United States v. Garrett

• Decision Date: 09 February 2023
• Docket Number: 12-CR-377-JFH
• Parties: UNITED STATES OF AMERICA, Plaintiff v. BUSTER LEO GARRETT, Defendant.
• Court: U.S. District Court — Eastern District of Oklahoma

UNITED STATES OF AMERICA, Plaintiff v. BUSTER LEO GARRETT, Defendant.

No. 12-CR-377-JFH

United States District Court, E.D. Oklahoma

February 9, 2023

OPINION AND ORDER

JOHN FHEIL, III, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Buster Leo Garrett's (“Defendant”) motion to preclude the United States of America's (“Government”) proffered 404(b) evidence (“Motion”). Dkt. No. 45. In the Motion, Defendant objects to the evidence described in the Government's Supplemental Notice of Other Crimes, Wrongs or Bad Acts, filed December 1, 2022 (“Supplemental Notice”). Dkt. No. 40.^[1]The evidence, according to the Government, “tends to show a pattern of conduct wherein Defendant uses force during domestic discord.” Id. at 3. Further, the Government contends the evidence shows “motive, intent, absence of mistake and lack of accident.” Id. Defendant on the other hand contends that the evidence is “highly prejudicial,” and that the resulting prejudice to Defendant outweighs any probative value the evidence may possess. Dkt. No. 45. For the reasons stated, Defendant's Motion is GRANTED in part and DENIED in part.

BACKGROUND

Defendant is charged with two (2) crimes: (i) assault resulting in serious bodily injury in Indian Country [18 U.S.C §§ 113(a)(6), 1151 & 1153]; and (ii) assault resulting in substantial bodily injury to an intimate partner and dating partner in Indian Country [18 U.S.C. §§ 113(a)(7), 1151 &amp 1153]. Dkt. No. 3. According to the Government, Defendant and the alleged victim (“L.G.”) spent June 25, 2021, consuming alcohol on a boat on Lake Eufaula. Dkt. No. 47. Throughout the course of the day, and in advance of the alleged conduct underlying the crimes charged, the Government claims that Defendant (i) forced himself onto L.G. and ejaculated on her and, later in the day, (ii) told L.G. that he hoped she would die. Dkt. No. 47. The Government seeks to introduce evidence of these two (2) alleged “other acts” at trial. Dkt. No. 40.

The indictment charges that after these two (2) incidents, but on the same day, Defendant, an Indian, assaulted L.G., an intimate partner and dating partner of Defendant, resulting in serious and substantial bodily injury. Dkt. No. 3. More specifically, the Government claims that L.G. drove the boat onto a concrete ramp, angering Defendant, who said he hoped she would die and then, “[w]hile still on the boat and in the water . . . punched L.G. several times in the face.” Dkt. No. 47. Defendant does not deny punching L.G. but claims that he was acting in self-defense. Id.

Finally, the Government claims that on June 26, 2021, the day after the alleged assault, “Defendant called L.G. from jail and tried to influence her against prosecution by characterizing his behavior as self-defense and her injuries as caused by an accidental fall.” Id. The Government also seeks to introduce evidence of this “other act” at trial. Id. Trial is set for March 6, 2023.

RELEVANT PROCEDURAL HISTORY

On July 28, 2022, Defendant filed a motion requesting notice of any 404(b) evidence that the Government may seek to admit. Dkt. No. 17. On December 28, 2022, following several extensions of the scheduling order deadlines, the Court deemed Defendant's motion moot due to the Government's filing of its Notice [Dkt. No. 35] and Supplemental Notice [Dkt. No. 40] regarding evidence of “other acts” it seeks to admit under Rule 404(b). Dkt. No. 44. As relevant here, the Government in its Supplemental Notice seeks to introduce the following evidence at trial pursuant to Rule 404(b):

A. On or about June 25, 2021, in Eufaula, prior to the assault charged in the indictment, the Defendant forced himself sexually upon L.G. and ejaculated on her.

B. On or about June 25, 2021, in Eufaula, prior to the assault charged in the indictment, the [D]efendant told the victim he hoped she died.

C. On or about June 26, 2021, in Muskogee, during a recorded phone conversation, the Defendant tried to influence the victim by coaching her to reconsider the injuries he caused by striking her were from a fall; punishment for driving the boat up onto the boat ramp; or self-defense.

Dkt. No. 40, at 1-2.

Defendant filed the instant Motion on January 3, 2023, asking that the Court deem inadmissible the three (3) items of proffered 404(b) evidence contained in the Government's Supplemental Notice. Dkt. No. 45. The Government filed a response brief in opposition to Defendant's Motion on January 10, 2023 (“Response Brief”). Dkt. No. 47.

AUTHORITY AND ANALYSIS

I. Intrinsic versus Extrinsic Evidence

When considering the admissibility of evidence offered under Rule 404(b), the Court must “distinguish between evidence that is extrinsic or intrinsic to the charged crime.” United States v. Kupfer, 797 F.3d 1233, 1238 (10th Cir. 2015) (citing United States v. Pace, 981 F.2d 1123, 1135 (10th Cir. 1992), abrogated on other grounds as recognized in United States v. Bell, 154 F.3d 1205, 1209-10 (10th Cir. 1998)). Intrinsic evidence is “directly connected to the factual circumstances of the crime and provides contextual or background information to the jury.” United States v. Murry, 31 F.4th 1274, 1290-91 (10th Cir. 2022) (quotations omitted). If the Court determines evidence is intrinsic, it must conduct a Rule 403 analysis to determine that the evidence's probative value is not substantially outweighed by the danger of unfair prejudice. United States v. Irving, 665 F.3d 1184, 1212 (10th Cir. 2011). Conversely, extrinsic evidence “is extraneous and is not intimately connected or blended with the factual circumstances of the charged offense.” Murry, 31 F.4th at 1291. If the Court determines the evidence at issue is extrinsic, it must conduct a Rule 404(b) analysis. Kupfer, 797 F.3d at 1238.

Neither the Government nor Defendant advance any argument as to whether the Government's proffered “other acts” evidence is intrinsic or extrinsic to the crimes charged.^[2]The Court must first undertake such an analysis.

Intrinsic evidence may take several forms, including evidence that:

• Is “inextricably intertwined with the charged conduct;”

• Occurs “within the same time frame as the activity in the conspiracy being charged;”

• Is “a necessary preliminary to the charged [crimes];”

• Provides “direct proof of the defendant's involvement with the charged crimes;”

• Is “entirely germane background information, directly connected to the factual circumstances of the crime;” or

• Is “necessary to provide the jury with background and context of the nature of the defendant's relationship to [other actors].”

United States v. Cushing, 10 F.4th 1055, 1075-76 (10th Cir. 2021) (citing Kupfer, 797 F.3d at 1238).

Here, the Government first seeks to introduce testimony that Defendant forced himself on L.G. and ejaculated on her earlier in the day on the date of the alleged crimes. Dkt. No. 40. Defendant argues that there is “no nexus between the two acts.” Dkt. No. 45. The Court agrees.

Defendant is charged with two (2) counts of physical assault on L.G. Dkt. No. 3. Although details gleaned from the Indictment and relevant briefing are sparse, it appears the assault resulting in serious/substantial bodily harm is alleged to have occurred in relatively quick succession to L.G. driving the boat onto the concrete ramp and Defendant becoming angry. Dkt. No. 47. The alleged sexual assault, by contrast, occurred earlier in the day while Defendant and L.G. were on the boat in open water. Id. Indeed, the Government asserts that after the alleged sexual assault, Defendant and L.G. “stopped the boat and ate dinner at Beaver's restaurant.” Id. The Court is mindful that the sexual assault allegedly occurred earlier on the same day as the crimes charged, and thus an argument exists that it occurred within the same time frame. Cushing, 10 F.4th at 1075-76 (10th Cir. 2021). However, the fact that Defendant and L.G. stopped for a meal between the alleged sexual assault and the crimes charged severely undermines the argument that the events are “inextricably intertwined” or occurred within the “same time frame.” Id.

The Court is not convinced that the alleged sexual assault is a “necessary preliminary” to the alleged physical assault, nor does it provide “direct proof of Defendant's involvement” in the crimes charged. Id. Nor does the Court consider the alleged sexual assault to be “entirely germane background information, directly connected to the factual circumstances of the crime.” Id. The alleged sexual assault is separate and distinct from the alleged physical assault in kind and in time; the Court finds that it is extrinsic to the crimes charged.

The Government next seeks to introduce evidence that Defendant told L.G. that he hoped she would die, which occurred in the period between L.G. driving the boat onto the concrete ramp and the alleged assault. Dkt. No. 47. Again, it appears from the Indictment and the briefing that this alleged statement was made moments after L.G. drove the boat onto the concrete ramp and moments before the alleged assault. Therefore, the Court finds the alleged statement to be “inextricably intertwined” with the alleged assault and that it “occurred within the same time frame.” Cushing, 10 F.4th at 1075-76 (10th Cir. 2021). The alleged statement is “entirely germane background information” and it is “directly connected to the factual circumstances of the crime” Id. Therefore, the Court finds that the Government's proffered evidence of Defendant's statement in advance of the alleged assault is intrinsic to the crimes charged.

The Government also seeks to present evidence of an act that occurred subsequent to the crimes charged; namely, that the day after the alleged assault, on a recorded phone call from jail, Defendant attempted to ...