Sample Motion Pursuant to Fed. R. Evid. 404(b) - Federal Public ...

etween the proffered evidence and an issue at trial other than character is essential Huddleston v.
United States, 485 U.S.681, 686 (1988); United States v. Echeverri, 854 F.2d 638,644 (3rd Cir.
1988). See also Government v. Virgin Islands v. Archibald, 987 F.2d 180 (3rd Cir. 1993).
Speculation is not evidence of a connection between two matters. See, United States v. Schwartz,
790 F.2d 1059.
In this case only speculation and guesswork can provide the link between the documents and
testimony sought to be introduced by the government and defendant’s intent to commit the instant
offense. The documents and testimony relate to persons and activity which are not covered in the
indictment. It is not sufficient for the government to speculate that these documents or this testimony
has any bearing on the defendant’s intent in this case. Additionally, the documents and testimony is
substantially outweighed by the prejudice to the defendant resulting from their use.
B. Assuming, arguendo, that the prior crimes are marginally relevant, its relevance
is substantially outweighed by the risk of unfair prejudice to Mr. Donato.
Fed. R. Evid. 403 states in pertinent part: "although relevant, the evidence may be excluded
if its probable value is substantially outweighed by the danger of unfair prejudice, confusion of issues,
or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence." This is precisely the type of situation in which the proffered evidence tends
to focus the jury on the prior acts instead of the instant crime charged. It is a very short hop for the
jury to improperly conclude that since the defendant did it before, he probably did it this time. The
past tax non-compliance are the same and the government argues that the manner in which the crimes
were committed are the same. This, coupled with the strength of the government’s case, unfairly
prejudices the defendant in a way that substantially outweighs any marginal relevance the evidence
has to the purposes for which the government offers it (specific plan, method and motive). Moreover,
given the clear and strong evidence the government is likely to offer concerning the instant offense,
the presentation of the prior crime evidence is simply a "needless presentation of cumulative
evidence."
For the foregoing reasons, Mr. Donato submits that the government’s motion to admit
evidence of a prior fraud and perjury pursuant to Fed. R. Evid. 404(b) should be denied.
cc: Michael Visiliadis, Esq.
Joseph Donato
Respectfully Submitted,
s/Christopher O’Malley
Assistant Federal Public Defender