The same week that marked the first anniversary of George Floyd’s murder by Minneapolis police officer Derek Chauvin also marks the 100th anniversary of the death of anywhere from 150 to 400 Black people in the Tulsa Massacre of 1921, where sheriff’s deputies and police officers aided the white mob.
It’s also the same week that revealed that a white St. Louis police officer who (allegedly) brutally beat a Black undercover fellow officer while live-streaming the beat-down to his girlfriend sent texts after he was charged in the beating, texts in which he called the city’s Black Circuit Attorney “plate lips” and complained about “St. Louis ni**ers.”
Next month, the man who sent those texts, former St. Louis cop Dustin Boone, faces a second federal trial on felony charges of deprivation of rights under color of law, and destroying evidence. In March, a federal jury made up mostly of whites from outside St. Louis couldn’t reach a verdict on those same charges, and a mistrial was declared.
In a heavily redacted court filing from early May, St. Louis federal prosecutors say they intend to introduce those texts at Boone’s second trial, and to also allege that Boone married his girlfriend to prevent her from testifying because of spousal privilege.
The entire case stems from protests downtown on Sept. 17, 2017. Demonstrators were angry that a judge had found St. Louis officer Jason Stockley not guilty of killing Black suspect Anthony Smith and planting a gun on the dead man in 2011. Only Stockley’s DNA was found on the weapon.
Undercover St. Louis detective Luther Hall had infiltrated the demonstrators and was thrown to the ground and severely beaten by white officers. The federal court filing by prosecutors claims Boone beat Hall, smashed Hall’s cellphone and camera, and live-streamed the beating on Facetime so his then-girlfriend, Ashley Ditto, could watch it.
Prosecutors say that immediately after the beating that left Detective Hall permanently injured, Ditto texted Boone, writing, “That was SOOOOO COOL!!!!…Lol no! That’s so gross. But damn, you guys need to practice more.” Prosecutors say none of the video Boone streamed exists, because Apple doesn’t save any Facetime streams.
Boone had sent a group text to other officers before the beating, in the summer of 2017, that read, in part, “There are ni**ers running wild across the city…they don’t get in any trouble because there are plate lips running the CAO!” (Circuit Attorney’s Office, headed by the city’s first Black female Circuit Attorney, Kim Gardner).
Boone also sent a group text to his family, including his mother and father, on March 20, 2017, that reads, “What city r we in? These f**kin ni**ers r the same as St. Louis ni**ers.” Other texts indicate Boone might have been abusing drugs, including Adderall, an amphetamine-based medication for attention deficit disorder, and hint he might have been part of a scheme to extort or rob money from unspecified Mexicans on the South Side.
Boone’s attorney wants prosecutors sanctioned for revealing the texts, and for intending to introduce them at trial.
The prosecutor’s purpose, of course, is to show that Boone is a racist (and perhaps a drug abuser, a thief, and someone who married his girlfriend to keep her from testifying). His predisposition for racism, they’ll argue, gave him every motive to injure a Black man permanently by beating him.
That the Black man turned out to be a fellow officer, and that Boone conspired with other white cops to cover up what he did, will add to the presentation that Boone is a bad cop and a racist.
Research shows, though, that racists automatically are bad cops, impede law enforcement, hamper investigations and prosecutions, and are more likely to beat or shoot Black people. Police departments with enough racist officers become ineffective law enforcement and investigative agencies, both because procedures are hamstrung by officers’ underlying racism, and because Blacks won’t cooperate with a law enforcement agency they perceive as racist.
And that, in a nutshell, is a large part of the reason that violent crime is out of control in some parts of the city, and that so few city murders are solved. The St. Louis Metropolitan Police Department has either ignored the racists in the ranks,or has refused to sanction them until it blows up in their face.
The MetroSTL.com investigation into racist Facebook posts by St. Louis police officers in 2019 is a good example. Hundreds of violent and racist Facebook posts by several officers that I revealed resulted in two officers’ being fired. The others got away with minor discipline. The SLMPD command theory still seems to be “It’s a few bad apples” and not “We need to fumigate the entire orchard.”
The research is clear: Weeding out racists leads to leads to less violence, more community trust, more effective policing, a higher percentage of crimes solved, and more competent law enforcement.
Consider one tiny statistic from Texas A&M University: A study of two million 911 calls discovered that white officers dispatched to Black neighborhoods fired their weapons five times as often as Black officers dispatched to the same neighborhoods under almost identical circumstances.
A proposal from the John Jay College of Criminal Justice and the Center for Policing Equity has one answer: Weed out racists in the academy, before they can hit the streets.
The experts used both social psychology and something called Routine Activity Theory, or RAT. RAT has been used by pro sports teams to predict how players will react in certain circumstances, by criminologists to predict which offenders may offend again, and by intelligence agencies to model both adversary behavior and the reactions to it.
In policing situations, RAT looks mainly at two predictors: threat and disgust. Authority figures, from cops to soldiers, tend to use violence or act out if they both feel threatened by a person and a situation, and if they harbor innate disgust for the group the person belongs to, whether based on race, religion, politics, or any other “tribal out-group” affiliation.
Would using RAT to predict behavior weed out racists in the police academy as well as it can help spot a pinch hitter likely to choke in the clutch? Maybe.
But we already know what happens when they’re not found until people are dead or injured.
# # # # # # # # # # # # # # # # # # # # # # # # #
Dustin Boone court documents (redacted)
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 1 of 33 PageID #: 2584
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION UNITED STATES OF AMERICA, ))
v. ) No. S1-4:18 CR 975 CDP )
DUSTIN BOONE, and ) CHRISTOPHER MYERS, ))
REDACTED NOTICE OF INTENT TO USE ADDITIONAL INEXTRICABLY INTERTWINED EVIDENCE AND/OR RULE 404(b) EVIDENCE, RULE 804(b)(5) EVIDENCE, and
COMES NOW, the United States of America, by and through Sayler A. Fleming, United States Attorney for the Eastern District of Missouri, and Robert F. Livergood and Carrie Costantin, Assistant United States Attorneys for said District, and files this notice in accordance with Rule 404(b) of the Federal Rules of Criminal Procedure to provide reasonable notice in advance of trial of the permitted purposes for which the Government intends to offer the evidence at trial, to provide notice of Rule 804(b)(5) Evidence, and to file a motion
. This notice only pertains to additional evidence not previously presented to the Court. The Government relies on the Court’s prior ruling and intends to admit the following exhibits that have previously been admitted at trial: Government Exhibits 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 258, 260, 262, 263, 264, 265, 266, 268, 269, 270, 274, 275, and 276. This case is set for trial on June 7, 2021.
The Government asserts that the evidence listed in this notice is, in fact, intrinsic to the charged offenses and therefore not subject to Rule 404(b). The Government notifies the defendants
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 2 of 33 PageID #: 2585of its intended use of the listed evidence.
All exhibits listed in this document, other than those previously admitted during the first trial, are contained on a DVD and submitted to the Court’s chambers and mailed to the attorneys for the defendants.
The Superseding Indictment charges defendant Dustin Boone with violating 18 U.S.C. §§ 2 and 242 (deprivation of civil rights under color of law); and defendant Christopher Myers with violating 18 U.S.C. § 1519 (destruction, alteration, or mutilation of evidence in a federal investigation). Both Boone and Myers were law enforcement officers at the time of the offenses.
II. Factual Background
Following the acquittal on September 15, 2017, of former St. Louis Metropolitan Police Department (“SLMPD”) Officer Jason Stockley on a state murder charge stemming from an officer-involved shooting, there were multiple days of concentrated protests in and around St. Louis, Missouri. SLMPD and the City of St. Louis had notice of the impending verdict, planned their protest response, and organized its officers into response teams. Many officers, including defendants Boone and Myers, were detailed to the Civil Disobedience Team (CDT). SLMPD Detective L.H., a 22-year veteran officer of SLMPD, was assigned to work in an undercover capacity during the protests and was tasked with documenting protest activity and property destruction.
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 3 of 33 PageID #: 2586
The Arrest and Assault of L.H.
During the evening of September 17, 2017, two days after the protests began, L.H. was working undercover and ended up at or around the St. Louis Public Library at the corner of 14th Street and Olive Street. At around the same time, Boone, Myers, and other CDT officers were walking north on 14th Street toward Washington Avenue. The CDT officers were walking in a double-file line. While the CDT was walking on 14th Street, there was very little protest activity at the intersection of 14th Street and Olive Street.
As the CDT approached the corner of 14th Street and Olive Street, CDT officers began running toward individuals who were running from pepper balls being dispersed by the SLMPD SWAT. L.H. was present in the area in his capacity as an undercover officer and was not committing any crime.
L.H. was standing on the corner of 14th Street and Olive Street between a portable generator and a traffic box. Believing that L.H. was a protester, defendants Boone and Hays took L.H. into custody. While taking him into custody, defendant Boone and Hays assaulted LH, using physical force that was both unnecessary and unreasonable. While L.H. was on the ground, and in a confined area, multiple officers were around him, struggling with his body and yelling at L.H. to put his hands out. Throughout the arrest, L.H. never resisted any of the officers around him or otherwise did anything to warrant the use of physical force against him. Nonetheless, officers used physical force against L.H. Specifically, Boone knelt on L.H.’s back and forced his head down on the cement, while telling L.H. not to look at him; Hays delivered strikes to L.H.’s body with his riot baton; and Myers intentionally mutilated or broke L.H.’s cellular phone and removed the battery from his camera. Boone’s, Myers’, and Hays’ actions were without reason or provocation, and inconsistent with when it is lawful and appropriate for an officer to use such physical force.
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 4 of 33 PageID #: 2587
A cell phone recording made by L.H. during his arrest and assault captured Hays’ and other voices yelling at L.H., as well as images of Myers’s face.
The following day, after roll call at the Electrician’s Hall, a member of the SLMPD CDT team requested that all officers involved with the arrest at 14th Street and Olive Street meet him outside. Defendants Boone, Hays, Myers, Colletta, and a few other officers went outside. While meeting with the member of the command staff, the CDT officers learned that the arrestee was L.H. During this meeting, Boone admitted his role in the arrest.
III. Forfeiture by Wrongdoing1
The Sixth Amendment provides that a defendant has the right to confront the witnesses against him or her. U.S. Const. amend. VI. The Confrontation Clause applies to testimonial evidence. See Crawford v. Washington, 541 U.S. 36, 68 (2004).2 Only testimonial statements “cause the declarant to be a ‘witness’ within the meaning of the confrontation clause.” Davis v. Washington, 547 U.S. 813, 821 (2006), citing Crawford, 541 U.S. at 51. Testimonial statements include, but are not limited to, “ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, . . . extrajudicial statements . . . contained in formalized testimonial
1 With great thanks to Sydney Alizadeh, an intern for the United States Attorney’s Office, who conducted much of the legal research in this section.
2 “Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States the flexibility in their development of hearsay law. . . and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is as issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”. Crawford, 541 U.S. at 68.
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 5 of 33 PageID #: 2588
materials, such as affidavits, depositions, prior testimony, or confessions, . . . statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, [and] . . . [s]tatements taken by police officers in the course of interrogations. . . .” Crawford, 541 US at 51-2. If a statement is not testimonial, then the Confrontation Clause does not apply. In the instant case, the Government will seek to introduce text messages and the occurrence of FaceTime communications (not the content), between Ashley Marie Ditto and Boone. As those communications were not made in anticipation of litigation, they would not be testimonial in nature. Even if they were considered testimonial, they should be permitted because of the application of the doctrine of forfeiture by wrongdoing.
The rule of forfeiture by wrongdoing applies “where the defendant engaged in wrongful conduct designed to prevent a witness’s testimony.” Giles v. California, 554 U.S. 353, 367 (2008). The “rule of forfeiture by wrongdoing , , , extinguishes confrontation claims on essentially equitable grounds. . . .” Crawford, 541 U.S. at 62; Davis v. Washington, 547 U.S. 813, 834 (2006); United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976). A defendant who forfeits his right of confrontation also forfeits his hearsay rights. Cf. Giles, 554 U.S.. at 364- 65 (“No case or treatise that we have found, however, suggested that a defendant who committed wrongdoing forfeited his confrontation rights but not his hearsay rights.”).
The forfeiture by wrongdoing rule was codified in Federal Rule of Evidence 804(b)(6). Id. Rule 804(b)(6) provides that the rule against hearsay does not apply when a “statement offered against a party that wrongfully caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did so intending that result.” Fed. R. Evid. 804(b)(6).
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 6 of 33 PageID #: 2589
This exception only applies if a witness is not available because the defendant intended to make the witness unavailable. Giles, 554 U.S. at 367.
In order to apply the forfeiture by wrongdoing exception, “a trial court must find, by a preponderance of the evidence, that (1) the defendant engaged or acquiesced in wrongdoing (2) that was intended to render the declarant unavailable as a witness and (3) that did, in fact, render the declarant unavailable as a witness.” United States v. Dinkins, 691 F.3d 358, 383 (4th Cir. 2012); see also United States v. Scott, 284 F.3d 758, 762 (7th Cir. 2002). The wrongdoing does not require a criminal act. Scott, 284 F.3d at 765, citing Fed. R. Evid. 804(b)(6) advisory committee’s note for 1997 Amendments (“The wrongdoing need not consist of a criminal act.”). What is required is “conduct causing the absence of a witness . . . whatever the nature of the wrongdoing.” Fowler v. Fox, 1:18-cv-01516-NONE-JLT (HC), 2020 WL 605349, *5 (E.D. Cal, Feb. 7, 2020) (citation omitted).
“Wrongdoing under this forfeiture doctrine can include conduct that is otherwise legal, including marriage with a victim to prevent her testimony through invocation of the marital privilege. Collusion by a defendant with a witness not to testify at criminal trial also satisfies the doctrine of forfeiture by wrongdoing.” Id. (citations omitted); Massachusetts v. Szerlong, 933 N.E.2d 633, 638 (Mass. 2010).3 It is sufficient to show that defendant’s conduct, although not criminal, put the witness beyond the authority of the court. Fowler, 2020 WL 605349, *5. It is not necessary to “show that the defendant threatened, coerced, persuaded, or pressured a witness to avoid testifying, or physically prevented the witness from testifying. Where a defendant
3 The marital privilege has two parts: the testimonial privilege which permits a spouse to refrain from testifying against the other spouse, and the marital communications privilege where either spouse can prevent the other from testifying about confidential communications made during the marriage. Montague, 421 F.3d at 1103. In Montague, the Government established by a preponderance of the evidence that the defendant procured his wife’s unavailability as a witness. See id. at 1103.
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 7 of 33 PageID #: 2590
actively assists a witness’s efforts to avoid testifying, with the intent to keep the witness from testifying, forfeiture by wrongdoing may be established regardless of whether the witness already decided on her own not to testify.” Szerlong, 933 N.E.2d at 638-39 (internal quotations, brackets and citation omitted). As the Fowler court noted, “[a]lthough criminal defendants have no duty to assist the state in proving their guilt, they do have a duty to refrain from acting in ways that destroy the integrity of the trial system.” Id. citing Davis, 547 U.S. at 833. Procedure
As stated above, the Government must show that (1) the defendant engaged or acquiesced in wrongdoing (2) that was intended to render the declarant unavailable as a witness and (3) that did, in fact, render the declarant unavailable as a witness. Once the Government has shown these factors, the Sixth Amendment’s right of confrontation is extinguished, and the Rule 804(b)(6) hearsay exception applies.
In order to show the declarant is unavailable, Rule 804(a) indicates that “[a] declarant is considered to be unavailable as a witness if the declarant is . . . absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure . . . the declarant’s attendance, in the case of hearsay exception under” Rule 804(b)(6). Fed. R. Evid. 804(b)(a)(5)(A). An evidentiary hearing may be held to determine whether a spouse is freely invoking the spousal privilege or is being coerced, but the court cannot force the spouse invoking the testimonial privilege to explain their reasons for invoking it. Montague, 421 F.3d at 1102-1103. The district court may rely on proffered evidence in making its determination. Id. (in Montague the defense stipulated to the proffer). Federal courts generally required the “preponderance-of-the-evidence standard.” Davis, 547 U.S. at 833; United States. v. Emery, 186 F.3d 921, 926 (8th Cir. 1999); see also United States v. Montague, 421 F.3d 1099,
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 8 of 33 PageID #: 2591
1102 (10th Cir. 2005).
Application of Forfeiture by Wrongdoing Rule
Here, the Government seeks to introduce text messages and other communications between Ashley Marie Ditto and Boone. The text messages are non-testimonial because they were not made in anticipation of litigation. The Government contends that Boone married Ashley Marie Ditto, at least in part, to wrongfully render her unavailable to testify as a witness. It is anticipated that Ashley Marie Ditto will assert the spousal privilege and will be unavailable to testify at trial.
The Government proffers that on September 17, 2017, Boone was broadcasting the protest to Ashley Marie Ditto when the assault of L.H. occurred. On that particular day, Boone had a cell phone affixed to his garments in such a manner as to allow it to capture the events during the protest. (Exhibit 1). He then started to communicate with Ashley Marie Ditto using text messages and FaceTime.4 FaceTime calls are not recorded nor stored by Apple.5 Apps can be used to record the calls, but there is no indication that Boone used such an app to record FaceTime phone calls on September 17, 2017, nor were any such videos located.
Boone and Ashley Marie Ditto frequently used FaceTime to communicate with each other. From June 30, 2017, to September 18, 2017, they communicated via FaceTime on at least 24 occasions that were at least two minutes in duration. See, infra, Sections V(B(1) – V(B)(3). Additionally, Boone frequently video recorded while on duty. See, infra, Section V(C).
As he had done many times in the past, prior to the assault on L.H. on September 17, 2017, Boone communicated with Ashley Marie Ditto. See, infra, Section V(B)(2). He started off
4 According to the website MacRumors, “Facetime is Apple’s video and audio chatting platform that lets iPhone users communicate with one and other through the standard FaceTime video protocol or using the FaceTime audio feature.” See https://www macrumors.com/guide/facetime/; see also https://support.apple.com/en-us/HT209110. 5 See https://techboomers.com/t/facetime-safety-security-privacy.
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 9 of 33 PageID #: 2592
with a 31 second FaceTime with Ashley Marie Ditto, at 8:41 p.m. He then texted her that he would FaceTime her when he got closer. He said he would not talk with her but would try to get the phone close to his radio so that Ashley Marie Ditto could hear the radio too. Then at 8:46 p.m. he started to FaceTime her and it lasted for 59 minutes and 28 seconds.
At about 8:53 p.m., while Boone’s FaceTime was active, the assault of L.H. began. During the assault, police were yelling at L. H. to “Get on the ground,” “hands out,” and “let me see your hands.” At about 9:46 p.m. the FaceTime between Boone and Ashley Marie Ditto ended. At 9:52 p.m., Ashley Marie Ditto texted, “Lol no! That’s so gross. But damn you guys need to practice more. Even I was confused. One guy was sayin HANDS DOWN, HANDS DOWN, Next dude saying HANDS UP. Then HANDS DOWN, HANDS DOWN, GET YOUR FUCKIN HANDS UP. ����������������”6 Then Ashley Marie Ditto texted that the FaceTime was “cool.” See, infra, Section V(B)(2).
The next day, at 1:00 p.m., Boone texted Kyle Santa that he was getting his “ass chewed for the [L.H.] stuff . . . ” Around 3:15 p.m., Boone texted Randy Hays that “Everyone seems to think that we r ok. Still don’t like it hanging over me tho!” (Gov. Ex. 260 – from first trial). Four minutes later he texted Ashley Marie Ditto, ” Nothing about that story to anyone please. Not something I am proud of and not entertaining at all at this point. I love you.” She responded, “No way. I would never say anything. My heart hurts for you.” See, infra, Section V(B)(2).
The next day, August 15,
2018, Defendant Boone and Ashley Marie Ditto obtained a marriage license. (Exhibit 3). On that
6 “The rolling on the floor laughing emoji is a more intensive version of the face with tears of joy emoji. Also know as the ROFL emoji, it depicts a smiling face crying tears of joy while leaning to one side, as if rolling over with uncontrollable laughter. It is used to mark anything that is extremely hilarious.” See
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 10 of 33 PageID #: 2593
same day, they were married by the Honorable Richard M. Stewart, Associate Circuit Judge in St. Louis County, Missouri. Id.
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 11 of 33 PageID #: 2594.
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 12 of 33 PageID #: 2595
These facts indicate that at least one of the reasons that Boone and Ashley Marie Ditto were married is so that she would not have to testify. The FaceTime and text messages indicate that Ashley Marie Ditto was able to view what was occurring when L. H. was assaulted by police. Furthermore, once Boone realized that L.H. was a police officer, he asked her not to tell anyone about what happened.
Unavailability to testify
As this proffer shows, Boone and his girlfriend, Ashley Marie Ditto, exchanged text
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 13 of 33 PageID #: 2596
messages that he was going to broadcast the protest to her on September 17, 2017. He used FaceTime to broadcast the protest, including the assault of L.H., to Ashley Marie Ditto. Ashley Marie Ditto observed the protest and assault and commented, via text messages, that she observed the assault. Boone, on September 18, 2017, asked Ashley Marie Ditto not to tell anyone about it.
IV. Rule 404(b)
Rule 404(b) states, in part:
(1) Evidence of any other crime, wrong, or act 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.
(2) This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, or lack of accident.
Fed. R. Evid. 404(b)(1) and (2). Such evidence is admissible if “(1) it is relevant to a material issue; (2) it is similar in kind and not overly remote in time to the crime charged; (3) it is supported by sufficient evidence; and (4) its potential prejudice does not substantially outweigh its probative value.” United States v. Smith, 978 F.3d 613, 616 (8th Cir. 2020) (citation and internal quotations
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 14 of 33 PageID #: 2597
omitted). Rule 404(b) is a rule of inclusion. United States v. Pierson, 544 F.3d 933, 940 (8th Cir. 2008). The Court conducts a Rule 403 balancing test to determine whether the evidence’s probative value is substantially outweighed by the danger of unfair prejudice. Id.
“Rule 404(b) applies only to extrinsic, not intrinsic, evidence.” United States v. Thomas, 760 F.3d 879, 883 (8th Cir. 2014); United States v. Guzman, 926 F.3d 991, 999 (8th Cir. 2019). Intrinsic evidence is evidence offered for the purpose of providing the context in which the charged crime occurred, completes the story, or provides a total picture of the charged crime. Thomas, 760 F.3d at 883. “A jury is entitled to know the circumstances and background of a criminal charge. It cannot be expected to make its decision in a void-without knowledge of the time, place and circumstances of the acts which form the basis of the charge.” United States v. Moore, 735 F.2d 289, 292 (8th Cir. 1984), see also United States v. Hall, 604 F.3d 539, 543 (8th Cir. 2010) (“‘We have consistently held crimes or acts which are inextricably intertwined with the charged crime are not extrinsic and Rule 404(b) does not apply.’ Evidence of other crimes or acts is inextricably intertwined if it is an >integral part of the immediate context of the crime charged.” (citations omitted)).
In United States v. Johnson, 463 F.3d 803, 808 (8th Cir. 2006), the court stated:
We have held that Rule 404(b), which governs the admission into evidence of wrongful conduct other than the conduct at issue, applies “only to ‘extrinsic’ and not to ‘intrinsic’ evidence.” United States v. Swinton, 75 F.3d 374, 377 (8th Cir. 1996). Evidence of other wrongful conduct is considered intrinsic when it is offered for the purpose of providing the context in which the charged crime occurred. United States v. Forcelle, 86 F.3d 838, 842 (8th Cir.1996). Such evidence is admitted because “the other crime evidence ‘completes the story’ or provides a ‘total picture’ of the charged crime.” Id.
Here, except as otherwise noted, the additional evidence completes the story and provides a total picture of the charged crimes.
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 15 of 33 PageID #: 2598
An example of a text message being used as intrinsic evidence is found in United States v. Ross, 969 F.3d 829 (8th Cir. 2020). In that case, defendants Ross and King decided to commit a robbery because King needed money to make a car payment. Ross sent a text message to King: “Sup foo lets rob these Mexicans down here.” Two days later, Ross sent another text message to King asking to meet. King responded that he was on the way. Id. at 835. Ross and King then
carjacked, kidnapped and eventually murdered the victim. Id. Ross and King were identified and charged. Id. at 836.
King and Ross proceeded to trial. During the trial, the district court admitted the text message, “Sup foo lets rob these Mexicans down here.” The court of appeals found that even though the victim was not Mexican, the message was inextricably intertwined with the charged offense: “The evidence suggested that the motive for the robbery was pecuniary gain, so it was reasonable to infer that the identity of the victim was not central to the conspiracies: a proposal to rob ‘Mexicans’ easily could have evolved into a plan to rob [the victim].” Id. at 842.
The texts described below, complete the story and provide a total picture of the charged crimes. If the Court concludes that the texts are not inextricably intertwined, the texts are nonetheless admissible under Rule 404(b) to prove “motive, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. 404(b); see also Pierson, 544 F.3d at
V. Records to be used at trial
A. Boone’s Text Messages
1. Boone’s Text Message from March 20, 2017, 9:07
Boone’s text is intrinsic evidence because the text provides the context in which the charged crime occurred by telling the complete story. The text, “Fuckin niggers,” is probative of
15 Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 16 of 33 PageID #: 2599
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 17 of 33 PageID #: 2600
unreasonable seizure and force. See Jury Instructions (Doc. #392), at 13-17. If the Court determines it is not intrinsic evidence, it is admissible under Rule 404(b) to show that Boone “acted willfully when he deprived [L.H.] of his right to be free from unreasonable force.” United States v. Colin J. Boone, 828 F.3d 705, 711 (8th Cir. 2016). In the Colin J. Boone case, the defendant was charged with using unreasonable force in violation of 18 U.S.C. § 242. The charged offense occurred in 2013 when the defendant kicked a suspect in the face. Id. at 708. During the trial that followed, the Government introduced a video of the defendant using force against another suspect in 2009. There, he lifted the suspect by her arm and assaulted her with his hands. Id. at 710. The Eighth Circuit Court of Appeals held that the 2009 incident was admissible under Rule 404(b). It found evidence of the defendant’s use of force against the 2009 suspect was relevant to show that the defendant “acted willfully when he deprived [the 2013 suspect] of his right to be free from unreasonable force.” Id. at 711. The defendant “placed his state of mind squarely at issue and rendered evidence of his prior use of unreasonable force probative of his intent, knowledge, motive, and absence of mistake in his use of force against [the 2013 suspect].” Id. at 711.
Boone’s texts are probative of his intent and motive to assault protesters and are against his code of ethics as a law enforcement officer. See, supra, Special Order 1-07. The texts show that Boone’s subsequent actions regarding L.H. were willful, and were committed with a bad purpose or improper motive to disobey or disregard the law and his intent to deprive a protester, in this case L.H., of his right to be free from the use of unreasonable seizure and force. See Jury Instructions (Doc. #392), at 13-17.
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 18 of 33 PageID #: 2601Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 19 of 33 PageID #: 2602Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 20 of 33 PageID #: 2603Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 21 of 33 PageID #: 2604Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 22 of 33 PageID #: 2605Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 23 of 33 PageID #: 2606Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 24 of 33 PageID #: 2607Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 25 of 33 PageID #: 2608
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 26 of 33 PageID #: 2609
D. Boone’s Communications concerning drugs
Text messages, photographs, and reminders on Boone’s phone show that he has communicated about his use of drugs from November 2016 through May 2018. These drugs include Concerta, Adderall, Amphetamine Salt, addie, and Mydayis.
Regarding the effects of the drugs, Boone described the effects of Concerta and Adderall in a text on October 2, 2017: “Depends on if he wants to feel like he feels like seeing in HD and making night turn into day (adderall) or if he just wants to feel a really really focused white guy (concerta). Adderall is essentially cocaine base in a compressed pill form……. it’s pretty special. It makes u chew on ur tongue and lick ur lips like a crack head and u can’t stop talking for the
first 8 hours. It is also nearly impossible to get drunk AND cures hangovers in a matter of 11 minutes. I’m not even lying about ANY of that Kyle! Lol I’m serious!”
Amphetamine salt combo is the generic for Adderall.7 Regarding Mydayis, the Mydayis website states: “Mydayis is a federally controlled substance (CII) because it contains amphetamine that can be a target for people who abuse prescription medicines or street drugs.”8 Addies is another name for Adderall. 9
Boone’s use of Adderall and Adderall related drugs constitutes 404(b) evidence. As the following text messages show, Boone not only used the drugs but provided them to others. The
8 See the following website:
https://www.mydayis.com/?utm_medium=cpc&utm_source=google&utm_campaign=TAK%7CMydayis%7CADH D%7CDTC%7C%7C%7CMydayis+Consumer+Branded&utm_term=mydayis_exact&utm_content=Brand+- +Mydayis+Only&gclid=EAIaIQobChMI0qXnsbiu8AIVmbfICh01cAQJEAAYASAAEgJNBfD_BwE&gclsrc=aw.d s
9 Addies: “A shortened way of saying Adderall, also known as the Smart Drug or Study Drugs. It is a prescription drug to treat ADHD, but it often dangerously used by kids to focus on exams.” https://www.imom.com/a-guide-to teen-drug-slang/
26 Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 27 of 33 PageID #: 2610Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 28 of 33 PageID #: 2611Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 29 of 33 PageID #: 2612Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 30 of 33 PageID #: 2613Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 31 of 33 PageID #: 2614
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 32 of 33 PageID #: 2615
For the foregoing reasons, the Government respectfully requests that the Court admit the evidence outlined above because the evidence is intrinsic to the charged offenses, or, in the alternative, pursuant to Rule 404(b), to permit the introduction of Ashley Marie Ditto’s text messages for the truth of the matter asserted,
Respectfully submitted, SAYLER A. FLEMING, United States Attorney
/s/ Robert F. Livergood ROBERT F. LIVERGOOD, #35432MO CARRIE COSTANTIN #35925 Assistant United States Attorneys
111 S. 10th Street, Rm. 20.333 St. Louis, Missouri 63102 (314) 539-2200
Case: 4:18-cr-00975-CDP Doc. #: 415-1 Filed: 05/06/21 Page: 33 of 33 PageID #: 2616
CERTIFICATE OF SERVICE
I hereby certify that on May 6, 2021, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court=s electronic filing system upon the following:
Patrick S. Kilgore, Attorney for Dustin Boone 1015 Locust Suite 914 St. Louis, MO 63101 Email: email@example.com; and N. Scott Rosenblum Attorney for Christopher Myers 120 S. Central Ave. Suite 130 Clayton, MO 63105 Email: firstname.lastname@example.org.
/s/Robert F. Livergood ROBERT F. LIVERGOOD, #35432MO Assistant United States Attorney