USA v. Counts

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
United States of America, )
)
Plaintiff, ) ORDER ON DEFENDANT’S MOTIONS
) IN LIMINE
vs. )
)
Roger Ricky Counts, ) Case No. 3:18-cr-00141
)
Defendant. )
Trial in the above-captioned case is scheduled to commence on February 5, 2020. Now
before the Court are two motions in limine filed by Defendant Roger Ricky Counts on September
24, 2019. Doc. Nos. 36, 38. An Indictment charges Counts with (1) Aggravated Sexual Abuse of
a Child, in violation of 18 U.S.C. §§ 2241(c), 1153; (2) Tampering with a Witness, in violation of
18 U.S.C. § 1512(b)(3); and (3) Failure to Report Child Abuse, in violation of 18 U.S.C. § 1169.
Doc. No. 1. In particular, the Government alleges that Counts sexually abused M.D., a then eight-
year-old boy, while he was in foster care in Counts’ home. Counts’ first motion in limine seeks to
exclude evidence that he previously exposed himself to D.D., another then eight-year-old boy in
foster care in his home. His second motion in limine requests the exclusion of testimony from Dr.
Stacey Benson, a clinical psychologist. The Government responded in opposition to both motions
on October 8, 2019. Doc. Nos. 44, 45.
I. RULE 414 EVIDENCE
On August 27, 2019, the Government filed a notice of intent to use evidence pursuant to
Rule 414 of the Federal Rules of Evidence. Doc. No. 35. In that notice, the Government states
that it intends to present evidence at trial that Counts exposed himself to D.D., who was
approximately eight years old at the time, while D.D. was in foster care in Counts’ home. M.D.,
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the alleged victim in the case at bar, was also in foster care in Counts’ home at the time this
purported exposure occurred. Counts contests the admission of evidence regarding the alleged
exposure on two grounds – namely, that exposing himself to a minor child is not an act of child
molestation as defined in Rule 414 of the Federal Rules of Evidence, and that the evidence is not
alternatively admissible under Rule 404(b).
“Evidence of prior bad acts is generally not admissible to prove a defendant’s character or
propensity to commit a crime.” United States v. Keys, 918 F.3d 982, 986 (8th Cir. 2019) (citing
Fed. R. Evid. 404(b)). Rule 414 provides an exception, reading, “In a criminal case in which a
defendant is accused of child molestation, the court may admit evidence that the defendant
committed any other child molestation. The evidence may be considered on any matter to which
it is relevant.” Fed. R. Evid. 414(a). The rule goes on to define “child molestation” as a crime
under federal or state law involving:
(A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child;
(B) any conduct prohibited by 18 U.S.C. chapter 110;
(C) contact between any part of the defendant’s body—or an object—and a child’s
genitals or anus;
(D) contact between the defendant's genitals or anus and any part of a child’s body;
(E) deriving sexual pleasure or gratification from inflicting death, bodily injury, or
physical pain on a child; or
(F) an attempt . . . to engage in conduct described in subparagraphs (A)-(E).
Fed. R. Evid. 414(d)(2). Chapter 109A of Title 18 proscribes sexual abuse, while chapter 110
prohibits sexual exploitation and other abuse of children. See generally 18 U.S.C. §§ 2241-2248
(chapter 109A); 18 U.S.C. §§ 2251-2260a (chapter 110).
Counts contends that the act of exposing himself to D.D. does not meet Rule 414(d)(2)’s
definition of child molestation. At the outset, subparagraphs (C)-(E) are clearly inapplicable
because, as alleged, Counts did not make physical contact with D.D. or inflict death, bodily injury,
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or physical pain. Similarly, none of the conduct criminalized by chapter 110 of Title 18, which
focuses primarily on child pornography, is present here. The only remotely analogous statutes are
found in chapter 109A, prohibiting various forms of sexual abuse. See 18 U.S.C. §§ 2241-2244.
But either a “sexual act” or “sexual contact” is necessary to meet each of these statutes’ elements.
See id. Chapter 109 defines those two terms to require some form of contact or touching. See 18
U.S.C. § 2246(2)-(3). To the extent the Government argues that Counts engaged in an attempt to
commit any of the offenses listed in Rule 404(d)(2)(A)-(E) when he allegedly exposed himself to
D.D., there is no evidence in the record to support an inference that Counts intended, on that
occasion, to engage in the types of hands-on offenses that the rule’s definition of child molestation
contemplates. See United States v. Fool Bear, 903 F.3d 704, 708-09 (8th Cir. 2018). Therefore,
Counts’ act of exposing himself to D.D. does not meet Rule 414(d)(2)’s definition of child
molestation.
The Government nevertheless contends that this evidence should be admitted under Rule
414 even if it does not meet the technical definition of child molestation, relying on United States
v. Sumner. In that case, the Eighth Circuit Court of Appeals affirmed the admission of evidence
under Rule 414 that a defendant “allegedly groped a thirteen-year-old babysitter’s thigh” and
“patted a sleeping seven-year-old girl.” United States v. Sumner, 204 F.3d 1182, 1187 (8th Cir.
2000). The Government points out that admission of that evidence was upheld even though patting
a sleeping child does not meet Rule 414’s definition of child molestation. But the opinion is
ambiguous in this regard because it is unclear whether the alleged patting was “sexual contact” as
defined by 18 U.S.C. § 2246(3). The Court is unwilling to depart from the text of Rule 414 based
on such a hair-splitting distinction. Furthermore, Sumner is distinguishable in that groping a
thirteen-year-old child’s thigh does meet the rule’s definition of child molestation, and both
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offenses in that case involved physical contact with minors. In short, Congress articulated an
elaborately specific definition for child molestation, and the Court finds no reason to stray from
that definition here. See United States v. Joubert, 980 F. Supp. 2d 47, 51 (D.N.H. 2013) (excluding
under Rule 414 “unusual (and unsettling)” evidence of inappropriate sexual behavior that did not
meet the definition of child molestation). Accordingly, evidence that Counts exposed himself to
D.D. is not admissible as evidence of prior acts of child molestation pursuant to Rule 414(a).1
With that resolved, Counts correctly notes that when evidence of prior acts is inadmissible
under Rule 414, then Rule 404(b)’s more general standard applies. But the strictures of Rule
404(b) apply only to extrinsic—not intrinsic—evidence. United States v. Buckner, 868 F.3d 684,
687 (8th Cir. 2017). The Government asserts that the exposure evidence is intrinsic to the crime
charged in the Indictment. “[I]ntrinsic evidence includes both evidence that is inextricably
intertwined with the crime charged as well as evidence that merely ‘completes the story’ or
provides context to the charged crime.” United States v. Young, 753 F.3d 757, 770 (8th Cir. 2014)
(citing United States v. Hall, 604 F.3d 539, 543-44 (8th Cir. 2010); United States v. Johnson, 463
F.3d 803, 808 (8th Cir. 2006)). “Nonetheless, the probative value of intrinsic evidence must not
be substantially outweighed by its prejudicial effect.” United States v. Betts, 911 F.3d 523, 529
(8th Cir. 2018) (citing United States v. O’Dell, 204 F.3d 829, 834 (8th Cir. 2000)).
Evidence that Counts exposed himself to D.D. is intrinsic to proving M.D.’s alleged abuse.
To start, the evidence is relevant because it tends to prove that Counts knowingly engaged in
inappropriate sexual conduct in the presence of minors. Even more so because Counts claimed in
1 The Court notes that the Government must show good cause if it wishes to introduce any other
evidence of child molestation because fewer than 15 days remain before trial. See Fed. R. Evid.
414(b).
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law enforcement interviews that the frequent instances where M.D. allegedly observed him naked
or partially clothed were accidental. Evidence that Counts knowingly exposed himself to D.D.
would therefore bear directly on the elements of Aggravated Sexual Abuse of a Child. See United
States v. Fleck, 413 F.3d 883, 890 (8th Cir. 2005) (“when evidence of other crimes is so blended
or connected[;] . . . or explains the circumstances thereof; or tends logically to prove any element
of the crime charged, it is admissible as an integral part of the immediate context of the crime
charged.”) (citation omitted). Further, D.D. and M.D. lived in the same house during the same
time period under the same person’s foster care. Evidence that Counts inappropriately exposed
himself to D.D. during that time period provides context for the the circumstances that led to the
instant alleged offense. It also serves to “complete the story” that the Government intends to
present to the jury, including a purported escalating pattern of sexual behavior towards
prepubescent boys.
The probative value of this evidence, moreover, is not outweighed by a danger of unfair
prejudice. “Unfair prejudice means an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.” United States v. Watson, 895 F.3d 589,
595 (8th Cir. 2018) (quoting United States v. Lupino, 301 F.3d 642, 646 (8th Cir. 2002)). As
stated, the exposure evidence is probative of Counts’ intent. At the same time, the evidence is not
so inflammatory as to provoke an emotional or improper decision from a jury, especially when
compared to the allegations contained in the Indictment. In a similar vein, there is little risk of
creating a sideshow in a manner that would mislead or confuse the jury because the evidence
pertains to a lone instance of exposure that is distinct from the alleged sexual abuse. Accordingly,
evidence that Counts exposed himself to D.D. is admissible as intrinsic to the crime charged.
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And even if the evidence were extrinsic, Rule 404(b) is satisfied. “Rule 404(b) ‘excludes
evidence of specific bad acts used to circumstantially prove a person has a propensity to commit
acts of that sort.’” United States v. Guzman, 926 F.3d 991, 999 (8th Cir. 2019). Such evidence is
admissible, however, “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)(2). “For evidence of prior bad acts to be admissible, the evidence must be: (1) relevant to
a material issue; (2) proved by a preponderance of the evidence; (3) higher in probative value than
in prejudicial effect; and (4) similar in kind and close in time to the crime charged.” United States
v. Wright, 866 F.3d 899, 905 (8th Cir. 2017) (quoting United States v. Young, 753 F.3d 757, 768
(8th Cir. 2014)). “Rule 404(b) is a rule of inclusion, prohibiting only evidence that tends solely to
prove a defendant’s criminal disposition.” United States v. Thomas, 760 F.3d 879, 883 (8th Cir.
2014) (citation omitted).
As explained above, the exposure evidence is relevant to intent, and its probative value is
higher than any prejudicial effect. Addressing the second element, the Court at this early stage
need only be satisfied that a reasonable jury could conclude by a preponderance of the evidence
that Counts exposed himself to D.D. See United States v. Armstrong, 782 F.3d 1028, 1034-35
(8th Cir. 2015) (explaining conditional relevance standard for Rule 404(b) evidence). The
testimony the Government anticipates D.D. will provide, in addition to statements Counts offered
to law enforcement, are sufficient to allow a reasonable jury to find by a preponderance of the
evidence that the exposure occurred. The last element, factual and temporal similarity, is likewise
met because Counts allegedly exposed himself to D.D. within the same one-year period that
M.D.’s abuse purportedly occurred. As a result, the exposure evidence is alternatively admissible
as extrinsic evidence under Rule 404(b).
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II. EXPERT TESTIMONY
In a letter dated September 10, 2019 and sent via email, the Government informed Counts’
counsel that it intended to call Dr. Stacey Benson, a clinical psychologist, to testify as an expert
witness. Trial at that time was scheduled for October 22, 2019. The letter lists in general terms
the topics Dr. Benson will testify to and also explains her qualifications. Counts objects to the
disclosure on two grounds, including timeliness and lack of specificity as to Dr. Benson’s opinions
regarding this case. He asks for an order barring Dr. Benson from testifying.
Rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure controls the Government’s
obligation to disclose expert witness testimony planned for use in its case in chief. To comply, the
Government must “disclose, upon request, a summary ‘describing the expert witness’s opinions,
the bases and reasons for those opinions, and the witness’s qualifications.’” United States v.
Spotted Horse, 914 F.3d 596, 601 (8th Cir. 2019) (alterations omitted) (quoting Fed. R. Crim. P.
16(a)(1)(G)). If the disclosure requirement is violated, a “district court may order the government
to disclose the evidence, grant a continuance, prohibit use of the evidence at trial, or ‘enter any
other order that is just under the circumstances.’” United States v. Shepard, 462 F.3d 847, 866
(8th Cir. 2006) (quoting Fed. R. Crim. P. 16(d)(2)).
Addressing timeliness first, the Government’s September 10, 2019 disclosure did not run
afoul of Rule 16. The letter arrived six weeks before trial was scheduled to commence, providing
ample opportunity for Counts to hire his own expert if he desired. Counts then moved for, and the
Court granted, a continuance of more than three months, further allowing him to determine his
response to Dr. Benson’s planned testimony. See Doc. No. 49. There is no hard and fast cutoff
for disclosures under Rule 16(a)(1)(G)—the Eighth Circuit has found even last-minute or midtrial
disclosures within the acceptable margin of a district court’s discretion. See, e.g., United States v.
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Ortega, 150 F.3d 937, 944 (8th Cir. 1998); United States v. Appelby, 975 F.2d 1384, 1387 (8th
Cir. 1992). Counsel for Counts first became aware of the Government’s intent to call an expert on
June 19, 2019 and has had sufficient time since then to respond. The Government’s disclosure
was therefore timely.
Moving to the substance of the Government’s disclosure, the Court finds that any
deficiency does not rise to a level that warrants exclusion of Dr. Benson’s testimony. The
disclosure letter is admittedly sparse. To be sure, Dr. Benson’s qualifications are set out in
sufficient detail, explaining her work as a clinical psychologist who regularly assesses and treats
sex offenders, as well as her relevant nonprofit and teaching endeavors. There is likewise an
adequate level of specificity regarding the topics that Dr. Benson will testify to at trial, including
common behavioral patterns of adults that commit sex offenses against children. Missing, though,
is a summary of the opinions that Dr. Benson will reach regarding Counts when testifying, or how
she formed those opinions.
This deficiency is similar to an expert disclosure issue the Eighth Circuit recently
confronted. In United States v. Kessler, the Government called a police detective to testify as an
expert witness in a methamphetamine trafficking trial. United States v. Kessler, 926 F.3d 490, 491
(8th Cir. 2019). Included in the Government’s Rule 16(a)(1)(G) disclosure was that the detective
would testify to “the dollar values of methamphetamine.” Id. But the disclosure did not state the
opinion the detective would ultimately reach as to the value of the methamphetamine the defendant
possessed or how the detective reached that determination. The district court nonetheless denied
the defendant’s request to exclude the detective’s testimony, instead ordering the Government to
disclose the dollar amount over a one-hour recess during trial. The Eighth Circuit reasoned that
the district court was within its discretion because the defendant’s attorney “was not blindsided”
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by the detective’s testimony when considering that the dollar value of methamphetamine had been
an anticipated testimony topic in the Rule 16 disclosure. Id. at 492. The court went on to note that
the defendant’s counsel “never explained . . . why only a more drastic remedy like exclusion
would cure any harm.” Id. Accordingly, the Eighth Circuit affirmed the district court’s refusal to
exclude the detective’s testimony.
Like Kessler, the Government has disclosed the anticipated topics that Dr. Benson will
testify to in sufficient detail to prevent Counts from being “blindsided” at trial. The Government
additionally noted in its October 2019 response brief to this motion that it would “disclose, within
the next few days, an interview report detailing statements made by Dr. Benson to the FBI and
counsel for the government.” Doc. No. 44, p. 7. Counts also has not articulated why a less severe
remedy, such as disclosure of Dr. Benson’s opinions, is inadequate. Exclusion of Dr. Benson’s
testimony is therefore unwarranted. With that said, Counts is entitled to the benefit of a complete
Rule 16 disclosure. To the extent the Government has not done so already, the Court orders the
disclosure of the opinions that Dr. Benson intends to reach as to Counts during her testimony, as
well as the bases and reasons for those opinions.
III. CONCLUSION
The Court has carefully reviewed the entire record, the parties’ filings, and the relevant
legal authority. For the reasons above, Counts’ motion in limine to exclude evidence that he
allegedly exposed himself to D.D. (Doc. No. 36) is GRANTED IN PART and DENIED IN
PART. The Government may not introduce evidence that Counts exposed himself to D.D. as
evidence of a prior act of child molestation pursuant to Federal Rule of Evidence 414. That
evidence is admissible, however, as intrinsic to the crime charged or, alternatively, as extrinsic
evidence under Federal Rule of Evidence 404(b). Counts’ motion in limine to exclude Dr.
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Benson’s testimony (Doc. No. 38) is DENIED. If not done already, the Court ORDERS the
Government to provide a summary of Dr. Benson’s opinions particular to this case and the bases
and reasons for those opinions by 5:00 PM on Thursday, January 30, 2020.
IT IS SO ORDERED.
Dated this 28th day of January, 2020.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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