United States v. Merritt, 961 F.3d 1105

On August 3, 2016, Timothy Merritt, while driving on the Ute Mountain Ute Reservation, struck a vehicle head‑on; passenger Cecil Vijil died and passenger Sallie Vijil was seriously injured.
Officers observed signs of intoxication at the scene; toxicology about 3.5 hours later showed a BAC of ~.19 and experts estimated ~.23–.25 at the time of the crash.
Merritt was charged in federal court (18 U.S.C. §§ 1111, 1153; and § 113(a)(6) for the assault) with second‑degree murder and assault causing serious bodily injury.
The government introduced evidence under Fed. R. Evid. 404(b) of three other drunk‑driving incidents involving Merritt: a 2012 DUI/reckless driving conviction, a 2014 intoxication conviction, and a November 2016 DUI arrest (after the charged crash).
The district court admitted detailed facts and circumstances of the 2012 and 2014 incidents and allowed testimony about the November 2016 arrest; a jury convicted Merritt on both counts.
On appeal the Tenth Circuit affirmed: admitting the 2012 and 2014 facts was within the district court’s discretion (proper 404(b) purpose and not unduly prejudicial under Rule 403); any error in admitting the November 2016 arrest was harmless.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of 2012 and 2014 incidents under Rule 404(b) (proper purpose)	Government: prior acts show Merritt’s awareness of the risks of drunk driving and thus prove malice aforethought (intent).	Merritt: evidence should be limited to conviction records; facts/circumstances are impermissible propensity evidence.	Admitted: facts and circumstances were offered for a proper purpose — to prove malice/awareness — and Rule 404(b) is inclusive of such relevant details.
Admissibility of 2012 and 2014 incidents under Rule 403 (prejudice vs. probative value)	Gov: prior acts are highly probative of malice and not substantially outweighed by prejudice.	Merritt: details (vomiting, stumbling, slurred speech) are inflammatory and will induce unfair prejudice.	Admitted: court gave the evidence its maximum reasonable probative force and minimum prejudicial value; no abuse of discretion in Rule 403 balancing.
Admissibility of November 2016 subsequent arrest	Gov: subsequent similar misconduct shows extreme indifference and supports intent (doctrine of chances/continuing pattern).	Merritt: subsequent act is irrelevant to his mental state at the time of the charged offense and is highly prejudicial.	Any error admitting November 2016 evidence was harmless: overwhelming evidence (2012, 2014, and charged incident) established malice before November evidence was introduced.

United States v. Henthorn, 864 F.3d 1241 (10th Cir. 2017) (standard of review and 404(b) framework)
United States v. Tan, 254 F.3d 1204 (10th Cir. 2001) (prior DUI convictions probative of malice in vehicular homicide)
Huddleston v. United States, 485 U.S. 681 (1988) (elements for admitting other‑acts evidence)
United States v. Leonard, 439 F.3d 648 (10th Cir. 2006) (prior citations convey society’s view of danger)
United States v. Davis, 636 F.3d 1281 (10th Cir. 2011) (admissibility of subsequent acts when similar and close in time)
United States v. Caldwell, 589 F.3d 1323 (10th Cir. 2009) (harmlessness when evidence against defendant is overwhelming)
United States v. Abel, 469 U.S. 45 (1984) (district court discretion in probative/prejudicial balancing)