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United States v. Nicholas

United States District Court, W.D. Virginia, Big Stone Gap Division

August 12, 2019

UNITED STATES OF AMERICA
v.
MITCHELL NORBERT NICHOLAS, Defendant.

          Lena L. Busscher, Assistant United States Attorney, Abingdon, Virginia, for United States;

          Brian J. Beck, Assistant Federal Public Defender, Abingdon, Virginia, and Lisa M. Lorish, Assistant Federal Public Defender, Charlottesville, Virginia, for Defendant.

          OPINION AND ORDER

          JAMES P. JONES, UNITED STATES DISTRICT JUDGE

         In this prosecution for mailing letters to two federal judges threatening to murder them, the defendant has moved in advance of trial to prohibit the United States from introducing evidence under Rule 404(b) that the defendant at about the same time also attempted to send a similar letter to the President.

         The defendant, Mitchell Norbert Nicholas, an inmate at the Red Onion State Prison, located in this judicial district, is charged with violations of 18 U.S.C. §§ 876(c) and 115(a)(1)(B), (b)(4) by sending letters on or about November 5, 2018, to two federal judges of the United States District Court for the Virgin Islands, threatening to murder them. Nicholas is serving a life sentence for first degree murder imposed in 2007 by the Superior Court of the Virgin Islands and it appears that the targeted federal judges had handled a matter brought by Nicholas. See Nicholas v. Virgin Islands, No. 2013-75, 2015 WL 1503425 (D.V.I. Mar. 27, 2015), certificate of appealability denied, No. 15-1920 (3d Cir. Oct. 20, 2015).

         Upon receipt of the letters, an investigation by the U.S. Marshals Service ensued. Nicholas was interviewed by deputy U.S. marshals at the Red Onion State Prison on November 20, 2018. According to the deputy marshals, Nichols admitted writing the letters. He explained that he felt that he would be prosecuted for these threats in the Virgin Islands which would garner attention there to his murder case, in which he believes he was wrongfully convicted. The deputy marshals also intercepted an unsent letter by Nichols to the President. The letter to the President reads as follows:

Dear Mr. President,
As the head of the federal government you bare [sic] the responsibility of fault when federal judges committ [sic] crimes that are still ongoing, like the ones in my local district, the entire panel of the third circuit and three from the fourth circuit. Denying constitutionally protected rights and a series of offenses under title 18 of the United States Code are some examples. You have expressed desires to disregard said constitution to serve your purpose, this act allows others to follow suit and endanger the public.
It is the opinion of others that your death will make America great again. You have indeed lost all honor and must committ [sic] seppuku to regain it. Refuse, then I'm going to kill you. See you soon.
Mitchell N. Nicholas

ECF No. 23-1. It is this letter that the government wishes to introduce at trial.

         The Fourth Circuit has set forth the following four-factor test for the admissibility of “bad acts” evidence under Federal Rule of Evidence 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. (3) The evidence 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.

United States v. Johnson, 617 F.3d 286, 296-97 (4th Cir. 2010) (quoting United States v. Queen, 132 F.3d 991, 997 (4th Cir.1997)). “The more closely that the prior act is related to the charged conduct in time, pattern, or state of mind, the greater the potential relevance of the prior ...


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