FILED
                           NOT FOR PUBLICATION
                                                                             FEB 10 2020
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   19-30022

              Plaintiff-Appellee,                D.C. No.
                                                 4:18-cr-00014-BMM-1
 v.

STANLEY PATRICK WEBER,                           MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Brian M. Morris, District Judge, Presiding

                           Submitted February 6, 2020**
                               Seattle, Washington

Before: M. SMITH and N.R. SMITH, Circuit Judges, and TUNHEIM,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
      Stanley Weber appeals his conviction, arguing that the district court abused

its discretion when it allowed the prosecution to present certain propensity

evidence at trial pursuant to Federal Rule of Evidence 414. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

1.    Weber challenges the application of United States v. LeMay, 

(9th Cir. 2001) for determining whether to admit Rule 414 evidence. Weber

asserts that “the LeMay analysis does not require courts to balance the probative

value of [Rule 414] evidence against anything,” “giv[ing] the government [a]

forbidden blank check to admit sexual misconduct evidence whenever it wishes.”

We disagree. In Lemay, we expressly acknowledged that “evidence of a

defendant’s prior acts of molestation will always be emotionally charged and

inflammatory,” 

(emphasis added), and requires that the “protections of

Rule 403 remain in place to ensure” that “the right to a fair trial remains adequately

safeguarded,” 

Indeed, LeMay demands that courts “carefully evaluate

the potential inflammatory nature of the proffered testimony” against the probative

value of the evidence offered. 

Thus, contrary to Weber’s arguments,

courts applying LeMay must conduct the necessary Rule 403 balancing, admitting

Rule 414 evidence only when the LeMay factors suggest that its relevance is not

substantially outweighed by its prejudicial effect. 

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      In fact, although LeMay’s factors do not require a court to explicitly state the

dangers of the Rule 414 evidence at issue, the factors only make sense when one

first acknowledges the inherently prejudicial nature of such evidence. If weighing

evidence’s prejudicial effect were not required under the Lemay analysis, the sole

question for a court to consider would be whether the evidence was relevant; there

would be no need to consider the degree of relevance, as LeMay demands. See 

Accordingly, weighing the prejudicial effect against the probative

value of such evidence is a vital piece of the LeMay factor analysis.

      Finally, Weber argues that “Lemay must be improperly skewed,” because

case law “shows that district courts admit extraneous sexual misconduct evidence

as a matter of course.” However, Weber’s conclusory argument is flawed. That

evidence is routinely admitted doesn’t necessarily prove that the analysis by which

it is admitted is flawed, especially where, as here: (1) the analysis is, by its very

nature, fact- and context-dependent, see 

and (2) “the clear intent of

Congress” in enacting Rule 414 was “that evidence of prior similar acts be

admitted in child molestation prosecutions,” 

; see also United States v.

Sioux, 

, 1244 (9th Cir. 2004) (noting that Rules 413–415

“establish[ed] a presumption—but not ‘a blank check’—favoring the admission of

propensity evidence at both civil and criminal trials involving charges of sexual


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misconduct”). Thus, Weber’s arguments that LeMay’s factor analysis is unsound

are unavailing.

2.    The district court did not abuse its discretion in admitting the propensity

evidence in this case. “A district court’s evidentiary rulings are reviewed for abuse

of discretion.” United States v. Thornhill, 

, 1117 (9th Cir. 2019). It

is apparent from the record that the district court conducted the proper Rule 403

balancing in determining whether to admit the Rule 414 evidence. For example,

the district court only allowed some of the available propensity evidence—one

witness to testify about each type of assault charged—that it determined was most

relevant to the charged conduct. Furthermore, the court appropriately weighed the

LeMay factors in admitting the evidence.

      Thus, because the district court’s determination was neither “illogical,”

“implausible,” nor “without support in inferences that may be drawn from the facts

in the record,” it did not abuse its discretion in admitting this propensity evidence.

Perry v. Brown, 

, 1084 (9th Cir. 2012) (cleaned up) (quoting United

States v. Hinkson, 

, 1262 (9th Cir. 2009) (en banc)).

      AFFIRMED.




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