United States District Court, W.D. Virginia, Big Stone Gap Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States;
J. Beck, Assistant Federal Public Defender, Abingdon,
Virginia, for Defendant.
OPINION AND ORDER
P. JONES, UNITED STATES DISTRICT JUDGE
prosecution for mailing threatening letters, the defendant
has moved in advance of trial to prohibit the United States
from introducing evidence under Rule 404(b) that the
defendant had been convicted of sending threatening letters
to other individuals in the past.
defendant, Randall J. Keystone, is an inmate at Red Onion
State Prison, located in this judicial district. Keystone is
charged with violations of 18 U.S.C. § 875(c) by sending
a letter on or about January 11, 2017, to an individual at
two different addresses in Raleigh, North Carolina,
threatening to shoot the victim in the head. See United
States v. Keystone, No. 2:18CR00013, 2019 WL 289820
(W.D. Va. Jan. 22, 2019) (denying defendant's Motion to
Government filed a notice of its intent to offer the
1) Randall J. Keystone previously sent threatening letters on
or about November 30, 2006, June 7, 2008, July 27, 2008,
August 14, 2008, and September 15, 2008. On March 9, 2010, he
pled guilty in the Circuit Court of Wise County and City of
Norton, Virginia to five counts of communicating a threat by
letter, for these letters.
2) Randall J. Keystone previously sent a threatening letter
on or about November 2, 2001. On August 21, 2002, he pled
nolo contendre [sic] in the Circuit Court of Augusta
County, Virginia to one count of sending a threatening
letter, for this letter.
3) Randall J. Keystone previously sent a threatening letter
on or about November 27, 2000. On September 14, 2001, he was
convicted by a jury in the Circuit Court of Augusta County,
Virginia to one count of sending threatening letters, for a
letter sent on November 27, 2000.
of Intent 1-2, ECF No. 28. The Government contends that this
evidence is admissible under Federal Rule of Civil Procedure
404(b) because it “is relevant to the defendant's
intent to transmit a communication containing a threat . . .
and as to his lack of mistake or accident.”
Id. at 2-3. The Government also asserts that the
evidence is reliable and that its probative value is not
substantially outweighed by its prejudicial value.
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 act.” United States v. McBride, 676 F.3d
385, 397 (4th Cir. 2012).
prove guilt under 18 U.S.C. § 875(c), the Government
must prove that the defendant subjectively intended the
mailing as a threat and that in fact it was a “true
threat” - one that a reasonable recipient who is
familiar with the context of the letter would ...