United States v. Kevin Asher

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0266p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

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> No. 17-6251

v. │

│

│

KEVIN EUGENE ASHER, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Eastern District of Kentucky at London.

No. 6:16-cr-00050-1—Karen K. Caldwell, Chief District Judge.

Argued: October 3, 2018

Decided and Filed: December 12, 2018

Before: GILMAN, KETHLEDGE, and BUSH, Circuit Judges.

_________________

COUNSEL

ARGUED: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids, Michigan,

for Appellant. Elizabeth Nash, UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee. ON BRIEF: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C.,

Grand Rapids, Michigan, for Appellant. Elizabeth Nash, Thomas E. Chandler, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., Charles P. Wisdom, Jr., Hydee R.

Hawkins, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

_________________

OPINION

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JOHN K. BUSH, Circuit Judge. A jailor who abused his power found himself in the

defendant’s chair. He was indicted for beating up an inmate and filing a false report to cover it

No. 17-6251 United States v. Asher Page 2

up. The charges required the government to prove that the jailor acted purposefully. So the

government notified the jailor that it intended to introduce testimony that the jailor had also

battered a different prisoner and concealed that crime. The jailor objected to the introduction of

this prior-act evidence. He offered a conditional stipulation: if the jury believed that he

committed the charged assault, he would admit intent. And he argued that the prior-act

evidence’s usefulness for proving his intent was substantially outweighed by the danger that the

evidence would unfairly prejudice the jury against him. Over the jailor’s objection, the district

court admitted the prior-act evidence.

On appeal, Kevin Eugene Asher, the accused jailor, argues that the district court’s

admission of the evidence was an abuse of discretion. We agree. We therefore vacate Asher’s

convictions and sentence, and we remand for a new trial.

I.

According to the government, in November 2012, Gary Hill, a recently arrested prisoner,

arrived at the Kentucky River Regional Jail and was placed in a detox cell. He asked to make a

phone call, but the jailors denied his request. Upset, he turned on the sink in his cell and let the

water overflow onto the floor.

Deputy Jailors Asher and Damon Hickman responded. They confronted Hill, but he

refused to turn off the water. Annoyed, Hickman punched Hill in the face, knocking him to the

floor and severely injuring his jaw. Hickman and Asher then viciously kicked and stomped Hill

while he laid curled up in the fetal position on the floor. The assault caused Hill to defecate on

himself.

When Hickman and Asher backed off, Hill told them that they would not get away with

what happened. But Hill’s threat did not intimidate his assailants. The jailors mocked Hill for

having soiled his pants and flashed the embroidery emblem on their work shirts in front of Hill’s

face, stating, “We’re the law, dawg. We can do what we want.” They told Hill that if he reported

the incident, they would lie and claim that Hill assaulted them first.

No. 17-6251 United States v. Asher Page 3

Unfortunately, Hill’s pain and humiliation did not end there. The jailors threw him into a

restraint chair and tightened the straps. Then, Asher watched as Hickman pounded Hill’s face.

The bruises on Hill’s wrists memorialized his hopeless attempts to free himself from the

restraints. With his arms and legs bound, however, his only defense was to keep his head down.

When Hickman finished, the jailors left Hill in the restraint chair: beaten, bruised, and sitting in

his own feces. The next memory Hill has is waking up on the cell floor. He was in considerable

pain, so he asked to see a doctor. Hickman, however, testified that he and Asher had other plans.

They took Hill to another room, where a “doctor” looked at him but gave him no treatment.

According to Hickman, the “doctor” was Asher in disguise, donning a jacket, and possibly a hat

or a wig, and speaking in a foreign accent. After the fake examination, Hickman and Asher put

Hill back into a cell.1

Hill later filed a complaint describing the beating. Meanwhile, Hickman and Asher

plotted a cover-up. Hickman wrote a false report stating that Hill was the aggressor and that he

(Hickman) used necessary force to prevent Hill from harming himself or others. Asher signed

Hickman’s report and several months later wrote his own corroborating report. In his report,

Asher stated that when the jailors entered the cell, Hill cocked his fist back as if to strike the

jailors, and Hickman merely de-escalated the situation. As for Hill’s injuries, Asher claimed that

Hill slipped on the water and hit the wall while trying to evade the jailors. Neither of the jailors’

reports mentioned Hill’s request to see a doctor.

II.

The government charged Asher with two felony counts: (i) depriving Hill of his civil

rights under color of law, in violation of 18 U.S.C. § 242; and (ii) falsifying a record to impede a

federal investigation, in violation of 18 U.S.C. § 1519.2 Before trial, the government informed

1The assault caused Hill severe and permanent injury. He suffered severe headaches and bruising and

swelling on his face and neck. Hill also has permanent numbness in his jaw.

2Hickman pleaded guilty to an assault charge in a different case, and the court sentenced him to 126

months of imprisonment for that crime. See Fed. R. Evid. 201 (“The court may judicially notice a fact that is not

subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy

cannot reasonably be questioned.”).

No. 17-6251 United States v. Asher Page 4

Asher that to prove his intent when he assaulted Hill, it planned to introduce evidence of his

participation in a similar assault and cover-up involving a different inmate.

That incident occurred about two and a half years before the assault on Hill. Like in the

Hill assault, Hickman and Asher entered the detox cell at the Kentucky River Regional Jail,

where a recently arrested prisoner, Dustin Turner, was strapped to a restraint chair. Turner

taunted the jailors and challenged them to release him from the chair. Hickman obliged and then

punched Turner in the face. Turner fell to the ground, and Hickman and Asher hit and kicked

him while he was down. The jailors then strapped Turner back into the restraint chair.3 As a

result of the assault, Turner had bruising on his face, neck, and ribs, and had broken teeth.

Hickman and Asher then concocted a plan to conceal their misconduct. They wounded

themselves to make it look like Turner had attacked them first. Then they called the police to

report Turner’s aggression. They also wrote false incident reports. In the reports, Hickman and

Asher told a story about their having had to restrain Turner forcibly because of his belligerence.

Asher objected to the government’s introduction of this evidence. He cited Federal Rule

of Evidence 403 and argued that the danger of the evidence unfairly prejudicing him

substantially outweighed its probative value. The district court held a hearing and heard evidence

about the prior incident. The court decided that substantial evidence showed that the event had

occurred; the government’s proposed purpose in introducing the evidence was proper, as Asher

had conceded; and the evidence was not unduly prejudicial.

Asher moved to clarify the district court’s ruling. Because the government sought to

introduce Turner’s assault to prove Asher’s intent in Hill’s assault, Asher asked whether his

providing a conditional stipulation on the element of intent could keep the evidence out. Asher

explained that his defense was not based on his lack of intent, but that Hickman was lying about

Asher’s involvement in the assault on Hill. Thus, Asher was willing to stipulate that if the jury

3This version of events comes from Hickman’s trial testimony in Asher’s case. The jury also heard a

slightly different, but no less reprehensible, version of this assault from the victim. In Turner’s version, Hickman

and Asher brought Turner into his cell, knocked Turner to the ground, and kicked and punched him. Hickman and

Asher then put Turner in a restraint chair and continued to assault him. Turner testified that when he asked to be let

up from the restraint chair so that he could defend himself, Hickman and Asher took him out of the chair and

slammed him to the ground, rendering him unconscious.

No. 17-6251 United States v. Asher Page 5

disagreed with him—if it found that he assaulted Hill—then he would concede his having

possessed the necessary intent. The government refused to accept this stipulation and argued that

it had the right to prove its case—including the element of intent—with the evidence it chose.

On the first day of trial, the district court ruled that the evidence of Turner’s assault was

admissible. In a written order, the court held that despite Asher’s stipulation offer, the prior-act

evidence was not unfairly prejudicial under Rule 403. The court explained that the evidence was

highly probative of intent because the other assault was “similar in kind and close in time to the

charged assault and entry.” R. 52, Page ID# 251. The court also concluded that because the

prior-act evidence was no more appalling than the charged crime, it was not so shocking that it

might “lure the factfinder” into convicting on an improper basis. And this balance would not

change, the court held, if Asher stipulated to intent because the government generally has

freedom to prove its own case.

At trial, the jury heard evidence about both assaults and cover-ups. The district court

orally instructed the jury three separate times that it could consider evidence of the Turner

assault only for purposes of proving Asher’s intent to commit the charged crimes and for no

other purpose. The written instructions given to the jury matched the Sixth Circuit’s pattern jury

instructions and echoed the judge’s warnings about the proper use of the Turner assault evidence.

Asher did not object to the jury instructions. The jury found Asher guilty of the charged crimes.

The district court sentenced him to 108 months of imprisonment, a sentence at the lower end of

his Guidelines range. Asher appealed.

III.

Asher’s primary argument on appeal is that the district court should have excluded

evidence of the Turner assault and cover-up. He concedes that there was enough evidence for a

jury to find that the Turner incident occurred and that the government introduced this evidence

for a proper purpose (proving his specific intent in the charged crimes). But, relying on Federal

Rule of Evidence 403, he contends that the district court should have kept the prior-act evidence

away from the jury because it was unduly prejudicial to him.

No. 17-6251 United States v. Asher Page 6

Rule 403 provides a balancing test for excluding relevant evidence. The test is strongly

weighted toward admission. The trial judge may exclude relevant evidence only if “its probative

value is substantially outweighed by the danger of unfair prejudice.” Huddleston v. United

States, 485 U.S. 681, 687 (1988); Fed. R. Evid. 403. District courts enjoy “broad discretion” in

making the prejudice determination. United States v. Carney, 387 F.3d 436, 451 (6th Cir. 2004)

(citation omitted). When the district court admits evidence over a party’s undue-prejudice

objection, we review the admitted evidence “in the light most favorable to its proponent,

maximizing its probative value and minimizing its prejudicial effect.” Id. (citation omitted). We

will reverse only if the district court abused its discretion. United States v. LaVictor, 848 F.3d

428, 444 (6th Cir.) (citation omitted), cert. denied, 137 S. Ct. 2231 (2017).

For prior-act evidence introduced to prove the defendant’s intent, probative value

depends mainly on two factors: similarity and temporal proximity. See id. at 447 (citing United

States v. Carter, 779 F.3d 623, 625 (6th Cir. 2015)). For similarity, we consider both the intent

the defendant formed when he acted as well as the conduct and factual circumstances

surrounding that conduct. Id. Evidence showing that a defendant formed a particular intent on a

prior occasion may provide insight into his state of mind when he committed the charged

offense. See United States v. Hardy, 643 F.3d 143, 151 (6th Cir. 2011) (“This court has

repeatedly recognized that prior drug-distribution evidence is admissible [under Federal Rule of

Evidence 404(b)] to show intent to distribute.” (citation and internal quotation marks omitted)).

And a prior act has heightened probative value when it shows that the defendant took similar

actions in a similar situation. See LaVictor, 848 F.3d at 447 (“LaVictor’s previous acts of

violence against women are virtually identical to his conduct toward C.B. Similar to the cases

involving the previous women, LaVictor was involved in a lengthy romantic relationship with

C.B. that contained similar allegations of abuse triggered by very comparable circumstances.”).

That said, the prior act need not be “identical in every detail to the charged offense.” Id. (citation

and internal quotation marks omitted); see United States v. Seymour, 468 F.3d 378, 385 (6th Cir.

2006) (recognizing that testimony of adults who had been sexually assaulted by the defendant

“was less probative” in a case involving a defendant’s prosecution for molesting a child because

the adults were much older than the victim but emphasizing that prior-act evidence still carried

substantial probative value because of “marked[] similar[ities]” in the testimonies).

No. 17-6251 United States v. Asher Page 7

Along with similarity, we consider also temporal proximity. Though this court has never

set a time horizon for prior-act evidence,4 common sense dictates that “temporal remoteness

reduces the probative value” of prior conduct. United States v. Corder, 724 F. App’x 394, 409

(6th Cir.), cert. denied, 138 S. Ct. 2632 (2018) (recognizing diminished probative value of

defendant officer’s false statements made to investigators sixteen and twenty-three years ago).

Conversely, relative temporal proximity increases a prior act’s probative value. See United

States v. Stevens, 303 F.3d 711, 717 (6th Cir. 2002) (emphasizing “the relatively short period of

time”—two years—between each fire and the defendant’s arson charge).

Courts must also consider the availability of other means of proof. See Old Chief v.

United States, 519 U.S. 172, 184 (1997) (explaining that the probative-value determination under

Rule 403 includes “comparing evidentiary alternatives”); United States v. Myers, 123 F.3d 350,

363 (6th Cir. 2007). The Supreme Court has cautioned that the existence of an alternative means

of proof—even one with “substantially the same or greater probative value but a lower danger of

unfair prejudice”—does not require exclusion of more prejudicial evidence. Old Chief, 519 U.S.

at 182–83. But we must “discount the value of the item first offered and exclude it if its

discounted probative value [is] substantially outweighed by unfairly prejudicial risk.” Id. at 183;

see United States v. Willoughby, 742 F.3d 229, 238 (6th Cir. 2014) (“Thus, in light of the other

evidence at trial, the probative value of the pimping testimony was modest: it merely showed that

Willoughby knew what everyone else knew.”).

On the other side of the scale rests unfair prejudice—the “undue tendency to suggest a

decision based on improper considerations,” like the chance that the jury will convict the

defendant because of his prior, instead of his charged, conduct. United States v. Bilderbeck,

163 F.3d 971, 978 (6th Cir. 1999) (citing Sutkiewicz v. Monroe Cty. Sheriff, 110 F.3d 352, 360

(6th Cir. 1997)). One form of unfair prejudice involves the risk that the prior act could cause the

jury to reach a verdict based on emotions instead of evidence. Old Chief, 519 U.S. at 180. This

may occur when, for example, the prior-act evidence so shocks the conscience that the jury may

4See United States v. Jones, 403 F.3d 817, 821 (6th Cir. 2005) (noting that although “prior conduct must be

reasonably near in time under the facts of the particular case . . . there is no absolute maximum number of years that

may separate a prior act and the offense charged” (quoting United States v. Ismail, 756 F.2d 1253, 1260 (6th Cir.

1985) (internal quotation marks omitted))).

No. 17-6251 United States v. Asher Page 8

decide that the defendant is a bad person and deserves to be convicted, even if his guilt were

unproven in the instant case, “because a bad person deserves punishment.” Id. at 181. Certainly,

a jury is more likely to engage in this type of judgment when the prior-conduct evidence portrays

the defendant as having committed an appalling act. But when the charged crime has

“inflammatory potential” similar to or greater than the prior act, the risk of the jury being

inflamed by presentation of the prior-act evidence may be diminished. United States v.

Mandoka, 869 F.3d 448, 459 (6th Cir. 2017); see also Stevens, 303 F.3d at 716–17. If a juror has

already heard about the defendant’s participation in a terrible charged act, he is less likely to be

uncontrollably impassioned when presented with evidence of a similar or less shocking act.

Thus, calculating this form of prejudice must involve some comparison between the

inflammatory nature of the charged crime to that of the prior act.

Another risk of unfair prejudice, and the one at issue in this case, involves the tendency

of the evidence to lure the factfinder into an impermissible propensity line of reasoning—

“generalizing a defendant’s earlier bad act into bad character and taking that as raising the odds

that he did the later bad act now charged.” Old Chief, 519 U.S. at 180. This risk is heightened

when the prior act is much like the charged conduct. As we have said, “[w]hen jurors hear that a

defendant has on earlier occasions committed essentially the same crime as that for which he is

on trial, the information unquestionably has a powerful and prejudicial impact.” United States v.

Jenkins, 593 F.3d 480, 486 (6th Cir. 2010) (quoting United States v. Johnson, 27 F.3d 1186,

1193 (6th Cir. 1994)). So the same factors that make prior-act evidence probative—similarity

and temporal proximity—may also increase the risk of this form of unfair prejudice.

Finally, when determining whether evidence is unduly prejudicial, we consider whether a

limiting instruction can mitigate the risk of prejudice. See United States v. Ayoub, 498 F.3d 532,

548 (6th Cir. 2007). Limiting instructions should identify “the specific factor named in the rule

that is relied upon to justify admission of the other acts evidence, explain why the factor is

material, and warn the jurors against using the evidence to draw” improper inferences. United

States v. Bell, 516 F.3d 432, 441 (6th Cir. 2008) (quoting Johnson, 27 F.3d at 1194).

But sometimes evidence is so prejudicial that the risk of a jury’s improper use of the

evidence cannot be quashed by a judge’s instructions. In Jenkins, the defendant was tried for

No. 17-6251 United States v. Asher Page 9

drug distribution and gun possession crimes arising out of a search of his residence. 593 F.3d at

480. The principal issue was whether Jenkins (as opposed to someone else) constructively

possessed the guns and drugs found in his residence. Id. at 483. Over Jenkins’s objection, the

government offered testimony that eight years prior, he was caught distributing marijuana

outside the same residence. Id. at 484. The government argued that Jenkins’s previous crime

tended to show that he knowingly possessed the drugs at the same address with the same intent

eight years later. Id. at 485. We assumed that Jenkins’s prior convictions had some probative

value for proving his intent, and we acknowledged that the district court properly instructed the

jury about the impermissible use of the evidence. Id. at 485–86. Yet we held that the evidence

should have been excluded because of its unfair prejudicial effect. Id. at 486. We emphasized

that the government had other “overwhelming” evidence of intent and the prior act revealed

essentially the same crime as the charged conduct. Id. Under those facts, we were “firmly

convinced that the prejudicial effect of Jenkins’s prior conviction substantially outweighed its

probative value.” Id.

Similarly, here, Asher’s alleged conduct was at issue, not the intent behind it. The

conduct of which Asher was accused provided, in and of itself, a sufficient basis for the jury to

find his intent. Asher stood accused of beating a helpless prisoner, and thereby depriving that

prisoner of his rights. Asher was further accused of pretending to be a doctor, and falsifying

reports to cover up this illegal conduct. It is specious to think that the jury might have

disbelieved Asher’s denials, yet acquitted him for lack of specific intent. To come to that

conclusion, the jury would have had to believe that Asher had beaten a helpless prisoner,

pretended to be a doctor, and falsified incident reports without intending to do so. The charged

conduct itself provided significant alternative methods to prove Asher’s intent, to the point that

the entire issue of intent was subsumed by the conduct. Thus, the prior-act evidence had only

incremental probative value.

Where, as here, the probative value of the evidence is modest due to alternative methods

of proof, courts must be especially careful not to allow that evidence to reach the jury if the

evidence is unduly prejudicial. In Jenkins we rejected the proffered evidence because it was so

similar to the conduct being charged as to approach inadmissible propensity evidence: “When

No. 17-6251 United States v. Asher Page 10

jurors hear that a defendant has on earlier occasions committed essentially the same crime as that

for which he is on trial, the information unquestionably has a powerful and prejudicial impact.”

Jenkins, 593 F.3d at 486 (quoting Johnson, 27 F.3d at 1193). In the instant case, Asher’s alleged

crime and the prior-act evidence offered by the government were virtually identical, which the

government emphasized in closing arguments. “I’m sure you’ll agree that the similarities

between the Gary Hill and the Dustin Turner incidents are uncanny. . . . These similarities make

it more likely that the defendant acted willfully in this case.” R. 111, Page ID# 1316. The

prejudice that was introduced not only from the government’s evidence, but from the

government’s presentation of that evidence, is inescapable. Further, here as in Jenkins, a curative

instruction was insufficient to mitigate that prejudice. As we said in Jenkins, “[e]ven when

properly instructed to consider the evidence only for some legitimate purpose . . . the danger is

obvious that the jury will treat it as propensity evidence instead.” Jenkins, 593 F.3d at 486.

Because the prior-act evidence was only incrementally probative, and the risk of prejudice was

high, it was an abuse of discretion for the district court to admit the evidence to the jury.5

Finally, we must consider whether the district court’s mistake in admitting the evidence

was harmless. The admission of inadmissible prior-act evidence is harmless “if the record

evidence of guilt is overwhelming, eliminating any fair assurance that the conviction was

substantially swayed by the error.” United States v. Brown, 888 F.3d 829, 836–37 (6th Cir. 2018)

(quoting United States v. Clay, 667 F.3d 689, 700). The government’s evidence of guilt in this

case was strong, but not overwhelming. Asher’s defense at trial was that Hickman was lying

about Asher’s involvement in the assault on Hill. Absent the prior-act evidence, Asher’s

attempts to attack Hickman’s credibility might have persuaded the jury that Hickman was lying

about Asher’s role in the assault. And Hill testified at trial that he could not remember much

about Asher’s role in the beating. Accordingly, as in Jenkins, “we cannot say with ‘fair

assurance’ that the admission of [the prior act evidence] did not ‘substantially sway’ the result at

5This does not mean that Asher’s offer to stipulate to the intent was dispositive. Even in the face of

Asher’s offer to stipulate, the prosecution was still entitled to present evidence of intent to the extent that the

evidence was not unduly prejudicial.

No. 17-6251 United States v. Asher Page 11

trial.” Jenkins, 593 F.3d at 486 (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

Thus, the error was not harmless.6

IV.

Asher’s convictions and sentence are VACATED, and the case is remanded for a new

trial.

6In addition to appealing his conviction, Asher also appealed the validity of his sentence. Because we

agree that the district court erred in admitting the evidence concerning Asher’s prior acts, and vacate his convictions,

we need not determine the validity of the sentence that the district court imposed.