Defendant's Motion to exclude evidence the
Government seeks to introduce pursuant to F.R.E. 404(b).(Doc. 30, 39). The
Government argues the evidence is admissible under the Rule.(Doc. 36-2). For the
reasons that follow, the Court grants the Defendant's motion.
I. Background
Roubideaux is charged with a violation of 18 U.S.C. § 2422(b), attempted
enticement of a minor using the internet. Law enforcement conducted a sting
operation at the March 2022 Summit League Basketball Tournament in Sioux
Falls. Defendant responded to a message from an undercover officer purporting to
be a 15-year-old boy living at home with his parents. Defendant was apprehended
when he appeared at the arranged meeting place. He agreed to a polygraph exam
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and was told afterwards that he had been deceptive in his responses about having
sex with a child in the past.
During his interview with an investigator following the polygraph, Defendant
stated that he had had consensual sex with two 16-year-old males previously. The
Government seeks to introduce evidence ofone ofthe encounters pursuant to F.R.E.
404(b) as other acts evidence.(Doc. 36-2). The defense has objected and supplied
additional facts for the Court's consideration,(Doc. 30, 39), and a brief(Doc. 42).
The additional evidence was gleaned from a transcript ofthe interview conducted in
conjunction with the polygraph of Defendant.(Doc. 39).
The supplemental information about Defendant's prior act is that he was 20
or 21 years old, met a group of gay men at a lake outside of Rapid City, and had a
consensual sexual encounter with an individual in the group. The person was
drinking a beer and Defendant assumed he was 21 years old. Later he found out
the individual was 16 years old. There was no indication of social media
involvement such as texting or intemet. Apparently, this was the first time
Roubideaux met or had contact with the individual. According to Defendant, the
event occurred approximately two years prior to the allegations at bar.
The Defense argues this evidence should be excluded under F.R.E. 404(b)
because it is not relevant and will create substantial unfair prejudice, citing F.R.E.
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403. The Government responds that the evidence is proper under F.R.E. 404(b),
primarily to establish Defendant's intent, which is in issue. (Doc. 36-2).
2. Legal Standard:
F.R.E. 404(b) and 403 currently read as follows:
Rule 404. Character Evidence; Other Crimes, Wrongs or Acts
...(b) Other Crimes, Wrongs,or Acts.
(1)Prohibited Uses. Evidence of any other crime, wrong, or act is not
admissible to prove a person's character in order to show that on a
particular occasion the person acted in accordance with the character.
(2)Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.
Fed. R. Evid. 404(b).
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste
of Time,or Other Reasons
The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more ofthe following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.
Fed. R. Evid. 403.
Many cases in the Eighth Circuit set forth the requirements for admission of
F.R.E. 404(b) evidence. Recently, the Eighth Circuit described the standard for
admission of such evidence in United States v. Atkins, F.4th ,2022 WL
16627069, *6(8th Cir. 11/2/22). The court stated that F.R.E. 404(b)evidence
"must be(1)'relevant to a material issue';(2)'similar in kind and not overly
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remote in time to the crime charged'; and(3)'supported by sufficient evidence."
Id.(quoting United States v. Contreras, 816 F.3d 502, 511 (8th Cir. 2016)). The
court added that "Rule 404(b) evidence is subject to Rule 403" and may be
excluded "if its probative value is substantially outweighed by a danger of...
unfair prejudice." Id. (quoting F.R.E. 403). See also United States v. Kindley,
F.4th ,2022 WL 17245115,*2(8th Cir. 11/28/22)(discussing balancing test of
F.R.E. 403 in context of F.R.E. 404(b) evidence).
Previously, the court had described the standard for F.R.E. 404(b) similarly,
but not identically, as follows:
There are four elements governing admissibility under Rule 404(b): the
evidence "must(1)be relevant to a material issue raised at trial,(2) be
similar in kind and close in time to the crime charged,(3)be supported by
sufficient evidence to support a finding by a jury that the defendant
committed the other act, and(4)not have a prejudicial value that
substantially outweighs its probative value." United States v. Johnson,439
F.3d 947,952(8th Cir. 2006)(internal quotation marks omitted). See
United States v. Nordwall, 998 F.3d 344, 347(8th Cir. 2021); United States
V. Gutierrez-Ramirez, 930 F.3d 963,967(8th Cir. 2019); United States v.
Johnson, 869 F.3d 1133, 1142(8th Cir. 2017).
In Atkins, the defendant was charged with sex trafficking of a minor in
violation of 18 U.S.C. § 1591(a). He had invited a 17-year-old runaway to live
with him and then forced her into prostitution. The trial court had admitted cell
phone videos and screenshots ofthe defendant's posts, some of which were posted
tolnstagram. 2022 WL 16627069, *6. In the videos, defendant used misogynistic
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and derogatory language.Id. The Eighth Cireuit affirmed, finding the trial court
did not abuse discretion in admitting the evidence. It showed defendant's plan to
recruit women for his profit, the language was connected to sex trafficking, and the
videos were recorded just six months before defendant reached out to the minor
victim to live with him and engage in sex with others. Id. The court found the
evidence was directly relevant. Id. In addition, the trial court had engaged in Rule
403 balancing and gave the jury a limiting instruction, meaning the evidence was
not admitted in violation of F.R.E. 403. Id.
In Nordwall, the defendant was indicted on a charge of attempted sex
trafficking, 18U.S.C.§ 1591, one count of attempted enticement of a minor, 18
U.S.C. § 2422(b), and crossing state lines to engage in illicit sexual conduct. 18
U.S.C. § 2423(b). At issue was the admissibility under F.R.E. 404(b) of four
internet searches by the defendant of"prurient pictures and videos of minor girls."
Id. at 346. The Eighth Circuit found no abuse of discretion in admitting the
evidence. First the court agreed the searches were probative ofthe defendant's
intent when he crossed state lines, and they refuted his claim he was trying to
blackmail the pimp and save the girls he planned to meet. Id. at 347. F.R.E.
404(b)(2) speeifically authorizes admission of evidence to show intent and the
internet searches were relevant to show the defendant's intent. Second, the
evidence was similar in kind to the charged crime and had occurred two weeks
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prior. Id. at 348. Third, the defendant did not challenge that he conducted the
searches. Fourth, evidence ofthe searches was not unfairly prejudicial under
F.R.E. 403 because they showed the defendant's interest in sex with minor girls.
Id.
Another recent case. United States v. Riepe, involves circumstances where
the other acts evidence demonstrates the defendant's malevolent intent. 858 F.3d
552, 561 (8th Cir. 2017). As in Roubideaux,Defendant Riepe was charged with a
violation of 18 U.S.C. § 2242(b), attempted enticement of a minor. Riepe had
pursued at least three teenaged girls (the current victim and two others)
aggressively, including at their high schools, to the point he was banned from the
schools. There was a substantial collection of internet messages with sexual
content from the defendant when he thought he was communicating with the
current victim. In fact, many ofthe texts at issue were from an undercover officer
posing as the victim.Id. at 555. The trial court admitted evidence ofthe
defendant's pursuit ofthe two other girls, one of whom testified at trial about his
internet messages and appearance at her high school, and the other who testified
about personal encounters at her workplace. Id. at 558. The Eighth Circuit found
no abuse of discretion in admitting the evidence under F.R.E. 404(b), finding it fit
the requirements ofthe test set forth in United States v. Mora,81 F.3d 781 (8th
Cir. 1996)and United States v. Aranda,963 F.2d 211 (8th Cir. 1992)(commenting
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that F.R.E. 404(b)is a rule of inclusion). The court noted that the trial court had
found the contacts with the two girls and the defendant's presence at various
locations had occurred just over a year before the current alleged offense and were
relevant to show his planning, knowledge and preparation. The trial court had
found further that the actions were similar in kind, not remote, and were supported
by sufficient evidence. Id. at 560. The court had also determined the other acts
evidence did not violate F.R.E. 403 and was not unfairly prejudicial, which the
Eighth Circuit affirmed as well. Id. at 561 (citing United States v. Pierson, 544
F.3d 933,941 (8th Cir. 2008)(trial court balanced probative value with unfair
prejudice pursuant to F.R.E. 403)).
3. Analysis
In the case at bar. Defendant is charged with a violation of 18 U.S.C. §
2422(b), as in Nordwall and Riepe. As a result, his intent is at issue. However,the
purported F.R.E. 404(b)evidence in Roubideaux's case differs from the offense for
which he was indicted in significant ways and does not show his alleged intent to
have sex with an underage male. Most important, the prior act was consensual sex
with a 16-year-old, a person old enough under South Dakota law to give consent.
S.D. Codified Laws § 22-22-7(2010). There is no evidence of aggressive pursuit
by Roubideaux. The act occurred approximately two years before the alleged act
for which he has been indicted. There was no evidence of intemet activity
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involved, as in the case at bar. The prior act occurred as a result of a chance social
encounter with another individual. Defendant states he is gay, so consensual sex
with another gay male would have little probative value on the issue of his intent in
this case, and perhaps would do little more than offend or inflame the jury.
In other respects as well, the facts ofthe Defendant's case differ
substantially from the situations described in Atkins, Nordwall and Riepe. In
Riepe, the evidence ofthe other acts was supplied by two victims who described
numerous actions by the defendant that had occurred approximately one year
before the current pursuit of a minor. In this case, Roubideaux is the only person
who can account for what occurred during this encounter because apparently no
complaint to the police was made and there was no investigation ofthe incident.
In Riepe, the other acts (contacts by defendant) were unwanted while in this case,
the other act was consensual and involved a person able to consent under South
Dakota law. In Atkins, Nordwall and Riepe the internet activity involved with the
prior acts was initiated by the defendant, while in this case, the other act did not
involve the internet and was consensual. If Roubideaux's description about the
prior act is accepted as true, it differs substantially from the allegation he currently
faces. Lack of similarity and remoteness lead to the conclusion the other act
should not be admissible F.R.E. 404(b) evidence.
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Likewise, when the balancing test of F.R.E. 403 is applied, it appears the
danger of unfair prejudice substantially outweighs the probative value ofthe
evidence. The potential for unfair prejudice is substantial if the jury hears an
account of consensual, casual, gay sex, with no context supplied. The jury's
drawing unwarranted and unfair conclusions about Defendant with respect to
character and propensity is a real possibility. Given the limited probative value of
the other acts evidence, particularly its lack of similarity to the current charge, it
must be excluded under F.R.E. 403.
Conclusion
The evidence of Defendant's prior consensual sexual encounter with a
16-year-old male two years ago is unlike the situation underlying the present
charge and its relevance is doubtfiil. Lack of similarity and length oftime between
the prior and current actions yield inadmissible F.R.E. 404(b) evidence. The
evidence would prove little if anything about an alleged intent to have sex with a
minor in the current case and poses substantial danger of unfair prejudice under
F.R.E. 403.
Accordingly, IT IS ORDERED that Defendant's Motion to Exclude the
F.R.E. 404(b)Evidence(Doc. 30, 39)offered by the Government is granted.
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Dated this day of November,2022.
BY THE COURT:
Lawrence L. Piersol
United States District Judge
ATTEST:
MATTHEW W.THELEN,CLERK
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