govinfo:USCOURTS-kyed-5_23-cr-00109-1

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF KENTUCKY 
CENTRAL DIVISION 
(at Lexington) 
 
UNITED STATES OF AMERICA,  
 
Plaintiff, 
 
V. 
 
TANNER M. ABBOTT, 
 
Defendant. 
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Criminal Action No. 5: 23-109-DCR 
 
 
 
MEMORANDUM OPINION 
AND ORDEDR 
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 The United States has filed a motion in limine concerning the admissibility of certain 
evidence Defendant Tanner Abbott may seek to introduce during trial.  [Record No. 50] The 
evidence at issue as outlined in the government’s motion concerns:  (i) victim J.C.’s 
misdemeanor convictions for resisting arrest and assault ; (ii) victim W.W.’s 2010 conviction 
for tampering with physical evidence ; and (iii) the entry of a domestic violence restraining 
order against victim B.T.  Abbott also may attempt to introduce “any felony conviction that a 
witness does not acknowledge.”   
 Next, Defendant Abbott has filed a motion in limine, seeking to exclude certain “other 
acts” evidence the United States may attempt to introduce under Rule 404(b) of the Federal 
Rules of Evidence.  [Record No. 57] More specifically, Abbott  seeks to exclude potential 
evidence and/or testimony concerning several text messages obtained from his phone as well 
as other instances of assaultive conduct not charged in the case.  [Record No. 57]   
 For the reasons outlined below, the United States’ motion will be granted, in part, and 
denied, in part.  Defendant Tanner’s motion will be denied. 
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I. The United States’ Motion In Limine to Exclude “Character Evidence” 
 Impeachment:  Rule 609 of the Federal Rules of Evidence 
 The United States reports that none of the identified convictions in issue are felonies.  
However, Abbott asserts in response that W.W.’s conviction for tampering with physical 
evidence is a felony.  Felonies are generally admissible for impeachment purposes under Rule 
609(a)(1), subject to Rule 403 of the Federal Rules of Evidence.   
 The government concedes that W.W.’s conviction for tampering with physical 
evidence is a crime of dishonesty as defined by Rule 609(a)(2). 1  However, it reports that the 
conviction is more than 10 years old (which Abbott does not dispute) ; therefore , its 
admissibility is limited by Rule 609(b).  This rule creates “a rebuttable presumption that 
convictions over ten years old are more prejudicial than helpful and should be excluded.”  
United States v. Rodriguez , 409 F. App’x 866, 869 (6th Cir. 2011) (quoting United States v. 
Sims, 588 F.2d 1145, 1150 (6th Cir. 1978)).   
 The Sixth Circuit has observed that “evidence of convictions more than ten years old 
should be admitted very rarely and only in exceptional [ ] circumstances.”  Id. (quoting United 
States v. Sloman, 909 F.2d 176, 181 (6th Cir. 1990)).  Abbott does not argue that exceptional 
circumstances exist here.  Instead, he simply contends that the prior conviction is relevant to 
Abbott’s decision to use force.  Having considered the parties’ arguments , the undersigned 
concludes that the  tampering with physical evidence conviction will not be admitted for 
impeachment purposes.  The United States’ motion in limine to exclude evidence or testimony 
 
1 In Kentucky, a person tampers with physical evidence when “believing that an official 
proceeding is pending or may be instituted, he: (a) destroys, mutilates, conceals, removes or alters 
physical evidence . . . . or (b) fabricates any physical evidence with the intent that it be introduced 
in the official proceeding . . .”  Ky. Rev. Stat. § 524.100. 
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regarding this conviction will be GRANTED if such testimony is solicited or such evidence 
is offered during cross-examination of W.W. 
 Next, Abbott argues that he should be able to introduce evidence of J.C.’s misdemeanor 
conviction for assault and resisting arrest because it is based on J.C. spitting on Abbott after 
he was handcuffed.  But Rule 609 has no exception for admitting a misdemeanor conviction 
for impeachment purposes for such a reason.  Thus, the United States motion in limine  to 
exclude evidence or testimony regarding this conviction will be GRANTED if such testimony 
is solicited or such evidence is offered during cross-examination of J.C. 
 Abbott also contends that the domestic violence restraining order against B.T. is 
admissible because C.G., the petitioner named in the protective order, was present in the hotel 
room that was searched.  But this does not make the order admissible for impeachme nt 
purposes.  The United States motion in limine to exclude evidence or testimony regarding this 
domestic violence restraining order will be GRANTED if such testimony is solicited or such 
evidence is offered during cross-examination of B.T. 
 To the extent Abbott may seek to introduce evidence of unidentified felonies, Rule 609 
provides that “for a crime that, in the convicting jurisdiction, was punishable by death or by 
imprisonment for more than one year, the evidence . . . must be admitted, subject to Rule 403 
. . . in a criminal case in which the witness is not the defendant.”  This Rule presumes that all 
felonies are at least somewhat probative of a witness’s propensity to testify truthfully.  United 
States v. Estrada, 430 F.3d 606, 617 (2d Cir. 2005).  Unfortunately, the Court is unable to 
conduct a proper analysis of the use of felony convictions of  potential witnesses in th is case 
without further information.   
  
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 Character:  Rules 404(a), 405, and 608 of the Federal Rules of Evidence 
 The government also reports that the defendant intends to seek to introduce prior 
convictions/bad acts of the victims as character evidence under Rule 404(a)(2).  That rule 
allows a defendant to offer evidence of a victim ’s pertinent trait , and if the evidence is 
admitted, the prosecutor may offer evidence to rebut it and offer evidence of the defendant’s 
same trait.  Fed. R. Evid. 404(a)(2)(B).  But that means the victim’s character can be 
established by testimony concerning his or her reputation or the witness’s opinion of the 
victim—not specific acts.   Fed. R. Evid. 405(a).  But see Rule 405(b) (allowing inquiry into 
relevant instances of specific conduct on cross examination).  There is an exception that allows 
specific instances of conduct to be used as character evidence when a person’s character or 
character trait “is an essential  element of a charge, claim, or defense.”  Abbott erroneously 
argues that the victims’ history of assaultive behavior, resisting arrest, and tampering with 
evidence is admissible under Rule 405(b) because “it goes to an essential element of the 18 
U.S.C. § 242 charges.”  [Record No. 64, p. 2]   
 Rule 608 addresses the admissibility of evidence concerning a witness’s character for 
truthfulness or untruthfulness.  A witness’s credibility may be attacked by testimony about the 
witness’s reputation for having a character for untruthfulness or by testimony in the form of 
an opinion about that character.  Fed. R. Evid. 608(a).  Except for a criminal conviction under 
Rule 609, extrinsic evidence is not admissible to prove specific instances of conduct to attack 
a witness’s character for truthfulness.  Fed. R. Evid. 608(b).  However, on cross-examination, 
the court may allow inquiry into specific instances of conduct if they are probative of the 
character for truthfulness of the witness or another witness whose character the witness being 
cross-examined has testified about.  Id.   
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 Rule 608(b) does not include the 10-year time limit like Rule 609(b), but this has been 
interpreted as an error in drafting and courts have excluded inquiry into instances of conduct 
outside the 10-year period.  The Notes of the Advisory Committee on the Proposed Rules 
bolster this position: “Consequently safeguards are erected in the form of specific requirements 
that the instances inquired into be probative of truthfulness or its opposite and not remote in 
time.”   See also Anwar v. United States, 648 F. Supp. 820, 829 n.12 (N.D.N.Y. 1986) (noting 
“the inconsistency which would result if the credibility of a witness could not be attacked by 
reference to convictions that are more than ten ye ars old but could be impeached by inquiry 
into mere arrests that are just as stale”).  Accordingly, defense counsel will not be permitted to 
question W.W. by asking him about the tampering with physical evidence incident.   
 Other Acts: Rule 404(b) of the Federal Rules of Evidence 
 The government appears to concede that some of the  witnesses’ prior conduct may be 
admissible as “other acts” under Rule 404(b)(2) to show Abbott’s state of mind at the time of 
the alleged crimes .  The  relevant test for determining whether an officer has used excessive 
force takes into consideration all facts and circumstances from the point of view of a reasonable 
officer, with the defendant’s knowledge at the moment force was used.   
 One factor that may be considered is whether the person upon whom force was used 
posed a threat to the safety of the officer or other persons.  Several courts have observed in § 
242 and § 1983 excessive force cases that an arrestee’ s criminal history may be admissible 
evidence if the officer was aware of it at the time the force was applied.  See Serrano v. United 
States, 766 F. App’x 561, 564, 567 (10th Cir. 2019); United States v. Mitchell, 454 F. App’x 
39, 42 (3d Cir. 2011); Bronzino v. Dunn, 558 F. App’x 613 (6th Cir. 2014) (victim’s criminal 
history was relevant to officer’s state of mind in § 1983 excessive force case). 
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 However, the Court must determine whether the  risk of unfair prejudice substantially 
outweighs the probative value of the evidence.  See Fed. R. Evid. 403.  Obviously, the most 
relevant type of prior convictions would be those involving violence or flight.  Abbott also 
claims now that W.W.’s prior conviction for tampering with physical evidence impacted his 
decision to use force.  Likewise, he reports that the proponent of B.T.’s domestic violence 
order was in the hotel room with him at the time of the search.  (However, he does not state 
that he knew that prior to the search and he listed “consent” on the incident report as the basis 
for the search.).  As long as these items could reasonably have impacted Abbott’s decision to 
use force, he may be permitted to testify regarding them.  But see United States v. Rossy, 2023 
WL 8039500 (S.D.N.Y. Nov. 20, 2023) (correctional officer who was accused of falsifying 
records concerning an attack on an inmate was not allowed to introduce evidence of the 
inmate’s criminal and disciplinary history when it had little probative value). 
 The government seems to acknow ledge that such evidence might be admissible , but 
only if Abbott testifies.  [ See Record No. 50, pp. 4- 5 (stating defendant’s position that “prior 
acts known to the defendant may be admitted if they tend to show a propensity for violence, 
resisting, fleeing, or the like”).]  This makes sense with respect to the victims’ criminal history  
because, until Abbott testifies, there is no way to know whether he knew about these prior 
events at the time he used force on the victims.  And if he did not, the victims’ criminal history 
is not relevant. 
 The government also notes that Abbott does not have carte blanche to introduce every 
rumor or negative thing he ever knew about the victims.  Evidence introduced under Rule 
404(b) must be probative of a material issue other than character .  United States v. Bell , 516 
F.3d 432, 441-42 (6th Cir. 2008).  Accordingly, the evidence should be related to the victims’ 
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dangerousness or risk of flight.  And a lthough the Sixth Circuit has not set a time limit for 
prior-act evidence, “common sense dictates that temporal remoteness reduces the probative 
value of prior conduct.”  United States v. Asher, 910 F.3d 854, 861 (6th Cir. 2018). 
 In summary, Abbott’s counsel will not be permitted to mention such evidence in 
opening statements, since the admissibility of such evidence will be contingent upon the 
defendant’s decision to testify.  Likewise, Abbott will be required to notify the government of 
any specific acts of the victims he intends to introduce prior to referencing such acts before the 
jury. 
 Res Gestae: 
 Abbott contends that certain evidence is admissible as res gestae.  This includes “J.C.’s 
fleeing and evading police and driving impaired during the events giving rise to Count 1,” 
“W.W. trafficking marijuana to an informant, and then possessing a controll ed substance 
(methamphetamine) and paraphernalia (a glass pipe) immediately before and during the 
incidents giving rise to Counts 2 and 3,” “B.T.’s felony drug trafficking activity on March 11 
which precipitated the police encounter with him underlying Counts 4-6,” and “D.N. (reckless 
driving, wanton endangerment, driving while impaired, resisting arrest, disorderly conduct, 
and possession of marijuana) and C.B. (resisting arrest, disorderly conduct, possession of 
marijuana and public intoxication) during t he events giving rise to Count 7.”   As a practical 
matter, this evidence overlaps with Abbott’s 404(b)(2) evidence to some extent. 
 Abbott has not indicated whether these are convictions, formal charges, or just informal 
accusations.  However, the Sixth Ci rcuit has approved the introduction of prior convictions 
under principles of res gestae.  United States v. Olds, 309 F. App’x 967, 973 (6th Cir. 2009).  
To come within this exception, the evidence must “consist of those other acts that are 
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inextricably int ertwined with the charged offense[s] or those acts, the telling of which is 
necessary to complete the story of the charged offense.”  Id. (quoting United States v. Hardy, 
228 F.3d 745, 748 (6th Cir. 2000) ); United States v. Dodson, 2024 WL 712494, at *8-9 (6th 
Cir. Feb. 21, 2024) ( admitting the  defendant’s prior misdemeanor convictions as 404(b) 
evidence and res gestae).  Proper background evidence has a causal, temporal, or spatial 
connection with the charged offense.  Typically, such evidence is a pr elude to the charged 
offense, is a probative of the charged offense, arises from the same events as the charged 
offense, forms an integral part of a witness’s testimony, or completes the story of the charged 
offense.  Id.   Such evidence may be admissible to the extent it is necessary to tell a complete 
story of the events surrounding the defendant’s charges. 
 Unlike the victims’ criminal history, defense counsel may  question the victims about 
these incidents because such testimony is not being introduced for impeachment purposes.  
Since the incidents happened contemporaneously with the uses of force, there is no question 
that Abbott knew about them.  Additionally, if Abbott has a witness who has direct knowledge 
of the incidents, that person also could testify about them.
 
 II. Abbott’s Motion In Limine to Exclude Other Acts Evidence  
 The United States provided the defendant with notice of its intent to offer nine items of 
evidence constituting “other acts” under Rule 404(b)(2)  to prove the element of willfulness.   
They are: 
 1. April 20, 2020, text messages regarding a vehicle pursuit in which the defendant 
made statements, including, “we beat the f_ _ k out of him.”  [Gov. Ex 18] 
 2. Testimony from J.C. in which J.C. will describe an incident that allegedly 
occurred on June 24, 2020, in which Abbott used excessive force against J.C. and then sent 
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text messages telling people he had given J.C. as “ass whopping [sic].”   [Gov. Ex 2 (Text 
Message)] 
 3. Testimony from J.W., a relative of W.W., who witnessed the conduct alleged in 
Count 2.  J.W. is expected to testify that Abbott had pulled him over a few weeks prior to the 
conduct alleged in Count 2 and told him he would “beat his ass.”  However, when Abbott 
found nothing during the search of J.W.’s car, he let him go without further action. 
 4. Testimony from B.T. that when Abbott drove him to jail he accelerated his 
patrol car to high speeds and braked suddenly, causing B.T. to lurch forward into the bars of 
the prisoner transport compartment.  B.T. will testify that Abbott did this after B.T. made 
insulting remarks toward him. 
 5. January 1, 2021, text messages in which Abbott stated, “nothing like a pursuit 
and ass whopping to bring in the nee year! [sic]” and that a suspect had “resisted arrest” and 
“is now in the ER.”  [Gov. Ex 17] 
 6. April 15, 2021,  text messages between Abbott and other offic ers in which 
Abbott said that he arrested a “kid” who he had arrested on another occasion.  The other officer 
asked the defendant whether Abbott “beat him up again.”  Abbott said he did not and that he 
even let him smoke.  The officer responded, “God ur such a changed man,” to which Abbott 
replied, “haha preparing for the cameras.”  [Gov. Ex 20] 
 7. April 15, 2021, text message—Abbott sent a photo to other officers of himself 
wearing a tactical vest, a BCSO badge, and a pair of sunglasses with a text message that stated: 
“Time to violate rights!” [Gov. Ex 7] 
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 8. June 10, 2021, text message—another law enforcement officer texted Abbott 
and advised Abbott with respect to a particular suspect, “if you find him, beat his ass for me 
please.”  Abbott replied, “Lol not a problem.”  [Gov. Ex 19]   
 9. June 12, 2021, text message —Abbott and another officer exchanged text 
messages about an arrest that had occurred earlier that day.  The other officer stated that the 
arrestee had been “shaking like a leaf.”  Abbott stated that he was scared he was going to “get 
an ass whopping [sic]” and that Abbott had “told people [he] was gonna beat his ass lol.”  [Gov. 
Ex 16] 
 Abbott contends these items constitute nothing more than propensity evidence and,  
therefore, should be excluded.  But federal courts around the country routinely admit evidence 
of prior excessive force incidents to prove intent in cases under 18 U.S.C. § 242.  United States 
v. Mize, 498 F. Supp. 3d 978, 984 (S.D. Ohio 2020) (collecting cases).  A s the court noted in 
United States v. Krug, it is difficult to prove intent without circumstantial evidence and it is 
even more difficult to prove a unique type of specific intent, such as that required by § 242, 
without circumstantial evidence.  2017 WL 907817, at *4 (W.D.N.Y. Mar. 8, 2017).  See Asher 
910 F.3d at 860 (noting that “[f]or prior act evidence to prove the defendant’s intent, probative 
value depends mainly on two factors: similarity and temporal proximity”)     
 The defendant correctly outlines the test for admissibility of evidence tendered pursuant 
to Rule 404(b)(2): 
First, the district court must decide whether there is sufficient evidence that the 
other act in question actually occurred.  Second, if so, the district court must 
decide whether the evidence of the other act is probative of a material issue other 
than character.  Third, if the evidence is probative of a material issue other than 
character, the district court must decide whether the probative value of the 
evidence is substantially outweighed by its potential prejudicial effect. 
 
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United States v. Dunnican, 961 F.3d 859, 874 (6th Cir. 2020) (citing United States v. Yu Qin, 
688 F.3d 257, 262 (6th Cir. 2012)). 
 In Dunnican, the trial court admitted text messages under Rule 404(b) regarding the 
defendant’s intent to distribute controlled substances.  T he lead investigator in the case 
presented testimony showing that the cell phone belonged to the defendant and that the 
messages were obtained through a multi -step extraction process .  Id.  at 867-68.  The court 
admitted the messages, concluding that there was sufficient evidence showing that the 
defendant sent the text messages, the government had shown the relevancy of the messages in 
establishing the defendant’s intent to distribute, and the probative value of the messages 
outweighed their prejudicial value.  Id. at 869. 
 Dunnican appealed the trial court’s admission of the text messages, arguing that the y 
were actually character or propensity evidence.  Id. at 873.  Reviewing the court’s decision for 
abuse of discretion, the Sixth Circuit noted that Rule 404(b) is “a rule of inclusion rather than 
exclusion.”  Id.  at 874 (quoting United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 
1985)).  It further observed that the evidence was introduced to prove a necessary element of 
the charge—the defendant’s intent to distribute the controlled substance.  Additionally, the 
government followed the proper protocol in offering the evidence:  it gave pretrial notice of its 
intent to introduce the text messages for the purpose of proving intent to distribute and 
presented evidence establishing the defendant’s ownership of phone at issue. 
 The circuit court concluded that the trial court also had followed the proper protocol in 
admitting the evidence.  It first determined that the government provided sufficient evidence 
to show that the defendant sent the messages and was introducing the messages for the proper 
purpose of proving the defendant’s intent to distribute.  Second, the court determined that the 
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probative value of the text messages outweighed any unfair prejudice to the defendant.  A nd 
third, the court imposed safeguards by giving limiting jury instructions twice —after 
introduction of the evidence and during the final jury instructions.  Id. at 874. 
 The defendant relies heavily on the Sixth Circuit’s decision in Asher, 910 F.3d 854, to 
argue that the evidence should not be admitted under Rule 404(b).  However, Asher is different 
from this case in important ways.  Asher involved a jailer who was convicted of violating 18 
U.S.C. §§ 242 and 1519 after he beat an inmate and falsified documents to try to cover up his 
actions.  The government notified Asher that it intended to offer evidence under Rule 404(b) 
that he had assaulted a different prisoner and tried to cover up that assault in a similar manner 
about two and a half years earlier.   
 Asher objected to the in troduction of this evidence, arguing that it was unduly 
prejudicial.  Because the government sought to introduce the evidence to prove Asher’s intent, 
he attempted to exclude the evidence by providing a conditional stipulation on the element of 
intent.  Asher explained that his defense was not based on intent, but on his lack of involvement 
in the assault in the first instance.  Thus, if the jury found that he indeed assaulted the prisoner, 
he was willing to concede that he possessed the necessary intent.  The government refused to 
accept the stipulation and the trial court agreed that the evidence was admissible under Rule 
404(b).  The jury heard about both assaults and coverups and convicted Asher of the charges. 
 Asher appealed the court’s decision to allow introduction of the subject evidence.  He 
argued that the evidence should have been excluded under Rule 403 because it was unduly 
prejudicial.  The Sixth Circuit noted that , when considering the probative value of such 
evidence, courts should consider the availability of other means of proof.  Id. at 861.  However, 
the existence of alternative means of proof —even one with substantially the same or greater 
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probative value but a lower danger of unfair prejudice—doe s not require exclusion of the more 
prejudicial evidence.  Id. (citing Old Chief v. United States, 519 U.S. 172, 182-83 (1997)).   
 On the other side of the scale is unfair prejudice, which is the “undue tendency to 
suggest a decision based on improper considerations,” such as “the chance that the jury will 
convict the defendant because of his prior, instead of his charged, conduct.”  Id.   This may 
arise when there is a likelihood that the jury will reach a verdict based on emotion rather than 
evidence.  This is of particular concern when the prior act evidence is so conscience shocking 
that the jury may “decide that the defendant is a bad person and deserves to be convicted,” 
even if his guilt were not proven in the instant case.  Id. at 861-62. “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.”  Id. at 862. 
 The court also observed that the risk of luring the fact finder into impermissible 
propensity reasoning is heightened when “the prior act is much like the charged conduct.”  Id.  
So one of the same factors that make the evidence probative, make it prejudicial.  Id.  Finally, 
sometimes 404(b) evidence can be so prejudicial that a limiting instruction is insufficient. 
 Ultimately, the Sixth Circuit decided that the trial court abus ed its discretion in 
admitting the evidence.  Importantly, Asher’s intent was not at issue, as he agreed to concede 
that issue if the jury found that he had committed the assault.  Further, the court noted that his 
conduct, in and of itself , was a sufficie nt basis for the jury to find his intent.  Asher stood 
accused of “beating a helpless prisoner . . . [and] pretending to be a doctor, and falsifying 
reports to cover up this illegal conduct.”  Id. at 863.  As the circuit court noted, it was “specious 
to think that the jury might have disbelieved Asher’s denials, yet acquitted him for lack of 
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specific intent.”  That scenario is vastly different from  the situation presented here, where a 
jury could easily believe that a sheriff’s deputy used force on arrestees for a legitimate reason. 
 Abbott does not dispute that he sent the text messages that the government seeks to 
introduce.  Instead he argues that there is insufficient evidence to prove Abbott’s involvement 
in the events underlying the text messages or that he did anything improper.  However, as the 
government points out in its response to Abbott’s motion in limine , the proper inquiry is 
whether he sent the text messages.  See Dunnican, 961 F.3d at 869.   
 The text messages themselves are the evidence being considered and the jury will be 
able to form their own conclusions  regarding Abbott’s state of mind based on the messages.  
Contrary to Abbott’s suggestion, admission of the messages would not require the jury to 
evaluate the reasonableness of Abbott’s actions on the prior occasions.  Instead, his comments 
would provide the jury with circumstantial evidence regarding his state of mind during the use 
of force on prior occasions.   
 To the extent Abbott argues that the April 20, 2020, text message exceeds the scope of 
the search warrant, he did not file a motion to suppress and has offered no explanation for such 
failure.  Accordingly, any such objection at this point is  untimely.  See Fed. R. Crim. P. 
12(c)(1).  (The government also indicates that the text message does not exceed the scope of 
the warrant.) 
 The messages are probative of the element of willfulness.  Abbott is discussing 
assaulting people and violating their rights.  And based on Sixth Circuit authority, the evidence 
would not be unduly prejudicial.  It is not so inflammatory that it would cause the jury to make 
a decision based on emotions or impermissible propensity reasoning.  The text messages do 
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not “shock the conscience” and can be ameliorated by limiting instructions if such is requested 
at the time the evidence is admitted.  See Asher at 910 F.3d at 861. 
 The government also plans to present the testimony of three witnesses who will testify 
that Abbott either used improper force against them or threatened to do so on occasions other 
than those charged in the indictment.  For the Court to find that there is sufficient evidence that 
these events actually occurred, it will likely need to hear testimony from these witnesses 
outside the presence of the jury.  Assuming the Court does find t here is sufficient evidence 
from which the jury could conclude the events occurred, the evidence may be admissible under 
Rule 404(b)(2) of the Federal Rules of Evidence. 
 All three incidents are probative of Abbott’s intent.  The uncharged incident involving 
J.C. occurred 10 months prior to the incident in Count 1, so temporal proximity is present.  See 
Asher, 910 F.3d at 860.  The event also is like the charged conduct—as the government claims 
that Abbott approached J.C.’s car door, opened it, threw him to the ground, and slammed his 
head into the pavement several times.  This is the type of 404(b) evidence that is routinely 
admitted in § 242 cases to prove intent (willfulness).  See Mize, 498 F. Supp. 3d at 984 
(collecting cases).  While  the evidence undoubtedly is prejudicial, it is not so unduly 
prejudicial that it cannot be tempered by limiting instructions. 
 The alleged incident involving J.W. also occurred close in time to the charged conduct 
(i.e., a few weeks prior to W.W.’s arrest on February 2, 2021).  While Abbott is not alleged to 
have actually used force on J.W., J.W. claims that Abbott told him he would “beat his ass.”  If 
true, this tends to shed some light on Abbott’s mental state when dealing with arrestees.  The 
evidence is somewhat prejudicial, but the jury can decide whether it believes J.W.’s testimony.  
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Plus, the prejudicial effects of the testimony can be reduced by limiting instructions (again, if 
such an instruction is requested at the time the evidence is offered). 
 Finally, the expected testimony from B.T. regarding his transport to jail would satisfy 
the temporal proximity requirement, as this presumably occurred soon after Abbott arrested 
B.T. on March 31, 2021.  B.T. is expected to testify that when Abbott drove him to jail, Abbott 
accelerated his patrol car to high speeds and braked suddenly, causing B.T. to lurch forward 
into the bars of the prisoner transport compartment.  B.T. is expected to testify that Abbott’s 
actions followed B.T. made insulting remarks toward him.   
 While not identical to the charged conduct, this proposed evidence is probative of 
Abbott’s intent to use force impermissibly as a way of dealing with annoying conduct by 
arrestees.  Again, the evidence may be  prejudicial but is not so prejudicial as to inflame the 
jury or encourage a decision based on emotion rather than the facts. 
 III. Conclusion 
 Based on the foregoing discussion and analysis, it is hereby 
 ORDERED as follows: 
 1. The United States’ motion in limine is GRANTED, in part, and DENIED , in 
part.  The defendant’s motion in limine is DENIED. 
 2. Evidence of victim J.C.’s misdemeanor convictions for resisting arrest and 
assault; (ii) victim W.W.’s 2010 conviction for tampering with physical evidence; and (iii) the 
entry of a domestic violence restraining order against victim B.T. is excluded for impeachment 
purposes. 
 3. A party must notify the opposi ng party prior to seeking to impeach a witness 
based on a prior felony conviction. 
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 4. The defendant may testify concerning the alleged victims’ criminal history 
provided he first testifies that he knew about that history at the time of the events alleged in 
the indictment and it was reasonably relevant to his decision to use force.   
 5. The defense may question the alleged victims concerning the events 
surrounding the charges in the indictment, inc luding any criminal charges or convictions that 
resulted against the victims, as part of the res gestae of the case. 
 6. If properly authenticated, the six text message conversations identified above as 
Government Exhibits 18, 17, 20, 7, 19, and 6 are admissible under Rule 404(b)(2) as evidence 
of the defendant’s intent and willful actions.  If offered and admitted, the defendant may seek 
to have the Court provide the jury with a limiting  instruction regarding the use of such 
evidence.  
 7. The expected tes timony by J.C., J.W., and B.T. describing instances of 
uncharged assaultive conduct by the defendant is presumptively admissible.  However, the 
Court will conduct a hearing outside the presence of the jury prior to introduction of such 
testimony to establish that there is a sufficient basis to conclude that the prior instances of 
conduct actually occurred. 
 Dated:  February 25, 2024. 
 
 
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