UNITED STATES DISTRICT COURT

________________ DISTRICT OF TEXAS

________________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO. __________________
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_______________________	                             §	

DEFENDANT’S MOTION IN LIMINE
(Other Crimes Evidence)

TO THE HONORABLE______________________, DISTRICT JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE ___________ DISTRICT OF TEXAS:

	NOW COMES Defendant _____________,  by and through his undersigned attorney and files this motion in limine to exclude Government’s use other crimes evidence pursuant to Rule 404(b), and would show this Honorable court as follows:
I
	______________ is charged under the Hobbs Act, 18 U.S.C. § 1951(a), with conspiring to interfere with and interfering with commerce by robbery and physical violence at a jewelry store in ___________, Texas and another in __________,  Texas. The Government has filed notice that it intends to use evidence of ___________ participation in  robberies of “______________” and a ____________ credit union (the “__________ robberies”) to prove that he committed the charged robberies.  It argues that the evidence of the _________ robberies is admissible because it proves, through common plan or modis operandi, that ___________ is the perpetrator of the charged offenses.  ________________ objects to the use of this evidence. The Government has failed to show that the ________________ robberies are sufficiently similar to the charged offenses to evince the type of “signature quality” required for admissibility under Rule 404(b) to prove identity. 
II
	Federal Rule of Evidence 404(b) provides in pertinent part: 
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
	In United States v. Beechum, this Court enunciated a two-part test for determining admissibility under Rule 404(b).  582 F.2d 898 (5th Cir. 1978).  “First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character.”  Id. at 911.  “Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of [Federal Rule of Evidence] 403.”  Id.  If this test is not met, then the evidence must be excluded, “not . . . because it has no probative value, but because it sometimes may lead a jury to convict the accused on the ground of bad character deserving punishment regardless of guilt.”  United States v.Carrillo, 981 F.2d 772, 774 (5th Cir. 1993) (quoting Beechum, 582 F.2d 898, 911).
	The Government seeks admission of evidence of the ________________ robberies under the identity exception of Rule 404(b).  The Fifth Circuit has held that the identity exception of Rule 404(b) has a “limited scope.”  United States v. Silva, 580 F.2d 144, 148 (5th Cir. 1978).  An extrinsic offense is not admissible under Rule 404(b) to show identity merely because it is committed in the same fashion, but only if it “bears such a high degree of similarity as to mark it as the handiwork of the accused.  Id; United States v. Sanchez, 988 F.2d 1384, 1393 (5th Cir. 1993); see also Carter v. Hewitt, 617 F.2d 961, 968 (3d Cir. 1980) (“[w]hen the issue is identity, it is perfectly proper and, indeed, necessary to exclude other act evidence unless” it bears marks of the handiwork of the accused).  	
	The Government has not offered sufficient evidence in this case to show that the ________________ robberies bear such a high degree of similarity to the charged offenses as to mark them the “handiwork” of ________________.   The Government merely alleges that the ________________ robberies were “committed in the same fashion” as the instant offense.  Such a generic allegation is insufficient. It does not allow the Court to determine whether the common characteristics are sufficiently distinctive to warrant an inference that the same person who committed the ________________ robberies committed the charged ones.  See United States v. Luna, 21 F.3d 874, 881 (9th Cir. 1994) (holding evidence of other robberies inadmissible to prove charged robbery, where common features– which included a loud entry into the bank, use of profanity, guns, gloves,  and masks, and abuse of bank employees– were so generic to armed robberies that they did not support inference that each were committed by same person).  
	The Government also alleges that the ________________ offenses were committed “scarcely more than one month” after the charged offenses.  Temporal proximity of the extrinsic offense to the charged offense is considered in the second step of the Beechum analysis, in weighing whether the probative value of the extrinsic offense evidence is substantially outweighed by unfair prejudice.  See Sanchez, 988 F.2d 1384, 1394 (discussing Rule 403 analysis of extrinsic offense evidence); Beechum, 582 F.2d 898, 915 (same).  The temporal proximity of the offenses, however, does not relieve the Government of its burden to show that the offenses evince the type of “signature quality” required of 404(b) identity evidence. 
	United States v. Myers, 550 F.2d 1036 (5th Cir 1977), illustrates how distinctive an offense must be to be considered “signature quality.”  In Myers, the Fifth Circuit held that the charged and uncharged robberies at issue were not sufficiently similar despite the fact that the crimes had the following in common: 
(1) both crimes were bank robberies, (2) perpetrated between two and three o’clock in the afternoon.  In both robberies the victimized bank was (3) located on the outskirts of town, (4) adjacent to a major highway.  In both robberies the participants (5) used a revolver, (6) furnished their own bag for carrying off the proceeds, and wore (7) gloves and (8) masks crudely fashioned from nylon stockings. 

Myers, 550 F.2d 1036, 1046.  In reversing the conviction, the court of appeals held that “[a]n early afternoon robbery of an outlying bank situated on a highway, by revolver-armed robbers wearing gloves and stocking masks, and carrying a bag for the loot, is not such an unusual crime” that it supports an inference that the two offenses were committed by the same person.”   Id.  In this case, as in Myers, the Government has not shown the requisite level and quality of similarity between the uncharged and the charged offenses to meet its burden to establish the admissibility of the evidence.    	There are additional requirements for the admission of extrinsic offense evidence.  The Government must establish that the “offense was in fact committed and that the defendant in fact committed it.”  Beechum, 582 F.2d 898, 912.  ________________ has not been convicted of the ________________ robberies, and the evidence referred to in the Government’s motion is insufficient proof of his involvement in these offenses.   
	Finally, in order for extrinsic offense evidence to be admitted, the Court must determine whether the evidence satisfies rule 403.  Id. at 913.  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 undue prejudice. Id.  The task for the Court in determining the 403 analysis is whether unfair prejudice outweighs probative value “in view of the availability of other means of proof and other facts appropriate for making decisions of this kind under Rule 403.  Id. at 914.  Also the overall similarity between the offenses is considered. Id. at 915; see also Sanchez, 988 F.3d 1384, 1394.   To the extent that its relevance has been established, evidence of the ________________ robberies cannot meet Beechum’s second hurdle to admissibility, because the evidence’s probative value is substantially outweighed by its undue prejudice.  The danger of unfair prejudice is particularly great where, as in ________________’s case, the other crime 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. Beechum, 582 F2d 898, 914.  
	The Government has not and cannot establish that the ________________ robberies were committed by ________________, or that the ________________ robberies evince a “signature quality” marking them the “handiwork” of the perpetrators of the charged offense.   In addition, the danger of unfair prejudice substantially outweighs the probative value of this evidence.  Accordingly, the Court should exclude the extrinsic offense evidence sought to be introduced by the Government in this case.
	WHEREFORE, premises considered, ________________ prays this Honorable Court will exclude all evidence of his participation in uncharged robberies or any other offense.  Further, ________________ asks that prior to the Government introducing any extrinsic act or misconduct evidence, including the ________________ robberies evidence at issue in its notice, the Government be required to seek a ruling on the evidence’s admissibility outside the presence of the jury.
						Respectfully submitted.
						______________________
						Attorney for Defendant

CERTIFICATE OF SERVICE

	I hereby certify that I served a copy of the foregoing Motion in Limine on ____________, United States Attorney for the ____________ District of Texas (ATTN: Assistant U.S. Attorney_____________), by mailing it to him at _____________, on _______________, 20____.

						
						Attorney for Defendant

UNITED STATES DISTRICT COURT
_____________DISTRICT OF TEXAS
________________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO. 
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______________________	                             §	

O R D E R

	On this date came on to be considered Defendant’s Motion in Limine,  and the Court having considered the same, is of the opinion that evidence of the defendant’s participation in uncharged robberies is irrelevant and/or its relevance is substantially outweighed by its danger of unfairly prejudicing the jury.  Accordingly,  such extrinsic offense evidence is INADMISSIBLE.
	It is therefore ordered that the following evidence be EXCLUDED:
	1.  Any evidence of defendant’s participation in the robberies of “____________” and the ________________ credit union.
	2.  Any other extrinsic offense or misconduct.
	So ORDERED on this the                      day of ___________, 20____.

						
						United States District Judge