USA v. LUBISCHER

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
UNITED STATES OF AMERICA
vs. 	Case No.: 3:25-MJ-349
KISHA L. LUBISCHER
____________________________________/
ORDER
The Government has filed a “Notice of Inextricably Intertwined
and/or Rule 404(b) Evidence” (Doc. 15). 	Defendant has responded in
opposition, arguing that the Government should not be permitted to use
the uncharged acts evidence discussed in its Notice. 	(Doc. 18). 	For the
reasons below, the Court agrees with the Government.
I. 	Background
Defendant has been charged with one count of stealing government
property valued at less than $1,000 in violation of 18 U.S.C. § 641.
According to the Government, the evidence 	at trial will show that
Defendant 	was 	employed 	by 	the 	commissary 	at 	Naval 	Air 	Station
Pensacola. 	The 	Government 	claims 	that 	while 	working 	at 	the
commissary on March 25, 2025, Defendant took merchandise from the
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commissary without paying. More specifically, the Government says that
Defendant placed merchandise on an employee restocking cart, moved
the cart to the employee breakroom, bagged the merchandise, and then
left the commissary without paying for the merchandise. 	The alleged
theft was witnessed by Defendant’s co-worker, Ms. Double.
In its Notice, the Government states that it anticipates Ms. Double
will testify that she began suspecting that Defendant was stealing from
the commissary several weeks before the charged incident on March 25,
2025. 	Allegedly, 	several 	weeks 	earlier 	Ms. 	Double 	saw 	Defendant
bagging unpurchased items in the employee work area. 	Ms. Double
asked Defendant about the items, and Defendant allegedly responded
that she had already paid for the items but did not bag them at the
register. This seemed odd to Ms. Double. So, over the next several weeks
Ms. Double watched Defendant closely. And she continued to notice that
items placed on the employee restocking cart were later found bagged in
the employee breakroom.
On March 22, 2025—three days before the charged incident—Ms.
Double allegedly saw Defendant with items on the employee restocking
cart. 	Later that same day, Ms. Double saw the items bagged and in a
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grocery cart. 	Defendant then walked into the store cooler with the
grocery cart and then exited with new refrigerated items commingled
with the already bagged items.
The Government anticipates that Ms. Double will testify that it was
because of these prior incidents that she was closely watching Defendant
on March 25, 2025. 	And that is why on March 25, 2025, Ms. Double
photographed Defendant’s restocking cart, the merchandise on it, and
Defendant leaving the commissary without paying for the merchandise.
In its Notice, the Government argues that Ms. Double’s testimony
regarding Defendant’s conduct in the days and weeks leading up to
March 	25, 	2025, 	is 	admissible 	under 	the 	inextricably 	intertwined
doctrine. 	Alternatively, the Government argues that the testimony is
admissible under Rule 404(b). 	Defendant disagrees. 	She argues Ms.
Double’s testimony regarding Defendant’s conduct in the weeks leading
up to March 25, 2025, is neither inextricably intertwined nor permissible
under Rule 404(b).
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II. 	Discussion
Under Rule 404(b), evidence of other crimes, wrongs, or acts is
inadmissible “to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.”
Fed. R. Evid. 404(b). But the Eleventh Circuit “repeatedly has held that
evidence of uncharged conduct that is part of the same scheme or series
of transactions and uses the same 	modus operandi 	as the charged
offenses is admissible as intrinsic evidence outside the scope of Rule
404(b).” United States v. Ford, 784 F.3d 1386, 1394 (11th Cir. 2015). This
type 	of 	intrinsic 	evidence 	is 	commonly 	referred 	to 	as 	“inextricably
intertwined” evidence. 	And evidence is inextricably intertwined if it is
“linked in time and circumstances with the charged crime and concerns
the context, motive or setup of the crime; or forms an integral part of the
crime; or is necessary to complete the story of the crime.” 	United States
v. U.S. Infrastructure, Inc., 576 F.3d 1195, 1210 (11th Cir. 2009). 	Even
if evidence is inextricably intertwined, it must pass Rule 403 balancing
before being admitted. 	Ford, 784 F.3d at 1393.
Here, evidence regarding Defendant’s uncharged conduct at the
commissary that the Government seeks to admit through Ms. Double’s
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conduct 	of 	Defendant 	is 	inextricably 	intertwined 	with 	the 	charged
conduct on March 25, 2025. 	The uncharged conduct is linked in time
and circumstances with the charged offense—it all occurred in the same
general time frame, at the same location, and involved a similar modus
operandi. Furthermore, Ms. Double’s testimony about the uncharged
conduct is necessary to tell the complete story of the events leading up to
Defendant’s charge. More specifically, evidence regarding the uncharged
conduct 	explains 	why 	Ms. 	Double 	was 	closely 	watching 	and
photographing Defendant on March 25, 2025. Thus, the Court finds the
uncharged conduct is admissible under the inextricably intertwined
doctrine.1
1 	Even 	if 	the 	uncharged 	conduct 	evidence 	were 	not 	inextricably
intertwined, it would be admissible under Rule 404(b) for the permissible
purpose of proving intent. 	In order for evidence to be admissible under
Rule 404(b), it must be relevant to an issue other than character, there
must be evidence that the other act occurred, and the probative value
must not be substantially outweighed by the risks identified in Rule 403.
United States v. Valdez, 2023 WL 355091, at *4 (11th Cir. Jan. 23, 2023).
Here, the evidence would be admissible for the permissible Rule 404(b)
purpose of intent. When a defendant pleads not guilty, she “makes intent
a material issue, which imposes a substantial burden on the government
to prove intent.” 	United States v. Sterling, 738 F.3d 228, 238 (11th Cir.
2013). 	And the Government may attempt to meet that burden by using
other acts evidence under Rule 404(b). Id. Similarity between “the other
act and a charged offense will make the other offense highly probative
with regard to a defendant’s intent in the charged offense.” Valdez, 2023
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Having 	found 	that 	the 	uncharged 	conduct 	is 	inextricably
intertwined, the Court will now conduct the Rule 403 balancing. 	Under
Rule 403, relevant evidence is inadmissible “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. 	Exclusion of
evidence under Rule 403 “is an extraordinary remedy that must be used
sparingly . . . .” U.S. Infrastructure, Inc., 576 F.3d at 1211. In the context
of uncharged acts evidence, the test under Rule 403 “is whether the other
WL 355091, at *5 (cleaned up). 	In Valdez, the Eleventh Circuit upheld
the admission of evidence showing that the defendant had previously
stole government property because that “was highly probative of his
intent with regard” to the charged theft. 	Id. 	The Valdez court stressed
that the prior theft was close in time to the charged theft and involved
similar circumstances. The same is true here with regard to Defendant’s
uncharged 	acts 	of 	stealing 	items 	from 	the 	commissary. 	Moreover,
testimony from an eyewitness that she saw Defendant engage in the
uncharged conduct is sufficient for the jury to “reasonably conclude that
the act occurred and that the defendant was the actor.” 	Huddleston v.
United States, 485 U.S. 681, 689 (1988) (explaining that the trial court
need not make a preliminary finding that the Government has proven
other acts by a preponderance of the evidence before permitting the
evidence to be admitted). 	And the probative value of the uncharged
conduct would not be substantially outweighed by the risks in Rule 403
for the same reasons explained elsewhere in this order. 	Accordingly, as
an 	alternative 	basis, 	the 	uncharged 	conduct 	evidence 	would 	be
admissible under Rule 404(b) to show Defendant’s intent.
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acts evidence was dragged in by the heels solely for prejudicial impact.”
Id.
Conducting the Rule 403 balancing here, the Court finds that the
probative value of the uncharged conduct is not substantially outweighed
by any of the concerns set forth in Rule 403. The uncharged conduct was
“extremely similar to the charged offense[],” and the “amount of time
separating” the uncharged conduct and charged conduct was “minimal.”
United States v. Muscatell, 42 F.3d 627, 631 (11th Cir. 1995) (affirming
the introduction of related uncharged acts). 	The Government is not
“dragg[ing]” the uncharged conduct “by its heels solely for prejudicial
impact.” 	U.S. Infrastructure, Inc., 576 F.3d at 1211. 	Instead, the
evidence is inextricably intertwined and is being introduced to help
explain the circumstances surrounding the events on March 25, 2025,
and to provide necessary context. 	Given the similarities between the
charged 	conduct 	and 	the 	uncharged 	conduct, 	the 	extremely 	short
distance in time between the charged conduct and uncharged conduct,
and 	the 	relevance 	of 	the 	uncharged 	conduct 	to 	explaining 	the
circumstances surrounding the charged conduct, the Court finds that
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Rule 403 does not preclude the uncharged conduct evidence from being
introduced.
III. 	Conclusion
For 	the 	reasons 	above, 	the 	Government 	will 	be 	permitted 	to
introduce the uncharged conduct evidence set forth in its Notice (Doc. 15).
If 	Defendant 	would 	like 	the 	Court 	to 	issue 	a 	limiting 	instruction
regarding the evidence, the Court will be happy to do so upon request.
SO ORDERED this the 6th of October 2025.
s/
Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
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