US v. Charley, No. 19-10133 (6-11-21)(Bea w/Cardone; Bumatay concurring). Note:  This is an AZ FPD case (and win). The 9th vacated convictions for assault and remanded. The defendant raised self-defense in her striking her boyfriend with a rebar. In support, she called witness about his prior recent assaults. The prosecutor, in rebuttal, brought up specific violence roughly two years old with other family members. On appeal, the 9th held such evidence to be inadmissible under FRE 404(a)(character) and 404(b)(other acts). Possibly the door was opened for reputation or character under FRE 405, but the specific instances were really for propensity and there was no tie for 404(b).

The opinion provides a useful overview of 9th precedent for prior assaults. The precedent, notably US v Bettancourt, 614 F.2d 214 (9th Cir. 1980), states that prior assaults are rarely permissible under 404(b). Such acts are more often spontaneous and quick rather than deliberative and carefully thought out.

The 9th affirmed the conviction for false statements to the FBI. The defendant had lied, even after warned that such falsehoods could be criminal.

The concurrence questioned whether 9th precedent, which cautions that prior assaults can rarely be used for intent, is too rigid.

Congrats to AFPD Molly Karlin, FPD Az (Phoenix)for the win. Kudos to AFPD Susan Anderson for fighting against admission and making the record.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/11/19-10133.pdf