MOTION TO EXCLUDE EXTRINSIC ACTS EVIDENCE

AND INCORPORATED MEMORANDUM OF LAW

COMES NOW, the defendant, *, by his undersigned counsel and moves this Honorable Court to exclude extrinsic acts of evidence. In support thereof, defendant states as follows:

Defendant is charged with possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The evidence will show that on November 5, 1994 Mr. Gainey expressed interest in purchasing four firearms for $200 from ATF Agent Nichlos Cheremeta, acting in an undercover capacity.*picked up the firearms and handled them just prior to being arrested.

*'s arrest on November 5 was the culmination of an investigation that started several months earlier. On September 1, 1994, a tape recording was made of a conversation between * and a confidential informant who was under Agent Cheremeta's control. Although difficult to understand much of the conversation, there are audible portions where * states, in response to the informant's request that Gainey sell him crack cocaine, "I ain't got no dope. I don't sell dope no more. I swear to God I don't sell dope no more. I'll never sell dope again." Additionally, discussions between * and the informant revolve around the informant's willingness to sell and *'s willingness to buy property which is arguably stolen property, such as lawn mowers and a boat motor.

Rule 404(b), F.R.Ev. allows the introduction of extrinsic acts evidence under certain circumstances. Under the facts of this case, and based on the test laid-out in United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920 (1979), the 404(b) evidence should not be allowed because it is not relevant to any issue other than the defendant's character, and even if some relevance is found, its probative value is not outweighed by its undue prejudicial effect. By this motion, it is requested that the Court exclude the September 1, 1994 tape from the trial of this case, as well as any mention of *'s drug dealing and dealing in stolen property.

Respectfully submitted,

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