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United States v. Hamett

United States District Court, N.D. Oklahoma

July 19, 2018




         Now before the Court is plaintiff's notice pursuant to Federal Rule of Evidence 404(b) (Dkt. # 36). Plaintiff seeks to introduce evidence of three incidents (the three incidents) that occurred a few months before the conduct charged in the indictment. Id. Plaintiff contends that this evidence is admissible because it is intrinsic to the crimes charged in the indictment or, in the alternative, under Rule 404(b), as evidence of defendant's motive and intent. Dkt. # 41, at 5. Defendant filed a response opposing plaintiff's notice (Dkt. # 38), and plaintiff filed a reply (Dkt. # 41).


         The indictment charges defendant with the following: beginning on or about April 25, 2017, and continuing through on or about April 26, 2017, in the Northern District of Oklahoma and elsewhere, defendant: (1) unlawfully and knowingly seized, confined, kidnapped, and abducted Person A, for some benefit and purpose and, in committing and in furtherance of the commission of the offense, willfully transported Person A in interstate commerce from Oklahoma to Arkansas, in violation of 18 U.S.C. § 1201(a)(1) (count one); (2) knowingly possessed and received firearms and ammunition which had been shipped and transported in interstate commerce, and defendant knew and had reasonable cause to believe were stolen, in violation of 18 U.S.C. §§ 922(j) and 924(a)(2) (count three); and (3) knowingly possessed in and affecting interstate commerce firearms and ammunition while subject to a protective order, in violation of 18 U.S.C. §§ 922(g)(8) and 924(a)(2) (count four). Dkt. # 13.[1]

         According to defendant (whose representations plaintiff “generally accepts, for purposes of this motion only . . . .” Dkt. # 41, at 3 n.1):

It is alleged that [defendant] [beginning on or about April 25, 2017, and continuing through on or about April 26, 2017] went to the residence of A.H. [i.e. the victim, whom the indictment refers to as Person A], watched her and waited for her to leave for work, and then used a saw to cut a small doorway into the master bedroom of the home. Once inside the home, it is alleged that he laid in wait for A.H. to return from work, armed with her gun and a Taser. A.H. returned home and was tased and bound with zip ties. She was then taken to the trailer of [defendant] where she reported that she was sexually assaulted, including having her clothing cut from her body. She reported that [defendant] threatened her life and his own. She then devised a plan to travel back to Arkansas to renew their wedding vows in hopes that she could find a way to escape during travel. [Defendant] agreed and suggested that they take her vehicle. During this time, A.H. sent several text messages designed to get help from her parents. Her plan worked and the police used her cell phone signal to find and retrieve her from a hotel in Siloam Springs, Arkansas.

Dkt. # 38, at 3.


         Plaintiff states that it may seek to introduce evidence that defendant: “(1) burglarized A.H.'s house on or about January 5th, 2017; (2) was present at A.H. home [sic] without permission on February 6, 2017; and (3) was at [A.H.'s] place of employment [i.e. Rogers State University (RSU)] without legitimate reason on February 21, 2017, ” where, after A.H. alerted campus police, he was served with the Oklahoma protective order that A.H. obtained against him. Dkt. # 41, at 3; see also Dkt. # 36, at 2; Dkt. # 38, at 2-3.[2]

         Plaintiff argues that evidence of the three incidents is “intrinsically linked to the charged counts and necessary to put into context what occurred on April 25-26, 2017.” Dkt. # 41, at 2. Specifically, plaintiff asserts that the three incidents collectively demonstrate that A.H. had reason to fear defendant before he allegedly kidnapped her on April 25-26, 2017, and A.H.'s preexisting fear of defendant is relevant to count one because, under § 1201(a)(1), plaintiff must prove that defendant “unlawfully held, kept, detained, or defined [sic] [A.H.] against her will.” Id. at 3 (citing Tenth Circuit Criminal Pattern Jury Instructions § 2.55 at 177-78 (2011)). Plaintiff explains further that evidence of A.H.'s fear of defendant prior to the kidnapping is particularly relevant in this case because, on April 26, 2017, during the course of the alleged kidnapping and “under the supervision of defendant, ” A.H. sent a text message to her mother, and a similar text message to her boyfriend, stating, “[defendant] came home last night and we have decided our love story is not over. I'm ok. Will call you tomorrow when we get home.” Id. at 4 (quoting Dkt. # 41-1). Plaintiff states that A.H. sent these texts “hoping to alert” her mother and boyfriend that she was in danger. Id. Plaintiff argues that without the evidence of the three incidents, which explain that A.H. feared defendant and did not actually wish to travel to Arkansas with him, A.H.'s testimony explaining the text messages will be “confusing and nonsensical.” Id. In the alternative, plaintiff argues that evidence of the three incidents is admissible under Fed.R.Evid. 404(b) because it shows defendant's motive and intent and is not unduly prejudicial, as the three incidents are “relatively mild compared to the extraordinarily outrageous conduct perpetrated by defendant on April 25-26, 2017.” Id. at 4-7.[3]

         Defendant responds that the Court should exclude the evidence of the three incidents. Dkt. # 38. Fist, defendant argues that this evidence is extrinsic to the crimes charged in the indictment because the conduct charged in the indictment “happened more than two months after” the three incidents and “is easily understood independent of the history that prefaced it.” Id. at 5. Defendant argues further that, in order to prove count four of the indictment, plaintiff must introduce evidence of a protective order against defendant, and “this fact alone will provide a sufficient background to understand the allegations.” Id. Second, defendant argues that, even if the Court finds that the evidence of the three incidents qualifies as evidence of defendant's motive and intent under Rule 404(b), the Court should nevertheless exclude this evidence under Rule 403, because its probative value is low-as plaintiff has at its disposal intrinsic evidence sufficient to “provide contextual understanding of the allegations and to address all essential elements of the charges-”[4] and its danger for prejudice is high-as evidence of “two burglaries and lying to the police” are bad acts that “do not directly relate to the substantive charges.” Id. at 6. Finally, if the Court allows evidence of the three incidents, defendant requests that the Court issue a limiting instruction. Id.

(1) Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
(2) This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

         In weighing the admissibility of evidence under Rule 404(b), the Court must consider four factors: (1) whether the evidence is offered for a proper purpose, (2) its relevancy, (3) whether the probative value of the evidence is substantially outweighed by its prejudicial effect, and (4) the court must give a limiting instruction if the defendant so requests. Huddleston v. United States, 485 U.S. 681, 691 (1988); United States v. Mares, 441 F.3d 1152, 1156 (10th Cir. 2006); United States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000). Rule 404(b) does not apply to evidence which is admitted as proof of the charged conduct; it applies only to evidence of acts extrinsic to the charged crime. United States v. Orr, 864 F.2d 1505, 1510 (10th Cir.1988). “‘An uncharged act [is not] extrinsic if it . . . was ‘inextricably intertwined' with the charged crime such that witness' testimony ‘would have been confusing and incomplete without mention of the prior act.'” United States v. DeLuna, 10 F.3d 1529, 1532 (10th Cir. 1993) (quoting United States v. Record, 873 F.2d 1363, 1372 n.5 (10th Cir. 1989)).The Tenth Circuit has held that “intrinsic evidence is that which is directly connected to the factual circumstances of the crime and provides contextual or background information to the jury.” United States v. Irving, 665 F.3d 1184, 1212 (10th Cir. 2011). Under Rule 403, the Court “may ...

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