USA v. Nace et al

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JIMMY NACE,
Defendant.
Case No. CR-21-198-RAW
ORDER
The Defendant, a non-Indian, is charged in this case with the murder of Bobby Joe
Dalpoas, an Indian, in Indian Country. Now before the court is the Government’s motion in
limine to exclude evidence of the Defendant’s or the alleged victim’s character [Docket No.
130]. The Government requests that the court prohibit the Defendant from offering or eliciting
specific instances of either his own or Mr. Dalpoa’s conduct to establish their character and that
the court limit any character evidence to the form of opinion or reputation testimony pursuant to
Rule 405(a).
The Defendant informs the court that he did not suggest that he would seek to admit
character evidence or specific instances of conduct to prove propensity or self defense. Instead,
based on the Government’s trial brief, the Defendant expects that the Government will introduce
evidence of the violent ways Mr. Dalpoa treated his wife, the Defendant’s sister, as a motive for
the Defendant’s conduct. The Defendant then intends to cross-examine any witnesses about such
violence and what the Defendant’s knowledge of that violence may have been.
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The Defendant further states that even if the Government does not introduce evidence of
Mr. Dalpoa’s violence or history of violent conduct against Ms. Dalpoa, the jury should be
allowed to consider the motive that others would have had to kill Mr. Dalpoas, including Tyler
Morgan (Ms. Dalpoa’s son) and Matthew Vermillion (Ms. Dalpoa’s friend with whom she
sought refuge when she felt threatened by Mr. Dalpoa and Tyler Morgan’s father-in-law). The
Defendant intends to question the Government’s witnesses – specifically, Ms. Dalpoa, Tyler
Morgan, and Matthew Vermillion – about their motive to confront Mr. Dalpoas, including their
knowledge of his violent conduct.
At the pretrial conference on February 17, 2022, the Government stated that it will not
introduce specific instances of Mr. Dalpoa’s conduct. The Government argued that while the
Defendant may offer or elicit character evidence in the form of opinion or reputation testimony,
he should be prohibited from offering or eliciting specific instances of either his own or Mr.
Dalpoa’s conduct to establish their character.
The Defendant indicated no intention of introducing evidence of specific instances of his
own conduct as evidence of his character. He again argued that evidence of Tyler Morgan’s, and
Matthew Vermillion’s knowledge of specific instances of Mr. Dalpoa’s conduct are relevant and
admissible to show their possible motives under Fed. R. Evid. 404(b).
The court agrees. Rule 404(b)(1) prohibits evidence of any other crime, wrong, or act “to
prove a person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” Rule 404(b)(2), however, permits such evidence “for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” The Defendant seeks to elicit testimony from Ms.
Dalpoa, Tyler Morgan, and/or Matthew Vermillion about Tyler Morgan’s, and/or Matthew
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Vermillion’s knowledge of Mr. Dalpoa’s violent acts against Ms. Dalpoa to establish their
possible motives. This is permissible under Rule 404(b)(2).*
Moreover, pursuant to Rule 403, the court finds that the probative value is not
substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
The motion [Docket No. 130] is MOOT as to evidence of specific instances of
Defendant’s conduct. It is DENIED as to testimony by Ms. Dalpoa, Tyler Morgan, and/or
Matthew Vermillion as to Tyler Morgan’s and/or Matthew Vermillion’s knowledge of Mr.
Dalpoa’s conduct to show their possible motives.
* 	The Government suggested at the pretrial conference that Rule 404(b) cannot be used
against a witness, but acknowledged that it applies to other crimes, wrongs, or acts of a
defendant or a victim. There is no such limitation on Rule 404(b). The plain language of Rule
404(b)(1) indicates that it applies to “persons,” and Rule 404(b)(2) does not limit the “motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident” to that of only the defendant or the victim.
Pursuant to Rule 404(b), courts have routinely allowed evidence of defendant’s
knowledge of a victim’s prior acts to support a claim of self-defense. See United States v. Tony,
948 F.3d 1259 (10th Cir. 2020) (overruling the district court’s ruling prohibiting the defendant
who had asserted self-defense theory from introducing evidence of the victim’s
methamphetamine use before the fight pursuant to Rule 404(b)(2)); United States v. Bordeaux,
570 F.3d 1041, 1049 (8th Cir. 2009) (“[E]vidence of prior bad acts of the victim are admissible
under Rule 404(b) to establish the defendant’s state of mind and the reasonableness of the
defendant’s use of force.”); United States v. Saenz, 179 F.3d 686, 688 (9th Cir. 1999) (“By its
plain language, Rule 404(b) only prohibits evidence of other acts to prove the character of the
person who committed the other acts and to prove that person’s actions in conformity with that
character. Rule 404(b) does not apply when a defendant seeks to introduce evidence that he
knew of a victim’s other acts to show the defendant’s state of mind.”).
In the same vein, Rule 404(b) would permit evidence of others’ knowledge of a victim’s
prior acts and resulting motive to kill the victim to support a defendant’s alternative perpetrator
defense. In fact, Rule 404(b) “is not so limited in its application . . . and evidence of a witness’
other wrongs, acts, or crimes is admissible ‘for defensive purposes if it tends, alone, or with other
evidence, to negate the defendant’s guilt of the crime charged against him.’” United States v.
Montelongo, 420 F.3d 1169, 1174 (10th Cir. 2005) (emphasis added and citation omitted).
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IT IS SO ORDERED this 28 th day of February, 2022.
______________________________________
THE HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA
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