IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. xx-159-01 (PLF)

)

xxxxxxxxxxxxxxxxxxxxxx, )

)

Defendant. )

_________________________ )

DEFENDANT'S MOTION AND INCORPORATED MEMORANDUM

TO DIRECT THE GOVERNMENT TO GIVE

NOTICE OF ITS INTENTION TO RELY UPON OTHER CRIMES EVIDENCE

Defendant, by and through undersigned counsel, hereby move this Court for an Order directing the government to give immediate notice of its intention to use evidence of "other crimes, wrongs or bad acts" (Fed. R. Evid. 404(b)) in the trial of this case, to specify what particular accusations will be made and to identify the witnesses, documents and physical evidence it intends to rely upon at trial to prove these matters.

While the government has acknowledged its obligation to provide the defense with notice of such other crime evidence, the government claims that no such evidence will be offered. Instead, Mr. Gellar writes that "[t]he evidence presented will involve the furtherance of the conspiracy." Indeed, Fed. R. Evid. 404(b) now expressly requires the government to provide "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence that it intends to introduce at trial." This rule was amended in 1991 adding the pretrial notice requirement in criminal cases so as to "reduce surprise and promote early resolution on the issue of admissibility." See Notes of Committee on the Judiciary, Senate Report No. 93-1277.

This Court should not allow the government to circumvent the clear mandate and objective of the notice requirements of Fed. R. Evid. 404(b) by suggesting that the uncharged acts are overt acts in furtherance of the conspiracy rather than prior bad acts admissible under an exception to Fed. R. Evid. 404(b). To the extent that the government suggests this alternative route of admissibility, then it should provide a bill of particulars with regard to all uncharged overt acts that it plans on introducing at trial. See United States v. Hubbard, 474 F. Supp. 64, 81 (D.D.C. 1979) (Ordering the government to provide a list of all unindicted co-conspirators and all overt acts in furtherance of the conspiracy but not named in the indictment); See also United States v. Mannino, 480 F. Supp. 1182, 1185 (S.D.N.Y. 1979) (Ordering bill of particulars with regard to overt acts).

No matter what the government calls these uncharged bad acts, it is clear that the defense should have specific notice sufficient to permit defendants' counsel to investigate the allegations and to prepare Mr. xxxxxxxxxxdefense to them. The basis for the amendment to Rule 404(b) requiring pretrial notice and the courts' reasoning in Hubbard and Mannino require nothing less.

Sound judicial administration requires pretrial notice of the intention to use other crimes evidence. Thus, in fairness to the accused and to this Court, as well as in keeping with Fed. R. Evid. 404(b), the defendants' motion should be granted.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

__________________________

L. Barrett Boss

Assistant Federal Public Defender 625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. xx- 159-01 (PLF)

)

xxxxxxxxxxxxxxxxxx, )

)

Defendant. )

_________________________ )

ORDER

Upon consideration of Defendant xxxxxxxxxxMotion to Direct the Government to Give Notice of its Intention to Rely on Other Crimes Evidence, the Incorporated Memorandum in Support thereof, the government's Response thereto, it is this ________ day of _____________, 1997, hereby

ORDERED that defendant xxxxxxxxxxMotion is granted; and it is further

ORDERED that the prosecution shall immediately provide the defense with particularized notice of any uncharged overt acts on which the government will attempt to introduce evidence at trial.

________________________________

THE HONORABLE PAUL L. FRIEDMAN

UNITED STATES DISTRICT JUDGE

Copies to:

L. Barrett Boss Mark Gellar

625 Indiana Avenue, N.W. Assistant U.S. Attorney

Suite 550 555 4th Street, N.W.

Washington, D.C. 20004 Washington, D.C. 20001

CERTIFICATE OF SERVICE

I hereby certify that on the 7th day of May, 1997 the foregoing Motion was served by hand (drop box), upon:

Mark Gellar

Office of the United States Attorney

for the District of Columbia

555 - 4th Street, N.W.

Washington, D.C. 20001

__________________________

L. Barrett Boss