MEMORANDUM OPINION

ROYCE C. LAMBERTH, United States District Judge.

Before the Court are the defendants' motions [Slough 441, 447; Slatten 17] to exclude evidence detailed in the government's notice [Slough 406] of intention to introduce evidence under Federal Rule of Evidence 404(b) ("Rule 404(b)"). Upon consideration of the defendants' motions [Slough 441, 447; Slatten 17], the government's opposition [Slough 481; Slatten 36], the defendants' replies [Slough 492, 494; Slatten 41], the applicable law, and the entire record herein, the Court will DENY in part and GRANT in part the defendants' motions to exclude.

I. BACKGROUND

Both the District Court and the Court of Appeals for the District of Columbia Circuit have previously described the factual background of this case. United States v. Slough, 677 F.Supp.2d 112, 116-129 (D.D.C.2009) ("Slough I"), vacated, 641 F.3d 544, 555 (D.C.Cir.2011) ("Slough II"); Slough II, 641 F.3d at 547-49. Thus, the Court will now only highlight the relevant facts and procedural background.

On March 28, 2014, the government filed a notice of its intention to introduce at trial evidence pursuant to Rule 404(b) related to defendants Evan Liberty, Nicholas Slatten, and Paul Slough. United States v. Slough, 08 Cr. 360, ECF No. 406. In its notice, the government listed the following purported evidence, summarized for the purposes of this Memorandum:

Defendants moved to exclude this evidence on May 16, 2014. Slough, ECF Nos. 441 & 447. Three days later, the government filed a supplemental notice of intention to introduce evidence pursuant to Rule 404(b). Slough, May 19, 2014, ECF No. 450. In its supplemental notice, the government added the following purported evidence to its original list, Slough, ECF No. 406, summarized for the purposes of this Memorandum:

Slough, ECF No. 450 at 1-2.

The government also noted in its opposition brief that it

II. LEGAL STANDARD

This Memorandum will focus only on admissibility under Rule 404(b). The overriding thrust of the defendants' motion is exclusion pursuant to Rule 404(b), and this Court's ensuing decision on the motions does not require analysis of whether the evidence in question is "intrinsic to the charged crime"—a determination that would make a Rule 404(b) analysis unnecessary. See United States v. Bowie, 232 F.3d 923, 929 (D.C.Cir.2000).1

Pursuant to Rule 404(b), "[e]vidence of a crime, wrong, or other 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. . . . 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." Fed.R.Evid. 404(b)(1)-(2). "Under the law of this circuit, `404(b) is a rule of inclusion rather than exclusion,' . . . and it is `quite permissive,' excluding evidence only if it is offered for the sole purpose of proving that a person's actions conformed to his or her character." United States v. Long, 328 F.3d 655, 660-61 (D.C.Cir.2003) (quoting Bowie, 232 F.3d at 929-30 (D.C.Cir.2000)).

The Circuit applies a "two-step analysis in considering whether [Rule 404(b)] evidence [is] properly admitted." United States v. Clarke, 24 F.3d 257, 264 (D.C.Cir.1994). "The first step requires only that the evidence be probative of some material issue other than character." United States v. Washington, 969 F.2d 1073, 1080 (D.C.Cir. 1992) (citing United States v. Miller, 895 F.2d 1431, 1435 (D.C.Cir.1990)). If so, the Court must then determine whether, under Federal Rule of Evidence 403 ("Rule 403"), "the probative value [of the evidence] is substantially outweighed by the danger of unfair prejudice. . . ." United States v. Manner, 887 F.2d 317, 321 (D.C.Cir.1989) (quoting Fed.R.Evid. 403); cf. United States v. Cassell, 292 F.3d 788, 796 (D.C.Cir.2002) (quoting Dollar v. Long Mfg, N.C., Inc., 561 F.2d 613, 618 (5th Cir.1977) for the proposition that "`[u]nfair prejudice' as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party. Virtually all evidence is prejudicial or it isn't material. The prejudice must be `unfair.'"). According to the advisory committee's note to Rule 403, "`Unfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Fed.R.Evid. 403 advisory committee's note; see also United States v. Ring, 706 F.3d 460, 472 (D.C.Cir.2013); United States v. Libby, 453 F.Supp.2d 35, 44 n.8 (D.D.C.2006).2

Rule 404(b) evidence "must meet a threshold level of similarity in order to be admissible to prove intent," but "exact congruence" is not required. United States v. Long, 328 F.3d 655, 661 (D.C.Cir. 2003); see also Slough Mot. at 5; Slatten Mot. at 8; Liberty Mot. at 8. "What matters is that the evidence be relevant to show a pattern of operation that would suggest intent and that tends to undermine the defendant's innocent explanation." Long, 328 F.3d at 661 (internal quotation marks and citation omitted); see also Slough Mot. at 5; Opp'n at 15. "[I]n order to determine a `close' relationship or sufficient `similarity,' the reviewing court is to consider—in part—temporal proximity." United States v. Turner, 2006 WL 1980232, at *5 (D.D.C. July 12, 2006) (citing Jankins v. TDC Mgmt. Corp., Inc., 21 F.3d 436, 441 (D.C.Cir.1994)). "`[T]he admissible bad acts evidence need not show incidents identical to the events charged, so long as they are closely related to the offense,' . . . and are probative of intent rather than mere propensity." Long, 328 F.3d at 661 (quoting United States v. DeLoach, 654 F.2d 763, 769 (D.C.Cir.1980)); see also Liberty Mot. at 8; Opp'n at 15.

III. ANALYSIS

The defendants' intent is at issue—and in dispute—with regard to each of the charged offenses: murder in the first degree, voluntary manslaughter, and attempted voluntary manslaughter. While the degree and type of intent varies per charge, aspects of the defendants' state of mind, both preceding and at the moment of the Nisur Square shooting incident, will be directly relevant to a finding of guilt or innocence. As the Supreme Court has explained, Rule 404(b) evidence "may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor's state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct." Huddleston, 485 U.S. at 685, 108 S.Ct. 1496 (1988). Here, the Court will evaluate the government's purported Rule 404(b) evidence for its probative value as to the requisite intent3 for the charged homicides.4

Given the thematic connections among the government's purported Rule 404(b) evidence, the Court's analysis can be divided into four categories: indiscriminate shooting, throwing water bottles and other items, statements by the defendants, and Evan Liberty's reassignment.5

A. Indiscriminate shooting

The government claims it possesses evidence that defendants Slatten, Slough, and Liberty all, on separate and multiple occasions, fired their weapons indiscriminately, without perceivable threats to their safety. Slough, ECF No. 406 at ¶¶ b, c, d, f; Slough, ECF No. 450 at 1-2 (Liberty). The defendants argue, in essence, that the alleged indiscriminate shooting instances are unconnected to and factually dissimilar from the Nisur Square shooting incident. Slough Mot. at 4-6; Liberty Mot. at 7-9; Slatten Mot. at 8-10. The government counters that "incidents relating to prior indiscriminate shooting of weapons, without regard for who might be struck by the rounds, would be . . . evidence of the defendants' hostility towards Iraqis, evidence directly linked to defendants' states of mind" on the day of the shooting incident at issue in this case. See Opp'n at 12. The Court agrees with the government that intentional indiscriminate shooting by the defendants would evince a mentality of hostility toward and lack of respect for the lives of Iraqi civilians that is probative of the issue of intent for both first-degree murder and voluntary manslaughter. Specifically as to Slatten's first-degree murder charge, examples of recent indiscriminate, yet deliberate, shooting are not evidence of character, but potential evidence of Slatten's state of mind leading up to the day of the Nisur Square shooting incident. A reasonable juror could deem an eagerness to fire one's deadly weapon into populated areas, without provocation, as evidence of malice aforethought. Moreover, a reasonable juror could surely conclude that the intent of indiscriminate shooting with no present threat would be to kill or, at least, seriously injure Iraqi civilians—i.e. the type of intentionality at issue in a charge of voluntary manslaughter. Regarding factual similarities to the Nisur Square shooting incident, allegations that Slatten deliberately and intentionally shot at unidentified targets while unprovoked are factually consistent with his current indictment for first-degree murder. See Long, 328 F.3d at 661. The same factual similarity certainly exists between instances of indiscriminate shooting of weapons designed to kill or seriously injure by defendants Liberty and Slough and their respective indictments for multiple counts of voluntary manslaughter.

The defendants further claim that the government's purported Rule 404(b) evidence is inadmissible pursuant to Rule 403 because "it would be substantially outweighed by its unfair prejudice." See, e.g., Slough Mot. at 7. The principal Rule 403 argument raised by the defendants is that the government's Rule 404(b) evidence centers on a presentation of the defendants' "ethnic or racial animus" toward Iraqis, and that such a presentation would "overwhelm legitimate evidence." See Slough Mot. at 7-8; see also; Slatten Mot. at 12-13; Liberty Reply at 4.6 To support this argument, each defendant cites United States v. Doe, 903 F.2d 16 (D.C.Cir. 1990). Slough Mot. at 7-8; Slatten Mot. at 12; Liberty Reply at 4. In Doe, the Circuit "condemned racially inflammatory remarks during governmental summation." Doe, 903 F.2d at 24-28. Yet a prosecutor's racially biased remarks during closing arguments are quite distinguishable from a defendant's conduct. Here, it cannot be said that evidence probative of the defendants' intent to commit the charged crimes—an issue that will be material to the prosecution—will "violently affect a juror's impartiality." Id. at 28 (internal quotation marks and citation omitted). To the contrary, such relevant state of mind evidence may, in fact, be "the only means of ascertaining that mental state." Huddleston, 485 U.S. at 685, 108 S.Ct. 1496. Thus, evidence of indiscriminate shooting is permissible under Rule 404(b).

B. Throwing water bottles and other items

While frozen water bottles were not used to kill and injure Iraqis in Nisur Square on September 16, 2007, the purported evidence of defendants throwing hardened objects at "unarmed civilians, vehicles, wagons, and bicycles without justification in an attempt to break automobile windows, injure and harass people, and for sport," Opp'n at 7, is also sufficiently probative of intent. Such conduct, if true, would reveal hostility toward and disregard for the well-being of Iraqi civilians similar to that demonstrated by indiscriminate shooting. Therefore, like evidence of indiscriminate shooting, evidence that the defendants would throw objects in a manner that exceeded acceptable force by Blackwater security personnel is permissible under Rule 404(b).

C. Statements by the defendants

Perhaps the clearest examples of permissible 404(b) evidence are the alleged statements made by defendants Liberty and Slatten that suggest a manifest animosity toward Iraqis. The government alleges that Slatten, within a year of the Nisur Square shooting incident, "made statements that he wanted to kill as many Iraqis as he could as `payback for 9/11.'" Slough, ECF No. 406 at ¶ a. In addition, the government seeks to introduce evidence of Slatten bragging about firing his weapon at and killing Iraqis. Id. at ¶¶ a, d; Slough, ECF No. 450 at 2-3.7 Taken together, statements as violent and specifically hostile as those alleged would undoubtedly be probative of an intent to kill, with malice aforethought, the Iraqi civilian driving a white Kia in Nisur Square on September 16, 2007. See Indictment, United States v. Slatten, 14 Cr. 107, ECF No. 1 at 2. The government also alleges that, after a shooting confrontation in the year preceding the Nisur Square incident, Liberty "ridiculed [a] teammate for only firing at targets, and stated `just shoot at something man.'" Slough, ECF 450 at 1-2. The government claims to be in possession of evidence that "Liberty referred to this teammate as a `Hadji Lover,'" id., which would imply enmity toward Arab people generally. Such statements, made by a defendant charged with voluntary manslaughter and reflective of an intent to kill Iraqis, regardless of any threat they posed, are probative here.

Once again, the defendants' arguments regarding the prejudicial effect, under Rule 403, of statements of animosity toward Iraqis are unavailing. The government has provided notice that it has witnesses who will testify to the defendants' own statements expressing either outright hostility toward Iraqis or a disregard for their lives. Presenting such statements to the jury would not "lure the factfinder into declaring guilt on an improper basis rather than on proof specific to the offense charged," given the direct relevance of such statements—allegedly spoken by the defendants—to the issue of intent underlying both first-degree murder and involuntary manslaughter. See Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).8

D. Evan Liberty's reassignment

Finally, the government provided notice of its intention to introduce evidence that, "[a]s a result of his overly aggressive behavior, [defendant] Liberty was reassigned from a position in the turret, to a driver within the convoy." Slough, ECF No. 406 at ¶ e. Rather than presenting evidence of a defendant's conduct or statements that are probative of intent, the government wishes to submit evidence of a third party's presumed response to a defendant's conduct or statements. Such evidence bears too attenuated a link to the elements of the present charges against Liberty to be admissible. Thus, the Court GRANTS defendant Liberty's motion to exclude evidence of his reassignment.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES in part and GRANTS in part the defendants' motions [Slough 441, 447; Slatten 17] to exclude the evidence described in the government's notice [Slough 406] of intention to introduce evidence pursuant to Rule 404(b).

A separate Order consistent with this Memorandum Opinion shall issue this date.