Tuesday, October 30, 2007
In United States v. Green, 2007 WL 3052847 (4th Cir. 2007), the United States Court of Appeals for the Fourth Circuit affirmed Monte Alexander Green's convictions stemming from his attempted robbery of a pawn shop in 2003. Green had challenged his convictions by alleging, inter alia, that the prosecutor failed to give him proper notice that he intended to introduce evidence pursuant to Federal Rule of Evidence 404(b) indicating that Green previously robbed another pawn shop in 2003.
Federal Rule of Evidence 404(b) states that evidence of another crime is admissible for purposes of proving, inter alia, intent on the part of the defendant, and Green did not dispute on appeal that the evidence of the prior pawn shop robbery was admissible to prove intent. Rule 404(b), however, also requires that when the prosecution in a criminal case seeks to introduce 404(b) evidence against an accused, it must 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.
Green appealed his conviction because the prosecutor gave him notice of his intent to introduce evidence of the prior pawn shop robbery only four days before trial. The Fourth Circuit rejected his argument, although its reasoning is somewhat unclear. In a footnote, it mentioned that the prosecution only learned about the earlier bank robbery approximately one week before trial. The court then noted in the body of its opinion that the failure to provide pretrial notice can be excused when good cause is shown, but it failed to indicate whether the prosecution showed good cause in the Green case.
The Fourth Circuit then stated that defense counsel rejected the District Court's offer to delay the trial for an extra day so that he could prepare a response to the 404(b) evidence. Then, without further explanation, the court concluded, "Under these circumstances, the district court did not abuse its discretion in admitting the evidence."
This led me to evaluate past Fourth Circuit Rule 404(b) notice cases, and I found an interesting and troubling result when researching the Fourth Circuit's definition of "good cause." In its unpublished opinion in United States v. Fitzgerald, 74 F.3d 1234 (4th Cir. 1996), the Fourth Circuit noted that the prosecutor allegedly failed to comply with a district court order requiring five days notice before presenting 404(b) evidence at trial. The prosecutor then presented evidence or prior robberies to prove common plan or scheme by the defendant under Rule 404(b).
The court found that despite this alleged failure to provide adequate notice, "based upon the probative nature of the robbery incidents, the district court had good cause to excuse any pre-trial notice requirement for the use of 404(b) evidence." This decision makes no sense to me. The way I see it, a prosecutor proves "good cause" for failing to provide notice under Rule 404(b) when there is a reasonable explanation for why notice was not given.
An illustrative case is United States v. Allen, 182 Fed.Appx. 903, 914 (11th Cir. 2006), where the court found that the failure to provide notice of Rule 404(b) evidence was excused based upon "good cause" because the prosecutor "just learned" about the 404(b) evidence before trial. Similarly, if the Fourth Circuit in Green based its decision on "good cause," the good cause would have been the similar fact mentioned in the footnote that the prosecution only learned of the 404(b) evidence approximately a week before trial.
In United States v. Fitzgerald, however, the Fourth Circuit seemed to find "good cause" based upon the fact that the 404(b) evidence at issue was expecially probative. In my mind, however, this would provide the opposite of good cause. If a prosecutor has 404(b) evidence that has weak probative value, perhaps the prosecutor would have good cause for not notifying the defendant of the evidence because the prosecutor might not decide to use it until trial starts. But if the prosecutor has reason to know that 404(b) evidence is highly probative and will definitely be used at trial, this would seem to make the prosecutor's failure to provide notice less justifiable.