United States v. Garrett Door, Sr. , 663 F. App'x 570 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30159
Plaintiff-Appellee, D.C. No.
1:14-cr-00056-SPW-1
v.
GARRETT DEAN DOOR, Sr., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted October 7, 2016**
Portland, Oregon
Before: O'SCANNLAIN, CLIFTON, and NGUYEN, Circuit Judges.
Garrett Dean Door, Sr., appeals his convictions following a jury trial. At
trial, the government offered evidence from seven witnesses, including the victim
Jane Doe and M.H., the survivor of a 2009 misdemeanor sexual assault to which
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
Door pled nolo contendere.1 Door argues that M.H.’s testimony about the 2009
sexual assault should not have been admitted under Federal Rules of Evidence 413
and 403. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
We review de novo both the district court’s interpretation of the Federal
Rules of Evidence, United States v. Urena, 659 F.3d 903, 908 (9th Cir. 2011), and
whether particular evidence falls within the scope of a given rule. United States v.
Garrido, 596 F.3d 613, 616 (9th Cir. 2010). If the challenged evidence falls within
the rule’s scope, the district court’s decision to admit the evidence is reviewed for
abuse of discretion. Id.; U.S. v. LeMay, 260 F.3d 1018, 1024 (9th Cir. 2001).
Although Door acknowledges that Rule 413 permits evidence of a
defendant’s propensity to commit the sexual assault of which he is accused, see
United States v. Redlightning, 624 F.3d 1090, 1120 (9th Cir. 2010), he argues that
the evidence of his punching M.H. in 2009 shows only his propensity to commit
violence. Door’s argument is belied by the plain language of Rule 413, which
expressly permits the admission of evidence of sexual assaults that involve
physical force. See e.g. Fed. R. Evid. 413(d)(1) (defining “sexual assault” to
1
Door does not dispute that his 2009 misdemeanor sexual assault conviction under
Mont. Code Ann. §45-5-201 meets the definition of sexual assault as set forth in
Rule 413(d).
2
include “any conduct prohibited by 18 U.S.C. chapter 109A,” which in turn
includes 18 U.S.C. § 2241(a)(1)); see also U.S. v. H.B., 695 F.3d 931, 936 (9th Cir.
2012) (18 U.S.C. § 2241(a)(1) has as an element the use of “physical force”). The
district court therefore did not err in admitting M.H.’s testimony about Door’s
conduct during the 2009 sexual assault.
Door next argues that, even if admissible under Rule 413, M.H.’s testimony
should have been excluded under Rule 403. To determine whether to exclude
under Rule 403 evidence that is admissible under Rule 413, we consider the
following non-exhaustive factors, of which only the first and last are in dispute on
this appeal: (1) similarity of the other acts to the acts charged; (2) closeness in time
of the other acts to the acts charged; (3) frequency of the other acts; (4) presence or
lack of intervening circumstances; and (5) necessity of the evidence beyond the
testimonies already offered at trial. See U.S. v. LeMay, 260 F.3d 1018, 1027–28
(9th Cir. 2001); Blind-Doan v. Sanders, 291 F.3d 1079, 1082 (9th Cir. 2002)
(applying factors in Rule 403 analysis of admissibility of evidence under Rule 413
and, in turn, Rule 415).
The district court did not abuse its discretion in finding similarity between
the 2009 sexual assault and the charged offense for the reasons the district court
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provided. In addition, in both cases Door was able to get the victims alone by
capitalizing on their generosity, obtaining a ride from Jane and an invitation to a
friend’s apartment from M.H.
Door contends that the two offenses are dissimilar because their similar acts
occurred in a different order and at different locations. The difference Door
identifies is one of opportunity, not actions. Door was interrupted in 2009 by a
neighbor during his sexual assault of M.H, whereas in 2014, no one came to Jane’s
aid on the remote road that Door told her to drive down. Door cites no authority
for the proposition that, under Rule 403, an incomplete sexual assault is dissimilar
to a completed one that occurs at a different location, and our precedent suggests
otherwise. See Sanders, 291 F.3d at 1081–83 (reversing a jury verdict in favor of a
police officer who allegedly sexually assaulted the plaintiff with a baton in her cell
because it was error to exclude another woman’s testimony that, before booking
her, the same officer took her to a room and tried to have sex with her in exchange
for her freedom).
Finally, Door challenges the necessity of the evidence. Evidence of other
acts “need not be absolutely necessary to the prosecution’s case in order to be
introduced; it must simply be helpful or practically necessary.” LeMay, 260 F.3d
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at 1029. Here, the evidence was necessary because Door attacked Jane’s
credibility both by presenting a theory of the case that contradicted her testimony
and by suggesting she was impaired by marijuana. Door testified that, other than
oral sex, he did nothing like what Jane described in her testimony. This testimony
was foreshadowed by his attorney’s opening statement and witness cross-
examinations, which reflect a theory of the case that Jane smoked marijuana,
engaged in consensual sex acts, and was punched fewer times than she claimed.
Door clearly put Jane’s credibility at issue. Moreover, his theory of the case rested
on the jury doubting Jane and there were no eyewitnesses who could corroborate
her testimony. See LeMay, 260 F.3d 1029 (upholding admission of similar prior
crime because the defendant “attacked the credibility” of his accusers and thereby
“capitalized on the lack of eyewitness and expert testimony”).
Finally, the district court was not required to accept Door’s alternative
proposal to sanitize M.H.’s testimony by excluding testimony that Door punched
her. Doing so would hamstring the government by preventing it from offering a
coherent explanation of the 2009 incident and confuse a jury by making the 2009
incident seem less similar—and thus less relevant—to the charged crime. As we
have recognized in rejecting similar arguments, the “relevance of the prior act
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evidence [i]s in the details.” See LeMay, 260 F.3d at 1029 (rejecting defendant’s
argument that conviction should have been offered in lieu of testimony).
AFFIRMED.
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