EDITH BROWN CLEMENT, Circuit Judge:
After a jury trial, Andrea Lewis was convicted of three counts of violating 18 U.S.C. § 2423(a) by transporting persons under the age of 18 years across state lines with the intent that they engage in criminal sexual activity. He appeals the district court's admission of evidence that he committed uncharged sexual assaults against minors. We AFFIRM.
Lewis was the director of a choir group that included both adults and minors.
The federal charges against Lewis related to his transportation of the three then-minor girls across state lines from Louisiana to Texas with the intent of having illegal sex with them. While Lewis's trips also generally involved the rest of the choir group, the government maintained that having sex with the minors was one reason that he transported them across state lines. Lewis's defense was that he did not have sex with any of the girls when they were underage, let alone transport them across state lines to have sex with them.
Before the trial, the government filed a motion in limine asking the court to admit evidence under Federal Rule of Evidence 413,
The district court deferred ruling on the government's pretrial motion in limine. After the jury was empanelled, and outside of its presence, the district court held a hearing to decide whether the evidence was admissible. Lewis objected to its admission, arguing, among other things, that admitting the evidence would violate Rule 403 (i.e., its probative value was substantially outweighed by the danger of unfair prejudice). The district court ruled that the evidence was admissible. Lewis now appeals, arguing that the admission of the Rule 413 evidence was an abuse of discretion under Rule 403 because the uncharged conduct is more serious than the charged conduct.
When an evidentiary objection has been properly preserved, it is ordinarily reviewed for abuse of discretion. United States v. Dillon, 532 F.3d 379, 387 (5th Cir.2008). A district court's ruling regarding Rule 403 is reviewed "with an especially high level of deference to the district court, with reversal called for only rarely and only when there has been a clear abuse of discretion." Id. (internal quotation marks omitted). An unpreserved error is reviewed for plain error. United States v. Escalante-Reyes, 689 F.3d 415, 418 (5th Cir.2012) (en banc).
The parties dispute whether Lewis preserved his argument. We agree with the government that Lewis did not preserve the argument because he failed to raise it below.
Below, Lewis argued that the uncharged conduct should not be admitted under Rule 403 because it was intrastate rather than interstate and because its introduction might confuse the jury.
We conclude that Lewis failed to fully apprise the court of the grounds of his objection or to alert it to the proper course of action. Accordingly, this error was unpreserved, and plain error review applies. Under plain error review, Lewis must show that (1) the district court erred, (2) the error was clear or obvious, (3) the error affected his substantial rights, and (4) this court should exercise its discretion to correct the error because "the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Escalante-Reyes, 689 F.3d at 419 (internal quotation marks and alteration omitted).
Rule 413 provides that "[i]n a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault." Rule 413(a).
Here, the evidence that Lewis had sex with two additional underage girls was highly probative of his proclivity for having sex with underage girls. A proclivity for having sex with underage girls made it significantly more likely that he transported the named victims across state lines with the intent that they engage in criminal sexual activity, which was an element of 18 U.S.C. § 2423(a), the charged crime.
Further, in response to a question about whether Lewis had oral sex with one of the named victims, Lewis testified, "I don't like oral sex.... So, no, I don't like people to do oral sex." A.D.'s testimony that he forced her to have oral sex multiple times was probative for impeaching Lewis's testimony that he did not like oral sex, which supported the named victim's testimony that she had performed oral sex on him.
The Rule 413 evidence also showed Lewis's modus operandi in the selection of his victims. Each victim, whether charged or uncharged, was a member of his choir group, showing how he gained access to his victims. Further, each of the girls testified to first having intercourse or oral sex with Lewis when they were approximately fourteen years old (although he sexually assaulted S.H. in other ways when she was younger). Even though the modus operandi for the charged and uncharged offenses do not match perfectly, the substantial overlap makes the uncharged offenses probative. See United States v. Hitt, 473 F.3d 146, 159 (5th Cir. 2006) ("[M]odus operandi evidence is relevant to whether sexual activity occurred between the defendants and [the named victim], which is relevant to whether the defendants had the requisite intent to engage in illicit sexual activities across state lines.").
We conclude that the district court did not clearly abuse its discretion by implicitly holding that the high probative value of the evidence was not substantially out-weighed by the danger of unfair prejudice. This is simply not the kind of rare case warranting reversal of a district court's Rule 403 analysis. See Dillon, 532 F.3d at 387 (holding that Rule 403 analysis is reviewed "with an especially high level of deference to the district court, with reversal called for only rarely and only when there has been a clear abuse of discretion" (internal quotation marks omitted)). Thus, the court did not err, let alone clearly or obviously err, and we need not reach the other prongs of the plain error standard of review.
For the foregoing reasons, we AFFIRM.
Lewis also provided a written response to one of the government's motions in limine, but this response did not mention Rule 403 or argue that the uncharged conduct was more serious than the charged conduct.