Free Other Notice - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona GARY M. RESTAINO Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 017450 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-585-PHX-FJM Plaintiff, v. Larry James Rady, Defendant. GOVERNMENT'S NOTICE OF INTENT TO INTRODUCE STATEMENTS RELATED TO EVIDENCE TAMPERING AS EVIDENCE OF CONSCIOUSNESS OF GUILT

The United States, through counsel undersigned, notices the Court and counsel that it intends to introduce statements of defendant in recorded jail calls. The statements relate to, inter alia, tampering with witnesses and physical evidence and the government seeks to introduce the statements as consciousness of guilt. The government contends that these statements are not "other acts" but rather part of the charged offense, but in the exercise of caution provides this notice in the event the Court construes the statements as "other acts" evidence under Fed. R. Evid. 404(b). A. Background Defendant is a convicted felon several times over, and is charged in the instant offense with possession of three handguns and one silencer on or about April 8, 2004. The firearms were not found on the person of defendant, but rather at a dwelling located at 8739 West Glendale Avenue in Glendale, Arizona while defendant was not present. Defendant had previously been observed leaving the dwelling on April 7, 2004 and was surveilled to a storage facility down the road. On April 8, 2004, officers from the Glendale Police Department secured

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1 a search warrant to search the dwelling for evidence of an armed robbery in which defendant 2 Rady was alleged to have participated. In the southwest bedroom of the house the officers found 3 the three charged firearms and the silencer, in addition to indicia of the presence of defendant, 4 including a rental receipt from the storage facility to which defendant was surveilled. 5 The government subpoenaed and reviewed jail calls after defendant was arrested on the

6 warrant in this case. The government disclosed all of the recorded jail calls at issue in March 7 2005, and further refined and narrowed the list as this case proceeded. The government 8 currently intends to use portions of eight jail calls in its case-in-chief. All of the calls have been 9 designated. Partial transcripts of some calls have been produced, and partial transcripts of the 10 remaining calls are forthcoming, for defendant's review for accuracy and/or completeness. 11 The eight calls intended for presentation in this case generally contain either statements

12 as to ownership of uncharged items found in the room with the firearms, in order to establish the 13 power to control, or statements as to tampering. The tampering statements may further be 14 described as: 1) efforts to coach witnesses and/or coerce testimony; and 2) efforts to clean and 15 wipe down the charged firearms prior to the time they came into the government's possession. 16 B. 17 Discussion At trial, the government must prove beyond a reasonable doubt that defendant possessed

18 the firearms, namely that he knew of their presence and had physical control of them, or that he 19 knew of their presence and had the power and intention to control them. The probative value 20 of this evidence is not substantially outweighed by any undue prejudice under Fed. R. Crim. P. 21 403. Indeed, tampering or coercion is evidence of consciousness of guilt, and may properly 22 come before the jury. E.g. United States v. Collins, 90 F.3d 1420, 1428 (9th Cir. 1996) (as to 23 the use of recorded jail calls in a felon-in­possession case); United States v. Brashier, 548 F.2d 24 1315, 1325 (9th Cir. 1976) (as to a cover-up attempt in a securities case). 25 The Ninth Circuit has treated attempts to prove consciousness of guilt as part of the

26 charged offense rather than as an "other act". As such, this does not appear to be an "other acts" 27 issue. Nonetheless, to the extent the Court seeks compliance with Rule 404(b) of the Federal 28 2

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1 Rules of Evidence, the government has provided appropriate notice to use this evidence as proof 2 of motive, opportunity, intent, preparation, plan, and knowledge. The Ninth Circuit liberally 3 construes 404(b) as a rule of "inclusion" and has stated that evidence is deemed admissible under 4 404(b) on appeal if it is admissible on any ground other than to show propensity. United States 5 v. Jackson, 84 F.3d 1154, 1159 (9th Cir. 1996); United States v. Bradshaw, 690 F.2d 704, 708 6 (9th Cir. 1982). The trial court is afforded great deference in admitting other-act evidence. 7 United States v. Batts, 573 F.2d 599, 603 (9th Cir. 1978). The other acts sought to be admitted 8 do not have to be similar in conduct. United States v. Montgomery, 150 F.3d 983, 1001 (9th 9 Cir. 1998). 10 11 12 13 s/ Gary Restaino 14 15 16 17 GARY M. RESTAINO Assistant U.S. Attorney CERTIFICATE OF SERVICE PAUL K. CHARLTON United States Attorney District of Arizona Respectfully submitted this 20th day of November, 2005.

I hereby certify that on this date, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic 18 Filing to the following CM/ECF registrants: David Fuller. 19 20 21 22 23 24 25 26 27 28 3

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