UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA,

v. Case No.: 3:20cr039/MCR

PAUL STEPHEN VALDEZ.

/

ORDER

This matter is before the Court on Defendant Paul Stephen Valdez’s first 

motion in limine to exclude evidence under Federal Rule of Evidence 404(b). See

ECF No. 56. Valdez seeks an order precluding the Government from introducing 

evidence that (1) he previously stole a combat helmet placed on the ground by 

another service member during a training exercise; and (2) he previously described

his plans to steal night-vision goggles and military explosive equipment from Camp 

Rudder on Eglin Air Force Base to other service members. On consideration, the 

motion is denied. 

Rule 404(b) prohibits the use of extrinsic evidence of a defendant’s prior 

crimes or other bad acts to show the defendant’s bad character or propensity to 

commit the charged crimes. United States v. Costa, 691 F.2d 1358, 1361 (11th Cir. 

1982). However, this kind of extrinsic act evidence is admissible for other purposes, 

such as to prove motive, intent, plan, knowledge, absence of mistake, or lack of

accident. See Fed. R. Evid. 404(b)(2). Evidence is admissible under Rule 404(b) 

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where: (1) it is relevant to an issue other than the defendant’s character; (2) sufficient 

evidence is presented that would allow a jury to find that the defendant committed 

the extrinsic act; and (3) its probative value is not substantially outweighed by the 

potential for undue prejudice. United States v. Ellisor, 522 F.3d 1255, 1267 (11th 

Cir. 2008). Importantly, Rule 404(b) is a “rule of inclusion” not exclusion; therefore, 

extrinsic act evidence should be admitted “unless it tends to prove only criminal 

propensity.” United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008). 

Valdez argues the extrinsic act evidence that he previously stole a combat 

helmet fails two of the criteria for admissibility under Rule 404(b). First, Valdez 

maintains this evidence is inadmissible because there is insufficient proof that he 

actually stole a helmet in the past. This argument fails. The Government may prove 

that a defendant actually committed an extrinsic act by “produc[ing] . . . enough 

evidence to present a jury question on the issue.” United States v. Chilcote, 724 F.2d 

1498, 1502 n.2 (11th Cir. 1984). A defendant’s “own statement, admitting that he 

committed the act, even if mere puffery, is sufficient to justify a jury finding that he 

committed the act.” Id. Here, according to the Government, several witnesses will 

testify at trial that Valdez admitted to stealing a Special Forces soldier’s combat 

helmet. Valdez’s own statements to these witnesses constitute sufficient proof that 

he actually stole a combat helmet for purposes of those statements’ admissibility 

under Rule 404(b).

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Second, Valdez maintains the evidence that he previously stole a combat 

helmet is not relevant to any issue other than his character. This argument also fails. 

Valdez is charged with one count of stealing Enhanced Small Arms Protective 

Inserts (“ESAPI”) from the government, which requires, inter alia, proof that Valdez

“knowingly and willfully” took the ESAPI “with the intent either temporarily or 

permanently to deprive [the government] of [its] use.” See United States v. McRee, 

7 F.3d 976, 980 (11th Cir. 1993). By pleading not guilty, Valdez has made his 

knowledge and intent “material issue[s]” that the government may prove by 

qualifying extrinsic act evidence, absent affirmative steps by him to remove 

knowledge and intent as issues. See United States v. Edouard, 485 F.3d 1324, 1345 

(11th Cir. 2007). There is no evidence or even argument that Valdez took any such 

steps. Thus, extrinsic act evidence that Valdez knowingly and willfully stole 

government property in the past—namely, a combat helmet—remains highly 

probative of his knowledge and intent with respect to the theft of government 

property at issue in this case, and it also bears on his motive, opportunity, preparation 

and planning in carrying out the charged offense. See, e.g., United States v. 

Beechum, 582 F.2d 898, 916 (5th Cir. 1978) (extrinsic act evidence that defendant 

previously possessed stolen credit cards with the intent to permanently deprive the 

owners of them was admissible to prove his intent in a subsequent trial for possessing 

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a stolen silver dollar).

1

 Because the evidence is relevant to issues other than 

Valdez’s character, it satisfies the Rule 404(b) standard for admissibility. 

Valdez also challenges the admissibility of evidence that he planned to steal

night-vision goggles and military explosive equipment from secure military 

locations, and that he shared those plans with other service members. He seems to 

argue that he was merely joking when he made those statements and that jokes of 

this nature were commonplace in Army culture. In his view, his statements are thus 

only minimally probative but have a high risk of unfairly prejudicing the jury; 

therefore, he believes the statements fail the third requirement for admissibility 

under Rule 404(b). This is incorrect. 

To begin with, the question of whether Valdez’s statements were serious or a 

joke goes to the weight of the evidence, not its admissibility. See Wright v. West, 

505 U.S. 277, 296 (1999) (stating that the jury “[a]s the trier of fact was entitled to 

disbelieve” testimony and “discount” it “as affirmative evidence of guilt”); United 

States v. Brown, 415 F.3d 1257, 1270 (11th Cir. 2005) (“Questions about the weight 

given to testimony . . . are for the factfinder.”). Regarding probative value, again, 

Valdez has put his intent and state of mind at issue in this case. See Edouard, 485 

F.3d at 1345. Thus, Valdez’s statements detailing his previous plan to steal military 

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the 

Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit rendered 

prior to October 1, 1981.

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equipment are highly relevant for the non-propensity purposes of showing his 

knowledge, intent, motive, opportunity, plan, and preparation in carrying out the 

similar theft of military equipment charged in this case. See United States v. Astling, 

733 F.2d 1446 (11th Cir. 1984) (evidence that defendants previously participated in 

a similar drug smuggling scheme admissible as evidence of intent, motive and 

similar plan in prosecution for drug smuggling scheme). There is little likelihood of 

the statements causing unfair prejudice—they are “not of a heinous nature, likely to 

incite the jury to an irrational decision,” see United States v. Mitchell, 666 F.2d 1385, 

1390 (11th Cir. 1982), nor will they be cumulative or otherwise confusing to the 

jury, United States v. Tunsil, 672 F.2d 879, 881 (11th Cir. 1982). Any potentially 

prejudicial effect from the admission of the statements may be mitigated by an 

appropriate cautionary instruction to the jury, which will be given, if requested. See 

United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir. 1993). The Court 

thus finds the probative value of this evidence is not outweighed by the risk of undue 

prejudice, and the evidence is relevant and admissible under Rule 404(b). 

Based on the foregoing, Defendant Paul Stephen Valdez’s First Motion in 

Limine, ECF No. 56, is DENIED.

DONE AND ORDERED, on this 28th day of October, 2020.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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