Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona Keith Vercauteren Assistant U.S. Attorney Arizona State Bar No. 013439 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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United States of America, CR-03-1167-PHX-DGC Plaintiff, v. Andrew Murphy, et al. Defendants. GOVERNMENT'S RESPONSE TO REQUEST FOR REASONABLE NOTICE OF 404(b) EVIDENCE

The United States hereby responds to Defendants' Request for Reasonable Notice of 404(b) Evidence. If the United States intends to use any 404(b) evidence at trial, the United States will file a "reasonable notice in advance of trial" of its intent to introduce the evidence under Rule 404(b) of the Federal Rules of Evidence ("Fed.R.Evid."). The Advisory Committee Notes to Rule 404(b), 1991 Amendments, are instructive on the purpose and meaning of "reasonable notice in advance of trial." The amendment to Rule 404(b) adds a pretrial notice requirement in criminal cases and is intended to reduce surprise and promote early resolution on the issue of admissibility. The notice requirement thus places Rule 404(b) in the mainstream with notice and disclosure provisions in other rules of evidence. See, e.g., Rule 412 (written motion of intent to offer evidence under rule), Rule 609 (written notice of intent to offer conviction older than 10 years), Rule 803(24) and 804(b)(5) (notice of intent to use residual hearsay exceptions).

Case 2:03-cr-01167-DGC

Document 856

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The Advisory Committee Notes to Rule 404(b), 1991 Amendments, go on to state as follows: The Rule expects that counsel for both the defense and the prosecution will submit the necessary request and information in a reasonable and timely fashion. Other than requiring pretrial notice, no specific time limits are stated in recognition that what constitutes a reasonable request or disclosure will depend largely on the circumstances of each case. Compare Fla.Stat.Ann. § 90.404(2)(b) (notice must be given at least 10 days before trial) with Tex.R.Evid. 404(b)(no time limit). The notice requirements in the preceding two paragraphs contemplate a notice requirement of 10-14 days before trial. The Advisory Committee Notes to Rule 404(b), 1991 Amendments, continue in the next paragraph to state as follows: Likewise, no specific form of notice is required. The Committee considered and rejected a requirement that the notice satisfy the particularity requirements normally required of language used in a charging instrument. Cf. Fla.Stat.Ann. § 90.404(2)(b) (written disclosure must describe uncharged misconduct with particularity required of an indictment or information). Instead, the Committee opted for a generalized notice provision which requires the prosecution to apprise the defense of the general nature of the evidence of extrinsic acts. The Committee does not intend that the amendment will supercede other rules of admissibility or disclosure, such as the Jencks Act, 18 U.S.C. § 3500, et. seq. nor require the prosecution to disclose directly or indirectly the names and addresses of its witnesses, something it is currently not required to do under Federal Rule of Criminal Procedure 16. The United States intends to file a 404(b) notice that will apprise the defense of the general nature of the evidence of extrinsic acts in this case. The United States does not intend to disclose directly or indirectly the names and addresses of its witnesses as part of this notice.

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The Advisory Committee Notes to Rule 404(b), 1991 Amendments, continue in the last paragraph to state as follows: The amendment does not extend to evidence of acts which are "intrinsic" to the charged offense, see United States v. Williams, 900 F.2d 823 (5th Cir.1990) (noting distinction between 404(b) evidence and intrinsic offense evidence). Nor is the amendment intended to redefine what evidence would otherwise be admissible under Rule 404(b). Finally, the Committee does not intend through the amendment to affect the role of the court and the jury in considering such evidence. See United States v. Huddleston, 485 U.S. 681, 108 S.Ct. 1496 (1988). There may be a dispute about whether certain evidence constitutes "intrinsic" offense evidence or "extrinsic," 404(b) evidence. The United States believes it is only obligated to give notice of extrinsic 404(b) evidence. Respectfully submitted this 21st day of October, 2005.

PAUL K. CHARLTON United States Attorney District of Arizona s/ Keith Vercauteren KEITH VERCAUTEREN Assistant United States Attorney

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I hereby certify that on October 21, 2005, I electronically transmitted the attached 2 document to the Clerk's Office using the CM/ECF system for filing and 3 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
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Joseph E. Abodeely, [email protected], [email protected] David Zeltner Chesnoff, [email protected] Carmen Lynne Fischer, [email protected], [email protected] Patricia Ann Gitre, [email protected], [email protected] Alan Richard Hock, [email protected] Thomas M Hoidal, [email protected], [email protected] Barbara Lynn Hull, [email protected] David M Ochoa, [email protected] Jose S Padilla, [email protected], [email protected] Mark A Paige, [email protected] James Sun Park, [email protected], [email protected],[email protected] C Kenneth Ray, II, [email protected] Brian Fredrick Russo, [email protected], [email protected] Michael Shay Ryan, [email protected], [email protected] Philip A Seplow, [email protected], [email protected] Robert Storrs, [email protected], [email protected] s/ Keith E. Vercauteren KEITH E. VERCAUTEREN

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