The opinion of the court was delivered by: DONALD J. LEE
Before the Court is the government's Motion for Clarification (Document No. 969) which seeks "clarification and reexamination of the Court's ruling . . . " of July 14, 1994, compelling pretrial disclosure of certain Fed. R. Evid. Rule 404(b) ("404(b)") material, among other things. Actually, the motion for clarification requests relief more in the nature of reconsideration of that order than clarification, and the Court treats the motion as such.
Defendant Curtin, joined by defendants "Duffy" Conley, Ciocco and Goodwin, opposes reconsideration of the Court's 404(b) ruling and requests the Court reaffirm the order. Defendant Curtin's Response to Government's Motion for Clarification (Document No. 986); Defendants' "Duffy" Conley, Ciocco and Goodwin's motions to adopt Curtin's response are docketed, respectively, at Document Nos. 985, 989 and 1002. Additionally, defendant Sheila Smith opposes the motion for clarification and advanced her position through counsel at oral argument, although a formal response has not been docketed. After consideration of the motion for clarification, defendants' responses thereto, and the oral argument of counsel on November 23, 1994, the Court will reconsider and modify its 404(b) ruling.
Specifically, the Court's order of July 14, 1994, stated the "government, at least 30 days prior to trial, *fn1"
] shall file written notice of its 404(b) evidence." Document No. 932. The Court's understanding of the uncharged "other crimes, wrongs or acts" governed by Rule 404(b), and the scope of its pretrial disclosure order, was defined in the accompanying memorandum opinion which states, inter alia:
In the present case, the Indictment charges each defendant with participation in an illegal gambling business, as well as conspiracy to participate in an illegal gambling business. Because of the broad coverage of the illegal gambling statute, charged overt acts meet both the overt act requirement of a [18 U.S.C.] Section 371 conspiracy and the element of conducting, financing, managing, supervising, directing or owning a Section 1955 illegal gambling business. Acts that are uncharged overt acts with respect to the conspiratorial agreement are acts meeting the element of conducting, financing, managing, supervising, directing or owning an illegal gambling business. Evidence of such acts is nonetheless 404(b) evidence as to the conspiracy alleged in Count One of the Indictment.
To be clear, the Court is aware that evidence of uncharged overt acts may be highly relevant and admissible circumstantial evidence of a conspiratorial agreement. The issue before the Court, however, is the timing and content of the notice required of the government of 404(b) evidence.
The Court will require written notice of 404(b) evidence to be filed . . . because of the large number of charges and defendants *fn2"
] and the potential volume of 404(b) evidence that may be admissible on a number of issues. The Court will require that the writing delineate 404(b) evidence as to each of the Counts of the Indictment.
As to uncharged overt acts that would meet the element of conducting, financing, managing, supervising, directing or owning a [18 U.S.C.] Section 1955 illegal gambling business, the Court will require that the writing specify the general types of uncharged acts that may be offered to prove a material fact other than the aforementioned element of the Section 1955 offense. As to acts not qualifying as conducting, financing, managing, supervising, directing or owning a Section 1955 illegal gambling business, the Court will require the writing to specify each crime, wrong, or act by its specific nature, place and approximate date to the extent known to the Government. . . .
Memorandum Opinion, Document No. 932, at 23-25.
To the extent the memorandum opinion of July 14, 1994, defines the scope of 404(b) to include uncharged overt acts undertaken in furtherance of the conspiracy and uncharged "other crimes, wrongs or acts" which are offered as direct proof of the elements of the substantive crimes charged, the order will be modified. The Court agrees with the position advanced by the government that evidence "intrinsic" to the offenses charged does not pass the 404(b) threshold, and need not, therefore, meet the 404(b) standards of admissibility.
In the opinion of July 14, 1994, the Court briefly considered the intrinsic/extrinsic 404(b) threshold analysis which has developed mostly outside of the Third Circuit, and declined at that time to adopt it as part of its 404(b) analysis. The Court did observe that, although the Advisory Committee indicated the 1991 amendment did not apply to acts that are "'intrinsic' to the charged offense," Fed. R. Evid. 404(b) Advisory Committee Notes (1991 amendment) (citing United States v. Williams, 900 F.2d 823 (5th Cir. 1990)), it also stated that the amendment ...