NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

 v.

GARRETT DEAN DOOR, Sr., 

Defendant-Appellant.

No. 15-30159

D.C. No.

1:14-cr-00056-SPW-1

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Susan P. Watters, District Judge, Presiding

Submitted October 7, 2016**

Portland, Oregon

Before: O'SCANNLAIN, CLIFTON, and NGUYEN, Circuit Judges.

Garrett Dean Door, Sr., appeals his convictions following a jury trial. At 

trial, the government offered evidence from seven witnesses, including the victim 

Jane Doe and M.H., the survivor of a 2009 misdemeanor sexual assault to which 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes that this case is suitable for 

decision without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

OCT 19 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Door pled nolo contendere.

1

 Door argues that M.H.’s testimony about the 2009 

sexual assault should not have been admitted under Federal Rules of Evidence 413 

and 403. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

We review de novo both the district court’s interpretation of the Federal 

Rules of Evidence, United States v. Urena, 659 F.3d 903, 908 (9th Cir. 2011), and 

whether particular evidence falls within the scope of a given rule. United States v. 

Garrido, 596 F.3d 613, 616 (9th Cir. 2010). If the challenged evidence falls within 

the rule’s scope, the district court’s decision to admit the evidence is reviewed for 

abuse of discretion. Id.; U.S. v. LeMay, 260 F.3d 1018, 1024 (9th Cir. 2001).

Although Door acknowledges that Rule 413 permits evidence of a 

defendant’s propensity to commit the sexual assault of which he is accused, see 

United States v. Redlightning, 624 F.3d 1090, 1120 (9th Cir. 2010), he argues that 

the evidence of his punching M.H. in 2009 shows only his propensity to commit

violence. Door’s argument is belied by the plain language of Rule 413, which 

expressly permits the admission of evidence of sexual assaults that involve 

physical force. See e.g. Fed. R. Evid. 413(d)(1) (defining “sexual assault” to 

 

1 Door does not dispute that his 2009 misdemeanor sexual assault conviction under 

Mont. Code Ann. §45-5-201 meets the definition of sexual assault as set forth in 

Rule 413(d).
3 

include “any conduct prohibited by 18 U.S.C. chapter 109A,” which in turn 

includes 18 U.S.C. § 2241(a)(1)); see also U.S. v. H.B., 695 F.3d 931, 936 (9th Cir. 

2012) (18 U.S.C. § 2241(a)(1) has as an element the use of “physical force”). The 

district court therefore did not err in admitting M.H.’s testimony about Door’s 

conduct during the 2009 sexual assault.

Door next argues that, even if admissible under Rule 413, M.H.’s testimony 

should have been excluded under Rule 403. To determine whether to exclude 

under Rule 403 evidence that is admissible under Rule 413, we consider the 

following non-exhaustive factors, of which only the first and last are in dispute on 

this appeal: (1) similarity of the other acts to the acts charged; (2) closeness in time 

of the other acts to the acts charged; (3) frequency of the other acts; (4) presence or 

lack of intervening circumstances; and (5) necessity of the evidence beyond the 

testimonies already offered at trial. See U.S. v. LeMay, 260 F.3d 1018, 1027–28 

(9th Cir. 2001); Blind-Doan v. Sanders, 291 F.3d 1079, 1082 (9th Cir. 2002) 

(applying factors in Rule 403 analysis of admissibility of evidence under Rule 413 

and, in turn, Rule 415). 

The district court did not abuse its discretion in finding similarity between 

the 2009 sexual assault and the charged offense for the reasons the district court 
4 

provided. In addition, in both cases Door was able to get the victims alone by 

capitalizing on their generosity, obtaining a ride from Jane and an invitation to a 

friend’s apartment from M.H.

Door contends that the two offenses are dissimilar because their similar acts

occurred in a different order and at different locations. The difference Door 

identifies is one of opportunity, not actions. Door was interrupted in 2009 by a 

neighbor during his sexual assault of M.H, whereas in 2014, no one came to Jane’s 

aid on the remote road that Door told her to drive down. Door cites no authority 

for the proposition that, under Rule 403, an incomplete sexual assault is dissimilar 

to a completed one that occurs at a different location, and our precedent suggests 

otherwise. See Sanders, 291 F.3d at 1081–83 (reversing a jury verdict in favor of a 

police officer who allegedly sexually assaulted the plaintiff with a baton in her cell 

because it was error to exclude another woman’s testimony that, before booking 

her, the same officer took her to a room and tried to have sex with her in exchange 

for her freedom).

Finally, Door challenges the necessity of the evidence. Evidence of other 

acts “need not be absolutely necessary to the prosecution’s case in order to be 

introduced; it must simply be helpful or practically necessary.” LeMay, 260 F.3d 
5 

at 1029. Here, the evidence was necessary because Door attacked Jane’s 

credibility both by presenting a theory of the case that contradicted her testimony 

and by suggesting she was impaired by marijuana. Door testified that, other than 

oral sex, he did nothing like what Jane described in her testimony. This testimony 

was foreshadowed by his attorney’s opening statement and witness crossexaminations, which reflect a theory of the case that Jane smoked marijuana, 

engaged in consensual sex acts, and was punched fewer times than she claimed. 

Door clearly put Jane’s credibility at issue. Moreover, his theory of the case rested 

on the jury doubting Jane and there were no eyewitnesses who could corroborate 

her testimony. See LeMay, 260 F.3d 1029 (upholding admission of similar prior 

crime because the defendant “attacked the credibility” of his accusers and thereby 

“capitalized on the lack of eyewitness and expert testimony”). 

Finally, the district court was not required to accept Door’s alternative 

proposal to sanitize M.H.’s testimony by excluding testimony that Door punched 

her. Doing so would hamstring the government by preventing it from offering a 

coherent explanation of the 2009 incident and confuse a jury by making the 2009 

incident seem less similar—and thus less relevant—to the charged crime. As we 

have recognized in rejecting similar arguments, the “relevance of the prior act 
6 

evidence [i]s in the details.” See LeMay, 260 F.3d at 1029 (rejecting defendant’s 

argument that conviction should have been offered in lieu of testimony). 

AFFIRMED.