United States v. Paul Stephen Valdez ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12489
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL STEPHEN VALDEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:20-cr-00039-MCR-1
____________________
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2 Opinion of the Court 21-12489
Before LUCK, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
Paul Stephen Valdez appeals his conviction for theft of gov-
ernment property. He argues the district court abused its discre-
tion by admitting rule 404(b) prior-bad-acts evidence because the
evidence’s probative value was substantially outweighed by undue
prejudice. After careful review, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In July 2020, Valdez was charged by superseding indictment
with theft of government property valued at more than $1,000, in
violation of 18 U.S.C. section 641. Valdez was accused of stealing
eight ballistic plates—protective ceramic inserts that fit four to a
body armor vest and are worth $625 each—from his military unit
at Eglin Air Force Base. Valdez pleaded not guilty and opted for a
trial.
As trial approached, the government notified Valdez of its
intent to introduce evidence of three prior bad acts under Federal
Rule of Evidence 404(b). The first was testimony that Valdez ad-
mitted to stealing a combat helmet a Special Forces soldier had
placed on the ground during a training exercise. The second was
evidence that Valdez stole smoke grenades. And the third was tes-
timony about Valdez’s professed plans to steal night-vision goggles
and ammunition from his military unit.
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21-12489 Opinion of the Court 3
Valdez moved to exclude evidence of the helmet, night-vi-
sion goggles, and ammunition under rule 404(b). He argued there
was insufficient evidence the helmet had been stolen and that any
such evidence was relevant only to his character. He also argued
that any banter about stealing night-vision goggles and ammuni-
tion was simply part of the Army’s joking culture, so admitting that
evidence would be highly prejudicial but “only minimally proba-
tive.”
The district court found the evidence admissible and so de-
nied Valdez’s motion. It concluded that: (1) the prior-bad-acts ev-
idence was relevant to intent, knowledge, motive, opportunity,
preparation, and planning; (2) Valdez’s admission—even if “puff-
ery”—was sufficient proof (for rule 404(b) purposes) that he stole
the helmet; (3) whether Valdez was joking when he talked about
plans to steal the goggles and ammunition went to the evidence’s
weight rather than its admissibility; and (4) any unfair prejudice—
which was unlikely because the bad acts weren’t heinous—could
be mitigated by cautionary jury instructions.
At trial, the jury heard that, in 2019, Valdez was stationed at
Camp Rudder at Eglin Air Force Base in Florida as part of the
United States Army’s 6th Ranger Training Battalion. On the even-
ing of August 27, Valdez was hanging out at the bar across the
street from the barracks with Specialist Dylan Sitzler. Around
10:00 p.m., Valdez asked Sitzler to go with him to a nearby building
where his unit had staged equipment—including ballistic plates—
for field training the next morning.
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4 Opinion of the Court 21-12489
Sitzler testified that, while he acted as a lookout, Valdez—
dressed in sweatpants and a black hoodie—climbed through the
building’s unlocked rear window and retrieved two ballistic plates.
Valdez went back into the building twice and took six more plates,
then used his hoodie to wipe away any fingerprints he might’ve
left. Sitzler carried two of the plates back to his barracks room, but
late that evening Valdez stopped by and asked him to keep two
more. Sitzler took the plates but got nervous about keeping them,
so he stashed all four in a tire in the motorcycle parking area.
The battalion didn’t immediately recover the missing plates
the next day, and Valdez called Sitzler to ask “where the plates
were and if they were ready to be moved off site.” Sitzler told Val-
dez he didn't know, then anonymously called the camp’s staff duty
desk to report the plates’ location. The staff duty sergeant recov-
ered the four plates from inside the tire.
Over the next few weeks, Valdez admitted to numerous
members of his unit that he had taken the ballistic plates. On Au-
gust 28—the day after the theft—he told Specialist Timothy Prater,
but Prater thought Valdez was joking. About a week later, Valdez
told Prater again, “with a more serious demeanor” this time.
Around the same time, Valdez also told his eventual co-defendant,
Specialist Timothy Johnson. According to Johnson, Valdez said he
wanted to obtain a set of plates for his personal use before leaving
active duty in December, so he didn’t leave the Army “with noth-
ing to show for it.” Valdez confessed again in front of Johnson and
Specialist Alejandro Perez following a training exercise a few weeks
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21-12489 Opinion of the Court 5
later. And on September 7, while at a bar in nearby Destin, Valdez
told Sergeant Luke Harshaney. Harshaney testified that he asked
Valdez if he took the plates because, several months prior, Valdez
had told Harshaney that he took a combat helmet from a Special
Forces soldier training at Camp Rudder. In response, Valdez first
denied taking the plates, then tapped Harshaney’s chest and asked
if he was wearing a wire, and finally said yes, he took them by
climbing through “a back window that people left cracked all the
time.” Valdez told Harshaney that he planned to ship the plates
home to Kentucky, just like he did with the helmet. [Id. at 142:5–
19] Johnson testified that Valdez told him about the combat hel-
met too—Valdez said he found it “just sitting somewhere [unse-
cured] and [so] he grabbed it and took it.”
A few weeks after the ballistic plates were stolen, Perez and
Johnson helped Valdez move from the barracks to an apartment in
Pensacola. Perez testified that, during the move, Valdez showed
him four ballistic plates and four or five smoke grenades in a closet
in the apartment. Perez recognized the plates and grenades as
Army property. Valdez told Perez that he and Harshaney took the
grenades from the military unit.
On September 21, Valdez asked Perez for help moving the
ballistic plates. Perez said no, but he later agreed to lend his truck
to Johnson. Johnson used the truck to help Valdez—who, accord-
ing to Johnson, thought investigators were onto him—move the
plates from his apartment in Pensacola. Valdez put the plates in
Johnson’s backpack along with at least one smoke grenade.
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6 Opinion of the Court 21-12489
Johnson then stashed the backpack in the outdoor storage closet of
his girlfriend Paige Powell’s apartment in Crestview, Florida. Pow-
ell testified that she saw the plates and a smoke grenade in the back-
pack Johnson left in her storage closet.
Meanwhile, while Johnson had the truck, Perez followed his
location on Snapchat: Valdez’s Pensacola apartment and then, a
bit later, Powell’s Crestview apartment—which she shared with
Perez’s girlfriend. This made Perez suspicious that Valdez and
Johnson had used his truck to move the ballistic plates to the
women’s apartment. So Perez eventually asked his girlfriend to
allow officers to enter the apartment to seize the plates. She
agreed, and on October 9, Perez notified Security Forces of where
he suspected the plates could be found. Officers then went to the
women’s apartment and recovered the plates and smoke grenades.
In addition to evidence about the ballistic plates, combat hel-
met, and smoke grenades, the government presented evidence of
two plans by Valdez to steal other military equipment. First, John-
son testified that, a few months before the plates went missing, Val-
dez discussed with him, Perez, Prater, and Specialist Zachary
Outen a detailed plan for stealing night-vision goggles from the
camp’s staff duty desk: Valdez explained that someone could enter
the building at 5:30 p.m.—when the desk would be unattended
while the camp’s flag was being lowered—to take the goggles from
the desk’s safe, and someone else could have a car waiting outside
to go hide the goggles in the woods just off the camp’s grounds,
marking the spot using cell phone GPS for later retrieval. Prater,
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21-12489 Opinion of the Court 7
too, recalled Valdez saying he “want[ed] to try to take some” night-
vision goggles; Prater didn’t know whether Valdez ever followed
through, though.
Second, Johnson testified that Valdez talked with him and
Outen about a plan—but not “like a real plan”—to steal ammuni-
tion. Outen testified that the men discussed, only hypothetically,
“how easy it would be for anyone to get in” to the ammunition
supply point, where “[s]ecurity . . . [wa]s minimal, at best.” Outen
said “[t]here was a little more thought put into” the conversation
about stealing night-vision goggles, but even then the idea was
dropped within a week. According to Security Forces Investigator
Barton Gonzalez, no night-vision goggles were ever reported miss-
ing.
At the conclusion of the three-day trial, a jury convicted Val-
dez of theft of the ballistic plates. He was sentenced to five years
of probation, including four months of home detention.
STANDARD OF REVIEW
We, ordinarily, review a district court’s admission of rule
404(b) prior-bad-acts evidence for a clear abuse of discretion.
United States v. Elysee, 993 F.3d 1309, 1347 (11th Cir. 2021), cert.
denied, 142 S. Ct. 2782 (2022) (citation omitted). The government
suggests, however, that Valdez is entitled only to plain error review
because he didn’t renew at trial his objections to the disputed evi-
dence.
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8 Opinion of the Court 21-12489
The government relies on United States v. Brown, 665 F.3d
1239 (11th Cir. 2011), but Brown, in turn, relies on a case applying
a now-outdated version of the Federal Rules of Evidence. See id.at 1247 (citing United States v. Khoury, 901 F.2d 948, 966 (11th Cir.
1990)). Rule 103 was amended in 2000 to add subsection (b):
“Once the court rules definitively on the record—either before or
at trial—a party need not renew an objection or offer of proof to
preserve a claim of error for appeal.” Fed. R. Evid. 103(b) & advi-
sory committee’s note to 2000 amendment. A district court rules
definitively when it uses “decisive” (as opposed to equivocal or
contingent) language to deny or overrule a motion in limine. See
United States v. Wilson, 788 F.3d 1298, 1313 (11th Cir. 2015). So
Valdez did not need to renew at trial any objection the district
court resolved definitively pretrial.
Valdez moved in limine to exclude evidence of the helmet,
night-vision goggles, and ammunition, and the district court’s or-
der denying Valdez’s motion was definitive. The district court con-
cluded that the helmet-related evidence “satisfie[d] the [r]ule 404(b)
standard for admissibility” and that evidence of Valdez’s plans to
steal night-vision goggles and ammunition was likewise “relevant
and admissible under [r]ule 404(b).” Accordingly, Valdez did not
need to renew his objections to this evidence at trial, and an abuse
of discretion standard applies.
A plain error standard applies with respect to the smoke gre-
nade evidence, though, because Valdez failed to preserve the issue
by contemporaneous objection. See United States v. Guevara, 894
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21-12489 Opinion of the Court 9
F.3d 1301, 1309 (11th Cir. 2018) (citation omitted). Valdez’s mo-
tion in limine didn’t mention the smoke grenades, and he also
failed to object at trial when witnesses testified about them—or
when the district court admitted the grenades themselves, as well
as photographs depicting them.
A district court abuses its discretion when it “applies the
wrong law, follows the wrong procedure, bases its decision on
clearly erroneous facts, or commits a clear error in judgment.”
United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005) (cita-
tions omitted). Still, we will only reverse an erroneous evidentiary
ruling if the resulting error was not harmless. United States v.
Langford, 647 F.3d 1309, 1323 (11th Cir. 2011) (citation omitted);
accord Fed. R. Crim. P. 52(a). “An error is harmless unless there is
a reasonable likelihood that it affected the defendant’s substantial
rights.” Langford, 647 F.3d at 1323 (quoting United States v.
Hands, 184 F.3d 1322, 1329 (11th Cir. 1999)). Accordingly, we will
not reverse “if sufficient evidence uninfected by any error supports
the verdict, and the error did not have a substantial influence on
the outcome of the case.” Id. (quoting (United States v. Khanani,
502 F.3d 1281, 1292 (11th Cir. 2007)).
“To demonstrate plain error, the defendant must show that
there is ‘(1) error, (2) that is plain and (3) that affects substantial
rights.’” Guevara, 894 F.3d at 1309 (quoting United States v.
Turner, 474 F.3d 1265, 1276 (11th Cir. 2007)); accord Fed. R. Crim.
P. 52(b). For an error to affect substantial rights, “the error must
have been prejudicial: It must have affected the outcome of the
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10 Opinion of the Court 21-12489
district court proceedings.” United States v. Olano, 507 U.S. 725,
734 (1993) (citations omitted). “If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited
error, but only if (4) the error seriously affects the fairness, integ-
rity, or public reputation of judicial proceedings.” Guevara, 894
F.3d at 1309 (quoting Turner, 474 F.3d at 1276).
DISCUSSION
Although two different standards of review apply here, we
discuss the challenged evidence together because we conclude
that, even under the more Valdez-friendly abuse-of-discretion
standard, the district court did not abuse its discretion in admitting
the rule 404(b) evidence.
Rule 404(b) prohibits the use of extrinsic “[e]vidence of any
other crime, wrong, or act . . . to prove a person’s character in or-
der to show that on a particular occasion the person acted in ac-
cordance with the character” but permits such evidence for any
other purpose, including “proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack
of accident.” Fed. R. Evid. 404(b)(1)–(2); United States v. Edouard,
485 F.3d 1324, 1344 (11th Cir. 2007) (citation omitted). We apply a
three-part test to analyze the admissibility of bad-acts evidence un-
der rule 404(b): “(1) it must be relevant to an issue other than [the]
defendant’s character; (2) there must be sufficient proof to enable
a jury to find by a preponderance of the evidence that the defendant
committed the act(s) in question; and (3) the probative value of the
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21-12489 Opinion of the Court 11
evidence cannot be substantially outweighed by undue prejudice,
and the evidence must satisfy [r]ule 403.” Edouard, 485 F.3d at
1344 (citation omitted). On appeal, Valdez disputes only the third
prong of this test, arguing that the extrinsic evidence at issue “had
little probative value to the charged offenses, while unduly preju-
dicing the jury against” him.
Probative value
We assess prior-bad-acts evidence’s probative value by
“evaluat[ing] the [g]overnment’s incremental need for the evi-
dence to prove guilt beyond a reasonable doubt, ‘the overall simi-
larity of the extrinsic and the charged offenses[,] and the closeness
or remoteness in time of the charged to the extrinsic offense.’”
United States v. Ellisor, 522 F.3d 1255, 1268 (11th Cir. 2008) (quot-
ing United States v. Parr, 716 F.2d 796, 805 (11th Cir. 1983)). “[I]f
the government can do without such evidence, fairness dictates
that it should; but if the evidence is essential to obtain a conviction,
it may come in.” United States v. Calderon, 127 F.3d 1314, 1332
(11th Cir. 1997) (quoting United States v. Pollock, 926 F.2d 1044,
1048 (11th Cir. 1991)).
Importantly, a defendant who pleads not guilty “makes in-
tent a material issue which imposes a substantial burden on the
government to prove intent . . . absent affirmative steps by the de-
fendant to remove intent as an issue.” Edouard, 485 F.3d at 1345(quoting United States v. Zapata, 139 F.3d 1355, 1358 (11th Cir.
1998)). And, “[b]ecause it is difficult to prove intent by direct evi-
dence, it normally must be inferred from circumstantial evidence.”
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12 Opinion of the Court 21-12489
United States v. Hurley, 755 F.2d 788, 790 (11th Cir. 1985) (citation
omitted). So, “[a] similarity between the other act and a charged
offense will make the other offense highly probative with regard to
a defendant’s intent in the charged offense.” United States v.
Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (citation omitted);
accord United States v. Baker, 432 F.3d 1189, 1205 (11th Cir. 2005)
(“[W]e have generally held that if the extrinsic act requires the
same intent as the charged offenses[,] and if these acts are proxi-
mate in time to the charged offenses, then the extrinsic act is highly
probative.” (cleaned up)).
Here, the government had to prove beyond a reasonable
doubt that Valdez knowingly and willfully intended to deprive the
United States of the use or benefit of the ballistic plates. See Moris-
sette v. United States, 342 U.S. 246, 263 (1952); United States v.
McRee, 7 F.3d 976, 980 (11th Cir. 1993); Eleventh Circuit Pattern
Jury Instructions (Criminal Cases) § O21 (2022). And Valdez
pleaded not guilty, thereby making his intent a material issue
which he did not affirmatively remove before or at trial. See Edou-
ard, 485 F.3d at 1345.
Evidence that Valdez knowingly and willfully deprived—or
planned to deprive—the United States of other military equipment
was highly probative of his intent with regard to the ballistic plates.
The combat helmet, smoke grenade, night-vision goggles, and am-
munition evidence was very similar to Valdez’s charged offense.
All involved the actual or planned theft of high-value military
equipment. Valdez removed both the smoke grenades and four of
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21-12489 Opinion of the Court 13
the ballistic plates from Camp Rudder. The government intro-
duced Valdez’s admissions (to Harshaney) that he did the same
with the combat helmet—shipping it home to Kentucky—and that
he planned to ship the plates back home too. As for the night-vision
goggles, Valdez planned in detail how to get the equipment off-
camp undetected, then mark its hiding spot for later retrieval. That
same plan leveraged a vulnerability he’d spotted—the daily period
when the duty desk was unmanned while the camp’s flag was low-
ered—just like he leveraged his knowledge of “a back window that
people left cracked all the time” to steal the ballistic plates. And
Valdez’s plan to steal ammunition likewise leveraged a known vul-
nerability: lax security at the ammunition supply point.
The prior bad acts were also close in time to the charged
offense. The smoke grenades were found with the ballistic plates.
Harshaney estimated that Valdez told him he took the combat hel-
met several months before the ballistic plates went missing. And
although trial testimony didn’t pin down when the conversations
about Valdez’s plans to steal night-vision goggles and ammunition
occurred, Outen recalled Johnson and Prater being present for
both. Johnson and Prater were assigned to Camp Rudder in No-
vember 2018 and February 2019, respectively, meaning the conver-
sations couldn’t have happened more than six months before the
ballistic plates were stolen—well within time periods we’ve found
sufficiently proximate for rule 404(b) purposes. See, e.g., Edouard,
485 F.3d at 1345–46 (finding two years’ distance sufficient); United
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14 Opinion of the Court 21-12489
States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir. 1993) (same);
Ellisor, 522 F.3d at 1268 (three years).
In short, the strong similarities between the prior bad acts
and Valdez’s charged offense—coupled with the events’ temporal
proximity—add up to evidence “highly probative” of Valdez’s in-
tent to steal the ballistic plates. See Ramirez, 426 F.3d at 1354. Val-
dez argues the evidence wasn’t essential to the government’s case
at trial and so was nonetheless insufficiently probative to satisfy
rule 404(b), citing the numerous witnesses who saw Valdez take
the plates, heard him admit to doing so, saw the plates in his pos-
session, or helped him move the plates to where they were even-
tually found.
But the government’s witnesses weren’t impervious to im-
peachment. Cf. Calderon, 127 F.3d at 1332. Indeed, during his
opening statement, Valdez urged the jury to critically assess the
witnesses’ credibility—particularly given the lack of DNA evidence
physically tying Valdez to the ballistic plates. Valdez hammered at
the witnesses’ credibility on cross-examination too, challenging the
accuracy of their memories and raising (particularly as to Sitzler
and Johnson) their prior inconsistent statements and self-interest.
And Valdez reinforced these credibility issues during his closing ar-
gument, reminding the jury how key witnesses’ stories changed
(sometimes repeatedly) and how self-interest may have led wit-
nesses to minimize their own involvement in the charged offenses.
At bottom, the government needed to prove that Valdez in-
tended to deprive the United States of the ballistic plates, and
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21-12489 Opinion of the Court 15
essentially all its evidence of intent came from witness testimony.
But “[t]he jury was entitled to believe as much or as little of the
witnesses’ testimony as it found credible.” United States v. Mat-
thews, 431 F.3d 1296, 1312 (11th Cir. 2005). In light of Valdez’s
substantial efforts to impugn the government witnesses’ credibility
at trial, we conclude that the rule 404(b) evidence was sufficiently
probative of Valdez’s intent to be admissible. Cf. United States v.
Beechum, 582 F.2d 898, 917 (5th Cir. 1978) (en banc) (“Absent the
credit card evidence, the issue would have been decided wholly by
the jury’s assessment of the credibility of these witnesses. The
Government, therefore, did not make out such a strong case of
criminal intent that the credit card evidence would have been of
little incremental probity. In fact, the credit card evidence may
have been determinative.”).
Undue prejudice
To be admissible under rule 404(b), of course, the prior-bad-
acts evidence’s probative value “cannot be substantially out-
weighed by undue prejudice, and the evidence must satisfy [r]ule
403.” Edouard, 485 F.3d at 1344 (citation omitted). Because “rule
403 is an extraordinary remedy, which should be used only spar-
ingly”—with the balance “struck in favor of admissibility”—we
“look at the evidence in a light most favorable to its admission,
maximizing its probative value and minimizing its undue prejudi-
cial impact.” Id. at 1344 n.8 (cleaned up). “[T]he test under rule
403 is whether the other acts evidence was dragged in by the heels
solely for prejudicial impact.” Wilson, 788 F.3d at 1314 (quoting
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16 Opinion of the Court 21-12489
United States v. U.S. Infrastructure, Inc., 576 F.3d 1195, 1211 (11th
Cir. 2009)). “[I]n a criminal trial relevant evidence is inherently
prejudicial; it is only when unfair prejudice substantially outweighs
probative value that [rule 403] permits exclusion.” United States v.
Spoerke, 568 F.3d 1236, 1251 (11th Cir. 2009) (quoting United
States v. King, 713 F.2d 627, 631 (11th Cir. 1983)). Moreover, “[a]
limiting instruction can diminish any unfair prejudice caused by the
evidence’s admission.” Brown, 665 F.3d at 1247 (citation omitted).
Here, Valdez argues that the rule 404(b) evidence was
“highly[] and unduly prejudicial,” contending that “the govern-
ment encouraged the jury to draw [an] inference of criminal pro-
pensity” and so “most likely the jury was enticed to draw the pro-
hibited inference.” But Valdez mischaracterizes the government’s
closing argument. The government told the jury it could use the
prior-bad-acts evidence “in deciding whether he had the intent, the
motive, the opportunity to commit the theft”—precisely the sort
of non-propensity uses that rule 404(b) permits. More importantly,
the rule 404(b) evidence was no more heinous or inflammatory
than evidence related to theft of the ballistic plates themselves, and
so the extrinsic evidence was unlikely to “incite the jury to an irra-
tional decision.” See United States v. Mitchell, 666 F.2d 1385, 1390
(11th Cir. 1982). Instead, to the extent the evidence was prejudicial,
it was—like any relevant evidence—duly prejudicial because of the
government’s need to prove intent. See Spoerke, 568 F.3d at 1251.
At worst, then, the evidence’s unfair prejudice only matched its
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21-12489 Opinion of the Court 17
probative value, rather than being “dragged in by the heels” for a
purely prejudicial purpose. Wilson, 788 F.3d at 1314.
Finally, the district court gave numerous limiting instruc-
tions, both when the evidence was admitted and at the close of
trial. These instructions—which cautioned the jury that it could
(but wasn’t required to) consider the bad-acts evidence in deter-
mining whether Valdez committed the charged offense “willfully,
that is with bad purpose either to disobey or disregard the law, and
knowingly, not because of an accident or mistake”—mitigated any
undue prejudice caused by the evidence. Cf. United States v. Ster-
ling, 738 F.3d 228, 237 (11th Cir. 2013) (“[W]e assume that the jury
properly followed the court’s instructions.”). Because rule 404(b)
excludes evidence only when its probative value is substantially
outweighed by undue prejudice, we conclude that the district court
did not err by admitting the challenged evidence here.
AFFIRMED.