United States District Court, W.D. Virginia, Big Stone Gap Division
L. Busscher, Assistant United States Attorney, Abingdon,
Virginia, for United States;
J. Beck, Assistant Federal Public Defender, Abingdon,
Virginia, and Lisa M. Lorish, Assistant Federal Public
Defender, Charlottesville, Virginia, for Defendant.
OPINION AND ORDER
P. JONES, UNITED STATES DISTRICT JUDGE
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.
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).
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.
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