F. Richard Curtner
Federal Public Defender
FEDERAL PUBLIC DEFENDER
FOR THE DISTRICT OF ALASKA
550 W. Seventh Avenue, Suite 1600
Anchorage, AK 99501
(907) 271-2277
Sue Ellen Tatter
510 L Street, Suite 306
Anchorage, AK 99501
(907) 277-7171
Attorneys for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. F96-0026 CR (HRH)
)
Plaintiff, )
)
vs. ) MOTION TO REQUIRE DISCLOSURE
) OF 404(b) EVIDENCE
xxxxxxxxxxxxxxx, )
)
Defendant. )
____________________________________)
COMES NOW THE DEFENDANT, xxxxxxxxxxx, by and through his attorneys, RICH CURTNER, Federal Defender and SUE ELLEN TATTER, and pursuant to Federal Rule of Evidence 404(b) and to Amendments V, VI, and VIII, United States Constitution, and respectfully moves this Court to require the government to provide notice within the next thirty (30) days of its intention to offer evidence of other crimes, wrongs, or bad acts allegedly committed by the accused, and to disclose the facts and circumstances underlying such evidence.
Federal Rule of Evidence 404(b), in conjunction with Rule 403, regulates the admissibility of evidence of other crimes, wrongs, or bad acts allegedly committed by the defendant or others in the course of his trial on the instant charges. Rule 404(b) "has emerged as one of the most cited Rules in the Rules of Evidence." Commentary to 1991 Amendment of Rule 404(b), Federal Criminal Code and Rules, 231 (1991 Rev. Ed.).
When such evidence is offered at trial, extensive litigation usually ensues. The issue as to whether or not the evidence serves a legitimate purpose, or whether it serves instead illegitimately to prove a criminal propensity or general bad character, is usually hotly contested. Equally controversial is the judgment the court has to make as to whether or not any legitimate probative value outweighs the serious risk of unfair prejudice. An erroneous determination of the admissibility of such evidence may well be reversible error, and, in some cases, creates error of constitutional magnitude. See, e.g., Walker v. Engle, 703 F.2d 959 (6th Cir. 1983); Bryson v. Alabama, 634 F.2d 862 (5th Cir. 1981).
Most courts and commentators have recognized the desirability of requiring the proponent of such evidence to give pretrial notice of the intent to introduce it, so that litigation can occur before jeopardy attaches. Not only does this facilitate litigation of the issues, but it also provides the person against whom such evidence may be admitted with a fair opportunity to prepare to meet the impact of other uncharged offense evidence. United States v. Foskey, 636 F.2d 517, 526 n.8 (D.C. Cir. 1980); Imwinkelried, Uncharged Conduct Evidence § 906 (1984) & 1987 (Cumulative Supplement). This view became a part of Rule 404(b) with the adoption of an amendment effective on December 1, 1991. The rule now conditions admissibility of such evidence upon government disclosure. If other crime evidence is otherwise admissible, it may be introduced --
provided that upon request by the accused, the prosecution in a criminal case shall 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 it intends to introduce at trial.
Federal Rule of Evidence 404(b). The purpose of the amendment is "to reduce surprise and promote early resolution of the issue of admissibility." Commentary, supra at 231.
Pretrial disclosure upon request is required, regardless of when or how the government intends to use the evidence at trial. "The amendment requires the prosecution to provide notice, regardless of how it intends to use the extrinsic act evidence at trial, i.e., during its case-in-chief, for impeachment, or for possible rebuttal." Commentary, supra at 231.
Because admissibility is conditioned upon the provision of satisfactory pretrial notice, "the offered evidence is inadmissible if the court decides that the notice requirement has not been met." Commentary, supra at 231.
In the instant case the government has agreed to provide Rule 404(b) evidence seven days prior trial. This case is unique within this District in that it is currently a potential death penalty prosecution. Because of the potential capital nature of these proceedings any "404(b)" evidence may have significant impact on both guilt and sentencing phases of this prosecution. Therefore, Mr. Walter is requesting disclosure of 404(b) evidence within thirty (30) days of the date of an Order granting this motion.
Although the notice required by Rule 404(b) usually does not include the disclosure of witnesses to the proffered events, Commentary, supra, at 231, such disclosure is required in this case unless and until the possibility of capital punishment is definitively removed. 18 U.S.C. § 3432; Amsler v. United States, 381 F.2d 37 (9th Cir. 1967).
The failure to provide pretrial disclosure of other crimes evidence in this purportedly capital case would impair defendant's rights to due process of law, to the effective assistance of counsel, to confront witnesses against him, and to compel the presence of witnesses in his own behalf, all in violation of his Fifth and Sixth Amendment rights under the United States Constitution. Moreover, the surprise introduction of such evidence without sufficient pretrial notice would impair his right to a full and fair hearing, rendering any subsequent conviction and sentence violative of the Eighth Amendment to the United States Constitution.
WHEREFORE, for the reasons stated herein and for such other reasons as may appear to the Court, defendant asks that his Motion to Require Disclosure of 404(b) Evidence be granted, and that the accompanying proposed Order be entered.
\\\
\\\
\\\
\\\
DATED this _____ day of July, 2000.
Respectfully submitted,
__________________________________
RICH CURTNER
Federal Defender
DATED this _____ day of December, 1996.
___________________________________
SUE ELLEN TATTER
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. F96-0026 CR (HRH)
)
Plaintiff, )
)
vs. ) ORDER GRANTING MOTION TO
) REQUIRE DISCLOSURE OF
xxxxxxxxxxxxxxxxx, ) 404(b) EVIDENCE
)
Defendant. )
____________________________________)
Upon consideration of defendant xxxxxxxxr's Motion to Require Disclosure of 404(b) Evidence, of any Opposition thereto, and of any Reply, it is hereby ORDERED that the Motion be, and hereby is, GRANTED;
and it is FURTHER ORDERED that the government shall serve notice of its intent to introduce at defendant's trial evidence of any other crimes, wrongs, or bad acts allegedly committed by defendant, pursuant to Federal Rule of Evidence 404(b), along with a specification of the facts underlying such evidence, within thirty (30) days of the date this Order is issued;
and it is FURTHER ORDERED that the duty to provide notice of intent to introduce, and specification of, evidence under 404(b) is a continuing one, which the government shall fulfill by disclosing any additional 404(b) evidence and the facts and circumstances underlying it as soon as practicable after learning of such evidence, but in no event later than forty-five (45) days prior to trial;
and it is FURTHER ORDERED that other 404(b) evidence of which the government learns for the first time subsequent to such date shall be immediately brought to the attention of the defendant and the court, and the government shall, if it seeks to introduce such evidence, provide a motion in limine explaining when it first learned of the evidence, setting forth a summary of the evidence and underlying facts, and identifying the bases upon which the government asserts it can be admitted, prior to any such evidence being referred to, offered, or elicited during trial.
DATED this _____ day of July, 2000.
__________________________________________
UNITED STATES DISTRICT JUDGE
F. Richard Curtner
Federal Public Defender
FEDERAL PUBLIC DEFENDER
FOR THE DISTRICT OF ALASKA
550 W. Seventh Avenue, Suite 1600
Anchorage, AK 99501
(907) 271-2277
Sue Ellen Tatter
510 L Street, Suite 306
Anchorage, AK 99501
(907) 277-7171
Attorneys for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. F96-0026 CR (HRH)
)
Plaintiff, )
) CERTIFICATE OF SERVICE
vs. )
)
xxxxxxxxxxxxxxxxxx, )
)
Defendant. )
____________________________________)
DEBBYE MINZENMAYER, being first duly sworn upon oath, deposes and states as follows:
1. I am an employee of the Federal Public Defender, counsel for defendant xxxxxxxxxxx in the above-captioned action. I am nineteen (19) years of age or older.
2. On the ____th day of July, 2000, I mailed a true and correct copy of MOTION TO REQUIRE DISCLOSURE OF 404(b) EVIDENCE and proposed ORDER to:
Stephen Cooper
Asst. U.S. Attorney
U.S. ATTORNEY'S OFFICE
Federal Courthouse Building
101 Twelfth Avenue, Box 2
Fairbanks, AK 99701
_________________________________
DEBBYE MINZENMAYER
F. Richard Curtner
Federal Public Defender
FEDERAL PUBLIC DEFENDER
FOR THE DISTRICT OF ALASKA
550 W. Seventh Avenue, Suite 1600
Anchorage, AK 99501
(907) 271-2277
Sue Ellen Tatter
510 L Street, Suite 306
Anchorage, AK 99501
(907) 277-7171
Attorneys for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. F96-0026 CR (HRH)
)
Plaintiff, )
)
vs. ) MOTION TO PRODUCE EVIDENCE
) FOR INSPECTION AND EXPERT
xxxxxxxxxxxx, ) EXAMINATION
)
Defendant. )
____________________________________)
COMES NOW THE DEFENDANT, xxxxxx, by and through his attorneys, RICH CURTNER, Federal Defender and SUE ELLEN TATTER, and moves this court for an order requiring the government to provide any and all evidence within the possession, custody or control of the United States of America, on the existence of which is known or by the exercise of due diligence could become known, pertaining to the crime scene investigation of the homicide in Ruby, Alaska, described in Count I of the indictment, the medical treatment of the victim of the Ruby homicide, and the medical examination and autopsy of the victim.
This request is made pursuant to Federal Rule of Criminal Procedure 16(a)(1)(C). A critical issue in the prosecution of this indictment is the manner and cause of death of Agnes Wright at the Ruby post office on June 20, 1996. Critical evidence necessary and material for the preparation of Mr. Walter's defense is all evidence of the crime scene investigation, and all evidence of the medical treatment of Ms. Wright, and subsequent medical examination and autopsy. This evidence is essential for the preparation and investigation by defense counsel, investigators and experts.
WHAT THE GOVERNMENT HAS PROVIDED IN DISCOVERY
1. Physical Evidence At the Postal Inspector's Office.
The defense has had the opportunity to examine many items of physical evidence from the crime scene presently located at the Postal Inspector's Office in Anchorage, Alaska. Other items of physical evidence from the crime scene are presently at forensic crime labs in and outside of Alaska. The Postal Inspectors have assured the defense that this evidence will be available for inspection upon completion of forensic examination. Defense counsel assumes that the same evidence will be made available to defense experts upon request.
2. Autopsy Report. The defense has been provided with the autopsy report of Agnes Wright.
3. Crime Scene Video. The defense has been provided with a copy of a video tape of the crime scene recorded by law enforcement officials. A portion of the audio on the video tape indicates that the crime scene may have been significantly altered and/or disturbed prior to the video recording.
4. Photos Of The Crime Scene And Autopsy. Numerous photographs in the possession of the government have been examined by defense counsel and are in the process of reproduction for the defense.
WHAT THE DEFENSE REQUESTS
1. All Other Documents/Materials Concerning The Crime Scene Investigation, Medical Treatment And Examination.
In order to fully investigate and prepare a defense Mr. Walter requests all other documentation including but not limited to:
a) All medical records and written documentation and/or notes regarding the medical treatment of Agnes Wright by emergency medical personnel at the Ruby Post Office;
b) Communications of emergency personnel, including dispatch tapes and communications between medical personnel and law enforcement;
c) Statements by medical personnel and community members to law enforcement concerning observations of the crime scene and victim;
d) Notes of state and federal law enforcement officers concerning observations of the crime scene and victim, including evidence at the scene that may be attributable to medical personnel;
e) A list of all witnesses known to the government and state law enforcement that observed the crime scene or victim; and,
f) Notes and any and all written documentation of the autopsy and medical examination of Agnes Wright.
Mr. Walter respectfully requests an order requiring the government to exercise due diligence to produce the above evidence and information for inspection and investigation by defense counsel and experts.
DATED this _____ day of July, 2000.
Respectfully submitted,
__________________________________
RICH CURTNER
Federal Defender
DATED this _____ day of December, 1996.
__________________________________
SUE ELLEN TATTER
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. F96-0026 CR (HRH)
)
Plaintiff, )
)
vs. ) ORDER
)
xxxxxxxxxxxxxxxxxxxxxxxxxx, )
)
Defendant. )
____________________________________)
After review of the defendant's Motion to Produce Evidence for Inspection and Expert Examination IT IS HEREBY GRANTED/DENIED. The government is order to exercise due diligence and produce evidence for inspection and expert examination upon the specific request of the defendant.
DATED this _____ day of July, 2000.
__________________________________________
U.S. DISTRICT JUDGE
F. Richard Curtner
Federal Public Defender
FEDERAL PUBLIC DEFENDER
FOR THE DISTRICT OF ALASKA
550 W. Seventh Avenue, Suite 1600
Anchorage, AK 99501
(907) 271-2277
Sue Ellen Tatter
510 L Street, Suite 306
Anchorage, AK 99501
(907) 277-7171
Attorneys for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. F96-0026 CR (HRH)
)
Plaintiff, )
) CERTIFICATE OF SERVICE
vs. )
)
xxxxxxxxxxxxxxxxx, )
)
Defendant. )
____________________________________)
DEBBYE MINZENMAYER, being first duly sworn upon oath, deposes and states as follows:
1. I am an employee of the Federal Public Defender, counsel for defendant xxxxxxxxxxxx in the above-captioned action. I am nineteen (19) years of age or older.
2. On the ____th day of July, 2000, I mailed a true and correct copy of MOTION TO PRODUCE EVIDENCE FOR INSPECTION AND EXPERT EXAMINATION and proposed ORDER to:
Stephen Cooper
Asst. U.S. Attorney
U.S. ATTORNEY'S OFFICE
Federal Courthouse Building
101 Twelfth Avenue, Box 2
Fairbanks, AK 99701
_________________________________
DEBBYE MINZENMAYER
C:\wwwfpd\404binsp.wpd