MEMORANDUM OPINION
THIS MATTER is before the Court on Defendant Robert F. McDonnell’s Motion
I. BACKGROUND
Defendant Robert F. McDonnell (“McDonnell”) served as the 71st Governor of the Commonwealth of Virginia from January 2010 to January 2014. His wife, Maureen G. McDonnell (“Mrs. McDonnell”), served as the First Lady of Virginia.
During his campaign for Governor, McDonnell met Jonnie Williams (“Williams”). Williams was the Chief Executive Officer of Star Scientific, Inc. (“Star Scientific”). Beginning in or about 2007, Star Scientific focused on utilizing certain alkaloids in the tobacco plant, namely anatabine, to address issues related to the desire to smoke. The company engaged in the development, manufacture, and marketing of two anatabine-based dietary supplements: CigRx and Anatabloc. To gain customer and physician approval of its products, Star Scientific sought scientific studies of anatabine.
On January 21, 2014, McDonnell, along with his wife, was charged in a 14-count indictment, with Counts 1-11 alleging that he committed and conspired to commit honest-services wire fraud and extortion under color of official right. Specifically, the indictment alleged that “the defendants participated in a scheme to use ROBERT MCDONNELL’S official position as the Governor of Virginia to enrich the defendants and their family members by soliciting and obtaining payments, loans, gifts, and other things of value from [Williams] ... in exchange for ROBERT MCDONNELL ... performing official actions on an as-needed basis, as opportunities arose, to legitimize, promote, and obtain research studies for Star Scientific’s products, including Anatabloc.” Indictment ¶ 22. On September 4, 2014, a jury convicted McDonnell on Counts 1-11.
On September 18, 2014, McDonnell filed the instant Motion, asking the Court to vacate the jury’s “flawed” verdict and grant a new trial based on the following four reasons: (1) the Court’s jury instructions were legally erroneous because they (i) allowed the jury to convict McDonnell on an erroneous understanding of “official act,” and (ii) allowed a conviction on the theory that McDonnell accepted things of value that were given for future unspecified action; (2) McDonnell was deprived of his right to an impartial jury due to an inadequate inquiry into each prospective juror’s exposure to the “near constant, overwhelmingly prejudicial publicity” before the trial; (3) the Court’s failure to voir dire the jurors based on evidence of juror misconduct; and (4) the Court erroneously 'admitted highly prejudicial Rule 404(b) evidence that McDonnell received things of value from William Goodwin and that McDonnell’s staff organized free golf for him.
II. LEGAL STANDARD
Under Federal Rule of Criminal Procedure 33, “the [district] court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R.Crim.P. 33(a). A motion for a new trial brought on the basis of any ground besides newly discovered evidence “must be filed within 14 days after the verdict or finding of guilty.” Fed.R.Crim.P. 33(b)(l)-(2).
III. DISCUSSION
(1) Claim 1: The Court’s Jury Instructions Were Legally Erroneous
Based on United States v. Jennings,
(1) Erroneous Understanding of “Official Act ”
McDonnell first argues that the Court’s jury instructions turned established legal principles “on their head” by allowing the jury to convict McDonnell on an erroneous understanding of “official act.”
The Hobbs Act, 18 U.S.C. § 1951, criminalizes extortion, or the obtaining of property from another, with the official’s' consent, under color of official right. 18 U.S.C. § 1951(b)(2). At common law a public official committed extortion- when he took “by color of his office” money that was not due to him for the performance of his official duties. Evans v. United States,
Similarly, “[t]he intangible right of honest services refers to the public’s right to a government official’s honest, faithful, and disinterested services.” United States v. Harvey,
This case hinges on the interpretation of an “official act” and whether McDonnell’s actions constitute such. At its most basic definition, an “ ‘official act’ means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.” 18 U.S.C. § 201(a)(3). More specifically, official action is conduct that is taken “as part of a public official’s position” — -whether pursuant to an explicit duty or as a matter of “clearly established settled practice.” United States v. Jefferson,
A quid pro quo agreement evinces a sort of “I’ll scratch your back if you scratch mine” arrangement. Jennings,
Admittedly, mere “[i]ngratiation and access” may not alone create a quid pro quo agreement within the meaning of the bribery statutes. See Citizens United v. Federal Election Com’n,
Subjective intent is the keystone of bribery. The influence of money in politics is growing by leaps and bounds, and the subjective intent of the public official receiving the money is perhaps the last and only distinguishable feature between criminal “quid pro quo bribery” and permissible “ingratiation.” The exchange of money for a vote is a crime that threatens the foundation of democracy. Buckley v. Valeo,424 U.S. 1 , 26-27,96 S.Ct. 612 ,46 L.Ed.2d 659 (1976). The exchange of money for “ingratiation and access is not corruption” at all; indeed, the exchange is so essential to the foundation of democracy that it is protected by the First Amendment. McCutcheon v. FEC, — U.S. -,134 S.Ct. 1434 , 1441, 188 L.Edüd 468 (2014) (internal edits omitted). We are left to distinguish the two as best we can by looking into the subjective intent of the public official. And by we, I mean the jury.
United States v. Dimora,
The Government provided substantial evidence for the jury to conclude that McDonnell knew what Williams was seeking, specifically, research studies for Star Scientific’s Anatabloe product. Through Williams’ direct examination, the Government elicited testimony that in October of 2010, McDonnell flew back from California to Virginia on Williams’ private jet. Tr. Vol. Ill 658:18-20. On that flight Williams explained to McDonnell that he “needed testing and [he] wanted to have this done in Virginia.” Id. at 660:7-8. Williams testified that he asked McDonnell if McDonnell “[w]ould connect [him] with the person in Virginia in [McDonnell’s] administration so that [he could] move this forward.” Id. at 660:9-11. Moreover, and most tellingly, in June 2011, Williams sent a letter to McDonnell that specifically described the context within which Williams sought official action from McDonnell. Tr. Vol. IV 701-705; Gov’t Ex. 162. And McDonnell admitted on cross-examination that he received the letter, Tr. Vol. XXI 5036:10, and
The next logical question the Court must now address is whether the Government provided sufficient evidence of the “quo,” that is the “official action,” in this case. McDonnell argues that the Government invited the jury to find that he had performed official acts merely by acting in his official capacity, so long as there was some connection to ‘Virginia business development.” (Mem. in Supp. of Mot. at 4.) But contrary to McDonnell’s argument, the Government did not rely on vague, broadly defined actions or matters. The Government instead pointed to five specific actions taken by McDonnell “to legitimize, promote, and obtain research studies for Star Scientific products.”
One such example is the meeting between McDonnell, Lisa Hicks-Thomas (“Hicks-Thomas”), McDonnell’s Secretary of Administration, and Sarah Wilson (“Wilson”), the Virginia Department of Human Resource Management Director. In that meeting, McDonnell pulled out a bottle of Anatabloc and said that he had been taking the pills and “they were working well for him, and [] he thought it would be good for [ ] state employees.” Tr. Vol. XI 2676:15-19. Hicks-Thomas testified that McDonnell then asked if she and Wilson would “meet with the people.” Id. at 2676:19-20 (emphasis added). After the meeting, both women then went down to Hicks-Thomas’ office and looked up Ana-tabloc on the computer. Id. at 2677:1-5. Or, for another example, the email to Jason Eige (“Eige”), the Governor’s counsel and policy advisor, in which McDonnell said, “Please see me about Anatabloc issues at VCU and UVA.” Tr. Vol. VII 1666:9-10. Eige subsequently responded, “Will do. We need to be careful with this issue.” Id. at 1666:12. In each example, McDonnell attempted to use his gubernatorial position to influence governmental decisions, specifically attempting to obtain research studies for Star Scientific. McDonnell clearly had influential power over Hicks-Thomas, for example, as she testified that she reported to the Governor and he had the power to fire her. Tr. Vol. XI 2673:14-15, 19-20; see United States v. Carson,
These actions were within the range of actions on questions, matters, or causes pending before McDonnell as Governor as multiple witnesses testified that Virginia business and economic development was a top priority in McDonnell’s administration. Tr. Vol. IX 2037:17-23; 2234:22-25. His campaign slogan was “Bob’s for Jobs.” Id. at 2232:17-19. And several former McDonnell staffers testified about the various ways that McDonnell would customarily take action on questions, matters and causes of Virginia business and economic development, including hosting events and having meetings. See id. at 2235:14-16; Tr. Vol. XI 2545:14-16.
The alleged exchange in this case was not simply receiving things of value in return for official action in the abstract; McDonnell fails to account for the permissible inferences the jury may have drawn with regards to the timing of Williams’ gifts and McDonnell’s official actions. Moreover, the Court’s instructions explicitly required the jury to find a quid pro quo
McDonnell attempts to analogize his case with United States v. Sun-Diamond Growers of Calif.,
As an initial matter, the Supreme Court in Sun-Diamond did not rule on what constitutes an official act; the Court instead “simply embraced a narrow reading of the illegal gratuity statute.” Jefferson,
McDonnell next challenges two specific lines of the Court’s jury instructions, but as explained below, both of McDonnell’s arguments are equally unavailing.
(i) Settled Practice Instruction
In its instructions to the jury, this Court first defined the definition of “official act” as spelled out under 18 U.S.C. § 201(a)(3). The Court then continued:
Official action as I just defined it includes those actions that have been clearly established by settled practice as part of a public official’s position, even if the action was not taken pursuant to responsibilities explicitly assigned by law. In other words, official actions may include acts that a public official customarily performs, even if those actions are not described in any law, rule, or job description.
However, McDonnell fails to align his argument with controlling Fourth Circuit precedent. In Jefferson, the district court had delivered a nearly identical instruction.
In comparing this Court’s instruction with that presented in Jefferson, the given instruction was appropriate. McDonnell argues, without citation, that the instruction elides the critical distinction between settled practices that are official acts and those that are not. However, McDonnell fails to consider the entirety of the instruction given. See United States v. Rahman,
(ii)Series of Steps Instruction
The Court’s charge to the jury also included the following instruction: “[Official action can include actions taken in furtherance of longer-term goals, and an official action is no less official because it is one in a series of steps to exercise influence or achieve an end.” Tr. Vol. XXVI 6103:10-14. McDonnell argues that this charge “bears no relation to the actual definition of ‘official act.’ ” (Mem. in Supp. of Mot. at 7). However,- again, McDonnell’s argument is unsupported by Fourth Circuit precedent.
In Jefferson, the district court instructed the jury that “the quid pro quo requirement is satisfied if you find that the government has established beyond a reasonable doubt that the defendant agreed to accept things of value in exchange for performing official acts on an as-needed basis _”
(2) Promise of Unspecified Future Action
The Court additionally included an instruction that read:
Bribery also includes a public official’s solicitation or agreement to accept a thing of value in exchange for official action whether or not the payor actually provides the thing of value and whether or not the public official ultimately performs the requested official action or intends to do so. Thus, it is not necessary that the scheme actually succeeded or that any official action was taken by the public official in the course of the scheme. What the government must prove is that the defendant you are considering knowingly devised and participated in a scheme or artifice to defraud the public and the government of their right to a public official’s honest services through bribery.
Tr. Vol. XXVI 6100:18-6101:5. McDonnell challenges this instruction as well, arguing that the Court’s instructions improperly invited the jury to convict him based on a promise of unspecified future action. He argues that if a corrupt agreement is all that the Government must prove, the jury must also be instructed that, to find such an agreement, it must find that the things of value were given in exchange for some specific official act or course of conduct. In other words, he contends that “the instructions failed to explain that quid pro quo corruption involves the ‘intent to induce a specific act.’” (Mem. in Supp. of Mot. at 9.)
McDonnell’s argument with respect to this issue revolves around the Fourth Circuit’s opinion in Jennings. In that case, the Fourth Circuit held that the district court’s instruction on the “corrupt intent” element of bribery left out the requirement of intent to engage in a quid pro quo. Jennings,
First, to address a subsidiary argument, the Supreme Court has stated that “fulfillment of the quid pro quo is not an element of [bribery].” Evans,
Secondly, and most importantly, quite unlike the jury instruction given in Jennings that “left out the quid pro quo requirement,” id. at 1021, this Court explicitly stated that bribery requires a quid pro quo, meaning “this for that” or “these for these.” Tr. Yol. XXVI 6100:11-13. The
(2)^Claim 2: Court’s Voir Dire on Pretrial Publicity was Inadequate
McDonnell argues that the voir dire process failed to provide reasonable assurances that bias would be discovered. He contends that the Court’s failure to conduct an independent inquiry of each prospective juror to determine what affect the “avalanche” of prejudicial pretrial publicity had on the juror’s impartiality necessitates the grant of a new trial. However, in .the province of voir dire, the district court holds the reigns. •
Jury voir dire is an essential element in guaranteeing a criminal defendant’s Sixth Amendment right to an impartial jury. United States v. Lancaster,
(1) In General. The court may examine prospective jurors or may permit the attorneys for the parties to do so.
(2) Court Examination. If the court examines the jurors, it must permit the attorneys for the parties to:
(A) ask further questions that the court considers proper; or
(B) submit further questions that the court may ask if it considers them proper.
Fed.R.Crim.P. 24(a).
Beyond this rule, the voir dire process is essentially committed to the sound discretion of the district court “because the determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge.” Lancaster,
“In an era of rapid and widespread communications,” the effect of pretrial publicity on a defendant’s right to an impartial jury is a question that will become increasingly prominent. See United States v. Bakker,
In order to empanel such an impartial jury, the court should undertake a careful voir dire. Bakker,
McDonnell contends that the Court’s error lay in its failure in relying on the juror’s own assertion of impartiality, rather than conducting a probing inquiry to permit the court to reach its own conclusion. But McDonnell fails to credit the procedures employed by the Court to protect McDonnell’s Sixth Amendment right.
First, the Court issued a 99-item questionnaire to 650 prospective jurors that “helped to identify prospective jurors excusable for cause and served as a springboard for further questions put to the remaining members of the array.” Skilling,
(3) Claim 3: Court’s Failure to Voir Dire the Jurors Based on Evidence of Juror Misconduct
McDonnell’s third claim focuses on the juror, Louis DeNitto (“DeNitto”), who was
McDonnell now contends that based on the Court’s interviews of Watson and DeNitto, credible evidence existed that the jury had begun deliberating prematurely. He argues that the Court’s failure to voir dire the remaining jurors despite this evidence constitutes grounds for a new trial. However, again, the Court possesses generous discretion in handling a claim of juror misconduct.
It is a well-established principal of trial administration that jurors must not engage in discussions of a case prior to the time they retire and begin formal deliberations. United States v. Resko,
Courts have distinguished between external jury influences and “intrajury” communications. Wolfe v. Johnson,
Ultimately, like the voir dire process described above, the Court is given ample discretion in dealing with situations of jury misconduct. Resko,
The First Circuit has developed a multi-step framework for assessing juror misconduct, including premature deliberations: (1) ascertain whether the allegation is colorable; (2) if it is, investigate the extent of any prejudice caused and consider prophylactic measures to alleviate that prejudice; and (3) if no curative measures are adequate, the court may grant a mistrial. Diaz,
Based on the Court’s face-to-face examination of both DeNitto and Watson, the Court was entitled to exercise its discretion and assess the situation presented. DeNitto’s alleged statement that the jurors were “all over the place” did not provide sufficient indicia' of premature deliberations. “Conversations between jurors concerning the case they are hearing do not always amount to premature deliberations.” Id. at 63; see also United States v. Peterson,
McDonnell relies on the Third Circuit’s rationale in Resko to support his argument regarding his third claim. In Resko, on the seventh day of a nine-day trial, a juror approached a court officer and told him that the members of the jury had been discussing the case during their recesses and while waiting in the jury room, in disregard of the court’s admonition.
Unlike the situation in Resko, in the present case the Court “had enough information [based on the interviews of both Watson and DeNitto] to make a reasoned determination that [McDonnell] would suffer no prejudice due to the jury misconduct.” Id. Resko explicitly admits that in situations where the jury engaged in premature deliberations and the court refused counsel’s request for individualized voir dire, but the court had knowledge of the substance of the premature communications, other federal courts of appeals have upheld criminal convictions. Id. at 693. This is the exact situation in the present case. Therefore, McDonnell’s argument must be rejected.
(4) Claim 4: The Court Erroneously Admitted Prejudicial Rule 404(b) Evidence
. Finally, McDonnell argues that the Government was allowed to impugn his character in violation of Rule 404(b) on at least two significant occasions, thereby causing substantial prejudice to the defense. However, this final argument suffers the same fate as the rest.
Although “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith,” such evidence “may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident____” Fed.R.Evid. 404(b). “Because the rule recognizes the admissibility of prior crimes, wrongs, or acts, with only the one stated exception, it is understood to be a rule of inclusion.... ” United States v. Queen,
The principal danger Rule 404(b) seeks to avoid is the fear that defendants will be convicted simply for possessing bad character. Id. at 995. However, the Rule “also recognizes that ‘[e]xtrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct.’ ” Id. at 996 (quoting Huddleston v. United States,
In Queen, the Fourth Circuit spelled out specific findings the Court should make in order to determine that evidence should be admitted under 404(b):
(1) The evidence must be relevant to an issue, such as an element of an offense, and must not be offered to establish the general character of the defendant. In this regard, the more similar the prior act is (in terms of physical similarity or mental state) to the act being proved, the more relevant it becomes. (2) The act must be necessary in the sense that it is probative of an essential claim or an element of the offense.2 (3) The evi*799 dence must be reliable. And (4) the evidence’s probative value must not be substantially outweighed by confusion or unfair prejudice in the sense that it tends to subordinate reason to emotion in the factfinding process.3
(1) Goodwin Evidence
First, McDonnell contends that the Court erroneously admitted evidence that he received things of value from William Goodwin (“Goodwin”). Specifically, the Government introduced evidence that McDonnell’s draft 2012 Statement of Economic Interest (“SOEI”) listed a Kiawah Island trip from Goodwin with a value of $23,312.55. See Tr.. Vol. XXII 5295:9-5296:7. However, McDonnell subsequently crossed out the trip and wrote “personal,” Id. at 5296:10-13, and thus McDonnell’s final SOEI contained no reference to the Kiawah Island trip, id. at 5296:20-24. However, the SOEI still contained other gifts from Goodwin, including a Keswick Cabinet Retreat valued at $920. Id. at 5296:17-19. McDonnell argues that the Government never established that this evidence was relevant to an issue other than character. In essence, he argues, all the evidence did was to suggest that he had a propensity to accept expensive gifts from donors. (Mem. in Supp. of Mot. at 27.)
Under Virginia law, certain state officials, including the Governor, are required to annually file a standardized disclosure of their personal economic interests, commonly referred to as the SOEI. The SOEI requires a state official to disclose, inter alid, gifts or entertainment valued in excess of fifty dollars received by the state official from any business or individual other than a relative or close personal friend. The Government introduced the Goodwin evidence at trial in order to prove McDonnell’s prior improper manipulation of this “personal friend” exception because although McDonnell testified that Goodwin was supposedly his personal friend, id. at 5051:21-22, the Government produced sufficient evidence for a reasonable jury to reject that testimony. See id. at 5051:23-5055:20.
Contrary to McDonnell’s argument that this evidence did no more than suggest to the jury that McDonnell had a propensity to accept expensive gifts from donors, the Goodwin evidence was clearly relevant to issues other than McDonnell’s general character. First, the evidence showed McDonnell’s knowledge of the SOEI and the existence of the “personal friend” exception. Second, McDonnell testified that, like Goodwin, he viewed Williams as a personal friend in 2012, see Tr. Vol. XXI 5109:9-14, but despite this opinion of their relationship, he still chose to disclose gifts from Williams on his 2012 SOEI. Thus, this evidence indicated an absence of mistake or accident in omitting the gifts and loans from Williams and thus was relevant to McDonnell’s intent to defraud.
Applying the factors defined in Queen, evidence of McDonnell’s knowledge and of the absence of mistake is relevant to, and probative of, his alleged intent to de
(2) Zubowsky Email
Secondly, McDonnell argues that the Court erroneously admitted evidence indicating that his staff organized free golf for him. This piece of evidence revolved around a January 2013 email exchange between Emily Rabbit (“Rabbit”), McDonnell’s scheduler at the time, and Adam Zubowsky (“Zubowsky”). Gov’t Ex. 627. Rabbit asked Zubowsky whether he had any background in planning a golf trip for the Governor and his sons. Tr. Vol. XXI 5137:23-5138:3. Zubowsky responded that Rabbit should find a golf course that will host McDonnell and his family for free. Id. at 5138:14-16. Zubowsky then directed Rabbit to put all the information in a briefing book for McDonnell’s review. Id. at 5138:21-5139:1.
McDonnell now objects to the introduction of this email, arguing that it is both inadmissible hearsay and Rule 404(b) evidence. ' As an initial matter, when the Government first attempted to introduce this email through its direct examination of Rabbit, McDonnell’s counsel objected on the basis that the evidence is not relevant and “extraordinarily prejudicial.” Tr. Vol. XII 2869:1-2. When the Government subsequently attempted to introduce the email during the cross-examination of McDonnell, his counsel again objected solely based on relevancy. Tr. Vol. XXI 5137:7-9. Thus, during trial McDonnell’s counsel never objected based on hearsay or Rule 404(b). Based on Federal Rule of Evidence 103, a party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and if the party both timely objected at trial and stated the specific grounds for the objection. Fed.R.Evid. 103(a)(1). Because McDonnell’s counsel objected solely on the basis of relevance, this Court properly admitted the email at trial. Despite McDonnell’s apparent mistake, the Court may still consider McDonnell’s present objections if the introduction of this email constituted plain error, meaning it affected McDonnell’s substantial rights. Fed. R.Crim.P. 52(b); Fed.R.Evid. 103(e).
To proceed with the merits, McDonnell first argues that this email was inadmissible hearsay, and should have been excluded as such. Hearsay is an out-of-court statement that is offered in court to prove the truth of the matter asserted, Fed. R.Evid. 801(c), and is inadmissible at trial unless an exception applies, Fed.R.Evid. 802. A statement that is offered against an opposing party and was made by either the party in his individual capacity or representative capacity, or made by the party’s agent or employee on a matter within the scope of that relationship and while it existed, is deemed non-hearsay. Fed. R.Evid. 801(d)(2)(A), (D).
First, the portion of the email from Rabbit is not hearsay. See Fed. R.Evid. 801(d)(2)(D). Rabbit was McDonnell’s scheduler at the time and thus an employee. The statement she made in the email was within the scope of her employment relationship, as McDonnell requested that they meet to discuss golf trips in Myrtle Beach or Florida. The statement was then offered against McDonnell at trial.
Second, with respect to Zubowsky’s statements in the email, McDonnell’s counsel is correct that the email is hearsay that
McDonnell next contends that this evidence also violated Rule 404(b) as the Government’s only purpose in introducing it was to show McDonnell’s character in an unflattering light — that he had a propensity to seek out free expensive gifts. On the other hand, the Government contends that this email “was not Rule 404(b) evidence; [rather] it was offered to rebut Mr. McDonnell’s assertion that he didn’t seek gifts and he simply accepted gifts to spend time with his family.” (Opp’n Mem. at 29.) As support, the Government cites a section of “McCormick on Evidence,” which describes impeachment by “specific contradiction.” 1 McCormick on Evid. § 45 (7th ed.2013).
“Impeachment by contradiction is ' a means of policing the defendant’s obligation to speak the truth in response to proper questions.” United States v. Gilmore,
The Government attempts to argue that the introduction of the Zubowsky email was intended to rebut McDonnell’s testimony on direct that the “most important gift” he received as governor was “having some time with his family.” Tr. Vol. XX 4853:22-25. However, it was not until cross-examination when the Government specifically questioned McDonnell regarding his solicitation of free golf outings. Thus, the Government cannot rest its argument of impeachment by contradiction on the general “notion” implicit in McDonnell’s direct testimony.
If the Government’s argument is rejected, then the Court must analyze the Zubowsky email pursuant to Rule 404(b). According to the factors defined in Queen,
IV. CONCLUSION
For the foregoing reasons, McDonnell’s Motion is DENIED.
Let the Clerk send a copy of this Memorandum Opinion to all counsel of record.
An appropriate Order will issue.
Notes
. Tr.Vol. XXVI 6100:9-11.
. The Court defines evidence as “necessary where, considered in the light of other evi
. The court also points to "(1) a limiting jury instruction, when requested by a party, explaining the purpose for admitting evidence of prior acts, and (2) the requirement in a criminal case of advance notice, when so requested, of the intent to introduce prior act evidence” as protections against potential "pit falls” under this Rule. Queen,