==================================================================== IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT USCA No. 14-3890 UNITED STATES OF AMERICA, Appellee, v. SANTANA DRAPEAU, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION HONORABLE ROBERTO A. LANGE UNITED STATES DISTRICT COURT JUDGE APPELLANT S REPLY BRIEF Neil Fulton, Federal Public Defender 101 South Pierre Street, Third Floor P.O. Box 1258 Pierre, South Dakota 57501 Telephone: (605) 224-0009 Facsimile: (605) 224-0010 ATTORNEY FOR APPELLANT ==================================================================== Appellate Case: 14-3890 Page: 1 Date Filed: 04/01/2015 Entry ID: 4260579
TABLE OF CONTENTS Page(s) Table of Authorities.................................................. ii Argument.......................................................... 1 I. It was an abuse of discretion to admit evidence of the facts underlying Drapeau s tribal court convictions for domestic abuse.................................................... 1 Conclusion......................................................... 7 Certificate of Service................................................. 8 Certificate of Compliance............................................. 9 i Appellate Case: 14-3890 Page: 2 Date Filed: 04/01/2015 Entry ID: 4260579
TABLE OF AUTHORITIES Supreme Court Cases Page(s) Old Chief v. United States, 519 U.S. 172 (1997).......................................... 5, 6 Courts of Appeal Cases Page(s) United States v. Clark, 668 F.3d 568 (8th Cir. 2012)..................................... 6 United States v. Moore, 38 F.3d 977 (8th Cir. 1994).................................... 2, 3 Statutes Page(s) 18 U.S.C. 117................................................... 1-4 18 U.S.C. 924(c)................................................... 3 Federal Rules Page(s) Fed. R. Evid. 402.................................................. 2, 4 Fed. R. Evid. 403................................................ 2, 4-6 Fed. R. Evid. 404.................................................... 6 ii Appellate Case: 14-3890 Page: 3 Date Filed: 04/01/2015 Entry ID: 4260579
ARGUMENT I. It was an abuse of discretion to admit evidence of the facts underlying Drapeau s tribal court convictions for domestic abuse. Drapeau s argument on appeal is that the District Court abused its discretion by admitting evidence of the facts underlying his prior tribal court convictions for domestic abuse. It is not that the jury was improperly instructed as the United States argues in considerable detail. It is strictly an argument about the improper admission of evidence which was preserved below through motions in limine and timely objections at trial. DCD 25; TT 19:7-15, 30:3 to 36:5. The jury instructions are nonetheless relevant to this argument because they illustrate two flawed premises that led the District Court to admit the evidence despite its irrelevance and unfair prejudice. First, the decision of whether Drapeau s prior tribal domestic abuse convictions were qualifying predicates under 18 U.S.C. 117 that met the federal law definition of assault was a legal question for the court, not a factual one for the jury. The District Court s submission of that question to the jury in Instructions 14 and 16 led it to improperly conclude that the facts underlying those convictions were relevant and not unfairly prejudicial. Second, regardless of who decided the question, the jury instructions reflected the District Court s mistaken belief that this question was a 1 Appellate Case: 14-3890 Page: 4 Date Filed: 04/01/2015 Entry ID: 4260579
factual one (comparing Drapeau s conduct with federal law), rather than a legal one (comparing the elements of the respective offenses). That led the District Court to believe that the facts underlying the convictions were relevant when actually only the elements were. So while the jury instructions are not themselves Drapeau s argument, they do illustrate why and how the District Court came to the improper decision to admit this evidence over Drapeau s objections under Fed. R. Evid. 402 and 403. It is an issue preserved below and reviewed for abuse of discretion, not a new argument reviewed for plain error as the United States argues. The argument of the United States that the judgments of conviction alone were insufficient evidence also reflect a mistaken understanding of how predicate convictions are to be evaluated under 18 U.S.C. 117. That statute defines a qualifying predicate as a final conviction...for offenses that would be, if subject to Federal jurisdiction one of several enumerated offenses including assault. 18 U.S.C. 117. Whether prior offenses fit a defined class of crimes for a future prosecution is a legal question where the elements of the offense, not the conduct, is evaluated. See e.g., United States v. Moore, 38 F.3d 977, 979-80 (8th Cir. 1994). The United States all but admits this in its discussion of Moore when it notes that the salient question surrounded the nature of the crime, not the 2 Appellate Case: 14-3890 Page: 5 Date Filed: 04/01/2015 Entry ID: 4260579
underlying facts in determining what is a crime of violence. Even if some additional evidence were necessary, evidence of the Crow Creek Tribal Code definitions of Drapeau s convictions was proper, not Dondee St. John s description of what happened. Attempts to distinguish Moore, and the principle that prior convictions are evaluated by elements not offense conduct, do not work. The first argument is that Moore only required a consideration of the nature of the offense, not the facts. That is true. It also does nothing to distinguish Moore from this case unless it is to contend that the ipse dixit Moore is different should be accepted, however. A second attempt to distinguish Moore is that the language of 18 U.S.C. 117 requires consideration of the offense conduct not the offense elements. The language of the statute does not support that argument. The statute refers to prior conviction and tribal offenses that would meet the definition of federal law; it does not refer to conduct nor does its language otherwise suggest an evaluation of the underlying conduct. Exactly as Moore looked at the elements of the offense to determine if a firearm was possessed in the course of a crime of violence in violation of 18 U.S.C. 924(c), whether prior convictions are for offenses that would meet the federal law definition of assault under 18 U.S.C. 117 requires an examination of the elements not the conduct. 3 Appellate Case: 14-3890 Page: 6 Date Filed: 04/01/2015 Entry ID: 4260579
When fitting prior convictions into categories that make up elements of or enhancements to subsequent offenses, offense elements not conduct is consistently the benchmark. Drapeau has cited numerous cases for that principle in his opening brief. It is telling that the United States cites no cases in its brief where the actual conduct is evaluated. None. If Drapeau s prior offense conduct, as opposed to the elements of the offenses of conviction, was not the criteria to determine if his convictions qualified under 18 U.S.C. 117, it was not relevant under Fed. R. Evid. 402. Again, the argument is not that the District incorrectly instructed the jury, it is that the legal misunderstanding led to an abuse of discretion in admitting this evidence. Absent a need to assess Drapeau s prior convictions factually, there was no need to hear the facts underlying those convictions regardless of who made the decision. Absent that being a factual issue for the jury, there was no need for the evidence to go to the jury. The District Court s mistake on both issues led to an abuse of discretion in admitting the irrelevant evidence of the facts behind Drapeau s tribal court convictions. Even if some relevance is assumed, St. John s description of events should have been excluded under Fed. R. Evid. 403 as substantially more prejudicial than probative and posing a risk of confusion of the issues. The judgments indicated 4 Appellate Case: 14-3890 Page: 7 Date Filed: 04/01/2015 Entry ID: 4260579
that these convictions were for domestic abuse. Exhibits 12-14. The tribal court clerk explained that these offenses related to domestic assault and that Dondee St. John was the victim. TT 21:10 to 23:1. St. John testified that she and Drapeau were domestic partners at the time of those offenses. TT 28:10. Despite a limiting instruction, there was really no valid purpose for this evidence other than to conclude that Drapeau was the kind of guy who beats up his girlfriend. Additionally, the factual similarity between incidents presented a real risk of confusion of the issues. In either event, any assumed probative value was substantially outweighed by these concerns and the evidence should have been excluded under Fed. R. Evid. 403. In assessing this evidence under Fed. R. Evid. 403, Old Chief v. United States does provide support to Drapeau. Old Chief noted at the outset that Rule 403 exists to preclude generalizations that a prior bad actor acted badly in the case at hand or was a bad person deserving of punishment in any event. Old Chief v. United States, 519 U.S. 172, 181 (1997). In Old Chief, those risks existed in admitting the name of an undisputed prior felony when all that was relevant was its existence. Id. at 190-92. Here they exist through admitting underlying facts of Drapeau s tribal court convictions when all that is relevant about them is that they exist and that their elements are consistent with the federal law definition of 5 Appellate Case: 14-3890 Page: 8 Date Filed: 04/01/2015 Entry ID: 4260579
assault. The same rationale applies in both cases. While the facts of Old Chief are indisputably narrow, the general principle applied in it (unfairly prejudicial evidence should be excluded when comparable evidence free of that risk exits) applies generally. Here, it supports exclusion of the facts underlying Drapeau s tribal court convictions. Lastly, the argument that this evidence could have been admitted under Fed. R. Evid. 404 is unavailing. The United States admitted that it did not see this evidence as Rule 404 type evidence. DCD 30. Likewise, the District Court did not admit it for that purpose. DCD 50; TT 31:7-20. Taken on the merits, however, this evidence would still be properly excluded under Fed. R. Evid. 403. Additionally, neither the United States nor the District Court identified the Rule 404 purpose for which it was offered or gave the jury an appropriate limiting instruction to that effect. When evidence is admitted under Fed. R. Evid. 404 such an instruction is appropriate. United States v. Clark, 668 F.3d 568, 575 (8th Cir. 2012). Reliance on Rule 404 does not eliminate the District Court s abuse of discretion in admitting this evidence. 6 Appellate Case: 14-3890 Page: 9 Date Filed: 04/01/2015 Entry ID: 4260579
CONCLUSION The District Court abused its discretion in admitting evidence of the facts underlying Drapeau s tribal court convictions. The judgment of conviction should therefore be vacated and the case remanded for a new trial as a result. Dated this 31st day of March, 2015. Respectfully submitted, /s/ Neil Fulton Neil Fulton, Federal Public Defender Attorney for Appellant Santana Drapeau Office of the Federal Public Defender District of South Dakota 101 South Pierre Street, Third Floor P.O. Box 1258 Pierre, SD 57501 Telephone: (605) 224-0009 Facsimile: (605) 224-0010 filinguser_sdnd@fd.org 7 Appellate Case: 14-3890 Page: 10 Date Filed: 04/01/2015 Entry ID: 4260579
CERTIFICATE OF SERVICE I hereby certify that on the 31st day of March, 2015, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Eighth Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. In addition, I certify the electronic version of the foregoing has been scanned for viruses using Symantec Anti Virus Corporate Edition, and that the scan showed the electronic version of the foregoing is virus-free. /s/ Neil Fulton Neil Fulton, Federal Public Defender Attorney for Appellant Santana Drapeau 8 Appellate Case: 14-3890 Page: 11 Date Filed: 04/01/2015 Entry ID: 4260579
CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that WordPerfect Version X6 was used in the preparation of the foregoing Appellant s Reply Brief, and that the word count done pursuant to that word processing system shows that there are 1,397 words in the foregoing Appellant s Reply Brief. Dated this 31st day of March, 2015. /s/ Neil Fulton Neil Fulton, Federal Public Defender Attorney for Appellant Santana Drapeau 9 Appellate Case: 14-3890 Page: 12 Date Filed: 04/01/2015 Entry ID: 4260579