The opinion of the court was delivered by: M. JAMES LORENZ, District Judge
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S
MOTIONS IN LIMINE AND OTHER TRIAL MOTIONS.
STATEMENT OF FACTS
Mr. Martinez hereby incorporates his previously submitted
statement of facts in this case.
THE COURT SHOULD BAR THE GOVERNMENT FROM INTRODUCING EVIDENCE OF
OTHER CRIMES, WRONGS, OR BAD ACTS
The government has not given notice of whether it will attempt
to introduce in its case-in-chief any of the prior convictions or
other acts of Mr. Martinez. If in the course of events, the
government does attempt to introduce the above evidence in its
case-in-chief, three reasons preclude such admission. First, the
government did not give notice. Second, it is inadmissable under
rule 404(b) as it does not meet the four requirements. Finally,
admission of any of the above evidence is unduly prejudicial
under Federal Rules of Evidence 403. The authorities are set
A. Government Has Not Given Notice The government has not given notice that it intends to
introduce any evidence pursuant to Rule 404(b). Specifically, the
government has not notified the defense that it intends to
introduce evidence of any of Mr. Matinez' prior convictions. Not
only must the government provide defense notice of the use of the
above mentioned evidence in its case-in-chief, the government
must also provide notice which is "complete." See United
States v. Vega, 188 F.3d 1150, 1152 (9th Cir. 1999). A complete
notice is one which states the basis for the introduction of the
evidence as the Rule requires. See United States v.
Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982); see also
United States v. Brooke, 4 F.3d 1480, 1483 (9th Cir. 1993)
(reaffirming Mehrmanesh and reversing convictions). In other
words, "the government `must articulate precisely the evidential
hypothesis by which a fact of consequence may be inferred from
the other acts evidence.'" United States v. Mayans,
17 F.3d at 1181. The government has the burden of demonstrating how the
proffered evidence is relevant to one or more issues in the case.
Mehrmanesh, 689 F.2d at 830 (9th Cir. 1982).
Here, the government fails to meet the requirements of 404(b)
it fails to provide defense with proper notice failing to state
on what grounds within the Rule it believes this generally
inadmissible propensity evidence can be introduced in this case.
It fails to state how and why Mr. Martinez' convictions are
relevant to any of the issues presented in this case. Without
notice of the manner in which the government intended to offer
the prior act evidence the defense cannot challenge the
B. The Government Cannot Satisfy the Strictures for
Admissibility under Rule 404(b)
Federal Rule of Evidence 404(b) states:
"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." The
evidence may be admissible, however, for other
purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. . . ."
Fed. Rule of Evid. 404(b). This Court has repeatedly recognized
the danger of admitting other act evidence. See, e.g. United
States v. Vizcarra-Martinez, 66 F.3d 1006
, 1013-1014 (9th Cir.
"Extrinsic act evidence is not looked upon with favor
. . . `our reluctance to sanction the use of evidence
of other crimes stems from the underlying premise of
our criminal system, that the defendant must be tried
for what he did, not for who he is.' Thus, `guilt or
innocence of the accused must be established by
evidence relevant to the particular offense being
tried, not by showing that the defendant has engaged in other acts of wrongdoing."
(citation omitted). The government has the burden of
demonstrating how the proffered evidence is relevant to one or
more issues in the case. United States v. Mehrmanesh,
689 F.2d at 830 (9th Cir. 1982).
The Supreme Court has also recognized that evidence of
defendants' prior bad acts "only tend[s] to prejudice the
defendants with the jurors, to draw their minds away from the
real issue, and to produce the impression that [the defendants]
were wretches whose lives were of no value to the community, and
who were not entitled to the full benefit of the rules prescribed
by law for the trial of human beings." Boyd v. United States,
142 U.S. 450, 458 (1892). The drafters of the Federal Rules of
Evidence likewise recognized the powerful tendency of character
evidence to shift jurors' focus from defendants' actions to their
character, noting that it "`subtly permits the trier of fact to
reward the good man and to punish the bad man because of their
respective characters despite what the evidence in the case shows
Because of the great risks associated with admitting prior act
evidence, the admissibility of prior act evidence is determined
through a four-part test examining whether: (1) the evidence
tends to prove a material point; (2) the prior act is not too
remote in time; (3) the evidence is sufficient to support a
finding that the defendant committed the other act; and (4) the
act is similar to the offense charged (for cases where knowledge
and intent are at issue). Mayans, 181 F.3d at 1181. Mr.
Martinez challenges the admission of his prior convictions,
evidence of the accident scene, and property taken from the
vehicles involved in the accident because the first and fourth
factors require exclusion of this evidence.
First, it should be noted that the first and fourth prongs of
the test are related: this Circuit has noted that: "the greater
is the dissimilarity of the two offenses, the more tenuous is the
relevance." United States v. Hernandez-Miranda, 601 F.2d 1104,
1109 (9th Cir. 1979). Mr. Martinez has sustained a number of
convictions, none of which are relevant to the instant offense.
The prior convictions cannot be introduced to demonstrate
knowledge, intent or motive or any of the other grounds specified
in Rule 404(b). These prior convictions are completely unrelated to the
offenses charged in the present case. The elements of the
previous convictions in no way help the government prove a
material element of the offenses charged in this case and are
C. Even if Relevant, Evidence of Other Crimes, Wrongs, or
Acts Must Still Be Excluded Under Fed. Rule Evid. 403.
If a court determines that prior bad act evidence is admissible
under FED. R EVID. 404(b), the Court must then determine whether
the evidence will be unduly prejudicial. "[B]ad act evidence that
admittedly is probative of one of the issues listed in Rule
404(b) may nevertheless be excluded." Additionally, "Rule 404(b)
does not offer a `mechanical solution,' but provides, by its very
terms, only that such evidence `may' be admissible." Id.
(quoting the Advisory Committee's Note to Rule 404.) Thus, even
if a court finds that the prior bad act evidence is admissible it
must consider the prejudicial effect of such evidence:
The determination must be made whether the danger of
undue prejudice outweighs the probative value of the
evidence in view of the availability of other means
of proof and other factors appropriate for making
decisions of this kind under Rule 404.
Therefore, if the bad act evidence has only a slight tendency
to make the existence of any fact that is of consequence more
probable and the introduction of this evidence makes conviction
more likely because it provokes an emotional response in the jury
or otherwise adversely affects the jury's attitude toward the
defendant, apart from the guilt or innocence of the crime
charged, the court should weigh the balance in favor of excluding
the bad act evidence. United States v. Bailleaux,
685 F.2d 1105, 1110-11 (9th Cir. 1982). In Foskey the court held that
the prior arrest of the defendant for possession of phenmetrazine
and dilaudid should have been excluded from the prosecution for
possession of the same drug. The court stated: [r]ule 403 and 404(b) are not obstacles to be cleared at all
costs, even by cutting around corners whenever it is possible to
do so. These rules were designed to ensure the defendant a fair
and just trial based upon the evidence presented, not upon
impermissible inferences of criminal predisposition by confusion
of the issues.
United States v. Foskey, 636 F.2d 517, 525 (D.C. Cir. 1980).
Again, in United States v. Aims Back, 588 F.2d 1283 (9th Cir.
1979), the Ninth Circuit reversed a conviction due to the
admission of prior bad act evidence which, although relevant, was
unduly prejudicial. Evidence that the defendant had previously
assaulted a female was admitted against the defendant in the
trial on rape charges. The court found that the evidence was
highly prejudicial and "had very little, if any, probative
value." Id. at 1287. Consequently, the admission of such
evidence, especially in light of the trial court's failure to
give a limiting instruction, was reversible error. Id.
Likewise, when a trial court admitted evidence of an alleged
extortion attempt to prove the defendant was aware of the illegal
nature of a loan operation, the Ninth Circuit found the evidence
more prejudicial than probative. United States v. Hodges,
770 F.2d 1475, 1479 (9th Cir. 1985). The court held that the evidence
was so prejudicial that it required reversal of the conviction.
Thus, Mr. Martinez submits that admission of any alleged bad
act evidence, pursuant to Rule 404(b), would be unduly
prejudicial and should be barred accordingly. Admitting evidence
of Mr. Martinez' convictions would unduly inflame the emotions of
the jury without providing the jury with any probative or
material information ...