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 FOR NEW TRIAL

TO THE HONORABLE________________, DISTRICT JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE ______________ DISTRICT OF TEXAS:

	______________, by and through his undersigned attorney, files this Motion for New Trial.

I	
	_____________________ seeks a new trial as to each of the four counts charged in the indictment.1 The power to grant a new trial is conferred upon this Court by Rule 33 of the Federal Rules of Criminal Procedure. A district court may grant a new trial where it “finds that a miscarriage of justice may have occurred at trial.” United States v. Scroggins, 379 F.3d 233, 255 (5th Cir. 2004), vacated on other grounds, 2005 WL 126565 (U.S. Jan 24, 2005) (internal citations omitted). “Rule 33 by its terms gives the trial court broad discretion ... to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice." Id. (internal quotation and citation omitted).  A miscarriage of justice warranting a new trial in certain circumstances may occur even when there has been no specific legal error. Id.  In this case, however, there are several legal errors which, individually and cumulatively, unfairly damaged _____________________’s defense.  _____________________’s  Fifth Amendment right to due process and his Sixth Amendment right to effective representation of counsel were severely prejudiced by the Court’s admission of ___________________ testimony.  This testimony was admitted in violation of the notice provision of Federal Rule of Evidence 413.  Moreover, Rule 413 did not provide a valid basis for the admission of this prejudicial evidence. _____________________ also seeks a new trial based on the Court’s admission of unreliable hearsay statements, regarding the complainant's allegations and identification of _____________________.2
II
The Lack of Notice of _________________  Testimony Requires a New Trial.
	The charges in this case involve two separate allegations of sexual misconduct occurring at different times, involving different complainants, and involving little or no overlapping evidence.  While these allegations are perhaps sufficiently similar to be properly joined in one indictment, there can be little question that prejudice to the defendant is greatest when similar counts of this nature are joined.  See United States v. Johnson, 820 F.2d 1065, 1071 (9th Cir. 1987)(joinder of counts similar in nature creates a greater danger of prejudice than the joinder under Rule 8(a) of dissimilar charges); see also United States v. Pierce, 733 F.2d 1474, 1477 (11th Cir. 1984) (same).  Compounding the prejudice stemming from the multiple allegations in this case, was the admission of the uninvestigated, mid-trial allegation of sexual assault made by__________________ .  It is not hard to imagine why such a mid-trial allegation might occur.  With the publicity that attends a criminal trial, a person might be moved, for any number of reasons, to make an allegation mid-trial.  That is apparently what happened in this case: It was only after ____________________ read about the trial on mysanantonio.com did she step forward.  (See Gov’t Notice, 4).3  Faced with these circumstances, other courts have not allowed Rule 413 to be a vehicle for these mid-trial allegations to make their way to the jury. See United States v. LeCompte, 99 F.3d 274, 276 (8th Cir. 1996)(after government served notice on “the eve of trial” that it would offer evidence that LeCompte had previously molested three other children, court ruled the offer untimely and inadequate under Rules 413(b)).  This evidence should not have been admitted in this case.  It plainly violated the notice provision of Rule 413, and significantly and unfairly prejudiced _____________________.  
	Rule 413(b) requires the government to disclose to the defendant the similar crimes evidence to be offered no later than fifteen days before trial (unless shortened by court order for good cause).  See United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir.1998). The notice period protects against surprise and allows the defendant to investigate and prepare cross-examination. Id. It permits the defendant to counter uncharged crimes evidence with rebuttal evidence and full assistance of counsel. Id.

	In evaluating the sufficiency of notice, courts have focused upon the prejudice suffered by the defendant because of the lack of notice.  United States v. Perez-Tosta  36 F.3d 1552, 1561 (11th Cir.1994) (discussing lack of 404(b) notice).4 There can be little question that ________________ story of an ongoing pattern of sexual harassment, culminating in a sexual attack was severely prejudicial to _____________________'s defense. And, as defense counsel repeatedly urged, there were many avenues of rebuttal denied to the defense by the lack of notice. Those avenues included reviewing the time-keeping records at _____________ place of employment, and interviewing the people to whom she allegedly reported the harassment incidents, which she claimed occurred over a six-month period. _______________ herself speculated that her co-workers may have viewed _____________________’s attentions as mere “courting.”  Confronted suddenly with _______________ story, _____________________ could not effectively refute or investigate it, though it clearly was a story needing investigation.  The line of investigation denied to _____________________ also included reports of witnesses who could testify that __________________ was seen in _____________________'s presence after the alleged assault. Such witnesses would have had the opportunity to observe _____________________ demeanor while in her purported attacker's presence.  Evidence of _____________________ relaxed demeanor at such a meeting would cast strong doubt on her claims. 5  The lack of notice denied _____________________ the opportunity to pursue this strong rebuttal evidence, and, thus, effectively denied him his Sixth Amendment rights to effective assistance of counsel and to meaningful cross-examination of the witness against him. 
	The final factor that courts consider in evaluating the failure to give notice is “[h]ow significant the evidence is to the prosecution’s case.” Perez-Tosta, 36 F.3d at 1562.  The evidence’s significance is judged by reference to the other evidence available to the prosecution.  The admission of _____________________ testimony was not imperative to the Government’s case.  The Government had the testimony of the alleged victims, their identifications of _____________________, as well as some physical evidence potentially linking one victim to _____________________'s patrol car. The Government also had hearsay testimony from Detective _____________and Officer _______________, who each recounted for the jury in dramatic detail, their interview with _______________. Both officers also personally vouched for the credibility of _______________, claiming an expertise in judging an interviewee’s demeanor for truthfulness.6  
	This evidence allowed the Government to support its case against _____________________.  _____________________ testimony did not go to the indicted allegations, and could not, therefore, prove those allegations. _________________ testimony, particularly her dramatic claim that the trial spurred her to come forward, did however unfairly prejudice _____________________.  Balancing the government’s need for this testimony against the prejudice stemming from its mid-trial discovery and use, it is clear that the government was not entitled to its admission. For these reasons, _____________________ should be granted a new trial.
III 
A New Trial Should Be Granted Because _____________________ Testimony Was Not Properly Admitted Under Rules of Evidence 413 or 403.

	1. The extrinsic act evidence should not have been admitted under rule 413 because it was not the subject of a prior conviction.

	Even if the Court determines that the notice provided by the Government was reasonable, the Court should, nonetheless, grant a new trial because _____________________ testimony was improperly admitted under Rule of Evidence 413.  First, this testimony should not have been allowed because it described acts that were not the subject of a prior conviction.  Rule 413 provides “[i]n a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.”  The language of Rule 413(d)  is ambiguous as to whether the past “offense of sexual assault” must be a conviction.   See Johnson v. Elk Lake School Dist., 283 F.3d 138, 151 (3d. Cir.2002) (interpreting Rule 415--the civil counter-part to Rule 413). The Third Circuit concluded that, despite the ambiguity, the Rule applies even to mere allegations not resulting in a criminal conviction; in so doing, however, the court improperly relied on the statute’s legislative history. See Elk Lake School Dist., 283 F.3d at 151.  
	Reliance on the legislative history is problematic because the legislative history regarding the meaning of “sexual offense” in Rule 413 is contradictory.  Representative Jon Kyl contemplated that the rule would not apply to mere allegations not resulting in a conviction.  See 140 Cong. Rec. 15,209 (1994) (statement of Rep. Kyl) (stating that the new rules will not apply to “allegations” but only to “prior offenses” where “an accused has been convicted of similar conduct”) Representative Susan Molinari, however, expressed the view that the rule would apply broadly, even to extrinsic acts not resulting in convictions. See 140 Cong. Rec. 23,603 (1994) (Statement of Rep. Molinari) (“T]he practical effect of the new rules is to put evidence of uncharged offenses in sexual assault . . . on the same footing as other types of relevant evidence that are not subject to a special exclusionary rule.").  It may be just this type of contradictory legislative history that led Justice Scalia to eschew reliance on such “nebulous motivating policies when construing criminal statutes.”  See United States v. Granderson, 511 U.S. 39, 67 (1994) (citing United States v. R.L.C., 503 U.S. 291, 308–09 (1992) (Scalia, J., concurring)).  
	In R.L.C., Justice Scalia stated his view that, if a court concludes that a statute is ambiguous after a plain reading of its terms, that conclusion “should end the matter.”  503 U.S. at 308.  In such a circumstance, the “more lenient interpretation must prevail” without resort to legislative history.  Id. at 308–09.  Certainly, where as in this case the legislative history is unclear as to the meaning of a statutory term, the more lenient interpretation should apply.  The more lenient interpretation of “sexual offense” in Rule 413, leads to the conclusion that the extraneous offense evidence should not have been admitted because it was not the subject of a prior conviction.
2. Application of Rule 413 violates _____________________’s Fifth Amendment rights.

	_____________________ also requests a new trial because application of Rule 413 violated his Fifth Amendment rights to due process and equal protection.  In enacting Rule 413, Congress authorized the admission of evidence of prior offenses of sexual assault for its bearing “on any matter to which it is relevant.”   Propensity evidence of this nature creates a danger that juries will convict based not only on evidence beyond a reasonable doubt of the charged crime, but on evidence of past bad acts.  Ever since its initial proposal, Rule 413 was met with hostility by the legal establishment. Elk Lake School Dist., 283 F.3d at 151; see also Judicial Conference of the U.S. , Report of the Judicial Conference on the Admission of Character Evidence in Certain Sexual Misconduct Cases, 159 F.R.D. 51, 52 (1995)(observing the opposition of an “overwhelming majority of judges, lawyers, law professors, and legal organizations” to the proposed rules).  The Judicial Conference's Advisory Committee “ardently opposed” the new rule, fearing that it “could diminish significantly the protections that have safeguarded persons accused in criminal cases[.]”  Elk Lake School Dist., 283 F.3d at 151 (citing The Judicial Conference Report, 159 F.R.D. 51, 53).  
	Such fundamental protections include being tried only for the act with which one is charged rather than on past misdeeds, possible past misdeeds, or inferences about ones character arising from those misdeeds.  It is a universal rule, in the trial of criminal cases, that nothing shall be given in evidence which does not directly tend to the proof or the disproof of the matter in issue.  Bird v. United States, 180 U.S. 356, 360 (1901). The prosecutor is not, therefore, allowed to give evidence tending to prove a similar, but distinct offense for the purpose of raising an inference or presumption that the accused committed the particular act with which he is charged. Id.  
	Rule 413 invites jurors to find the accused guilty because he is a bad person.  It is fundamental to American jurisprudence that “a defendant must be tried for what he did, not for who he is.” Myers, 550 F.2d at 1044; see also  United States v. Foskey, 636 F.2d 517, 523 (D.C. Cir. 1980).  That precept is, as the Fifth Circuit noted in Myers, “[a] concomitant of the presumption of innocence.” Myers, 550 F.2d 1036, 1044; Foskey, 636 F.2d 517, 523.  Rule 413 violates the substantive component of the Due Process Clause by abrogating the presumption of innocence and fostering wrongful convictions on the basis of past misdeeds.  But see Enjady, 134 F.3d 1427,1432–33 (noting that “Rule 413 raises a serious constitutional due process issue,” but ultimately holding that the rule does not violate due process on its face as long as adequate safeguards–including application of 403 balancing test--are provided). One of the safeguards the Tenth Circuit appeared to consider in Enjady was Rule 413's notice provision. Enjady  134 F.3d 1427, 1434 (the government gave prior notice of the government's intent to use B's testimony and the defense had the opportunity to investigate and prepare).  Because _____________________ was not provided adequate notice, the application of Rule 413 to his case may even be held to offend due process under the Tenth Circuit’s analysis.7 
	 Finally, even if the Court believes that Rule 413 is applicable and that it is constitutionally sound, a new trial should be granted in this case because the extrinsic act evidence of the alleged assault was more prejudicial than probative under Rule of Evidence 403.  See United States v. Guardia, 135 F.3d 1326, 1330 -1331 (10th Cir. 1998) (noting that while Rule 413 removes the per se exclusion of character evidence, courts should continue to consider the traditional reasons for the prohibition of character evidence as “risks of prejudice” weighing against admission).8  In addition to holding Rule 403 applicable to evidence potentially admissible under Rule 413, the court in Guardia, also held that Rule 413 contains no language that supports a lenient application of Rule 403.  Guardia, 135 F.3d 1326, 1331.   Rule 403 requires exclusion of the evidence if the trial court concludes the probative value of the similar crimes evidence is outweighed by the risk of unfair prejudice it must exclude the evidence. United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998).  Rule 403 balancing in the sexual assault context requires the court to consider: 1) how clearly the prior act has been proved; 2) how probative the evidence is of the material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4) whether the government can avail itself of any less prejudicial evidence.  Enjady, 134 F.3d 1427, 1433. 
	The extrinsic act evidence in this case concerned mere allegations which were not clearly proven, and came to light under suspicious circumstances.  _____________________ allegations involved conduct which purportedly occurred over a six-month period and yet were never reported to anyone until ____________ read about the trial on the Internet and contacted a lawyer.  (See Gov’t Notice, 4). Because _____________________ allegations were not clearly proved the probative value of her allegations is diminished.

	Also diminishing the probative value of this evidence is the fact that the extrinsic acts described by _____________________ were so dissimilar to the acts alleged in any of the counts.  The material fact most at issue in counts One through Three was _____________________’s identification as the perpetrator of the offense.  An extrinsic offense is typically admissible to show identity only if it “bears such a high degree of similarity as to mark it as the handiwork of the accused.”  Silva, 580 F.2d at 148; see also United States v. Sanchez, 988 F.2d 1384, 1393 (5th Cir. 1993) (same).  _____________________ was a social acquaintance of _____________________’s, and the acts she described involved an on-going series of encounters with him that allegedly involved varying degrees of sexual conduct, including an incident of oral sex. ____________, a stanger to _____________________, reported a single incident of sexual assault involving vaginal sex. In light of these dissimilarities, _____________________ testimony could not properly be considered modus operandi evidence.  See United States v. Myers, 550 F.2d 1036, 1046 (5th Cir 1977); United States v. Luna, 21 F.3d 874, 881 (9th Cir. 1994) (evidence of other robberies inadmissible to prove charged robbery, where common features were so generic to armed robberies that they did not support inference that each were committed by same person).  The acts described by _____________________ were also dissimilar to the acts alleged in the conspiracy count. Unlike the conspiracy count allegations, the encounters with _____________________ did not involve alcohol, multiple perpetrators, multiple victims, or allegations of bargained-for freedom from detention.  These dissimilarities significantly lessened the probative value of _____________________ testimony.
	 Also, as noted above, the Government had other evidence available, such the testimony of the alleged victims, their in-court and out-of-court identifications of _____________________, some physical evidence potentially linking one victim to _____________________'s patrol car, and the hearsay testimony from Detective __________ and Officer ____________, who each recounted for the jury in dramatic detail, their interview with ____________. Both officers also personally vouched for the credibility of ___________________. In light of this other evidence, _____________________ testimony was not imperative to the Government’s case.  The prejudice flowing from the admission of the _____________________ testimony was substantially outweighed by its prejudicial effect, and the evidence should have been excluded under Rule of Evidence 403..
IV
A New Trial Should Be Granted in the Interests of Justice Because _____________________ was Prejudiced by the Admission of Hearsay Testimony of Detective __________, in Violation of Rules Of Evidences 803 and 403.

	As an additional grounds for new trial, _____________________ submits that the Court improperly admitted highly prejudicial hearsay statements regarding the details of the assault as related to Detectives ______ and Officer ________ by ____________.  The officers were allowed to recount ______________ out of court statements regarding the details of the assault, including details not testified to by ___________.9  These statements were not admissible under the excited utterance exception to the hearsay rule. Federal Rule of Evidence 803(2) provides a hearsay exception for “a statement relating to the startling event or condition made while the declarant was under the stress of the excitement caused by the event or condition.”  The underlying theory of the excited utterance exception is that “such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation[.]” Idaho v. Wright, 497 U.S. 805, 820 (1990); See also Fed. R. Evid. 803, advisory committee notes (stating that basis of excited utterance exception is that “circumstances may produce a condition of excitement which temporarily stills the capacity of reflection”).   
	The evidence in this case shows that _________ had the capacity of reflection when the statements at issue were made.  At the time _______ made her statements to Officers _____ and ____, she had already reported the assault to her fiancé and his mother, she had slept, she had consulted with a lawyer and then called the police, and she had been to the hospital and then to the police station where the interview took place. __________ demeanor while at the hospital was described as very quiet, very timid, and having a difficult time opening up. The evidence does not suggest that she was under the type of stress or excitement that necessarily leads to a lack of reflection or contemplation.  
	The evidence also shows that ____________ out-of-court statements were not volunteered without prompting, but instead were made in response to police questions about what happened. The fact that a statement is not spontaneously uttered factors into the analysis of whether it qualifies as an excited utterance.  See Paxton v. Ward, 199 F.3d 1197, 1211 (10th Cir. 1999) (child's statement made in response to  mother asking him what was wrong was not truly spontaneous).  These facts militate against a finding of lack of reflection and sufficient reliability inherent in an excited utterance. Because no such assurance of reliability and lack of reflection can be made in this case, these statements should not have been admitted at trial.  
	Finally, both Detective ____ and Officer _____ testified as purported experts in evaluating an interviewee’s credibility. ____ testified that in an interview, he is “looking for basic indicators of how truthful the person is or isn’t, because [they] have to make that determination.”  He continued, that _________ “appeared exceptionally credible.” _________ also testified in a similar fashion that the details ___________ provided really made “her story believable and credible.”  The officers’ testimonies were admitted without any foundation being laid under Rule of Evidence 702 (allowing witness “qualified as an expert” to testify to “technical, or other specialized knowledge”), and their testimony invaded the province of the jury. United States v. Wertis, 505 F.2d 683, 685 (5th Cir. 1974) (whether principal prosecution witness would be reliable as a witness in distinguishing the truth from non-truth is beyond the competence of any witness); see also United States v. Jackson, 576 F.2d 46, 49 (5th Cir. 1978) (opinions as to a witness’s reliability in distinguishing truth from fantasy is inadmissible for it invades jury’s province to make credibility determinations). Because this evidence had the effect of reinforcing ________ version of what occurred, including her identification of _____________________, this evidence prejudiced him in his defense. For all the foregoing reasons, the Court should grant _____________________’s motion for a new trial. 
 	WHEREFORE, premises considered, _____________________ prays that the Court will order a new trial.
						Respectfully submitted.

						_______________________									Attorney For Defendant

CERTIFICATE OF SERVICE

	I certify that I served a copy of the foregoing Defendant's Motion For New Trial and Memorandum in Support of Defendant's Motion For New Trial on _____________, United States Attorney for the ________ District of Texas (ATTN: Assistant United States Attorney, ____________) by delivering same to his office at ________________________, on _______________________.

						Attorney For Defendant