Case 2:10-cr-00213-EEF-JCW Document 71 Filed 04/01/11 Page 1 of 7

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA * CRIMINAL NO.: 10-213

*
VERSUS * SECTION “L”
*
MELVIN WILLIAMS *
MATTHEW DEAN MOORE *

******************************************************************************
MEMORANDUM TO EXCLUDE THE EVIDENCE SET FORTH IN THE
GOVERNMENT’S 404(b) NOTICE

NOW INTO COURT, through undersigned counsel, comes defendant, Melvin Williams,

who moves to exclude the evidence set forth in the Government’s notice of Intent to Introduce

Other Acts Evidence Against Officer Melvin Williams(hereinafter referred to as the “Notice”) on

the grounds that there is not a legitimate evidentiary theory under which the government should

be permitted to offer any of this evidence at trial.

I. THE GOVERNMENT’S 404(b) NOTICE

According to the government’s Notice, the government may seek to introduce, pursuant

to Rule 404(b), evidence related to defendant Melvin Williams’ involvement in the following

incidents: Garfield Howard Jr., Darren Williams, Neyland v. Williams, et. al, Chambers v. New

Orleans City Police Department, et. al., McNeil v. Cohen, et al., Stone v. Wackenhut Corp.; et al.

II. LAW AND ARGUMENT

Federal Rule of Evidence 404 is entitled “Character Evidence Not Admissible to Prove

Conduct: Exceptions: other Crimes.” Subsection (b) specifically provides that “[E]vidence of

other crimes, wrongs, or acts is not admissible to prove the character of the person in order to

show action in conformity therewith.” However, as the title also indicates, it is a rule for which
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there are exceptions. Nevertheless, if the proffered evidence is not within the purview of the

recognized exception, the general rule of exclusion controls. The Rule provides that such

evidence “may be admissible for the purposes, such as proof of motive, opportunity, intent,

preperation, plan, knowledge, identity, or absence of mistake or accidence, provided that 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 the pretrial notice on good cause shown, of

the general nature of any such evidence it intends to introduce at trial.”

As discussed hereinafter, defendant opposes the offer of the “other acts” evidence

adverted to in the government’s Notice on the grounds that there is not a legitimate evidentiary

theory recognized by Rule 404(b) under which the government should be permitted to offer any

of this evidence at trial.

Rule 404(b) follows the principle that evidence of extrinsic offenses should not be

admitted solely to demonstrate the defendant’s bad character. Even though such evidence is

relevant, because a man of bad character is more likely to commit a crime than one not, the

principle prohibits such evidence because it is inherently prejudicial. United States v. Beecham,

582 F2.d 898 (5th Cir. 1978), citing Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct.

213,218,93 L.Ed 168 (1948). Without an issue other than mere character to which the extrinsic

offenses are relevant, the probative value of those offenses is deemed insufficient in all cases to

outweigh the inherent prejudice. United States v. Beechum, 582 F.2d 898 (5th Cir. 1978).

What the rule calls for is essentially a two-step test. Id. First, it must be

determined that the extrinsic offense evidence is relevant to an issue other than the defendant’s

character. Id. Second, the evidence must possess probative value that is not substantially

outweighed by its undue prejudice and must meet the other requirements of rule 403. Id, citing,
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Rule 404(b) Other Crimes Evidence: The Need for a Two-Step Analysis, 71 Nw.U.L.Rev. 636

(1976). The test for relevancy under the first step is established by rule 401, which deems

evidence relevant when it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable that it would be without the

evidence.” Id. Where the evidence sought to be introduced is an extrinsic offense, its relevance is

a function of its similarity to the offense charges. Id. In this regard, however, similarity means

more than that the extrinsic and charge offense have a common characteristic. Id. For the

purpose of determining relevancy, “a fact is similar to another only when the common

characteristic is the significant one for the purpose of the inquiry at hand.” Id. Therefore,

similarity, and hence relevancy, is determined by the inquiry or issue to which the extrinsic

offense is addressed. Id.

The line of reasoning that deems an extrinsic offense relevant to the issue of intent is

valid only if an offense was in fact committed and the defendant in fact committed it. Id.

Therefore, as a predicate to a determination that the extrinsic offense is relevant, the Government

must offer proof demonstrating that the defendant committed the offense. Id.If the proof is

insufficient, the judge must exclude the evidence because it is irrelevant . Id.

The standard of proof for ruling upon factual conditions to relevancy is supplied by

Fed.R.Evid. 104(b), which states as follows:

Relevancy conditioned on fact. When the relevancy of evidence depends upon the
the fulfillment of a condition of fact, the court shall admit it upon, or subject to,
the introduction of evidence sufficient to support a finding of the fulfillment of
the condition.

As the rule provides, the task for the trial judge is to determine whether there is sufficient

evidence for the jury to find that the defendant in fact committed the extrinsic offense. United

States v. Beechum, 582 F.2d 898 (5th Cir. 1978). If it is determined that the extrinsic offense
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requires the same intent as the charges offense and that the jury could find that the defendant

committed the extrinsic offense, the evidence satisfies the first step under rule 404(b). Id.

The probative value of the evidence is a matter to weighed against its potential for undue

prejudice, and the similarity of the physical elements of the charged and extrinsic offenses

figures in at this stage. Id. Therefore, the second step of the analysis required by rule 404(b), is

whether the evidence satisfies rule 403.

The central concern of rule 403 is whether the probative value of the evidence sought to

be introduced is “substantially outweighed by the danger of unfair prejudice.” Id. One of the

dangers inherent in the admission of extrinsic offense evidence is that the jury may convict the

defendant not for the offense charged but for the extrinsic offense.Id. This danger is particularly

great where, as here, the extrinsic activity was not the subject of a conviction; the jury may feel

that the defendant should be punished for that activity even if he is not guilty of the offense

charged. Id. Moreover,”(e)ven if the jury is no more disposed to punish the accused for his

unpunished past crimes, ‘over-persuasion’ may lead them to conclude that, having committed a

crime of the type charged, he is likely to repeat it.” Id. It is for fear that the jury would draw just

this inference that extrinsic offense is excluded when it is relevant solely to the issue of the

defendant’s character. Id.

The task for the court in its ascertainment of probative value and unfair prejudice under

rule 403 calls for a commonsense assessment of all the circumstances surrounding the extrinsic

offense. Id. As the Advisory Committee Notes to rule 404(b) state: “no mechanical solution is

offered. 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 facts
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appropriate for making a decision of this kind under Rule 403.” Id., citing 28 U.S.C.A. Rules of

Evidence at 109 (1975).

In measuring the probative value of the evidence, the judge should consider the overall

similarity of the extrinsic and charged offenses.Id. If they are dissimilar except for the common

element of intent, the extrinsic offense may have little probative value to counterbalance the

inherent prejudice of this type of evidence.Id. The judge should also consider how much time

separates the extrinsic and charges offences: temporal remoteness depreciates the probity of the

extrinsic offense. Id.

Indeed, if the Government’s argument that Officer Williams acted willfully because of

the similarity between that conduct and the charged conduct, it serves as ground for exclusion

rather than admission.See Chavez v. city of Albuquerue, 402 F.3d 1039 (10th Cir. 2005) (Other

bad acts evidence regarding prior excessive force claims that had been filed against an officer for

using his police dog in connection with other arrests was not admissible in excessive force case

brought by suspected gang member in order to show absence of mistake or accident, or officer’s

modus operandi, where officer did not contend that he had accidentally or mistakenly ordered the

police dog to bite the suspect, and there was no question regarding officer’s identity); See also

United States v. taylor, 417F.3d 1176 (11th Cir. 2005) (In a prosecution for drug possession and

firearm charges, trial court did not abuse its discretion in refusing to allow defendant to cross-

examine officer, who testified that he found drugs on defendant in search incident to arrest,

regarding prior citizens’ complaints alleging harassment, planting evidence and brutality, in

order to show officer had racial bias and had motive lie and internal affairs division had

determined complaints to be unfounded); See also Tanberg v. Sholtis, 401 F.3d 1151 (10th Cir.

2005) (Evidence of three other occasions when police office allegedly arrested individuals
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without probable cause or used excessive force was not admissible to show intent, absence of

mistake or Consciousness and state of mind in arrestees’ claim against officer for use of

excessive force). It is well-settled that, where a prior conviction for a crime similar to that

charged is sought to be admitted, the prejudice inuring to such admission traditionally requires

exclusion. 1

The government would have to prove all of this extrinsic evidence in the middle

of the trial on the charged conduct. This would cause a trial within a trial to be had. This type of

extrinsic evidence is sure to confuse the issues, mislead the jury, cause undue delay, and waste

time, which is exactly what rule 403 forbids. Furthermore, officer Williams would then be

required to defend himself against allegations of misconduct that supposedly occurred over a

period of years.

III. CONCLUSION
In conclusion, the Notice fails to articulate a legitimate evidentiary theory by which any

of the “other act” evidence ought to be properly admissible under 404(b). But for propensity and

bad character, it is equally difficult for counsel to conjure any legitimate evidentiary exception to

the Rule 404’s general rule which would fairly permit allow this evidence to be admitted at trial.

Accordingly, the defendant respectfully moves that the Court bar the government’s use of any of

the evidence proffered in its Notice.

Respectfully submitted,

_____/s/Frank G. DeSalvo___
739 Baronne Street
New Orleans, LA 70119
Telephone: (504)524-4191
Facsimile: (504)821-0036
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1 See, U.S. v. Sanders, 964 F/2d 295 (4th Cir. 1992) (the evidence inadmissible under Rule 609(a)
because of the high likelihood of prejudice that accompanies the admission of such prior convictions.”)
Id. at 298. Accord, United States v. Bagley, 772 F.2d 482, 488 (9th Cir. 1958); U.S. v. Seamster, 568 F.2d
188, 191 (10th Cir. 1978)(“We recognize that proof of prior convictions of a defendant for crimes identical
or similar to the one for which he is being tried should be carefully scrutinized by the trial court in
determining whether the probative value of such evidence outweighs the prejudice to the defendant”);
U.S. v. Coleman, 2006 WL 3208677 at *3 (E.D.Pa)(“Indeed, “where…the prior conviction is sufficiently
similar to the crime charged, there is a substantial risk that all exculpatory evidence will be overwhelmed
by a jury’s fixation on the human tendency to draw a conclusion which is impermissible in law: because
he did it before, he must have done it again.”)

CERTIFICATE OF SERVICE
Undersigned counsel certifies that he has served the foregoing on all counsel of record this 1st day of April 2011 by
e-filing same, pursuant to which the Clerk of Court will send copies of the pleading electronically to all counsel.

/s/Frank G. DeSalvo