United States v. Cole: Juvenile Sexual Misconduct as “Crimes” Under Federal Rule of Evidence 414 and the Limits of the Rule of Lenity

United States v. Cole: Juvenile Sexual Misconduct as “Crimes” Under Federal Rule of Evidence 414 and the Limits of the Rule of Lenity

I. Introduction

The Tenth Circuit’s published decision in United States v. Cole, No. 24‑7077 (10th Cir. Dec. 24, 2025), squarely addresses a question that had been lurking at the intersection of juvenile justice and the Federal Rules of Evidence:

  • Are acts of child molestation committed while the defendant was a juvenile “crimes” for purposes of Federal Rule of Evidence 414?
  • Can the rule of lenity be invoked to narrow Rule 414’s reach?

In affirming Brett Dewayne Cole’s conviction for aggravated sexual abuse, aggravated abuse, and abusive sexual contact in Indian Country, the Tenth Circuit:

  • Held that acts of child molestation committed when the defendant was under 18 are still “crimes” within the meaning of Rule 414; and
  • Clarified that the rule of lenity does not apply to evidentiary rules like Rule 414, which are not substantive criminal or sentencing provisions.

The court also reaffirmed and applied its established Rule 403 / Rule 414 balancing framework (especially United States v. Enjady and progeny) to uphold admission of uncharged prior acts involving different child victims, occurring 12–21 years before the charged offenses.

This commentary examines the opinion’s factual context, the court’s reasoning, its reliance on precedents, and the broader implications for:

  • Sex-offense prosecutions where the accused has a history of juvenile sexual misconduct, and
  • The treatment of juvenile conduct in federal evidentiary and sentencing regimes.

II. Case Background

A. Parties and Procedural Posture

The United States prosecuted Brett Dewayne Cole, a non-Indian, for sex crimes committed in Indian Country against his stepdaughter, K.Z., a Choctaw tribal member. Cole was charged in federal district court for the Eastern District of Oklahoma with:

  • Aggravated sexual abuse in Indian Country, 18 U.S.C. §§ 2241(c), 1151, 1152;
  • Aggravated abuse in Indian Country, 18 U.S.C. §§ 2244(a)(5), 2246(2)(B)–(C), 1151, 1152; and
  • Abusive sexual contact in Indian Country, 18 U.S.C. §§ 2244(a)(5), 2246(3), 1151, 1152.

The first trial in January 2023 ended in a mistrial when the jury could not reach a verdict. A second trial in March 2023, again featuring testimony about Cole’s prior uncharged acts of child molestation, resulted in guilty verdicts on all counts. Cole appealed, challenging the admission of this “other acts” evidence under Federal Rule of Evidence 414.

B. Factual Overview

The government’s case centered on three incidents involving K.Z., then about 10 years old. In brief:

  • Main charged incident (May 8–9, 2019): After an evening in a shop working on a “Banshee” four‑wheeler, Cole went to K.Z.’s room during the night, woke her, and digitally penetrated her vagina. He allegedly told her she could have the Banshee if she let him do it and warned her not to tell anyone. His wife later noticed his penis was wet when he returned to their bed.
  • Prior incidents K.Z. described:
    • One earlier occurrence of digital penetration; and
    • A separate incident where Cole put his mouth on K.Z.’s vagina, put his penis in her mouth, and put his penis in her anus; and another where he put her hand on his penis and moved it, and forced oral sex.

School personnel noticed K.Z. was distressed on May 9. She disclosed the abuse, and a sexual assault nurse examiner took a history and examined her. A child forensic interviewer later obtained a more detailed account. Cole categorically denied any inappropriate touching.

C. The Disputed Rule 414 Evidence

At both trials, the government introduced evidence of unrelated prior sexual misconduct by Cole against other child relatives, all allegedly occurring when Cole was a juvenile:

  1. Half-sister (about 7 years younger than Cole):
    • Abuse began when she was roughly 5–10, placing Cole at 12–17.
    • She described repeated acts, including:
      • Cole putting his penis in her mouth;
      • Cole kissing her;
      • Cole placing his mouth on her vagina; and
      • Cole inserting his fingers into her vagina.
    • She said there were so many incidents it would take “forever” to recount them all.
  2. Half-brother:
    • Witnessed an occasion in which he opened a shed door to see Cole and the half-sister together, with Cole zipping up his pants; he did not see an actual act of penetration.
  3. Stepcousin (about 5 years younger than Cole):
    • When she was around 8, Cole allegedly:
      • Put his hand down her pants and touched her vagina, telling her not to tell anyone because no one would believe her; and
      • On another occasion, while she slept, undid her pants and digitally penetrated her vagina, prompting her to avoid being around Cole thereafter.
    • Cole denied touching his cousin “without her consent.”

Cole objected to admission of this evidence, arguing:

  • The alleged acts occurred when he was a juvenile and therefore were not “crimes” under Rule 414’s definition of “child molestation”; and
  • Even if they fell within Rule 414, they should have been excluded under Rule 403 because their prejudicial effect substantially outweighed their probative value.

These objections were preserved, and the Tenth Circuit reviewed the district court’s rulings for abuse of discretion.

III. Summary of the Opinion

The Tenth Circuit (Judge Ebel, joined by Chief Judge Holmes and Judge Carson) affirmed.

A. Rule 414 “Crime” Includes Juvenile Sexual Misconduct

The court held that:

  • Acts of child molestation qualify as “crimes” for purposes of Rule 414 even when committed by a juvenile, and
  • Rule 414 does not require a conviction, only that the defendant committed an underlying “crime under federal or state law.”

The court rejected Cole’s argument that, under the Federal Juvenile Justice and Delinquency Prevention Act (FJDA), juvenile acts are not “crimes” but only “juvenile delinquency,” and thus fall outside Rule 414. The FJDA alters procedures and consequences, the court explained, but does not decriminalize the underlying acts.

B. Rule of Lenity Does Not Limit Rule 414

The court further held that the rule of lenity does not apply to:

  • Evidentiary rules such as Rule 414, which govern admissibility of proof and are not substantive criminal or sentencing provisions.

Accordingly, Cole could not invoke lenity to argue that any ambiguity in “crime” should be resolved in favor of excluding juvenile conduct.

C. Rule 403 / Rule 414 Balancing — No Abuse of Discretion

Applying the Enjady framework—an adaptation of Rule 403 to the specific context of Rules 413 and 414—the Tenth Circuit concluded:

  • The prior acts were sufficiently proven by a preponderance of the evidence;
  • They were highly probative of a material, hotly disputed fact: whether Cole sexually abused K.Z.;
  • They showed a pattern of sexually abusing much younger female relatives, similar in age and context to the charged victim; and
  • The risk of unfair prejudice and distraction was not so great as to substantially outweigh their probative value, particularly in light of Congressional intent that such evidence “normally” be admitted.

The court therefore upheld the district court’s admission of the prior acts under Rule 414 and related Rule 403 balancing and affirmed the convictions, making it unnecessary to review the district court’s alternative Rule 404(b) rationale.

IV. Detailed Analysis

A. Precedents and Authorities Cited

1. Juvenile Conduct and the FJDA: Brian N. and Mechem

Cole’s core statutory argument derived from the FJDA definition:

“‘juvenile delinquency’ is the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult.” 18 U.S.C. § 5031 (emphasis added).

Cole read this as implying that acts committed by juveniles are not “crimes” at all, but only “juvenile delinquency.” The Tenth Circuit contrasted that reading with its earlier jurisprudence:

  • United States v. Brian N., 900 F.2d 218 (10th Cir. 1990):
    • Discussed how the FJDA applies to “persons who are juveniles at the time a federal crime is committed.”
    • Emphasized the Act’s purpose: to provide a separate, rehabilitative system and to avoid criminal convictions on juveniles’ records—without redefining the nature of the underlying conduct.
  • United States v. Mechem, 509 F.2d 1193 (10th Cir. 1975):
    • Observed that Congress viewed “juvenile crimes” as primarily a state/local problem.
    • Again, the language presupposed that juveniles do commit “crimes,” even though treated differently procedurally and dispositionally.

The court also noted 18 U.S.C. § 5032, which allows federal criminal proceedings against juveniles (i.e., trying them as adults) in several circumstances, including where the juvenile is charged with a felonious crime of violence. If juvenile acts were not “crimes” at all, such transfer provisions would make little sense.

2. Rule 413 and Juvenile Sexual Misconduct: United States v. Willis

Rule 413 (sexual assault) shares nearly identical language with Rule 414 (child molestation), defining “sexual assault” as “a crime under federal law or under state law.” In United States v. Willis, 826 F.3d 1265 (10th Cir. 2016), the Tenth Circuit:

  • Upheld admission of prior sexual assaults committed by the defendant as a juvenile under Rule 413.
  • Rejected any notion that juvenile status renders misconduct per se inadmissible under Rule 413.
  • Expressly noted the lack of authority that juvenile misconduct is categorically excluded from Rule 413.

Cole tried to distinguish Willis on the ground that it did not specifically analyze the FJDA “crime” argument he now advanced. The panel, however, read Willis more broadly, as having implicitly resolved that juvenile sexual misconduct can qualify as a “crime” under the parallel Rule 413 language, and saw no reason to depart from that understanding under Rule 414.

3. Juvenile Delinquency vs. Conviction: In re Sweeney

Both parties relied on In re Sweeney, 492 F.3d 1189 (10th Cir. 2007), a bankruptcy case. There, the issue was whether a restitution order entered in a federal juvenile delinquency proceeding was nondischargeable as a “criminal” restitution order. The Tenth Circuit held:

  • An adjudication of juvenile delinquency is not the same as a criminal conviction; and
  • Because the discharge exception required a criminal conviction, the restitution order was dischargeable.

Cole extrapolated from Sweeney that juvenile adjudications—and thus the underlying acts—are not “crimes.” The panel rejected this extension:

  • Sweeney addressed the difference between a delinquency adjudication and a criminal conviction for bankruptcy purposes, not whether the underlying conduct was a “crime.”
  • Rule 414 does not require any conviction at all, merely that the defendant committed a “crime” (i.e., conduct that is proscribed by criminal law), whether or not it was prosecuted, and if prosecuted, whether or not via juvenile or adult procedures.

Thus, Sweeney was distinguishable: it turned on the legal status of juvenile adjudications, not on reclassifying the underlying proscribed act as non-criminal.

4. Legislative History and Policy of Rules 413/414: Enjady and Meacham

The court repeatedly invoked its foundational Rule 413/414 cases:

  • United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998):
    • Established the specialized Rule 403 balancing test for Rule 413/414 evidence.
    • Emphasized Congress’s “legislative judgment that the evidence ‘normally’ should be admitted.”
  • United States v. Meacham, 115 F.3d 1488 (10th Cir. 1997):
    • Noted that Rules 413 and 414 were enacted directly by Congress, outside the usual Judicial Conference rulemaking process.
    • Recognized that Congress expressly intended such evidence to be used for propensity reasoning—an exception to the general bar in Rule 404(b).

These precedents underscore that:

  • Rule 414 is to be applied liberally in sex-offense cases; and
  • Courts should rarely exclude other-acts child molestation evidence under Rule 403, consistent with Congressional intent.

5. Rule 403 Framework: Guardia, Perrault, Charley, Harjo, Clay, Sturm

The panel applied its specialized Enjady factors, developed and refined in several other cases:

  • United States v. Guardia, 135 F.3d 1326 (10th Cir. 1998):
    • Identified sub-factors relevant to probative value under Rules 413/414: similarity, temporal proximity, frequency, intervening events, and need for additional evidence.
  • United States v. Perrault, 995 F.3d 748 (10th Cir. 2021):
    • Discussed the number of Rule 414 witnesses and time spent on such evidence, concluding that several witnesses are not necessarily unduly prejudicial, especially when each testifies to separate incidents.
  • United States v. Charley, 189 F.3d 1251 (10th Cir. 1999) (en banc):
    • Stressed the importance of corroborating evidence in child molestation cases where a child victim’s credibility is central and subject to attack.
  • United States v. Harjo, 122 F.4th 1240 (10th Cir. 2024):
    • Reaffirmed that the “key” under Rule 414 is relevance, not corroboration, and reiterated Congress’s policy concerns—child victims’ fragility, lack of other witnesses, and credibility challenges.
  • United States v. Clay, 148 F.4th 1181 (10th Cir. 2025):
    • Reinforced that having victim testimony does not preclude admission of Rule 414 evidence; the government “nearly always has” victim testimony, yet Congress still intended other-acts evidence to be available.
  • United States v. Sturm, 673 F.3d 1274 (10th Cir. 2012):
    • Recognized that where the material fact (e.g., whether abuse occurred) is seriously disputed, that weighs in favor of admitting Rule 414 evidence.

6. Rule of Lenity: Kozminski and Wilson

On the rule of lenity, the panel cited:

  • United States v. Kozminski, 487 U.S. 931 (1988), and
  • United States v. Wilson, 10 F.3d 734 (10th Cir. 1993),

for the settled principle that lenity:

  • Is a canon of construction applicable to ambiguous substantive criminal statutes and sentencing provisions,
  • Grounded in the requirement of fair notice as to what conduct is criminal and what penalties may be imposed.

Rule 414, by contrast, is purely evidentiary. No authority suggests extending lenity to evidentiary rules.

7. Other Supporting Authorities

  • United States v. Riggs (10th Cir. 2024, unpublished):
    • Used to illustrate that the fact prior acts involve different victims or are remote in time does not automatically render them unduly prejudicial or misleading.
  • United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001):
    • Referenced for the proposition that even three instances of prior misconduct can demonstrate sufficient frequency for Rule 414 purposes.
  • United States v. Mercer, 653 F. App’x 622 (10th Cir. 2016) (unpublished):
    • Noted for the point that mere negative feelings toward the defendant arising from Rule 414 evidence are not “unfair” prejudice in the Rule 403 sense; they are inherent in such evidence.
  • United States v. Newton, 369 F.3d 659 (2d Cir. 2004), and Barker v. Fleming, 423 F.3d 1085 (9th Cir. 2005):
    • Invoked to reject the argument that a first hung jury necessarily shows that a later conviction was “close” or the product of harmful evidentiary error.
  • The panel also cited sentencing guidelines and Bail Reform Act definitions of “crime of violence” to explain that forcible sex offenses count as violent felonies even when committed by juveniles—further undercutting any claim that juvenile sex offenses are somehow non-criminal.

B. The Court’s Legal Reasoning

1. Interpreting “Crime” in Rule 414(d)(2)

Rule 414(a) allows evidence that a defendant “committed any other child molestation” in prosecutions for child molestation. Rule 414(d)(2) defines “child molestation” as:

“a crime under federal law or under state law” that involves certain sexually exploitative acts with a person under 14.

Cole’s argument: because the FJDA labels juvenile wrongdoing as “juvenile delinquency” that “would have been a crime if committed by an adult,” acts committed by juveniles are not “crimes” at all and thus are not “child molestation” under Rule 414.

The Tenth Circuit rejected this reading for several reasons:

  1. Statutory context of the FJDA. The FJDA’s entire structure assumes that:
    • Juveniles are capable of committing “federal crime[s]” (as Brian N. puts it); and
    • The Act’s purpose is to provide alternative, less punitive procedures and consequences, not to redefine the nature of the conduct itself.

    The definition in § 5031—“would have been a crime if committed by an adult”—reflects a choice to call the proceeding “delinquency” and avoid a formal “conviction,” not to assert that the proscribed behavior itself is lawfully non-criminal when done by a person under 18.

  2. Juveniles can be tried as adults. Section 5032 allows transfer of juveniles to adult criminal prosecution in certain circumstances, including:
    • Where state juvenile courts lack jurisdiction;
    • Where state programs are inadequate; or
    • Where the juvenile is charged with a “felonious crime of violence.”

    If juvenile acts were not “crimes” at all, such transfer provisions—allowing criminal convictions for the same underlying conduct—would be incoherent.

  3. Purpose and language of Tenth Circuit precedent. Cases like Mechem and Brian N. repeatedly refer to “juvenile crimes,” reinforcing that Congress regarded the proscribed conduct itself as criminal in nature, even though the label and procedural path differ when the actor is a juvenile.
  4. Rule 414 text and Congressional intent. Congress itself enacted Rules 413 and 414 and made clear they:
    • Permit evidence of prior sex crimes “notwithstanding substantial lapses of time”; and
    • May be used for propensity reasoning—quite unlike the usual Rule 404(b) regime.

    If Congress had intended to categorically exclude juvenile sex offenses, it could easily have said so, especially given that juvenile sex offenses are highly probative of later sex-offense propensity.

  5. Consistency with Willis. Given that the Tenth Circuit had already allowed juvenile sexual assaults as “crimes” for Rule 413 purposes in Willis, it would be anomalous to interpret “crime” differently in Rule 414, whose language is materially indistinguishable.
  6. Analogous state-law treatment (Oklahoma). Cole pointed to Oklahoma statutes providing that 15- to 17‑year‑olds charged with rape are treated as “youthful offenders,” and suggested that persons under 15 cannot commit rape as a “crime.” The panel read Oklahoma law differently:
    • Oklahoma recognizes three categories—adult, youthful offender, and juvenile—but all are defined in relation to underlying “crimes.”
    • State law allows trying minors as adults for certain serious offenses, with age and crime type guiding the forum and consequences, not whether the underlying conduct is substantively criminal.

In short, the court concluded that:

  • “Criminal actions engaged in by juveniles are still crimes, simply with different proceedings and consequences.”
  • Rule 414’s reference to “crime under federal or state law” encompasses such conduct.

2. Footnote Clarification: Violent Felonies

In a footnote, the court added that even if Cole’s reading of the FJDA were accepted, his prior acts would likely still fall under the statute’s exception for “felonious acts of violence,” given that nonconsensual sex offenses are generally treated as “crimes of violence” in:

  • The Sentencing Guidelines (e.g., U.S.S.G. §§ 4B1.2, 2L1.2 app. note 2); and
  • 18 U.S.C. § 3156(a)(4) (Bail Reform Act).

Thus, even under Cole’s preferred construction, his prior conduct would be “crimes” of violence and still admissible.

3. Rule of Lenity Does Not Apply to Rule 414

Cole argued, in the alternative, that if “crime” in Rule 414 were ambiguous, the rule of lenity should require resolving that ambiguity in his favor. The Tenth Circuit declined to extend lenity to evidentiary rules, reasoning:

  • The rule of lenity is tied to fair notice about:
    • What conduct is criminal, and
    • What penalties may be imposed.
  • Rule 414 is not a substantive criminal or sentencing provision; it is an evidentiary rule that regulates what proof a court may consider at trial.
  • There is no existing precedent applying lenity to evidentiary rules, and such an extension would not meaningfully serve the fair notice rationale. It is highly implausible that a person would alter their conduct years earlier to avoid the possibility that prior acts might later be admissible at a trial for some other offense.

The court described Cole’s lenity argument as attempting to take the doctrine “one step too far.”

4. Rule 414 and Rule 403: The Enjady Analysis

Once the court concluded that the prior juvenile acts are “crimes” within Rule 414, the remaining question was whether the district court abused its discretion in the required Rule 403 balancing. Under Enjady, the Tenth Circuit applies a structured analysis:

  • Probative value factors (4):
    1. How clearly the prior act was proved;
    2. How probative the evidence is of a material fact;
    3. How seriously the material fact is disputed; and
    4. Whether less prejudicial evidence is available.
  • Unfair prejudice factors (3):
    1. Likelihood of an improper verdict (e.g., punishing for uncharged acts);
    2. Risk that the evidence will distract or confuse the jury about the central issues; and
    3. Time required to prove the prior acts.
a. Probative Value
  1. Clarity of proof. Cole argued that the decades‑long delay in reporting, and his half-brother’s limited corroboration, undermined the reliability of the prior-acts testimony. The court responded:
    • The standard at this stage is preponderance of the evidence—whether it is more likely than not that the acts occurred, not proof beyond a reasonable doubt.
    • Witness credibility is for the jury, not a basis to exclude under Rule 403.
    • The half-sister had disclosed abuse at age 11, supporting reliability.
  2. Probative value as to a material fact. The central fact—whether Cole abused K.Z.—was “seriously disputed.” The court emphasized several subfactors:
    • Similarity. The other acts and charged acts strongly resembled one another:
      • All involved prepubescent female relatives;
      • All involved sexual touching of the vagina, often digital or oral penetration, and oral sex;
      • The victims were of similar ages relative to Cole (much younger family members); and
      • Cole used secrecy and manipulation (e.g., threats that no one would believe them, or offers of rewards).
      The court rejected Cole’s attempt to highlight minor differences (e.g., one prior act involved oral contact that K.Z. did not describe at trial), noting that K.Z. had in fact told the nurse examiner about oral contact.
    • Temporal gap. The prior acts occurred 12–17 years earlier. This lapse undoubtedly reduced probative value somewhat, but Congressional history for Rules 413/414 explicitly states that evidence remains probative “notwithstanding substantial lapses of time.” Thus, remoteness alone did not justify exclusion.
    • Frequency. Cole downplayed the frequency, noting “only five specific acts” in the record. The court pointed out:
      • There is no authority that five acts of molestation are “insubstantial”;
      • The half-sister testified there were many more; and
      • The Ninth Circuit found three incidents sufficiently frequent in LeMay.
    • Intervening events. Cole argued that his later adult life—work, marriage, parenthood, neurological maturation—lessened the probative value of earlier misconduct. The court acknowledged these might reduce probative weight but did not negate it, particularly given the strong behavioral similarities across time.
    • Need for additional evidence. Cole contended the government already had K.Z.’s testimony, corroboration from school staff and the nurse, and physical examination evidence, so additional prior-acts evidence was unnecessary. The court, invoking Charley, emphasized the:
      • Inherent difficulties of child sex cases (no witnesses, credibility attacks); and
      • Congressional determination that past sexual misconduct is uniquely probative as corroboration and propensity evidence in such cases.
      Thus, even where the victim testifies, Rule 414 evidence can be important to provide the jury a full picture of the defendant’s pattern of behavior and to illuminate credibility disputes.
  3. Serious dispute of the material fact. Both sides agreed that whether abuse occurred was the core, hotly contested issue—Cole denied everything. Under Sturm, that factor favors admission.
  4. Availability of less prejudicial evidence. While the government had other evidence, none served the distinct function of proving:
    • Cole’s propensity to molest children, and
    • The credibility of his denial in light of prior similar acts.
    Rule 414 expressly permits propensity use, which is typically forbidden under Rule 404(b). Thus, the court found no meaningful “less prejudicial substitute” for that purpose.
b. Unfair Prejudice
  1. Risk of an improper verdict. Cole argued that:
    • The prior acts involved different victims; and
    • They were remote in time;
    making it likely the jury punished him for past conduct rather than evaluating the charged offenses. The court, citing Riggs, found no basis to conclude that using different victims or older acts necessarily created an improper-punishment risk, especially where:
    • The trial court instructed the jury that prior acts evidence could not, standing alone, prove guilt;
    • The court carefully tied the evidence to issues of credibility and propensity relevant to the charged crimes.
  2. Risk of distraction or confusion. Cole asserted the jury might be distracted by the other acts, particularly since they were uncharged and temporally distant. The panel noted:
    • Remoteness and juvenile status may actually reduce confusion by making it easier to differentiate the prior acts from the charged events; and
    • The district court remained within its discretion to assess jurors’ ability to follow limiting instructions and focus on the charged conduct.
  3. Time consumption. The prior acts evidence took about 16% of the trial transcript and involved three of twelve government witnesses. In Perrault, the Tenth Circuit had approved admission of testimony from three or more Rule 414 witnesses, particularly where each describes a different incident. Here, that allocation of trial time was not “undue” and did not compel exclusion.

Given:

  • The strong probative value Enjady factors; and
  • The lack of substantial unfair prejudice under the specialized 403 analysis for Rules 413/414;

the Tenth Circuit held that the district court acted within its discretion in admitting the evidence. The fact that the first trial hung did not imply error, particularly because:

  • Both juries heard the same Rule 414 evidence; and
  • Hung juries can result from a host of reasons unrelated to evidentiary rulings.

C. Impact and Significance

1. Clarifying the Status of Juvenile Sex Offenses Under Rule 414

Cole formally cements in the Tenth Circuit that:

  • Sexual misconduct committed while the defendant was a minor is still a “crime” for Rule 414 (and by parity, Rule 413) purposes; and
  • Such acts are admissible as “other child molestation” regardless of whether they were:
    • Prosecuted at all;
    • Handled in juvenile rather than adult court; or
    • Resulted in a conviction or merely an adjudication of delinquency.

Defense strategies that hinge on an ontological distinction between juvenile “delinquency” and “crime” are now foreclosed in this circuit for Rule 414 admissibility. The court’s reasoning—rooted in statutory structure and long-standing language recognizing “juvenile crimes”—is likely to be persuasive beyond the Tenth Circuit.

2. Limiting the Reach of the Rule of Lenity

The opinion reinforces a clear boundary: lenity is confined to punitive statutes and does not govern:

  • Federal Rules of Evidence;
  • Procedural rules; or
  • Other non-penal, non-sentencing provisions.

This limitation prevents defendants from using lenity as a general-purpose narrowing tool whenever an evidentiary rule might be characterized as “ambiguous,” which would have destabilized large swaths of evidentiary doctrine.

3. Rule 414 Practice in Child Sex Cases

Cole further entrenches a pro-admissibility posture in sex-offense prosecutions:

  • Courts are reminded that Congress intended Rule 414 evidence to “normally” come in and to be used for propensity, corroboration, and credibility assessment.
  • Long temporal gaps and intervening life events (e.g., maturing into adulthood, family formation) will reduce, but seldom eliminate, probative value where the prior acts are behaviorally similar and involve similar victims.
  • Multiple Rule 414 witnesses describing different incidents will generally be permitted, absent a strong showing of unfair prejudice or jury confusion.

For prosecutors, the decision encourages robust use of historical sexual misconduct evidence, including conduct from adolescence. For defense counsel, it underscores the importance of:

  • Focusing challenges on specific Enjady factors—reliability, similarity, and risk of improper verdict—rather than on categorical arguments;
  • Pressing for careful limiting instructions and trial management to reduce potential prejudice.

4. Indian Country and Intra-Family Abuse

While the jurisdictional aspect (Indian Country, 18 U.S.C. §§ 1151, 1152) was not contested on appeal, Cole fits within a pattern of federal prosecutions of intra‑family child sexual abuse in Indian Country where:

  • There are often no adult eyewitnesses;
  • Victims are young tribal members; and
  • Credibility contests are central.

The liberal admission of prior acts against other child relatives—sometimes occurring in non-Indian contexts, at different locations, and years before—gives federal prosecutors a powerful evidentiary tool to secure convictions in these sensitive cases.

5. Juvenile Justice Policy Tensions

Although the court does not dwell on policy debates, Cole highlights a tension:

  • The FJDA aims to spare juveniles the stigma of a criminal conviction and to facilitate rehabilitation; yet
  • The same conduct, though adjudicated as delinquent or never prosecuted, can reappear years later as highly damaging evidence in an adult criminal trial.

The Tenth Circuit treats this as a structural feature, not a bug: the underlying acts remain crimes, and the evidentiary system is permitted—indeed, encouraged—to consider such history to protect vulnerable child victims in later proceedings.

V. Key Concepts Simplified

1. Federal Rule of Evidence 414 (Child Molestation)

Rule 414 applies when a defendant is charged with child molestation. It allows the prosecution to introduce evidence that the defendant committed “any other child molestation,” meaning:

  • A “crime under federal or state law” involving certain sexual acts with a child under 14.

Unlike most “prior bad acts” rules:

  • Rule 414 explicitly permits using prior acts to show that the defendant has a propensity to molest children, not merely for limited purposes like motive or identity.

2. Rule 413 vs. Rule 414 vs. Rule 404(b)

  • Rule 413: Applies to prosecutions for sexual assault (victim can be adult); allows prior sexual assaults as propensity evidence.
  • Rule 414: Applies to prosecutions for child molestation (victim under 14); allows prior child molestation as propensity evidence.
  • Rule 404(b): General “other acts” rule; typically forbids propensity use and restricts prior acts to purposes like motive, opportunity, intent, or absence of mistake.

Rules 413 and 414 carve out a major exception to the usual ban on propensity evidence in sex-offense cases.

3. Federal Juvenile Justice and Delinquency Prevention Act (FJDA)

The FJDA creates a separate system for federal offenders under 18. Key points:

  • The term “juvenile delinquency” refers to conduct that would be a “crime” if done by an adult, but is processed in a non-criminal, rehabilitative framework;
  • Juveniles can sometimes be transferred to adult criminal court (e.g., for serious violent felonies);
  • One major purpose is to avoid the lasting stigma and collateral consequences of a criminal conviction, while still addressing harmful conduct.

Cole confirms that this procedural and labeling choice does not erase the fact that the underlying acts are “crimes” for evidentiary purposes.

4. Rule of Lenity

The rule of lenity is a principle of statutory interpretation that says:

  • If a criminal law or sentencing statute is genuinely ambiguous after applying all normal interpretive tools, courts should resolve the doubt in favor of the defendant.

It is grounded in:

  • Fair notice: people should be able to know in advance what conduct is illegal and how severe the punishment may be.

Cole holds that lenity does not apply to evidentiary rules like Rule 414, which:

  • Do not define crimes; and
  • Do not set penalties.

5. Rule 403 and the Enjady Test

Rule 403 allows a court to exclude relevant evidence if its probative value is substantially outweighed by dangers such as unfair prejudice, confusing the issues, or wasting time.

In the specific context of Rules 413 and 414, the Tenth Circuit in Enjady crafted a structured, multi-factor test that asks:

  • How strongly the prior act is proven;
  • How probative it is of something important that is seriously disputed;
  • Whether there is a need for it beyond what other, less prejudicial evidence can show; and
  • Whether the risks of an improper verdict, confusion, or time consumption are so great as to substantially outweigh that probative value.

Because Congress intended Rule 414 evidence to be admitted “liberally” in sex-offense cases, exclusion under Rule 403 is expected to be relatively rare.

VI. Conclusion

United States v. Cole makes two doctrinal contributions of lasting significance in the Tenth Circuit:

  1. It firmly holds that acts of child molestation committed while the defendant was a juvenile remain “crimes” for purposes of Rule 414, regardless of whether they were processed through juvenile delinquency proceedings or ever prosecuted.
  2. It reaffirms the limited scope of the rule of lenity, declining to extend it to evidentiary rules and insisting that it remains confined to substantive and sentencing statutes that define crimes and penalties.

On the evidentiary front, the decision reinforces the Tenth Circuit’s longstanding approach to Rules 413 and 414: a strong presumption of admissibility, tempered only by a carefully structured Rule 403 analysis oriented toward Congress’s explicit policy choices in sex‑offense prosecutions. The opinion underscores that:

  • Prior juvenile sexual misconduct—especially where similar in nature and involving similar victims—can be powerful, admissible evidence of propensity and credibility; and
  • Temporal remoteness and intervening life changes diminish but do not erase the probative force of such patterns.

For practitioners, Cole is a critical precedent whenever a defendant’s juvenile sexual history is at issue in a federal child-molestation case. For the broader legal landscape, it highlights the enduring tension between rehabilitative aspirations of juvenile justice and the evidentiary uses of juvenile conduct in later adult proceedings, resolving that tension decisively in favor of robust protection of child victims through expansive use of Rule 414.

Case Details

Year: 2025
Court: Court of Appeals for the Tenth Circuit

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