                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 05a0159p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                    X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                     -
                                                     -
                                                     -
                                                         No. 03-2485
          v.
                                                     ,
                                                      >
 SEVERO GARCIA-MEZA,                                 -
                           Defendant-Appellant. -
                                                    N
                      Appeal from the United States District Court
                  for the Western District of Michigan at Kalamazoo.
                   No. 02-00056—Richard A. Enslen, District Judge.
                                     Argued: January 28, 2005
                                Decided and Filed: April 5, 2005
           Before: BOGGS, Chief Judge; KENNEDY and MARTIN, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Christopher P. Yates, WILLEY, CHAMBERLAIN & YATES, Grand Rapids,
Michigan, for Appellant. Joan E. Meyer, UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellee. ON BRIEF: Christopher P. Yates, WILLEY, CHAMBERLAIN &
YATES, Grand Rapids, Michigan, for Appellant. Lloyd K. Meyer, UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
                                       _________________
                                           OPINION
                                       _________________
       KENNEDY, Circuit Judge. Defendant Severo Garcia-Meza was convicted of first degree
murder in violation of 18 U.S.C. § 1111(a) for the stabbing death of his wife, Kathleen Floyd Garcia,
who was a member of the Grand Traverse Band of Ottawa and Chippewa Indians. The murder
occurred within the jurisdiction of the Grand Traverse Band of Ottawa and Chippewa Indians near
Traverse City, Michigan.
       The Defendant appeals his conviction on the following grounds. First, he raises a number
of complaints concerning the introduction of Rule 404(b) “other-acts” evidence. Specifically, the
Defendant contends, the district court abused its discretion when it permitted the government to
introduce evidence that the Defendant assaulted his wife 5 months prior to the murder because it was
not offered for a proper purpose. Even if this evidence were offered for a proper purpose, the
Defendant continues, it should still not have been admitted since its prejudicial effect substantially
outweighed its probative value. He also asserts that his Sixth Amendment right “to be confronted

                                                  1
No. 03-2485           United States v. Garcia-Meza                                               Page 2


with the witnesses against him” was violated when the government introduced hearsay evidence of
the assault by having the officers who investigated the assault testify to what Kathleen told them,
namely, that the Defendant had beaten her up because he was angry that she had been talking to a
former boyfriend. Next, the Defendant asserts, the district court erred in defining premeditation for
first degree murder in the jury instructions by conflating the elements of premeditation and malice
aforethought. Finally, the Defendant contends, the government’s counsel committed misconduct
in closing rebuttal argument because his use of examples to distinguish first from second degree
murder led the jury to an incorrect concept of premeditation. For the following reasons, we
AFFIRM the Defendant’s conviction.
                                          BACKGROUND
       Defendant Garcia-Meza, a Mexican citizen who worked in an orchard as a fruit picker,
married Kathleen Floyd, who was a member of the Grand Traverse Band of Ottawa and Chippewa
Indians (the GTB). Although they initially lived together on the GTB reservation, by the time of
the murder, Kathleen no longer lived in the same house with the Defendant, but rather stayed next
door in the home of her mother, Linda Holt. Nonetheless, Kathleen remained married to the
Defendant and associated with him.
         Around 1:00 a.m. on February 22, 2002, the Defendant, Kathleen, and two of Kathleen’s
female family members, Chelsie and Rosie Johnson, went to Gaspar Nunez’s home, who was a
friend of the Defendant’s. That evening, the Defendant awakened Mr. Nunez and Antonio
Rodriguez, a Mexican migrant laborer living with Mr. Nunez, and brought beer into Nunez’s home.
The group drank beer, listened to music, and danced for about two-and-a-half hours before Kathleen
and the Defendant began to fight after Kathleen had danced with Antonio Rodriguez. The
Defendant became angry with Kathleen, grabbed her by the hair, called her a bitch, and wrestled her
to the floor. Although the Defendant punched his wife first, Kathleen managed to flip him over onto
his back and bloodied his lip. Mr. Nunez then asked everyone to leave. Kathleen, with Chelsie and
Rosie, left the Defendant and drove back to Linda Holt’s house. A few minutes later, the Defendant
left Nunez’s home and walked back to the reservation alone.
        When Kathleen and her family members arrived back at Linda Holt’s house, Kathleen and
her sister went to Linda’s bedroom. There she found her mother and her other sister, Calleen. While
in the bedroom, the four of them engaged in conversation. Meanwhile, after walking back from
Nunez’s home, the Defendant burst through the front door of Linda’s house with enough force that
the door slammed against the living room wall, waking Calleen’s boyfriend, Josh King, who had
been sleeping in the living room. King testified that the Defendant went straight to Linda Holt’s
bedroom where the women were talking. When the Defendant appeared near Linda Holt’s bedroom
door, he tried to lure Kathleen out of the house. But when she refused, the Defendant grabbed one
of her arms with one hand and reached back with his other hand holding a kitchen steak-knife and
plunged it into Kathleen’s chest. The Defendant was apprehended at the scene.
        Five months prior to the murder, the Defendant had assaulted his wife. On the morning of
September 9, 2001, the Defendant complained to police that Kathleen had intentionally damaged
their van. When officers responded to the complaint, they found Kathleen about to slash the tires
of the van, which had had all its windows smashed out. Upon approaching Kathleen, the officers
noticed that she had a bruised cheek and jaw. Kathleen told the officers that the Defendant had hit
her. Later in the same day, tribal police officers received a call about an assault at a residence in the
Grand Traverse Band trust properties. When the officers arrived, they found Kathleen very upset,
in pain, frantic, and scared. The officers testified that she had a tennis ball size welt on her jaw,
numerous cuts and bruises on her face and leg, blood on her clothes, and complained of pain in her
face, back and ribs. Kathleen told the officers that the Defendant cornered her in a bathroom,
No. 03-2485           United States v. Garcia-Meza                                               Page 3


repeatedly punched her and threatened to kill her. She told the officers that the Defendant had
beaten her because she had talked to a former boyfriend earlier in the day.
        During the trial, the district court permitted the government to introduce evidence of this
assault to show proof of motive, intent, and capacity to commit murder. After every time evidence
relating to this assault was admitted, the district court gave a cautionary instruction to the jury, such
as the following:
        “[T]he testimony you heard about the event that occurred in September was not
        offered to prove that the defendant was guilty of any crime in September, nor was
        it offered to prove that he has a character such as he commits assaults. Instead, it
        was offered under Rule 404(b), which says: Evidence of other crimes, wrongs or
        acts is not admissible to prove the character of a person in order to show that he
        acted in conformity with his character. It may, however, be admissible, and this is
        why I let it in, for other purposes, such as proof of motive, opportunity, intent,
        preparation, plan, knowledge, identity or absence of mistake or accident. That’s why
        it came in and for that limited purpose alone.”
         During the trial, the Defendant argued not that he was not responsible for Kathleen’s death
(indeed, he admitted he was responsible), but rather that he was not guilty of first degree murder
since he was too intoxicated on the night of the murder to have formed the premeditation necessary
to find him guilty of murder in the first degree. The jury, nonetheless, found the Defendant guilty
of first degree murder. This appeal followed.
                                             ANALYSIS
I.      Rule 404(b) Evidence
A.      Whether evidence of the prior assault was offered for a proper purpose
        The Defendant argues that the district court abused its discretion when it permitted the
government to introduce evidence that the Defendant assaulted his wife five months prior to when
he murdered her because it was not offered for any proper purpose. We review a district court’s
determination as to whether evidence of “other acts” is presented for a proper purpose for abuse of
discretion. United States v. Stevens, 303 F.3d 711, 716 (6th Cir. 2002).
         Rule 404(b) prohibits evidence of other crimes, wrongs, or acts to be introduced to prove the
character of a person in order to show conformity therewith. That is, the government could not
introduce evidence that the Defendant assaulted his wife 5 months prior to the murder to prove that
he has a bad character and was therefore more likely to have committed the murder in first degree.
However, evidence of prior crimes or wrongs may be introduced for proper purposes, and the district
court found that the evidence of the prior assault was properly offered to show proof of motive,
intent, and capacity to commit murder. Since we conclude that the evidence was properly admitted
to prove motive, which alone is sufficient to permit the introduction of the evidence, we need not
consider whether it was also properly admitted to prove intent and capacity to commit murder. The
assault went to prove motive since the government offered evidence to show that the assault, like
the murder, was a product of the Defendant’s jealousy. The officers who investigated the assault
testified that Kathleen told them that he had beaten her up because she had talked with a former
boyfriend earlier that day. The government also offered proof showing that the fight between the
Defendant and Kathleen at Gaspar Nunez’s home on the night of the murder occurred because the
Defendant was angry with Kathleen for dancing with another man. The Defendant argues that the
evidence of the assault could not have been used to prove motive since the reason he assaulted his
wife was that she damaged the van he drove, and not because he was jealous. Although it is
certainly possible that the Defendant’s motive for the earlier assault was based, at least in part, upon
No. 03-2485               United States v. Garcia-Meza                                                           Page 4


the fact that she had damaged their van, this does not establish that he was not also motivated to
assault her by the fact that she had spoken with a former boyfriend earlier that day. Nor does the
Defendant’s description explain why Kathleen appeared injured while she was in the process of
damaging the van. We cannot conclude that the district court abused its discretion in finding that
the evidence of the assault could be admitted to show motive.
B.       Whether the prejudicial effect of the Rule 404(b) evidence substantially outweighed its
         probative value
         The Defendant next argues that, even if the evidence of the prior assault were offered for a
proper purpose, the evidence should still have been excluded because its prejudicial effect
substantially outweighed its probative value. Rule 403 authorizes exclusion of otherwise admissible
Rule 404(b) evidence if its probative value is substantially outweighed by the danger of unfair
prejudice. The district court found that although the evidence of the assault may cause some
prejudice, “the prejudice is greatly outweighed by its relevance.” The Defendant argues, citing
United States v. Hands, 184 F.3d 1322 (11th Cir. 1999), that the district court abused its discretion
in reaching this conclusion since evidence of “spousal abuse” is particularly likely to incite a jury
to an irrational decision,” especially where “[t]he domestic violence evidence . . . [is] graphic and
arresting.” Hands, 184 F.3d at 1328-29 (internal quotations omitted). Although the Hands court
found that the prejudicial effect of the domestic violence evidence offered against the defendant in
a drug possession case “heavily outweighed its probative value,” it reached this conclusion because
the evidence of the spousal abuse had minimal probative value, if any. Id. at 1328. Therefore, on
balance, the prejudicial effect of the spousal abuse evidence outweighed its probative value.
Moreover, the court noted, the district court did not minimize this prejudicial effect by giving the
jury a cautionary instruction concerning the purposes for which the “other-acts” evidence could be
used. Id. at 1329.
        In contrast, the evidence of the assault admitted against the Defendant here did have
probative value, as it was offered to show, at the very least, motive. Although all prior wrongful acts
admitted against a defendant may have some prejudicial effect, we cannot conclude that district
court abused its discretion in concluding that the prejudicial effect of admitting the evidence of the
assault was substantially outweighed by its probative value where the evidence1 was admitted for a
proper purpose and the district court gave a cautionary instruction to the jury.
C.       Whether the hearsay evidence offered to prove the prior assault violated the Defendant’s
         Sixth Amendment right to be confronted with the witnesses against him
         The Defendant next argues that his Sixth Amendment right to confrontation was violated
when the government introduced hearsay evidence of the assault by having the investigating officers
testify to what his wife told them had happened, namely, that the Defendant had beaten her up
because he was angry that she had been talking to a former boyfriend. He argues that the admission
of these statements, even though they were excited utterances made minutes after the assault,
violated his right to confrontation because, he asserts, the statements were testimonial, as they were

         1
            The Defendant agues that the district court gave an improper cautionary instruction when, after it informed
the jury that the assault evidence was “not admissible to prove the character of [the defendant] in order to show that he
acted in conformity with his character,” it then listed all the proper purposes for which the evidence could be admissible
under Rule 404(b). The Defendant complains that this “laundry list” limiting instruction did not adequately advise the
jury of the limited purposes for which the evidence was admitted. Since the Defendant did not object to this instruction
at trial, we review for plain error. Although the evidence was not admissible for all the proper purposes listed in Rule
404(b), it was certainly admissible to show motive. “Where a single, legitimate purpose supports the admission of the
evidence under Rule 404(b), a trial court’s admission of that evidence for additional reasons allowed under the rule does
not constitute plain error.” Stevens, 303 F.3d at 716. We conclude that the district court did not commit plain error in
listing all the proper purposes for which the “other-acts” evidence could be admitted in the cautionary instruction.
No. 03-2485               United States v. Garcia-Meza                                                           Page 5


given to a police officer in the course of the officer’s investigation, and because the Defendant did
not have a prior opportunity to cross-examine the declarant.2
         The Supreme Court recently held in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,
1365 (2004), that it is a violation of the Confrontation Clause to admit “testimonial statements of
a witness who did not appear at trial unless [the witness] was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.” Id. (overruling Ohio v. Roberts, 488
U.S. 56, 66 (1980), which had held that statements from an unavailable witness may be admitted at
trial without violating the Confrontation Clause if the statements bore adequate indicia of reliability).
The Defendant argues that Kathleen’s statements concerning the assault were testimonial because
they were given to police officers while investigating a crime. The government, on the other hand,
argues that the statements were not testimonial since they were excited utterances that were not
elicited from structured police questioning and bore no resemblance to the formalized examinations
conducted in early English law. We need not decide today, however, whether a victim’s excited
utterance made to an investigating police officer is testimonial, for the Defendant has forfeited his
right to confront Kathleen because his wrongdoing is responsible for her unavailability. See
Crawford, 541 U.S. 36, 124 S. Ct. at 1370 (“[T]he rule of forfeiture by wrongdoing (which we
accept) extinguishes confrontation claims on essentially equitable grounds”); Reynolds v. United
States, 98 U.S. 145, 158-59 (1879) (“The Constitution gives the accused the right to a trial at which
he should be confronted with the witnesses against him; but if a witness is absent by his own
wrongful procurement, he cannot complain if competent evidence is admitted to supply the place
of that which he has kept away. . . . The rule has its foundation in the maxim that no one shall be
permitted to take advantage of his own wrong.”). See also United States v. Cromer, 389 F.3d 662,
679 (6th Cir. 2004) (noting that if “the witness is only unavailable to testify because the defendant
has killed or intimidated her, then the defendant has forfeited his right to confront that witness.”).
As noted above, in this case, defendant admitted that he killed Kathleen, thereby procuring her
unavailability to testify. The dispute at trial concerned not whether he was the one to stab her, but
whether he acted with premeditation to support a conviction of first degree murder. Under these
circumstances, there is no doubt that the Defendant is responsible for Kathleen’s unavailability.
Accordingly, he has forfeited his right to confront her.
        The Defendant, however, argues that for the rule of forfeiture to apply, a defendant must
have killed or otherwise prevented the witness from testifying with the specific intent to prevent her
from testifying. Since he did not kill her with the specific intent to prevent her from testifying, the
Defendant argues, he should not be found to have forfeited his right to confront her. There is no
requirement that a defendant who prevents a witness from testifying against him through his own
wrongdoing only forfeits his right to confront the witness where, in procuring the witness’s
unavailability, he intended to prevent the witness from testifying. Though the Federal Rules of
Evidence may contain such a requirement, see Fed. R. Evid. 804(b)(6), the right secured by the Sixth
Amendment does not depend on, in the recent words of the Supreme Court, “the vagaries of the
Rules of Evidence.” Crawford, 124 S. Ct. at 1370. The Supreme Court’s recent affirmation of the
“essentially equitable grounds” for the rule of forfeiture strongly suggests that the rule’s
applicability does not hinge on the wrongdoer’s motive. The Defendant, regardless of whether he
intended to prevent the witness from testifying against him or not, would benefit through his own
wrongdoing if such a witness’s statements could not be used against him, which the rule of
forfeiture, based on principles of equity, does not permit.



         2
           The Defendant’s brief argued that the introduction of Kathleen’s statements regarding the assault not only
violated his right to confrontation, but also that her statements were inadmissible hearsay since they did not fall within
the excited utterance exception. During oral argument, however, the Defendant’s counsel conceded that the statements
were excited utterances.
No. 03-2485           United States v. Garcia-Meza                                               Page 6


II.    Whether the district court erred in defining premeditation for first degree murder
       Before closing argument, the district court instructed the jury with respect to first and second
degree murder. It informed the jury that in order for the government to sustain its first degree
murder charge, it must prove six elements beyond a reasonable doubt:
       First, that the defendant unlawfully killed Kathleen Floyd Garcia. Second, that the
       Defendant killed Kathleen Floyd Garcia with malice aforethought. Third, that the
       killing of Kathleen Floyd Garcia was premeditated by the Defendant. Fourth, that
       Kathleen Floyd Garcia was an Indian, already proven. Fifth, that the Defendant was
       not an Indian, also proven. Sixth, that the Defendant killed Kathleen Floyd Garcia
       within Indian Country.
The district court then went on to define malice aforethought and premeditation to the jury:
       To kill with malice aforethought means with respect to first degree murder, to kill a
       person deliberately and intentionally. To find malice aforethought, you need [not]
       be convinced that the defendant hated the person killed, or felt ill will toward the
       victim at that time.
       In determining whether the killing was with malice aforethought, you may consider
       the use of a weapon or instrument and you may consider the manner in which the
       death was caused.
       A killing is premeditated when it is the result of planning and deliberation. The
       amount of time needed for premeditation of a killing depends on the person and the
       circumstances. It must be long enough for the killer, after forming the intent to kill,
       to be fully conscious of that intent. You should consider all the facts and
       circumstances preceding, surrounding, and following the killing, which tend to shed
       light upon the condition of the mind of the Defendant, before and at the time of the
       killing. No fact, not matter how small, no circumstance, no matter how trivial, which
       bears on the question of malice aforethought and premeditation, should escape your
       very careful consideration.
After finishing defining first degree murder, the district court then instructed the jury as to second
degree murder. The district court laid out the five elements that the government needed to prove to
sustain a second degree murder conviction, which consists of all the elements of first degree murder
except premeditation. The court then went on to define malice aforethought with respect to second
degree murder:
       To kill with malice aforethought means, with respect to second degree murder either
       killing another person deliberately and intentionally or to act with a callous and
       wanton disregard for human life. A callous and wanton disregard means
       recklessness, evidencing an extreme disregard for human life. To find malice
       aforethought, you need not be convinced that the defendant hated the person or felt
       ill will toward the victim at the time.
       The Defendant argues that since the district court instructed the jury to consider every fact
and circumstance “which bears upon the question of malice aforethought and premeditation,” it
conflated those two separate elements, thereby leading the jurors to conclude that proof of malice-
aforethought constituted proof of premeditation as well. Because first degree murder requires proof
of premeditation beyond malice aforethought, the Defendant continues, the district court erred in
providing the jurors with an instruction that presented premeditation and malice aforethought as
interchangeable concepts.
No. 03-2485            United States v. Garcia-Meza                                                Page 7


        We will reverse a judgment on the basis of an erroneous jury instruction only when the
instruction, viewed as a whole, was confusing, misleading, or prejudicial. United States v. Sheffrey,
57 F.3d 1419, 1430 (6th Cir. 1995). The Defendant’s sole complaint is that the court instructed the
jury to consider all the facts and circumstances that bore upon the question of malice aforethought
and premeditation, rather than upon the questions of malice aforethought and premeditation (or,
upon the question of malice aforethought and the question of premeditation). However, in view of
the fact that the district court distinguished the distinct, separate elements of malice aforethought
and premeditation, as used in first degree murder, and did not list premeditation as an element of
second degree murder, we conclude that no reasonable juror would have been confused as to
whether premeditation and malice aforethought were separate and distinct elements to be proven.
III.    Whether the government’s counsel’s rebuttal closing argument led the jury to an incorrect
        concept of premeditation
       During the Defendant’s closing argument, his counsel argued that the government could not
prove how the knife that he used to kill his wife got into his hands. He asserted that the knife came
from within Linda Holt’s residence and that the killing was done, therefore, in the heat of the
moment with no opportunity for any planning. In his rebuttal closing argument, the Assistant U.S.
Attorney responded as follows:
        Let’s just say there was a knife sitting on Linda Holt’s bed stand, and let’s say the
        testimony had been that the defendant . . . calmly said: “Come with me, let’s go
        outside, I want to talk to you outside. I’m going to Mexico.” She said: “No, I don’t
        want to out there with you.” And then the defendant picked up the knife and . . .
        plunged it into her right there. That’s premeditation. There is no . . . magic number
        as to how long you have to form that premeditation, how long you have to plan it,
        just that intent to pick up that knife and plunge it into someone’s heart, that’s first
        degree murder.
At this point, the defendant objected on the grounds that the Assistant U.S. Attorney
mischaracterized the elements of the offense. The district court then instructed the jury that the
“elements of the offense will be what I say.” The Assistant U.S. Attorney then went on to
distinguish second degree murder from first degree. He noted that second-degree consists of a
callous and wanton disregard for human life. He then went on to give the following example:
        [I]f two men are in a bar drinking, [a] fight breaks out, . . . one of them picks up a
        chair and smashes it over the head of another killing him, that’s sort of that
        recklessness [or] wanton disregard. . . . But that set of facts is different than taking
        a knife. . . . Plunging a knife . . . into someone’s heart [is] not recklessness. That’s
        an intent to murder. That’s a premeditated intent to kill that person.
        The Defendant argues that these comments by the Assistant U.S. Attorney dispensed with
the concept of prior design, thereby leading the jury to believe that the intent to kill is sufficient, in
and of itself, to establish premeditation. Thus, the Defendant maintains, these comments improperly
expanded the scope of premeditation to include all intentional killings. The Defendant argues that
reversal is warranted because his defense was based on lack of premeditation, and thus a proper
understanding of the distinction between first and second degree murder was essential for the jurors’
deliberation.
       We employ a two-part test in reviewing claims of prosecutorial misconduct based upon
improper statements. United States v. Galloway, 316 F.3d 624, 632 (6th Cir. 2003). First, we
determine whether the remarks were improper. Id. Second, if we find any statements to have been
improper, we determine whether they were so flagrant as to warrant reversal. Id. In considering
No. 03-2485          United States v. Garcia-Meza                                           Page 8


whether statements are so flagrant to warrant reversal, we apply the following factors: 1) whether
the statements tended to mislead the jury and prejudice the defendant; 2) whether the statements
were isolated or pervasive; 3) whether the statements were deliberately placed before the jury; and
4) whether the evidence against the defendant was strong. Id.
        The Assistant U.S. Attorney’s statements were not improper. Rather, he simply made the
point that premeditation does not require extensive planning; the Defendant could have formed the
intent to murder at any time. In any event, even if they were improper, they were clearly not
flagrant. Not only was the evidence against the Defendant strong and the alleged improper
statements isolated, but also the district court cured any arguable impropriety by variously
admonishing the jurors that what the lawyers said was not the law and that they should only listen
to the court’s instructions regarding the distinction between first and second degree murder.
IV.    For the foregoing reasons, we AFFIRM the Defendant’s conviction.
