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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION UNITED STATES OF AMERICA ) Criminal No. H-94-58 ) v. ) ) GLAZIER FOODS CO., )[filed 4/26/94] ) Defendant. ) ) GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR DISCLOSURE AND LIMINE PURSUANT TO FEDERAL RULES OF EVIDENCE RULE 404(b) WITH LEGAL AUTHORITIES IN SUPPORT The United States, through its undersigned attorneys, hereby responds to Defendant's Motion for Disclosure and Limine Pursuant to Federal Rules of Evidence Rule 404(b) with Legal Authorities in Support. The government does not currently anticipate introducing at trial any evidence under Fed. R. Evid. 404(b). In the event the government determines it is necessary and proper to introduce such evidence, the defendant will be given reasonable notice of the general nature of any such evidence as mandated by Fed. R. Evid. 404(b). The government, however, takes exception to certain representations made in the defendant's motion. First, although the Court should make an on-the-record articulation of Beechum findings, a pre-trial hearing is not required. United States v. Beechum, 582 F.2d 898, 915 (5th Cir. 1978), cert. denied, 440 U.S. 920 (1979); see also United States v. Fortenberry, 860 F.2d


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628, 634 n.11 (5th Cir. 1988), cert. denied, U.S. , 111 S.Ct. 1333 (1991), citing United States v. Robinson, 700 F.2d 205, 213 (5th Cir. 1983), cert. denied, 465 U.S. 1003 (1984). Second, should the court be required to determine the admissibility of any Rule 404(b) evidence, Fed. R. Evid. 104 should be applied as it is for any other admissibility determination and as such the court will not be bound by the rules of evidence, except those with respect to privileges. Huddleston v. United States, 485 U.S. 681, 686-690, 108 S.Ct. 1496, 1500-1502 (1988); United States v. Anderson, 933 F.2d 1261, 1273 (5th Cir. 1991); United States v. Williams, 900 F.2d 823, 826 (5th Cir. 1990); see also Beechum, 582 F.2d at 916. Finally, Rule 404(b) requires only notice of the general nature of the evidence sought to be introduced. Should the government determine in the future that it is advisable to introduce at trial any evidence pursuant to Rule 404(b), the defendant's demand for more detailed notice should be denied. Respectfully submitted, "/s/" JANE E. PHILLIPS JOAN E. MARSHALL MARK R. ROSMAN Attorneys U.S. Department of Justice Antitrust Division 1100 Commerce Street, Room 8C6 Dallas, Texas 75242-0898 (214) 767-8051


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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Government's Response to Defendant's Motion for Disclosure and Limine Pursuant to Federal Rules of Evidence Rule 404(b) with Legal Authorities in Support and proposed order has been served upon and was sent via Certified Mail-Return Receipt Requested this 25th day of April, 1994, to: Joel M. Androphy, Esq. Berg & Androphy 3704 Travis Street Houston, Texas 77002 JANE E. PHILLIPS Attorney


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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION UNITED STATES OF AMERICA ) Criminal No. H-94-58 ) v. ) ) GLAZIER FOODS CO., ) ) Defendant. ) O R D E R Upon consideration of the Defendant's Motion for Disclosure and Limine Pursuant to Federal Rules of Evidence Rule 404(b) with Legal Authorities in Support and the Government's Response, The Defendant's Motion is hereby DENIED. DONE AND ENTERED THIS day of , 1994. ____________________________ UNITED STATES DISTRICT JUDGE