Case: 11-14466    Date Filed: 03/20/2013    Page: 1 of 16

                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                             Nos. 11-14466; 11-14575
                           ________________________

                   D.C. Docket No. 5:10-cr-00036-ACC-TBS-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellant,

                                       versus

SCOTT MICHAEL PATRICK,

                                                               Defendant-Appellee.

                           ________________________

                   Appeals from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                  (March 20, 2013)

Before CARNES, HULL, and FAY, Circuit Judges.

PER CURIAM:

      The government, in two consolidated interlocutory appeals, challenges the

district court’s partial grant of Scott Patrick’s motion in limine, which excluded

two surveillance video recordings of the prison assault that led to the pending
                Case: 11-14466        Date Filed: 03/20/2013       Page: 2 of 16

criminal prosecution against Patrick. 1 The district court excluded the surveillance

videos under Federal Rule of Evidence 403, concluding that their probative value

is substantially outweighed by the danger of unfair prejudice.

                                                 I.

       Patrick, an inmate housed at Coleman Federal Correctional Complex, has

been charged with aiding and abetting an assault resulting in serious bodily injury

to a fellow inmate, David Moghdam, in violation of 18 U.S.C. §§ 113(a)(6), (b)(2),

and 2. Patrick, along with inmates Thomas Malloy and Michael Thompson, was

involved in a prison altercation with Moghdam, which ended with Moghdam being

stabbed to death by Thompson. Portions of the assault were captured by two

prison surveillance cameras, one of which was narrowly zoomed in on the action

(the close-up video), while the other recorded a wide-angle view of the cell block

(the wide-angle video). 2

       The close-up video shows Patrick follow Moghdam off screen and,

approximately 20 seconds later, Moghdam, Malloy, Patrick, and Thompson

quickly sweep across the frame already embroiled in a fistfight. Moghdam and

Malloy almost immediately disappear from view, while Patrick and Thompson can

       1
         We have jurisdiction over these interlocutory appeals under 18 U.S.C. § 3731, which
provides, in relevant part, that “[a]n appeal by the United States shall lie to a court of appeals
from a decision or order of a district court suppressing or excluding evidence . . . .” 18 U.S.C. §
3731.
       2
        The government later prepared a slow motion version of the close-up video, which it
submitted to the district court.
                                                 2
              Case: 11-14466    Date Filed: 03/20/2013    Page: 3 of 16

be seen throwing punches in the victim’s direction. Patrick appears to grab

Moghdam as Thompson raises his right arm and makes several downward striking

motions with an object in his hand, although it is not entirely clear from the video

what the object is in his hand. Thompson and Patrick momentarily retreat back

into the center of the frame and then advance in the direction of Moghdam, who is

still off screen. After 20 seconds of no visible action, Thompson briskly walks

across the screen in the opposite direction and is soon followed by Patrick. The

close-up video does not depict the beginning of the fight or actually show

Moghdam being stabbed, and the visible portion of the assault lasts no more than

ten seconds. The wide-angle video, comprised of a series of time-lapse images

taken every few seconds, contains a distant and blurry depiction of the end of the

assault. A tangle of largely indistinct bodies emerges at the margins of the frame,

Moghdam eventually collapses, and Patrick appears to strike or to attempt to strike

the victim while he is on the ground.

      Patrick filed a motion in limine to exclude all evidence of the stabbing and

resulting death of Moghdam, including the two surveillance videos. Patrick

maintained that, in response to a planned attack on Moghdam by African-

American inmates, he and Malloy jointly agreed to initiate a fistfight with

Moghdam for the purpose of getting him transferred to solitary confinement and

thereby preventing his death from igniting a potential “racial disturbance” in the


                                          3
              Case: 11-14466    Date Filed: 03/20/2013    Page: 4 of 16

prison. Patrick insisted that he and Malloy specifically agreed that the fight would

not involve any weapons or any other participants, and that they did not anticipate

that Thompson would step into the fray and repeatedly stab Moghdam. Based on

his factual account of the events, Patrick argued that the videos were irrelevant to

the charged offense because he was neither the actual nor proximate cause of

Moghdam’s stab wounds, which were the result of Thompson’s unforeseeable

intervention in the fight. He alternatively argued that, even if the videos were

relevant, they should be excluded under Rule 403 because their probative value

was substantially outweighed by the danger of unfair prejudice or by the risk that

they would mislead or confuse the jury. Patrick insisted that the videos portrayed

an incomplete version of the events, which inaccurately implied that he, Malloy,

and Thompson were acting in concert, and that the videos’ depictions of

Moghdam’s stabbing and eventual collapse could serve no purpose other than to

inflame the jury’s emotions.

      The district court held a hearing on the motion in limine, at which the

government played the close-up video for the court and remarked that it had also

prepared a slow motion version of that video. Although the parties referred to the

wide-angle video, it was not played for the court or discussed in much detail. After

the hearing the district court entered a written order granting Patrick’s motion to

exclude the close-up video, finding that its probative value was substantially


                                          4
              Case: 11-14466     Date Filed: 03/20/2013   Page: 5 of 16

outweighed by the danger of unfair prejudice because it “show[ed] only the portion

of the fight in which the victim is stabbed.” The court, however, declined to

exclude all evidence that Moghdam was stabbed, concluding that it was for the

jury to decide whether Patrick’s assault proximately caused the victim’s stab

wounds.

      After the government had already filed a notice of interlocutory appeal from

the district court’s order, the court conducted a status conference at which the

government proffered the close-up video, the slow motion version of that video,

and the wide-angle video for inclusion in the record on appeal. The court noted

that it had neither viewed nor ruled on the wide-angle video, to which the

government’s attorney responded, “frankly my assumption was that it [did not]

show the entire fight either.”

      The district court issued a second order following the status conference to

address the admissibility of the wide-angle video and to clarify its ruling on both

videos. The court explained that it excluded the close-up video under Rule 403

because its “dominant feature” was Thompson’s “dramatic,” “graphic,” and

“highly prejudicial” stabbing motions, and because it did not clearly capture

Patrick’s actions before, during, or after the stabbing. The court also emphasized

that exclusion of the close-up video would not deprive the government of

“irreplaceable evidence” against Patrick because it could present eyewitness


                                          5
              Case: 11-14466     Date Filed: 03/20/2013    Page: 6 of 16

testimony to prove that the stabbing occurred, which would likely be more

probative of Patrick’s actions during the fight and would not “contain the highly

prejudicial visual stabbing images depicted in the video.” Because the government

noted that the wide-angle video also depicted only a portion of the fight, the court

likewise excluded that video under Rule 403.

      The government filed a notice of interlocutory appeal from the district

court’s second order and the government’s appeals have been consolidated.

                                          II.

      The government contends that the district court abused its discretion by

excluding the surveillance videos under Rule 403 because they offer highly

probative and irreplaceable evidence of Patrick’s role in the charged assault. The

government emphasizes that the videos depict the very attack at issue in the

criminal case. It also notes that the only witness willing to testify about the fight,

Malloy, is both subject to impeachment on numerous grounds, including his status

as a convicted felon, and cannot provide a detailed account of Patrick’s role in the

assault because of his own participation in the fight. Furthermore, the government

argues that any prejudice posed by the videos would not be unfair because they

capture the assault that Patrick is charged with perpetrating, and the risk of any

unfair prejudice does not substantially outweigh the probative value of the videos.




                                           6
                Case: 11-14466        Date Filed: 03/20/2013        Page: 7 of 16

       Patrick contends that the videos are either wholly irrelevant under Federal

Rule of Evidence 401 or have minimal probative value because he has not been

charged with murdering Moghdam, there is no dispute that the victim was stabbed,

and he was not the actual or proximate cause of the stab wounds. Patrick also

argues that any probative value that the videos may have is substantially

outweighed by the danger of unfair prejudice, misleading the jury, or confusion of

the issues because the videos do not depict the entire fight and, by showing

Moghdam being stabbed repeatedly and collapsing onto the ground, they can serve

no purpose other than to inflame the jury’s emotions.3

       We review a district court’s evidentiary rulings for an abuse of discretion.

United States v. Fortenberry, 

, 721 (11th Cir. 1992). And a district

court abuses its discretion when it commits a clear error of judgment or applies the

law in an unreasonable or incorrect manner. See Josendis v. Wall to Wall

Residence Repairs, Inc., 

, 1307 (11th Cir. 2011); Brown v. Ala.

Dep’t of Transp., 

, 1173 (11th Cir. 2010); Moorer v. Demopolis

Waterworks and Sewer Bd., 

, 996–97 (11th Cir. 2004). When a

       3
         Patrick also asserts that, even if the district court abused its discretion in excluding the
wide-angle video, the government invited the error by not playing the video for the court, as it
had done with the close-up video, and instead commenting that the video was similarly
incomplete. Under the doctrine of invited error, a party that invites a ruling by a district court
cannot challenge the propriety of that ruling on appeal. See Maradiaga v. United States, 

, 1293 (11th Cir. 2012). Although the government conceded that the wide-angle video
did not show the entire fight, it clearly and repeatedly voiced its objection to the exclusion of
both the close-up and wide-angle videos. It in no way invited the district court to exclude either
video or commit any error in doing so.
                                                  7
              Case: 11-14466     Date Filed: 03/20/2013    Page: 8 of 16

district court rules on evidentiary issues that “turn on matters uniquely within [its]

purview,” such as balancing “fact-specific concepts like probativeness and

prejudice,” we are loath to disturb those rulings because the district court “has

first-hand access to documentary evidence and is physically proximate to testifying

witnesses and the jury.” United States v. Jernigan, 

, 1285 (11th Cir.

2003). Nevertheless, precisely “[b]ecause the discretion traditionally accorded a

district judge depends upon a superior ability to view witnesses and assess the

impact of evidence,” we are “freer to perform the Rule 403 balancing ab initio

when the issue arises in limine.” United States v. King, 

, 631 (11th

Cir. 1983).

      Evidence is admissible if relevant, and evidence is relevant if it has any

tendency to prove or disprove a fact of consequence. Fed. R. Evid. 401, 402. A

district court may nonetheless exclude relevant evidence under Rule 403 if “its

probative value is substantially outweighed by a danger of . . . unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting of time, or

needlessly presenting cumulative evidence.” Fed. R. Evid. 403. But we have

repeatedly cautioned that Rule 403 “is an extraordinary remedy which the district

court should invoke sparingly, and the balance should be struck in favor of

admissibility.” United States v. Lopez, 

, 1247 (11th Cir. 2011)

(quoting United States v. Alfaro-Moncado, 

, 734 (11th Cir. 2010)).


                                           8
               Case: 11-14466       Date Filed: 03/20/2013       Page: 9 of 16

“In criminal trials relevant evidence is inherently prejudicial” and, thus, the rule

“permits exclusion only when unfair prejudice substantially outweighs probative

value.” United States v. Merrill, 

, 1301 (11th Cir. 2008) (quotation

marks omitted).

       The term “unfair prejudice,” as applied to a criminal defendant, “speaks to

the capacity of some concededly relevant evidence to lure the factfinder into

declaring guilt on a ground different from proof specific to the offense charged.”

Old Chief v. United States, 

, 180, 

, 650 (1997). The

primary function of Rule 403 is to exclude evidence of “scant or cumulative

probative force, dragged in by the heels for the sake of its prejudicial effect.”

(quotation marks omitted). “It is not designed to permit the

court to ‘even out’ the weight of the evidence, to mitigate a crime, or to make a

contest where there is little or none.” United States v. McRae, 

, 707

(5th Cir. 1979).4 Accordingly, Rule 403 requires courts to “look at the evidence in

a light most favorable to admission, maximizing its probative value and

minimizing its undue prejudicial impact.” 

(quotation

marks omitted). For all of these reasons, while a district court has broad discretion

to admit relevant evidence, its “discretion to exclude evidence under Rule 403 is

narrowly circumscribed.” United States v. Smith, 

, 1295 (11th Cir.

       4
         In Bonner v. City of Prichard, 

, 1209 (11th Cir. 1981), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
                                               9
               Case: 11-14466     Date Filed: 03/20/2013    Page: 10 of 16

2006) (quotation marks omitted); accord United States v. Norton, 

,

1362 (11th Cir. 1989).

       In the present case, it is clear to us that the district court struck the wrong

balance under Rule 403 by excluding the two videos. In depicting the very events

underlying the assault charge against Patrick, the videos are both relevant and

highly probative on a number of issues of consequence, including whether Patrick

committed an assault or aided or abetted in its commission, whether the victim

suffered a serious bodily injury, and whether Patrick’s actions were a proximate

cause of those injuries. See 18 U.S.C. § 113(a)(6) (prohibiting an “[a]ssault

resulting in serious bodily injury”); United States v. Hayes, 

, 821 (5th

Cir. 1979) (“A fundamental principle of criminal law is that a person is held

responsible for all consequences proximately caused by his criminal conduct.”).

Patrick’s apparent willingness to concede certain facts, including that the victim

was stabbed and that the stab wounds qualify as serious bodily injuries, does not,

as he suggests, make the videos irrelevant. See Old 

, 117

S.Ct. at 649–50 (explaining that “evidentiary relevance under Rule 401” is not

“affected by the availability of alternative proofs,” such as a defendant’s

admissions, and that the exclusion of relevant evidence “must rest not on the

ground that other evidence has rendered it ‘irrelevant,’ but on its character as

unfairly prejudicial . . . .”).


                                            10
               Case: 11-14466        Date Filed: 03/20/2013       Page: 11 of 16

       Patrick’s concessions and the existence of live witnesses who could testify

about the events also do not negate or significantly detract from the probative value

of the videos. The standard rule is that, absent exceptional circumstances, “the

prosecution is entitled to prove its case by evidence of its own choice” and a

“criminal defendant may not stipulate or admit his way out of the full evidentiary

force of the case as the Government chooses to present it.” 

S.Ct. at 653. While Malloy is willing to testify at trial about the assault, the

government asserts, without contradiction, that he cannot provide detailed

testimony about what happened because of his own involvement in the fight. See

(“[W]hile prosecutorial need alone does not mean probative

value outweighs prejudice, the more essential the evidence, the greater its

probative value . . . .”). Malloy’s grand jury testimony, which Patrick attached to

his motion in limine, supports the government’s position. Malloy testified that: he

did not “pay attention” to Patrick during the assault because he “had tunnel vision”

and was “just focused on fighting”; he did not know that Thompson was involved

at the time of the assault; and he was “not sure” that Patrick “didn’t have a knife.”

       On the other side of the equation, the videos are not unfairly prejudicial

because they depict the assault that Patrick is charged with committing. 5 “That the

       5
         We note that the government has stipulated that it will not show any portion of the
videos that follow the victim’s collapse onto the ground, and we expect that stipulation to be
honored.

                                                11
               Case: 11-14466      Date Filed: 03/20/2013       Page: 12 of 16

nature of the crime itself, and therefore the nature of the evidence tending to prove

it, is emotionally charged does not mean that the prosecution must be deprived of

its most probative evidence.” 

. Contrary to the district

court’s characterization of the close-up video as “dramatic,” “graphic” and “highly

prejudicial,” both videos are remarkably muted for such a violent crime. The

videos present a soundless, bloodless, largely sanitized version of the events, with

Moghdam off screen during most of the fight, including the stabbing. 6 We have

rejected Rule 403 challenges to relevant evidence far more graphic, gruesome, and

emotionally charged than the videos at issue in this case. See United States v. De

Parias, 

, 1453–54 (11th Cir. 1986) (rejecting a Rule 403 challenge to

photographs of the “badly decomposed corpse” of a homicide victim), overruled

on other grounds, United States v. Kaplan, 

, 1356–57 (11th Cir.

1999) (en banc); 

(rejecting a Rule 403 challenge to “gross,

distasteful, and disturbing” photographs of a murder victim and death scene

because the photographs were not “flagrantly or deliberately gruesome depictions”

of the crime).



       6
         In a comparison worthy of Hollywood, Patrick likens the images depicted in the close-
up video to the famous shower scene in Alfred Hitchcock’s Psycho, asserting that those images
are “reminiscent of the arced stabbing manner displayed by actor Anthony Hopkins as he is
slaying actress Janet Leigh.” But unlike the close-up video, Hitchcock’s scene is anything but
bloodless, soundless, and decidedly antiseptic. We also note that it was Anthony Perkins, not
Anthony Hopkins, who played Norman Bates. See The Internet Movie Database,
http://www.imdb.com/title/tt0054215/?ref_=sr_3 (last visited Feb. 28, 2013).
                                              12
             Case: 11-14466     Date Filed: 03/20/2013    Page: 13 of 16

      That the videos only present a portion of the assault does not render them

unduly prejudicial, especially not to the degree that the risk of unfair prejudice

substantially outweighs the probative value of the evidence. A video recording of

only a portion of the events is not inherently less admissible than the testimony of a

live witness who saw only part of a crime or a photograph that captures an isolated

moment from a single perspective. Cf. Addison v. United States, 

,

815 (5th Cir. 1963) (rejecting a challenge to the admission of a partially defective

tape recording on the ground that “[t]here would be no more valid reason for

exclusion of the mechanically recorded conversations than there would be for

excluding competent conversations, overheard in part, by human witnesses”)

(quotation marks omitted); United States v. Doyon, 

, 213 (1st Cir.

1999) (“An accurate tape recording of part of a conversation is not inherently less

admissible than the testimony of a witness who heard only part of a conversation

and recounts the part that he heard.”).

      The district court rejected the eyewitness comparison on the ground that an

eyewitness who saw only a portion of the fight could be “cross-examined and

talked to” and could presumably testify about the “entirety of [the] part” that he or

she witnessed. While it is undoubtedly true that the videos cannot be cross-

examined, Patrick can point out their limitations to the jury and offer evidence to

put what they depict in context. Moreover, the district court’s assumption that an


                                          13
             Case: 11-14466      Date Filed: 03/20/2013   Page: 14 of 16

eyewitness, unlike the videos, could testify about the entirety of the events

perceived is nothing more than that—an assumption. And Malloy, the sole

eyewitness willing to testify about the fight, is a prime example of how the court’s

assumption is false. Malloy’s grand jury testimony makes clear that the videos can

provide a more detailed account of Patrick’s role in the assault than Malloy can

provide. By itself, the relative incompleteness of the videos is not sufficient to

override the default rule that “the prosecution is entitled to prove its case by

evidence of its own choice.” Old 

, 117 S.Ct. at 654. All

evidence against a criminal defendant is prejudicial in the sense that it may incline

the jury to convict, or it would not be evidence against him, and Rule 403 does not

require “that the government choose the least prejudicial [or incriminating] method

of proving its case.” See United States v. Dixon, 

, 446 (11th Cir.

1983).

      Although the district court’s evidentiary ruling was not premised on any

other ground listed in Rule 403, Patrick contends that we can uphold the exclusion

of the videos anyway because of the danger that they would mislead or confuse the

jury, or otherwise be unnecessarily cumulative. While the videos do not depict the

entirety of the fight, including its beginnings, they also do not present an undue

risk of misleading or confusing the jury. Patrick suggests that the videos are

misleading because, according to his version of the events, he neither acted in


                                          14
             Case: 11-14466     Date Filed: 03/20/2013    Page: 15 of 16

concert with Thompson nor anticipated his involvement and, by extension, he

should not be held legally responsible for the stabbing. But those are questions for

the jury to decide based on all available, relevant evidence of the assault, including

the videos. Evidence is not misleading simply because it does comport with a

defendant’s assertions about what happened or what he should, or should not, be

convicted of. Moreover, the admission of the videos in addition to the testimony

of Malloy, or any other eyewitnesses who might materialize and opt to cooperate

with the government, hardly constitutes a needless accumulation of evidence about

the assault. Rule 403 does not preclude the admission of relevant evidence simply

because other evidence addresses the same issues. See United States v. Eyster, 

, 1212 (11th Cir. 1991) (“Rule 403 does not mandate exclusion because

some overlap exists between the photographs and other evidence.”) (quotation

marks omitted).

      When the videos are viewed in the light most favorable to admission, as

Rule 403 requires, the district court abused its discretion in ordering their exclusion

because their probative value is not, by any reasonable estimation, substantially

outweighed by the danger of unfair prejudice, misleading the jury, or confusing the

issues. The videos provide much more than “scant or cumulative probative force”

on the assault charge against Patrick, and it simply cannot be said that the




                                          15
             Case: 11-14466    Date Filed: 03/20/2013     Page: 16 of 16

government is merely dragging them in “for the sake of [their] prejudicial value.”

See 

(quotation marks omitted).

      For these reasons, we vacate the district court’s orders excluding the two

surveillance videos and remand for further proceedings.

      VACATED AND REMANDED.




                                        16