UNITED STATES COURT OF APPEALS February 27, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-2189

CHRISTOPHER KEE,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:20-CR-01880-MV-1) _________________________________ Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant. Emil J. Kiehne, Assistant U.S. Attorney (Alexander M.M. Uballez, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee. _________________________________ Before HOLMES, Chief Judge, SEYMOUR, and EBEL, Circuit Judges. _________________________________ SEYMOUR, Circuit Judge. _________________________________

Defendant Christopher Kee appeals from his conviction and sentence related to an altercation in April 2020 between Mr. Kee and his then-girlfriend, Candace Chinchillas. At trial, Mr. Kee was convicted of assault with a dangerous weapon in Appellate Case: 23-2189 Document: 77-1 Date Filed: 02/27/2025 Page: 2

Indian country. On appeal, he argues that the government plainly violated his due process rights under Doyle v. Ohio, 426 U.S. 610 (1976).

For the reasons explicated infra, we agree with Mr. Kee. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we vacate Mr. Kee’s conviction and sentence and remand for further proceedings consistent with this opinion.

I

In early 2019, Mr. Kee met Ms. Chinchillas, a recently divorced mother of three, on Facebook. The two started talking and began a romantic relationship. Mr. Kee and Ms. Chinchillas met in person for the first time in April 2019 when she was living in Phoenix, Arizona with her children. Later in April, however, the two decided to move in together at a home owned by Mr. Kee’s mother and stepfather outside of Shiprock, New Mexico. Ms. Chinchillas’s children went to live with their father, Ray Chinchillas, in Thoreau, New Mexico.

By all accounts, Mr. Kee and Ms. Chinchillas had a stormy relationship. They both drank excessively and tended to fight when they were drunk. Each accused the other of abusive behavior. Ms. Chinchillas accused Mr. Kee at trial of physical abuse, keeping her prisoner at their home, monitoring her phone, deleting her contacts, and controlling her money. Mr. Kee, on the other hand, said at trial that Ms. Chinchillas was the aggressor and abuser. He testified that she would hit him when she was drinking, hide his panic attack medication, and mimic him when had panic attacks.

Two encounters with police shed light on the nature of this volatile early relationship. In May 2019, just after Mr. Kee and Ms. Chinchillas had moved in

2 Appellate Case: 23-2189 Document: 77-1 Date Filed: 02/27/2025 Page: 3

together, Shiprock police arrested them both for public intoxication. Later, both Ms. Chinchillas and Mr. Kee reported to the FBI that Shiprock police had dragged Ms. Chinchillas to the bushes during the arrest and raped her with a flashlight. When confronted by the FBI with a video directly disproving their rape claims, they each blamed the other for the false accusations. Ms. Chinchillas, who in June 2020 told one of her children