Us V Henthorn, Appellant's Brief, 10th Cir

Appellate Case: 15-1490 Document: 01019658073 Date Filed: 07/18/2016 Page: 1
CASE NO. 15-1490
IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA, )

)
Plaintiff-Appellee, )
)
v. )
)
HAROLD ARTHUR HENTHORN, )
)
Defendant- Appellant. )
On Appeal from the United States District Court

for the District of Colorado
The Honorable R. Brooke Jackson, District Judge
D.C. No. 1:14-cr-00448-RBJ-1
APPELLANT’S OPENING BRIEF
Respectfully submitted,
VIRGINIA L. GRADY
Federal Public Defender
DEAN SANDERFORD
Assistant Federal Public Defender
633 17th Street, Suite 1000
Denver, Colorado 80202
(303) 294-7002
Oral argument is requested

PDF format attachment included with digital submission
July 18, 2016

TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................ iiv
PRIOR OR RELATED APPEALS .................................................................................. vii
JURISDICTION .................................................................................................................... 1
ISSUE PRESENTED ........................................................................................................... 1
STATEMENT OF THE CASE .......................................................................................... 1
I. The Government’s Circumstantial Case That Mr. Henthorn Killed Toni
Henthorn...................................................................................................................... 2
II. The District Court Allows the Government to Introduce, Under the
Doctrine of Chances, Evidence Concerning the Death of Mr. Henthorn’s
First Wife and an Earlier Injury to Toni Henthorn. ............................................... 5
III.The Government’s Evidence Concerning Lynn Henthorn’s Death and the
Earlier Injury to Toni Henthorn ............................................................................... 8
A. Lynn Henthorn’s Death .................................................................................... 8
B. The Earlier Injury to Toni Henthorn ............................................................ 12
IV. Jury Instructions, Closing Arguments, and Verdict.............................................. 12
SUMMARY OF ARGUMENT ......................................................................................... 14
ARGUMENT ....................................................................................................................... 15
The District Court Reversibly Erred in Admitting Evidence Concerning
Lynn Henthorn’s Death and Toni Henthorn’s Earlier Injury. ............................ 15
A. Admission of the Evidence Violated Rule 404(b) Because Its
Relevance Depended on an Impermissible Propensity Inference. ............ 16
B. Admission of the Evidence Also Violated Rule 403 Because Any
Probative Value Was Clearly and Substantially Outweighed By the
Risk of Unfair Prejudice. ................................................................................. 25
C. The government will not be able to show that the error was harmless. ... 28
ii
CONCLUSION ................................................................................................................... 29
STATEMENT REGARDING ORAL ARGUMENT .................................................. 29
CERTIFICATE OF DIGITAL SUBMISSION.............................................................. 30
CERTIFICATE OF SERVICE ......................................................................................... 30
ATTACHMENTS:
Judgment
dated December 9, 2015………………………………………………….....A1
Order Denying Motion in Limine

dated May 29, 2015…………………………………………………………A2
iii
TABLE OF AUTHORITIES
Cases
Estelle v. McGuire,
502 U.S. 62 (1991)...................................................................................................... 24, 25
Francis v. Franklin,
471 U.S. 307 (1985).......................................................................................................... 27
Lisemba v. California,
314 U.S. 219 (1941).......................................................................................................... 24
Michelson v. United States,
335 U.S. 469 (1948).......................................................................................................... 24
Old Chief v. United States,
519 U.S. 172 (1997).......................................................................................................... 26
State v. Roth,
881 P.2d 268 (Wash. App. 1994) ................................................................................... 23
United States v. Beltran-Garcia,
338 Fed. Appx. 765 (10th Cir. 2009) .............................................................................. 27
United States v. Commanche,
577 F.3d 1261 (10th Cir. 2009) ........................................................................................ 16
United States v. DeLoach,
504 F.2d 185 (D.C. Cir. 1974) ........................................................................................ 28
United States v. Himelwright,
42 F.3d 777 (3d Cir. 1994) .............................................................................................. 16
United States v. Holly,
488 F.3d 1298 (10th Cir. 2007) ........................................................................................ 28
United States v. Irvin,
682 F.3d 1254 (10th Cir. 2012) ........................................................................................ 28
United States v. Mann,
193 F.3d 1172 (10th Cir. 1999) ........................................................................................ 25
iv
United States v. Moran,

503 F.3d 1135 (10th Cir. 2007) ........................................................................................ 16
United States v. York,
933 F.2d 1343 (7th Cir. 1991) ..............................................................................17, 19, 23
Statutes
18 U.S.C. § 3231 ..................................................................................................................... 1
28 U.S.C. § 1291 ..................................................................................................................... 1
Rules
Fed. R. Evid. 401 .................................................................................................................. 22
Fed. R. Evid. 403 ...................................................................................................... 15, 25-27
Fed. R. Evid. 404(b) ....................................................................................................... passim
Other Authorities
Andrew J. Morris, Federal Rule of Evidence 404(b): The Fictitious Ban on Character
Reasoning From Other Crimes Evidence, 17 Rev. Litig. 181 (Spring 1998) ...................... 19
Edward J. Imwinkelried, An Evidentiary Paradox: Defending the Character Evidence
Prohibition By Upholding a Non-character Theory of Logical Relevance, the Doctrine of
Chances, 40 U. Rich. L. Rev. 419, 437-38 (2006) ..................................................... 18, 21
Edward J. Imwinkelried, The Dispute Over the Doctrine of Chances, 7 Crim.
Just. 16, 19 (Fall 1992) ............................................................................................... 18, 27
Kenneth J. Melilli, The Character Evidence Rule Revisited, 1998 B.Y.U. L.
Rev. 1547, 1564 .......................................................................................................... 17, 20
Lisa Marshall, Note, The Character of Discrimination Law: the Incompatibility of
Rule 404 and Employment Discrimination Suits, 114 Yale L.J. 1063, 1081 (2005) .......... 21
Paul F. Rothstein, Intellectual Coherence in an Evidence Code, 28 Loy. L.A. L.
Rev. 1259, 1261 (1998) .................................................................................................... 20
v
PRIOR OR RELATED APPEALS
None.
vi
JURISDICTION
The district court had jurisdiction over this federal criminal case under
18 U.S.C. § 3231, and it entered judgment on December 10, 2015. Vol. 1, pt. 1, at
106.1 The notice of appeal was filed on December 21, 2015. Id. at 113. This Court
has appellate jurisdiction under 28 U.S.C. § 1291.
ISSUE PRESENTED
Mr. Henthorn was charged in this case with murdering his second wife. Using
the doctrine of chances, a doctrine based on objective probabilities, the district
court allowed the government to introduce evidence concerning the death of
Mr. Henthorn’s first wife and an injury earlier suffered by his second wife as
proof that all of the incidents, including the charged one, were intentional and
not the result of accident. Was this error?
STATEMENT OF THE CASE
In September 2012, Toni Henthorn fell to her death from a cliff in Rocky
Mountain National Park, near Estes Park, Colorado. The only witness was her
husband, Harold Henthorn, the defendant in this case. The government charged
Mr. Henthorn with first-degree murder, claiming that he pushed Ms. Henthorn off
the cliff in order to collect life insurance proceeds. Vol. 1, pt. 1, at 8. Mr. Henthorn
went to trial on the charge.
1Citations to the record are to the volume of the record filed in this Court and the
page number in the bottom, right-hand corner of the page. Volume 1 of the record is
split into two parts, so citations to that volume indicate which part is being cited.
1
I. The Government’s Circumstantial Case That Mr. Henthorn Killed Toni

Henthorn
The Henthorns had gone to Estes Park for their wedding anniversary. Vol. 7 at
228-29. The trip was a surprise for Ms. Henthorn: Mr. Henthorn had arranged to
pick her up early from work and had hired a babysitter to look after their seven-year-
old daughter. Id. at 217, 707-08, 840. They spent Friday night at the Stanley Hotel in
Estes Park, and on Saturday afternoon, they set out for a hike. Id. at 228-29. They
chose the Deer Mountain Trail, a popular trail of moderate difficulty. Id. at 230, 307.
After hiking about a mile and a half and gaining the summit ridge, the pair left the trail
and hiked north through the woods and down a rocky slope to an overlook with
spectacular views. Id. at 312-21, 404. They ate lunch there, at about 3:30 p.m., and
took photographs of each other. Id. at 232. After lunch, they continued down the
slope to a cliff below, where they took more photographs of each other. Id. at 232-34.
It was from that cliff that Ms. Henthorn fell to her death. Id. at 235.
Mr. Henthorn called 911 a little before 6:00 p.m. Id. at 170. Distraught, he
reported that Ms. Henthorn had fallen, and he repeatedly asked that a rescue
helicopter be deployed. Id. at 157-58. He was told a ranger was on the way, and he
called back several times, expressing concern that the rangers were not getting there
fast enough. Id. at 158. By the time the first ranger arrived, a little after 8:00 p.m.,
Ms. Henthorn was dead. Id. at 213-17.
2
The rangers decided to wait until the morning to remove Ms. Henthorn’s body
from the fall site. Id. at 218-20. Mr. Henthorn wanted to stay with her, but the
rangers would not allow it, and one of them escorted him back to the trailhead. Id.
Mr. Henthorn, the only witness to the fall, adamantly denied that he pushed
Ms. Henthorn off the cliff. The government had no physical evidence indicating that
he had. The medical examiner who conducted the autopsy concluded that
Ms. Henthorn died from wounds she suffered as a result of the fall, but he testified
that there was no way to determine whether she fell or was pushed. Id. at 516, 525.
The government’s case against Mr. Henthorn was therefore circumstantial.
Mr. Henthorn’s own statements made up part of the government’s case.
Mr. Henthorn spoke to many people about Ms. Henthorn’s death, and though he
consistently maintained that her death was an accident, his accounts diverged in other
respects. For example, he sometimes said they left the trail because it was too
crowded and then followed wildlife down the rocky slope in the hopes of getting a
good photograph. Id. at 217, 449. Other times he said they were looking for a
romantic spot. Id. at 232-33. He told a ranger that he had made one earlier scouting
trip to the park, but phone records indicated that he had gone to the park nine times
in the month or so prior to his trip with Ms. Henthorn. Id. at 230, 749-50. He told
some people that he was looking at a text message on his phone about their
daughter’s soccer game when Ms. Henthorn, trying to get the perfect photograph,
slipped and fell over the edge. Id. at 120, 235, 453. He told other people that he was
3
looking in his backpack when she fell. Id. at 578. A police officer agreed that people
often get details “mashed up after trauma.” Id. at 1349.
The rangers found a map of the park in Mr. Henthorn’s car. The Deer
Mountain Trail had been highlighted, and an X had been drawn in the general area of
the cliff. Id. at 556. Another trail in the park had also been highlighted and was one
the Henthorns had thought about visiting. Id. at 253, 560. There was also
highlighting on the map in an area near Grand Lake, where the Henthorns had a
cabin. Id. at 253. When he was first shown the map, Mr. Henthorn said the map was
from a different trip. Id. at 242. He later said he made the map for a young man he
considered a nephew, for whom he had made maps before. Id. at 620-21, 630, 922,
979, 984.
The government also sought to show that the area where Ms. Henthorn fell
was an odd place for her to venture. The hike required the Henthorns to descend a
steep slope of loose rock. Id. at 314-31. Ms. Henthorn, who was 50 years old, had
undergone knee surgery and could no longer ski. Id. at 616, 994, 1007. The rangers
did not peg her as an avid hiker. Id. at 415. But Ms. Henthorn was not a novice: a
family friend testified that he had hiked and snowshoed with Ms. Henthorn in the
park and near Grand Lake. Id. at 1508-10. A ranger testified that park visitors are
free to explore off the established trails. Id. at 394.
The government maintained that Mr. Henthorn killed Ms. Henthorn in order
to collect insurance on her life. Mr. Henthorn told some people that Ms. Henthorn’s
4
life was insured for about $1 million, with their daughter as the beneficiary. Id. at 245,
624. But in three separate policies and an annuity, Ms. Henthorn’s life was actually
insured for a total of $4.7 million, and the beneficiary was either Mr. Henthorn or a
trust he controlled. Id. at 1850-51, 1861. While $4.7 million is undoubtedly a lot of
money, an insurance agent testified that “family protection” warranted insuring an
earner’s life for ten times that person’s annual income. Id. at 896. Ms. Henthorn was
an ophthalmologist who had recently become partner at her practice. Id. at 839. And
her parents were wealthy and generous to their children. Id. at 105. Ms. Henthorn
earned significant income from mines and oil leases that her parents owned, and her
parents gifted her about $250,000 each year. Id. at 1040-41. Ms. Henthorn stood to
inherit many millions more when her parents passed away. Id. at 1042. Mr. Henthorn
had allowed the policy on his own life to lapse, but although he told people that he
was a fundraiser for churches, he had not actually been employed since 1992. Id. at
105, 135, 784, 1599, 1839-40.
II. The District Court Allows the Government to Introduce, Under the
Doctrine of Chances, Evidence Concerning the Death of Mr. Henthorn’s
First Wife and an Earlier Injury to Toni Henthorn.
Prior to trial, the government notified Mr. Henthorn that it intended to
introduce evidence of two prior incidents for which Mr. Henthorn was not on trial.
Vol. 1, pt. 1, at 16. The first concerned the death of Mr. Henthorn’s first wife, Lynn
Henthorn. She died in 1995 when she was crushed by a car while she and
Mr. Henthorn were changing a tire on the side of the road. Id. at 22-23. Law
5
enforcement investigated the incident at the time and determined it was an accident.
Id. at 82. The government now believed, however, that Mr. Henthorn had killed Lynn
Henthorn to collect life insurance proceeds. Id. at 28-32. In the second incident,
Mr. Henthorn dropped a piece of wood on Toni Henthorn from the deck of their
cabin near Grand Lake, Colorado. Id. at 18-20. This incident occurred about a year
before Toni Henthorn’s death. Id. She suffered a neck injury, and medical personnel
deemed the incident an accident, but the government now believed Mr. Henthorn was
trying to kill her. Id. at 35; Vol. 7 at 1149.
The government pointed to shared similarities among the two uncharged
incidents and Toni Henthorn’s death, including that they all involved unusual
accidents in remote locations where Mr. Henthorn was the only witness. Vol. 1, pt. 1,
at 26-27, 195-96. The government argued that evidence of the prior incidents was
admissible under Federal Rule of Evidence 404(b) to rebut Mr. Henthorn’s claim that
Ms. Henthorn’s death was accidental and also to prove intent and planning. Id. at 27,
35.
The government invoked the doctrine of chances in support of that argument.
Id. at 25-26. According to the government, the doctrine of chances provided a theory
of logical relevance that did not depend on a negative inference about Mr. Henthorn’s
character. Id. Instead, it was “a theory resting on the objective or statistical
improbability of extraordinary coincidence.” Id. at 185. Under that theory, according
6
to the government, the objective improbability that all three incidents were accidents
allowed the jury to infer that all of them were likely the product of design. Id.
Mr. Henthorn moved in limine to exclude the evidence under both Rule 404(b)
and Rule 403. Id. at 77, 153, 211. The district court held an evidentiary hearing on
the motions and heard arguments from counsel. Vol. 6 at 5, 273. Among other
things, Mr. Henthorn argued that the government’s proposed use of the doctrine of
chances invited an impermissible inference that Mr. Henthorn had a bad character
and acted in conformity with that character. Id. at 291. He also argued that allowing
evidence of Lynn Henthorn’s death would mean trying that case within “the Rocky
mountain park case,” which “would be a very difficult circumstance for the limiting
instruction” and required exclusion of the evidence under Rule 403. Id. at 289.
The court denied Mr. Henthorn’s motion in limine, ruling that evidence of the
two incidents was admissible to rebut Mr. Henthorn’s claim of accident and to show
that Mr. Henthorn intended and planned to kill Toni Henthorn. Vol. 1, pt. 1, at 231,
237. It agreed with the government that the evidence was logically relevant under the
doctrine of chances and that the doctrine did not require an impermissible character-
based inference. Id. at 228-37. The court ruled, as the government had argued, that
the jury could use the evidence to infer that all of the incidents – the two uncharged
incidents and Toni Henthorn’s death – were intentionally caused by Mr. Henthorn.
Id. at 228, 237. The court also rejected Mr. Henthorn’s challenge under Rule 403. It
concluded that while the evidence “might provoke an emotional response, it would
7
not do so wholly apart from its relevance to rebutting the defense of accident or to
showing plan and intent” and so was not unfairly prejudicial. Id. at 231, 237. The
court also summarily concluded that any unfair prejudice would not substantially
outweigh the evidence’s probative value. Id.
III. The Government’s Evidence Concerning Lynn Henthorn’s Death and

the Earlier Injury to Toni Henthorn
A. Lynn Henthorn’s Death

The evidence concerning Lynn Henthorn’s death made up a significant portion
of the government’s case. The government’s entire evidentiary presentation took
about six days and spans about 1,600 transcript pages. Vol. 7 at 102-1674, 1795-1862.
About two of those days – amounting to just over 400 pages of transcript, or a
quarter of the government’s case – were devoted to Lynn Henthorn’s death. Vol. 7 at
959-963, 1050-1131, 1156-1378, 1380, 1387-1475, 1526-47. Nine government
witnesses testified exclusively about her death, and three others testified about it in
addition to other matters. Id.
Lynn Henthorn died in May 1995. Id. at 1066, 1250. She and Harold had
stopped their jeep on the side of Highway 67 about eight miles outside Sedalia,
Colorado, because Mr. Henthorn thought one of the tires was low. Id. at 1066, 1244,
1297. The area was rural, and it was dark outside. Id. at 1067. Mr. Henthorn later
told law enforcement that they had experienced a number of flat tires around that
time due to an ongoing construction project near their home. Id. at 1245.
8
The jack that belonged to the car was not working, so Mr. Henthorn used a
boat jack instead, which he placed on top of a cinder block. Id. at 1245-46. He knew
it was the wrong jack for the job – it was flat on top rather than cupped to fit around
the axle. Id. at 1245-46, 1263. He later told law enforcement that he used a second
boat jack as a backup. Id. at 1185, 1246. According to Mr. Henthorn, after the tire
was removed, he threw it into the back of the jeep. Id. at 1226, 1247. This caused the
jacks to fail and the car to fall. Id. Unbeknownst to Mr. Henthorn, his wife had
crawled under the car, perhaps to retrieve a lug nut she had dropped, and was pinned
under the brake assembly. Id. at 1074, 1226-27, 1247, 1300. She soon lost
consciousness and stopped breathing. Id. at 1171, 1229, 1276.
Mr. Henthorn flagged down a passing car for help. Id. at 1102. One of its
occupants left to call 911 (this was before the widespread use of mobile phones), and
others lifted the car off Lynn Henthorn and administered CPR, which got her
breathing again. Id. at 1105-10. She was eventually airlifted to a nearby hospital, but
she died in surgery due to internal injuries that caused her lungs to fill with fluid. Id.
at 1250, 1253.
Much of the physical evidence corroborated Mr. Henthorn’s account. Crime
scene investigators located both boat jacks, and they found two lug nuts underneath
the car. Id. at 1199. They found broken pieces of cinder block that appeared to fit
together, and there was a mark on one piece that was consistent with a jack having
been placed on it. Id. at 1278, 1283, 1357. There was no sign of a struggle. Id. at
9
1257-58. Law enforcement treated Lynn Henthorn’s death as a suspicious incident
and investigated it as a crime. Id. at 1203. They ultimately determined that her death
was an accident. Id. at 1359.
At Mr. Henthorn’s trial for murdering Toni Henthorn, however, the
government sought to show that Mr. Henthorn killed Lynn Henthorn. It introduced
evidence that Mr. Henthorn gave inconsistent accounts about the night. For example,
he told an emergency responder that Lynn Henthorn was changing the tire, but he
told others that he was the one changing the tire. Id. at 1073, 1171. He also vacillated
between whether they were going to or coming from dinner. Id. at 1225, 1274. The
government also introduced evidence of an apparent footprint on the jeep’s fender,
which, according to the government, suggested that Mr. Henthorn pushed the car off
the jacks. Id. at 1279. (Investigators took a photograph of Mr. Henthorn’s shoes for
comparison purposes, but that comparison was apparently never made, and the
photograph of his shoes was not introduced at trial. Id. at 1279-80, 1321, 1437.) The
government also introduced evidence that Mr. Henthorn refused help from a passerby
who offered assistance while the Henthorns were changing the tire. Id. at 1092-94.
A woman in the car that Mr. Henthorn later flagged down testified that
Mr. Henthorn attempted to stop them from helping Lynn Henthorn. Id. at 1105.
The witness said she was troubled that Mr. Henthorn had used a piece of plastic
instead of his jacket to prop up Lynn Henthorn’s head. Id. at 1111. According to the
witness, Mr. Henthorn had a scared look on his face when the sound of approaching
10
sirens became audible. Id. She called law enforcement a couple of days later to voice
her suspicions and ask if Mr. Henthorn had been arrested. Id. at 1114-15. She
admitted that she and her companions left the scene before the police arrived because
they had been drinking. Id. at 1113.
The government also assailed the quality of the police investigation that
resulted in a finding of accident. It elicited testimony from several officers concerning
investigative steps that were not taken and things that could have been done
differently. E.g., id. at 1306-08, 1387-90. The defense countered with, for example,
detailed questioning about the thoroughness of the crime scene investigation. Id. at
1196-1209. It also pointed out that the supervising officer was an “experienced,
pretty hardened investigator.” Id. at 1311.
Lynn Henthorn’s life was insured in two policies for a total of $600,000, with
Mr. Henthorn as beneficiary. Id. at 1052-54, 1288-89, 1366. Mr. Henthorn collected
on the policies after Lynn Henthorn died. Id. at 1055. When law enforcement asked
Mr. Henthorn whether Lynn Henthorn’s life was insured, he disclosed only one of the
policies. Id. at 1289.
A friend of Mr. Henthorn’s who testified for the government recalled that
Mr. Henthorn was devastated when Lynn Henthorn died. Id. at 982. Usually an
extrovert, Mr. Henthorn became “hermit-like,” and his depression lasted for months.
Id. at 789, 982.
11
B. The Earlier Injury to Toni Henthorn

The evidence concerning the incident at Grand Lake was as follows. On a
night in May 2011, at the Henthorn’s cabin near Grand Lake, Toni Henthorn was
struck in the back of the neck with a board. Vol. 7 at 745, 945-56. Mr. Henthorn
called 911, and when the paramedics arrived, Toni Henthorn was lying on her back on
the ground. Id. She was taken by ambulance to a nearby hospital. Id. at 948. The
doctors were initially concerned that she had suffered a spine fracture but later testing
revealed no fracture. Id. at 1142-49.
Mr. Henthorn had been doing some construction work or tidying up on the
deck of the cabin. Id. at 946. According to a neighbor, it was not unusual for
Mr. Henthorn to do that kind of work at night. Id. at 983. Toni Henthorn told the
paramedic that Mr. Henthorn had been throwing plywood off the deck and that she
had not been able to get out of the way. Id. at 954. Mr. Henthorn gave a similar
account to the paramedic but told a friend that he dropped the board on her when he
slipped on a ladder. Id. at 946, 980.
No one, including Toni Henthorn, suspected at the time that Mr. Henthorn
had intentionally injured her. Id. at 953-54.
IV. Jury Instructions, Closing Arguments, and Verdict

The government started its closing argument with a brief introduction and then
immediately pivoted to the evidence concerning Lynn Henthorn’s death. Vol. 7 at
1683. Over the next four transcript pages, the government marshalled its evidence
12
that Mr. Henthorn killed Lynn Henthorn, and it told the jury it could use that
evidence to “form [its] determination of how he killed Toni Henthorn.” Id. at 1684-
87. Only then did the government move into the evidence concerning Toni
Henthorn’s death. The government’s opening statement had been similar, almost
immediately launching into a discussion of Lynn Henthorn’s death. Id. at 72.
The court instructed the jury that it could consider the evidence concerning
Lynn Henthorn’s death and the Grand Lake incident only to “(1) rebut[] the defense
that Toni Henthorn’s death was an accident; and (2) establish[] planning and intent by
the defendant regarding Toni Henthorn’s death.” Vol. 1, pt. 2, at 94-95.
The jury deliberated for several hours over two days. Vol. 7 at 1782-86. It
ultimately returned a guilty verdict. Id. at 1788. The district court sentenced
Mr. Henthorn to a mandatory term of life in prison. Vol. 6 at 396.
13
SUMMARY OF ARGUMENT
For two independent reasons, the district court erred in admitting the evidence
concerning Lynn Henthorn’s death and Toni Henthorn’s injury at the Grand Lake
cabin. First, admission of the evidence violated Rule 404(b) because its relevance
depended on an impermissible propensity inference. The district court ruled that the
doctrine of chances allowed the jury to infer, as a matter of objective probability, that
all three of the incidents – the two uncharged ones and Toni Henthorn’s death – were
the product of design. But the doctrine of chances does not support that inference.
In fact, the probabilities upon which the doctrine rest actually cut against it. And the
only way to infer that all the incidents were intentional is to reject the probabilities in
favor of a different inference: that the defendant acted consistently over time in
conformity with his character. That is the very inference that Rule 404(b) prohibits.
The only inference that the doctrine of chances actually supports is that one or
some, but not all, of the incidents were intentional. And critically, the doctrine is
incapable of discerning which of the incidents were intentional and which were not.
In other words, nothing about the doctrine singles out the charged incident as non-
accidental. While the doctrine makes it more likely that one or some, but not all, of
the three incidents were intentional, it shed no light on whether Toni Henthorn’s
death in particular was intentional. The evidence was therefore irrelevant to the jury’s
determination of whether Mr. Henthorn killed her.
14
But even if the evidence had some slight probative value, the risk of unfair
prejudice was enormous, making admission of the evidence an abuse of discretion
under Rule 403. First, although the doctrine did not allow the inference that Toni
Henthorn’s death in particular was a murder, it made it more likely that at least one of
the three incidents was intentional. Thus, the jury could have used the doctrine to
reach an exceedingly damaging conclusion – that at least on one occasion,
Mr. Henthorn killed or tried to kill one of his wives. If the jury believed that, it may
well have been swayed to convict even if it was not entirely convinced by the rest of
the government’s case, particularly since it knew Mr. Henthorn had not been
punished for the uncharged incidents. Second, the evidence concerning Lynn
Henthorn’s death made up a substantial portion of the government’s case and quickly
devolved into a mini-trial on her death, putting the defense in the difficult position of
essentially having to try both murder cases at once, and the Grand Lake incident as
well. Third, it is always difficult, even with a limiting instruction, for juries to
distinguish the doctrine of chances from propensity reasoning, and this case was no
exception.
ARGUMENT
The District Court Reversibly Erred in Admitting Evidence Concerning Lynn
Henthorn’s Death and Toni Henthorn’s Earlier Injury.
The district court’s admission of evidence concerning Lynn Henthorn’s death
and Toni Henthorn’s injury at the Grand Lake cabin violated two rules of evidence:
15
Rule 404(b) and Rule 403. Review of the court’s evidentiary rulings is for abuse of
discretion. United States v. Commanche, 577 F.3d 1261, 1266 (10th Cir. 2009). A “district
court abuses its discretion when it commits an error of law.” Id.
A. Admission of the Evidence Violated Rule 404(b) Because Its

Relevance Depended on an Impermissible Propensity Inference.
Federal Rule of Evidence 404(b) governs the admissibility of so-called other
acts evidence. Admissibility under the rule turns not on the nature of the evidence
but on the purpose for which it is offered. Other acts evidence is “not admissible to
prove a person’s character in order to show that on a particular occasion the person
acted in conformity with the character.” Fed. R. Evid. 404(b)(1). In other words, it
cannot be used to prove the defendant’s “propensity” to commit the charged crime.
United States v. Moran, 503 F.3d 1135, 1145 (10th Cir. 2007). Any other purpose,
however, is fair game, and the rule contains a non-exhaustive list of proper purposes,
including intent, plan, and lack of accident. Fed. R. Evid. 404(b)(2).
The logical relevance of other acts evidence sometimes depends on a chain of
necessary inferences. In those situations, no link in the chain “may be the inference
that the defendant has the propensity to commit the crime charged.” Commanche, 577
F.3d at 1267 (quoting United States v. Himelwright, 42 F.3d 777, 782 (3d Cir. 1994)). It is
up to the proponent of the evidence – here, the government – to “precisely articulate”
how the evidence serves a purpose that does not depend in any way on a propensity
inference. Id. at 1266.
16
The district court admitted the evidence concerning Lynn Henthorn’s death
and the earlier injury to Toni Henthorn to rebut Mr. Henthorn’s claim of accident and
to establish intent and planning. The court relied on the so-called doctrine of chances
to provide the theory of logical relevance. According to the court, the doctrine rests
on the “common sense observation that a string of improbable incidents is unlikely to
be the result of chance.” Vol. 1, pt. 1, at 228. The district court ruled that the jury
could use the doctrine to infer that all of the incidents, charged and uncharged, were
intentional and not the result of accident. Id. at 228, 236-37.
The doctrine, however, does not permit that inference. Properly applied, it
allows only for the inference that one or some of the incidents were intentional, not
that all of them were. Moreover, the doctrine does not and cannot shed any light on
whether the charged incident in particular was intentional. For that reason, under a
proper application of the doctrine of chances, the other acts evidence was irrelevant.
And as explained below, to improperly use the doctrine to infer, as the district court
ruled the jury could, that all of the incidents were intentional requires the very
propensity inference that Rule 404(b) prohibits.
The underpinning of the doctrine of chances is “the improbability of multiple
coincidences.” Kenneth J. Melilli, The Character Evidence Rule Revisited, 1998 B.Y.U. L.
Rev. 1547, 1564. As the Seventh Circuit memorably described the doctrine, “The
man who wins the lottery once is envied; the one who wins it twice is investigated.”
United States v. York, 933 F.2d 1343, 1350 (7th Cir. 1991). According to the doctrine’s
17
proponents, the doctrine does not require a “subjective assessment” of the accused’s
character; instead, it rests solely on the “objective” unlikelihood that similar and
unusual accidents would repeatedly befall the same person. Id.
There is, however, “a danger in relying on the doctrine.” Edward J.
Imwinkelried, The Dispute Over the Doctrine of Chances, 7 Crim. Just. 16, 19 (Fall 1992).
It is often difficult to distinguish impermissible character-based theories of logical
relevance from those independent of character, and “[t]he distinction between
character and noncharacter reasoning is especially troublesome when the
noncharacter theory is the doctrine of chances.” Id. at 20.
The primary danger is the temptation to use the doctrine to infer too much.
To avoid engaging in character reasoning, the doctrine allows only a “very limited”
inference: that “one or some of the incidents were probably” the product of design.
Edward J. Imwinkelried, An Evidentiary Paradox: Defending the Character Evidence
Prohibition By Upholding a Non-character Theory of Logical Relevance, the Doctrine of Chances,
40 U. Rich. L. Rev. 419, 437-38 (2006). It does not permit the inference that all of the
incidents were intentional.
The problem is this: to conclude that all of the incidents were the product of
design requires the inference that the incidents are connected to, or dependent on,
each other. After all, if the incidents are independent, the odds that any one of them
had a particular cause are the same each time the incident occurs. For example, with
each flip of a coin, there is a 50% chance the coin will land on heads. This is so even
18
if the coin flip was preceded by ten others that all landed on heads. Each and every
time, the chance that the coin lands on heads is exactly the same.
Of course, the odds that a coin would land on heads in 11 consecutive flips is
exceedingly small. Faced with such a situation, it would be natural to surmise that
there is more than chance involved. But it is precisely the attraction of that
conclusion that makes the doctrine of chances so dangerous. To avoid lapsing into a
subjective judgment of the defendant’s character, it is essential to keep the focus on
the objective probabilities. After all, the doctrine’s objective character is what
supposedly distinguishes it from character evidence. See York, 933 F.2d at 1350. And
the probabilities do not support the inference that the district court here concluded
the jury could draw: that all of the incidents, charged and uncharged, were the product
of design.
A good explanation appears in the literature. Andrew J. Morris, Federal Rule of
Evidence 404(b): The Fictitious Ban on Character Reasoning From Other Crimes Evidence,
17 Rev. Litig. 181 (Spring 1998). Morris explains that as the incidents accumulate, the
chance that at least one of them was intentional grows, but so too does the chance
that at least one of them was accidental. Thus, to infer that all of the the incidents
were intentional actually cuts against the objective probabilities and necessarily
requires “the assumption that character is constant.” Id. at 201.
Morris provides the following example. Say the probability that a given
incident was accidental is 5% and the chance it was intentional is 95%. As the
19
incidents add up, the chance that all of them were accidents decreases significantly
(.05 x .05 x .05 = .000125). But the chance that all of them were intentional also
decreases, to about 86% (.95 x .95 x .95 = .8574). Id. at 202. In other words, as the
incidents increase in number, the objective probability that they shared a common
cause actually decreases. With each additional incident, the odds go up that the sum
total is a mixed set – some combination of accident and intentional conduct.
Thus, to infer that each of the incidents was intentional actually cuts against the
objective probabilities that the doctrine of chances supposedly rests on. Instead, it
derives from the intuition that there is a connection between the incidents, and that
connection is of course the defendant. In other words, since the objective likelihood
that each of the incidents was intentional is on the downslope, the conclusion that
they were all intentional rests on an inference about the defendant himself: “he did it
once, so he probably did it again.” But that inference violates Rule 404(b)’s
prohibition on propensity reasoning. A “jury which infers from evidence of repeated
acta rea that the charged actus reus was no accident unavoidably uses a defendant’s
history to make inferences about character.” Id. at 200.
Other commentators have reached the same conclusion. For example,
Professor Paul Rothstein has found it “inescapable” that the doctrine of chances
invites an impermissible character inference. Paul F. Rothstein, Intellectual Coherence in
an Evidence Code, 28 Loy. L.A. L. Rev. 1259, 1261 (1998); accord Melilli, The Character
Evidence Rule Revisited, 1998 B.Y.U. L. Rev. at 1567 (concluding that “the flaw in the
20
doctrine of chances is that it collapses the slim barrier separating character and
noncharacter evidence”); Lisa Marshall, Note, The Character of Discrimination Law: the
Incompatibility of Rule 404 and Employment Discrimination Suits, 114 Yale L.J. 1063, 1081
(2005) (concluding that prior incidents are relevant under the doctrine of chances
“only insofar as they shed light on some consistency in the defendant’s character”).
Professor Imwinkelried is perhaps the doctrine of chance’s most ardent
defender. But even he admits that the doctrine does not permit the conclusion that
the district court here ruled the jury could draw: “that all the incidents were the
product of an actus reus or mens rea.” Imwinkelried, An Evidentiary Paradox, 40 U.
Rich. L. Rev. at 437 (emphasis added). Instead, the doctrine allows only for the
inference that “one or some of the incidents were not accidents.” Id. Indeed,
according to Professor Imwinkerlried, the “doctrine posits that some incidents can
and, in the normal course of events, do occur accidentally.” Id.
Critically, “there is nothing about the internal logic of the doctrine which
singles out the charged incident as the product of” design. Id. This point is essential.
Because the objective likelihood of accident is the same for each incident, there is no
way, using the doctrine of chances, to discern which incident was an accident and
which was intentional. Although the likelihood that one or some, but not all, of the
incidents was intentional increases as the incidents continue to occur, the doctrine is
of no help in discerning which was intentional and which was not. Id.
21
For this reason, under a proper application of the doctrine of chances, the
other acts evidence was irrelevant. Because the doctrine suggests only that one or
some, but not all, of the incidents were intentional, and because it is incapable of
singling out any particular incident as intentional, it left the jury to speculate about
which was intentional and which was not. Although the doctrine allowed the jury to
infer that at least one of the incidents was intentional, it did nothing as an objective
matter to increase the odds that Toni Henthorn’s death in particular was intentional.
Thus, under the doctrine, the other acts evidence did not make it “more . . . probable
than it would be without the evidence” that Mr. Henthorn killed Toni Henthorn.
Fed. R. Evid. 401.
The district court ruled that the doctrine allowed the jury to conclude that all of
the incidents – the deaths of both women and the injury to Toni Henthorn at the
cabin – were “likely the product of design.” Vol. 1, pt.1, at 228, 236. In discussing
Lynn Henthorn’s death, the court specifically concluded that the jury could use the
doctrine to infer that Mr. Henthorn “carr[ied] out a plan to kill both women in
situations made to look like accidents.” Id. at 228. If the doctrine actually allowed
that inference, the evidence would certainly be relevant under the doctrine. But as
discussed above, the doctrine does not permit the conclusion that all of the incidents
were intentional. Not only that, reaching that conclusion requires the impermissible
inference that Mr. Henthorn is the type of person who kills (or tries to kill) his wives
for insurance money. Rule 404(b) prohibits that inference.

22
The doctrine of chances is not frequently invoked by American courts; the
government’s main cases below were a 25-year-old Seventh Circuit case and a 20-year-
old case from an intermediate state appellate court. Vol. 1, pt. 1, at 24 (citing York,
933 F.2d at 1343, and State v. Roth, 881 P.2d 268, 272-74 (Wash. App. 1994). These
cases do not make the distinction discussed above between the permissible and
impermissible uses of the doctrine of chances. It does not appear, however, that the
distinction was pointed out to those courts. Instead, the cases rely on common sense:
it is unlikely that the same person would repeatedly become enmeshed in unusual and
suspicious circumstances by random chance. York, 933 F.2d at 1350; Roth, 881 P.2d
at 276.
That is common sense. But if the doctrine is to avoid subjective character
inferences, it must remain tethered to what the probabilities actually reveal, not what
one intuits from the situation. And the probabilities reveal that as the incidents
increase in number, the chance that all of them were intentional actually decreases. At
best, they suggest that one or some of the incidents were intentional without giving
any clue as to which ones actually were intentional.
The conclusion that the district court drew, that the repetition of the incidents
suggests a common design, actually conflicts with the objective probabilities. But
there is no denying its allure because there really is something commonsensical about
it. That does not mean, however, that Rule 404(b) permits it. Character evidence is
also commonsensical. Everyone intuitively understands, for example, that a person’s

23
history of robbing banks makes him more likely to rob another one. The law
recognizes as much. Character evidence is not prohibited because it’s “irrelevant” but
because it “is said to weigh too much with the jury and to so overpersuade them as to
prejudge one with a bad general record.” Michelson v. United States, 335 U.S. 469, 475
(1948). Thus, the doctrine of chance’s commonsensical nature is actually a reason to
be wary of it.
The district court concluded that the Supreme Court “adopted” the doctrine of
chances in Lisemba v. California, 314 U.S. 219 (1941). Vol. 1, pt. 1, at 228. But all
Lisemba holds is that the Constitution does not prohibit a state from adopting the
“principle that similar but disconnected acts may be shown to establish intent, design,
and system.” Lisemba, 314 U.S. at 227. Moreover, Lisemba says nothing about the
probative reach of the doctrine, let alone whether it may be used to establish that all
of the acts were intentional.
Estelle v. McGuire, 502 U.S. 62 (1991), is also inapposite. In fact, it did not
involve the doctrine of chances at all. McGuire held that evidence that a child suffered
from battered child syndrome was relevant to prove that the fatal injuries later
inflicted on the child were intentional rather than the result of accident. Id. at 69. But
unlike the doctrine of chances, the relevance of battered child syndrome did not turn
on the repetition of supposedly accidental occurrences. The testimony at issue in
McGuire was a physician’s opinion that the type of injuries the child suffered could
only have been inflicted intentionally. See Brief for Petitioner, Estelle v. McGuire, Sup.
24
Ct. No. 90-1074, 1991 WL 521611, at *7, *19-20. In other words, the testimony was
that the child had been repeatedly beaten in the past. The evidence was relevant to
rebut the possibility of accident not because there was otherwise a coincidental string
of improbable events. Instead, the fact that the child had repeatedly sustained
intentional injuries made it more likely that the ones that killed the child were also
intentional. McGuire, 502 U.S. at 68. This line of reasoning has nothing to do with the
doctrine of chances, and the Court did not cite the doctrine in its opinion.
For all these reasons, the admission of evidence concerning Lynn Henthorn’s
death and the injury Toni Henthorn suffered at Grand Lake violated Rule 404(b).
B. Admission of the Evidence Also Violated Rule 403 Because Any

Probative Value Was Clearly and Substantially Outweighed By the
Risk of Unfair Prejudice.
Even if the other acts evidence had some probative value (which it did not), the
district court should have excluded it under Rule 403. Under that rule, “a court must
exclude [evidence] if its probative value is substantially outweighed by the danger of
unfair prejudice.” United States v. Mann, 193 F.3d 1172, 1173 (10th Cir. 1999). The
evidence concerning Lynn Henthorn’s death and Toni Henthorn’s injury at Grand
Lake posed an enormous risk of unfair prejudice that overwhelmingly outweighed any
probative value, rendering the district court’s admission of the evidence an abuse of
discretion.
25
First, although the doctrine did not allow the jury to infer that Toni Henthorn’s
death in particular was intentional, it did allow for the inference that at least one of
the three incidents was intentional. That alone posed an extreme risk of unfair
prejudice. For if the jury made that inference, it necessarily concluded that on at least
one occasion, Mr. Henthorn, in cold-blooded fashion, either killed or tried to kill one
of his wives. Jurors convinced that he had committed such a heinous crime may well
have been loath to acquit him, even if they harbored some doubt that he killed Toni
Henthorn.
After all, the jurors knew Mr. Henthorn had gone unpunished for the two
uncharged incidents. If they were convinced he had at least tried to kill his wife
before, they may well have recoiled at the notion of setting him free. This is precisely
the type of unfair prejudice that Rule 403 guards against: “the risk that a jury will
convict for crimes other than those charged – or that, uncertain of guilt, it will convict
anyway because a bad person deserves punishment.” Old Chief v. United States, 519
U.S. 172, 181 (1997).
Admission of the other acts evidence also put the defense in the untenable
position of essentially trying all three incidents when Mr. Henthorn was charged with
only one. This problem was especially acute with respect to Lynn Henthorn’s death.
As noted above, almost two full trial days and 400 transcript pages were devoted
entirely to that incident. And it quickly devolved into a mini-trial on whether
Mr. Henthorn killed her, with the government marshalling evidence that it was a
26
murder and the defense countering that it was an accident. This Court has recognized
that this kind of trial within a trial “make[s] it more difficult for the jury to render an
impartial decision.” United States v. Beltran-Garcia, 338 Fed. Appx. 765, 772 (10th Cir.
2009) (unpublished).
Finally, the doctrine of chances always poses a serious risk that the jury will
lapse into character reasoning, even in the face of a limiting instruction. As Professor
Imwinkelried acknowledges, the line between the doctrine of chances and an
impermissible character theory is “especially thin” and “can be a difficult one for the
trier of fact to draw.” Imwinkelried, The Dispute Over the Doctrine of Chances, 7 Crim.
Just. at 19. That’s partly because the ultimate inference drawn from the doctrine of
chances is “one of behavior” – that the defendant performed the actus reus. Id. at 20.
Imwinkelried warns that “[e]ven if lay jurors are ordinarily capable of following
judicial limiting instructions, they may be unable to differentiate between character
reasoning and reasoning based on the doctrine of chances.” Id. at 20-21. And the
Supreme Court has acknowledged that in some situations, “the risk of prejudice
inhering in material put before the jury may be so great that even a limiting
instruction” is not sufficient to ameliorate the harm. Francis v. Franklin, 471 U.S. 307,
324 n.9 (1985).
For these reasons, the district court abused its discretion in ruling that the other
acts evidence survives the Rule 403 balancing test.
27
C. The government will not be able to show that the error was
harmless.
It is the government’s burden to show that the erroneous admission of the
other acts evidence was harmless. United States v. Holly, 488 F.3d 1298, 1307 (10th Cir.
2007). It will not be able to carry that burden. The evidence of Lynn Henthorn’s
death alone spanned 400 transcript pages and comprised a full quarter of the
government’s evidentiary presentation. The government fought hard to get the other
acts evidence in, filing two lengthy pleadings and presenting a full day’s worth of
evidence at a pretrial hearing. Vol. 1, pt. 1, at 16, 36; Vol. 6 at 5-268. “The
government’s advocacy for [the evidence] in the district court belies” any assertion of
harmlessness. United States v. Irvin, 682 F.3d 1254, 1264 (10th Cir. 2012). So too does
the fact that the government chose to emphasize the evidence in both its opening
statement and summation. United States v. DeLoach, 504 F.2d 185, 192 (D.C. Cir. 1974)
(“A prosecutor’s own estimation of his case, and of its reception by the jury at the
time, is, if not the only, at least a highly relevant measure now of the likelihood of
prejudice.”). And for all the reasons set out above, the evidence was deeply
prejudicial.
28
CONCLUSION
This Court should vacate Mr. Henthorn’s conviction and remand for a new
trial.
STATEMENT REGARDING ORAL ARGUMENT

Oral argument is requested because counsel believes it will substantially aid this
Court in its decisional process.
Respectfully submitted,
VIRGINIA L. GRADY
Federal Public Defender
By: /s/ Dean Sanderford

DEAN SANDERFORD
633 17th Street, Suite 1000
Denver, Colorado 80202
(303) 294-7002
Email: [email protected]
29
CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing brief: (1) all required privacy
redactions have been made; (2) the ECF submission is an exact copy of the filed hard
copies; and (3) the ECF submission was scanned for viruses with Symantec Endpoint
Protection version 12.1.6318.6100, Virus Definition File Dated: Monday, July 18,
2016 r1, and, according to the program is free of viruses.
By: /s/Dean Sanderford

DEAN SANDERFORD
CERTIFICATE OF SERVICE
I hereby certify that on July 18, 2016, I electronically filed the foregoing brief
using the CM/ECF system which will send notification of such filing to J. Bishop
Grewell, Assistant United States Attorney, at [email protected]
By: /s/ Dean Sanderford

DEAN SANDERFORD
30

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Appellate Case: 15-1490 Document: 01019658073 Date Filed: 07/18/2016 Page: 1

CASE NO. 15-1490

IN THE UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA, )

On Appeal from the United States District Court

APPELLANT’S OPENING BRIEF

Oral argument is requested

July 18, 2016

Order Denying Motion in Limine

United States v. Moran,

PRIOR OR RELATED APPEALS

has appellate jurisdiction under 28 U.S.C. § 1291.

went to trial on the charge.

I. The Government’s Circumstantial Case That Mr. Henthorn Killed Toni

Ms. Henthorn was dead. Id. at 213-17.

The government’s case against Mr. Henthorn was therefore circumstantial.

Mr. Henthorn’s own statements made up part of the government’s case.

often get details “mashed up after trauma.” Id. at 1349.

free to explore off the established trails. Id. at 394.

money, an insurance agent testified that “family protection” warranted insuring an

105, 135, 784, 1599, 1839-40.

trying to kill her. Id. at 35; Vol. 7 at 1149.

The government pointed to shared similarities among the two uncharged

The government invoked the doctrine of chances in support of that argument.

character. Id. Instead, it was “a theory resting on the objective or statistical

improbability of extraordinary coincidence.” Id. at 185. Under that theory, according

outweigh the evidence’s probative value. Id.

III. The Government’s Evidence Concerning Lynn Henthorn’s Death and

A. Lynn Henthorn’s Death

of the government’s case. The government’s entire evidentiary presentation took

959-963, 1050-1131, 1156-1378, 1380, 1387-1475, 1526-47. Nine government

addition to other matters. Id.

consciousness and stopped breathing. Id. at 1171, 1229, 1276.

Much of the physical evidence corroborated Mr. Henthorn’s account. Crime

1257-58. Law enforcement treated Lynn Henthorn’s death as a suspicious incident

was an accident. Id. at 1359.

At Mr. Henthorn’s trial for murdering Toni Henthorn, however, the

government also introduced evidence of an apparent footprint on the jeep’s fender,

they had been drinking. Id. at 1113.

resulted in a finding of accident. It elicited testimony from several officers concerning

pretty hardened investigator.” Id. at 1311.

policies. Id. at 1289.

Id. at 789, 982.

B. The Earlier Injury to Toni Henthorn

revealed no fracture. Id. at 1142-49.

slipped on a ladder. Id. at 946, 980.

had intentionally injured her. Id. at 953-54.

IV. Jury Instructions, Closing Arguments, and Verdict

immediately pivoted to the evidence concerning Lynn Henthorn’s death. Vol. 7 at

immediately launching into a discussion of Lynn Henthorn’s death. Id. at 72.

the defendant regarding Toni Henthorn’s death.” Vol. 1, pt. 2, at 94-95.

Mr. Henthorn to a mandatory term of life in prison. Vol. 6 at 396.

determination of whether Mr. Henthorn killed her.

prejudice was enormous, making admission of the evidence an abuse of discretion

reach an exceedingly damaging conclusion – that at least on one occasion,

court abuses its discretion when it commits an error of law.” Id.

A. Admission of the Evidence Violated Rule 404(b) Because Its

Federal Rule of Evidence 404(b) governs the admissibility of so-called other

including intent, plan, and lack of accident. Fed. R. Evid. 404(b)(2).