United States of America, Plaintiff-appellee, v. Kelvin Sloan, Defendant-appellant, 141 F.3d 1182 (9th Cir. 1998)

MEMORANDUM^* 

Kelvin Sloan appeals his jury conviction and sentence for aggravated sexual abuse in violation of 18 U.S.C. §§ 2241(a) (1) and 1153, and burglary in violation of 18 U.S.C. §§ 13 and 1153 and Ariz .Rev.Stat. § 13-1507. Sloan argues that the trial should have been transferred to the Prescott Division for a jury pool representative of Sloan's ethnicity. Sloan also claims that the district court erred in admitting testimony of a prior rape attempt. As a result, Sloan argues that the district court's decision should be overturned and he should be retried. For the reasons that follow, we affirm the district court.

The Refusal To Re-transfer

This case was originally set for trial in Prescott. Subsequently, the district court sua sponte re-designated the case for trial in Phoenix. Although the district court considered a motion by Sloan to transfer the case back to the Prescott Division and a motion for reconsideration of this issue, it denied Sloan's motions. Sloan claims that when the district court held his trial in Phoenix instead of Prescott, it violated his rights to equal protection and a jury drawn from a fair cross-section of the community as guaranteed by the Fifth and Sixth Amendments and the Amended Jury Selection Plan for the District of Arizona. Sloan is a Native American and lives on the Navajo Indian Reservation in Arizona located within the Prescott Division. According to Sloan, holding the trial in Phoenix virtually guaranteed that no Native Americans would be on the jury because of the small percentage of Native Americans in the Phoenix Division.

Questions of law involving the constitutionality of a statute or rule are reviewed de novo. United States v. Davis, 36 F.3d 1424, 1434 (9th Cir. 1994), cert. denied sub nom. Williams v. United States, 513 U.S. 1171, 115 S. Ct. 1147, 130 L. Ed. 2d 1106 (1995). We review the denial of a motion to transfer a trial for abuse of discretion. United States v. Herbert, 698 F.2d 981, 984 (9th Cir.), cert. denied, 464 U.S. 821, 104 S. Ct. 87, 78 L. Ed. 2d 95 (1983).

The maintenance of divisions in the District of Arizona withstood our scrutiny in Herbert after we applied the test for determining the constitutionality of jury selection under the Fifth and Sixth Amendments. See Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979). Further, on the record before us, we are unable to find support for Sloan's contention that the transfer of the case from Prescott to Phoenix constituted a systematic exclusion of Native Americans from his jury. See United States v. Etsitty, 130 F.3d 420 (9th Cir. 1997) (concluding that the record did not support a finding of systematic exclusion of Native Americans from juries but noting with concern that the District of Arizona's local rule 1.1 could lead to the systematic exclusion of Native Americans from juries). Sloan has not provided evidence of the percentage of trials that the district court transfers from Prescott to Phoenix pursuant to local rule 1.1.³ 

Here, the district court adequately explained its reasons for refusing Sloan's request to transfer the case to Prescott. Using the criteria set forth in United States v. Betancourt, 734 F.2d 750 (11th Cir. 1984), the district court considered (1) the convenience of the defendant, (2) the convenience of the witnesses, and (3) the prompt administration of justice in making its decision. ER 5 at 2; see Fed. R. Crim. P. 18 ("The court shall fix the place for trial within the district with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice ."). Based on the discussion by the district court as to why it denied Sloan's motion to transfer the trial to Prescott, coupled with the district court's statement that it considers the merits of where to designate trial on a case-by-case basis, ER 5 at 6, we cannot conclude that it abused its discretion.

The Admission Of Testimony About A Prior Rape Attempt

The district court admitted a witness' testimony that Sloan had tried to rape her under Federal Rules of Evidence 404(b) and 413. Rule 404(b) provides for the admission of evidence of a prior bad act for a purpose such as identity. Fed.R.Evid. 404(b); see Huddleston v. United States, 485 U.S. 681, 685, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988) (prior bad act evidence may only be admitted if it "bears upon a relevant issue in the case such as motive, opportunity or knowledge."). In instructing the jury before the witness' testimony was heard and again before deliberations, the district court directed the jury to consider the testimony solely for "identity".⁴ 

In addition, the witness' testimony met the four-part test we use to determine whether prior bad act evidence is admissible under Rule 404(b): (1) there was sufficient evidence based on her credibility to support the conclusion that Sloan committed the other act; (2) the other act occurred two years before the assault on the victim; (3) the conduct was similar in that it was a sexual assault and Sloan used similar language and behavior in both cases; and (4) the act was introduced to prove the identity of the assailant. See United States v. Bracey, 67 F.3d 1421, 1432 (9th Cir. 1995) (stating the four-part test). Further, the district court determined that the prejudicial effect of this evidence did not outweigh its probative value. See Fed.R.Evid. 403 (allowing relevant evidence to be excluded if, inter alia, the danger of unfair prejudice is greater than the probative value). We do not find the decision to admit the witness' testimony to be an abuse of the district court's discretion. See United States v. Robertson, 15 F.3d 862, 869 (9th Cir. 1994) (the district court's admission of prior bad act evidence is reviewed under the abuse of discretion standard). Consequently, her testimony was properly admitted under Rule 404(b).

Rule 413 allows evidence of a defendant's commission of an offense of sexual assault when the defendant is accused of an offense of sexual assault in a criminal proceeding. Fed.R.Evid. 413. Although the district court stated that it was admitting the witness' testimony under Rule 413, we find that because of the district court's instructions to the jury it only admitted the testimony pursuant to Rule 404(b).⁵  As a result, since the district court limited the jury's consideration of the witness' testimony for Rule 404(b) purposes only, we do not reach the constitutionality of Rule 413.

AFFIRMED.