Appendix E -5 Prosecution's Motion to Admit Uncharged Misconduct Evidence

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

APPENDIX E-5 Prosecution's Motion to Admit Uncharged Misconduct Evidence

In separate pleadings, the United States will provide the required notice to the Court and counsel for the defendant of several instances of uncharged conduct, including prior convictions of the defendant, which the government may offer in evidence at trial.

The United States respectfully submits that, based upon the authorities discussed below, these incidents fall into two distinct categories for purposes of analysis and admission: (1) evidence admissible in the government's case-in-chief that tends to prove defendant's motive, intent, knowledge, and plan, scheme, or design, under Rule 404(b), Federal Rules of Evidence; and (2) other uncharged offenses that the government does not intend to offer in its case-in-chief unless the "door is opened" by the defense in some fashion.

Rule 404(b), of Federal Rules of Evidence provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, plan, knowledge, identity, or absence of mistake or accident . . .

Rule 404(b) is a rule of inclusion, not a rule that carries a presumption of exclusion. United States v. Arcoren, 929 F.2d 1235, 1243 (8th Cir.), cert. denied, 502 U.S. 913 (1991). If, therefore, the prosecution can offer a proper purpose for the admission of the evidence, the evidence is to be admitted unless considerations of unfair prejudice (Rule 403) dictate otherwise. United States v. Butler, 56 F.3d 941 (8th Cir.), cert. denied, 516 U.S. 924, (1995); United States v. Yellow, 18 F.3d 1438, 1441 (8th Cir. 1994); United States v. Dobynes, 905 F. 2d 1192 (8th Cir. 1990), cert. denied, 498 U.S. 877 (1990); United States v. Johnson, 892 F. 2d 707 (8th Cir. 1989). Such unfair prejudice is to be found only where the evidence shows only the criminal propensities of the defendant. United States v. Escobar, 50 F.3d 1414, 1421 (8th Cir. 1995); United States v. Sykes, 977 F.2d 1242, 1246 (8th Cir. 1992).¹ The admission of evidence under Rule 404(b) is left to the broad discretion of the trial judge. United States v. Crouch, 46 F.3d 871 (8th Cir.), cert. denied, 516 U.S. 871, (1995); United States v. Sykes, supra; United States v. House, 939 F.2d 659 (8th Cir. 1991); United States v. Yerks, 918 F.2d 1371, 1373 (8th Cir. 1990). The trial court does not abuse this discretion by admitting such evidence, unless the evidence clearly had no bearing on any material issue in the case. United States v. DeAngelo, 13 F.3d 1228, 1232 (8th Cir.), cert. denied, 512 U.S. 1224 (1994).

Such evidence is admissible in the government's case-in-chief, because the offense charged is a specific intent crime, and the "government need not await the defendant's denial of intent before offering evidence of similar acts relevant to that issue." United States v. Adcock, 558 F.2d 397, 402 (8th Cir.), cert. denied, 434 U.S. 921 (1977). Accord United States v. Schweihs, 971 F.2d 1302 (7th Cir. 1992) (prior extortionate acts as old as six years prior to charged offenses properly admitted where intent was automatically in issue as material element of charged offense); United States v. Zeuli, 725 F.2d 813 (1st Cir. 1984); United States v. Wilkes, 685 F.2d 135, 138 (5th Cir. 1982) (intent was in issue and difficult to prove without uncharged evidence; important factor in admission was the government's need for the evidence and absence of other evidence to show motive, intent, or knowledge); United States v. Hamilton, 684 F.2d 380, 384 (6th Cir.), cert. denied, 459 U.S. 976 (1982); United States v. Price, 617 F.2d 455, 459 (7th Cir. 1980).

Such prior intent incidents need not be duplicates of the one for which the defendant is now being tried . . . The degree of similarity is relevant only insofar as the acts are sufficiently alike to support an inference of criminal intent. United States v. Tuchow, 768 F.2d 855, 863 (7th Cir. 1985) (citing United States v. Radseck, 718 F.2d 233, 236-37 (7th Cir. 1983), and United States v. O'Brien, 618 F.2d 1234, 1238 (7th Cir.), cert. denied, 449 U.S. 858 (1980)). Accord United States v. Brown, 250 F.3d 580, 585-56 (7th Cir. 2001) (issue of required similarity is case specific).

The period of time that may have elapsed between a prior conviction and the charged conspiracy may not be so remote as to preclude admission or reduce the probative value of this evidence. See, e.g., United States v. Green, 151 F.3d 1111, 1114 (8th Cir. 1998) (noting Eighth Circuit approvals of admission of uncharged acts 17 years, 12 years, and 13 years before charged offenses (citations omitted)); United States v. Prevatte, 16 F.3d 767, 771-77 (7th Cir. 1994) (citing United States v. Obiuwevbi, 962 F.2d 1236, 1241 (7th Cir. 1992) (five years)) (prior offense 18 months old not too remote to show...