United States Court of Appeals For the First Circuit
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Howard, Chief Judge, Thompson and Barron, Circuit Judges.
Peter J. Cyr, with whom Law Offices of Peter J. Cyr was on brief, for appellant. Renee M. Bunker, Assistant United States Attorney, Appellate Chief, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.
August 1, 2019
BARRON, Circuit Judge. In 2017, William Gaudet
("Gaudet") was convicted, after trial, in the United States
District Court for the District of Maine for federal sex offenses.
He was sentenced to life imprisonment. Gaudet now challenges his
conviction and sentence on appeal. We affirm.
Gaudet was indicted on December 14, 2016, on one count
of Transportation of a Minor with the Intent to Engage in Criminal
Sexual Activity, 18 U.S.C. § 2423(a), and one count of Travel with
the Intent to Engage in Illicit Sexual Conduct, 18 U.S.C.
§ 2423(b), in relation to allegations made by his daughter, T.G.
Specifically, she testified at trial that he sexually abused her
during a 2010 trip to Maine that he took with her and other family
members and during a 2010 trip that he took with her and other
family members to the Great Wolf Lodge in Pennsylvania.
At his trial -- which took place between November 13,
2017, and November 16, 2017 -- the government relied, in part, on
recorded testimony given by Gaudet's other daughter, Jenny, from
a separate trial,1 which was admitted in evidence over Gaudet's
motion to exclude. In that recorded testimony, Jenny stated that
Gaudet had, on two separate occasions during her childhood, abused
her in a manner similar to the abusive conduct described by T.G.
1 Jenny passed away prior to the instant case and was therefore unable to testify in person.
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The government also introduced evidence of Gaudet's conviction for
sexually abusing Jenny that resulted from that separate trial.
At the close of the government's case, Gaudet moved for
judgment of acquittal under Federal Rule of Criminal Procedure 29.
The District Court denied that motion. Gaudet renewed his motion
after the close of all evidence. The District Court again denied
his motion. The jury found Gaudet guilty of both counts against
On May 1, 2018, the District Court sentenced Gaudet to
life imprisonment on Count One and 360 months of imprisonment on
Count Two. In doing so, the District Court applied the United
States Sentencing Guidelines enhancement for obstruction of
justice, see U.S.S.G. § 3C1.1, which increased Gaudet's base
offense level ("BOL") under the guidelines by two levels.
According to the District Court, the enhancement for obstruction
of justice was warranted because Gaudet had "deliberately [given]
false testimony . . . involv[ing] a material matter [i.e. whether
he had sexually abused T.G.] and the testimony was not a result of
any mistake or faulty memory and was thus willful." Gaudet timely
objected to the District Court's application of the sentence
enhancement, and the District Court overruled that objection.
Gaudet then filed this timely appeal.
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Gaudet first contends that the District Court erred in
denying his Rule 29 motion because the evidence was not sufficient
to support his two convictions. We review the denial of a Rule 29
motion for judgment of acquittal de novo. United States v. Gómez-
Encarnación, 885 F.3d 52 , 55 (1st Cir. 2018). "[W]e must affirm
unless the evidence, viewed in the light most favorable to the
government, could not have persuaded any trier of fact of the
defendant's guilt beyond a reasonable doubt." Id. (citing United
States v. Acevedo, 882 F.3d 251 , 258 (1st Cir. 2018)).
The government's case depended in substantial part on
the credibility of the testimony of T.G., who testified at trial
that Gaudet sexually abused her while she resided with him in
Stoneham, Massachusetts between 2008 and 2010, that he sexually
abused her during the 2010 family trip to Maine, and that he
sexually abused her during the 2010 trip to the Great Wolf Lodge
in Pennsylvania. Gaudet points, however, to what he contends are
features of her account that so undermine her credibility as to
make it unreasonable for a jury to have credited it.
Gaudet emphasizes in particular that T.G. did not
disclose that she had been sexually abused by Gaudet until four
years after the alleged abuse occurred; that she did not disclose
the abuse to her mother until after her sister, Jenny, told her
mother that she suspected that Gaudet had abused T.G. as a child;
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and that she denied that the abuse occurred when questioned by her
teacher. Additionally, Gaudet argues that T.G.'s account of her
abuse at trial varied from the account that she provided during
the first of her two recorded interviews with a social worker in
2014. In particular, Gaudet highlights the fact that, in that
first interview, T.G. stated that Gaudet had never penetrated her
during any of the alleged abusive conduct, while she stated during
her second interview, as she then also testified at trial, that
Gaudet had both penetrated her and forced her to perform oral sex
on him while they were in Maine.
In reviewing a challenge to the sufficiency of evidence,
however, "[i]t is not our role to assess the credibility of trial
witnesses or to resolve conflicts in the evidence[;] instead we
must resolve all such issues in favor of the verdict." United
States v. Hernandez, 218 F.3d 58 , 66 n.5 (1st Cir. 2000). And,
when T.G.'s testimony is viewed in that verdict-friendly light, as
well as in the context of the evidence as a whole, the aspects of
the record that Gaudet highlights do not require the conclusion
that her statements "could not have persuaded any trier of fact of
the defendant's guilt beyond a reasonable doubt." Gómez-
Encarnación, 885 F.3d at 55 (quoting Acevedo, 882 F.3d at 258).
T.G.'s basic story remained unchanged from her first
recorded interview, to her second, to her testimony at trial. In
each instance, she recounted that her father sexually abused her
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while she lived with him in Massachusetts, that he sexually abused
her on their family trip to Maine, and that he sexually abused her
again on their subsequent trip to the Great Wolf Lodge.
Moreover, the government provided expert testimony from
Dr. Ann Burgess -- an expert in the behavior of domestic and sexual
assault victims -- in which she testified that delayed disclosures
are "[v]ery common" in abuse victims and stem from the way the
brain processes, stores, and recalls traumatic experiences. Thus,
the government introduced evidence that a reasonable juror could
credit as offering a ready explanation for what Gaudet
characterizes as the inconsistencies in T.G.'s accounts over time
concerning his abuse.
Gaudet also argues that, in light of the
"inconsistencies" in T. G.'s accounts that we have just considered,
her testimony fails to provide a supportable basis for a rational
juror's finding of guilt because of the testimony of his son,
Matthew Danner. He points out that, at trial, Danner testified
that he was sleeping near T.G. during both the Maine and Great
Wolf Lodge vacations and that he was not aware of any of the
abusive conduct that allegedly occurred. Gaudet contends that, if
T.G.'s allegations were true, then Danner would have been awoken
by the noise and would have been aware of what occurred.
But, Danner testified that he was a "heavy sleeper" and
may have had difficulty waking even if there were nearby
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disturbances. Thus, Danner's testimony hardly provides a basis
for concluding that no reasonable jury could have credited T.G.'s
testimony concerning the abuse that she endured.
Wholly apart from Gaudet's challenge to the credibility
of T.G.'s testimony, he also contends that the evidence was
insufficient for a different reason. He notes, rightly, that both
18 U.S.C. § 2423(a) and 18 U.S.C. § 2423(b) require that the
government prove that the defendant traveled "with intent to engage
in" the alleged sexual conduct. 18 U.S.C. §§ 2423(a), 2423(b).
He then argues that, even if T.G.'s testimony sufficed to permit
a reasonable juror to find that he had sexually abused her during
the Maine and Great Wolf Lodge trips, the government failed "to
present sufficient evidence relating to [his] intent . . . while
traveling/transporting in interstate commerce." He bases that
contention largely on the fact that he testified at trial that his
sole intent in engaging in such travel was to take his children
whale watching in Maine and to the Great Wolf Lodge in
The intent element of these offenses, however, requires
proof only that "criminal sexual activity [was] one of the several
motives or purposes . . . not a mere incident of the trip or trips,
but instead was at least one of the defendant's motivations for
taking the trip in the first place." United States v. Tavares,
705 F.3d 4 , 17 (1st Cir. 2013) (quoting United States v. Ellis,
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935 F.2d 385 , 390 (1st Cir. 1991)) (alteration in original)
(emphases added). Notwithstanding Gaudet's self-serving testimony
concerning what he contends was his innocuous intent in traveling
to Maine and the Great Wolf Lodge, a jury could have reasonably
found from this record that he undertook such travel with the
additional purpose of engaging in the sexual abuse that T.G.
First, the government presented evidence from T.G. that
Gaudet had abused her repeatedly at their home in Stoneham,
Massachusetts before the interstate travel underlying the two
offenses ever occurred. See Ellis, 935 F.2d at 391 (noting that
evidence of other instances of sexual abuse between the defendant
and the victim "is relevant on the issue of the purpose or intent
of the transportation"). Second, the government presented
testimony from T.G. that Gaudet abused her during both the family
trip to Maine and the trip to the Great Wolf Lodge. Cf. United
States v. Abrams, 761 F. App'x 670 , 677 (9th Cir. 2019) ("Where
sexual misconduct occurs both before and after crossing state
lines, [a] rational trier of fact could have found that one of the
dominant purposes [of the interstate transportation was] immoral,
sexual purposes." (alterations in original) (citation omitted));
United States v. Al-Zubaidy, 283 F.3d 804 , 809 (6th Cir. 2002)
(opining that evidence of "what actually happened" is relevant to
the questions of whether a defendant traveled interstate with the
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intent to harm (quoting Washington v. Davis, 426 U.S. 229 , 253
(1976) (Stevens, J., concurring))). Finally, the government
presented evidence of Jenny's testimony from Gaudet's prior trial,
during which she accused him of earlier abusing her in precisely
the same manner as T.G. alleged he had abused her on the trips.
See United States v. Raymond, 697 F.3d 32 , 38-39 (1st Cir. 2012)
(holding that one type of evidence probative of intent is evidence
that the defendant committed an earlier crime that "bore a strong
resemblance to the charged conduct"). In the face of this
evidence, a jury was not obliged to take Gaudet at his word about
the innocence of his intent.
Gaudet also contends that, even if the evidence was
sufficient to support the convictions, they still may not stand,
due to evidentiary errors that the District Court committed. In
particular, he challenges the District Court's decision to admit,
over his motion to exclude, Jenny's testimony from the earlier
trial and to admit into evidence his conviction from that trial.
"This Court reviews a district court's evidentiary
rulings for abuse of discretion . . . ." United States v. Sweeney,
887 F.3d 529 , 537 (1st Cir. 2018). Under that standard, we will
reverse "only if the Court is 'left with a definite and firm
conviction that the court made a clear error of judgment.'" Id.
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(quoting United States v. Joubert, 778 F.3d 247 , 253 (1st Cir.
We start with the District Court's decision to admit
Jenny's testimony. Gaudet does not dispute the District Court's
determination that Jenny's testimony was admissible -- insofar as
its admission would not violate Federal Rule of Evidence 403 --
pursuant to Federal Rules of Evidence 413 and 414.2 Rather, he
contends only that the admission of that testimony did violate
Rule 403 because it was unduly prejudicial.
We have consistently held, however, that there must be
more than mere prejudice for a court to exclude evidence under
Rule 403. Instead, under a Rule 403 inquiry, a court must find
that the challenged evidence was "unfairly prejudicial" and that
such unfair prejudice "substantially outweighed" the evidence's
probative value. Sweeney, 887 F.3d at 538 (emphasis added); see
2 At oral argument, Gaudet did raise for the first time a contention that his indictments under § 2423(a) and § 2423(b) did not constitute "accus[ations]" of sexual assault within the meaning of Rule 413. We have not previously addressed whether charges under § 2423(a) or § 2423(b) constitute accusations of sexual assault within the meaning of Rule 413. There is, however, precedent to support the conclusion that such charges do constitute such accusations, though this precedent does not directly address the relevant text of the Rule. See, e.g., United States v. Batton, 602 F.3d 1191 , 1195-96 (10th Cir. 2010). But Gaudet conceded that this argument was not raised, at least in any clear way, in his briefing to us. Accordingly, we treat that argument as waived. See United States v. Zannino, 895 F.2d 1 , 17 (1st Cir. 1990).
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also id. at 539 (concluding that even though the challenged
evidence was "surely prejudicial," it was not "unfairly
prejudicial such that it violated [Rule 403]"); United States v.
Rodriguez-Estrada, 877 F.2d 153 , 156 (1st Cir. 1989) ("By design,
all evidence is meant to be prejudicial; it is only unfair
prejudice which must be avoided."). Our Court has defined unfair
prejudice as "an undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one."
Sweeney, 887 F.3d at 538 (quoting United States v. Jones, 748 F.3d
64 , 70 (1st Cir. 2014)).
The District Court's balancing of the probative value of
evidence as compared to its tendency to unfairly prejudice the
defendant is entitled to great weight. Id. at 537-38. Thus,
"[o]nly rarely -- and in extraordinarily compelling
circumstances -- will we, from the vista of a cold appellate
record, reverse a district court's on-the-spot judgment concerning
the relative weighing of probative value and unfair effect."
Freeman v. Package Mach. Co., 865 F.2d 1331 , 1340 (1st Cir. 1988).
Applying this past guidance here, we conclude that the
District Court did not abuse its discretion in ruling that the
prejudicial impact of Jenny's testimony -- which was
considerable -- did not "substantially outweigh" the testimony's
probative value. Jenny's testimony was, after all, highly
probative of Gaudet's guilt in multiple ways.
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First, Jenny's testimony was directly probative of
Gaudet's intent in traveling to Maine and the Great Wolf Lodge.
As stated previously, both § 2423(a) and § 2423(b) require that
the government prove beyond a reasonable doubt that the defendant
traveled "with intent to engage in" the alleged sexual conduct.
18 U.S.C. §§ 2423(a), 2423(b). We have previously held that one
type of evidence probative of such intent is evidence that the
defendant committed an earlier crime that "bore a strong
resemblance to the charged conduct." Raymond, 697 F.3d at 38-39.
Here, Gaudet's daughter, T.G., accused him, in part, of molesting
her as a young child by bringing her into his bedroom while she
slept, undressing her, and rubbing her inappropriately. In the
evidence that Gaudet now challenges, Jenny, Gaudet's other
daughter, accused him of molesting her in precisely the same
manner: he transported her across state lines to his home in New
Hampshire, she fell asleep on the couch, he carried her into his
room, he undressed her, and he proceeded to rub her inappropriately
until she awoke.
Second, Jenny's testimony was probative because it
helped to establish the credibility of T.G.'s testimony. Indeed,
much of Gaudet's strategy at trial involved discrediting T.G.'s
credibility by highlighting inconsistencies in her testimony. The
evidence of Jenny's testimony, therefore, was probative because
the near identical account of abuse that she offered helped to
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corroborate T.G.'s allegations by illustrating that his other
daughter had leveled nearly identical allegations against Gaudet
previously. See Joubert, 778 F.3d at 254 ("The uncharged child
molestation testimony was probative of [the victim's] veracity
because it corroborated aspects of [the victim's] testimony,
particularly the nature of the abuse and [the defendant's] modus
operandi in approaching his victims.").
It is true that the abuse that Jenny described in her
recorded testimony occurred several years before the abuse that
T.G. described at trial. See Raymond, 697 F.3d at 39 n.5
(describing the importance of the "temporal proximity" between two
unrelated assaults as it pertained to the defendant's intent to
commit the more recent assault). But Gaudet does not argue that
the challenged evidence was improperly admitted because the abuse
that Jenny described occurred too long ago. And given the nearly
identical nature of the allegations included in Jenny's testimony
and those provided by T.G. at trial, the time gap between the two
incidents does not in and of itself render it an abuse of
discretion for the District Court to have concluded that the
testimony was admissible under Rule 403's unfairly prejudicial
In pressing his case under Rule 403, Gaudet relies
chiefly on Martinez v. Cui, 608 F.3d 54 (1st Cir. 2010). But,
there we merely upheld a District Court's exercise of discretion
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to preclude the admission of testimony concerning allegations of
a defendant's past sexual abuse on the ground that they were too
different from the allegations of sexual abuse for which the
defendant was being tried. Id. at 60-62. Thus, Martinez provides
no support for concluding that the District Court was required to
exclude Jenny's testimony of Gaudet's sexual abuse, when that
testimony alleged abuse nearly identical to the kind for which he
We turn, then, to Gaudet's challenge to the District
Court's decision to admit the evidence of his conviction. But,
Gaudet does not explain why, if Jenny's testimony was admissible
under Rule 403, the admission of the conviction would not have
been. We thus reject this challenge as well. See United States
v. Majeroni, 784 F.3d 72 , 75-76 (1st Cir. 2015) (considering
similar factors to those relied on here to determine that the
District Court did not err in admitting evidence of a prior
conviction of child molestation); Sweeney, 887 F.3d at 538-39
(admitting evidence of a prior assault and battery conviction in
a child pornography case).
We come, then, to Gaudet's challenges to his sentence.
We review sentences imposed under the guidelines for abuse of
discretion. United States v. Velez-Soto, 804 F.3d 75 , 77 (1st
Cir. 2015). Under this standard, we review factual findings for
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clear error and the District Court's construction of the guidelines
de novo. Id.
First, Gaudet challenges the District Court's
application of a two-level sentence enhancement for obstruction of
justice under § 3C1.1 of the Guidelines. U.S.S.G. § 3C1.1
(recommending a two-level sentence enhancement in cases where "the
defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice"). Gaudet argues
to us -- as he did below -- that such an application was improper,
as there was no indication that he "willfully" provided false
testimony. For that reason, Gaudet contends, the District Court's
perjury determination amounted to little more than a conclusion
that the defendant "disagree[d] with the Government's case" and
the jury's ultimate verdict.
Gaudet is right that, to apply the § 3C1.1 enhancement,
the District Court was required to make "independent findings
necessary to establish" willfulness. United States v. Dunnigan,
507 U.S. 87 , 95 (1993). But, the District Court expressly stated
that Gaudet had perjured himself at trial because, in the District
Court's view, "the defendant deliberately gave false testimony
denying the abuse . . . and the testimony was not a result of any
mistake or faulty memory and was thus willful." Given that the
District Court was well-positioned to assess the defendant's
credibility independent of the jury's verdict or the government's
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evidentiary showing, see United States v. Shinderman, 515 F.3d 5 ,
19 (1st Cir. 2008) ("Where, as here, the sentencing judge has
presided over the trial, we must allow him reasonable latitude for
credibility assessments [regarding perjury]."), and that the ample
evidence presented at trial flatly contradicted Gaudet's
assertions that he never sexually abused T.G., we find no error in
the District Court's application of the obstruction of justice
enhancement, see id. (noting that the "irreconcilable differences"
between the defendant's testimony and that of a separate witness
supported the District Court's perjury determination).
Gaudet's challenges to the reasonableness of his
sentence are also unpersuasive. Gaudet first argues that the
District Court did not "impose a sentence sufficient, but not
greater than necessary," as required by 18 U.S.C § 3553(a).
Specifically, he contends that this is so because the District
Court did not appropriately consider his advanced age and the fact
that he was already facing imprisonment as a result of his separate
state sentence. But, the District Court expressly stressed that
its aim was to impose a sentence that was "sufficient but not
greater than necessary to effectuate the goals of 18 U.S.C §
3553(a)," and, in doing so, explicitly addressed Gaudet's age and
existing state sentence as factors that it considered in imposing
the chosen sentence. Accordingly, while Gaudet may have wished
that the District Court weighed these factors differently, our job
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in reviewing a District Court's sentence is not to "substitute
[the defendant's] judgment for that of the sentencing court,"
United States v. Clogston, 662 F.3d 588 , 593 (1st Cir. 2011),
because "the weighing of different sentencing factors is largely
within the court's informed discretion." United States v. Colon-
Rodriguez, 696 F.3d 102 , 108 (1st Cir. 2012) (internal quotation
Gaudet's other challenge also fails. He contends that
the District Court erred by imposing its sentence without
considering "the totality of the circumstances," specifically, his
past abuse at the hands of his father and the fact that he spent
much of his adult life caring for his grandmother and the rest of
his family. But, while the District Court did not expressly
address the two mitigating factors cited by the defendant, we have
no reason to believe that the District Court overlooked them. Each
of these aspects of Gaudet's background was expounded upon, in
detail, by defense counsel during the sentencing hearing, and the
District Court expressly stated that it had considered "the
evidence presented at the [sentencing] hearing" and "everything
[it] heard from counsel." As we have stressed previously, the
District Court need not "walk, line by line, through" each of the
mitigating factors that a defendant presents during sentencing.
United States v. Cortés-Medina, 819 F.3d 566 , 571 (1st Cir. 2016).
Accordingly, "we discern no abuse of discretion in the sentencing
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court's failure to acknowledge explicitly that it had mulled the
defendant's arguments." Id.
We, therefore, affirm Gaudet's conviction and sentence.
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