NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       _____________

                           No. 16-1598
                          _____________

                       FRANTZ BERNARD;
                      TIMOTHEUS HOMAS;
                        ANTHONY ROSS;
                       DEJEAN MURRAY;
                       WILLIAM BROWN;
                         JERRY SALTER

                                v.

              EAST STROUDSBURG UNIVERSITY;
 DARRELL T. COVINGTON, as Members of the Board of Trustees of
                  East Stroudsburg University;
 AMY SCHAEFFER WELCH, as Members of the Board of Trustees of
                  East Stroudsburg University;
   TRUDI Q. DELINGER, as Members of the Board of Trustees of
                  East Stroudsburg University;
       HARRY F. LEE, as Members of the Board of Trustees of
                  East Stroudsburg University;
    HUSSAIN G. MALIK, as Members of the Board of Trustees of
                  East Stroudsburg University;
   NANCY V. PERRETTA, as Members of the Board of Trustees of
                  East Stroudsburg University;
     L. PATRICK ROSS, as Members of the Board of Trustees of
                  East Stroudsburg University;
     DAVID M. SANKO, as Members of the Board of Trustees of
                  East Stroudsburg University;
    ROBERT WILLEVER, as Members of the Board of Trustees of
                  East Stroudsburg University;
        ELI BERMAN, as Members of the Board of Trustees of
                  East Stroudsburg University;
       ROBERT J. DILLMAN, Individually and as President of
                  East Stroudsburg University;
ISAAC W. SANDERS, Individually and as Vice President for University
                   Advancement of East Stroudsburg University;
              KENNETH BORLAND, Individually and as Provost of
                            East Stroudsburg University;
      VICTORIA L. SANDERS, Individually and as Associate Vice President for
        Special Projects, Diversity and Equity of East Stroudsburg University

                          Frantz Bernard; Timotheus Homas; Anthony Ross,

                                                        Appellants
                                       _____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                         (Civ. Action No. 3:09-CV-00525)
                   District Judge: Honorable Robert D. Mariani
                                 ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    July 14, 2017
                                  ______________

      Before: GREENAWAY, JR., SHWARTZ, and RESTREPO, Circuit Judges.

                            (Opinion Filed: August 16, 2017)
                                   ______________

                                          OPINION*
                                       ______________

GREENAWAY, JR., Circuit Judge.

                                  I.      INTRODUCTION

       Appellants are former students at East Stroudsburg University (“ESU” or “the

University”), a public university that is part of the Pennsylvania State System of Higher

Education (“PASSHE”). Each alleges that Appellee Isaac Sanders, who served as the

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.


                                             2
Vice-President for Advancement at ESU and the CEO of the East Stroudsburg University

Foundation, sexually assaulted or sexually harassed them while they were students. They

further allege that top university officials (together, the “University Appellees”)—Robert

Dillman, then the President of ESU1; Kenneth Borland, then the Provost and briefly

Acting President; and Victoria Sanders, the Assistant to the President and the Associate

Vice-President for Special Projects (and no relation to Isaac Sanders)—failed to protect

them from Sanders, in violation of Title IX, 42 U.S.C § 1983, and the related conspiracy

provisions of 42 U.S.C. §§ 1985-86. Appellants now challenge aspects of the District

Court summary judgment decisions, as well as two evidentiary issues. We find no basis

to disturb the District Court’s rulings. We will affirm.

                                   II.    BACKGROUND

       In August 2007, Appellant Frantz Bernard accused Sanders of sexual assault,

beginning in May of that year. Those accusations were quickly brought to the attention

of the University Appellees: first Victoria Sanders, then Dillman. Prior to this, the

University Appellees had received no concrete accusations that Sanders had sexually

assaulted students, although there may have been rumors circulating among some

members of the University community. The University separated Bernard from Sanders,

whom Bernard had been working for, and began an internal investigation, conducted by

Arthur Breese, the Director of Diversity and Campus Mediation. Breese interviewed


1
 Dillman is no longer a party to this case. The District Court found that after Dillman
passed away, plaintiffs did not substitute a proper party, as required by Fed. R. Civ. P.
25(a), and dismissed him from the suit. This ruling is not challenged on appeal.

                                             3
Sanders, Bernard, and the two witnesses they identified who were willing to speak.

Breese found the situation to be “one person’s word against another” and offered no clear

conclusion as to what had occurred. D.C. Dkt. No. 94 ¶ 76; D.C. Dkt. No. 109 ¶ 76; The

final report was sent to Dillman in December 2007, and Dillman and Breese discussed

the report in a very brief telephone conversation at that point.

       Based upon the report, Dillman determined that there was insufficient evidence to

support Bernard’s allegations. Throughout the litigation, Appellants have argued that the

Breese investigation was insufficient, perhaps by design.

       The next year, in June, multiple additional students, including Appellants

Timotheus Homas and Anthony Ross, came forward with allegations that Sanders

engaged in sexual assault and sexual harassment. Appellants’ allegations all concerned

acts taken before August 2007, when Bernard first complained to the University. ESU,

now working in closer conjunction with the state PASSHE system, quickly suspended

Sanders, then in September 2008 hired an outside law firm to conduct an investigation.

The University sent Sanders a termination letter in October, effective in December 2008.

       The outside law firm first sent Dillman an interim report on its findings in

September 2008 (the “PASSHE Report”), and then sent PASSHE a final version in

February 2009. This investigation was much broader-ranging than Breese’s.

       This lawsuit was filed in March of 2009. Over the course of the litigation, various

plaintiffs and defendants were dismissed from the case; those decisions are not

challenged on appeal. The District Court granted summary judgment for the University

Appellees but allowed the § 1983 suits against Isaac Sanders, for direct violations of the

                                              4
right to bodily integrity, to proceed to trial. A jury found for Sanders on all counts and

after extensive post-trial motion practice, this appeal commenced.2 Because the appeal

concerns disparate aspects of the litigation, we discuss additional facts as needed, as well

as the appropriate standards of review, in our analyses of Appellants’ four claims on

appeal.

    III.   DID THE DISTRICT COURT ERR IN GRANTING SUMMARY JUDGMENT FOR THE

                                    UNIVERSITY APPELLEES?

           Appellants assert that summary judgment was improperly granted. Our review of

a grant of summary judgment is “plenary” and the court should “apply the same test the

district court should have utilized initially.” Giles v. Kearney, 

, 322 (3d Cir.

2009). Summary judgment should be granted only when “there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a).

           As the District Court properly recognized, liability under Title IX requires that “an

official of the school district who at a minimum has authority to institute corrective

measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the

teacher’s misconduct.” Gebser v. Lago Vista Indep. Sch. Dist., 

, 277 (1998).

“Actual notice” must be based on more than a “possibility.” Bostic v. Smyrna Sch. Dist.,

, 361 (3d Cir. 2005). Deliberate indifference requires a response (or failure

to respond) that is “clearly unreasonable in light of the known circumstances.” Davis ex

2
 The District Court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and
1343(a)(3), (4). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

                                                 5
rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 

, 648 (1999); see also Doe v.

Mercy Catholic Med. Ctr., 

, 566 (3d Cir. 2017). Supervisors like the

University Appellees are also only liable under Title IX if their acts of deliberate

indifference “cause students to undergo harassment or make them liable or vulnerable to

it.” 

(internal quotation marks omitted).

       Supervisory liability under § 1983, for violations of the due process right to bodily

integrity, cannot be based on vicarious liability. Bistrian v. Levi, 

, 366 (3d

Cir. 2012). The District Court determined—and Appellants do not challenge—that the

relevant theory of supervisory liability is that a supervisor may be liable “if he or she

participated in violating the plaintiff’s rights, directed others to violate them, or, as the

person in charge, had knowledge of and acquiesced in his subordinates’ violations.”

A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 

, 586 (3d Cir. 2004).

In an acquiescence context like this one, a plaintiff must show “(1) contemporaneous

knowledge of the offending incident or knowledge of a prior pattern of similar incidents,

and (2) circumstances under which the supervisor’s inaction could be found to have

communicated a message of approval.” C.H. ex rel. Z.H. v. Oliva, 

, 202 (3d

Cir. 2000).

       On appeal, Appellants do not contest that the District Court applied the proper

legal framework to their claims. Rather, their claims on appeal are limited to the District

Court’s analysis of the record. Although Appellants do not organize their argument in

this way, they now cite four categories of fact they believe were not properly appreciated

by the District Court and which should have precluded summary judgment: 1) Breese’s

                                               6
report was incomplete and/or incompletely communicated to the University Appellees; 2)

Breese was intentionally constrained and prevented from pursuing important avenues of

investigation; 3) the administration was aware of rumors about Sanders prior to the

Bernard allegations; and 4) a former state official had warned the University of the

shortcomings in its anti-discrimination policies. They also argue that the District Court

should have contrasted the Breese Report and the PASSHE Report and thereby revealed

the deliberate indifference with which the less-thorough first investigation was

performed. None of these arguments suffice to overcome summary judgment, in large

part because they do not speak to the knowledge or deliberate indifference of the

University Appellees themselves.3

       With respect to the Breese Report, Appellants cite various shortcomings of the

investigation: Dillman did not talk through the evidence in the report with Breese; Breese

violated the school policy for investigations by not explicitly stating in his report whether

Sanders had “more likely than not” violated the school harassment policies, App. 291;

and Breese found Bernard credible in his accusations. They also accuse the University,

through Victoria Sanders, of limiting Breese’s investigation to exclude financial

improprieties, anonymous letters sent to the university about Sanders, and a lewd

illustration Sanders sent to Bernard.

3
  Appellants also leave undisturbed an important aspect of the District Court’s summary
judgment decision: that no evidence showed any discriminatory conduct after Bernard
initially reported the alleged sexual abuse and sexual harassment, meaning that there
were no injuries that could be causally traced to the University Appellees’ deliberate
indifference. This waived argument appears to provide another basis for affirming the
District Court’s summary judgment decision, at least in large part.

                                              7
       As the District Court discussed, these alleged shortcomings do not show deliberate

indifference or acquiescence, as needed for liability. There is no indication in the record,

or basis in the law, to conclude that Dillman was obligated to discuss Breese’s report with

him at any length or that it was clearly unreasonable for him not to. Nor is there any

indication that Dillman did not consider the report before reaching his determination. It

is true that the school’s policy required an explicit finding, and arguably, Breese did not

provide one.4 But in any event, Dillman, the relevant decisionmaker, was provided with

the factual basis for the complaint and, as noted, took some action. Appellants put

forward no evidence sufficient to create a genuine dispute that Dillman would have acted

differently had Breese included a formal conclusion—particularly if his conclusion was

equivocal.

       Nor is there evidence in the record sufficient to survive summary judgment that

Breese’s investigation was hampered. The lewd illustration, notably, was provided to

Breese by Victoria Sanders herself. This hardly shows an effort by Victoria Sanders or

the University to obstruct the investigation. Rather, Breese testified that he left it out of

his factfinding report because it was already known to, and more importantly, being

addressed by, the University. Likewise, the University took clear action in response to

4
  The District Court interpreted an emailed note from Breese that “it is difficult to
ascertain if anything happened,” App. 234, as equivalent to a finding that it was not more
likely than not that a violation occurred. On summary judgment, it may be impermissible
to infer that this was a finding. Breese’s email concerned a draft report, which was later
finalized, and sought advice on next steps; the quoted language could be read as
describing interim uncertainty, not a final finding. It is also worth noting, as the District
Court did, that Breese described the allegations as “one person’s word against another.”
D.C. Dkt. No. 94 ¶ 76.

                                              8
the anonymous letters, sent to the University and its trustees, accusing Sanders of sexual

misconduct. These letters were not presented to Breese (it is disputed whether this was

pursuant to a University policy against accepting anonymous letters not provided by the

complainant or respondent in internal investigations). However, Dillman did not ignore

the letters. Dillman spoke with the police about the letters’ allegations, to see if their

content could be corroborated, and through ESU attorneys, forwarded some of the letters

to the FBI.

       Finally, while it is undisputed that Breese was instructed not to investigate

Sanders’ financial issues generally, Breese did investigate Sanders’ finances insofar as

they related to Bernard, the subject of his investigation. Moreover, Breese was limited in

this respect because a different, broader investigation of the financial aspects of the case

was underway. None of these limitations indicated deliberate indifference by the

University Appellees, who were aware of and responding to each piece of information

ostensibly missing from Breese’s report.

       The rumors that Appellants cite do not rise to “actual notice” or “contemporaneous

knowledge” of the relevant misconduct, as the District Court correctly held. Appellants

cite to a statement from police officer Randy Nelson. Nelson recounted that he had heard

that Sanders was gay, that he was “weird and a little different,” that he closed the door to

his office at times, that Sanders would leave his office late at night with another man, and

most specifically, that Sanders was once caught in another male’s car, at night, in the

dark. App. 441. None of these rumors—even if they could be taken as reliable—

concerns sexual assault of a student. And Nelson never stated, or even implied, that he or

                                              9
anyone else had communicated these rumors to Dillman or other top administrators. The

University Appellees have not been shown to have known of these rumors, much less to

have been deliberately indifferent to reports of Sanders’ sexual assaults or harassment.

       Likewise, Appellants put forward statements by Charmaine Clowney, a state

official in charge of university harassment policies, that the ESU anti-harassment policy

was “weak and ineffective” and the worst of the policies of the fourteen state universities

in the system. App. 506. But Gebser requires deliberate indifference not merely to the

general possibility of sexual harassment, but deliberate indifference “to . . . the teacher’s

. Supervisory liability under § 1983, in this context,

similarly requires participation in or acquiescence to the subordinate’s violations. A.M.

ex rel. 

. Clowney’s statements reveal nothing about the top

University officials’ knowledge of or reaction to Sanders’ misconduct.

       Finally, the District Court did, in fact, refer to the PASSHE Report, at least to the

extent that it was entered into the record. It did not, as Appellants would have liked,

compare the scope of that report to the scope of the Breese Report as evidence of the

latter’s insufficiency. But highlighting that comparison is simply another attempt to

show that the Breese Report was so flimsy that it must have been a cover-up. For the

reasons set forth already, and at greater length by the District Court, the record does not

support this. Additional reference to a document written after Appellees’ relevant actions

occurred does not change that conclusion.

       At the end of the day, Appellants may—or may not—have shown genuine

disputes of material fact as to whether someone could have known about Sanders’

                                              10
behavior or whether Breese’s report could have been wider-ranging and more complete.

But they did not show that the University officials who were the defendants in this case

were deliberately indifferent to actual notice of Sanders’ misconduct, nor that they

acquiesced in it.5

    IV.    DID THE DISTRICT COURT ERR IN ITS TREATMENT OF PAGES MISSING FROM

                            THE SUMMARY JUDGMENT RECORD?

          Appellants next argue that the District Court erred by granting summary judgment

without having read the full PASSHE Report, which had not been completely entered

into the record at that point. In September 2010, the parties signed a Confidentiality

Agreement governing the PASSHE Report (as well as the final, 2009 version of that

report). The Confidentiality Agreement contemplated the filing of the report as an

exhibit under seal in the litigation, but did not purport to file the report at that time. At a

pre-trial hearing in October 2014, it became clear to the parties that the full report had

never been introduced into the record, perhaps because the plaintiffs were confused about

the procedures for filing the report under seal or perhaps due to technical difficulties with



5
  We also affirm the District Court’s grant of summary judgment on Appellants’
conspiracy claims. The Court found no evidence of a meeting of the minds, as required
for liability, nor evidence of class-based discriminatory animus. See Farber v. City of
Paterson, 

, 134 (3d Cir. 2006) (setting forth standard for liability under §
1985); Rogin v. Bensalem Twp., 

, 696 (3d Cir. 1980) (“transgressions of §
1986 by definition depend on a preexisting violation of § 1985”). Appellants barely
respond to this finding. To the extent that Appellants allege that evidence that the
University “covered up” Sanders’ actions shows the existence of a conspiracy, this still
would not show a meeting of the minds, much less an agreement to discriminate on the
basis of a protected class.

                                              11
the Court. In any case, in the end only the first 24 of the 31 pages that plaintiffs had

sought to file were included in the summary judgment record.

       This issue was addressed twice in the District Court. Plaintiffs first argued that the

Court had not considered the PASSHE report in the reply brief for their Rule 59 motion.

The District Court clarified at that point that it had, in fact, seen 24 out of 31 pages of the

report and noted that it was the plaintiffs themselves who had inadvertently submitted an

incomplete document. Then, in July 2016, plaintiffs filed a Rule 60 motion, which the

District Court denied, seeking correction of the record to include the full PASSHE Report

and relief from judgment. The District Court noted, among other things, that 1) the report

was generally immaterial to its determinations about deliberate indifference; 2) the

plaintiffs incorrectly alleged that the Court had failed to review any of the PASSHE

Report, when in fact it had reviewed the first 24 pages; 3) the remaining seven pages of

material provided no new, relevant information; 4) plaintiffs cited no case law supporting

their request and did not specify which portion of Rule 60(b) supported their claim for

relief (i.e., mistake, inadvertence, surprise, or excusable neglect); 5) plaintiffs had

received ample notice of the problem and done nothing; and 6) the problem was at least

substantially the fault of plaintiffs’ counsel.

       Appellants, however, do not challenge this Rule 60 motion. Rather, they now

argue that the District Court should, after the October 2014 hearing, have sua sponte




                                                  12
reversed its summary judgment orders pursuant to Rule 59(e).6 A Rule 59 motion must

rely on “(1) an intervening change in controlling law; (2) the availability of new

evidence; or (3) the need to correct clear error of law or prevent manifest injustice.”

Lazaridis v. Wehmer, 

, 669 (3d Cir. 2010). Although Appellants do not

specify, only the “manifest injustice” prong appears applicable here. We review a

District Court’s denial of a Rule 59 motion for abuse of discretion. 

no argument that the District Court was obligated to amend its

judgment sua sponte. Thus, we see no basis for identifying anything in the Court’s

proceeding towards trial, along the ordinary course of civil litigation, as a “clearly

erroneous finding of fact, an errant conclusion of law or an improper application of law to

fact.” Hagan v. Rogers, 

, 152 (3d Cir. 2009). What is more, while

Appellants do not challenge the District Court’s Rule 60 decision directly, we take its

reasoning to helpfully explain the District Court’s use of its discretion in not

reconsidering its summary judgment decision under Rule 59. And Appellants do not

address, much less rebut, the District Court’s arguments: they do not show that the

remaining seven pages would have been material to the Court’s decisionmaking, for

example, and they do not respond to the point that the Court actually had engaged with

the pages of the report it was provided. This leaves no basis for holding that a manifest

injustice occurred. It was no abuse of discretion for the Court not to reconsider its



6
 Appellants specifically claim to seek relief under Rule 59(e)(3). As there is no such
subsection, we take their claim to be under Rule 59(e).

                                             13
summary judgment decisions, sua sponte, in response to the plaintiffs’ failure to properly

file its materials.

   V.      DID THE DISTRICT COURT ERR IN EXCLUDING THE PASSHE REPORT AT

                                          TRIAL?

        Appellants next contest the District Court’s ruling that the PASSHE Report was

not admissible at trial. The defendants attempted to exclude the report pursuant to

Federal Rule of Evidence 803(8), which exempts certain public records from the hearsay

rule. The District Court ruled against them on three grounds. First, it held that the

Report was not a public record because its author, an outside law firm, was not a public

agency. Second, the Court found that the report was not trustworthy—as Rule 803(8)(B)

requires for admissibility—both because the version of the report at issue was an interim

report, not yet finalized, and because it was replete with hearsay-within-hearsay. Third,

the District Court determined that the admission of the report, which reaches conclusions

as the ultimate issue at trial, would be highly prejudicial and threaten to usurp the jury’s

role as factfinder.

        We review for abuse of discretion. United States v. Price, 

, 205 (3d

Cir. 2006) (“application of the relevant hearsay exceptions is subject to review for abuse

of discretion.”). We need not decide whether reports commissioned by public agencies,

but written by private entities, are public records under Fed. R. Evid. 803(8), a question

which appears not to have been decided in this circuit. See Watts v. City of Hartford, No.

3:00CV0681 (RNC), 

, at *4 n.9 (D. Conn. Mar. 31, 2004) (collecting



                                             14
cases). The District Court’s other two reasons for deeming the report inadmissible are

sufficient to affirm.

       The District Court’s two reasons for finding the Report untrustworthy both are

well-grounded in our case law. See Coleman v. Home Depot, Inc., 

, 1342

n.4 (3d Cir. 2002) (listing both hearsay-within-hearsay and non-finality as indicators of

untrustworthiness). Appellants offer other reasons that the Report could be considered

trustworthy—the quality of the investigators and the lack of bias by the PASSHE system,

in particular—but they offer no persuasive response to the District Court’s concerns. On

appeal, they do not acknowledge the interim nature of the report they sought to admit,

much less provide a reason that its interim nature does not indicate a lack of

trustworthiness. As to the hearsay-within-hearsay problem, they argue only that the

layered hearsay issues were unavoidable and mitigated by the inclusion of hearsay-

within-hearsay on all sides of the internal investigation. We do not generally consider

more hearsay to be the solution to hearsay problems, and this does not convince us that

the District Court’s determination was an abuse of discretion.

       Indeed, these arguments for the Report’s trustworthiness only exacerbate the Rule

403 problems that also concerned the District Court. The more the Report is made

trustworthy because it compiles and analyzes hearsay from both sides, the more it

resembles an independent arbitration of what occurred and the more it could distract the

jury from its need to make independent credibility determinations on the basis of

admissible evidence—or so the District Court could have determined. We find no abuse



                                            15
of discretion in the District Court’s balancing of these various considerations under Rule

803(8) and its decision to exclude the Report.

   VI.    DID THE DISTRICT COURT ERR IN EXCLUDING TESTIMONY ABOUT PAST

                                 SEXUAL MISCONDUCT?

       Mid-trial, the District Court held three evidentiary hearings to determine whether

to allow evidence that Sanders had previously sexually assaulted three individuals other

than the plaintiffs: Dejean Murray, William Brown, and Bryan Haskins. The Court

allowed part of Haskins’ testimony to be admitted into evidence, none of Murray’s, and

only a small amount of Brown’s deposition (not the parts relevant to showing a pattern of

sexual assaults). Appellants challenge these evidentiary rulings.

       Our approach to the admissibility of past acts involving sexual assault is set out in

Johnson v. Elk Lake School District, 

(3d Cir. 2002). First, the trial court

must decide “whether a reasonable jury could find by a preponderance of the evidence

that the past act was an ‘offense of sexual assault’ under Rule 413(d)’s definition and that

it was committed by the defendant.” 

Then, the trial court “may still

exclude [the evidence] under Federal Rule of Evidence 403” if “its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” 

(quoting Fed. R. Evid. 403). That

balancing test should place “a thumb on the scale in favor of admissibility” if the past act

is “demonstrated with specificity” and “is sufficiently similar to the type of sexual assault

allegedly committed by the defendant.” 

-56. Otherwise, there is no

                                             16
presumption of admissibility. 

In any case, even in this context “the Rule 403

balancing inquiry is, at its core, an essentially discretionary one that gives the trial court

significant latitude to exclude evidence.” 

the District Court’s evidentiary

ruling for abuse of discretion. 

of sexual assault is defined by Rule 413(d) to include, among other

things, “contact, without consent, between any part of the defendant’s body—or an

object—and another person’s genitals or anus,” and “contact, without consent, between

the defendant’s genital or anus and any part of another person’s body.” Fed. R. Evid.

413.

       The District Court’s evidentiary rulings involved a close analysis of the three

witnesses’ descriptions of how they were touched by Sanders and whether those

descriptions constituted sexual assault under Rule 413. Dejean Murray testified, among

other things, that Sanders touched him “[n]ear my crotch area,” App. 650, on his thigh

and “towards my crotch,” App. 656, “on my crotch,” App. 653, and in the “general area”

of, but not touching, his penis, App. 657.

       William Brown testified that Sanders put his hand on his thigh, “moving it up . . .

towards my genital area and kind of like rubs it a little bit.”7 App. 463. He then testified

that Sanders “reach[ed] for my zipper” at which point he moved Sanders’ hand away.

App. 463.



7
 Brown’s testimony, unlike the other two potential witnesses, was put forward in the
form of a deposition transcript, as he could not be reached by Appellants’ counsel.

                                              17
       Bryan Haskins testified that Sanders touched his buttocks while Haskins was

stepping out of a car. He testified that the touch was “near the center of my butt cheeks,”

App. 609, near the anus. He also testified that Sanders touched his arm inappropriately,

stared at him while he used a urinal, and touched him “on my knee rubbing up my thigh

towards my genitals,” a location he further described as “toward the inside of my thigh.”

App. 615-16.

       The District Court organized its rulings around whether the testimony was “clear”

or “equivocal” in order to determine whether, and with what specificity, a jury could

conclude that the described acts constituted “sexual assault” under Rule 413. App. 46. It

found that Haskins’ description of being touched on the buttocks was clear—and allowed

that testimony to be admitted—but that the other testimony was all equivocal, describing

touching “near” or “towards” the proscribed areas but not touching them directly.

Finding that these ambiguities removed or weakened any presumption of admissibility

under Johnson, the Court then deemed the equivocal testimony inadmissible based on a

Rule 403 balancing analysis.

       We find no abuse of discretion in the District Court’s decision to exclude this

evidence. The District Court followed the Johnson framework and, as part of that

analysis, engaged in a close analysis of the relevant evidence. Given the importance of

live testimony here, that analysis deserves deference. In determining whether the alleged

acts—inappropriate and unwanted though they might have been—fell within the bounds

of Rule 413, or with what specificity they were described, the District Court had the

benefit of physical indications and demonstrations of where the witnesses said they were

                                            18
touched.8 But regardless of the District Court’s analysis under Rules 413 and 415, it

ultimately decided based on Rule 403 grounds.

       We give district courts “significant latitude” to engage in Rule 403 balancing,

even when sexual assaults are implicated under Rules 413 and 415. 

; see also United States v. Kellogg, 

, 197 (3d Cir. 2007) (a Rule 403

analysis should be reversed only if the District Court’s decision was “arbitrary or

irrational” because “if judicial self-restraint is ever desirable, it is when a Rule 403

analysis of a trial court is reviewed by an appellate tribunal”).

       We cannot say the District Court abused that substantial discretion here. Given

the Court’s analysis of the factual content of the testimony, it could have perceived the

acts described to be on the edge of admissibility under Rule 413 and Rule 415,

diminishing the presumption of admissibility and allowing the risk of prejudice from past

acts testimony to loom larger. Cf. 

n.8 (noting “higher risk of

unfair prejudice” when past acts of sexual assault are presented to jury). On the other

side of the scales, the District Court observed that four witnesses—the three plaintiffs and

Haskins, whose past acts testimony was partially allowed—were able to testify at trial

about Sanders’ sexual assaults, enough for plaintiffs to begin to establish a pattern of

behavior. See 

(Rule 403 balancing should consider “the need for evidence

8
  We lack the benefits of live testimony, one reason for our deference to district courts in
this area. Appellants attempt to rectify the informational deficits of appellate courts by
including in their briefs what appear to be photographs of reenactments of the testimony.
These photographs are not part of the record on appeal, however. Moreover, they lack
the most basic indicia of reliability. We have no reason to believe that counsel’s
restaging of what occurred match the witnesses’ representations, much less reality.

                                              19
beyond the testimony of the defendant and alleged victim”). Given these considerations,

among others, it was within the Court’s discretion to deem the inclusion of this testimony

more prejudicial than probative.

                                   VII.   CONCLUSION

      For the above reasons, we conclude that each of Appellants’ arguments on appeal

is unsuccessful. We therefore affirm.




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