134 F.

3d 1427
48 Fed. R. Evid. Serv. 641

UNITED STATES of America, Plaintiff-Appellee,

v.
Kerry Neil ENJADY, Defendant-Appellant.
No. 96-2285.

United States Court of Appeals,

Tenth Circuit.
March 25, 1998.

Robert J. McDowell, Assistant Federal Public Defender, Las Cruces, NM,

for Defendant-Appellant.
Tara C. Neda, Assistant U.S. Attorney (John J. Kelly, United States
Attorney, with her on the brief), Albuquerque, NM, for Plaintiff-Appellee.
Before BALDOCK, LOGAN, and EBEL, Circuit Judges.
LOGAN, Circuit Judge.

Defendant Kerry Neil Enjady appeals his conviction by a jury of one count of
aggravated sexual abuse, in violation of 18 U.S.C. 1153, 2241(a)(1) and
2245(2)(A). Defendant asserts prejudicial error in the district court's admission,
under Fed.R.Evid. 413, of testimony about a prior rape defendant allegedly
committed, for three separate reasons: (1) the district court erroneously applied
Rule 413 before its effective date; (2) Rule 413 is unconstitutional; and (3) if
the rule is constitutional, the district court should have excluded the evidence
as unduly prejudicial under Fed.R.Evid. 403. Defendant also argues that the
district court abused its discretion in permitting the prosecution to crossexamine him concerning instances of violent contact that did not result in
criminal convictions, because his direct testimony did not place his character
for peacefulness or violence in issue.

The complaining witness, A, and defendant were both enrolled members of the
Mescalero Apache Indian Tribe and the alleged rape occurred on the

reservation. A, defendant, and others had been drinking at A's house in the late
morning and afternoon. After A either passed out or fell asleep everyone else
left the premises, but defendant later returned. A testified that she awoke to find
defendant raping her. She reported the incident and medical personnel
administered a rape kit.
3

Defendant was later arrested on other charges and interviewed by criminal

investigator Mark Chino. Defendant initially denied that he returned to A's
residence and that he had any physical contact with her. When his blood sample
provided a DNA match, however, defendant admitted having sex with A, but
argued it was consensual.

The government sought the court's permission to introduce testimony from

witness B that defendant had raped her approximately two years earlier.
Consistent with its reading of congressional intent in adopting Rule 413, the
government sought admission of B's testimony to show defendant's propensity
to rape. The court delayed ruling until after the government introduced
investigator Chino's testimony and defendant's written statement that defendant
"wouldn't ever do something like this to anyone." I R. doc. 24, Gov't Ex. 2; IX
R. 158. Applying Rule 403 balancing, the district court ruled that the testimony
of the prior rape was relevant and admissible under Rule 413. In its balancing
under Rule 403 the court considered the testimony's value both to show
propensity and to rebut defendant's statement to Chino.

* Congress originally provided that new Fed.R.Evid. 413-415 would apply only
"to proceedings commenced on or after the effective date." Pub.L. No. 103-322,
Tit. XXXII 320935(e). Rule 413 became effective on July 9, 1995. Defendant
was indicted in May 1995 and tried in June 1996. The district court concluded
that defendant's trial was "a discrete step in a criminal prosecution," IX R. 196,
and that Rule 413 applied because defendant's trial commenced after the July
1995 effective date.

Within a month after defendant's trial, however, we held in United States v.

Roberts, 88 F.3d 872, 879 (10th Cir.1996), that "rule was not intended to apply
to criminal cases already pending as of the rule's effective date." We declined to
apply Rule 413 to an indictment filed before July 1995.

In September 1996 Congress responded to Roberts, calling it an "erroneously

restrictive interpretation of the effective date language for the new rules." 142
Cong. Rec. H12051-04 (1996). Congress amended the effective date language
to provide that new Rules 413-415 "shall apply to proceedings commenced on

or after the effective date of such amendments, including all trials commenced
on or after the effective date of such amendments." Pub.L. No. 104-208, Div.
A, Tit. I, 101(a). Thus Congress overruled that part of Roberts that had
narrowly interpreted the original effective date language. The purpose and
effect of this amendment was for Rules 413-415 to apply to all trials
commenced after July 10, 1995. Fed.R.Evid. 413(e).
8

"[R]ules of pleading and proof can [ ] be altered after the cause of action arises,
and even, if the statute clearly so requires, after they have been applied in a
case but before final judgment has been entered." Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211, 229, 115 S.Ct. 1447, 1458, 131 L.Ed.2d 328 (1995) (citation
omitted); see also Landgraf v. USI Film Prods., 511 U.S. 244, 275 & n. 29, 114
S.Ct. 1483, 1502 & n. 29, 128 L.Ed.2d 229 (1994) ("the promulgation of a new
rule of evidence would not require an appellate remand for a new trial"). The
1996 amendment is the law at the time we decide defendant's direct appeal, and
we must give effect to the amendment. Olcott v. Delaware Flood Co., 76 F.3d
1538, 1547 (10th Cir.1996). We thus reject defendant's argument that Rule 413
should not have applied to his trial.

II
9

* Defendant contends that allowing B's testimony of the prior sexual assault
under Rule 413 to show propensity denied him a fair trial guaranteed by his
constitutional right to due process. He argues that admission of propensity
evidence creates the danger of convicting a defendant because he is a "bad
person," thus denying him a fair opportunity to defend against the charged
crime. See Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213,
218-19, 93 L.Ed. 168 (1948). Defendant asserts that introduction of such
evidence undermines the presumption of innocence and permits convicting him
on less than proof beyond a reasonable doubt.

10

We agree that Rule 413 raises a serious constitutional due process issue. The
rule was passed by a Congress that overrode concerns expressed by the Judicial
Conference and its Advisory Committee on the Federal Rules of Evidence and
its Advisory Committee on the Federal Rules of Criminal Procedure. A number
of commentators have expressed views on its constitutionality, several arguing
that it is unconstitutional. 1

11

In order to prove a due process violation defendant must show that Rule 413
fails the "fundamental fairness" test and "violate[s] those fundamental
conceptions of justice which lie at the base of our civil and political
institutions." Dowling v. United States, 493 U.S. 342, 352-53, 110 S.Ct. 668,

674, 107 L.Ed.2d 708 (1990) (citations and quotations omitted). The Supreme
Court has defined narrowly those infractions that violate fundamental fairness,
and declared that "[b]eyond the specific guarantees enumerated in the Bill of
Rights, the Due Process Clause has limited operation." Id. at 352, 110 S.Ct. at
674; see also United States v. Lovasco, 431 U.S. 783, 789-90, 97 S.Ct. 2044,
2048-49, 52 L.Ed.2d 752 (1977). Defendant asserts that the historic exclusion
of prior bad acts evidence to prove propensity to commit the charged crime is
so basic to our criminal justice system that it falls within the narrowly defined
"fundamental fairness" arena.
12

The Supreme Court has explained the rationale for the historical ban on use of
prior bad acts as propensity evidence:

13 state may not show defendant's prior trouble with the law, specific criminal acts,
The
or ill name among his neighbors, even though such facts might logically be
persuasive that he is by propensity a probable perpetrator of the crime. The inquiry
is not rejected because character is irrelevant; on the contrary, it is said to weigh too
much with the jury and to so overpersuade them as to prejudge one with a bad
general record and deny him a fair opportunity to defend against a particular charge.
The overriding policy of excluding such evidence, despite its admitted probative
value, is the practical experience that its disallowance tends to prevent confusion of
issues, unfair surprise and undue prejudice.
14

Michelson, 335 U.S. at 475-76, 69 S.Ct. at 218 (footnotes omitted). Despite this
strong language, various exceptions to this exclusionary rule have developed.
For example, prior bad acts evidence may be used to prove motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake or accident,
and to impeach. See, e.g., Fed.R.Ev

15

id. * 1431 404(b), 405, 406, 608 and 609; see also USSG 4A1.3 (allowing
sentence enhancement for prior criminal conduct not resulting in conviction).
Of course, Rule 403 balancing may require the district court to exclude this
relevant evidence if its admission would be fundamentally unfair. Ad. Comm.
Notes to Rule 403 (court should exclude evidence that has "an undue tendency
to suggest decision on an improper basis").

16

In passing Rule 413 Congress believed it necessary to lower the obstacles to

admission of propensity evidence in a defined class of cases. Its rationale for
sexual assault cases includes the assistance it provides in assessing credibility:

17

Similarly, sexual assault cases, where adults are the victims, often turn on

difficult credibility determinations. Alleged consent by the victim is rarely an

issue in prosecutions for other violent crimes--the accused mugger does not
claim that the victim freely handed over his wallet as a gift--but the defendant
in a rape case often contends that the victim engaged in consensual sex and
then falsely accused him. Knowledge that the defendant has committed rapes
on other occasions is frequently critical in assessing the relative plausibility of
these claims and accurately deciding cases that would otherwise become
unresolvable swearing matches.
18

140 Cong. Rec. S129901-01, S12990 (R. Dole, Sept. 20, 1994).

19

Prosecutors often have only the victim's testimony, with perhaps some physical
evidence, linking a defendant to the sexual assault. Unlike other crimes, the
defendant may raise consent as a defense--as he did here--reducing the trial to a
"swearing match" and diffusing the impact of even DNA evidence. Rule 413 is
based on the premise that evidence of other sexual assaults is highly relevant to
prove propensity to commit like crimes, and often justifies the risk of unfair
prejudice. Congress thus intended that rules excluding this relevant evidence be
removed. 140 Cong. Rec. H8968-01, H8992 (S.Molinari, Aug. 21, 1994).

20

The principal arguments that Rule 413 is unconstitutional are based, at least in
part, on the assumption that Rule 403 is inapplicable. The Rule 413(a) language
"is admissible" can be read as trumping Rule 403 and requiring admission of
such evidence in all circumstances. The legislative history, however, indicates
that the district court must apply Rule 403 balancing and may exclude such
evidence in an appropriate case. See 140 Cong. Rec. H8968-01, H8991 (S.
Molinari Aug. 21, 1994) ("In other respects, the general standards of the rules
of evidence will continue to apply, including the restrictions on hearsay
evidence and the court's authority under evidence rule 403 to exclude evidence
whose probative value is substantially outweighed by its prejudicial effect....
The presumption is in favor of admission."); id. S12990-01, S12990 (R. Dole,
Sept. 20, 1994) ("The presumption is that the evidence admissible pursuant to
these rules is typically relevant and probative, and that its probative value is not
outweighed by any risk of prejudice."); id. H5437-03, H5438 (J. Kyl, June 29,
1994) ("The trial court retains the total discretion to include or exclude this type
of evidence."). Even without reference to the legislative history, we agree with
the Eighth Circuit that adoption of this rule without any exclusion of or
amendment to Rule 403 makes Rule 403 applicable, as it is to others of the
rules of evidence. See United States v. Sumner, 119 F.3d 658, 661-62 (8th
Cir.1997) (Rule 414); see also United States v. Larson, 112 F.3d 600 (2d
Cir.1997) (same). We held in United States v. Meacham, 115 F.3d 1488, 1492
(10th Cir.1997), that Rule 414 was subject to Rule 403 balancing.

21

Thus, the narrow issue before us is whether Rule 413's presumption in favor of
admission violates fundamental fairness. The Supreme Court has not held that
admission of prior acts evidence to show propensity would necessarily violate a
defendant's right to a fair trial. The relevant opinions do, however, "stand[ ] for
the proposition that a trial is fundamentally fair, and thus consistent with due
process, when uncharged misconduct evidence is admitted for a non-character
or sentencing purpose." M. Sheft, Federal Rule of Evidence 413: A Dangerous
New Frontier, 33 Am.Crim. L.Rev. 57, 79 (1995) (emphasis added); see Estelle
v. McGuire, 502 U.S. 62, 69 & 75 n. 5, 112 S.Ct. 475, 480-81 & 484 n. 5, 116
L.Ed.2d 385 (1991) (in habeas corpus case, upholding admission of evidence
that victim suffered from "battered child syndrome" to establish intent,
expressly reserving "whether a state law would violate the Due Process Clause
if it permitted the use of 'prior crimes' evidence to show propensity to commit a
charged crime"); Dowling, 493 U.S. at 352-53, 110 S.Ct. at 674-75
(identification testimony from residential burglary victim in bank robbery case
admissible even though defendant acquitted on burglary charge; this evidence
was "at least circumstantially valuable in proving petitioner's guilt" and did not
impair trial's fundamental fairness).

22

In Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), the
Supreme Court rejected a due process challenge to Texas habitual criminal
statutes that permitted introduction during trial of a defendant's convictions for
the same or similar offense, with a limiting instruction to the jury. A partially
dissenting opinion in that case did state that "our decisions ... suggest that
evidence of prior crimes introduced for no purpose other than to show criminal
disposition would violate the Due Process Clause." Id. at 574, 87 S.Ct. at 659
(Warren, C.J., dissenting in part, concurring in part). One reason the majority in
Spencer gave for upholding the validity of the Texas statutes was that "it has
never been thought that [the Court's Due Process Clause fundamental fairness]
cases establish this Court as a rule-making organ for the promulgation of state
rules of criminal procedure." Id. at 564, 87 S.Ct. at 653-54. Rule 413 is a
federal rule, of course, and most federal procedural rules are promulgated under
the auspices of the Supreme Court and the Rules Enabling Act. But we must
recognize that Congress has the ultimate power over the enactment of rules, see
28 U.S.C. 2074, which it exercised here.

23

The due process arguments against the constitutionality of Rule 413 are that it
prevents a fair trial, because of "settled usage"--that the ban against propensity
evidence has been honored by the courts for such a long time that it "must be
taken to be due process of law," Hurtado v. California, 110 U.S. 516, 528, 4
S.Ct. 111, 117, 28 L.Ed. 232 (1884); because it creates a presumption of guilt
that undermines the requirement that the prosecution must prove guilt beyond a

reasonable doubt, see Estelle, 502 U.S. at 78, 112 S.Ct. at 485 (O'Connor, J.,
concurring); and because if tendered to demonstrate the defendant's criminal
disposition it licenses the jury to punish the defendant for past acts, eroding the
presumption of innocence that is fundamental in criminal trials. See Sheft,
supra, at 77-82.
24

That the practice is ancient does not mean it is embodied in the Constitution.
Many procedural practices--including evidentiary rules--that have long existed
have been changed without being held unconstitutional. The enactment of the
Federal Rules of Evidence and subsequent amendments are examples. See also
Spencer, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. Even critics of Rule 413
acknowledge the merits of the rule:

25 it continues the movement toward focusing on the perpetrators, rather than the
First,
victims, of sexual violence. Since neither stranger nor acquaintance rapes generally
occur in the presence of credible witnesses, this rule permits other victims to
corroborate the complainant's account via testimony about the defendant's prior
sexually assaultive behavior. Broader admissibility of prior rapes places before the
jury evidence that the defendant "lacks [the] moral inhibitions that would prevent
him from committing rapes" and implies that the threat of criminal sanctions has not
deterred the defendant in the past. Corroboratory information about the defendant
also limits the prejudice to the victim that often results from jurors' tendencies to
blame victims in acquaintance rape cases. Thus, like rape shield statutes codified in
the federal and state rules of evidence, Rule 413 encourages rape reporting and
increased conviction rates by directing the jury's attention to the defendant.
26

Sheft, supra, at 69-70 (footnotes omitted). The Supreme Court has recognized
that prior instances of violent behavior are an important indicator of future
violent tendencies. See, e.g., Kansas v. Hendricks, --- U.S. ----, ----, 117 S.Ct.
2072, 2080, 138 L.Ed.2d 501 (1997). Nevertheless, without the safeguards
embodied in Rule 403 we would hold the rule unconstitutional.

27

Rule 403 requires that if the trial court concludes the probative value of the
similar crimes evidence is outweighed by the risk of unfair prejudice it must
exclude the evidence. But the exclusion of relevant evidence under Rule 403
should be used infrequently, reflecting Congress' legislative judgment that the
evidence "normally" should be admitted. See 140 Cong. Rec. H8992
(S.Molinari, Aug. 21, 1994); see also Wheeler v. John Deere Co., 862 F.2d
1404, 1408 (10th Cir.1988); Meacham, 115 F.3d at 1491 (Rule 414 favors
liberal admission of propensity evidence despite application of Rule 403
balancing). Rule 403 balancing in the sexual assault context requires the court
to consider:

28 how clearly the prior act has been proved; 2) how probative the evidence is of the
1)
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.
29

Sheft, supra, at 59 n. 16.

30

We agree with David Karp, who drafted Rule 413, that similar acts must be
established by "sufficient evidence to support a finding by the jury that the
defendant committed the similar act," citing Huddleston v. United States, 485
U.S. 681, 685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988) ( Rule 404(b)
case). The district court must make a preliminary finding that a jury could
reasonably find by a preponderance of the evidence that the "other act"
occurred. See D. Karp, Evidence of Propensity and Probability in Sex Offense
Cases and Other Cases, 70 Chi.-Kent L. Rev. 15, 19 (1994).

31

Also, Rule 413(b) requires that the government disclose to defendant the
similar crimes evidence to be offered no later than fifteen days before trial
(unless shortened by court order). This notice period protects against surprise
and allows the defendant to investigate and prepare cross-examination. It
permits the defendant to counter uncharged crimes evidence with rebuttal
evidence and full assistance of counsel. See Karp, supra, at 18-22.

32

Finally, we note one of Congress' expressed rationales for Rule 413--the need
for corroborating evidence when the alleged rapist claims consent, and there
are no witnesses other than the defendant and the alleged victim. The evidence
has undeniable value in bolstering the credibility of the victim. Such evidence
has long been recognized as admissible to impeach a defendant's testimony.
See, e.g., Spencer, 385 U.S. at 561, 87 S.Ct. at 652. This is considered a
purpose for the evidence other than propensity. Id. at 577, 87 S.Ct. at 660-61. It
is no great stretch to permit the evidence to be introduced in the case-in-chief
when defense counsel--as in the instant case--has made it clear that consent will
be the defense. Considering the safeguards of Rule 403, we conclude that Rule
413 is not unconstitutional on its face as a violation of the Due Process Clause.

B
33

Defendant claims that Rule 413 violates his right to equal protection because it

allows unequal treatment of similarly situated defendants concerning a

fundamental right. Because he did not raise this constitutional issue before the
district court we review only for plain error. United States v. Orr, 864 F.2d
1505, 1508-09 (10th Cir.1988).
34

"[I]f a law neither burdens a fundamental right nor targets a suspect class, we
will uphold the legislative classification so long as it bears a rational relation to
some legitimate end." Romer v. Evans, 517 U.S. 620, ----, 116 S.Ct. 1620,
1627, 134 L.Ed.2d 855 (1996). Under our due process analysis Rule 413 does
not violate, on its face, a defendant's fundamental right to a fair trial. Thus the
rational basis test applies, and a "strong presumption of validity" attaches to the
evidentiary classification made in enacting Rule 413. Heller v. Doe, 509 U.S.
312, 319, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993) (citing FCC v. Beach
Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d
211 (1993)). Congress' objective of enhancing effective prosecution for sexual
assaults is a legitimate interest. The nature of sex offense prosecutions
frequently involves victim-witnesses who are traumatized and unable to
effectively testify, and offenders often have committed many similar crimes
before their arrest on the charged crime. Karp, supra, at 24-25. Defendant's
equal protection claim is without merit.

III
35

Defendant argues that even if Rule 413 is constitutional, the district court
abused its discretion in finding, under Rule 403, the probative value of B's
testimony concerning the prior rape outweighed the risk of prejudice. See
United States v. Patterson, 20 F.3d 809, 815 (10th Cir.1994). We may uphold a
district court's evidentiary ruling on any ground supported by the record. United
States v. Martinez, 76 F.3d 1145, 1148 (10th Cir.1996).

36

Although the district court must recognize the congressional judgment that Rule
413 evidence is "normally" to be admitted, it also must engage in Rule 403
balancing. The district court did so in the instant case. When the government
sought a pretrial ruling on the admissibility of B's testimony the court deferred
ruling until it ascertained at trial what other evidence the government would
produce and, presumably, whether the evidence was needed. The court forbade
mention of the alleged prior rape in the government's opening statement.

37

When the court did allow B's testimony it found the evidence admissible both
to show propensity and to rebut defendant's assertions to investigator Chino-which were in evidence, through Chino's testimony and defendant's signed
statement--that defendant would "never do something like this to anyone." I R.

doc 24, Gov't Ex. 2; IX R. 196; X R. 454-55.

38

In the instant case defense counsel sought a hearing outside the presence of the
jury before allowing B's testimony, presumably to require the judge to find by a
preponderance of the evidence that the prior rape occurred. The district court
denied that hearing, stating that B's credibility was a question for the jury.
Although B's credibility is a matter for the jury, we can easily conceive of
situations in which such a ruling by the court would be an abuse of discretion.
But here the government established that B had filed a contemporaneous police
report and it presented the investigating officer's testimony about why the
alleged rape of B was not prosecuted.

39

In the case before us the government gave prior notice of the government's
intent to use B's testimony and the defense had the opportunity to investigate
and prepare. At trial the defense briefly but effectively cross-examined B and
Officer Chino about the incident. The defense also recalled Chino in presenting
its defense, and used him to establish an inconsistency between B's trial
testimony and her report at the time of the alleged rape.

40

Finally, the court allowed B's testimony in the government's case-in-chief only
after hearing defense counsel's opening statement revealing the consent defense
and after Chino testified that defendant asserted that he would never rape
anyone. Thus, although not technically rebuttal evidence, the Rule 413
testimony effectively rebutted defendant's position. The district court engaged
in Rule 403 balancing, and did not abuse its discretion in admitting B's
testimony under Rule 413.

IV
41

Defendant finally contends that the district court abused its discretion in
permitting the prosecution to cross-examine him concerning alleged instances
of violent conduct that did not result in criminal convictions. Defendant stated
in his direct testimony that he knew right from wrong and did not want to
commit perjury. On cross-examination the government began to inquire about
specific instances of defendant's violent conduct toward women. Defense
counsel objected based only on Fed.R.Evid. 609 (impeachment by evidence of
conviction of crime). Defendant argues on appeal that the prosecutor's crossexamination was improper because defendant's testimony on direct examination
did not place his character for peaceableness or violence in issue. See
Fed.R.Evid. 404(a)(1). Because defendant failed to raise the Rule 404(a) issue
at trial, we now review only for plain error. See United States v. Jones, 44 F.3d
860, 875 (10th Cir.1995).

42

In its cross-examination the government first asked whether defendant hit his
girlfriend Stephanie Torres, the mother of his young child. Defendant admitted
doing so, stating it was a one time mistake that he regretted. The prosecutor
next attempted to elicit that defendant "beat up" another girlfriend in Ruidoso;
but because the prosecutor lacked her name or a specific date, the court
instructed the jury to disregard the question. The prosecutor continued to
question defendant about that alleged incident; defendant ultimately admitted
only to arguing with that individual but not to abusing her. The prosecutor
finally inquired whether defendant was incarcerated during the time period
between the alleged rape charged in the case before us and his arrest.
Defendant denied being incarcerated.

43

Defendant's direct testimony portrayed him as a truthful person with a Catholic

upbringing. His counsel "reluctantly" agreed that this testimony opened the
door to cross-examination about incidents reflecting on his knowledge of the
difference between right and wrong. IX R. 323. But the specific instances at
issue here did not involve defendant distinguishing right from wrong. Thus, the
cross-examination was not proper under Rule 404(a)(1). Because these
incidents did not result in criminal convictions, defendant's Fed.R.Evid. 609
objection was inapposite.

44

We thus consider whether the government cross-examination amounted to plain

error. Plain error is that which is obvious, or which seriously affects the
fairness or integrity of the trial. United States v. Thody, 978 F.2d 625, 631
(10th Cir.1992). The cross-examination was brief, and the government
presented an overwhelming case against defendant: DNA evidence, medical
personnel testimony describing A's physical injuries and hysterical condition
after the assault, defense witness Torres' testimony that A was not bruised
when the group left A's house the day of the attack, and defendant's damaged
credibility because he first denied sexual contact and then effectively testified
that A seduced him. We cannot conclude that defendant's trial was seriously
lacking in fairness because of the prosecutor's improper impeachment efforts.

45

AFFIRMED.

See, e.g., M. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier,
33 Am.Crim. L.Rev. 57 (1995); L. Natali & R. Stigall, "Are You Going to
Arraign His Whole Life?": How Sexual Propensity Evidence Violates the Due
Process Clause, 28 Loy. U. Chi. L.J. 1 (1996)