EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, June 11, 2014

Did You Notice That?: Cathedral Bible College Case Calls Into Question Rule 404(b)'s Notice Requirement

According to an article on Carolina Live,

A federal grand jury indicted Dr. Reginald Wayne Miller Tuesday on two counts of forced labor against international students at Cathedral Bible College in Marion where Miller serves as President.  

The indictment says Miller did knowingly provide and obtain labor and services of individuals known as John Doe #1 and John Doe #2, by means of abuse and threatened abuse of law and legal process.

Miller's attorney filed motions Tuesday in federal court asking prosecutors to disclose their intent to use any evidence of other crimes, wrongs, or acts under federal rules of evidence.

So, what evidence is Miller's attorney likely seeking, and when is he likely to receive it?

Federal Rule of Evidence 404(b) reads as follows:

(b) Crimes, Wrongs, or Other Acts.  

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.  

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:  

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and  

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Ostensibly, Miller's attorney is seeking evidence that the prosecution might use to prove "plan," i.e., common plan or scheme/modus operandi. In other words, Miller's attorney is likely seeking evidence that the prosecution might have of other John Does whom Miller allegedly conscripted into forced labor.

So, when is he likely to receive it? The answer is: probably not anytime soon. Now, of course, the judge could order that the prosecution turn over such evidence at any point in time. The judge could, for instance, order that the prosecution turn over the evidence in the next month of within a month of trial. It is far likelier, however, that the judge enters an open ended order, simply requiring the prosecution to prove such notice "before trial."

That was the case in United States v. Armstrong, 2007 WL 4386489 (4th Cir. 2007), a South Carolina case involving drug trafficking. In that case, after he was convicted, Armstrong appealed, claiming that one week's notice of "other acts" evidence was insufficient under Federal Rule of Evidence 404(b). Specifically, Armstrong contended that disclosure "was untimely because Armstrong had requested a notice on September 13, 2004, the Government knew of the evidence prior to the indictment, and the Government did not file its notice until November 30, 2004, just days before trial."

The Fourth Circuit disagreed, concluding that

In order to introduce evidence under Rule 404(b): "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." Fed.R.Evid. 404(b). We find the Government's notice given a week in advance of trial was not untimely.



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