Tuesday, March 17, 2009
You're On Notice: Eleventh Circuit Finds that Rule 404(b)'s Notice Requirement Doesn't Apply To Intrinsic Evidence
The recent opinion of the Eleventh Circuit in United States v. Watley, 2009 WL 635185 (11th Cir. 2009), reveals that the criminal pre-trial notice requirement of Federal Rule of Evidence 404(b) applies only if the evidence at issue is extrinsic to the charged offense.
In Watley, Anthony Watley appealed from his convictions for being a felon in possession of firearms, possessing cocaine with intent to distribute, and possessing a firearm in furtherance of a drug trafficking offense. These convictions resulted from a drug bust at Watley's house on May 22, 2007, and the prosecution also presented evidence of prior drug sales at Watley's house on April 30, 2007 and May 18, 2007.
On Watley's appeal, the Eleventh Circuit rejected his argument that evidence regarding these other drug sales was inadmissible under Federal Rule of Evidence 404(b); instead, the court found that:
Since Watley was charged with possessing cocaine with intent to distribute, the government was entitled to establish, through circumstantial evidence, Watley's knowledge of the cocaine at the house and knowledge of, if not direct participation in, the drug distributions that occurred there.
The court also found that the evidence of the other drug sales was admissible to explain why a search warrant was obtained for Watley's house.
Watley also raised the argument that the evidence of these other drug sales was inadmissible because the prosecution failed to provide him with pre-trial notice of its intent to introduce this evidence in accordance with the last clause of Federal Rule of Evidence 404(b), which states that:
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.
The Eleventh Circuit, however, rejected this argument, finding that the evidence at issue was intrinsic, rather than extrinsic, to the charged offense. In other words the evidence of the other contemporaneous drug sales was "inextricably intertwined" with the charged offense, both in terms of the behavior of Watley in committing the subject crime and the police in investigating that crime. And because it was intrinsic evidence, Watley should have known that the prosecution would admit it and was not entitled to the pre-trial notice otherwise required by Federal Rule of Evidence 404(b)