                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-3890
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  Santana Drapeau

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of South Dakota - Pierre
                                  ____________

                          Submitted: December 14, 2015
                              Filed: July 1, 2016
                                 ____________

Before WOLLMAN, LOKEN, and BYE, Circuit Judges.1
                         ____________

WOLLMAN, Circuit Judge.

     Santana Drapeau was convicted of one count of assault and two counts of
domestic assault by a habitual offender, in violation of 18 U.S.C. § 117. He argues



      1
       This opinion is being filed by Judge Wollman and Judge Loken pursuant to
8th Cir. Rule 47E.
that the district court2 improperly admitted testimony by his then girlfriend, Dondee
St. John, about the facts underlying Drapeau’s three prior tribal-court convictions for
domestic abuse. He further argues that his uncounseled prior convictions in tribal
court cannot serve as predicate offenses under § 117. We affirm.

                                          I.

       On the night of May 17, 2014, Drapeau attended a party with his sister, Tessa
Bad Moccasin; St. John; and several others. At one point in the evening, Drapeau
approached St. John and demanded that she leave the party with him. When she
refused, he struck her on the side of her face, knocking her to the ground. Drapeau
then left the party with Bad Moccasin.

      Some time later, St. John returned to the house that she shared with Drapeau
and fell asleep on the couch. Later, Drapeau, Bad Moccasin, and Drapeau’s father
arrived at the house. Drapeau awakened St. John, and the two went into their
bedroom, where they argued and Drapeau once again assaulted St. John.

       Early the following morning, St. John left the house and walked across the
street to the house in which her mother, Shelly Taylor, was living. At St. John’s
request, Taylor called the police and was thereafter informed by St. John that Drapeau
had choked her. Taylor walked across the street, woke up Drapeau, and told him that
the police were on the way. Taylor then left the house, followed closely by Drapeau,
who proceeded to strike the windshield and most of the windows of St. John’s car
with a baseball bat, damaging the windshield and shattering the windows. Drapeau
then drove away in Bad Moccasin’s car and was later arrested.



      2
       The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota.

                                         -2-
       Drapeau filed a motion in limine that sought to exclude testimony by St. John
regarding Drapeau’s prior tribal-court convictions for domestic abuse in which St.
John was the victim. The motion argued that St. John’s testimony would constitute
inadmissible evidence of prior bad acts, that her testimony would be irrelevant, and
that the risk of unfair prejudice from that testimony would outweigh its probative
value. The motion also sought to exclude the judgments from his tribal-court
convictions, in which he had pleaded no contest. The district court denied the
motion. Prior to St. John’s testimony about Drapeau’s prior domestic-abuse
convictions, and without any objection from Drapeau, the district court issued a
limiting instruction to the jury:

            Ladies and gentlemen of the jury, you are about to hear testimony,
      the Court anticipates, about an alleged assault that occurred on a
      previous occasion by this Defendant. He is not on trial for that assault,
      and you cannot take into consideration the prior assault as evidence that
      he did anything wrong on May 18, 2014; that is, this is not evidence of
      any character or habit or bad acts or traits.

             This is simply being received as evidence that there is a predicate
      offense; that is, that there is a previous conviction of an offense
      that—and you need to find this as part of the elements—that if it had
      been subject to federal jurisdiction would be an assault against a spouse
      or intimate partner. And that’s the limited purpose for which the Court
      is receiving this evidence.

St. John then proceeded to describe three prior occasions on which Drapeau had
abused her. She first testified that in 2010, while she and Drapeau were living
together, he broke a window at her mother’s house and “pulled [her] around by [her]
hair.” She next testified that in January 2012, while she and Drapeau were living
together with their child, Drapeau “beat [her] up” and hit her in the face. Finally, she
testified that in September 2012, Drapeau threatened her and broke the windows of
their home with a shovel.


                                          -3-
      The jury returned a verdict of not guilty on the charge of assault by
strangulation, but found Drapeau guilty of the lesser-included offense of assault. The
jury also found Drapeau guilty of both counts of domestic abuse by a habitual
offender. The district court sentenced Drapeau to 41 months’ imprisonment.
Drapeau argues on appeal that the district court erred in admitting St. John’s
testimony about the facts underlying his prior convictions, as well as in admitting
evidence regarding his uncounseled tribal-court convictions.

                                          II.

       We review a district court’s admission of objected-to evidence for abuse of
discretion. United States v. Whitetail, 956 F.2d 857, 861 (8th Cir. 1992). We will
reverse the district court’s decision “only when an improper evidentiary ruling affects
the substantial rights of the defendant, or the error had more than a slight influence
on the verdict.” United States v. Thomas, 791 F.3d 889, 895 (8th Cir. 2015) (quoting
Finan v. Good Earth Tools, Inc., 565 F.3d 1076, 1080 (8th Cir. 2009)). Drapeau
argues that because St. John’s testimony about the facts underlying his prior
convictions for domestic abuse was irrelevant and highly prejudicial, it was admitted
in violation of Federal Rules of Evidence 402 and 403.

      Drapeau argues first that the district court’s conclusion that St. John’s
testimony was relevant stemmed from the court’s erroneous belief that Drapeau’s
conduct, rather than the elements of the domestic-abuse offense alone, was admissible
to show that the prior convictions constituted assaults under federal law. The statute
provides:

      Any person who commits a domestic assault within . . . Indian country
      and who has a final conviction on at least 2 separate prior occasions in
      Federal, State, or Indian tribal court proceedings for offenses that would
      be, if subject to Federal jurisdiction[,] . . . any assault . . . against a


                                         -4-
      spouse or intimate partner . . . shall be fined under this title, imprisoned
      for a term of not more than 5 years, or both . . . .

18 U.S.C. § 117. Accordingly, the government was required to prove beyond a
reasonable doubt (1) that Drapeau had at least two prior convictions, (2) that the prior
convictions were for offenses that would be considered “any assault” under federal
law, and (3) that the convictions were for offenses committed against a spouse or
intimate partner. Even if we were to accept Drapeau’s argument that the elements of
the crimes to which he had pleaded guilty would by themselves have been sufficient
to prove that his prior convictions qualified as assaults, St. John’s testimony was
nonetheless relevant to prove that the convictions had occurred—the first
element—and that she was a “spouse or intimate partner”—the third element. 18
U.S.C. § 117; cf. Old Chief v. United States, 519 U.S. 172, 178-79 (1997) (“If, then,
relevant evidence is inadmissible in the presence of other evidence related to it, its
exclusion must rest not on the ground that the other evidence has rendered it
‘irrelevant,’ but on its character as unfairly prejudicial, cumulative or the like, its
relevance notwithstanding.”). Thus, regardless of whether St. John’s testimony was
relevant to prove that his prior crimes constituted “any assault” under § 117, it was
admissible for other purposes.3




      3
       It is unnecessary for us to reach the merits of Drapeau’s argument that the
elements of his prior conviction, rather than his underlying conduct, can be used to
prove that his prior convictions constituted assaults under federal law. With respect
to Drapeau’s Rule 402 irrelevancy objection, which he properly preserved, St. John’s
testimony was relevant and thus admissible. Drapeau did not otherwise preserve his
elements/underlying-conduct argument, and so plain error review applies. Fed. R.
Crim. P. 52(b). Even if it could be said that the district court committed error by
permitting the government to present evidence of Drapeau’s conduct rather than
limiting it to the elements of the crimes Drapeau had been convicted of, the error was
not “plain.” See United States v. Olano, 507 U.S. 725, 734 (1993) (discussing the
plain error rule).

                                          -5-
       Drapeau also contends that St. John’s testimony was irrelevant because the
court, not the jury, was responsible for deciding whether the domestic-abuse
convictions qualified as predicate crimes. Because it is raised for the first time on
appeal, we review this contention for plain error only. The government is required
to prove “each element of a crime . . . to the jury beyond a reasonable doubt,” Alleyne
v. United States, 133 S. Ct. 2151, 2156 (2013), and thus we cannot say that it was
error of any kind, and certainly not plain error, to admit St. John’s testimony for the
purpose of proving the predicate crimes.

       Drapeau next argues that even if relevant, the probative value of St. John’s
testimony was substantially outweighed by its prejudicial effect. Fed. R. Evid. 403.
Relying on Old Chief v. United States, Drapeau asserts that the district court abused
its discretion in admitting the details of his prior offenses. In Old Chief, the
defendant was charged with possession of a firearm by someone with a prior felony
conviction in violation of 18 U.S.C. § 922(g)(1). 519 U.S. at 174-75. The Court
reaffirmed the accepted rule that “the prosecution is entitled to prove its case by
evidence of its own choice,” but it held that, although the evidence was relevant, the
district court had abused its discretion by admitting the record of the defendant’s prior
conviction of assault resulting in serious bodily injury to prove the prior-conviction
element in the face of the defendant’s offer to stipulate to that element. Id. at 189,
191-92. We have repeatedly emphasized the narrowness of the Court’s holding in
Old Chief, see, e.g., United States. v. Jandreau, 611 F.3d 922, 924 (8th Cir. 2010)
(limiting the Court’s holding to evidence of prior convictions), and whatever the
result might have been had he done so, Drapeau did not offer to stipulate that his prior
convictions constituted predicate offenses. Moreover, any prejudicial effect that St.
John’s testimony might have had on the jury was mitigated by the district court’s
several-times-repeated curative instruction. Accordingly, we conclude that the
district court did not abuse its discretion by admitting St. John’s testimony.




                                          -6-
        Drapeau finally argues that two of his three prior convictions cannot serve as
predicate crimes under 18 U.S.C. § 117 because although indigent, he was not
afforded his Sixth Amendment right to counsel. The Supreme Court recently decided
this issue adversely to Drapeau, holding that because the Sixth Amendment right to
counsel does not apply in tribal-court proceedings, the “use of [validly obtained
tribal-court] convictions as predicate offenses in a § 117(a) prosecution does not
violate the Constitution.” United States v. Bryant, No. 15-420, 2016 WL 3221519,
at *12 (U.S. June 13, 2016).

                                         III.

      The judgment is affirmed.
                     ______________________________




                                         -7-
