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UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case Number: 22-20221-CR-MARTINEZ

UNITED STATES OF AMERICA, 

v.

ISAAC ALVAREZ, 

Defendant.

______________________________________/ 

ORDER ON NOTICE OF INTENT TO USE RULE 404(b) EVIDENCE

THIS CAUSE came before the Court on the Government’s Notice of Intent to Use 

Evidence Under Federal Rule of Evidence 404(b) (the “Notice”). (ECF No. 44). 

The Notice informs the Court that, at the trial scheduled in this case, the Government 

intends to introduce into evidence (1) Defendant’s certified conviction records from a 2011 Florida 

state case where Defendant pled guilty to one felony count of Firearm/Weapon/Ammunition 

Possession by a Convicted Felon or Delinquent, in violation of sections 790.23(1) and 775.087, 

Florida Statutes (“2011 Conviction”); and (2) recordings and transcripts of five phone calls in 

which Defendant allegedly made incriminating statements. (Id. at 3). 

Defendant opposes the Government’s use of this evidence, arguing that it was untimely 

noticed under Rule 404(b). (Resp. at 1–2). Further, Defendant argues that the 2011 Conviction is 

too remote, improper propensity evidence, and is unnecessary to prove the Government’s case. 

(Id. at 2–7). With respect to the jail calls, Defendant argues that they should be excluded because 

what is being said on the calls is unclear, the calls are confusing and inflammatory, some of the 

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calls could lead to improper propensity inferences, and the Government does not need the calls to 

prove its case. (Id. at 8–11). 

Under Federal Rule of Evidence 404(b), “[e]vidence of any other crime, wrong, or act is 

not admissible to prove a person’s character in order to show that on a particular occasion the 

person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). “This evidence may be 

admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake, or lack of accident.” Id. at (b)(2). If the Government 

intends to use 404(b) evidence, “it must provide reasonable notice of any such evidence that the 

prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it.” Id. at 

(b)(3)(A). The Government must “do so in writing before trial—or in any form during trial if the 

court, for good cause, excuses lack of pretrial notice.” Id. at (b)(3)(C). 

The Eleventh Circuit dictates that “evidence of prior acts may be admitted so long as (1) it 

is submitted as something other than propensity evidence (such as proving one of the 404(b) 

exceptions [motive, opportunity, intent, preparation, plan, knowledge, identity, absence of 

mistake, or lack of accident]), (2) there is sufficient proof for the jury to determine that the 

defendant committed the prior act, and (3) the evidence does not fail the Rule 403 balancing test.” 

United States v. Larios-Trujillo, 403 F. App’x 442, 444 (11th Cir. 2010). Under Rule 403, “[t]he 

court may exclude relevant evidence if its probative value is substantially outweighed by a danger 

of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue 

delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. 

Although Defendant’s 2011 Conviction is over ten years old, it is very similar to Count II 

charged here and is relevant to issues of intent, knowledge, and lack of mistake. The Court finds 

that the 2011 Conviction is not too remote to be probative of these issues. The Government’s 

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introduction of certified copies of the 2011 Conviction at trial will satisfy the Rule 404(b) 

requirement that the act be established by sufficient proof to permit a jury finding that Defendant 

committed the extrinsic act. See United States v. Jernigan, 341 F.3d 1273, 1282 (11th Cir. 2003). 

Furthermore, the Court does not find that the Government’s notice was untimely. On February 

28, 2023, this case was set for a Change of Plea Hearing after Defendant indicated that he wanted 

to change his plea of not guilty. At the hearing, however, Defendant decided not to change his 

plea. (See ECF No. 29). Less than two weeks later, the Government submitted its Notice. To the 

extent there was any delay, it was due to Defendant’s own representations that this case would not 

require a trial. Accordingly, because notice was timely, Defendant contests issues of intent and 

knowledge, the 2011 Conviction is very similar to Count II charged here, and the 2011 Conviction 

is not too remote, the Court determines that the overall probative value of the conviction outweighs 

its prejudicial effect. 

In response to the Government’s Notice, Defendant mentions that the Government intends 

to introduce six additional prior convictions to prove Defendant’s status as a convicted felon if

Defendant does not stipulate to his prior convictions. (Resp. at 6). At this point, without further 

information or argument from the parties, the Court is unable to rule on this issue. The Court will 

address this issue when raised by the parties outside the presence of the jury. 

Finally, the Court addresses the jail calls. The parties have not filed or otherwise submitted 

these calls, or the transcripts, to the Court for review. Without knowing the content of the calls, 

the Court cannot decide whether to admit them, and will not base its decision on the argument 

from the parties. Again, the Court will address this issue when raised by the parties outside the 

presence of the jury. 

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For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that the 

Government will be permitted to introduce at trial Defendant’s 2011 Conviction as stated herein. 

The parties shall raise the remaining issues with the Court outside the presence of the jury. 

DONE AND ORDERED in Chambers at Miami, Florida, 12th day of March, 2023. 

 

____________________________________ 

 JOSE E MARTINEZ

UNITED STATES DISTRICT JUDGE

Copies furnished to: 

Magistrate Judge Becerra

All counsel of record 

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