United States of America v. QUENTIN VENENO, JR.

Denver, CO criminal defense lawyer represented the Defendant charged with domestic assault.

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 twentyfive 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 COVID19 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”).

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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.

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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.

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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).

AF

Defendant was found guilty AFFIRMED.