Submitted: June 13, 2019
from United States District Court for the District of South
Dakota - Aberdeen
COLLOTON, KELLY, and ERICKSON, Circuit Judges.
ERICKSON, CIRCUIT JUDGE.
Alan Arias was convicted by a jury of three counts of
aggravated sexual abuse of a child. Arias raises three issues
on appeal. First, he argues that the trial court erred in
permitting two witnesses to offer Federal Rule of Evidence
413 testimony because their allegations were not
substantially similar to the instant offense and were subject
to exclusion under Federal Rule of Evidence 403 as unfairly
prejudicial to him. Second, he argues that a mistrial was
required when a government witness blurted a statement that
violated an order in limine prohibiting references
to Arias's incarceration. Third, he argues that the
district court abused its discretion by permitting testimony
by the victim that she had been diagnosed with additional
mental health issues post-offense while failing to conduct an
in camera review of mental health records related to
the diagnosis. We affirm the district court on the first two
issues, but remand to the district court for an in
camera review of the mental health records to determine
whether refusal to allow access to the records was harmless.
attended his sister's wedding on May 2, 2015. His minor
niece, K.P., also attended the wedding. K.P. later alleged
that Arias sexually assaulted her in the hotel room they were
sharing for the wedding. In particular, K.P. alleged that
Arias groped her genitals before forcibly raping her. K.P.
reported that she also suffered scarring on her right arm
from being pinned against a bed frame. There were no other
witnesses to the assault.
a voluntary dismissal without prejudice of a second
superceding indictment, the grand jury indicted Arias on
April 4, 2018, charging him with three counts of Aggravated
Sexual Abuse of a Child, in violation of 18 U.S.C.
§§ 1153, 2241(c), and 2246(2)(A), (B), and (C). The
trial commenced on April 16, 2018.
to trial, the district court ruled on several motions. The
first dispute centered around K.P.'s mental health
records. Arias sought the production of K.P.'s mental
health records from a facility in Tennessee where K.P.
reportedly received treatment. Arias was aware of the records
because K.P.'s grandmother stated that K.P. was receiving
treatment at the facility. The court denied the request
deeming it a "fishing expedition." Arias next moved
for production of mental health records pre- dating the
alleged offense date. The district court denied the second
motion, again finding that the requests appeared to be a
"fishing expedition" and that K.P.'s mental
health records were protected by the psychotherapist-patient
privilege. At no point during the relevant proceedings was
the government in possession of the requested treatment
records. The court did, however, rule that Arias would be
allowed to question the victim regarding her diagnosis of
bipolar disorder which pre-dated the alleged assault.
government gave notice of five witnesses it intended to call
to testify under Federal Rule of Evidence 413. Arias moved to
strike each of the witnesses, contending that the testimony
was not sufficiently similar and that any probative value was
substantially outweighed by its unfair prejudice. After
reviewing the proposed testimony, the district court excluded
three of the witnesses's testimony as too dissimilar from
the current offense to "establish a pattern of
behavior" under Rule 413. The district court permitted
the proposed testimony from the remaining two witnesses. Each
of those two witnesses was prepared to testify that, like
K.P., she knew Arias and was sexually assaulted by him. Each
witness would also testify: that Arias groped the
witness's breasts; that he otherwise used force
throughout the assault; that he used alcohol on the night of
the assault; that the assault happened in the early morning
hours; and that he committed the assault in a location where
the witness was isolated. The district court held that this
testimony was sufficiently similar to the instant offense to
support admission. Finally, the district court entered an
order in limine prohibiting the introduction of
evidence regarding Arias's incarceration or recent
release from incarceration.
trial the government sought to introduce the issue of
K.P.'s mental health on direct examination. The
government began by asking K.P. whether her parents'
divorce had an effect on her health. K.P. responded that she
was diagnosed with depression. The government then asked her:
"Have you been diagnosed with anything else?" K.P.
responded, "Yes. After this incident had happened, not
the divorce." Arias's objection was overruled.
questioning continued. The government eventually asked the
following question: "Since the assault, have you since
been diagnosed with something else?" K.P. responded
"Yes." Arias's objection was again overruled.
The government followed up, asking "What?", to
which K.P. responded, "Anxiety and PTSD."
asked for leave to make a motion outside of the presence of
the jury and to strike the answer. In response, the court
offered the following instruction:
The Court will instruct you that psychologically -
psychological symptoms diagnosed post-incident, post-May of
2015, are extremely limited relevance to you all, if any.
What the Court was expecting is something that had been
diagnosed prior to May of 2015 as the answer. But the Court
does think that the testimony as given can stand.
recess, Arias objected to the testimony and moved for a
mistrial, arguing that it was "a due process violation
and a confrontation clause violation" to allow testimony
about K.P.'s mental health while denying access to the
witness's mental health records. Arias noted that,
without the records, he had no idea whether or not that
diagnosis had ever been made. The court denied the motion and
stated that it did not believe allowing the statement was
"harmful in any significant way to the defendant."
renewed his objection the following day, reiterating the
argument that a diagnosis of PTSD by a mental health
professional bolstered the credibility of K.P.'s
allegations and that fundamental fairness required that the
mental health records be produced to allow for effective
cross-examination of K.P. on that point. The district
court again denied the motion, explaining that allowing