144.

Sample Response to Defendant's Request for Notice of Intention to Use Federal Rule 404(b) Evidence

Defendant's Request for Notice of Intention to Use Federal Rule 404(b) Evidence Should be Dismissed as Moot. Defendant has filed with the Court a formal request for notice of the government's intention to introduce evidence pursuant to Rule 404(b) of the Federal Rules of Evidence. Because the government has already provided such notice to Defendant, and has acknowledged its continuing obligation to provide such evidence as it is recognized, Defendant's request should be dismissed as moot. Under the terms of the executed discovery agreement dated May 4, 1995, attached hereto as Exhibit C, the government agreed that, within two weeks, it would provide to Defendant Sheldon notice of evidence that the government may seek to introduce pursuant to Rule 404(b) of the Federal Rules of Evidence, along with copies of any physical and documentary evidence which it intends to introduce during its case in chief. In light of the possibility that further evidence may come to the attention of the government, or its relevance may later become apparent, the government also agreed to disclose additional Rule 404(b) material as it is recognized. Pursuant to its agreement, on May 15, 1995, the government provided full discovery to Defendant Sheldon, the scope of which is documented in a May 15, 1995 letter to Defendant's attorney, attached hereto as Exhibit D. The letter specifically draws to the defense's attention particular "information or acts which [the government] intend[s] to introduce as evidence of intent, either directly or under Rule 404(b) of the Federal Rules of Evidence." This evidence is described as: (1) certain tangible evidence including literature which Sheldon distributed in recruiting for the Ku Klux Klan and other racist literature, a copy of the videocassette "Mississippi Burning," and a racially offensive target for target practice bearing the caption, "Official Runnin' NIGGER Target"; (2) evidence that, in the summer of 1991, Sheldon threatened to kill a black youth and later tried to run into him with a truck; (3) evidence that Sheldon repeatedly hurled racial insults at African-Americans and bragged of racially provoked assaults he committed. As the discovery letter suggests, it is the government's position that most, if not all, of this evidence is admissible as direct evidence of Sheldon's racial animus and his corresponding intent to threaten, intimidate and interfere with the victims because they were exercising their federal housing rights. Nevertheless, to the extent any of this evidence might be construed as Rule 404(b) evidence, the government already has notified the defendant of its intention to introduce the evidence. The government will provide more formal notice of its intentions in this regard in a timely fashion and, as agreed, will continue to apprise the defense of other potential Rule 404(b) evidence as it comes to the government's attention. For these reasons, Defendant Sheldon's instant request should be dismissed as moot. [cited in Civil Rights Resource Manual 60]