254 F.3d 1204 (10th Cir. 2001), 00-2300, US v. Tan

Docket Nº:00-2300
Citation:254 F.3d 1204
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellant, v. RAYMOND TAN, Defendant - Appellee.
Case Date:July 02, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1204

254 F.3d 1204 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellant,

v.

RAYMOND TAN, Defendant - Appellee.

No. 00-2300

United States Court of Appeals, Tenth Circuit

July 2, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. NO. CR-00-13-LH)

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[Copyrighted Material Omitted]

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James Miles Hanisee, Assistant United States Attorney (Norman C. Bay, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellant.

Ray Twohig, Ray Twohig, P.C., Albuquerque, New Mexico, for Defendant-Appellee.

Before SEYMOUR, STEPHEN H. ANDERSON, and KELLY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

The United States brings this interlocutory appeal pursuant to 18 U.S.C. § 3731 challenging the district court's Memorandum Opinion and Order ("Order") granting Defendant Raymond Tan's Motion in Limine Regarding Other Cases and Charges ("Motion in Limine") which sought the exclusion of evidence of Defendant's prior drunk driving convictions. The government contends that the district court erred as a matter of law in finding that Tan's prior drunk driving record was not offered for a proper purpose under Fed. R. Evid. 404(b) and concluding, as a result, that it was more prejudicial than probative under Fed. R. Evid. 403. We reverse and remand for further proceedings consistent with this opinion.

I. BACKGROUND

On May 29, 1999, at about 9:00 a.m., Defendant was driving his pickup truck within the borders of the Navajo Indian Reservation when a collision occurred between his truck and two motorcycles driven by William F. Sliney, Jr., and his son Sean F. Sliney. William was killed instantly and Sean was seriously injured. The parties dispute the nature of the collision, but it appears that it resulted either from Defendant driving his truck into the motorcycles or from driving his truck directly into their path. An intoxilyzer test given to Defendant several hours after the accident indicated that his blood alcohol level was .29.

Through investigation, the government discovered that Defendant had been convicted of driving while intoxicated seven times since 1985. Four of the convictions were in Navajo tribal court and three were in New Mexico state court.1 On January 4, 2000, a federal grand jury returned a two count Indictment charging Defendant with second degree murder and assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6), 1111 and 1153.

Before trial, Defendant filed his Motion in Limine seeking to exclude all evidence relating to his prior drunk driving convictions. The district court held a hearing on the matter on July 17, 2000 (the "Hearing"), at which the government argued that the prior convictions were being offered to prove that Defendant acted with

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malice. Defendant argued that the prior convictions were offered to show criminal propensity and were more prejudicial than probative. In addition, he stipulated at the Hearing that he knows that "it's dangerous to other people to drive while intoxicated" (the "Stipulation"). Tr. of Hr'g at 15. The district court, without referring to the Stipulation, granted Defendant's Motion in Limine after finding that the prior drunk driving convictions were not offered for a proper purpose under Rule 404(b) and were more prejudicial than probative under Rule 403.

II. DISCUSSION

In order to prove that Defendant acted with malice aforethought, a required element of the crime of second degree murder, the government must show that he engaged in "conduct which is reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm." United States v. Wood, 207 F.3d 1222, 1228 (10th Cir. 2000) (quotation omitted). Put another way, the government must show that Defendant knew that his conduct posed a serious risk of death or harm to himself or others, but did not care. The government claims that the prior drunk driving convictions were being offered to make that showing.

Specifically, the government argues that, "the fact that there have been long-standing, repeated warnings to Tan regarding alcohol impaired driving that he sadly and blatantly disregarded demonstrates that when he chose to insert the key in the ignition and press his foot to the gas pedal, he simply did not care about the danger he well-knew he posed to other drivers." Appellant's Opening Br. at 19. It argues further that the district court abused its discretion in excluding Defendant's prior drunk driving convictions because its determination that they were not being offered for a proper purpose under Rule 404(b) was erroneous as a matter of law. That error, the government contends, was the basis of the court's conclusion that the evidence was more prejudicial than probative under Rule 403. Accordingly, it urges us to find that the district court abused its discretion by excluding the prior convictions because that exclusion was based on an error of law.

Defendant, on the other hand, contends that the district court properly excluded the evidence because the prior drunk driving convictions were "offered to show the Defendant's propensity to violate the law rather than any element of the government's case." Appellee's Answer Br. at 3. Moreover, he argues, the fact that the evidence was not offered for a proper purpose under Rule 404(b) coupled with the Stipulation support the district court's finding that it was substantially more prejudicial than probative under Rule 403. We review the district court's decision to exclude evidence for an abuse of discretion. United States v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000). "A district court abuses its discretion if its decision is based upon an error of law." United States v. Cherry, 217 F.3d 811, 814 (10th Cir. 2000) (quotation omitted).

Evidence of other bad acts is properly admitted if four requirements are met: (1) the evidence is offered for a proper purpose under Fed. R. Evid. 404(b); (2) the evidence is relevant under Fed. R. Evid. 401; (3) the probative value of the evidence is not substantially outweighed by its potential for unfair prejudice under Fed. R. Evid. 403; and (4) the district court, upon request, instructs the jury to consider the evidence only for the purpose for which it was admitted. Becker, 230 F.3d at 1232 (citing Huddleston v. United States, 485 U.S. 681, 691-92

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(1988)). This appeal focuses on the first and third requirements.

Rule 404(b) and Rule 403 each pose separate and distinct questions, and admissibility under one rule does not govern admissibility under the other. Rule 404(b) presents a narrow threshold inquiry which must be answered before other act evidence can be admitted, namely, whether the evidence is offered for a purpose other than to prove criminal propensity. Questions of probative value versus prejudicial impact are reserved for separate analysis under Rule 403. That analysis is unnecessary if the evidence fails to satisfy the proper purpose requirement of Rule...

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