United States v. Johnson: No Plain Error in Admitting Law‑Enforcement Incident Reports via Rule 803(6); Specific Theories Required to Preserve 404(b)/403 Objections; § 3553(a)(6) Satisfied by Record‑Based Justification in ACA Sentences

United States v. Johnson: No Plain Error in Admitting Law‑Enforcement Incident Reports via Rule 803(6); Specific Theories Required to Preserve 404(b)/403 Objections; § 3553(a)(6) Satisfied by Record‑Based Justification in ACA Sentences

Introduction

In this published opinion, the Tenth Circuit affirmed Johnathan Johnson’s conviction and three-year sentence for indecent exposure committed while in federal Bureau of Prisons (BOP) custody at the Federal Transfer Center in Oklahoma City. Prosecuted under the Assimilative Crimes Act (ACA), 18 U.S.C. § 13, by reference to Oklahoma’s indecent exposure statute, the case presented three principal appellate issues: (1) whether prior-acts evidence (BOP disciplinary logs and incident reports memorializing four earlier public masturbation incidents) was admissible under Federal Rules of Evidence 404(b), 403, and 803(6); and (2) whether the district court committed a procedural sentencing error by misapplying 18 U.S.C. § 3553(a)(6)’s “unwarranted disparities” factor in an ACA prosecution, given that many states cap comparable offenses at one year.

The decision provides important procedural and evidentiary guidance: it clarifies what it takes to preserve specific 404(b)/403 theories for appellate review; it holds there was no plain error in admitting BOP incident reports as business records under Rule 803(6) despite the Rule 803(8) law-enforcement carveout; and it endorses a record-centered § 3553(a)(6) analysis in ACA sentencing. Judge Federico concurred separately to underscore the complexities unique to ACA sentencing and to signal issues ripe for fuller development in future cases.

Summary of the Opinion

  • Preservation and Waiver: Johnson waived his Rule 404(b) appellate challenge and forfeited his particular Rule 803(6) theory. He preserved a general Rule 403 balancing argument and his procedural reasonableness challenge, but not his more specific “intent not disputed → minimal probative value” theory under Rule 403.
  • Rule 403: The district court did not abuse its discretion in admitting prior-acts evidence. The evidence had probative value on mens rea (intent/knowledge/lack of mistake), risk of unfair prejudice was mitigated by a limiting instruction, and the incident reports were not needlessly cumulative.
  • Rule 803(6) vs. Rule 803(8): Reviewing for plain error (because Johnson changed theories on appeal), the court held it is not “plain” that Rule 803(8)’s law-enforcement limitations bar admission of law-enforcement incident reports under Rule 803(6). The text and structure of the Rules admit competing readings; without controlling Supreme Court or Tenth Circuit authority, any error was not “clear or obvious.”
  • Sentencing (§ 3553(a)(6)): No procedural error. The district court recognized potential interstate sentencing range differences for assimilated indecent exposure, considered Johnson’s specific record, and explained that any disparity would be warranted. The concurrence highlighted the broader, unsettled terrain of ACA sentencing and potential future arguments.

Background

While in transit through the Federal Transfer Center in Oklahoma City, Johnson activated his cell’s distress alarm. When Correctional Officer Heather Ray responded, she observed him masturbating, visible through the cell’s window. The government charged him under the ACA with violating Okla. Stat. tit. 21 § 1021(A)(1) (willfully and knowingly lewd exposure).

Before trial, the government noticed Rule 404(b) evidence of four prior public masturbation incidents (from USP Pollock, Louisiana). In the first trial, the court admitted BOP disciplinary logs under Rule 803(6) but excluded Discipline Hearing Officer (DHO) reports under Rule 403 as cumulative. After a mistrial, the government proceeded at the retrial with the logs and substituted the DHO reports with contemporaneous incident reports authored by BOP personnel. The district court admitted both the logs and incident reports, instructing the jury on their limited use.

Detailed Analysis

A. Precedents Cited and How They Shaped the Decision

  • Huddleston v. United States, 485 U.S. 681 (1988) and Tenth Circuit gloss in United States v. Henthorn, 864 F.3d 1241 (10th Cir. 2017): Articulate the four-part test for 404(b): proper purpose, relevance, Rule 403 balance, and limiting instruction.
  • United States v. Moran, 503 F.3d 1135 (10th Cir. 2007): Endorses the “logic of improbability” allowing inference of intent/knowledge from similar prior acts without resorting to a forbidden propensity inference.
  • United States v. Herrera, 51 F.4th 1226 (10th Cir. 2022): A general Rule 403 objection preserves a general balancing argument, but not more specific theories (e.g., minimal probative value because an element is undisputed) unless clearly raised below.
  • United States v. Leffler, 942 F.3d 1192 (10th Cir. 2019) and Richison v. Ernest Group, 634 F.3d 1123 (10th Cir. 2011): If an issue is not preserved and the appellant does not argue plain error on appeal, the issue is deemed waived and will not be reviewed.
  • United States v. Cerno, 529 F.3d 926 (10th Cir. 2008) and Henthorn: On appeal, evidence receives “maximum reasonable probative force” and “minimum reasonable prejudicial value” in Rule 403 review.
  • United States v. Tan, 254 F.3d 1204 (10th Cir. 2001): Rule 403 exclusion is an “extraordinary remedy” used sparingly.
  • United States v. Rodella, 804 F.3d 1317 (10th Cir. 2015) and United States v. Batton, 602 F.3d 1191 (10th Cir. 2010): Rule 404(b) does not bar prior-acts evidence whenever a propensity inference is merely possible; it bars admission when relevance to a non-propensity purpose is established only through the forbidden character inference.
  • Plain Error Line: United States v. Gonzales-Huerta, 403 F.3d 727 (10th Cir. 2005); United States v. Jones, 74 F.4th 1065 (10th Cir. 2023); United States v. Berryhill, 140 F.4th 1287 (10th Cir. 2025): Error is “plain” only when clear or obvious under controlling law or the unambiguous text of a rule.
  • Interplay of Rule 803(6) and 803(8): Out-of-circuit cases (e.g., United States v. Oates, 2d Cir.; United States v. Orozco, 9th Cir.; United States v. Cain, 5th Cir.; United States v. Smith, D.C. Cir.) disfavor using Rule 803(6) as an “end run” around Rule 803(8)’s law-enforcement limits, but none bind the Tenth Circuit. The Seventh Circuit in United States v. Blackburn, 992 F.2d 666 (7th Cir. 1993), highlights the structural ambiguity unique to 803(8)’s internal limitations.
  • Sentencing: Gall v. United States, 552 U.S. 38 (2007); United States v. Sanchez-Leon, 764 F.3d 1248 (10th Cir. 2014): Procedural reasonableness asks whether the court considered the § 3553(a) factors and explained the sentence. ACA-specific guidance from United States v. Christie, 717 F.3d 1156 (10th Cir. 2013) (“like punishment, not precisely the same”) and United States v. Polk, 61 F.4th 1277 (10th Cir. 2023) (federal sentencing policy may trump state provisions within the assimilated range).

B. The Court’s Legal Reasoning

1) Preservation, Forfeiture, and Waiver (Rules 404(b), 403, 803(6))

The court begins by disentangling what was preserved. Johnson’s appellate theory that “intent was not disputed,” thereby undermining relevancy and probative value, was not raised below. In the district court, he argued something different: that the government’s records did not establish that his past conduct was “intentional exposure” without corroboration. Those are distinct legal theories. Because he neither alerted the district court to the “intent-not-in-dispute” theory nor argued plain error on appeal, the 404(b) challenge was waived.

For Rule 403, Johnson preserved a general balancing objection (“any probative value is substantially outweighed by prejudice”). Under Herrera, that suffices to preserve generic 403 balancing, but not the more specific argument that probative value is minimal because the element (intent) is undisputed. Johnson did not present that specific theory below and did not request plain-error review on appeal; the panel therefore treated it as waived.

For Rule 803(6), the preservation problem was different. In the district court, Johnson argued the BOP logs and reports failed 803(6)’s own requirements (regularly conducted activity; trustworthiness). On appeal, he pivoted to say Rule 803(8) bars using Rule 803(6) to admit law-enforcement reports. That new theory was forfeited; the court thus reviewed only for plain error.

2) Rule 403: No Abuse of Discretion

On the merits of the general Rule 403 challenge, the panel affirmed. The prior-acts evidence had genuine probative value on mens rea under the logic of improbability: repeated similar acts reduce the likelihood the charged incident was accidental or mistaken. The district court gave a limiting instruction (we presume juries follow them), and the conduct described was not more inflammatory than the charged offense itself. The court also rejected the claim that the incident reports were cumulative, distinguishing them from the previously excluded DHO reports by their additional factual detail and context. Given the deferential standard and the Tenth Circuit’s admonition that Rule 403 exclusion is an “extraordinary remedy,” the balance struck by the district court was within its discretion.

3) Rule 803(6) vs. Rule 803(8): No Plain Error

Johnson’s appellate theory relied on the Rule 803(8) law-enforcement carveout, which limits admission of “matters observed by law-enforcement personnel” in criminal cases and confines “factual findings” to civil cases or use “against the government” in criminal cases. He argued courts cannot use Rule 803(6) to backdoor such evidence. But because this theory was raised for the first time on appeal, the panel asked only whether admitting the BOP incident reports under Rule 803(6) was plainly erroneous.

It was not. There is no controlling Supreme Court or Tenth Circuit authority resolving the precise interplay between Rules 803(6) and 803(8). The text and structure of Rule 803(8) plausibly admit two readings: (a) its limits apply only to the public-records exception itself; or (b) they more broadly bar admission via other hearsay exceptions. The Seventh Circuit has flagged this structural anomaly, and while several circuits have taken a restrictive approach, the Tenth Circuit has not yet adopted that view. In this context of textual ambiguity and absent binding authority, any error was not “clear or obvious”—the hallmark of plain error. The panel expressly left open how it would resolve the issue on a preserved record in a future case.

4) Sentencing (§ 3553(a)(6)) in an ACA Prosecution: No Procedural Error

Johnson argued that because many states cap indecent exposure at one year, Oklahoma’s much higher cap (ten years) creates unwarranted interstate disparities when assimilated into federal prosecutions, and that § 3553(a)(6) required the district court to account for this national landscape. The panel affirmed the sentence, emphasizing the district court’s correct focus: it quoted the statutory factor, acknowledged the variance in state maximums, and then evaluated Johnson’s individual history (including significant disciplinary history and prior convictions) to conclude any disparity was warranted.

The concurrence (Judge Federico) agreed on the result but signaled that ACA sentencing is unusually complex. He underscored that “like punishment” under the ACA does not mean “precisely the same” punishment, and that federal policy governs within state-provided ranges. He suggested that, with a better-developed record, nationwide disparities produced by state-law variation might demand explicit consideration under § 3553(a)(6), potentially justifying a downward variance to avoid unwarranted inter-district disparities for the same assimilated conduct.

C. Impact and Forward-Looking Implications

1) Evidentiary Preservation: A Procedural Blueprint

  • To preserve a 404(b) challenge premised on “intent not disputed,” counsel must say that below. General relevance or probative-value objections won’t preserve a distinct “undisputed-element” theory for appeal.
  • For Rule 403, a generic balancing objection preserves generic balancing. But if the thrust on appeal is “probative value is minimal because the element is undisputed,” that specific theory must be presented in the trial court.
  • If a distinct appellate theory surfaces later, appellants should explicitly invoke plain error. Failing to do so will likely result in waiver under Leffler/Richison.

2) Law-Enforcement Reports Under Rules 803(6) and 803(8)

  • Within the Tenth Circuit, admitting law-enforcement incident reports as business records will not be plain error absent controlling authority. The panel emphasized ambiguity and competing plausible readings.
  • But the court intentionally did not resolve the merits. Future, preserved challenges could invite the Tenth Circuit to align with (or distinguish) out-of-circuit authority limiting use of Rule 803(6) to circumvent 803(8).
  • Practical note for the government: bolster admissibility with live testimony where possible; consider non-hearsay uses or alternative exceptions; request and rely on limiting instructions.

3) Using Prior Acts to Prove Mens Rea Posture

  • The “logic of improbability” remains a robust basis to admit prior-acts evidence to show intent, knowledge, or absence of mistake, even when the conduct is salacious or unseemly.
  • Limiting instructions matter. Courts will assume juries use the evidence only for the permitted purpose.

4) ACA Sentencing and § 3553(a)(6)

  • District courts satisfy § 3553(a)(6) by articulating how any disparity is “warranted” in light of the defendant’s record and the offense facts, even when assimilated state maxima vary widely.
  • The concurrence flags a future pathway: defendants may develop robust comparator data to show nationwide disparities created by ACA prosecutions and to argue for harmonized sentencing outcomes across districts.
  • Under Christie and Polk, courts apply state maxima and minima but otherwise must conform to federal sentencing policy. That interplay can produce higher (or lower) sentences than state practice would allow, so long as they fit within the assimilated range and federal policy.

Complex Concepts Simplified

  • Assimilative Crimes Act (ACA): When conduct occurs in federal enclaves (e.g., prisons, military posts, Indian Country) and no federal statute specifically punishes it, the ACA borrows the relevant state criminal law—both offense definition and punishment range—unless federal policy dictates otherwise.
  • Rule 404(b): Generally bars character/propensity evidence to show action in conformity, but allows prior acts for other purposes (intent, knowledge, absence of mistake). Admissibility also requires relevance and Rule 403 balancing, often enforced via a limiting instruction.
  • “Logic of Improbability”: A recurring similarity between prior acts and the charged conduct makes accident/mistake less likely, supporting an inference of intent/knowledge without relying on a forbidden propensity inference.
  • Rule 403: Even relevant evidence can be excluded if its probative value is substantially outweighed by unfair prejudice, confusion, or cumulativeness. Exclusion is exceptional and used sparingly.
  • Rule 803(6) vs. Rule 803(8):
    • 803(6): Business-records exception—records made and kept in the course of a regularly conducted activity, if reliable.
    • 803(8): Public-records exception—with special limits in criminal cases on “matters observed by law-enforcement personnel” and “factual findings.”
    • The open question: whether 803(8)’s law-enforcement limits also bar admission of the same records through 803(6). This case says only that, on a forfeited record, it is not plain error to admit them under 803(6) in the Tenth Circuit.
  • Preservation–Forfeiture–Waiver:
    • Preservation: You fairly presented the specific legal theory to the district court and sought a ruling.
    • Forfeiture: You didn’t raise the theory below; you may still obtain review if you argue and meet the strict plain-error standard.
    • Waiver: You neither preserved the theory below nor argue plain error on appeal; the court will not review the issue.
  • § 3553(a)(6): Directs courts to avoid unwarranted sentence disparities among defendants with similar records and similar conduct. In ACA cases, the relevant “landscape” may include different state maximums; the court can still impose any sentence within the assimilated range if the record justifies it and federal policy supports it.

What This Case Does—and Does Not—Decide

  • Decides:
    • Specific 404(b)/403 theories (like “intent not disputed”) must be raised below to be preserved; general objections do not preserve more nuanced theories.
    • On a forfeited record, admitting BOP incident reports under Rule 803(6) is not plain error in the Tenth Circuit despite Rule 803(8)’s law-enforcement carveout.
    • A district court does not procedurally err under § 3553(a)(6) by acknowledging interstate differences, focusing on the defendant’s record, and explaining that any disparity is warranted.
  • Does Not Decide:
    • Whether, on a fully preserved record, Rule 803(8) categorically bars admission of law-enforcement reports via Rule 803(6) in criminal cases.
    • Whether ACA sentencing must empirically harmonize sentences across federal districts to account for divergent state maximums. The concurrence invites fuller development.

Practical Takeaways

  • Defense counsel:
    • When opposing prior-acts evidence, distinctly argue any “element-not-in-dispute” theory for both 404(b) relevance and 403 probative value.
    • Object under Rule 803(8) if law-enforcement reports are offered via Rule 803(6) and develop the record on the Rules’ interplay.
    • If the district court rules against you on an unpreserved theory, preserve on appeal by framing a plain-error argument.
  • Prosecutors:
    • Anchor prior-acts evidence in the “logic of improbability” and request limiting instructions to defuse 403 concerns.
    • For hearsay, build redundancy: live witnesses where feasible; articulate 803(6) foundations; be prepared to argue why 803(8)’s restrictions do not reach other exceptions.
  • District courts:
    • Make a clear record on each Huddleston factor and your Rule 403 balancing, including why evidence is not needlessly cumulative.
    • In ACA sentencing, explicitly address § 3553(a)(6) and articulate why any disparity is or is not warranted in the particular case.

Conclusion

United States v. Johnson crystallizes three practical and doctrinal points in the Tenth Circuit. First, evidentiary preservation is theory-specific: generalized objections do not preserve more nuanced 404(b)/403 arguments, and failure to argue plain error will often end appellate review. Second, the court held that it is not plain error to admit law-enforcement incident reports under Rule 803(6), because the Rules’ text and structure leave room for reasonable debate about the reach of Rule 803(8)’s law-enforcement carveout. Third, in ACA sentencing, § 3553(a)(6) is satisfied where the court recognizes interstate variation yet grounds its sentence in the defendant’s record and provides a cogent justification that any disparity is warranted.

The concurrence anticipates further development, especially in ACA sentencing, where nationwide uniformity and state-by-state variation sit in tension. For now, Johnson supplies a procedural roadmap for preserving evidentiary issues, a clear statement on the limits of plain-error relief in unsettled evidentiary terrain, and a reaffirmation that a district court’s reasoned, record-based explanation will carry the day under § 3553(a).

Case Details

Year: 2025
Court: Court of Appeals for the Tenth Circuit

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