Morris

MEMORANDUM **

Appellant Augustus Johnley appeals the district court’s admission of certain testimony by K.C. and her stepfather in Johnley’s trial for sexually abusing a minor child. We have jurisdiction pursuant to 28 U.S.C. § 1291 .

Johnley challenges the constitutionality of Federal Rule of Evidence 414, which makes admissible in child molestation cases evidence of a defendant’s previous commission of crimes of child molestation. Johnley had previously pled guilty to sexually abusing K.C. While this case was pending on appeal, we decided United States v. LeMay, 260 F.3d 1018 (9th Cir.2001), which rejected the same due process and equal protection challenges to Rule 414 Johnley makes here. Accordingly, we reject his constitutional claims.

Johnley also challenges the district court’s admission of KC.’s and her stepfather’s testimony under Rule 403. LeMay adopted guidelines for making Rule 403 determinations in cases involving Rule 414. Because the district court did not have the benefit of LeMay at the time it ruled on the admissibility of the challenged testimony, we REMAND to the district court with directions to reevaluate its ruling on the admissibility of K.C.’s and her…