Appellate Case: 21-2101 Document: 010111011796 Date Filed: 03/07/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 7, 2024 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-2101 (D.C. No. 1:18-CR-03984-KWR-1) QUENTIN VENENO, JR., (D. N.M.)
Defendant - Appellant. _________________________________
ORDER _________________________________
Before CARSON, EBEL, and ROSSMAN, Circuit Judges. _________________________________
This matter is before the court on the Petition for Rehearing or Rehearing En
Banc (Petition) filed by Appellant. We also have a response from Appellee. Upon careful
consideration, we direct as follows.
Pursuant to Fed. R. App. P. 40, Appellant’s request for panel rehearing is
GRANTED IN PART to the extent of the modifications in the attached revised opinion.
The court’s September 12, 2023 opinion is withdrawn and replaced by the attached
revised opinion, which shall be filed as of today’s date. Because the panel’s decision to
partially grant panel rehearing resulted in only non-substantive changes to the opinion
that do not affect the outcome of this appeal, Appellant may not file a second or
successive rehearing petition. See 10th Cir. R. 40.3. Appellate Case: 21-2101 Document: 010111011796 Date Filed: 03/07/2024 Page: 2
The Petition, response, and revisions to the court’s original opinion were
transmitted to all non-recused judges of the court who are in regular active service. As no
member of the panel and no judge in regular active service requested that the court be
polled, Appellant’s request for rehearing en banc is DENIED. See Fed. R. App. P. 35(f).
Entered for the Court,
CHRISTOPHER M. WOLPERT, Clerk
2 Appellate Case: 21-2101 Document: 010111011796 Date Filed: 03/07/2024 Page: 3 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 7, 2024 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
v. No. 21-2101
QUENTIN VENENO, JR.,
Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:18-CR-03984-KWR-1) _________________________________
Alan S. Mouritsen, Parsons Behle & Latimer, Salt Lake City, Utah, for Defendant- Appellant Quentin Veneno, Jr.
Emil J. Kiehne, Assistant United States Attorney, Albuquerque, New Mexico (Alexander M.M. Uballez, United States Attorney, with him on the brief) for Plaintiff-Appellee United States of America _________________________________
Before CARSON, EBEL, and ROSSMAN, Circuit Judges. _________________________________
CARSON, Circuit Judge. _________________________________
The COVID-19 pandemic caused an unprecedented disruption to jury trials.
The district courts faced the arduous task of conducting jury trials amid a pandemic
while keeping jurors, court staff, and the public safe from transmission of the virus. Appellate Case: 21-2101 Document: 010111011796 Date Filed: 03/07/2024 Page: 4
Protecting the public’s safety conflicts with a defendant’s constitutional right to have
an open trial. But that right is not absolute.
In this case, the district court conducted two hours of voir dire in a courtroom
closed to the public and broadcasted live over an audio feed. After Defendant
Quentin Veneno, Jr. objected, the district court concluded that the dangers of the
COVID-19 pandemic justified its closure of the courtroom, but also provided a video
feed for the rest of trial. Although Defendant objected to the initial audio-only feed
after the initial two hours of voir dire, he never requested that the district court restart
jury selection or moved for a mistrial.
Defendant also challenges Congress’s constitutional authority to criminalize
the conduct of Indians on tribal land, whether a previous conviction can be a
predicate offense for 18 U.S.C. § 117(a)(1) convictions, and whether admission of
other-act evidence met the rigors of Federal Rule of Evidence 404(b). Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
Defendant Quentin Veneno, Jr. lived with his then-girlfriend—both enrolled
members of the Jicarilla Apache Nation—on the Jicarilla Apache Nation reservation.
One morning, his girlfriend woke up and decided to check her phone to see the time.
Defendant walked into the room, asked who she was talking to, accused her of
talking to other men, and knocked the phone out of her hand. Defendant then hit her
several times with his closed fist. Defendant’s girlfriend slipped by him, ran down a
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hallway, jumped out of a kitchen window, and escaped to a neighbor’s house. That
neighbor called law enforcement.
Defendant reconciled with his girlfriend. Two months later, however, he
became jealous and kicked his girlfriend’s upper body and arm several times with
shoes on his feet. She fled and hid for a few hours in the hills behind her house.
When she returned home, Defendant’s girlfriend explained her absence, but he did
not believe she was hiding. Rather, Defendant accused her of being with another
man. She took him to her hiding place. His response: “Should I just kill you now?”
Five days after that incident, Defendant again attacked his former girlfriend in
another morning fit of jealous rage. Defendant hit the phone out of her hand, accused
her of talking with other men, grabbed her by the hair, threw her on the floor, and
kicked her while wearing shoes. Defendant then dragged her outside the bedroom,
down a hallway and out the kitchen door. He continued to kick her and grabbed her
either by her hair or arms and slammed her head into the cement outside. After the
attack, Defendant’s girlfriend tried to take ibuprofen. She went to pour some milk.
Defendant was behind her, grabbed the milk, dumped the entire gallon on her head,
and said “Here’s your [f-ing] milk.” Despite seeing her in extreme pain, Defendant
prevented her from seeking care.
Two days after the last assault, Defendant’s girlfriend sought medical attention
in Defendant’s absence. She stayed in the hospital for five days, suffering from a
collapsed lung and nine broken ribs. Medical professionals gave her an epidural to
control her pain.
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A federal grand jury charged Defendant with two counts of domestic assault
by a habitual offender in Indian Country under 18 U.S.C. §§ 117(a)(1), 1153—one
count for each of Defendant’s jealous rages. A federal grand jury also charged
Defendant with assaulting his girlfriend in Indian Country resulting in serious bodily
injury in violation of 18 U.S.C. §§ 113(a)(6), 1153.
Prior to trial, the government notified Defendant of its intent to present
evidence of prior bad acts. The two counts of domestic assault by a habitual offender
contain a prior-conviction element. The government listed three prior assault
convictions as predicates: two battery convictions against a household member in the
Jicarilla Apache tribal courts and one federal conviction of domestic assault by a
habitual offender in Indian Country. The government also requested to introduce
evidence that Defendant had assaulted his then-girlfriend shortly before both charged
assaults. Defendant opposed admission of the evidence and filed a motion in limine.
The district court granted Defendant’s motion in limine.
As trial loomed, the government and Defendant weighed the prospect of
Defendant stipulating to the prior convictions. The government argued that a
potential stipulation would qualify those offenses as predicate offenses under the
habitual-offender statute. Defense counsel stated that he was not sure his client
would allow him to stipulate. The district court told him that if Defendant did not
stipulate, the absence of a stipulation would allow the government to go into prior
bad acts. Defense counsel replied, “We would rather not do that, so we’ll defer and
we’ll stipulate to that.”
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The government also sought to introduce evidence under Federal Rule of
Evidence 404(b) that Defendant physically assaulted his then-girlfriend a few days
before the second charged assault. The district court agreed with the government that
the evidence could come in at trial. It reasoned that the evidence was admissible to
prove that his victim had suffered “great bodily harm”—a statutory element of
Defendant’s charged crime—as well as to demonstrate motive and lack of mistake.
After balancing, the district court held that the probative value of the evidence
outweighed any prejudice associated with these prior events.
Defendant’s trial was the first trial the District of New Mexico held during the
COVID-19 pandemic. The District of New Mexico issued an administrative order,
20-MC-4-17, which noted the guidance issued by the Centers for Disease Control and
Prevention and the New Mexico Department of Health. The order limited entry to
the courthouse to those persons having official court business. The District of New
Mexico also developed a “Plan for Resumption of Jury Trials in DNM During the
Pandemic,” which detailed the procedures that the district court judges were to
employ. The plan allowed members of the public and media to attend trial through
an audio feed from the court’s website. It also read, “Video streaming is being
explored by the Court’s Information Services Innovations team.” And at the pretrial
conference, the district court informed the parties that it spent months coming up
with a detailed protocol about how it would handle the trial to make sure that all the
parties, all of the witnesses, all of the jurors, everyone involved, was safe.
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As to the courtroom, the district court’s plan only permitted twenty to twenty-
five prospective jurors to be in the courtroom at once. So, to comply, the district
court planned for two “waves” of venire members—one in the morning and one in
the afternoon. Before jury selection, the courtroom deputy sent the parties an internet
link from the district court’s website that would allow members of the public to listen
to the proceedings via an audio feed. Defendant did not object to the administrative
order, the plan, or the link to the proceedings.
The first morning of trial, the district court began selecting a jury with the first
wave of prospective jurors. At the end of the morning session, the government
questioned the constitutionality of providing only an audio feed. The district court
agreed to put the administrative order in the record. It also said, “when we talk about
a public trial, we’re talking about usually we are able to allow members of the public
to come in and observe the trial, and because we’ve had to reconfigure the entire
courtroom based on this pandemic and concerns for the safety of everyone, we
cannot.”
When asked whether he had comment, Defendant’s attorney stated that he
assumed that the court was providing both an audio and a video feed of the trial. The
district court then told counsel that the court did not have the capability of a video
feed. Defendant then objected to an audio-only feed. The court recessed for two
hours. During the two-hour recess, the district court set up a video feed and stated
that, going forward, the public could listen and watch over a video feed.
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After returning to the record, Defendant formally objected to the lack of video.
In response, the district court first noted that they “had discussed this several times
prior to trial” and that the video issue arose after the parties had already completed
the first wave of jury selection. The district court then turned to the merits of
Defendant’s objection and concluded the trial was not totally closed to the public
because of the audio feed, which the public could access through the district court’s
public website. In the alternative, the district court also concluded that even if it
totally closed the courtroom, Waller v. Georgia, 467 U.S. 39 (1984), permitted a total
closure.
A total closure requires an overriding public interest that is likely to be
prejudiced if the court does not close the proceedings. Waller, 467 U.S. at 48. And
the “closure must be no broader than necessary to protect that interest, the trial court
must consider reasonable alternatives to closing the proceeding, and it must make
findings adequate to support the closure.” Id. First, the danger posed by the COVID-
19 pandemic constituted an overriding interest that justified the closure. The district
court found that “[u]nder the specific circumstances, it is not possible to maintain
social distancing while granting the public physical access to the courtroom.”
Second, the closure was not broader than necessary to protect the public health,
because “it is not possible to adequately social distance and put the public in the
gallery because the venire panelists and jury will occupy the gallery.” Third, the
district court said that reasonable alternatives “have been put in place, as the
proceeding is available to the public through audio and video.” Finally, the district
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court said it believed that it had made adequate factual findings to support the
closure. Defendant did not object to the district court’s findings.
After finishing its Waller analysis, the district court asked the parties whether
it needed to take up anything else before resuming jury selection. Defendant said no.
He did not object to moving to the afternoon panel rather than redoing the morning
panel with video. And after the parties completed the afternoon session, the district
court asked the parties if they had any objection to the way they selected their jury.
Defendant said he did not.
After a two-day trial, the jury convicted Defendant on all three counts. The
district court sentenced Defendant to concurrent prison sentences of sixty months and
115 months on the domestic assault by a habitual offender counts and 115 months on
the assault in Indian Country resulting in serious bodily injury count. Defendant
appealed.
II.
On appeal, Defendant first asserts that the district court violated his right to a
public trial by preventing the public from attending his trial and by failing to provide
a video feed of the first two hours of jury selection. Second, Defendant contends that
the government unconstitutionally procured his convictions because Congress lacks
the constitutional authority to criminalize the conduct of Indians on tribal land. Next,
Defendant argues his prior tribal-court conviction for a domestic violence offense is
categorically overbroad and thus cannot be a predicate offense for his § 117
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convictions. Finally, Defendant posits the district court’s admission of other-act
evidence did not meet the rigors of Rule 404(b). We address each issue in turn.
A.
We begin with Defendant’s argument that the district court denied him his
Sixth Amendment right to a public trial. On this issue, we review the district court’s
factual findings for clear error, but as to the ultimate issue of whether the district
court violated Defendant’s right to a public trial, we review de novo. United States
v. Addison, 708 F.3d 1181, 1186 (10th Cir. 2013) (citing United States v. Al-Smadi,
15 F.3d 153, 154 (10th Cir. 1994)).
The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI.
This right extends to jury selection. Presley v. Georgia, 558 U.S. 209, 213-15 (2010)
(per curiam). The public trial requirement benefits the accused in that the public may
see that the process is fair and that he is not unjustly condemned. Addison, 708 F.3d
at 1187 (quoting Waller, 467 U.S. at 46). Moreover, the “presence of interested
spectators” keeps the jury “keenly alive” to the importance of its function and to a
sense of its responsibility. Id. (quoting Waller, 467 U.S. at 46). We have also noted
the strong societal interest in public trials in that openness “may improve the quality
of testimony, induce unknown witnesses to come forward with relevant testimony,
cause all trial participants to perform their duties more conscientiously, and generally
give the public an opportunity to observe the judicial system.” Addison, 708 F.3d at
1187 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 383 (1979)). It also
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“discourage[s] perjury,” “misconduct of participants,” and “decisions based on secret
bias or partiality.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569
(1980).
But a defendant’s right to a public trial is not absolute. Addison, 708 F.3d at
1187 (citing Waller, 467 U.S. at 45). We have held that closures can be total or
partial. Id. A district court totally closes a courtroom when it excludes all persons
besides “witnesses, court personnel, the parties, and the lawyers.” Waller, 467 U.S.
at 42. As mentioned above, total closure requires an overriding public interest that is
likely to be prejudiced if the court does not close the proceedings. Id. at 48. And the
“closure must be no broader than necessary to protect that interest, the trial court
must consider reasonable alternatives to closing the proceeding, and it must make
findings adequate to support the closure.” Id. When the closure is partial rather than
total, the defendant’s right to a public trial “gives way” if a “substantial” reason for
the partial closure exists. Addison, 708 F.3d at 1187 (citing United States v.
Galloway, 937 F.2d 542, 545 (10th Cir.1991). In either instance, we do not require a
defendant to prove specific harm to obtain relief for a violation of the public-trial
guarantee. Waller, 467 U.S. at 49.
Defendant makes three separate arguments arising from this right. First,
Defendant contends that the district court erred by closing the courtroom before
performing a Waller analysis. Second, Defendant argues that even if the district
court’s Waller analysis was not belated, the district court’s analysis did not meet
Waller’s standards. Third, Defendant asserts that the district court failed, without
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justification, to provide a video stream of the first two hours of his trial. The parties
disagree about the standard of review for Defendant’s third argument—the
government argues for plain error and Defendant argues for de novo review.
1.
Defendant first argues that we must reverse the district court simply because it
did not make its Waller findings before the morning jury selection. He relies on this
sentence from Presley: “Waller provided standards for courts to apply before
excluding the public from any stage of a criminal trial[.]” Presley, 558 U.S. at 213.
But Waller mandates that the district court must do so when the courtroom is closed
“over the objections of the accused.” Waller, 467 U.S. at 47. Defendant’s citation to
Presley is inapt. There, defense counsel objected before the district court excluded
an individual from voir dire proceedings. Presley, 558 U.S. at 210. Here, Defendant
objected after voir dire proceedings began. The district court never excluded the
public from the courtroom “over the objections of the accused” until that point.
Waller, 467 U.S. at 47. And the district court addressed the Waller factors as soon as
Defendant objected. Thus, the timing of the Waller analysis here does not require
reversal.
2.
Having determined that the district court timely performed its Waller analysis,
we consider Defendant’s contention that the district court violated his public trial
right by failing to consider less restrictive alternatives as Waller requires. Under
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Waller’s total-closure standard, the district court was justified in ordering a total
closure here. 1
The district court determined that limiting the spread of COVID-19 amid a
global pandemic qualified as an overriding interest justifying closure. Defendant, on
appeal, accepts this for the sake of argument. 2 Next, the district court believed that
its decision was no broader than necessary to protect that interest. The Centers for
Disease Control and Prevention and the New Mexico Department of Health
recommended social distancing at the time of the trial. The district court determined
it had no place for the public to physically be in the courtroom because the jurors
would be seated in the gallery during trial and that it could not maintain social
distancing while granting the public physical access to the courtroom. As an
alternative, the district court provided an audio and video feed on the court’s website.
And finally, the district court made a record of its findings once Defendant objected,
explaining that preventing the spread of COVID-19 compelled the closure, that
exclusion of the public was the only way to achieve its goal given social distancing
principles and limited space in the courtroom, and that no other reasonable method of
proceeding existed.
1 We need not determine today whether providing an audio/visual feed while excluding live spectators is a total or partial closure. For purposes of our analysis we assume the district court ordered a total closure of the courtroom. 2 The Supreme Court agrees too. See Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam) (“Stemming the spread of COVID-19 is unquestionably a compelling interest”). 12 Appellate Case: 21-2101 Document: 010111011796 Date Filed: 03/07/2024 Page: 15
After making its findings, the district court asked if either party had anything
to say. Defendant said no. He did not object to the district court’s findings or
suggest that they could not support the closure. Now, on appeal, Defendant seeks
reversal based upon Waller’s requirement that the closure be no broader than
necessary to protect that interest. Now, with the trial concluded, Defendant argues
that the district court could have reserved seats for the public, the press, or
Defendant’s family in the gallery. Anticipating the government’s position that
Defendant forfeited this argument, Defendant posits that he preserved the argument
and because the error would be structural, the law entitles him to automatic reversal
of his conviction. On the other hand, the government argues that the district court
considered these scenarios and that Defendant’s real issue is with the district court’s
factual findings, which we should review for clear error.
A structural error is one that “‘affect[s] the framework within which the trial
proceeds,’ rather than being ‘simply an error in the trial process itself.’” Weaver v.
Massachusetts, 137 S. Ct. 1899, 1907 (2017) (quoting Arizona v. Fulminante, 499
U.S. 279, 310 (1991)). It’s an error that “infect[s] the entire trial process.” Neder v.
United States, 527 U.S. 1, 9 (1999). No doubt exists that “a violation of the right to a
public trial is a structural error.” Weaver, 137 S. Ct. at 1908. But that still does not
excuse Defendant from objecting in the district court. 3 Id. at 983–84 (noting that
3 Other circuits have applied plain error to unpreserved Sixth Amendment public trial claims. United States v. Anderson, 881 F.3d 568, 572 (7th Cir. 2018), United States v. Negron–Sostre, 790 F.3d 295, 301 (1st Cir. 2015); United States v. 13 Appellate Case: 21-2101 Document: 010111011796 Date Filed: 03/07/2024 Page: 16
even if an error is structural, under plain-error review, the defendant must show the
error was plain).
Defendant never objected to the district court’s conclusion that the closure was
no broader than necessary. 4 If Defendant wanted the district court to reserve seats for
the public, the press, or Defendant’s family in the gallery, he needed to say so when
the district court asked whether he had anything to say on the matter—a time when
the district court could have accommodated any of Defendant’s requests. A litigant
may not hold an objection in his back pocket at trial simply to raise it for the first
time on appeal hoping it might ultimately work in his favor. United States v.
Turrietta, 696 F.3d 972, 985 (10th Cir. 2012).
We thus review Defendant’s claim for plain error. To establish plain error,
Defendant has the burden of showing “(1) error, (2) that is plain, which (3) affects
substantial rights, and which (4) seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727,
732 (10th Cir. 2005) (en banc). But Defendant failed to address plain error in his
briefing—even after the government addressed it in its response brief. The failure to
Cazares, 788 F.3d 956, 966 (9th Cir. 2015); United States v. Gomez, 705 F.3d 68, 74–75 (2d Cir. 2013). 4 In fact, defense counsel at one point tacitly suggested he agreed with the manner in which the district court conducted the proceedings. This occurred when, after the parties completed the afternoon session, the district court asked the parties if they had any objection to the way they selected their jury and Defendant said he did not.
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argue for plain error and its application on appeal “surely marks the end of the road
for an argument for reversal not first presented to the district court.” Richison v.
Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (citing McKissick v. Yuen,
618 F.3d 1177, 1189 (10th Cir.2010).
But even if Defendant did argue for plain error, the result would be the same.
The District of New Mexico’s Plan for Resumption of Jury Trials explained that
during jury selection, the potential jurors would occupy the jury box and the gallery.
During trial, the jurors and alternate jurors would occupy the gallery. The jury box
would serve as the witness box. For these reasons, the district court judge, who was
present in her courtroom and understood the courtroom’s limitations, concluded that
the courtroom could not safely hold any more spectators.
Trial courts must take every reasonable measure to accommodate public
attendance at criminal trials. Presley, 558 U.S. at 215. For plain error to be present,
the error must have been clear or obvious at the time of the appeal. United States v.
Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005). Holding a trial in September
2020 provided an unprecedented challenge to the district court. After objection to the
closed courtroom, the district court properly analyzed the closure, correctly found an
overriding interest justifying closure, appropriately determined the closure was no
broader than necessary, and reasonably concluded no reasonable alternatives existed.
We believe the district court made an eminently reasonable determination to seat the
jurors in the gallery. And even if we assumed this were error, such error would not
be clear or obvious. Although the district court could possibly have made room for a
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few members of the public, doing so was not necessarily reasonable at the height of
the pandemic. Indeed, reorganizing the entire juror seating arrangement for a few
people would be unreasonable given the context. The district court met Waller’s
standards.
3.
Defendant also urges us to reverse—even if the district court’s Waller analysis
satisfied the Constitution—because the district court did not provide an adequate
explanation for its failure to provide a video feed of the first two hours of his trial.
As mentioned above, after realizing that the district court broadcasted the morning
voir dire session via audio only, Defendant objected that the district court
compromised his Sixth Amendment right to a public trial. The district court then,
over the objection of Defendant, addressed the Waller factors and provided a video
feed.
As mentioned in earlier, his failure to object to the closed courtroom at the
start of the trial prevented de novo review of this issue. 5 Ordinarily, we would
review Defendant’s forfeited claim for plain error. But Defendant fails to argue for
5 The dissent claims that we require “clairvoyance” in our preservation determination. But in this case, the district court not only invited the parties to view the courtroom on multiple occasions and to ask any questions, but also provided the parties with an internet link from the district court’s website that would allow members of the public to listen to the proceedings via an audio feed. Likewise, the District Court’s plan for jury trials during the pandemic made clear it was only exploring a video feed. Although the deputy clerk’s email did not make it on the docket before trial, an email provides “notice” to counsel—no clairvoyance needed.
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plain error in his opening brief. In his reply brief, Defendant footnotes the plain error
issue raised by the government but again does not address it. So Defendant loses on
his lack of response alone. 6 Richison, 634 F.3d at 1131.
B.
We next turn to Defendant’s contention that the government unconstitutionally
procured his convictions because Congress lacks the constitutional authority to
criminalize the conduct of Indians on tribal land. Defendant acknowledges that this
argument contradicts Supreme Court authority and that he advances it solely to
preserve the issue. See United States v. Kagama, 118 U.S. 375, 379–80 (1886)
(providing that Congress has plenary power over Indian tribes that allows Congress to
give federal courts jurisdiction over the conduct of Indians on tribal land). Because
6 Although Defendant did not argue for plain error on appeal, the government presents what might have been his arguments. And although Defendant did not develop that the district court erred with legal propositions, the government noted that the Ninth Circuit held that an audio only feed cannot protect a defendant’s right to a public trial when a video feed is also available. United States v. Allen, 34 F.4th 789, 799(9th Cir. 2022). But Defendant could not have argued successfully that the error “is clear or obvious if ‘it is contrary to well-settled law.’” United States v. Finnesy, 953 F.3d 675, 684 (10th Cir. 2020). “In general, for an error to be contrary to well-settled law, either the Supreme Court or this court must have addressed the issue.” Id. (quoting United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003). Here, neither we nor the Supreme Court has addressed the error. Lastly, the government contends that Defendant has failed to show that “it seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting United States v. Rivas-Macias, 537 F.3d 1271, 1281 (10th Cir. 2008). He could have easily asked to strike the morning voir dire panel and begin anew. This would have been a simple and painless remedy. We agree. Even if Defendant had argued for plain error, he would fail under that analysis. We express no opinion on the merits of the issue given Defendant’s forfeiture. 17 Appellate Case: 21-2101 Document: 010111011796 Date Filed: 03/07/2024 Page: 20
we must follow Supreme Court precedent, we reject Defendant’s argument. Jewell v.
United States, 749 F.3d 1295, 1300 (10th Cir. 2014).
C.
Defendant next posits that his prior tribal-law conviction for a domestic
violence offense is categorically overbroad and thus cannot be a predicate offense for
his § 117 convictions. Section 117(a)(1) provides that a person who commits a
“domestic assault within . . . Indian country” is subject to enhanced penalties if he
has two prior convictions “in Federal, State, or Indian tribal court proceedings for
offenses that would be, if subject to Federal jurisdiction . . . any assault, sexual
abuse, or serious violent felony against a spouse or intimate partner.” Whether a
prior conviction counts as a predicate offense for purposes of a statute that imposes
enhanced penalties on recidivists is ordinarily a matter of statutory interpretation that
we review de novo. United States v. Mendez, 924 F.3d 1122, 1124 (10th Cir. 2019)
(citing United States v. Charles, 576 F.3d 1060, 1066 (10th Cir. 2009)). But
Defendant did not make this argument at trial. When a defendant does not object to
the district court, we review for plain error. United States v. Wilkins, 30 F.4th 1198,
1203 (10th Cir. 2022) (citing Gonzalez-Huerta, 403 F.3d at 1245).
Defendant does not address plain-error review, which effectively forecloses his
appeal on this issue. Richison, 634 F.3d at 1131. Rather, he analyzes the New Mexico
assault statute. The government correctly responds that the conviction was under Jicarilla
tribal law. Defendant—in his reply brief—contends that the Jicarilla law is also
categorically overbroad. But, again, he does not argue for plain error. For an error to be
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plain, it must be “clear or obvious under current law.” United States v. Rosales-Miranda,
755 F.3d 1253, 1258 (10th Cir. 2014). Defendant has not argued categorical overbreadth
for the Jicarilla tribal laws. Defendant has cited no tribal-court decisions or authoritative
sources of tribal law that might bear on the meaning of § 3-5-3(A), nor has he cited any
decisions in this Court or any other analyzing that tribal statute. Defendant has thus
forfeited this argument.
D.
Finally, Defendant asserts the district court’s admission of other-act evidence
did not meet the rigors of Federal Rule of Evidence 404(b). Rule 404(b)(1) 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.” But such evidence “may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). “Rule
404(b) is considered to be ‘an inclusive rule, admitting all evidence of other crimes
or acts except that which tends to prove only criminal disposition.’” United States v.
Tan, 254 F.3d 1204, 1208 (10th Cir. 2001) (quoting United States v. Van Metre, 150
F.3d 339, 349 (4th Cir. 1998)). Evidence that a district court properly admits under
Rule 404(b) may involve a kind of propensity inference. United States v. Moran, 503
F.3d 1135, 1145 (10th Cir. 2007). We review the court’s Rule 404(b) analysis for an
abuse of discretion. United States v. Hardwell, 80 F.3d 1471, 1488 (10th Cir. 1996).
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Rule 404(b) evidence must meet four admissibility requirements. “The
evidence of other crimes, wrongs, or acts (1) must be introduced for a proper
purpose, (2) must be relevant, (3) must have probative value that is not substantially
outweighed by the potential for unfair prejudice, and (4) on request, the trial court
must give a jury instruction limiting the evidence to the proper purpose.” Id. (citing
Huddleston v. United States, 485 U.S. 681, 691–92 (1988)) (cleaned up). When a
court admits other-act evidence for a proper purpose and that evidence is relevant, “it
may be admissible even though it has the ‘potential impermissible side effect of
allowing the jury to infer criminal propensity.’” Moran, 503 F.3d at 1145 (quoting
United States v. Cherry, 433 F.3d 698, 701 n.3 (10th Cir. 2005)).
The government easily meets the first factor—proper purpose. The evidence
supported the government’s assertion that jealousy motivated Defendant’s attacks
arising from his suspicion that his girlfriend was cheating on him. The government
also offered the evidence to identify Defendant as the perpetrator. Defendant argued
that his girlfriend had been drunk during the assaults and her identification was
unreliable. The evidence showed he had beaten her several days before in the same
place, in the same way, and for the same reason, which makes it more likely that her
identification of Defendant was reliable. The evidence also shows that not all his
girlfriend’s injuries were attributable to the charged assault.
The government also easily meets the second factor—relevance. The
uncharged and charged acts are similar. They are relevant to prove Defendant was
his girlfriend’s attacker and to prove his motive for doing so. Within a span of days,
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Defendant assaulted his girlfriend in the same place and in the same manner. The
similarity is obvious.
Defendant mainly argues the government violated the third admissibility
requirement, which requires us to balance the probative value of the evidence against
its prejudicial effect under Federal Rule of Evidence 403. Id. We have recognized
the probative value of uncharged acts to show motive, intent, and knowledge—
whether the acts involved previous conduct or conduct after the charged offense—“as
long as the uncharged acts are similar to the charged crime and sufficiently close in
time.” United States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000) (citing United
States v. Olivo, 80 F.3d 1466, 1468–69 (10th Cir. 1996) and United States v.
Bonnett, 877 F.2d 1450, 1461 (10th Cir. 1989)). We do not require the uncharged
crime to be identical. Id. (citing United States v. Guiterrez, 696 F2d 753, 755 (10th
Cir. 1982)). The government may show the similarity through “physical similarity of
the acts or through the defendant’s indulging himself in the same state of mind in the
perpetration of both the extrinsic offense and charged offenses.” Id. (citing United
States v. Queen, 132 F.3d 991, 996 (4th Cir. 1997) (internal quotation marks
omitted)). “The more similar the act or state of mind is to the charged crime, the
more relevant it becomes.” Id. Along with temporal proximity, we have also
identified these factors in assessing similarity: identified geographical proximity, the
sharing of similar physical elements, and whether the acts are part of a common
scheme. United States v. Mares, 441 F.3d 1152, 1158 (10th Cir. 2006).
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“Our cases make clear that the degree to which factors such as temporal
distance and geographical proximity are important to a determination of the probative
value of similar acts will necessarily depend on the unique facts of each case’s
proffered evidence.” Id. The evidence is probative. The uncharged conduct and the
charged conduct both involve Defendant kicking his girlfriend in her house. And the
assaults were mere days apart. The prior act is nearly identical to the later act. As to
prejudice, we conclude it is minimal. The jury heard about Defendant’s prior
domestic violence convictions because of § 117’s elements. And those prior
convictions were more prejudicial to Defendant and alleviate any unfair prejudice
that this act creates. Cf. United States v. Otuonye, 995 F.3d 1191, 1207 (10th Cir.
2021) (stating that where the evidence was more than sufficient to convict the
defendant and where wrongly admitted evidence was cumulative of other properly
admitted evidence, that evidence was less likely to have injuriously influenced the
jury’s verdict). Excluding relevant evidence under Rule 403 “is an extraordinary
remedy” and we should use it “sparingly.” Id. at 1206 (quoting K-B Trucking Co. v.
Riss Int'l Corp., 763 F.2d 1148, 1155 (10th Cir. 1985)). We decline to do so today.
The district court did not abuse its discretion by admitting the evidence.
Fourth, and finally, the last factor allows the defendant to receive a limiting
instruction upon request. The district court offered such an instruction here. As a
result, the district court properly found the evidence satisfied the four elements and
thus properly admitted the evidence under Rule 404(b).
AFFIRMED.