Court addresses FRE 414 and trial issues; expands applicability of obstruction of justice enhancement

United States v. Perrault, No. 19-2184, 2021 WL 1556616 (10th Cir. Apr. 21, 2021) Defendant Arthur Perrault was a pedophile priest who abused many boys over the course of his priesting career, which spanned three decades. Then in the early 1990s, when he became the subject of some investigative journalism, Mr. Perrault fled to Morocco for 25 years. The Moroccans made an exception to their typical no-extradition policy in 2017 and Perrault came back to face seven counts of sex abuse. o The conviction and sentence were affirmed. FRE 414 issues: There were several 414 witnesses where fewer could have made the same point--the Tenth said that the number of witnesses "gave them pause" but they still allowed it. Jurors are presumed to understand instructions to tailor use of excessive propensity evidence in a legally sound manner. Unlike the Eighth Circuit, the Tenth won’t set maximum number of Rule 414 witnesses that district courts can allow. Jury selection: The jury selection process had several issues, including the denial of a motion for mistrial after one juror shared that she was a survivor of sex abuse herself, a confession that garnered applause from the venire. In addition, many jurors were familiar with the case because of the publicity, and some were disappointed Catholics, but everyone promised they could be fair and impartial, which satisfied the Tenth. The fact that at least 1/3 of the prospective jurors were excused for cause doesn’t mean the remaining ones couldn’t do the job and stay impartial. Jury Instructions: No plain error existed with jury instructions that lumped multiple counts into a single instruction. The district court was supposed to submit the indictment with the first jury instruction, but it was somehow mysteriously omitted when actually submitted to the jury. The Court held that the error was not invited because defense counsel thought it was included, but eventually says that defense counsel still could have objected to the omission. Moreover, defense counsel agreed to the other instructions that combined counts. The Tenth disagreed that the instructions presented jury unanimity problems and/or double jeopardy problems even while admitting they “weren’t ideal” because the court read the indictment aloud twice during trial and the government’s closing clarified distinct acts. Obstruction of Justice Enhancement: Perrault’s flight to Morocco didn’t fall within USSG 3C1.1’s definition of obstruction, which requires obstructive conduct “during the investigation, prosecution, or sentencing” with commentary specifically noting that the adjustment cannot apply based on a defendant’s “avoiding or fleeing from arrest.” So the Tenth decided to adopt a new, unargued application consistent with the 7th and 2nd Circuits—"failure to return voluntarily to stand trial." Denial of motions to continue and for mistrial: No abuse of discretion where the district court denied a 3rd motion to continue. This huge trial occurred within 6 months of the indictment. Also, no abuse of discretion where the district court denied mistrial after the government, in attempting to impeach a character witness, made reference in questioning to the fact that Mr. Perrault was incarcerated. Curative instructions heal all wounds!