In drug distribution trial, the government did not commit plain error by failing to provide pretrial notice under FRE 404(b) when the government was unaware that the witness would respond at trial that she paid for methamphetamine from the defendant with “Money; sometimes sex”, in United States v. Lopez-Medina, 596 F.3d 716 (10th Cir. Feb. 19, 2010) (No. 08-4055)
Some evidence rules have a pretrial notice requirement before certain evidence may be introduced. One example is for other act evidence under FRE 404(b). In 1991, FRE 404 was amended to include a pretrial reasonable notice requirement in criminal cases which provides: “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.” See ACN (1991) (noting “the notice requirement serves as condition precedent to admissibility of 404(b) evidence”). One purpose of the notice requirement is “to reduce surprise and promote early resolution of admissibility issues.” United States v. Vega, 188 F.3d 1150, 1153 (9th Cir. 1999); see also ACN (1991) (the pretrial notice requirement “is intended to reduce surprise and promote early resolution on the issue of admissibility”).
How do the parties and court address the issue of so-called “surprise” FRE 404(b) evidence, where the notice that is provided does not fully match the scope of the trail testimony and the party disclosing the information was unaware of these details? The Tenth Circuit recently considered this issue.
In the drug prosecution case, before trial, the government filed pre-trial notice of its intent to introduce testimony that one witness would testify “about her drug deals with Lopez-Medina in Summer 2005, the frequency of the deals, and the truck Lopez-Medina drove.” At trial, the witness told the jury that the defendant solely provided her with methamphetamine. The prosecutor asked:
“Q. Obviously [methamphetamine is] expensive. How did you pay for your methamphetamine?
A. Money; sometimes sex.”
Lopez-Medina, 596 F.3d at 728. The jury convicted the defendant of possessing with intent to distribute 500 grams or more of methamphetamine. After his conviction, the defendant challenged the surprise FRE 404(b) evidence concerning the “sex-for-meth” testimony for the first time on appeal.
The Tenth Circuit reviewed the issue for plain error, since no trial objection had been made to the challenged testimony, and found none. After providing pre-trial notice, the government contended that it was unaware that the witness would provide the response she did. The circuit relied on prior precedent to address the claim:
“In United States v. Kravchuk, we held the trial court did not err in denying the defendant’s motion for a mistrial on the ground the government failed to provide notice one of its witnesses would testify the defendant had threatened to kill the witness because ‘the government did not know about the witness’s testimony so as to warn the defendant, and therefore Rule 404(b)’s notice provision cannot apply.’ 335 F.3d 1147, 1155 (10th Cir. 2003). This holding is equally applicable here. The government disclosed the general nature of Kiesz’s bad act evidence and cannot be held responsible for failing to disclose certain information about which it had no advance knowledge. Like in Kravchuk, Kiesz’s testimony was ‘spontaneous’ and did not trigger the notice requirement of Rule 404(b).”
Lopez-Medina, 596 F.3d at 739.
The circuit noted that there was no evidence suggesting the government was aware of the specific answer given by the witness. The testimony was viewed as spontaneous. One aspect not covered in the opinion was the nature of the notice. The pre-trial notice obligation requires notice about “the general nature of any such evidence.” If the trial testimony deviates significantly from the pre-trial notice, questions about what was known and why it was not provided may be presented on whether sufficient notice was provided.
Among other issues, the case also presented a Confrontation Clause issue, which was previously considered. See Opening The Door To Statements Otherwise Barred Under The Confrontation Clause.
Comments
Post new comment