                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              No. 18-10446
          Plaintiff-Appellee,
                                        D.C. No.
             v.                   1:17-cr-00710-SOM-1

MATTHEW BERCKMANN,
      Defendant-Appellant.                 OPINION

      Appeal from the United States District Court
               for the District of Hawaii
      Susan O. Mollway, District Judge, Presiding

          Argued and Submitted July 8, 2020
                  Honolulu, Hawaii

                   Filed August 20, 2020

  Before: John B. Owens, Michelle T. Friedland, and
           Ryan D. Nelson, Circuit Judges.

                  Opinion by Judge Owens
2               UNITED STATES V. BERCKMANN

                          SUMMARY *


                          Criminal Law

    The panel affirmed a defendant’s convictions for
assaulting his wife with a dangerous weapon and assault of
a spouse by strangulation, both of which occurred on federal
land, in a case in which the defendant argued that evidence
from two other attacks on his wife was improper propensity
evidence admitted in violation of Fed. R. Evid. 404(a).

    The panel held that the district court did not abuse its
discretion by admitting the evidence pertaining to the other
attacks as non-propensity evidence. The panel wrote that
other acts of domestic violence involving the same victim
are textbook examples of evidence admissible under Fed. R.
Evid. 404(b), and that the evidence from the two other
attacks helped to show that the defendant in this case was not
joking around or simply trying to frighten his wife, but rather
intended to assault and strangle her. The panel held that
there was likewise no error under Fed. R. Evid. 403, given
that the evidence of the defendant’s other attacks were quite
probative of his intent in this case, and that the district court
on three occasions instructed the jury that these acts could
only be used for the limited purpose of deciding whether the
defendant had the state of mind, knowledge, or intent to
commit the crimes charged in the indictment.




    *
      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. BERCKMANN                            3

                            COUNSEL

Verna Wefald (argued),               Pasadena,      California,     for
Defendant-Appellant.

Michael F. Albanese (argued), Assistant United States
Attorney; Marion Percell, Chief of Appeals; Kenji M. Price,
United States Attorney; United States Attorney’s Office,
Honolulu, Hawaii; for Plaintiff-Appellee.


                             OPINION

OWENS, Circuit Judge:

    Matthew Berckmann appeals from his convictions for
assault with a dangerous weapon and assault of a spouse by
strangulation, both of which occurred on federal land. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm. 1

                       I. BACKGROUND

A. The Assault at Haleakala National Park in Maui

    At nearly 7,000 feet in elevation, Hosmer Grove
Campground in Haleakala National Park in Maui offers
breathtaking sunrises and sunsets, and unmatched views of
the stars. But on October 18, 2017, campers there witnessed
something that they surely would like to forget.

    After setting up a campsite with his wife, Berckmann
interrupted the otherwise idyllic vista when he started yelling
    1
      We resolve Berckmann’s arguments pertaining to the sufficiency
of the evidence, the effectiveness of counsel, and the reasonableness of
his sentence in a concurrently filed memorandum disposition.
4              UNITED STATES V. BERCKMANN

at her in an angry, aggressive voice to “get out of here, get
out of here.” As his wife began to walk away, Berckmann
approached her and yelled “let’s do this right now.” He then
pushed her to the ground. As she lay flat on her back,
Berckmann walked to a picnic table, grabbed a large kitchen
knife, and then returned to his wife, who remained on the
ground. Holding the knife, he straddled her waist and
continued to yell at her. He then leaned forward, positioned
his elbow on her shoulder and his wrist across her throat, and
lowered his face to her ear. Berckmann held her in that
position for several minutes before standing up and returning
to the picnic table. As his wife regained her composure and
walked back to the picnic table, Berckmann continued to yell
at her, all the while banging the knife on the table repeatedly.
He also yanked a glass beer bottle from his wife’s hand,
smashed it on the table, and pointed it at her. Berckmann
snatched a cigarette from his wife’s mouth and threw it on
the ground. Two campers witnessed the assault and called
911, but they did not intervene because they feared for their
own safety. A Park Ranger and Maui police officers
eventually arrived and arrested Berckmann.

B. Other Attacks by Berckmann Against His Wife

    This was not the only time that witnesses had seen
Berckmann attack his wife. In October 2016, a police officer
in New Jersey saw Berckmann punching his wife and heard
him yell “I’m going to fuckin’ kill you, you fuckin’ bitch.”
The officer later found her hiding in a closet, crying, with
her eye swollen and red marks and bruises on her body. And,
in December 2017—two months after the Hosmer
Campground assault—a crowd of people at a Waikiki beach
intervened to stop Berckmann after he picked his wife up by
the neck and flung her into a bench.
              UNITED STATES V. BERCKMANN                   5

C. Procedural History

    For his attack at the Hosmer Campground, an indictment
charged Berckmann with (1) assaulting his wife with a
dangerous weapon (the knife) in violation of 18 U.S.C.
§ 113(a)(3), and (2) assaulting his wife by attempting to
strangle her in violation of 18 U.S.C. § 113(a)(8).

    Berckmann moved pretrial to exclude evidence from the
New Jersey and Waikiki attacks, arguing that it would be
improper propensity evidence. The government responded
that these separate incidents were admissible under Federal
Rule of Evidence (“Rule”) 404(b) to prove Berckmann’s
intent to assault and attempt to strangle his wife at the
Hosmer Campground. After hearing extensive argument
from both sides, the district court agreed with the
government that the evidence could be admitted with a
limiting instruction to demonstrate Berckmann’s intent.

    At trial, defense counsel told the jury in opening
statement that Berckmann did not assault or attempt to
strangle his wife, and that his wife “smoked a cigarette, had
a drink, and she went back to the table and continued talking
with Mr. Berckmann as if nothing happened.” The jury
heard from the two eyewitnesses to the Hosmer Campground
assault, as well as from the law enforcement officers who
responded. It also heard from an eyewitness to the Waikiki
attack, and law enforcement officers who responded to the
New Jersey and Waikiki incidents. It returned a guilty
verdict as to both counts, and the district court sentenced
Berckmann to 41 months in prison.
6              UNITED STATES V. BERCKMANN

                      II. DISCUSSION

A. Standard of Review

   We review a district court’s admission of evidence under
Rules 403 and 404(b) for abuse of discretion. United States
v. Lozano, 623 F.3d 1055, 1059 (9th Cir. 2010) (Rule
404(b)); United States v. Martinez-Rodriguez, 472 F.3d
1087, 1091 (9th Cir. 2007) (Rule 403).

B. The Evidence Pertaining to the New Jersey and
   Waikiki Attacks was Properly Admitted

    Rule 404(a) bars admission of “[e]vidence of a person’s
character or a trait of character . . . for the purpose of proving
action in conformity therewith on a particular occasion.”
United States v. Bailey, 696 F.3d 794, 799 (9th Cir. 2012)
(citation omitted). However, Rule 404(b) makes an
exception to that general rule for prior act evidence that
proves “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident.” Rule 404(b) is “one of inclusion,” and evidence
of prior acts that “bears on other relevant issues [apart from
character traits]” is admissible. United States v. Cruz-
Garcia, 344 F.3d 951, 954 (9th Cir. 2003) (citation omitted).

   Prior “bad act” evidence may be admissible under Rule
404(b) if:

        (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                             7

United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002)
(citation omitted) (parentheticals added). The burden is on
the government to prove that the evidence satisfies these
requirements. United States v. Martin, 796 F.3d 1101, 1106
(9th Cir. 2015). Berckmann does not challenge the recency
or sufficiency prongs—only materiality and similarity.
Here, the materiality and similarity analyses are virtually
identical, so we examine them together.

    Other acts of domestic violence involving the same
victim are textbook examples of evidence admissible under
Rule 404(b), and courts have permitted this evidence under
a variety of theories. Some have explained that additional
assaults are admissible as a “critical part of the story” that
clarifies the motive behind the charged crimes. 2 Other
courts have allowed this evidence to illustrate the “history of
[the] relationship” between the defendant and victim, which
speaks to a defendant’s intent. 3 These cases say essentially
the same thing—prior (and subsequent) acts of violence
towards the identical victim can shed light on the mindset of
the defendant during the charged crime, such as whether
there was a grudge between the two, a desire for payback of
some sort, or that the defendant had the intent to exert control
over this particular victim through violence. See, e.g.,
United States v. Lewis, 780 F.2d 1140, 1142 (4th Cir. 1986)

     2
       See, e.g., United States v. Covington, 565 F.3d 1336, 1342–43
(11th Cir. 2009); see also United States v. Farish, 535 F.3d 815, 820 (8th
Cir. 2008) (prior domestic abuse evidence admissible to explain the
defendant’s motive to commit arson against a friend of the defendant’s
abused wife, who was sheltering the wife).
    3
      See, e.g., United States v. Johnson, 860 F.3d 1133, 1142 (8th Cir.
2017) (prior assault convictions admissible to “help explain the history”
between the victim and the defendant “from which [the defendant’s]
intent to commit violence upon [the victim] is derived”).
8                UNITED STATES V. BERCKMANN

(prior assault involving same victim admissible under Rule
404(b) as evidence of “[r]ising animosity” that “could easily
provide the motive for an assault”). 4

    Here, the district court ruled that evidence of these other
attacks was admissible as non-propensity evidence. The
evidence helped show that Berckmann was not joking
around or simply trying to frighten his wife, but rather
intended to assault and strangle her. Under our case law, that
ruling was not an abuse of discretion.

    In United States v. Hinton, the defendant was charged
with assault with the intent to commit murder. 31 F.3d 817,
819 (9th Cir. 1994). The government introduced evidence
of prior assaults to demonstrate that the defendant intended
to stab the victim, and not merely scare her. Id. at 822. We
held that “evidence of a prior incident involving the same
victim has ‘probative value in disproving claims that the
defendant lacked intent’” and upheld the admission of the
previous attacks. Id. (quoting United States v. Lewis,
837 F.2d 415, 419 (9th Cir. 1988)).


    4
      Courts also have permitted other acts of violence as evidence to
explain a victim’s reaction—or apparent non-reaction—after being
assaulted. See, e.g., United States v. Tsinnijinnie, 91 F.3d 1285, 1289
(9th Cir. 1996) (evidence of prior physical abuse admissible under Rule
404(b) to demonstrate how a victim “could be afraid enough to submit
to such actions quietly”); United States v. Faulls, 821 F.3d 502, 508–09
(4th Cir. 2016) (domestic violence admissible under Rule 404(b) to
explain the defendant’s “control and domination” over his victim, and to
explain why the victim remained with the defendant); United States v.
Plumman, 409 F.3d 919, 928 (8th Cir. 2005) (prior assaults admissible
under Rule 404(b) because the “physical assault evidence . . . provide[d]
a reason why [the victim] did not contact law enforcement”). Because
the government did not pursue this theory at trial or on appeal, we do not
analyze it here.
               UNITED STATES V. BERCKMANN                     9

    Hinton controls the outcome here. Both counts required
the government to prove that Berckmann intended to harm
his wife. Count 1, assault with a dangerous weapon,
mandated proof of an intent to cause bodily harm. See
18 U.S.C. § 113(a)(3); 9th Cir. Model Crim. Jury Instr. 8.7.
And while strangulation is a general intent crime, Count 2
also charged attempted strangulation, and attempt crimes
always require specific intent. See, e.g., United States v.
Gracidas-Ulibarry, 231 F.3d 1188, 1190 (9th. Cir. 2000) (en
banc) (“‘[A]ttempt’ is a term that at common law requires
proof that the defendant had the specific intent to commit the
underlying crime[.]”). Other courts agree. See, e.g., United
States v. Shillingstad, 632 F.3d 1031, 1035 (8th Cir. 2011)
(holding that prior assaults were admissible to prove intent
in assault with a dangerous weapon prosecution, and to
disprove accident theory); United States v. Rodriguez-
Berrios, 573 F.3d 55, 64 (1st Cir. 2009) (“The evidence of
appellant’s intentional physical harm of the victim in the past
had ‘special relevance’ because it was probative of his intent
to cause her harm at the time he seized her car.” (citation
omitted)). Berckmann contested intent at trial, making proof
of his intent from these other incidents fair game.

    Berckmann relies on United States v. Bettencourt and
United States v. San Martin to argue that the New Jersey and
Waikiki incidents were inadmissible propensity evidence.
Yet neither of these cases involved attacks on the same
victim, which is what distinguishes this case and which is
often a defining feature of domestic violence cases.

    Specifically, in Bettencourt, the defendant was charged
with interfering with a Secret Service Agent in the
performance of his official duties, and the trial court
admitted evidence that he was arrested for interfering with
different local officials at a different time. 614 F.2d 214, 215
10            UNITED STATES V. BERCKMANN

(9th Cir. 1980). Our court held that the admission was
erroneous, as the other incident shed very little light on the
defendant’s mindset towards the particular Secret Service
Agent and smacked of classic propensity: there was “no
rational connection between the two occurrences,” and the
testimony was only “slightly probative of Bettencourt’s
intent at the time of the alleged crime.” Id. at 217.

    The same was true in San Martin, where six FBI agents
attempted to arrest the defendant pursuant to a warrant.
505 F.2d 918, 920 (5th Cir. 1974). In an effort to evade
arrest, the defendant turned and struck one of the FBI agents
on the shoulder “with his arm or elbow.” Id. The defendant
was later charged with one count of willful and forcible
assault. Id. At trial, where the sole issue was whether the
defendant “intended to strike” the FBI agent, the government
presented evidence of the defendant’s three prior
misdemeanor convictions—one for resisting arrest, one for
opposing a public officer, and one for assault and battery.
Id. at 921. Not only did these prior convictions involve
entirely different victims, but they occurred nearly ten years
before the charged assault. Id. at 922. Again, these prior
convictions did not help the jury determine the defendant’s
mindset towards the FBI agent, other than to suggest that he
had the “disposition or character” to attack law enforcement
officers. Id. at 923.

    Simply put, Bettencourt and San Martin are examples of
classic character evidence. The other acts were not
introduced to help the jury understand the relationship
between the defendant and a particular victim, but rather to
characterize the defendant as someone who has a propensity
to be violent towards law enforcement.

    As we made clear in Hinton, neither of these decisions is
particularly relevant to cases like this one involving attacks
              UNITED STATES V. BERCKMANN                   11

on the same victim. See, e.g., Hinton, 31 F.3d at 822
(holding that the concerns outlined in Bettencourt and San
Martin were “inapplicable where . . . the charged and prior
conduct were part of a pattern of abuse involving the same
victim and . . . similar modus operandi”).

    Nor was there error under Rule 403, which permits
district courts to exclude relevant evidence if “its probative
value is substantially outweighed by the danger of unfair
prejudice.” United States v. Ramos-Atondo, 732 F.3d 1113,
1123 (9th Cir. 2013); see also Bailey, 696 F.3d at 799. As
discussed above, the evidence of Berckmann’s attacks on his
wife in New Jersey and Waikiki were quite probative of his
intent at Hosmer Campground, and probative evidence is
necessarily prejudicial to some degree. To the extent that
this evidence could have gone too far if not cabined, the
district court on three separate occasions instructed the jury
that these acts were not charged crimes and could only be
used for the “limited purpose of deciding whether the
defendant had the state of mind, knowledge, or intent to
commit the crimes charged in the indictment.” Considering
the particularly relevant nature of the incidents between
Berckmann and his wife, the district court did not abuse its
discretion in admitting this evidence over a Rule 403
objection. See, e.g., United States v. Thornhill, 940 F.3d
1114, 1123 (9th Cir. 2019) (highlighting the importance of
limiting instructions, and recognizing that “even where
evidence is highly prejudicial, it is not necessarily unfairly
prejudicial” (citation omitted)).

    Because the district court properly admitted the evidence
of the New Jersey and Waikiki attacks, we affirm.

   AFFIRMED.
