Evidence of Alleged Prior Assaults Against Different Victims Was Inadmissible Under Fed. R. Evid. 404 and 405, Holds Ninth Circuit

In United States v. Charley, No. 19-10133 (9th Cir. June 13, 2021), the Ninth Circuit vacates a defendant’s convictions on two counts of assault within the territorial jurisdiction of the United States, and remands for a new trial on the assault counts, holding that it was not harmless error to admit evidence of the defendant’s prior assaults under Fed. R. Evid. 404 during the government’s rebuttal case.

In defense of a charge of assault on a Navajo reservation in 2018, the defendant asserted a self-defense claim. She testified that the victim, named Begay, was in the course of sexually assaulting her when the defendant grabbed a piece of rebar (a steel rod) and struck him in the head. To rebut this defense, “the Government presented evidence that, roughly two years before the charged assault, Charley assaulted her stepmother and sister on separate occasions.” The incidents involved the defendant “(1) kicking her stepmother’s door and yelling profanities and (2) hitting [defendant’s] sister on the head with a coffee mug.”

The defendant objected to the prior assault evidence, but the “district court overruled [the] objection based on Rule 404 of the Federal Rules of Evidence,” though “it provided a limiting instruction directing the jury to consider the evidence ‘only for its bearing, if any, on the question of [Charley]’s intent, motive, and identity and for no other purpose.” The defendant was convicted of assault as well as lying to a Federal Bureau of Investigation (FBI) officer.

The panel, while affirming the conviction on lying to an officer, vacates the assault convictions and orders a retrial. The “Government argues that the evidence was admissible under both Rule 404(a) and Rule 404(b)” of the Federal Rules of Evidence. “Typically,” the panel observes, “only general reputation or opinion testimony is proper to show that a defendant accused of assault has a propensity for violence” (citing Fed. R. Evid. 405(a)).

Specific incidents are admissible only when “(a) discrediting a character witness’s testimony during cross-examination; or (b) proving or disproving character “[w]hen a person’s character or character trait is an essential element of a charge, claim, or defense.” Fed. R. Evid. 405(a)–(b). The panel found that neither condition was met: the testimony was not elicited during cross-examination, nor was “propensity for violence … an essential element” of the crime or, as relevant here, the affirmative defense.

As the panel observes, “[a] person of violent character can still prevail on a self-defense claim. Even were it proven that Charley is an exceedingly violent person, a jury would still be required to assess the factual circumstances underlying her conduct on the night of the charged offense and would be free to determine whether Begay was using unlawful force against Charley, whether the force Begay was using against Charley was likely to cause death or great bodily harm, whether Charley reasonably believed that force was necessary to prevent death or great bodily harm, and whether Charley used no more force than appeared reasonably necessary under the circumstances.”

The assaults were also inadmissible as “other acts” evidence under Fed. R. Evid. 404(b), which allows introduction of prior crimes to prove (among other things) motive or intent. “Here, the Government argues that Charley made her motive and intent to assault Begay central issues simply by claiming self-defense . . . But there is no logical connection between those prior incidents and the charged assault other than the implication that Charley has a propensity for violence and was therefore the aggressor on the occasion here—an impermissible inference under Rule 404(b) and an improper consideration when determining whether self-defense was established.”

“Nor,” the panel holds, “do the prior incidents establish Charley’s intent to commit the charged assault against Begay. Generally, an intent to assault is not transferrable across dissimilar and unique sets of circumstances. The panel cited United States v. Bettencourt, 614 F.2d 214, 217 (9th Cir. 1980), for the proposition that “[a] showing of intent to assault on an earlier occasion proves little, if anything, about an intent to assault at some later time.” Here, “Charley’s earlier intent to assault her stepmother and sister would be admissible only if the similarity of the circumstances underlying those incidents alone—and not Charley’s violent propensity implied by the incidents—supplied an independent basis for establishing her later intent to assault Begay.”

Finally, the panel holds that the “other acts” evidence was not harmless. “[T]he evidence comprised nearly [the Government’s] entire rebuttal case, spanning across three witnesses” and “[t]he Government continued to highlight the prior incidents in its closing argument.” Indeed, [o]ther than Charley’s prior incidents, the Government did not present overwhelming evidence to establish that Charley struck Begay for reasons other than self-defense.”

In a brief concurring opinion, Judge Bumatay acknowledges that Bettencourt binds the court but urges that it be overruled because the “limitations set by that case have no basis in the Rules of Evidence and conflict with the rationale of our other decisions.” The concurring judge considers Bettencourt to be little better than “speculation and judicial psychologizing.” Nevertheless, “[b]ecause the non-propensity connection between Charley’s prior acts and the charged conduct here is not strong, even without Bettencourt, I agree that we must reverse her assault convictions.”

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