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UNITED STATES v. BUHL

January 24, 1989

UNITED STATES OF AMERICA
v.
LEROY G. BUHL



The opinion of the court was delivered by: HUYETT

 DANIEL H. HUYETT, 3rd, UNITED STATES DISTRICT JUDGE.

 Defendant Leroy G. Buhl is charged in a one count indictment with kidnapping in violation of 18 U.S.C. § 1201(a)(1) (1982 & West Supp. 1988), arising from the abduction of Nancy Kwicinski on August 5, 1988. The government moves pursuant to Federal Rule of Evidence 404(b) to admit the evidence that on September 23, 1989, defendant abducted Michelle Marie Nickis a/k/a Michelle Marie Buhl ("Michelle Buhl"), defendant's nineteen year old niece. *fn1" The government contends that the evidence concerning the abduction of Michelle Buhl bears significant factual similarities which renders the evidence relevant and probative of the specific intent *fn2" of defendant to abduct Kwicinski.

 In consideration of the facts developed during a hearing on the alleged abduction of Michelle Buhl in which Ms. Buhl gave testimony about the facts and circumstances of her abduction, a review of the facts of the abduction of Kwicinski as contained in the government's brief, and oral argument on the motion, I conclude that the evidence concerning Michelle Buhl's abduction is highly relevant to demonstrate the intent of defendant if the defendant raises the consent of Kwicinski when she is cross-examined during trial. I further conclude that although the evidence is prejudicial to defendant, the highly probative nature of the evidence is sufficient to outweigh the resulting prejudice. I therefore hold that evidence of Michelle Buhl's abduction is admissible under Federal Rule of Evidence 404(b) if intent of defendant is raised as a defense during trial.

 I.

 Briefly summarized according to the government's brief, during the evening of August 5, 1988, Buhl abducted Kwicinski from a location in Long Branch, New Jersey to a wooded location in Schuykill County, Pennsylvania. During the abduction, Buhl allegedly operated the gas pedal of Kwicinski's car from the passenger seat while forcing Kwicinski at knife point to drive the vehicle to Schuykill County. During the course of the trip, Buhl choked and beat Kwicinski and repeatedly sexually assaulted her. During the sexual attacks, Buhl called Kwicinski a "slut", insisted that she "liked [the forced sex]", and blamed her for his sexual performance problems. After they arrived in Schuykill County, Buhl sexually assaulted Kwicinski again. After the assaults apparently ended, Buhl became contrite, apologized, and attempted to engage Kwicinski in casual conversation. Kwicinski later escaped to police and identified Buhl as her assailant. Buhl eluded police attempts to apprehend him.

 According to the government's brief and the testimony of Michelle Buhl at the hearing, on September 23, 1988 while a fugitive from the Kwicinski abduction, Buhl abducted Michelle Buhl from a location in Old Bridge, New Jersey. Allegedly, Buhl forced his way into Michelle's car after he arranged to meet her at a parking lot. Buhl then choked her and beat her. Buhl forced Michelle to drive the vehicle while he operated the gas pedal from the passenger seat. Buhl forced Michelle from the car into the back of a pick-up truck somewhere in New Jersey. *fn3" While in the back of the truck, Buhl sexually assaulted Michelle Buhl at gun point. *fn4"

 They eventually arrived at location within a mile of where Buhl brought Kwicinski in Schuykill County, Pennsylvania. Michelle later identified the location as her grandmother's home in Mount Pleasant, Pennsylvania. Buhl sexually assaulted Michelle again. During the course of the assaults, Buhl called Michelle a "slut" who "liked [forced sex]", and blamed her for his sexual performance problems. After the assaults concluded, Buhl became apologetic and told Michelle he could not believe what he had done. Buhl left the area telling Michelle that if she was not there when he returned, he would kill her. Michelle then left the area, and made her way to the police. Buhl was apprehended on September 24, 1988 with the assistance of Michelle Buhl.

 II.

 Rule 404(b) states: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of . . . intent, . . . [or] knowledge. . . ." In this circuit,

 
in order to admit evidence under Rule 404(b), a court must be able to articulate a way in which the tendered evidence logically tends to establish or refute a material fact in issue, and that chain of logic must include no link involving an inference that a bad person is disposed to do bad acts. Once the chain of logic has been articulated, its probative strength must be weighed under Rule 403 against any potential for unfair prejudice.

 United States v. Echeverri, 854 F.2d 638, 644 (3d Cir. 1988). Rule 404(b) is "intended to emphasize admissibility of other crime evidence." United States v. Long, 574 F.2d 761, 766 (3rd Cir.), cert. denied, 439 U.S. 985, 58 L. Ed. 2d 657, 99 S. Ct. 577 (1978).

 A.

 To obtain a conviction under the indictment, the government must prove beyond a reasonable doubt that Buhl knowingly and willfully abducted Kwicinski and transported her across state lines. 18 U.S.C. § 1201(a)(1). Thus, the government must prove that Buhl had the specific intent to perform that crime. United States v. Link, 728 F.2d 1170, 1171 (8th Cir. 1984); United States v. Oliver, 525 F.2d 731, 739 (8th Cir. 1975), cert. denied, 424 U.S. 973, 47 L. Ed. 2d 743, 96 S. Ct. 1477 (1976); cf. United States v. Crosby, 713 F.2d 1066, 1070 (5th Cir. 1983). Extrinsic evidence of other factually similar kidnaps which occurred prior to the charged offense are admissible to show intent of the defendant to commit kidnapping, once ...


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