USA v. Pettus

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
CORNELIUS AARON PETTUS,
JR.,
Defendant.
Case No. 3:20-cr-00100-SLG-MMS
ORDER RE MOTION IN LIMINE (404(b) EVIDENCE)
Before the Court at Docket 27 is defendant Cornelius Aaron Pettus, Jr.’s
Motion in Limine Regarding Notice of Intent to Introduce Prior Bad Acts Evidence.
The government responded in opposition at Docket 32-2.
Mr. Pettus is charged with willfully using unconstitutionally excessive force
in his official capacity as a police officer on September 30, 2019, in violation of 18
U.S.C. § 242.1
The Government seeks to introduce evidence of two prior incidents of
alleged excessive force by Mr. Pettus that occurred on March 20, 2018, and
August 21, 2019.2 The Government contends that the incidents are admissible
pursuant to Federal Rule of Evidence 404(b)(2) to demonstrate knowledge, intent,
1 See Docket 2 (Indictment).
2 Docket 26 at 1–3 (Notice of Intent).
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and lack of mistake because Section 242 is a specific intent offense and “[t]he fact
that Pettus had previously engaged use excessive force . . . makes it significantly
more likely that []he knew the constitutional significance of his conduct, intended
to violate [the victim’s] rights, and was not mistaken about the legality or
justification of his actions.”3
Defendant asserts that the two prior incidents are not relevant to his
knowledge, intent, or lack of mistake regarding the September 30, 2019, charged
conduct, and that the evidence should be excluded pursuant to Rule 403 because
any probative value of the incidents is substantially outweighed by a danger of
wasting time, misleading the jury, confusing the issues, and unfair prejudice.4
DISCUSSION
I. March 20, 2018 Incident
The March 20, 2018 incident involved Defendant “us[ing] his foot” or
“kicking” a detained suspect while placing her into a patrol car.5 According to the
government, which Mr. Pettus does not appear to contest, the “Anchorage Police
Department [“APD”] found [Mr. Pettus’] use of force to be excessive and in violation
of policy.”6
3 Docket 32-2 at 5 (footnote omitted).
4 Docket 27 at 6–8 (Mot. in Limine).
5 Docket 32-2 at 3 (Opp.); Docket 27 at 3 (Mot. in Limine).
6 Docket 32-2 at 3 (Opp.).
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To introduce evidence pursuant to Rule 404(b), “[t]he Government carries
the burden to prove that the proposed evidence satisfies four requirements: (1) the
evidence tends to prove a material point (materiality); (2) the other act is not too
remote in time (recency); (3) the evidence is sufficient to support a finding that
defendant committed the other act (sufficiency); and (4) [where knowledge and
intent are at issue], the act is similar to the offense charged (similarity).”7
The March 20 incident tends to prove a material point: Mr. Pettus had
previously used force that was found to be unjustified and in violation of APD
policy. This is probative of Mr. Pettus’ knowledge, intent, or lack of mistake
regarding the constitutional significance of his conduct of September 30, 2019.
The incident is not too remote in time because it occurred approximately 17 months
prior to the charged conduct. There does not appear to be any dispute that the
incident occurred; and with respect to any specific points of disagreement, the
parties can present their respective evidence and theories at trial.8 Lastly, this
prior incident is plainly similar to the charged offense.
The government has satisfied its Rule 404(b) burden for the March 20, 2018
incident. The Court also finds that the probative value of the evidence is not
7 United States v. Charley, 1 F.4th 637, 647 (2021) (quoting United States v. Berckmann, 971
F.3d 999, 1002 (9th Cir. 2020)); see also United States v. Hanson, 936 F.3d 876, 882 (9th Cir.
2019) (“where knowledge and intent are at issue, the act is similar to that charged” (internal
quotation marks omitted)).
8 Compare Docket 32-2 at 3 (Opp.) (government describing the incident as “kick[ing]”) with
Docket 27 at 3 (defense describing the incident as “us[ing] his foot to push”).
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substantially outweighed by a danger of wasting time, misleading the jury,
confusing the issues, or unfair prejudice. And the prejudicial impact can be
ameliorated with an appropriate limiting instruction.9
II. August 21, 2019 Incident
The August 21, 2019 incident involved Mr. Pettus deploying a taser against
a fleeing suspect.10 The government contends that the APD found this use of force
“unjustified and outside of policy.”11 Mr. Pettus contends that he was served with
a complaint notification regarding his use of force during the incident but never
received the internal memorandum that stated the force was unjustified and
outside of policy.12 The government responds that Mr. Pettus was “placed on
notice that his conduct may have been improper and was under investigation” for
the August 21 incident, which “speaks directly to his state of mind on September
30, 2019.”13
The probative value of the August 21 incident as to Mr. Pettus’ knowledge,
intent, or lack of mistake regarding the charged conduct is limited by the fact that
prior to September 30, 2019, Mr. Pettus had only received notice that a complaint
9 See Manual of Model Criminal Jury Instructions for the Ninth Circuit § 4.3 (2018).
10 Docket 32-2 at 3 (Opp.); Docket 27 at 3–5 (Mot. in Limine).
11 Docket 32-2 at 4 (Opp.).
12 Docket 27 at 4–5 (Mot. in Limine) (citing Ex. 1 (Complaint Notification), Ex. 2 (Internal
Memorandum)).
13 Docket 32-2 at 5 (Opp.).
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had been filed against him and he was being investigated, in contrast to the March
20, 2018 incident, where Mr. Pettus was aware of the APD’s formal findings of
excessive force prior to the charged incident. While the investigation into the
August 21 incident ultimately found his use of force unjustified and outside policy,
it appears that Mr. Pettus was unaware of that finding on September 30, 2019.14
Additionally, because the complaint notification and internal memorandum only
relate to the deployment of Mr. Pettus’ Taser,15 the remaining evidence of the
August 21 incident holds minimal probative value.16 Accordingly, the Court finds
that the diminished probative value of the August 21, 2019 incident is substantially
outweighed by the dangers of “unfair prejudice, confusing the issues, misleading
the jury, undue delay, [and] wasting time.”17
CONCLUSION
In light of the foregoing, IT IS ORDERED that the motion at Docket 27 is
GRANTED IN PART and DENIED IN PART as set forth in this order. The
Government may present evidence to the jury regarding the March 20, 2018
14 The internal memorandum is dated October 9, 2019, more than a week after the charged
incident occurred on September 30, 2019. See Docket 27, Ex. 2. Accordingly, even though the
internal memorandum, if served on Mr. Pettus, found the use of force unjustified and outside
policy, Mr. Pettus likely would not have been aware of that formal finding prior to charged
incident.
15 See Docket 27, Exs. 1, 2.
16 See Docket 32-2 at 3 (“The defendant located a potential suspect, chased him onto a bike
trail, fired his taser at him (missing the suspect), ‘commandeered’ a bicycle from a bystander,
tackled the suspect, and kneed him in the side while he was on the ground.”).
17 Fed. R. Evid. 403.
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incident only.
DATED this 8th day of September, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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