Is Rule 404(b) inadmissable because of the government's failure to provide a sufficient pre-trial notice to defense?

MultiRegion, United States of America

The following excerpt is from U.S. v. Floyd, 21 F.3d 1116 (9th Cir. 1994):

Having established that the evidence was introduced for a proper purpose, we must next determine whether the evidence is nevertheless inadmissable because of the government's failure to provide pretrial notice to defense. We note that defense was aware that the government had this evidence. Otherwise, there would have been no stipulation. The government was unable to provide reasonable notice in advance of trial that it would offer the impeachment testimony because the government was not on notice that the defense would attempt to establish the misleading factual scenario. See, e.g., United States v. Beltran-Rios, 878 F.2d 1208, 1212 (9th Cir.1989) (the government may introduce evidence otherwise excludable when the defendant "opens the door" by introducing potentially misleading testimony). The district court did not err in admitting the Rule 404(b) evidence.

IX. Admissibility of the allegedly fabricated truck repair order.

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