UNITED STATES of America, Plaintiff-Appellee, v. Robert James CAPLETTE, Defendant-Appellant, 365 F. App'x 833

MEMORANDUM Appellant Robert James Caplette (“Ca-plette”) appeals from the district court’s decision to permit the prosecution to introduce under Federal Rule of Evidence 413 his prior juvenile adjudication for sexual assault in his trial for sexual assault. Ca-plette contends that his juvenile status when he committed the prior sex crime is a significant “intervening event” counseling against admission under the Rule 403 balancing test. Doe v. Glanzer, 232 F.3d 1258, 1268 (9th Cir.2000). This case is controlled by this Court’s precedent in United States v. LeMay, 260 F.3d 1018 (9th Cir.2001).

In LeMay, we held that “courts must consider whether the prior acts evidence was necessary to prove the case, along with other factors.” Id. at 1029. Here, the district court acted within its discretion in determining admission of the evidence was proper because the testimony of the alleged victim that she was raped was challenged by the defendant who testified that she consented. See id. Furthermore, the prior sex crime had strong probative value because of the similar modus operandi. See id. Caplette’s reliance on Roper v.

Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (U.S.2005) for the proposition that juvenile crimes show less propensity to recommit such acts as an adult is misplaced. Roper dealt only with the cruel and unusual imposition of the death penalty on those below eighteen. Id. at 555-56, 125 S.Ct. 1183. Although it relied in part on sociological evidence that juveniles were less likely to be morally culpable, this insight is not sufficient to overturn established and controlling Ninth Circuit jurisprudence in an unrelated area of the law where Congressional intent was to admit all prior sex crimes. Compare Fed.

R. Evid. 413 (admitting all prior sex crimes) with Fed. R. Evid. 609(b) (only allowing prior convictions for impeachment if they are less than ten years old). The fact that the prior crime was committed by Caplette while he was a juvenile may be an appropriate consideration in determining whether to admit evidence of that crime, but under our established case law evidence of a juvenile crime is not categorically inadmissible. The district court did not abuse its discretion in admitting Caplette’s prior sexual assault conviction. AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.