United States District Court, D. South Dakota, Central Division
For Santana Drapeau, Defendant: Edward G. Albright, LEAD ATTORNEY, Federal Public Defender's Office, Pierre, SD.
For USA, Plaintiff: Meghan N. Dilges, LEAD ATTORNEY, U.S. Attorney's Office (Pierre, SD), Pierre, SD.
OPINION AND ORDER ON MOTIONS IN LIMINE
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.
Defendant Santana Drapeau faces charges in a three count indictment for assaults on the person alleged to be his domestic partner, Dondee St. John. Doc. 2. Count I charges Drapeau with having assaulted St. John on May 18, 2014, by having strangled or suffocated her, or having attempted to do so. Counts II and III
both allege that on May 18, 2014, Drapeau committed a domestic assault on St. John as an habitual offender having been convicted thrice previously in Crow Creek Sioux Tribal Court of offenses that would have been, if subject to federal jurisdiction, an assault against a spouse or intimate partner. The difference between Count II and Count III is the location of the alleged assaults, with Count II alleging an assault at a Grass Rope Road residence and Count III alleging an assault at a Gingway Housing residence in Fort Thompson, South Dakota. Doc. 2. Drapeau has pleaded not guilty.
Drapeau filed Defendant's Motion in Limine to Prohibit Specified Evidence. Doc. 25. Specifically, Drapeau seeks to have this Court exclude: (1) Prior domestic violence and other bad acts allegations or convictions; (2) No contest pleas and resulting judgments of convictions in tribal court; (3) Defendant's statements to Special Agent Tino Lopez; and (4) Evidence and testimony that Defendant broke out car windows. The Government resists the motion. This Court heard argument on the motion at a pretrial conference and motion hearing on October 6,2014, and now formalizes its ruling in this Opinion and Order. As with any ruling on a pretrial motion in limine, these rulings are preliminary and may be revisited outside the hearing of the jury at trial if testimony or evidence opens the door to excluded evidence or if circumstances arise justifying a different ruling.
The first two parts of the Defendant's Motion in Limine--seeking to prohibit evidence both of Drapeau's prior domestic violence and convictions and of Drapeau's no contest pleas and resulting tribal court convictions--are interrelated. Drapeau argues that, under Rule 410(a)(2) and Rule 803(22)(A), nolo contendere pleas and convictions thereon are inadmissible. Drapeau also argues that evidence of his prior bad acts is inadmissible under Rule 404 and under Rule 403.
If this Court were trying Drapeau only on Count I, those arguments might have merit. However, this Court is trying Drapeau on two charges that require the Government to prove prior convictions that would have been, if subject to federal jurisdiction, an assault against a spouse or intimate partner. Doc. 2; 18 U.S.C. § 117. The Government charges in the indictment that Drapeau committed and was convicted of three prior such crimes and has provided to this Court the Judgment of Conviction for each of those three convictions in Crow Creek Sioux Tribal Court.
Drapeau first pleaded " no contest" and was convicted in tribal court of " domestic abuse" on December 1, 2010, receiving a sentence that included " replace windshield" and " no violent contact w/victim" without listing a victim by name. Without a stipulation from Drapeau or further evidence concerning that offense, the Judgment of Conviction itself would be insufficient to qualify it as a predicate offense under 18 U.S.C. § 117, because it is unclear whether the " domestic abuse" was an assault and whether the unnamed victim qualifies as a spouse or intimate partner. Second, Drapeau pleaded " no contest" in tribal court to " D. Abuse" on January 9, 2012, and received a sentence that included " no violent contact w/Dondee St. John." 
Third, Drapeau pleaded " no contest" to one count of " Domestic Abuse"  in tribal court on September 18, 2012, and received a sentence including " [n]o contact with victim Dondee St. John." Again, without more evidence on what " domestic abuse" was committed or a stipulation, the Government has not proved the predicate conviction of an offense that would have been, if subject to federal jurisdiction, an assault against a spouse and intimate partner under 18 U.S.C. § 117. Some evidence would be required in each instance that the " domestic abuse" was in fact an assault and that the unnamed victim in the first ...