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September 16, 2005.


The opinion of the court was delivered by: M. JAMES LORENZ, District Judge

Mr. Martinez hereby incorporates his previously submitted statement of facts in this case.


  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 forth below.

  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 articulated theory.

  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. 1995),
"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 actually happened.'"

  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 therefore immaterial.

  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. Id.

  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 ...

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