United States v. Seraphina Charley

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10133
Plaintiff-Appellee,
D.C. No.
v. 3:18-CR-08135-SPL

SERAPHINA CHARLEY,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Arizona
Steven P. Logan, District Judge, Presiding

Argued and Submitted March 2, 2021
Phoenix, Arizona

Filed June 11, 2021

Before: Carlos T. Bea and Patrick J. Bumatay, Circuit
Judges, and Kathleen Cardone, * District Judge.

Opinion by Judge Bea;
Concurrence by Judge Bumatay

*
The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
2 UNITED STATES V. CHARLEY

SUMMARY **

Criminal Law

The panel affirmed Seraphina Charley’s conviction on
one count of making false statements to a government
official, vacated her convictions on two counts of assault
within the territorial jurisdiction of the United States, and
remanded for a new trial on the assault counts and for
resentencing on the false-statements count.

The convictions stem from an incident with Charley’s
boyfriend, Merle Begay, whom Charley hit in the head with
a piece of rebar after, she claimed, he attacked her while he
was drunk.

As to the false-statements count, Charley admitted that
she lied to the FBI but contended that the Government failed
to prove that she knew her conduct—lying to the FBI—was
unlawful. The panel held that a rational juror could infer
from the circumstantial evidence that Charley knew that it
was unlawful to lie to the FBI at the time she lied.

As to the assault counts, Charley claimed self-defense.
In its rebuttal case, the Government presented evidence that,
roughly two years before the charged assault, Charley
assaulted her stepmother and sister on separate occasions.

The panel rejected the Government’s contention that
evidence of these prior incidents was admissible under Fed.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 UNITED STATES V. CHARLEY 3

R. Evid. 404(a), which determines when character evidence
may be admissible. The panel explained that although
Charley’s testimony about Begay may have opened the door
to general reputation or opinion testimony about her
propensity for violence under Fed. R. Evid. 405(a), she did
not open the door to detailed descriptions of “specific
instances of conduct” that were completely unrelated to
Begay to show that she has a propensity for violence under
Fed. R. Evid. 405(b).

The panel also rejected the Government’s contention that
evidence of the prior incidents was admissible under Fed. R.
Evid. 404(b), which governs “other acts” evidence. Under
Fed. R. Evid. 404(b)(1), evidence of a prior incident is not
admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with
character. Addressing Fed. R. Evid. 404(b)(2) regarding
evidence offered to serve another purpose, the panel
explained that the prior incidents do not establish either
Charley’s motive or intent to commit the charged assault.
The panel observed that there is no logical connection
between the prior incidents and the charged assault other
than the implication that Charley has a propensity for
violence and was therefore the aggressor on the occasion
here—an impermissible inference under Rule 404(b) and an
improper consideration when determining whether self-
defense was established. The panel concluded that in light
of the Government’s potent evidence about Charley’s
character during its rebuttal case and the implications it
made during its closing argument, the erroneous admission
of the “other acts” evidence was not harmless.

Concurring, Judge Bumatay wrote separately to express
his view that United States v. Bettencourt, 614 F.2d 214 (9th
4 UNITED STATES V. CHARLEY

Cir. 1980), goes too far in suggesting that prior assaults may
only rarely be used to prove intent under Rule 404(b).

COUNSEL

Molly A. Karlin (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Defendant-Appellant.

Karla Hotis DeLord (argued), Assistant United States
Attorney; Krissa M. Lanham, Appellate Division Chief;
Michael Bailey, United States Attorney; United States
Attorney’s Office, Phoenix, Arizona; for Plaintiff-Appellee.

OPINION

BEA, Circuit Judge:

Rule 404 of the Federal Rules of Evidence prohibits
evidence about a defendant’s character trait to prove that the
defendant committed the charged crime when he acted in
accordance with that character trait. The rule is rooted in the
“basic premise of our criminal justice system” that “[o]ur
law punishes people for what they do, not who they are.”
Buck v. Davis, 137 S. Ct. 759, 778 (2017) (Roberts, C.J.).
Courts, as gatekeepers of evidence, are tasked with ensuring
that a jury convicts a defendant based only on his alleged
conduct and mental state underlying the charged crime, not
based on his generalized disposition or tendency to act in a
particular way—however offensive his behavior may have
been in the past. In the case before us, the jury heard such
 UNITED STATES V. CHARLEY 5

character evidence and ultimately rendered a guilty verdict,
raising uncertainties about the conviction.

A jury convicted Defendant-Appellant Seraphina
Charley of three counts, which included two counts of
assault within the territorial jurisdiction of the United States:
a Navajo reservation. Her convictions stem from an incident
with her boyfriend, whom she hit in the head with a piece of
rebar after, she claimed, he attacked her while he was drunk.
Charley claimed self-defense at trial, testifying that she
feared for her life when she swung the rebar and knocked
him unconscious. In its rebuttal case, the Government
presented evidence that, roughly two years before the
charged assault, Charley assaulted her stepmother and sister
on separate occasions. We must consider whether this
evidence proves “nothing but the defendant’s criminal
propensities.” United States v. Sneezer, 983 F.2d 920, 924
(9th Cir. 1992) (internal citation omitted). If, on the other
hand, the evidence is relevant for some other purpose—
using a propensity-free chain of reasoning—Rule 404 does
not prevent its admission.

I. BACKGROUND

The unfortunate events that gave rise to this prosecution
occurred on a Navajo reservation in the early hours of March
6, 2018. At 3:34 a.m., Charley called 911 and reported that
her boyfriend, Merle Begay, was unconscious and bleeding
profusely. Crying for help, Charley identified herself as
Hannah Charley (rather than use her real name: Seraphina
Charley) and told the 911 operator that a masked man had
come to the house, hit Begay in the head with a metal pipe,
and then fled.

Around 4:34 a.m., Navajo Nation Police Sergeant Erwin
Toddy arrived at the scene. Charley again identified herself
6 UNITED STATES V. CHARLEY

as Hannah (not Seraphina) and said that she was born in
November 2001 (another lie: she was born in December
1988). Charley then spun a story about what had happened
that night: she and Begay were drinking and watching
television when they heard a noise outside; Begay went
outside to investigate and returned several minutes later
holding a piece of rebar before collapsing onto the floor. As
Sergeant Toddy walked through the house, he smelled
alcohol. Begay lay unconscious on the ground next to a
piece of rebar, with a large pool of blood by his head.
Paramedics intubated Begay and flew him to a trauma
center, where he was treated for brain injuries. 1

FBI Agent Jennifer Mulhollen arrived at the scene
around 6:30 a.m. After Sergeant Toddy briefed her, Agent
Mulhollen spoke with Charley. Charley again lied, falsely
identifying herself as Hannah and stating that she was born
in November 2001. Charley also repeated her story about
the masked man who supposedly attacked Begay outside the
home. Agent Mulhollen and Sergeant Toddy later searched
the premises, but neither found any blood or evidence of a
struggle outside; they found blood only inside the house
where first responders found Begay. Sergeant Toddy

1
Begay suffered from skull fractures, brain and intracranial injuries,
a scapular fracture, a nasal bone fracture, and a fractured finger. Dr. Sam
Safavi-Abbasi, the neurosurgeon who treated Begay, testified that he
expects some long-term ramifications and permanent injuries. Because
of the trauma and the fact that Begay was intoxicated at the time of the
incident, Dr. Safavi-Abbasi did not expect Begay to remember anything
from the night of the incident. Indeed, two months after the incident,
Agent Mulhollen met with Begay, but he was unable to provide a
statement. Begay did not testify at trial.
 UNITED STATES V. CHARLEY 7

ultimately arrested Charley for public intoxication and
booked her into the local jail. 2

Around 3:00 p.m. later that same day, while still detained
at the jail, Agent Mulhollen interviewed Charley for a
second time. Agent Mulhollen summarized the physical
evidence found at the scene and challenged Charley’s
version of events. Charley then admitted that she had lied
about her name, date of birth, and how Begay was injured.
She explained that Begay had attacked her, and that she had
hit him in the head with the piece of rebar in self-defense.
Charley also admitted that she had fabricated the story about
the masked attacker because she was trying to avoid trouble.

A superseding indictment ultimately charged Charley
with three counts: (1) assault resulting in serious bodily
injury within the territorial jurisdiction of the United States,
in violation of 18 U.S.C. § 113(a)(6) and 18 U.S.C. § 1153;
(2) assault with a dangerous weapon within the territorial
jurisdiction of the United States, in violation of § 113(a)(3)
and § 1153; and (3) false statements to a government
official, in violation of 18 U.S.C. § 1001(a)(2). Charley
pleaded not guilty and proceeded to trial.

At trial, Charley asserted a self-defense claim. 3 Charley
testified that, on the night of the incident, she and Begay

2
Charley’s charge of public intoxication is not relevant to this
appeal.
3
During the Government’s case-in-chief, eight witnesses testified:
the 911 operator who received Charley’s call; Sergeant Toddy; the
responding paramedic; Dr. Sam Safavi-Abbasi and Dr. Vincent Cariati,
who treated Begay; Begay’s mother, who described Begay’s injuries and
recovery; forensic scientist Erin Daniel, who testified about the physical
evidence found at the scene; and Agent Mulhollen.
8 UNITED STATES V. CHARLEY

were drinking when Begay became very intoxicated. After
he suddenly became angry, he threw Charley onto the bed,
held her down, choked her, and ripped off some of her
clothes. Begay had a knife in his pocket and grabbed some
rope to tie her arms and wrists. Charley was able to shake
loose, but Begay warned her not to move. Begay then turned
his back briefly, as if he were getting something else from
behind him, when Charley grabbed a piece of rebar laying
on the floor of the bedroom. She hit him in the back of the
head three times. Charley testified that she hit Begay
because she feared for life.

Charley also testified about three violent episodes
leading up to the charged offense in which she claimed that
Begay had attacked her. During one such incident, about a
week before the charged offense, Begay became so violent
that Charley ran out of the house in the middle of the night.
Running after her, Begay caught up to her on the road and
grabbed hold of her neck. Two passing motorists observed
the altercation, stopped their car, and intervened. The
motorists took Charley to their home for the night and
brought her to her aunt’s house in the morning. All three of
them testified, corroborating Charley’s account of that night.
Their testimony included descriptions of Charley’s injuries.

During the Government’s cross-examination, Charley
admitted that she had lied to both Sergeant Toddy and Agent
Mulhollen about her name, date of birth, and how Begay was
injured. Charley also admitted that she had provided a fake
name to law enforcement officers on at least two other,
uncharged occasions. Charley reasoned that she had lied
because she knew that Begay’s family was dangerous and
she believed that they would seek revenge against her.

During its rebuttal case, the Government sought to
present evidence about two prior incidents that involved
 UNITED STATES V. CHARLEY 9

Charley and her family, but not Begay. 4 The Government
argued that it was entitled to rebut the defense’s evidence of
prior incidents involving Begay purportedly attacking
Charley with its own evidence of prior incidents involving
Charley, even though those incidents did not involve Begay.
The Government argued that the testimony would show that
Charley has a tendency to drink and then get into fights. The
district court overruled Charley’s objection based on Rule
404 of the Federal Rules of Evidence, but it provided a
limiting instruction directing the jury to consider the
evidence “only for its bearing, if any, on the question of
[Charley]’s intent, motive, and identity and for no other
purpose.”

The Government then called three witnesses to testify
about Charley’s two prior incidents. First, Charley’s
stepmother testified that, in June 2016, about two years
before the charged assault, Charley came home intoxicated,
kicked the front door, and yelled profanities at her. Feeling
threatened, Charley’s stepmother managed to get away and
call 911. Second, Charley’s sister testified that, in December
2015, about two and a half years before the charged assault,
Charley became intoxicated and hit her on the head with a
coffee mug, for which she required stitches at the hospital.
Justin Banally, the responding officer, also testified about
the incident with Charley’s sister.

The jury ultimately found Charley guilty on all three
counts. The district court sentenced her to concurrent terms

4
Before trial, the Government properly filed a notice of its intent to
introduce such evidence pursuant to Rule 404(b). Charley moved in
limine to exclude this evidence, but the district court held the motion
“under advisement . . . subject to what happens during the course of the
trial.”
10 UNITED STATES V. CHARLEY

of seventy-eight months of imprisonment for Counts 1 and 2
(the assault counts) and sixty months of imprisonment for
Count 3 (the false statement count), followed by thirty-six
months of supervised release. The district court also ordered
Charley to comply with the standard conditions of
supervised release, which included a condition prohibiting
Charley from communicating with felons without prior
permission. Charley offers a variety of challenges to both
her convictions and sentence.

II. JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction under 18 U.S.C. § 3742 and
28 U.S.C. § 1291.

We review de novo claims of insufficient evidence to
support a jury conviction and a district court’s denial of a
motion for judgment of acquittal under Rule 29 of the
Federal Rules of Criminal Procedure. United States v.
Vazquez-Hernandez, 849 F.3d 1219, 1229 (9th Cir. 2017).
“Evidence supporting a conviction is sufficient if, ‘viewing
the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Id.
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In
other words, “we must reverse the verdict if the evidence of
innocence, or lack of evidence of guilt, is such that all
rational fact finders would have to conclude that the
evidence of guilt fails to establish every element of the crime
beyond a reasonable doubt.” United States v. Nevils,
598 F.3d 1158, 1165 (9th Cir. 2010).

Separately, “[w]e review de novo whether evidence is
other act evidence within the meaning of Federal Rule of
[Evidence] 404(b), but the admission of this evidence for
abuse of discretion.” United States v. Carpenter, 923 F.3d
 UNITED STATES V. CHARLEY 11

1172, 1180–81 (9th Cir. 2019). “Even where 404(b)
evidence falls within a permitted purpose, it should be
excluded, under Rule 403, if the court finds that its probative
value is substantially outweighed by a danger of unfair
prejudice.” United States v. Preston, 873 F.3d 829, 840 (9th
Cir. 2017). We review the admission of evidence under Rule
403 for abuse of discretion. United States v. Lozano,
623 F.3d 1055, 1060 (9th Cir. 2010).

III. DISCUSSION

A. Sufficient evidence supported Charley’s
conviction for false statements to a government
official (Count 3)

Charley first argues that we should vacate her conviction
for making false statements because there was insufficient
evidence from which a rational juror could find her guilty
beyond a reasonable doubt. Under 18 U.S.C. § 1001(a)(2),
it is a crime to “knowingly and willfully . . . make[] any
materially false, fictitious, or fraudulent statement or
representation” to a federal official. The superseding
indictment alleged that Charley violated § 1002(a)(2) when
she told the FBI that: (1) her name is Hannah Charley,
though her real name is Seraphina Charley; (2) she was born
in November 2001, though she was actually born in
December 1988; and (3) Begay was assaulted outside their
home by a masked man, though she later recanted this story.
The district court instructed the jury, in relevant part, that the
Government carried the burden to prove that Charley “acted
deliberately and with knowledge both that the statement was
untrue and that her conduct was unlawful.” 5 See Bryan v.

Neither party challenges this jury instruction. The Government
5

acknowledges that the “willfulness” standard in this instruction
12 UNITED STATES V. CHARLEY

United States, 524 U.S. 184, 191–92 (1998) (“As a general
matter, when used in the criminal context, a ‘willful’ act is
one undertaken with a ‘bad purpose.’ In other words, in
order to establish a ‘willful’ violation of a statute, the
Government must prove that the defendant acted with
knowledge that his conduct was unlawful.” (internal citation
omitted)). Charley admits that she lied to the FBI, but she
contends that the Government failed to prove that she knew
her conduct—lying to the FBI—was “unlawful.”

But a rational juror could infer from the circumstantial
evidence presented that Charley knew it was unlawful to lie
to the FBI at the time she lied. Charley admitted that she had
lied to the 911 operator, Sergeant Toddy, and Agent
Mulhollen on multiple occasions. She ultimately explained
that she had lied to avoid getting into any trouble. Charley
also admitted that she had lied to the police on other,
uncharged occasions. A few weeks before the charged
offense, for example, Charley provided a fictitious name,
date of birth, and social security number.

Charley also lied about her identity when the FBI
attempted to arrest her for the charged offense—though she
could not evade arrest because her sister accurately
identified her. Charley subsequently explained her state of
mind at the time of this lie during a recorded jail telephone
call with her new boyfriend Jared:

Charley: Did you see how I made up my
name?

“arguably requires more than necessary under § 1001,” but it concedes
that “it is bound by” the standard because the instruction was given to
the jury.
 UNITED STATES V. CHARLEY 13

Jared: I know. Why’d you do that? You
shouldn’t have done that. That
probably just made it worse.

Charley: I know. And I was like, ugh. I
was like too—I was—like, I
wasn’t thinking straight, and I just
came up with a name. And I was
like, dammit. I thought I was
going to get away with it until my
little sister. She had to ruin
everything.

Importantly, Charley told this last—albeit uncharged—lie
after Agent Mulhollen had explicitly informed her during a
prior interview that lying to a federal agent is itself a crime,
demonstrating that Charley’s undisputed knowledge of the
law did not curtail her lies to law enforcement officers.

In determining whether the Government has carried its
burden to prove a defendant’s guilt beyond a reasonable
doubt, “the jury is entitled to make common sense inferences
from the proven facts.” United States v. Gallop, 694 F.2d
205, 206 (9th Cir. 1982). The Government “must rely on the
common sense and life experience of the jurors to fill in
matters that are not provable by direct evidence, such as
intent.” United States v. Ramirez, 714 F.3d 1134, 1138 (9th
Cir. 2013). Because “the evidence of innocence, or lack of
evidence of guilt,” is not such that “all rational fact finders
would have to conclude that the evidence of guilt fails to
establish” that Charley knew it was “unlawful” to lie to the
FBI, Nevils, 598 F.3d at 1164, we affirm Charley’s
conviction for making false statements, see United States v.
Singh, 979 F.3d 697, 714 (9th Cir. 2020) (explaining that “it
is our ‘traditional rule that ignorance of the law is no excuse’
14 UNITED STATES V. CHARLEY

from liability” and holding that “the evidence proffered at
trial indicated that [defendants] took steps to conceal their
actions, which suggests that they possessed knowledge that
their actions were unlawful, not that they unwittingly
engaged in criminal conduct” (quoting Bryan, 524 U.S.
at 196)).

B. Evidence of Charley’s prior incidents was
inadmissible under Rule 404, entitling her to a
new trial (Counts 1 and 2)

At trial, Charley testified about three violent episodes in
which Begay had attacked her, leading up to the charged
offense. Charley suggested that these prior episodes explain
why she feared for her life and felt compelled to defend
herself when she claimed Begay had attacked her on the
night of the charged offense. Several fact witnesses testified
and corroborated her account of at least one of these
episodes.

Afterwards, during the Government’s rebuttal case and
over Charley’s Rule 404 objection, the district court allowed
the Government to present evidence about two incidents that
had occurred before the night of the charged offense in
which Charley allegedly attacked members of her family on
separate occasions, neither of which involved Begay. First,
Charley’s stepmother testified that Charley arrived at the
home intoxicated, kicked the front door, and yelled
profanities at her. Second, Charley’s sister testified that
Charley became intoxicated and hit her on the head with a
coffee mug. In an attempt to carry its burden, see United
States v. Alfonso, 759 F.2d 728, 739 (9th Cir. 1985), the
 UNITED STATES V. CHARLEY 15

Government argues that the evidence was admissible under
both Rule 404(a) and Rule 404(b). 6

1. Character evidence under Rule 404(a)

Generally, “[e]vidence of a person’s character or
character trait is not admissible to prove that on a particular
occasion the person acted in accordance with the character
or trait.” Fed. R. Evid. 404(a)(1). But the Federal Rules of
Evidence allow a defendant in a criminal case to “offer
evidence of an alleged victim’s pertinent trait.” Fed. R. Evid.
404(a)(2)(B) (emphasis added). And if the defendant does
so, and the evidence is admitted, the government may then
“offer evidence of the defendant’s same trait.” Id. (emphasis
added).

Although Rule 404(a) determines when character
evidence may be admissible, Rule 405 “determine[s] what
form that evidence may take.” United States v. Keiser,
57 F.3d 847, 855 (9th Cir. 1995) (emphasis in original); see
also Advisory Committee Notes, Fed. R. Evid. 404 (“Once
the admissibility of character evidence in some form is
established under [Rule 404], reference must then be made
to Rule 405, which follows, in order to determine the
appropriate method of proof.”). Typically, only general
reputation or opinion testimony is proper to show that a
defendant accused of assault has a propensity for violence.
See Fed. R. Evid. 405(a). Under limited circumstances,
however, Rule 405 allows two methods by which the
government can prove a character trait with specific
6
At trial, the district court admitted the evidence of Charley’s prior
incidents under Rule 404(b) and provided a limiting instruction,
directing the jury to consider Charley’s prior incidents “only for its
bearing, if any, on the question of [Charley]’s intent, motive, and identity
and for no other purpose.”
16 UNITED STATES V. CHARLEY

instances of the defendant’s conduct: (a) discrediting a
character witness’s testimony during cross-examination; or
(b) proving or disproving character “[w]hen a person’s
character or character trait is an essential element of a
charge, claim, or defense.” See Fed. R. Evid. 405(a)–(b). In
this case, the Government could have offered general
reputation or opinion testimony about Charley’s character
after she testified about Begay. But the Government was not
permitted to offer specific instances of Charley’s prior
conduct unrelated to Begay to prove that she has a propensity
for violence because neither of the two exceptions set out in
Rule 405(a) and (b) were applicable.

First, under Rule 405(a), the Government did not elicit
detailed testimony regarding Charley’s two prior incidents
“[o]n cross-examination of the character witness.” Fed. R.
Evid. 405(a). Instead, the Government elicited this
testimony from Charley’s stepmother and sister on direct
examination during its rebuttal case. This first exception,
therefore, was not applicable.

Second, under Rule 405(b), Charley’s propensity for
violence was not “an essential element” of her self-defense
claim. In United States v. Keiser, 57 F.3d 847 (9th Cir.
1995), Keiser, like Charley, was tried for assault in violation
of 18 U.S.C. § 113. Id. at 848. Keiser’s only defense was
that he was acting in defense of his brother, whom the victim
was assaulting at the time Keiser shot the victim. Id. at 852.
Keiser attempted to introduce a specific instance of the
victim’s conduct that had occurred after the shooting to
prove that the victim has a propensity for violence,
supporting the proposition that the victim was using
unlawful force at the time of the shooting and thereby
bolstering Keiser’s self-defense claim. Id. We held,
however, that the district court properly excluded the
 UNITED STATES V. CHARLEY 17

evidence because “victim character evidence introduced to
support a claim of self-defense or defense of another should
be limited to [general] reputation or opinion evidence.” Id.
at 855. We reasoned that a victim’s violent character did not
constitute an essential element of a self-defense claim
because a defendant “could, for example, successfully assert
a claim of self-defense against an avowed pacifist, so long
as the jury agrees that [he] reasonably believed unlawful
force was about to be used against him.” Id. at 857.

Although our holding in Keiser was limited insofar as it
prevents a defendant from seeking to have the district court
admit into evidence specific instances of conduct to prove a
victim’s violent character, the same rationale applies here,
where the Government sought to have the district court
admit into evidence specific instances of conduct to prove
the defendant’s violent character. Indeed, we explained that
in determining whether violent character is “an essential
element” of a self-defense claim under Rule 405(b), “[t]he
relevant question should be: would proof, or failure of proof,
of the character trait by itself actually satisfy an element of
the charge, claim, or defense? If not, then character is not
essential and evidence should be limited to [general] opinion
or reputation” testimony. Id. at 856.

Here, as in Keiser, Charley’s propensity for violence is
not dispositive to the success of her self-defense claim; it
therefore fails to constitute “an essential element” under
Rule 405(b). See id. at 857. A person of violent character
can still prevail on a self-defense claim. Even were it proven
that Charley is an exceedingly violent person, a jury would
still be required to assess the factual circumstances
underlying her conduct on the night of the charged offense
and would be free to determine whether Begay was using
unlawful force against Charley, whether the force Begay was
18 UNITED STATES V. CHARLEY

using against Charley was likely to cause death or great
bodily harm, whether Charley reasonably believed that force
was necessary to prevent death or great bodily harm, and
whether Charley used no more force than appeared
reasonably necessary under the circumstances. In other
words, Charley’s “claim of self-defense neither rises nor
falls on [the Government’s] success in proving that
[Charley] has a penchant for violent outbursts.” Id.

Specific instances of prior conduct offered to prove one’s
character “possesses the greatest capacity to arouse
prejudice, to confuse, to surprise, and to consume time,” so
“the rule confines the use of evidence of this kind to cases in
which character is, in the strict sense, in issue and hence
deserving of a searching inquiry.” Advisory Committee
Notes, Fed. R. Evid. 405. Although Charley’s testimony
about Begay may have opened the door to general reputation
or opinion testimony about her propensity for violence under
Rule 405(a), she did not open the door to detailed
descriptions of “specific instances of conduct” that were
completely unrelated to Begay to show that she has a
propensity for violence under Rule 405(b).

We next address whether Charley’s prior incidents were
admissible for a purpose other than proving her character—
for example, to prove Charley’s identity, motive, or intent to
commit the charged offense. See Keiser, 57 F.3d at 853
(distinguishing between the “introduction of specific acts as
victim character evidence [to] support the proposition that
the victim was in fact using unlawful force” in a self-defense
claim and “specific acts to prove the defendant’s state of
mind [to] support the proposition that the defendant’s belief
that force was necessary was reasonable”).
 UNITED STATES V. CHARLEY 19

2. “Other acts” evidence under Rule 404(b)

It is well-established that evidence of a prior crime,
wrong, or incident “is not admissible 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)(1). “The rule is designed to avoid a danger that
the jury will punish the defendant for offenses other than
those charged, or at least that it will convict when unsure of
guilt, because it is convinced that the defendant is a bad man
deserving of punishment.” United States v. Brown, 880 F.2d
1012, 1014 (9th Cir. 1989) (internal citation omitted). Rule
404(b), however, carves out an exception to the general rule
where the proposed evidence is offered to serve “another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” Fed. R. Evid. 404(b)(2).

The Government carries the burden to prove that the
proposed evidence satisfies four requirements:

(1) the evidence tends to prove a material
point (materiality); (2) the other act is not too
remote in time (recency); (3) the evidence is
sufficient to support a finding that defendant
committed the other act (sufficiency); and
(4) . . . the act is similar to the offense
charged (similarity).

United States v. Berckmann, 971 F.3d 999, 1002 (9th Cir.
2020). But even then, “[t]he use of such evidence must be
narrowly circumscribed and limited.” United States v.
Bailleaux, 685 F.2d 1105, 1109 (9th Cir. 1982). “Courts
must be extremely careful to guard against the danger that
defendants will be convicted because they have previously
committed a [prior] serious criminal offense rather than
20 UNITED STATES V. CHARLEY

because the Government has introduced evidence sufficient
to prove beyond a reasonable doubt that they are guilty of
the offense for which they are being tried.” Id.

Here, the Government argues that Charley made her
motive and intent to assault Begay central issues simply by
claiming self-defense. Specifically, the Government
contends that Charley’s prior incidents—(1) kicking her
stepmother’s door and yelling profanities and (2) hitting her
sister on the head with a coffee mug—show “who the initial
aggressor was in Begay’s assault.” But there is no logical
connection between those prior incidents and the charged
assault other than the implication that Charley has a
propensity for violence and was therefore the aggressor on
the occasion here—an impermissible inference under Rule
404(b) and an improper consideration when determining
whether self-defense was established.

First, the prior incidents do not establish Charley’s
motive to commit the charged assault against Begay.
“[P]rior bad act evidence is allowed to show motive only
when motive is in turn relevant to establish an element of the
offense that is a material issue.” Brown, 880 F.2d at 1014.
But “[t]he prior wrongful acts must establish a motive to
commit the crime charged, not simply a propensity to engage
in [violence].” Id. at 1015. Here, no evidence whatsoever
links Charley’s motive to assault Begay to her prior incidents
that involved her stepmother and sister, but not Begay
himself. Cf. United States v. Bowman, 720 F.2d 1103, 1105
(9th Cir. 1983) (affirming admission of defendant’s prior
assault against wife’s relative to prove motive of revenge in
defendant’s assault against wife because “there was a
sufficient factual relationship between the two incidents” as
“[i]t was the government’s contention that [defendant]
attacked [his wife] because of his belief that she was
 UNITED STATES V. CHARLEY 21

responsible for his earlier conviction”). We cannot discern
any details in the prior incidents from which Charley could
have derived a motive to assault Begay. The prior incidents
here “clearly establish [Charley]’s propensity for violence,
but that is precisely the use of evidence barred by Rule
404(b).” See Brown, 880 F.2d at 1015 (vacating conviction
and rejecting government’s argument that defendant “made
motive a key issue” by suggesting that defendant had no
motive to commit the alleged crime).

Nor do the prior incidents establish Charley’s intent to
commit the charged assault against Begay. 7 Generally, an
intent to assault is not transferrable across dissimilar and
unique sets of circumstances. See United States v.
Bettencourt, 614 F.2d 214, 217 (9th Cir. 1980) (“A showing
of intent to assault on an earlier occasion proves little, if
anything, about an intent to assault at some later time.”). In
fact, in United States v. Bettencourt, we recognized that
“[p]rior crimes involving deliberate and carefully
premeditated intent such as fraud and forgery are far more
likely to have probative value with respect to later acts than
prior crimes involving a quickly and spontaneously formed
intent such as [an] assault,” for which Charley was tried and
convicted here. See id. at 217 n.7. We held that the district
court erred in admitting Bettencourt’s prior arrest for
interfering with and assaulting local officers to prove
Bettencourt’s later intent to commit the charged offense of
interfering with and assaulting federal officers because

7
The district court instructed the jury that the Government carried
the burden to prove that “[Charley] assaulted [Begay] by intentionally,
knowingly, or recklessly striking or wounding him.” “[T]he common
law definition of assault, a general intent offense that requires a showing
of willfulness, has been incorporated into the federal offense of assault
resulting in serious bodily injury, 18 U.S.C. § 113(a)(6).” United States
v. Garcia-Jimenez, 807 F.3d 1079, 1085–86 (9th Cir. 2015).
22 UNITED STATES V. CHARLEY

“specific intent to assault or impede is not ordinarily
transferrable to events two years apart.” Id. at 217. We
reasoned that “[d]iscrete intent, spontaneously resulting
from a unique set of circumstances, is the more usual case.” 8
Id.

The Tenth Circuit addressed this legal issue in United
States v. Commanche, 577 F.3d 1261 (10th Cir. 2009), where
it encountered factual circumstances similar to those alleged
here. Like Charley, Commanche was tried for assault and
argued that the circumstances underlying his convictions for
two prior batteries were inadmissible under Rule 404(b). Id.
at 1266. Noting that the only disputed issue in the case was
Commanche’s self-defense claim, the court held that the
district court erred in admitting evidence of his convictions
for the two prior batteries to establish Commanche’s intent
to commit the charged assault:

[T]he present case is not one in which intent
is proven circumstantially based on repeated
substantially similar acts. There is no
indication in the record that Commanche
claimed self defense on the two other
occasions. . . . [T]he details of Commanche’s
prior aggravated battery convictions
demonstrate nothing about his intent; they
simply show that he is violent. It may be that
Commanche’s violent character would lead a
jury to conclude that his fear was
unreasonable or that he acted with

8
Even if this reasoning were to constitute dicta, it is “[w]ell-
reasoned dicta,” by which we are bound. Li v. Holder, 738 F.3d 1160,
1164 n.2 (9th Cir. 2013) (citing United States v. Johnson, 256 F.3d 895,
914 (9th Cir. 2001) (en banc)).
 UNITED STATES V. CHARLEY 23

disproportionate force and thus cannot
properly claim self defense. Although this
reasoning may have intuitive appeal, it is
precisely what Rule 404(b) prohibits—a
chain of inferences dependent upon the
conclusion that Commanche has violent
tendencies and acted consistent with those
tendencies during the fight.

Id. at 1268–69. Relying on United States v. Sanders, the
court vacated the conviction because the “jury could not
escape[] the clear articulation that Commanche was a violent
and aggressive person who was merely repeating that
tendency.” Id. at 1268; see also United States v. Sanders,
964 F.2d 295, 297 (4th Cir. 1992) (vacating assault
conviction and holding that district court erred in admitting
prior assault because “[t]he fact that [defendant] had
committed an [earlier] assault on another prisoner . . . had
nothing to do with his reason for—his intent in—stabbing
[this victim]” so the prior assault proved “his general
propensity to commit violent crimes”).

Furthermore, the Government fails to carry its burden in
establishing a cogent basis from which to infer Charley’s
intent to assault Begay from the factual circumstances
underlying the prior incidents with her stepmother and sister.
Neither prior incident is similar enough to the circumstances
underlying the charged offense to provide any insight into
whether Charley intended to strike Begay for reasons other
than self-defense. First, the prior incidents were confined to
members of Charley’s immediate family, whereas the
charged offense occurred within the context of a romantic
relationship. Second, the record lacks any pattern of
violence between Charley and her stepmother or sister that
precipitated the prior incidents. Cf. United States v. Hinton,
24 UNITED STATES V. CHARLEY

31 F.3d 817, 822–23 (9th Cir. 1994) (finding no error in
admitting evidence of prior assaults because “the charged
and prior conduct were part of a pattern of abuse involving
the same victim and . . . similar modus operandi” (emphasis
added)). Third, unlike the charged offense, there is no
evidence in the record that Charley defended herself by
asserting a self-defense claim to either of the prior
incidents. 9 And finally, the prior incidents, which did not
include Begay in any manner whatsoever, involved
dissimilar victims compared to the charged offense. Cf.
Berckmann, 971 F.3d at 1002–04 (distinguishing
Bettencourt because “prior (and subsequent) acts of violence
towards the identical victim can shed light on the mindset of
the defendant during the charged crime” (emphasis added)).
No single criterion, by itself, is dispositive. But,
cumulatively, these criteria reveal a sufficient variance
between the prior incidents and the charged offense such that
Charley’s earlier intent to assault cannot be transferred to her
later intent here.

Mindful that “[t]he greater is the dissimilarity of the two
offenses, the more tenuous is the relevance,” we are

9
We recognize, however, that this consideration would likely favor
the Government’s position if, for example, Charley had been involved in
several physical confrontations and had routinely claimed self-defense
in every single one of them. If that were the case, the similar
circumstances underlying the prior claims of self-defense—and, with it,
the prior assaults—would reveal a suspicious pattern of thin excuses and
thus acquire the requisite similarity to the charged offense. See United
States v. Henthorn, 864 F.3d 1241, 1253 (10th Cir. 2017) (distinguishing
Commanche and explaining that the case was “more akin to a
hypothetical version of Commanche in which the defendant was
involved in several fights and always claimed self-defense” because “[a]t
some point, the court may reasonably begin to question whether the
defendant actually acted in self-defense and whether his use of force was
justified”).
 UNITED STATES V. CHARLEY 25

compelled to conclude that the two prior incidents and the
charged offense are simply too dissimilar to infer properly
that Charley intended to assault Begay. See United States v.
Hernandez-Miranda, 601 F.2d 1104, 1109 (9th Cir. 1979)
(finding error in admitting evidence of prior conviction for
smuggling marijuana in a backpack to establish defendant’s
later intent in importing heroin in a car). Evidence of the
prior incidents “does not tell the jury anything about what
the defendant intended to do in [her] later action—unless, of
course, one argues (impermissibly) that the prior act
establishes that the defendant has criminal propensities.”
United States v. Miller, 874 F.2d 1255, 1269 (9th Cir. 1989)
(vacating espionage conviction where district court erred in
admitting evidence of defendant’s prior bribery because it
was “too dissimilar from most of the offenses charged . . . to
serve as valid proof of [his] intent” to solicit money from a
foreign government). We do not mean to say that prior
assaults may never be admissible to prove elements of future
assaults. But here, given that Charley’s intent to kick her
stepmother’s door and intent to hit her sister in the head are
separated from the charged offense by such space and
context, the jury was allowed to infer impermissibly that
Charley has a propensity for violence and thus must have
intended to assault Begay. Charley’s earlier intent to assault
her stepmother and sister would be admissible only if the
similarity of the circumstances underlying those incidents
alone—and not Charley’s violent propensity implied by the
incidents—supplied an independent basis for establishing
her later intent to assault Begay. See United States v.
Rodriguez, 45 F.3d 302, 307 (9th Cir. 1995) (vacating
conviction and holding that district court erred in admitting
evidence of defendant’s prior fight with different inmate
because it impermissibly established character). Because the
Government fails to articulate a “propensity-free chain of
reasoning” between the prior incidents and the charged
26 UNITED STATES V. CHARLEY

offense, the evidence is inadmissible under Rule 404(b).
United States v. Rodriguez, 880 F.3d 1151, 1168 (9th Cir.
2018). 10

3. The “other acts” evidence was not harmless

“Where a district court errs in admitting other act[s]
evidence, we review for harmless error.” Carpenter,
923 F.3d at 1181. Evidentiary errors “are not harmless
unless it is more probable than not that the erroneous
admission of the evidence did not affect the jury’s verdict.”
United States v. Hill, 953 F.2d 452, 458 (9th Cir. 1991).
Mindful that we must “start with a presumption of prejudice”
as to the effect of “other acts” evidence, the district court’s
erroneous admission of Charley’s prior incidents entitles her
to a new trial on Counts 1 and 2. Carpenter, 923 F.3d at
1182.

The Government’s presentation of evidence related to
Charley’s prior incidents was neither trivial nor fleeting. On
the contrary, the evidence comprised nearly its entire
rebuttal case, spanning across three witnesses. Charley’s
stepmother first testified that Charley allegedly kicked the
front door and yelled profanities at her. Next, Charley’s
sister testified that Charley hit her on the head with a coffee
mug. Justin Banally, the responding officer, also testified
about the incident, describing the blood that he had observed
at the scene. In fact, the Government presented striking
photographs of the injuries, including one taken in the
hospital revealing the sister’s stitches. Even the district court
10
Because the district court erred in admitting Charley’s prior
incidents under Rule 404(b), we need not reach the final consideration in
the analysis: “whether the probative value [of the other acts evidence] is
substantially outweighed by the prejudicial impact under Rule 403.”
United States v. Chea, 231 F.3d 531, 534 (9th Cir. 2000).
 UNITED STATES V. CHARLEY 27

noted the “significant” impact of these photographs during
Charley’s sentencing hearing.

The Government continued to highlight the prior
incidents in its closing argument:

The defendant put on evidence that the
victim has a character for violence. In fact,
the defendant testified he gets violent when
he drinks.

The evidence really showed that’s true
for her. The evidence showed that pretty
much every incident we heard about, she was
intoxicated.

The evidence showed that she did not
have the same demeanor that she had here on
the stand when she was out in the community
with other people, with her own loved ones.

Sure, it was not easy for her family to
come in here and testify yesterday, but her
step mother told you what she has been like
for the last nine years since she has been
married to the defendant’s father, living with
her on and off.

She told you about how she—how the
defendant attacks her one time when she’s
just had surgery, she’s walking with a cane—
because she didn’t get to the door in time?

And you heard that the defendant
attacked her little sister, her 18 year-old
28 UNITED STATES V. CHARLEY

sister, who wanted to be alone with her six-
month-old baby and asked the drunk
defendant to leave. And she grabbed the
closest item to her, coffee mug, and smashed
it into her sister’s head.

You heard the scene that the officer
walked into there. Maybe not quite as bloody
as this one, but it sounded familiar. She had
to get stitches in her head. You saw the
picture of her finger. That’s what the
defendant did in a completely unprovoked
attack on her sister.

Even where evidence of other acts is admissible, it is
impermissible for the Government to argue that such
evidence reflects the defendant’s character. See United
States v. Derington, 229 F.3d 1243, 1247 (9th Cir. 2000)
(explaining that the “prosecutor’s argument to the jury
highlighting [defendant]’s greed touches on a trait of
character,” which “was inadmissible to prove [defendant]
was greedy”). 11

Other than Charley’s prior incidents, the Government
did not present overwhelming evidence to establish that
Charley struck Begay for reasons other than self-defense.
Begay did not testify, but Charley took the stand and testified
that she defended herself against Begay because she feared
for her life. No one else witnessed the incident. Although
Charley’s credibility was undoubtedly damaged due to her
several misrepresentations to law enforcement officers,

11
Charley also alleges claims of prosecutorial misconduct related to
the Government’s closing argument, but it is unnecessary for us to reach
this issue.
 UNITED STATES V. CHARLEY 29

Charley had several witnesses corroborate her account that
on at least one occasion Begay had attacked her on the days
leading up to the charged offense.

In light of the Government’s potent evidence about
Charley’s character during its rebuttal case—the last
evidence that the jury was to hear—and the implications it
made during its closing argument, “it [is] impossible for us
to say it is more likely than not that they did not affect the
jury’s verdict.” Brown, 880 F.2d at 1016. “[W]hen faced
with the single disputed issue in the case—self defense—the
jury could not escape[] the clear articulation that [Charley]
was a violent and aggressive person who was merely
repeating that tendency.” Commanche, 577 F.3d at 1270
(vacating assault conviction where district court admitted
evidence of prior assaults); see also Brown, 880 F.2d at 1016
(vacating conviction because “[d]espite the other evidence
against [defendant], the continued references to
[defendant]’s prior bad acts” make it that “[a] reasonable
juror . . . might have elected to convict [defendant] of that
offense based on the bad act evidence admitted”). Because
character evidence “is said to weigh too much with the jury
and to so overpersuade them as to prejudge one with a bad
general record and deny him a fair opportunity to defend
against a particular charge,” the erroneous admission of this
evidence was not harmless. Michelson v. United States,
335 U.S. 469, 476 (1948). Accordingly, we vacate and
remand for a new trial on Counts 1 and 2. 12

12
Charley also contends that the terms of her supervised release,
which prohibit her from communicating with felons, violate her
fundamental rights because “one or both of Charley’s brothers . . . may
be felons.” In light of our decision to vacate Charley’s two assault
convictions, we need not reach this issue. We also decline to reach
30 UNITED STATES V. CHARLEY

IV. CONCLUSION

Based on the reasons stated herein, we AFFIRM
Charley’s conviction for making false statements to a
government official (Count 3), VACATE Charley’s two
convictions for assault (Counts 1 and 2), and REMAND for
a new trial on Counts 1 and 2 and for resentencing on
Count 3.

BUMATAY, Circuit Judge, concurring:

I join the majority opinion in full. The law dictates that
we affirm Seraphina Charley’s 18 U.S.C. § 1001 false
statement conviction and reverse her two 18 U.S.C. § 113(a)
assault convictions. In reversing the two assault convictions,
the majority dutifully follows our binding precedent in
United States v. Bettencourt, 614 F.2d 214 (9th Cir. 1980).
I write separately only to express my view that Bettencourt
goes too far in suggesting that prior assaults may only rarely
be used to prove intent under Federal Rule of Evidence
404(b). The limitations set by that case have no basis in the
Rules of Evidence and conflict with the rationale of our other
decisions. In the appropriate case, we should dispense with
Bettencourt.

I.

Rule 404(b) expressly allows courts to admit a person’s
prior acts to prove “intent.” Fed. R. Evid. 404(b)(2).

Charley’s allegation that the Government committed prosecutorial
misconduct during its closing argument. We note, however, that our
decision is without prejudice to allow Charley to raise these issues to the
district court on remand.
 UNITED STATES V. CHARLEY 31

Nothing in the Rule limits its application to specific kinds of
intent. In other words, the Rule neither explicitly nor
implicitly constructs a hierarchy of intents. And I see no
reason to conclude that some intents are categorically more
probative than others. To the contrary, Rule 404(b) requires
a case-by-case assessment of materiality, similarity,
sufficiency of proof, and remoteness. United States v.
Preston, 873 F.3d 829, 840 (9th Cir. 2017).

Rather than focusing only on these factors, Bettencourt
makes sweeping pronouncements on the nature of “intent”
and sets unnecessary limitations on the use of other acts
evidence. First, Bettencourt proclaims, without citing any
authority, that “specific intent to assault or impede is not
ordinarily transferrable to events two years apart.” 614 F.2d
at 217. It then broadly pronounces that a “showing of intent
to assault on an earlier occasion proves little, if anything,
about an intent to assault at some later time.” Id. Finally,
endorsing a hierarchy of intents, Bettencourt approves the
belief that “intent such as fraud and forgery are far more
likely to have probative value with respect to later acts” than
intent to assault. Id. at n.7 (simplified).

But these conclusions are more a product of speculation
and judicial psychologizing than they are of Rule 404(b)’s
text. One would expect that concepts about the nature and
transferability of mental states would be based on scientific
reasoning or at least on findings from Congress or the
Advisory Committee. But Bettencourt doesn’t provide that.
Instead, it resorted to lay musings on the workings of the
brain. While it may be correct that some (maybe even most)
prior assaults have no probative value for future assaults, I
see no reason to all but rule out the possibility. For example,
why can’t an assault be as “deliberate” or “carefully
premeditated” as a fraud or forgery, as Bettencourt suggests?
32 UNITED STATES V. CHARLEY

Id. It is easy to think of examples that illustrate why that
belief is wrong—just ask the victims of Jack the Ripper, a
hate crimes perpetrator, or a serial domestic abuser. Without
a textual or non-conjectural basis for construing Rule 404(b)
this way, I would not so severely confine its application. Cf.
United States v. Curtin, 489 F.3d 935, 944 (9th Cir. 2007)
(en banc) (“Rule 404(b) is a rule of inclusion—not
exclusion[.]”).

Our court has since backed away from the blanket notion
that intent to assault is not transferrable. In United States v.
Berckmann, 971 F.3d 999, 1003–04 (9th Cir. 2020), we
affirmed the admission of a defendant’s other attacks against
his wife to prove an intent to assault. In so doing, we
explained that other acts of violence “can shed light on the
mindset of the defendant during the charged crime.” Id. at
1002. Moreover, the defendant’s intent was probative, even
though the other acts involved dissimilar modes of violence.
See id. at 1001 (describing multiple assaults involving a
kitchen knife, a glass bottle, and fists). So long as the other
acts evidence is “introduced to help the jury understand the
relationship between the defendant and a particular victim,”
and not “to characterize the defendant as someone who has
a propensity to be violent,” the evidence is admissible. Id.
at 1004; see also United States v. Hinton, 31 F.3d 817, 822
(9th Cir. 1994) (limiting Bettencourt’s binding dictum and
admitting prior assaults that were part of a pattern of abuse).

The tensions between Berckmann and Bettencourt are
obvious. Berckmann undercuts Bettencourt’s belief that
intent to assault is never transferrable across time or distinct
events. Even though Berckmann happened to involve the
same victim, nothing limits its rationale only to assaults
involving the same victim. If the Berckmann defendant had
committed several acts of domestic abuse against other
 UNITED STATES V. CHARLEY 33

women, it is hard to believe that such evidence would be
immaterial to his intent. And what about a hate crimes
defendant? Repeated assaults on other minorities are surely
probative of intent. See 18 U.S.C. § 249. The examples
could go on and on. See, e.g., United States v. Steele,
550 F.3d 693, 700–01 (8th Cir. 2008) (admitting prior acts
against different victims). Above all, Rule 404(b) permits
other acts evidence to show motive, opportunity, intent, and
so forth, but doesn’t confine such uses to conduct related to
the same victim. That is simply not part of the Rule.

Even more, the Federal Rules of Evidence permitted the
Government to admit reputation or opinion testimony about
Charley’s violent character after she raised her victim’s
violent past. See Fed. R. Evid. 404(a), 405(a). From that
character evidence, the jury could infer Charley’s intent or
lack of self-defense when she attacked the victim. If
Charley’s violent character was probative of intent, it is hard
to see why specific acts could not also be probative in the
right case. After all, the factual predicates for the reputation
or opinion testimony would still have been Charley’s prior
attacks. Again, it would involve the same transfer of intent
across unique circumstances that Bettencourt decries. 1

II.

Rule 404(b)’s text doesn’t suggest the restrictions on the
admissibility of prior assaults that Bettencourt creates.
Common sense doesn’t require them either. I fear that some
of Bettencourt’s broad pronouncements will result in the

1
While the majority opinion doesn’t reach the issue, I would also
deny Charley’s claims of prosecutorial misconduct. Although one
harmless factual error was made, I would find no misconduct in the
government’s closing arguments.
34 UNITED STATES V. CHARLEY

exclusion of probative evidence that ought to have been
admitted. We could avoid this consequence by excising
Bettencourt’s lay psychologizing and simply focusing on the
dissimilarities of the other assaults.

Because the non-propensity connection between
Charley’s prior acts and the charged conduct here is not
strong, even without Bettencourt, I agree that we must
reverse her assault convictions. But as the majority opinion
makes clear, this does not mean prior assaults can never be
used to show intent—even involving different victims. To
the extent Bettencourt conflicts with this reading of Rule
404(b), it should be overruled in the appropriate case.

With these observations, I concur.