Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The court has before it the government's motion to admit evidence pursuant to Rule 404(b), Fed. R. Evid. (doc. 188), and defendant Harvey Sloniker's response (doc. 195). Given the extraordinary similarity between the prior bad acts and the current charge, the evidence is relevant for a proper purpose, namely the culpable mental state of the defendant. It is not being offered to show character. Moreover, its probative value is not substantially outweighed by the danger of unfair prejudice under Rule 403, Fed. R. Evid. We thus will admit this evidence under Rule 404(b), along with a limited admissibility instruction, Ninth Circuit Model Instruction 4.3. The court also has before it the government's supplemental brief re: Jencks Act (doc. 196), and Desiderio's memorandum re: Jencks Act violation (doc.197). We solicited these
Case 2:04-cr-00820-FJM Document 198 Filed 12/20/2005 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, Plaintiff, vs. HARVEY L. SLONIKER, Jr., TYE SLONIKER, KINDY JONAGAN ROBERT SHINN, RICHARD NAIL JOHN DESIDERIO, Defendants.

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CR-04-0820-PHX-FJM ORDER

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in connection with defendants' motion to strike which we denied on December 9, 2005. Having carefully reconsidered the issue, we affirm our prior ruling and DENY defendants' prior motion to strike under Rule 26.2(e), Fed. R. Crim. P. The government has not disobeyed an order to produce the witness' notes. Instead, it claims that the notes either no longer exist or have been misplaced. Although the government may have been negligent in this regard, there is no evidence to suggest bad faith. Thus, the sanction of striking the testimony is disproportionate. Instead, the failure to produce the notes will go to the weight rather than to the admissibility of the evidence. We turn then to the defendant Desiderio's motion to suppress statements and evidence (doc. 111), the government's response, and the defendant's reply. At the hearing on this matter, the government produced evidence that the defendant was given his Miranda warnings before the taking of any statement, and there were no promises made or force used to get the defendant to make statements. While the defendant's reply memorandum states that he "adamantly maintains" that he invoked his right to remain silent and to have the assistance of counsel during the interview, reply at 2, the defendant offered no such evidence at the voluntariness hearing. Accordingly, there is no factual dispute in this case. IT IS THEREFORE ORDERED DENYING the defendant Desiderio's motion to suppress statements and evidence (doc. 111). DATED this 20th day of December, 2005.

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