United States v. Cellicion

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 17, 2021
• Docket: 20-2101
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 17, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-2101 (D.C. No. 1:18-CR-03987-MV-1) ADRIANNE CELLICION, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MORITZ, BALDOCK, and EID, Circuit Judges. _________________________________

Adrianne Cellicion was convicted by a jury of one count of kidnapping in

Indian country in violation of 18 U.S.C. §§ 1201(a)(2) and 1153, and one count of

carjacking in violation of 18 U.S.C. § 2119. She appeals her convictions, arguing

that the district court abused its discretion in admitting evidence of other bad acts

under Federal Rule of Evidence 404(b). Exercising jurisdiction pursuant to

28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. Background

A. The Kidnapping and Carjacking of Nathaniel Perry

Cellicion did not dispute at trial that she was present when the victim of the

charged offenses, Nathaniel Perry, was bound, blindfolded, and chained to a tree.

Rather, she disputed the extent of her role in what occurred.

Perry testified that Cellicion had not paid him for a gun he sold to her. He

picked her up in his car on the morning of September 3, 2018, in Gallup, New

Mexico. She was carrying a backpack when she got into the passenger-side front seat

of Perry’s car. He believed he was giving Cellicion a ride so that she could either

pay him for the gun or return it to him. Cellicion also mentioned to Perry that she

was moving. Perry accepted Cellicion’s offer of methamphetamine and ultimately

took seven hits off of a meth pipe while they were driving around that morning.

Cellicion directed Perry to drive to various places including two motels, a gas

station, and a laundromat. When she went into the laundromat, Perry looked inside

Cellicion’s backpack to see if she had the gun. There was no gun in the backpack,

but Perry saw clothing, glasses, and duct tape. At the first motel they visited, they

picked up a man named “P.J.” who Perry had not met before. P.J. got into the back

seat of Perry’s car, behind Cellicion. They drove to another motel where Cellicion

went inside one of the rooms while P.J. and Perry stayed in the car. About 20

minutes later, Cellicion came out of the motel room with a second man by the name

of “Lucky” who Perry also did not know. Perry understood that Lucky knew the

2 location of Perry’s gun. Cellicion got back into the front passenger seat of Perry’s

car, and Lucky sat behind Perry.

Lucky directed Perry to drive south from Gallup toward Zuni. After driving

for about eleven or twelve miles, Perry saw in his rearview mirror that Lucky was

putting on a camouflage ski mask. Reaching over the back of the driver’s seat,

Lucky put a metal chain around Perry’s neck and began choking him. As Perry

struggled, he lost control of the car and it stalled. After turning the car off, Cellicion

wrapped duct tape around Perry’s forearms and his lower legs while Lucky continued

to choke him with the metal chain. Someone covered Perry’s head with a scarf

secured with duct tape, but Perry could still see through holes in the scarf and could

hear what was happening.

Perry was pulled out of his car onto the ground. Cellicion was also out of the

car. Perry heard her giving directions and also heard the sound of a gun racking.

Perry was dragged across the ground and chained and duct taped to a tree. Cellicion

removed Perry’s belt and used it to further secure him to the tree. The trio took

Perry’s shoes, cellphone, wallet, and smartwatch. Perry heard three car doors slam

before they drove away in his car.

Perry was able to free himself from the chains and duct tape that bound him to

the tree. Leaving the restraints on the ground, he ran for help. A car stopped to pick

him up and drove him back to Gallup. When the occupants of that car would not dial

911 for him, Perry became concerned and he jumped from the car at a traffic light.

He ultimately found a police officer in Gallup and reported what had happened.

3 Perry directed the officer back to the place where he had been chained to the tree.

That location was near two abandoned structures that were over a hill and down a dirt

road from the main road. The police found metal chains, pieces of duct tape, and a

belt near the tree. The officer then took Perry to the hospital where pictures were

taken of the visible injuries to his neck and arm.

Continuing his investigation, the police officer located Perry’s car in the

parking lot of a motel in Gallup. The officer arrested Cellicion, who was standing

next to the car. Inside Perry’s car, police officers found clothing and other

belongings that were not his. They also found Perry’s social security card, driver’s

license, and debit card inside one of the motel rooms. While Cellicion was seated in

the back of a patrol car with Lucky’s girlfriend, a camera recorded Cellicion talking

about tying the owner of the car to a tree and stating that they were about to head out

of town when they all got caught.

Cellicion did not testify. She challenged Perry’s credibility based on various

theories, including his consumption of a substantial amount of methamphetamine on

the day he was kidnapped. Defense counsel argued that she played no active role in

the kidnapping and carjacking and was merely associated with the violent men who

committed the crimes.

B. Evidence of Other Bad Acts

Before trial, the government sought to admit evidence of Cellicion’s prior bad

acts under Rule 404(b). It argued this evidence was admissible to show her intent

and absence of mistake—that she meant to commit the kidnapping and carjacking and

4 was not simply in the wrong place at the wrong time. The government further argued

that the Rule 404(b) evidence was relevant to Cellicion’s motive and plan,

specifically her need to obtain a car to flee from the jurisdiction after being

questioned regarding her role in two previous crimes. Alternatively, the government

contended that the evidence was intrinsic to the charged offenses because it provided

context for why Cellicion wanted to steal Perry’s car. Over Cellicion’s objection, the

district court held the evidence was admissible under Rule 404(b) for the purposes

outlined by the government. The court alternatively held that the evidence was

admissible as intrinsic to the charged offenses. In either case, the court concluded

that, under Federal Rule of Evidence 403, the probative value of the evidence was not

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury.

At the close of its case, the government presented evidence regarding the death

of Roger Johnson. A police officer testified that Johnson’s body was found wrapped

in a blanket in the backseat of his car on February 27, 2018, about six months before

Perry was kidnapped. A surveillance video showed a person getting out of the

passenger side of a white car, entering a gas station, and attempting to use Johnson’s

debit card at the cash register. After identifying the person in the video as Cellicion,

the officer interviewed her on August 29, 2018, less than a week before Perry’s

kidnapping. Cellicion stated that Johnson had picked her up in a white car the day

before his body was found. She admitted she had seen Johnson wrapped in a blanket

and not moving in the backseat of the white car on February 27. And she told the

5 officer about trying to use Johnson’s debit card. The investigation into Johnson’s

death remained open at the time of Cellicion’s trial in this case.

The government next presented evidence regarding the death of Kale Holten.

A police officer testified that he interviewed Cellicion regarding that case on August

15, 2018, less than three weeks before Perry’s kidnapping. She stated that she and

two men decided to seek revenge against Holten after Holten sexually assaulted her.

They lured him to a motel room with a ruse about purchasing methamphetamine.

When Holten entered the room, Cellicion directed him to the bathroom where he was

severely beaten by the two men. Holten was then tied up with rope and duct tape and

kept in the motel room for two to three days. Cellicion unsuccessfully attempted to

use Holten’s credit and debit cards to obtain cash. She used his food stamp card to

purchase food. At some point while Cellicion and the men were restraining Holten

on the motel bathroom floor, she put her knee on his head and heard a pop. She

stated that was when she believed that Holten had died. Cellicion and her boyfriend

rolled Holten’s body in a tarp, placed him in a shopping cart, and put his body in a

dumpster next door to the motel. The police later found human remains at a landfill,

including two hands bound with rope and duct tape. The investigation into Holten’s

death remained open at the time of Cellicion’s trial in this case.

The district court instructed the jury twice—before admission of the evidence

and before closing arguments—that they could consider the evidence of other acts

engaged in by Cellicion only as it bore on her motive, intent, plan, absence of

mistake, or accident, and for no other purpose. The court further instructed that “the

6 fact that Ms. Cellicion may have previously committed an act similar to the one

charged in this case does not mean that Ms. Cellicion necessarily committed the act

charged in this case.” R., Vol. 3 at 274.

II. Discussion

On appeal, Cellicion argues the district court erred by admitting evidence

related to her role in the Johnson and Holten cases because it was unduly prejudicial

under Rule 403. We review that evidentiary ruling for an abuse of discretion,

considering the record as a whole. See United States v. Smalls, 752 F.3d 1227, 1236

(10th Cir. 2014). In applying this standard, we will not reverse a district court’s

ruling “unless we have a definite and firm conviction that [it] made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.”

United States v. Merritt, 961 F.3d 1105, 1111 (10th Cir. 2020) (brackets and internal

quotation marks omitted).

The district court held that the other acts evidence was admissible both under

Rule 404(b) and as intrinsic to the charged offenses.1 Rule 404(b) provides that

“[e]vidence of any other crime, wrong, or 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.” Rule 404(b)(1). But such “evidence may be

admissible for another purpose, such as proving motive, opportunity, intent,

1 Cellicion acknowledges the district court’s ruling that the evidence was admissible under Rule 404(b). She does not mention the court’s alternative ruling that the evidence was admissible because it was intrinsic to the charged offenses. But we read her Rule 403 objection and argument as pertaining to both of the court’s bases for admitting the evidence. 7 preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Rule

404(b)(2). In determining whether evidence is admissible under Rule 404(b), we

consider four factors:

(1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the trial court must make a Rule 403 determination of whether the probative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and (4) pursuant to [Federal Rule of Evidence] 105, the trial court shall, upon request, instruct the jury that evidence of similar acts is to be considered only for the proper purpose for which it was admitted. Smalls, 752 F.3d at 1237 (internal quotation marks omitted). We have said that

Rule 404(b) “is one of inclusion, rather than exclusion, unless the evidence is

introduced for the impermissible purpose or is unduly prejudicial.” Id. (internal

quotation marks omitted). An uncharged act may also be admissible if it is intrinsic

to the charged offenses. See United States v. Ford, 613 F.3d 1263, 1267 (10th Cir.

2010) (“Evidence of other crimes should not be suppressed when those facts come in

as res gestae—as part and parcel of the proof of the offense charged in the

indictment.” (internal quotation marks omitted)).

Cellicion contends that the evidence of her other bad acts was unduly

prejudicial and should have been excluded under Rule 403, which provides: “The

court may exclude relevant evidence if its probative value is substantially outweighed

by a danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.” “Evidence is unfairly prejudicial if it makes a conviction more likely

because it provokes an emotional response in the jury or otherwise tends to affect

8 adversely the jury’s attitude toward the defendant wholly apart from its judgment as

to [her] guilt or innocence of the crime charged.” Merritt, 961 F.3d at 1115 (internal

quotation marks omitted). For evidence to be excluded under Rule 403, the danger of

undue prejudice “must substantially outweigh” its probative value when the evidence

is given “its maximum reasonable probative force and its minimum reasonable

prejudicial value.” Id. (internal quotation marks omitted). The exclusion of relevant

evidence under Rule 403 “is an extraordinary remedy and should be used sparingly.”

United States v. Tan, 254 F.3d 1204, 1211 (10th Cir. 2001) (internal quotation marks

omitted).

In its balancing analysis under Rule 403, the district court held that, given the

many proper purposes for which it could be admitted, the significant probative value

of the other bad acts evidence was not outweighed by undue prejudice. It noted the

presentation of the evidence would be relatively short and narrowly tailored to

convey only necessary information. In particular, it would not include explicit

testimony or images concerning the condition of the victims’ bodies. The court

further concluded that a limiting instruction would curtail any risk the evidence

would be used by the jury for an improper purpose.

In a two-paragraph argument, Cellicion asserts that the danger of unfair

prejudice from the other acts evidence admitted in this case “can hardly be

overstated.” Aplt. Br. at 12. This is so, she argues, because the evidence involved

her active participation in crimes that were far more sensational and disturbing than

the harm inflicted on Perry. In particular, she characterizes the facts of the Holten

9 case as “exceedingly sadistic and brutal.” Id. She therefore contends that the

probative value of the evidence with regard to her intent and absence of mistake2 was

vastly outweighed by the undue tendency of the evidence to suggest a decision on an

improper emotional basis.

We agree with the district court that the evidence regarding Cellicion’s

involvement in the Johnson and Holten cases was substantially probative of her intent

and absence of mistake in this case, particularly given her defense that she was

merely present while violent men committed the crimes. Like the charged offenses,

the earlier incidents both involved incapacitation of the victims and theft of their

debit cards. The Holten incident also involved male accomplices and the use of duct

tape to restrain the victim. And the Johnson case also involved use of the victim’s

car. Moreover, the evidence of Cellicion’s recent interviews by police regarding the

two incidents was also substantially probative of her motive and plan to flee the

jurisdiction using Perry’s car.

Cellicion does not argue otherwise. She also does not directly challenge the

district court’s specific reasons for concluding that the substantial probative value of

the other acts evidence was not outweighed by undue prejudice. We agree with the

government that the evidence presented regarding the Johnson and Holten cases was

neither sensationalized nor prolonged and was narrowly tailored to address the

necessary issues. The admission of the other bad acts evidence was “a matter first for

2 She does not mention the other proper purposes for which the evidence was admitted. 10 the district court’s sound judgment under Rule 403,” and “we cannot say the district

court abused its considerable discretion” in exercising that judgment. Merritt,

961 F.3d at 1116 (internal quotation marks omitted).

III. Conclusion

The district court’s judgment is affirmed.

Entered for the Court

Allison H. Eid Circuit Judge