USA v. Miller

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Criminal Action No. 24-cr-00083-NYW-1
UNITED STATES OF AMERICA,
Plaintiff,
v.
1. 	DYLAN ANDREW MILLER,
Defendant.
ORDER
At the close of the trial day on November 21, 2025, counsel for Defendant Dylan
Andrew Miller (“Defendant” or “Mr. Miller”) raised an anticipatory objection to the
admission of four video clips from the Minimal Facts Interview conducted with Olivia on
October 23, 2023 by Sergeant Alex Hutchinson (“Sergeant Hutchinson”). [Nov. 21, 2025
Hearing Tr. at 257:16–260:10].1 The Court has reviewed and considered the video clips,
i.e., Government’s Exhibits 56a; 56b; 56c; and 56d; the trial transcript; the Parties’
arguments made on the record on November 21, 2025; and the applicable law.2
1 The Court cites to a preliminary nonpublic version of the trial transcript in this matter.
Accordingly, there may be some variations with respect to page numbers, line numbers,
and precise language should an official transcript be ordered and prepared.
2 The Court is aware of the United States’ Motion to Admit Clips of Olivia’s Forensic
Interview, [Doc. 166], and has ordered Defendant to respond by 8:00 a.m. on November
24, 2025, [Doc. 168]. The Court does not pass on the Government’s Motion at this time.
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I. 	Summary of Video Clips
Exhibit 56a. Beyond the (mis)identification of the date of the alleged assault, [Nov.
21, 2025 Hearing Tr. at 258:4–13], Exhibit 56a reflects additional statements. In Exhibit
56a, Olivia provides details about circumstances that resulted in her presence in North
Lake Park; the alleged assault by Defendant Miller (including the length of the interaction,
the movement of the police vehicle, the lack of presence of Defendant’s body worn
camera, 	the 	location 	of 	the 	alleged 	assault, 	and 	her 	physical 	position 	vis-à-vis
Defendant’s body); and what occurred after the assault.
Exhibit 	56b. 	Exhibit 	56b 	reflects 	statements 	by 	Olivia 	about 	the 	original
(mis)identification of the date of the alleged assault and where she worked at the time of
the alleged assault.
Exhibit 56c. 	Exhibit 56c reflects a description by Olivia of the alleged assailant,
including but not limited to statements regarding possible hair color, height, ethnicity,
build, and uniform.
Exhibit 56d. Exhibit 56d reflects a description by Olivia of the alleged assailant’s
facial hair.
II. 	Analysis
The Government seeks to introduce video evidence reflecting statements made by
Olivia during her initial Minimal Facts Interview conducted on October 23, 2023.
Defendant objects, arguing that such statements are hearsay not subject to any exception
and are also inadmissible pursuant to Rule 403 of the Federal Rules of Evidence as
unduly cumulative and prejudicial. [Nov. 21, 2025 Hearing Tr. at 257:26–258:13, 258:18–
260:10, 263:11–264:15, 264:24–265:1]. The Government argues that Exhibits 56a–56d
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are admissible as (1) prior consistent statements under Rule 801(d)(1)(B)(i) to rebut the
contention that she fabricated her testimony or (2) under Rule 801(d)(1)(B)(ii) to
rehabilitate the declarant’s credibility as a witness when attacked on another ground. [Id.
at 260:14–263:9, 265:6–22]. The Court considers each argument in turn.
A. 	Prior Consistent Statements to Rebut Charge of Fabrication
Rule 801(d)(1)(B)(i) provides that a statement is not hearsay when (1) the
declarant testifies and is subject to cross-examination about a prior statement, (2) the
statement is consistent with the declarant’s testimony, and (3) the statement is offered to
rebut an express or implied charge that the declarant recently fabricated it or acted from
a recent improper influence or motive in so testifying. Fed. R. Evid. 801(d)(1)(B)(i).
Olivia’s prior consistent statements are admissible “to rebut a charge of recent
fabrication or improper influence or motive only when those statements were made before
the charged recent fabrication or improper influence or motive.” Tome v. United States,
513 U.S. 150, 167 (1995) (emphasis added). 	Defendant argues that Olivia’s purported
fabrication arose on October 23, 2023. [Nov. 21, 2025 Hearing Tr. at 263:23–24]. This
Court respectfully agrees that, with respect to an alleged motive to fabricate the assault
generally, the earliest that this alleged motive to fabricate could have arisen was October
23, 2023, after Olivia’s grandparents contacted law enforcement to report the alleged
assault. 	According to Defendant, Olivia’s statements made on October 23, 2023
therefore do not qualify as prior consistent statements under Tome.
But Defendant’s argument ignores his counsel’s repeated suggestions at trial that
the prosecution team had improperly coached Olivia during the trial preparation sessions
held on October 29, November 5, November 6, and November 13, 2025, or that Olivia
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was seeking answers from Agent Harris during her trial testimony. 	See, e.g., [Nov. 19,
2025 Hearing Tr. at 204:10–13, 257:5–12; Nov. 20, 2025 Hearing Tr. at 37:15–40:9].
Specifically, defense counsel engaged in the following colloquy with Olivia:
Q [Defense counsel]: Now, yesterday you said that you kept looking over
at Agent Harris and I asked you if you were looking for the answer to some
questions?
A [Olivia]: No, I was looking for comfort. I am not going to look around at
other people. That is what I was told to do before.
* * *
Q: 	Yesterday, well you just said it again, you were told to look at Agent
Harris for comfort. Right?
A: Yes.
Q: And you did that a lot yesterday afternoon?
A: Yes.
Q: And you were upset yesterday afternoon because you were being asked
questions you didn’t know the answer to?
A: Sure.
Q: 	I was asking you questions that the Government, your team, hasn’t
asked you in your trial preparation sessions; right?
A: Yeah.
* * *
Q: 	When I asked you those questions you weren’t prepared--you hadn’t
been prepared by them for those questions?
A: Sure.
Q: And that is when you looked over to Agent Harris for help?
A: 	No, once again I was looking at him for comfort. 	I don’t need his help
answering questions. I am 17 years old. I can answer for myself.
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Q: 	Well I asked you about inconsistent statements you have made in this
case; right?
A: Sure.
Q: They haven’t asked you those questions?
A: 	No. 	But I still answered with my own words. 	I don’t need an answer
from Agent Harris, I look at him for comfort because that is who I am directly
staring at.
Q: Yeah he is your agent. I asked you about lies you told in this case?
A: I haven't told any lies, but, okay.
[Nov. 20, 2025 Hearing Tr. 37:15–20, 37:24–38:1, 39:1–40:4]. 	By doing so in that
instance and others, Defendant made an implied charge that the prosecution team was
actively coaching Olivia, or that her trial testimony was based on “a recent improper
influence or motive.” Fed. R. Evid. 801(d)(1)(B)(i).
This case is analogous to the Ninth Circuit case of United States v. Kootswatewa,
893 F.3d 1127 (9th Cir. 2018). 	In that case, the defendant suggested during opening
statements that the victim had fabricated her report of sexual abuse because she wanted
to avoid being disciplined by her mother. Id. at 1134. But then, during cross-examination
of the victim, defense counsel suggested that the victim “had two separate motives for
fabricating her story: She wanted to avoid getting in trouble with her mother, as alluded
to during opening statement; and, in addition, she was complying with her mother’s
instructions about what to say during her in-court testimony.” 	Id. 	The district court
subsequently admitted statements the victim made to a police officer as prior consistent
statements under Rule 801(d)(1)(B)(i). Id. at 1134–35.
The Ninth Circuit affirmed the district court’s decision, holding that even though the
prior consistent statements were not admissible to rebut the alleged motive to fabricate
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the story so that the victim would avoid discipline, the statements were admissible to rebut
the suggestion that the victim’s in-court testimony had been tainted by her mother’s
coaching, since the statements were made before that alleged improper motive arose.
Id. 	The Ninth Circuit explained: 	“Rule 801(d)(1)(B)(i) does not require that a prior
statement rebut all improper influences or motives suggested by defense counsel. 	It is
sufficient if the prior statement tends to rebut one of them.” Id. at 1135.
Accordingly, Olivia’s October 23, 2023 statements during her Minimal Facts
Interview 	are 	admissible 	prior 	consistent 	statements 	to 	rebut 	defense 	counsel’s
suggestion that Olivia was acting from a recent improper influence or motive in her
testimony, i.e., prosecutorial coaching during the trial preparation process. 	See United
States v. Bruce, 127 F.4th 246, 254 (10th Cir.), cert. denied, 145 S. Ct. 2865 (2025).3
B. 	Prior Consistent Statements to Rehabilitate Declarant’s Credibility
Even beyond their admissibility pursuant to Rule 801(d)(1)(B)(i), Exhibits 56a–56d
are admissible under Rule 801(d)(1)(B)(ii). Rule 801(d)(1)(B)(ii) provides that a statement
is not hearsay when (1) the declarant testifies and is subject to cross-examination about
a prior statement, (2) the statement is consistent with the declarant’s testimony, and
(3) the statement is offered to rehabilitate the declarant’s credibility as a witness when
attacked on another ground. 	Fed. R. Evid. 801(d)(1)(B)(ii). 	Rule 801 was amended to
include this provision after Tome was decided. 	See United States v. Magnan, 756 F.
3 To the extent Defendant argues that Olivia’s statements misidentifying the date of the
alleged assault as July 25, 2023 are not prior consistent statements because she now
identifies the date of the alleged assault as August 4, 2023, see [Nov. 21, 2025 Hearing
Tr. at 258:4–13], the Court respectfully disagrees. Olivia’s prior statements misidentifying
the date are consistent with her trial testimony that she initially misidentified the date and
explaining why she originally reported an incorrect date, see [Nov. 19, 2025 Hearing Tr.
at 213:16–214:4; Nov. 20, 2025 Hearing Tr. at 10:16–20].
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App’x 807, 818 (10th Cir. 2018). 	As the Court previously ruled, if Defendant attacks
Olivia’s testimony on another ground, such as inconsistency or poor memory, then the
prior consistent statements may be admissible under Rule 801(d)(1)(B)(ii), subject to
other admissibility requirements. See [Doc. 134 at 6 (citing United States v. Begay, 116
F.4th 795, 800 (8th Cir. 2024), cert. denied, 145 S. Ct. 1933 (2025))]; see also Begay,
116 F.4th at 800 (finding that the Tome requirement does not apply to statements
proffered under Rule 801(d)(1)(B)(ii), as there is “no . . . rationale for importing a pre-
motive-statement requirement into” that rule); but see United States v. Portillo, 969 F.3d
144, 175 (5th Cir. 2020) (explaining how it may be “difficult” for a court to rule that a
declarant was attacked on “another ground” where the declarant is attacked both on
credibility and consistency grounds); id. at 174–76 (explaining that it is unsettled whether
the Tome timing requirements apply to statements offered under Rule 801(d)(1)(B)(ii)).
No contrary authority was offered by Defendant during argument on November 21, 2025.4
Therefore, Defendant has not persuaded the Court that the Tome timing requirements
apply to evidence a proponent seeks to admit under Rule 801(d)(1)(B)(ii).5
While defense counsel suggest that they only tangentially questioned Olivia’s
credibility on a basis other than fabrication with regard to July 27, 2023 encounter with
4 In the Court’s November 7, 2025 Minute Order, the Court advised the Parties that if they
“have located additional case law discussing the Tome timing requirements and Rule
801(d)(1)(B)(ii), the Parties should be prepared to present that authority to the Court at
trial, should this issue arise.” 	[Doc. 134 at 7 n.4]. 	Therefore, the Court infers that
Defendant 	did 	not 	locate 	any 	additional 	authority 	addressing 	the 	Tome 	timing
requirements in the context of Rule 801(d)(1)(B)(ii).
5 If the Court were to conclude that the Tome timing requirements apply to evidence under
Rule 801(d)(1)(B)(ii), then the Court’s above analysis about the new charge of motive to
lie 	based 	on 	prosecutorial 	coaching 	during 	the 	trial 	preparation 	process 	would
nevertheless permit admission of these statements.
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Defendant based on her use of marijuana, [Nov. 21, 2025 Hearing Tr. at 264:7–12], the
record indicates otherwise. 	In addition to questioning whether Olivia’s recollection was
compromised due to her use of marijuana on the night of July 27, 2023, defense counsel
repeatedly challenged Olivia about her ability to recall the events on the night of August
3–4, 2023.6 See, e.g., [Nov. 19, 2023 Hearing Tr. at 210:5–216:25]. For instance, after
repeatedly pointing out instances where Olivia could not remember certain details during
the 	trial 	preparation 	meetings, 	defense 	counsel 	engaged 	in 	the 	following 	line 	of
questioning:
Q [Defense counsel]: And as you sit there you know that [the prosecution]
want your memory to be refreshed; right?
A [Olivia]: Yes.
Q: 	Because they need your memory to be refreshed so that they can put
you on the stand in this trial?
A: Yes.
Q: 	And you understand in these meetings that if you just say I don’t
remember all day long they don’t have a case here; right?
A: Yes.
Q: And so you needed to remember stuff?
A: Yes.
Q: So that [you could] see this through?
A: Yes.
[Id. at 221:8–21]. In these circumstances, under Rule 801(d)(1)(B)(ii), Exhibits 56a–56d
6 The Court notes that this case involves allegations of events occurring late on August
3, 2023 and after midnight on August 4, 2023. See [Doc. 1 at 1 (the Indictment alleging
events “[o]n or about August 4, 2023”)].
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are admissible to rehabilitate Olivia’s credibility. See Fed. R. Evid. 801(d)(1)(B)(ii); Bruce,
127 F.4th at 253.
C. 	Rule 403
Defendant also contends that these video clips are also inadmissible under Rule
403. 	Under Rule 403, relevant evidence may be excluded if “its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Fed. R. Evid. 403. Defendant argues that the video clips of the October 23,
2023 interview with Sergeant Hutchinson are cumulative and inadmissible under Rule
403. [Nov. 21, 2025 Hearing Tr. at 259:24–260:3, 264–24–265:1]. This Court respectfully
disagrees.
A central theme of the defense is that Olivia fabricated the entire encounter with
Defendant Miller and that this fabrication is evidenced by her inconsistencies in what she
told various investigators and friends. Indeed, from the beginning of Defendant’s opening
statement, counsel described Olivia as an “unreliable narrator,” [Nov. 19, 2025 Hearing
Tr. at 30:15–18, 31:9–10], described the case as a “house of cards [that] has been flimsily
built on Olivia’s story,” [id. at 22:2–6], and implored the members of the jury to “pay
attention,” including to Olivia’s demeanor, because “[t]he evidence will show that her story
changes based on who she talks to,” [id. at 30:20–21]. 	Olivia’s statements during the
Minimal Facts Interview are not only probative for the Government’s case-in-chief, but
also to Defendant’s defense.
“[O]ur law favors admission of all relevant evidence not otherwise proscribed;
thus, exclusion under this rule is ‘an extraordinary remedy [that] should be used
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sparingly.’” United States v. Irving, 665 F.3d 1184, 1213 (10th Cir. 2011) (quoting United
States v. Rodriguez, 192 F.3d 946, 949 (10th Cir. 1999) (emphasis and alteration in
original)). “Evidence is not unfairly prejudicial simply because it is damaging to [a party’s]
case.” United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir. 2003). “Unfair prejudice
in the Rule 403 context means an undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one.” United States v. Tan, 254
F.3d 1204, 1211 (10th Cir. 2001) (quotation omitted). Moreover, “[c]umulative evidence
is defined as evidence which goes to prove what has already been established by other
evidence.” 	United States v. Otuonye, 995 F.3d 1191, 1208 (10th Cir. 2021) (quotation
omitted).
The Court finds that Defendant has not articulated a persuasive basis for the Court
to conclude that these video clips would cause the jury to decide this case on an improper
basis. Moreover, the Court cannot conclude that this evidence is cumulative. Although
Olivia has testified at length about the alleged assault and alleged inconsistences, as
explained above, Defendant focused at length on Olivia’s credibility in her testimony.
Evidence that Olivia made prior consistent statements is not cumulative of Olivia’s trial
testimony, which has been attacked at length by defense counsel. Accordingly, this Court
concludes that Rule 403 does not warrant the exclusion of Exhibits 56a–56d.
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Accordingly, it is ORDERED that:
(1) 	Defendant’s 	challenge 	to 	the 	admission 	of 	Exhibits 	56a–56d 	is
OVERRULED.
DATED: November 23, 2025 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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