Case 1:17-cr-00201-ABJ Document 155 Filed 01/19/18 Page 1 of 4

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Crim. No. 17-201 (ABJ)
PAUL MANAFORT, JR. and
RICHARD W. GATES III,
Defendants
GOVERNMENT’S MOTION TO MODIFY THE COURT’S SCHEDULE FOR
RULE 404(b) NOTICE AND BRIEFING
The United States of America, by and through Special Counsel Robert S. Mueller III,
submits this motion to request that the Court revise the schedule for the provision of notice and
briefing on the admissibility of any proposed Rule 404(b) evidence. See Jan. 17, 2018 Minute
Order. In particular, the government requests that the notice and briefing schedules not be set until
after a trial date is selected and that notice be required no more than eight weeks prior to trial, with
opposition to be briefed two weeks later, and any reply one week after the opposition (and thus
three weeks after the government’s notice). *
ARGUMENT
Federal Rule of Evidence 404(b) requires that the government provide “reasonable notice”
with respect to the “general nature” of any “other crimes” or bad acts evidence it seeks to admit at
trial. See United States v. McGill, 815 F.3d 846, 879 (D.C. Cir. 2016). The Rule does not define
the notice period and “establishes no minimum time” for providing notice, United States v.
Tavarez, 518 F. Supp. 2d 600, 604 (S.D.N.Y. 2007), and courts vary with respect to the required
notice period. The Rule’s notice requirement is designed to avoid any prejudice to the defendant

*

The government has not conferred with defendants about their position on this motion,
but defense counsel previously agreed to notice of Rule 404(b) evidence six weeks before trial.

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or undue burden on the government, and to give the parties and court sufficient time to resolve the
admissibility of the proffered evidence. See United States v. Reddy, 190 F. Supp. 2d 558, 576-577
(S.D.N.Y. 2002); see also United States v. Watson, 409 F.3d 458, 465 (D.C. Cir. 2005) (“The
courts must not treat lightly the ‘surprise’ introduction of evidence that leaves a criminal defendant
without opportunity to prepare an effective response.”).
Premature disclosure raises issues as well. For example, in declining to require disclosure
that is too early, courts have recognized that “‘the evidence the government wishes to offer may
well change as the proof and possible defenses crystallize.’” Tavarez, 518 F. Supp. 2d at 604
(quoting United States v. Matos-Peralta, 691 F. Supp. 780, 791 (S.D.N.Y.1988)); see also United
States v. Giffen, 379 F. Supp. 2d 337, 345 (S.D.N.Y. 2004) (“Reasonable notice of Rule 404(b)
evidence does not, however, require the Government to provide unduly early notice.”); Reddy, 190
F. Supp. 2d at 577 (agreeing that notice should not be required until the government had
“finalize[d] its order of proof”). For similar reasons, early disclosure can result in multiple Rule
404(b) notices and multiply the rulings that a court needs to make, thus undermining the efficient
use of judicial and party resources. Cf. United States v. Barnes, 49 F.3d 1144, 1148 (6th Cir. 1995)
(reading Rule 404(b) to impose a “continuing obligation” on the government to provide additional
notice “whenever it discovers information that meets the previous request”).
The current schedule in this case requires the government to provide Rule 404(b) notice on
April 6, 2018, see Jan. 17, 2017 Minute Order, and is not tethered to a specific trial date.
Accordingly, were the trial to be held in June, the current schedule would allow for up to as much
as two months’ notice—a period consistent with existing case law. But a September trial date
(proposed by the defendants) would result in notice five months before trial and more than double
the notice period generally required in similar cases. Requiring notice at such an early date

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 Case 1:17-cr-00201-ABJ Document 155 Filed 01/19/18 Page 3 of 4

implicates the very concerns recognized in the cases above—namely, that the full extent of the
government’s Rule 404(b) disclosure will not be finalized or developed by the relevant date, and
could lead to multiple filings if additional evidence were developed.
The government has not identified any authority in this district, or another, requiring such
early notice in a comparable case. Instead, while courts have recognized that the appropriate notice
date may vary with the circumstances, see Reddy, 190 F. Supp. 2d at 576, the longest notice period
that the government has found in a factually comparable case is two months (or eight weeks), and
some courts have allowed for shorter periods. See, e.g., United States v. Watts, 911 F. Supp. 538,
556 (D.D.C. 1995) (court required Rule 404(b) notice 45 days in advance of trial in a case alleging
perjury, false statements, and obstruction of justice); United States v. Vilar, 530 F. Supp. 2d 616,
640 (S.D.N.Y. 2008) (requiring 60-day advance notice in securities case); Giffen, 379 F. Supp. 2d
at 345 (stating that “notice is typically provided no more than two to three weeks before trial,” but
requiring Rule 404(b) notice 45 days in advance of trial in case involving violations of the Foreign
Corrupt Practices Act, mail and wire fraud, money laundering, and tax crimes).
For these reasons, the government submits that a notice period of eight weeks is appropriate
here and would allow for the timely resolution of the relevant issues.
CONCLUSION
For the foregoing reasons, the government requests that the Court modify the recently
entered motions schedule to require that the government’s notice of intent to use Rule 404b)
evidence be provided eight weeks before trial, with any opposition to be briefed two weeks later,

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 Case 1:17-cr-00201-ABJ Document 155 Filed 01/19/18 Page 4 of 4

and any reply a week after the opposition. A proposed order accompanies this motion.
Respectfully submitted,
ROBERT S. MUELLER III
Special Counsel
Dated: January 19, 2018

By:

__/s/_ Greg Andres_________________
Andrew Weissmann
Greg D. Andres (D.D.C. Bar No. 459221)
Kyle R. Freeny
U.S. Department of Justice
Special Counsel’s Office
950 Pennsylvania Avenue NW
Washington, DC 20530
Telephone: (202) 616-0800
Attorneys for the United States of America

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 Case 1:17-cr-00201-ABJ Document 155-1 Filed 01/19/18 Page 1 of 1

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
v.
Crim. No. 17-201 (ABJ)

PAUL MANAFORT, JR. and
RICHARD W. GATES III,
Defendants

ORDER
This matter having come before the Court pursuant to the government’s motion to modify
the Court’s schedule for Rule 404(b) notice and briefing, it is hereby
ORDERED that the government’s motion is GRANTED;
IT IS FURTHER ORDERED that the government shall be required to give notice of its
intention to use any evidence under Rule 404(b) eight weeks before the trial date set by the Court;
and
IT IS FURTHER ORDERED that defendants’ opposition in response shall be filed within
two weeks of the government’s notice, and the government’s reply (if any) shall be filed no later
than one week after the defendants’ opposition.

________________
Date

__________________________________
HON. AMY BERMAN JACKSON
UNITED STATES DISTRICT JUDGE