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WO NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Gary Arthur Brown, Jr., 

Defendant. 

No. CR-15-01301-001-PHX-JJT

ORDER 

 At issue is Defendant’s Motion in Limine to Preclude any Allegations Involving 

Bobbie Plummer-Levy (Doc. 31), to which the government has filed a Response 

(Doc 34).1

 During the discovery phase of this matter, the government disclosed several 

police reports from the state of Maryland involving allegations by Ms. Plummer-Levy 

that: 1) in late May 2011, she discovered a male, then unknown to her, attempting to take 

a video of her through her apartment’s bathroom window; and 2) in early June 2011, as 

she prepared to take a shower in her apartment, she saw the Defendant attempting to slide 

her bathroom window open to, as Ms. Plummer-Levy put it, “sneak a peek.” In the 

second incident, Ms. Plummer-Levy recognized the man as her neighbor in the apartment 

complex–the Defendant–and from that contact, realized that he was the same person she 

had seen with the video camera several weeks before. 

 

1

 The Court notes that Defendant filed a Reply in support of its Motion to Preclude 

today, June 3, 2015; however, the Court had already drafted this Order granting the Defendant’s Motion as of that filing. 

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 The government charged Defendant by Indictment with Abusive Sexual Contact in 

violation of 18 U.S.C. § 2244(b) after it was alleged that, during an interstate commercial 

flight, he repeatedly touched the breast of a sleeping fellow passenger through her 

clothing. (Doc. 1.) It served notice on Defendant that it intended to introduce evidence of 

these two other acts pursuant to Federal Rule of Evidence 404 (b) at trial, to prove 

something other than Defendant’s propensity to commit the charged act, such as 

preparation, intent, motive, or absence of mistake or accident. (Doc. 27.) In response to 

the Notice, Defendant filed the instant Motion. 

 At the Final Pretrial Conference in this matter on May 17, 2016, the Court 

reserved judgment on the Motion, as the government had yet to respond, but expressed 

skepticism that the two acts of alleged voyeurism from 2011 met the following 

requirements for admissibility under United States v. Chea, 231 F.3d 531, 534 (9th Cir. 

2000): 1) that the evidence tended to prove a material point; 2) that the evidence is 

sufficient to support a finding that the defendant actually committed the other acts; and 3) 

that the acts were similar to the offense now charged. Because the government intends to 

call as many as four witnesses regarding the events in Maryland in 2011, the Court 

sought to resolve the issue early enough to allow all parties to plan according to its ruling, 

and ordered the government to file any responsive memorandum by May 23, 2016. 

 In its timely filed Response, the government maintained its request to introduce 

the other acts evidence in its case in chief pursuant to FRE 404(b), but also urged that the 

evidence from the Maryland incidents would be admissible on cross-examination should 

Defendant take the stand, either as impeachment or simply to challenge his testimony. 

(Doc. 34.) Under the government’s theory, if Defendant were to testify that placing his 

hand on the sleeping victim’s breast more than once was accidental, or that his actions 

lacked a sexual motivation, the evidence that he engaged in unwanted acts of voyeurism 

or “peeping” against Ms. Plummer-Levy in 2011 would serve to challenge or impeach 

that testimony. 

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 These two arguments–that the evidence of the Maryland incidents is admissible 

under either FRE 404(b) or FRE 611–are the opposite sides of the same flawed coin. 

They fail, first of all, based on a lack of relevance to any material point in the instant 

prosecution. Even assuming that the evidence from the 2011 incidents is sufficient to 

support a finding that Defendant actually did then engage in the acts of unwanted 

voyeurism, those acts are simply too dissimilar to the charged conduct in this case to be 

relevant here. The Court cannot in the first instance make the leap that a defendant’s 

engagement in unwanted voyeurism is probative of his intent, planning, preparation, or 

lack of mistake in committing a hands-on sexual offense years later. The government 

argues that three similarities exist between the 2011 acts and the charged act. First, the 

charged act and the other acts are sexual in nature. Second, both the charged act and the 

other acts were carried out in a way that was designed to minimize the likelihood of 

detection or apprehension. And third, Defendant’s reaction to being caught in both the 

charged act and the other acts was similar, in that he looked dazed and denied knowing 

what was going on. 

 The Court cannot agree with any of these arguments. First, as noted above, there 

are far more dissimilarities than similarities between a hands-on sex offense like the one 

charged here and any “peeping Tom” offense, and to the extent there are similarities, they 

would appeal only to the argument of propensity–precisely what FRE 404(a) prohibits. 

Second, the observation that a defendant tried to commit a charged offense and other acts 

in a way that would avoid detection says so much that it says nothing. The same could be 

said for virtually any criminal act or wrong. People try not to get caught when they do 

wrong. The Court finds this argument unpersuasive. For the same reasons, the 

government’s third argument fails. A purported similarity between charged acts and other 

acts must be supported by something more than an extraordinarily common reaction by 

the defendant, such as denial or feigned confusion. The government has failed to 

persuade the Court that lawful justification exists to admit the other act evidence here 

noticed either under FRE 404(b) or FRE 611. 

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IT IS ORDERED granting Defendant’s Motion in Limine to Preclude any 

Allegations Involving Bobbie Plummer-Levy (Doc. 31). 

 Dated this 3rd day of June, 2016. 

Honorable John J. Tuchi

United States District Judge

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