__________________ DISTRICT OF TEXAS
										
__________________  DIVISION

UNITED STATES OF AMERICA	                 §
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MOTION IN LIMINE REGARDING EXTRINSIC OFFENSES 
OR OTHER ACTS OF MISCONDUCT AND AUTHORITIES 
IN SUPPORT THEREOF

TO THE HONORABLE ///, JUDGE, UNITED STATES DISTRICT COURT FOR THE /// DISTRICT OF TEXAS, /// DIVISION:

	COMES NOW ///, the Defendant in the above styled and numbered cause and files his/her motion in limine and brief regarding extrinsic offenses and other acts and conduct and in support thereof would show the Court as follows:
I.
MOTION
	The Defendant respectfully requests that the Court instruct the attorney for the government in this case, and through such counsel any and all government witnesses, to refrain from mentioning, directly or indirectly, in any manner whatsoever, in the presence of the jury, any extrinsic offenses or other acts of misconduct alleged to have been committed by or engaged in, in any way, by a Defendant, until a hearing has been held outside the presence of the jury to determine the following:
	1.	The government's theory of admissibility of such evidence;
	2.	Whether the conviction, alleged violation or extrinsic act has such prejudicial effect to the Defendant so that the prejudicial effect outweighs the probative value of the evidence;
	3.	Whether the conviction, alleged violation or extrinsic act occurred at a time sufficiently recent to have some bearing on the present cause of action;
	4.	Whether the person now on trial and the person who allegedly committed such act are the same person; and
	5.	Whether said conviction, alleged violation or extrinsic act is admissible under the Federal Rules of Evidence, in particular Rule 404(b).
	As a basis for this motion, the Defendant contends that to allow the mentioning of any extrinsic offenses, violations or other acts of misconduct attributable to the Defendant, without a prior ruling by the court on its admissibility, would unduly prejudice the Defendants.
	WHEREFORE, PREMISES CONSIDERED, the Defendants pray that the Court instruct the Assistant United States Attorney herein not to mention or refer to, directly or indirectly, in the presence of the jury, any alleged extrinsic offenses or other acts of misconduct, until a hearing has been conducted and a ruling obtained on the admissibility thereof from the Court outside the presence and hearing of the jury.
II.
BRIEF
	Evidence of extrinsic offenses or other acts of misconduct are inadmissible at trial unless such evidence falls within the narrowly prescribed exceptions sanctioned by Rule 404(b) of the Federal Rules of Evidence.  United States v. Beechum, 555 F.2d 487, 491 (5th Cir. 1977), vacated on other grounds, 582 F.2d 898 (5th Cir. 1978); United States v. Myers, 550 F.2d 1036, 1044 (5th Cir.1977).  See also Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 218, 93 L.Ed. 168, 173 (1948).  In no event is such evidence admissible “. . .for the purpose of showing that the Defendant has a criminal disposition in order to generate an inference that he committed the crime with which he is charged.” United States v. Myers, 550 F.2d. 1044.
	The Fifth Circuit has repeatedly noted that this rule is “just and wise,” in that it minimizes the grave danger that a jury will infer a person guilty of the charged offense from evidence of the other crime or bad act, or will seek to punish the Defendant for the other crime regardless of his innocence of the offense with which he is charged.  United States v. Beechum, supra; United States v. San Martin, 505 F.2d 918, 921 (5th Cir.1974); United States v. Goodwin, 492 F.2d 1141, 1150 (5th Cir. 1974). This rule is necessary to prevent an accused from being convicted merely because the jury believes that he is a person of bad character.  United States v. Turquitt, 557 F.2d 464, 468 (5th Cir. 1977).  Basic to the presumption of innocence is that an accused be tried for what he did, and not for who he is.  United States v. Myers, supra.  The law recognizes that evidence that the accused had committed other crimes, wrongs, or acts of misconduct is “. . . inherently dangerous because of the likelihood that prejudice to the Defendant may result from confusing the issues by leading the jury to infer that since the Defendant has committed a similar crime, he must also have committed the crime for which he is on trial.”  United States v. Turquitt, 557 F.2d at 468.
	This rule is subject to the narrowly prescribed exceptions contained in Rule 404(b).  Evidence of the commission of other crimes, wrongs, or acts of misconduct, “closely related both in time and nature to the crime charged, may be admissible if offered to prove an essential element of the charged offense, such as motive, intent, identity, guilty knowledge, or a common scheme, plan or design.”  Id. However, the Fifth Circuit has noted that these exceptions, which have “been carried out to serve a limited prosecutorial and judicial purpose should not be permitted to swallow the rule.”  United States v. San Martin, 505 F.2d at 921. [Emphasis added].
	The first step in determining the admissibility of extrinsic acts is deciding whether the evidence is relevant, that is, whether a jury could reasonably conclude that the extrinsic act occurred and the Defendant was the actor.  Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 1501, 89 L.Ed.2d 771 (1988); Rule 104(b), F.R.E.  The next inquiry is whether the evidence is probative of a material issue other than character.  Id. at 108 S.Ct. 1499; United States v. Zelinka, 862 F.2d 92, 99 (6th Cir. 1988).  The Government must articulate a theory of admissibility and show that the extrinsic act is probative of a material issue in the case, such as set out in Rule 404(b).  The extrinsic act need not only be probative, but its probative value must not be outweighed by its potential for unfair prejudice.  The extrinsic act must also not be too remote in time from the charged offense.  Huddleston v. United States, supra; United States v. Zelinka, supra; United States v. Myers, 550 F.2d 1036 (5th Cir. 1977); United States v. San Martin, 505 F.2d 921 (5th Cir. 1974).  The prior act need not be criminal to be admissible.  United States v. Rubio Gonzales, 674 F.2d 1067 (5th Cir. 1982).
	Due to the potential prejudice from the erroneous introduction of extrinsic acts or crimes before the jury, the Government should be ordered to proffer to the Court the alleged extrinsic act and the theory of admissibility so the Court may make a ruling on the admissibility outside the presence of the jury.
	WHEREFORE, PREMISES CONSIDERED, the Defendant prays that the Court instruct the Assistant United States Attorney herein not to mention or refer to, directly or indirectly, in the presence of the jury, any alleged extrinsic offenses or other acts of misconduct, until a hearing has been conducted and a ruling obtained on the admissibility thereof from the Court outside the presence and hearing of the jury.
							Respectfully Submitted,

							___________________________________
							Name
							State Bar No. 
							Address
							City, State, Zip
							Telephone
							Attorney for Defendant

CERTIFICATE OF SERVICE

	This is to certify that a true and correct copy of the above and foregoing Motion In Limine Regarding Extrinsic Offenses Or Other Acts Of Misconduct was hand delivered to ///, Assistant United States Attorney, /// Street, ///, Texas /// , on the /// day of ///, 20///.

							____________________________________
							Attorney for Defendant

__________________ DISTRICT OF TEXAS
										
__________________  DIVISION

UNITED STATES OF AMERICA	                 §
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ORDER

	Came on to be considered the Motion In Limine Regarding Extrinsic Offenses or Other Acts of Misconduct filed by Defendant ///.  The Court, having considered the motion, it is hereby
. 
	It is so ORDERED.
	SIGNED on ____________________, 20____.

							___________________________________ 							UNITED STATES DISTRICT JUDGE