Evidence - Rule 403 – Prejudice Versus Relevance

Old Chief v. United States, 519 U.S. 172 (1997)

In a prosecution for being a felon in possession of a firearm, though the nature of the defendant’s prior offense is relevant pursuant to the definition of relevance under Rule 401, the defendant’s willingness to stipulate that he was a convicted felon obviates the need for this evidence and the trial court, pursuant to Rule 403, should accept the stipulation and bar evidence relating to the nature of the prior offense. The court explained that generally, the availability of alternative methods of proving a relevant fact is something that the district court may consider in evaluating whether evidence should be admitted over a Rule 403 objection. Thus, if evidence is relevant in one respect, but irrelevant and prejudicial in some other respect, the court should consider whether there exists an alternative method of proving the fact that is relevant.

United States v. McElmurry, 776 F.3d 1061 (9th Cir. 2015)

The defendant was charged with possessing and distributing child pornography. Prior to trial, the government announced its intention to offer evidence of a letter written by the defendant several years earlier in which he described his addiction to pornography and his ability to encrypt his computer to avoid law enforcement detection. The district judge denied the defendant’s motion in limine, without having actually read the letter, basing his decision solely on the proffer of the government. This was reversible error.

United States v. Morgan, 786 F.3d 227 (2d Cir. 2015)

Evidence that the defendant tried to hire a hitman to kill a government witness (informant) was too prejudicial to be probative and should have been excluded at trial pursuant to Rule 403.

Gumm v. Mitchell, 775 F.3d 345 (6th Cir. 2014)

The prosecutor introduced evidence in a murder trial that the defendant admitted having sex with a horse (and that the horse talked to him) and other evidence of deviant sexual acts that were contained in psychiatric reports. The Sixth Circuit, reviewing the case in habeas, held that this amounted to flagrant prosecutorial misconduct that required setting aside the conviction.

United States v. Gomez, 763 F.3d 845 (7th Cir. 2014) (en banc)

The Seventh Circuit, sitting en banc, reconstructs the analysis that must be used in deciding whether to admit other crimes evidence. Rather than a strict four-part test, the court insists that the ultimate questions are relevance and unfair prejudice and issues such as similarity and recency are relevant, but not “checklist” items that must be checked: “The extent to which a proffered “other crime, wrong, or act” is close in time and similar to the conduct at issue in the case may have a bearing on its relevance, which is the starting point for all evidence questions, but the importance of testing for similarity and recency will depend on the specific purpose for which the other-act evidence is offered. The proponent of the other-act evidence should address its relevance directly, without the straightjacket of an artificial checklist.” Second, the government must explain the legitimate purpose for which the evidence is offered in a way that does not include propensity as part of the reasoning. The trial court must not simply ask whether the other act evidence is being offered for a non-propensity purpose; the court must ask how the evidence establishes an element in a non-propensity way. And, finally, the court must determine whether the non-propensity purpose is a legitimately disputed issue at trial that would make the evidence more probative on that issue than prejudicial. Thus, with general intent crimes, such as drug possession or drug distribution offenses, the mere fact that the defendant enters a not guilty plea does not make his intent an issue that can be proven by the government with Rule 404(b) evidence, unless the defendant expressly disputes his intent at trial. The court emphasized that a carefully-crafted case-specific jury instruction should be given to the jury that expressly limits the use of this evidence, emphasizes the burden of proof on the government to prove each element beyond a reasonable doubt, and cautions against using the evidence to prove that the defendant is a bad person.

United States v. Caldwell, 760 F.3d 267 (3rd Cir. 2014)

In this trial for possession of a weapon by a convicted felon, the trial court erroneously permitted the government to introduce evidence of the defendant’s prior conviction for possession of a weapon by a convicted felon. The defendant denied possessing the weapon. The police testified that they saw the defendant with the gun in his hand. The government argued (and the trial court agreed) that the prior conviction was admissible to prove knowledge and intent. The Third Circuit reversed: the prior conviction did not prove anything about the defendant’s intent or knowledge in this case. The defense was that he did not possess the gun at all, so his knowledge or intent was not relevant. In addition, the government argued that the prior conviction was admissible pursuant to Rule 609, because the defendant testified and the prior conviction was introduced to impeach his credibility. The Third Circuit held that the Rule 403 balancing test weighed in favor of excluding this form of impeachment. This is a significant decision that devotes nearly 20 pages in the published opinion to the inadmissibility of the prior conviction under either the Rule 404(b) or Rule 609 bases.

United States v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014)

The trial court erred in permitting the government to introduce sexual orientation evidence relating to the two defendants. One defendant, a female police officer, was accused of participating in providing corrupt security for a drug deal. She claimed that she was entrapped by the undercover officer who lured her into the corrupt deal by having sex with her. At trial, the government offered evidence that the defendant was a lesbian and the evidence was offered to rebut her claim that the undercover officer (male) had sex with her. The trial judge commented that in his 67 years of experience, he was not aware that lesbians would have sex with males. The First Circuit held that admitting this evidence was error (and questioned the trial judge’s supposed “wisdom” on this point), but the error was deemed not to be prejudicial enough to warrant setting aside the conviction of a co-defendant.

United States v. Adams, 722 F.3d 788 (6th Cir. 2013)

The government offered hearsay evidence that the defendants were accused of vote-buying in prior years in this case that involved allegations of vote-buying. The government suggested that the accusations were offered no for the truth of the matter asserted. The court, citing Justice Cardozo, held that “the reverberating clang of those accusatory words would drown all weaker sounds” and held that admitting the evidence was an abuse of discretion.

United States v. Evans, 728 F.3d 953 (9th Cir. 2013)

The defendant was charged with various offenses involving his alien status and acquiring a false passport and certain federal benefits. The defendant sought to introduce a birth certificate he received from the State of Idaho. The trial court granted the government’s motion in limine excluding the birth certificate on the basis of Rule 403 and Rule 104 and the trial court’s conclusion that the birth certificate was fraudulently obtained. The Ninth Circuit reversed: Rule 104 is not a substantive rule of evidence. It simply is the procedure by which other rules of evidence (e.g., privilege, constitutional, hearsay). The trial court’s conclusion that the birth certificate was fraudulently obtained was not a decision that the trial court could make, especially since it was based on the judge’s credibility determination of the witnesses. When making a decision based on Rule 403, the judge must assume the truthfulness of the proffer regarding the evidence. Excluding the evidence in this case was a constitutional due process violation.

United States v. Ramirez-Fuentes, 12-1494 (7th Cir. 2013)

The government elicited testimony that the methamphetamine involved in this case was “Mexican methamphetamine.” The Seventh Circuit held that this was reversible error. The testimony prejudiced the defendant, who was Mexican and was unnecessary to decide any issue in the case.

United States v. Cunningham, 694 F.3d 372 (3rd Cir. 2012)

The trial court committed reversible error by failing to engage in the Rule 403 balancing test prior to sending out child pornography videos to the jury room. Though the jury is permitted to see evidence of the crime, some of the videos in this case were so disturbing that the judge should have withheld them from the jury’s view. In fact, the trial judge did not examine the videos brfore sending them to the jury room, relying instead on a description of the videos. The defendant stipulated that the images on the computer were child pornography.

United States v. Boros, 668 F.3d 901 (7th Cir. 2012)

In this internet pharmacy prosecution, the government was permitted to introduce evidence by an expert about how certain drugs are scheduled, why they are prescribed and why a prescription is needed. While this information was interesting and probative background information, it was not relevant to any issue in the case or any of the essential elements of the crime. As such, the probative value was outweighed by the unfair prejudicial impact of the evidence. Harmless error.

United States v. Loughry, 660 F.3d 965 (7th Cir. 2011)

The defendant was charged with advertising and distributing child pornography. The charges related to a specific website that included images of prepubscent girls posing nude. There were no images of sexual contact. At trial, however, the government was permitted to introduce evidence of other child pornography that was found on the defendant’s computer that was not part of the charged offenses and which included videos of sadistic child pornography, including scenes of rape. The Seventh Circuit held that permitting the government to introduce this evidence was reversible error. The evidence was not probative of any issue in the case and even under Rule 414, a rule 403 analysis must be accomplished. Among other errors, the trial court’s failure to review the material prior to admitting it was erroneous.

United States v. Gamory, 635 F.3d 480 (11th Cir. 2011)

The defendant was charged with being the leader of a drug and money laundering operation. Evidence established that he owned a music recording business, as well. During the trial, the government located a video produced by the studio on YouTube. The video referred to drugs and money laundering, but was also replete with references to sex, degradation of women, violence directed at women and law enforcement. The defendant did not appear on the video and there was no evidence that he wrote the lyrics. Admitting the video was improper and should have been excluded pursuant to Rule 403. Harmless error.

United States v. Tanner, 628 F.3d 890 (7th Cir. 2010)

Defendant was charged with being a member of a drug conspiracy. Several years earlier, he was in possession of a gun at a New Years Eve party. While there may be some limited relevance to his possession of a firearm previously (guns are “tools of the trade of drug dealers” the probative value was outweighed by the unfair prejudicial impact). Harmless error.

United States v. Waters, 627 F.3d 345 (9th Cir. 2010)

The defendant was charged with arson in connection with the destruction of certain property that was allegedly motivated by environmental concerns. The defendant was alleged to be a member of an environment terroristic group. At trial, the government was permitted to introduce evidence of various articles promoting anarchist ideals that she gave to another conspirator. The Ninth Circuit held that the introduction of a defendant’s “reading material” will rarely be admissible to prove the defendant’s guilt of a crime. In this case, the evidence should have been excluded. The district court abused its discretion, because the judge failed to read every page of all the articles in order to properly assess the probative value of the evidence.

United States v. Klebig, 600 F.3d 700 (7th Cir. 2009)

The defendant was charged with possession of an unlawful unregistered firearm. His home was full of junk. A “breath-taking” amount, according to the Seventh Circuit. Items, including squirrel tails, oil cans, pornography, syringes, chemicals, prescription bottles were everywhere. The government sought to introduce a sign that said, “Nothing in here is worth dying for” and a surveillance system at the house. The government contended that the evidence was admissible to show “knowledge” that the sawed off shotgun had the characteristics that required it to be registered. The government also argued that the evidence was inextricably intertwined with the crime of possession. The Seventh Circuit disagreed and reversed the conviction. Whatever minimal relevance the evidence had, it was outweighed by its prejudicial effect. In a separate holding, the appellate court held that it was error to permit the government to bring in numerous other guns found at the house (all legal) and to repeatedly emphasize that the “guns were rendered safe” in the courtroom, thus exploiting the jurors’ fear of guns. The display of guns in the courtroom served no legitimate purpose.

United States v. Cooper, 591 F.3d 582 (7th Cir. 2010)

The defendant was charged with distributing heroin. The fact that some of his customers died from the heroin was too prejudicial to be admitted at trial. Though this evidence was surely admissible at sentencing, it was not probative of any issue at trial and therefore should have been excluded under Rule 403. Harmless error.

United States v. Nobari, 574 F.3d 1065 (9th Cir. 2009)

Eliciting testimony that Mexicans are involved in the drug trade in one way, and Middle Easterners are involved in another aspect, was improper, especially given the government’s closing argument that pointed out that the Middle Eastern defendants played precisely the role that was described by the agent. To the extent that the evidence was minimally relevant (for example, there was a taped call where one of the conspirators referred to “the Mexicans”), the evidence should have been excluded pursuant to Rule 403.

United States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008)

The defendants were charged with funding a terrorist organization. At trial, the government was permitted to introduce testimony from a victim of the terrorist organizations’ bombings. The government also called a person who attended a terrorist training camp. The defendants were not alleged to have had any involvement in the bombings. The Second Circuit reversed the convictions, holding that the probative value of this testimony was outweighed by the unfair prejudicial effect.

United States v. Parr, 545 F.3d 491 (7th Cir. 2008)

The defendant was charged with committing a terrorist act (threatening to use a weapon of mass destruction against a federal building). At trial, the government offered into evidence “The Anarchist Cookbook”. This was improper under Rule 403. Though certain portions could be admitted, allowing the entire book to be sent to the jury during deliberations was an abuse of discretion. Harmless error.

United States v. Stout, 509 F.3d 796 (6th Cir. 2007)

The district court correctly excluded evidence in this child pornography possession case that the defendant had previously been convicted of videotaping a fifteen year old neighbor in the shower. The 404(b) evidence was more lurid than the charged offense and was too prejudicial. The Sixth Circuit affirmed the trial court’s decision, relying in large part on Rule 403’s balancing requirement.

United States v. Sine, 493 F.3d 1021 (9th Cir. 2007)

In a prior civil proceeding, a judge made numerous extremely unflattering comments about the defendant, who was a lawyer in that case. When the defendant testified at his criminal trial – as well as other witnesses – the prosecutor confronted him with those observations by the judge. The district court should have excluded this line of cross-examination pursuant to Rule 403 and as hearsay.

United States v. Moran, 493 F.3d 1002 (9th Cir. 2007)

Excluding evidence about what the defendant was told by her attorney and CPA about the legitimacy of the tax shelters was reversible error. Such testimony is not hearsay and cannot be excluded pursuant to Rule 403.

United States v. Curtin, 489 F.3d 935 (9th Cir. 2007)

The defendant crossed a state line, according to the government, with the intent to have sex with a minor, with whom he had “chat room” discussions. He defended the charge on the basis that it was all just role play and he expected to meet an adult woman. In his possession when he was arrested was a “personal digital assistant” (PDA) with numerous stories about men having sex with young girls. The defendant’s subjective intent was the focus of the trial. The Ninth Circuit concluded, en banc, that pursuant to Rule 404(b), the contents of the PDA were admissible. However, the lower court failed to undertake the proper Rule 403 analysis and the conviction was therefore reversed. The trial judge failed to read the entirety of the stories that he admitted, relying, instead, on summaries and highlights.

United States v. Newsom, 452 F.3d 593 (6th Cir. 2006)

The defendant was charged with being a felon in possession of a firearm. Evidence that he had various tattoos, some of which contained vulgar language, and others of which depicted pictures of firearms, should not have been admitted. The government argued that a witness (the defendant’s girlfriend) had testified that she had not seen the defendant in possession of a firearm and that the tattoo evidence was relevant to her credibility. The Sixth Circuit disagreed: whether or not the defendant had a tattoo of a firearm was not relevant to the witness’s credibility and her testimony that she had never seen the defendant in possession of an actual firearm.

United States v. Davis, 449 F.3d 842 (8th Cir. 2006)

The trial court erroneously permitted the government to introduce the “face sheet” of a search warrant in order to establish why the police were at a particular house (where they found a gun). Even with a limiting instruction, the unfair prejudice occasioned by admitting the search warrant face sheet outweighed the probative value of the evidence.

United States v. Mahasin, 442 F.3d 687 (8th Cir. 2006)

The defendant was on trial for various crimes. As the verdict was being read, he jumped the AUSA and assaulted him. When tried for the assault, he offered to stipulate that he was convicted of the other crimes and was sentenced. The trial court agreed with the government that it was not required to accept the stipulation and allowed the government to offer evidence about the prior crimes. This was error. There was nothing probative about the actual crimes for which he was convicted. Harmless error.

United States v. Quattrone, 441 F.3d 153 (2d Cir. 2006)

The defendant was charged with sending an email to employees directing them to comply with the company’s documents retention policy (i.e., it was time to start shredding documents) and that he did so, knowing that the grand jury had just issued a subpoena seeking certain documents. The defendant contended that the email was sent in the midst of various important matters with which he was involved, including a fee dispute with a customer. He introduced emails that documented his attention to the fee dispute during the same time as the document retention email was sent out. During cross-examination of the defendant, the government asked about that fee dispute and then questioned him about whether, in fact, the fee agreement with the customer violated SEC rules, etc. The Second Circuit held that this line of questioning should have been excluded pursuant to Rule 403.

United States v. Awadallah, 436 F.3d 125 (2d Cir. 2006)

The defendant was charged with committing perjury in the grand jury. He defended on the basis that he was exhausted, confused and intimidated. The government wanted to call grand jurors as witnesses and have them testify about the circumstances of the defendant’s testimony, as well as their opinion of the witness’s state of mind (i.e., exhaustion, confused, etc). The trial court entered an order providing that a grand juror witness would be permitted to describe the objectively observable circumstances of the grand jury testimony, but would not be permitted to express any opinion about the defendant’s state of mind or express any opinion about the defendant’s demeanor. The Second Circuit held that this was a proper Rule 403 limitation on the grand jurors’ testimony.

United States v. Weiland, 420 F.3d 1062 (9th Cir. 2005)

The government should not have been allowed to introduce four prior felony convictions to prove the defendant’s status as a felon. One prior conviction would have sufficed.

United States v. Gonzalez-Flores, 418 F.3d 1093 (9th Cir. 2003)

The defendant was charged with alien smuggling. Evidence that two of the young aliens suffered from heat stroke was unfairly prejudicial. The fact that the aliens suffered heat stroke was not probative of any element of the charged offense. Harmless error.

United States v. Wesley, 417 F.3d 612 (6th Cir. 2005)

The trial court erred in allowing testimony about the background of a witness’s acquaintance with the defendant. The background established that the witness and the defendant met in prison after committing a prior robbery. The prejudice of this evidence outweighed its probative value.

United States v. Mayes, 370 F.3d 703 (7th Cir. 2004)

The government offered evidence that a government witness had received an anonymous threat that if he testified, he and his kids would be killed. This evidence should not have been admitted, but it was harmless error.

United States v. Amaya-Manzanares, 377 F.3d 39 (1st Cir. 2004)

The defendant was charged with possession of a forged green card. At trial, the government wanted to introduce evidence that the defendant unlawfully entered the country. The First Circuit (reviewing the case pretrial), carefully analyzed the relevance of such evidence and concluded that though somewhat probative of the defendant’s state of mind, the risk of unfair prejudice was substantial. The court observed that the falsity of the green card itself was not proven by the unlawful entry evidence. Only the knowledge element of the false green card charge could be proven by the unlawful entry evidence. Yet, the risk was undeniable that the jury would simply convict the defendant of the green card offense without carefully limiting the proper purpose of the unlawful entry evidence. Ultimately, the First Circuit remanded to the lower court to reconsider the motion in limine under Rule 403.

United States v. Ellis, 147 F.3d 1131 (9th Cir. 1998)

The defendant was charged with receiving and concealing stolen explosives. The government offered evidence at trial that the defendant had borrowed a copy of The Anarchist Cookbook, which includes chapters on explosives, but also on drugs, sabotage, and the use of lethal weapons. Without deciding whether the government should have been permitted to introduce a redacted portion of the book, the Ninth Circuit reversed the conviction on the grounds that introducing the entire book was reversible error. The defendant was only charged with possessing the stolen explosives; his “intent,” therefore was not relevant to any issue in the case. The court also held that offering evidence that the quantity of stolen explosives was sufficient to destroy an office building was reversible error. Again, neither “intent” nor “potential victim impact” were relevant issues in the trial.

United States v. Merino-Balderrama, 146 F.3d 758 (9th Cir. 1998)

The defendant was found in possession of child pornography. He denied knowing the content of the films, but did not deny being in possession of the films. At trial, he offered to stipulate that the films contained child pornography to avoid having them played to the jury. The trial court held that the government was not required to accept the stipulation. The Ninth Circuit reversed. Considering the issue under the standard of Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644 (1997), the Ninth Circuit reversed the conviction. The offered stipulation was conclusive on the element of the offense for which the government offered the tapes (i.e., the fact that they contained child pornography) and playing the tapes did not increase the evidence on any other relevant question (i.e., whether the defendant was aware of the contents), because there was no evidence that the defendant had ever viewed the tapes.

People of Territory of Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir. 1998)

The defendant was charged with molesting and sexually assaulting numerous young boys. The government introduced evidence that he had various sexually-explicit homosexual magazines in his house. The government argued that this proved his “intent” and his knowledge that having sex with minors was illegal. But the defense at trial was that he did not engage in the charged conduct. The Ninth Circuit reversed the conviction. “The mere possession of reading material that describes a particular type of activity makes it neither more nor less likely that a defendant would intentionally engage in the conduct described.” Introducing homosexual erotica was bound to bias the jury. Moreover, introducing the evidence to prove his “propensity” is precisely what is prohibited by Rule 404(b). The court further noted that literature is filled with criminal behavior, ranging from Lolita to Les Miserables. Finally, possession of these materials did not qualify as a “bad act” and was thus not admissible under any Rule 404(b) theory. See also United States v. Curtin, 489 F.3d 935 (9th Cir. 1007) (en banc) – partially overruling Shymanovitz. In Curtin, the court held that the evidence was admissible under Rule 404(b), but the lower court failed to properly undertake the Rule 403 analysis.

United States v. Fulmer, 108 F.3d 1486 (1st Cir. 1997)

The defendant was charged with threatening an FBI agent. The defendant had been trying to convince the agent to bring fraud charges against the defendant’s relatives, but the agent had declined. The threat was not explicit: the defendant left a phone message that he wanted the agent to “look up” misprision of a felony and then said, “The silver bullets are coming.” The defendant claimed that the “silver bullets” referred to the evidence that he was going to produce supporting his contention that his relatives had committed a crime. At trial, the agent testified that this “threat” was received one week after 169 people were killed in the Oklahoma bombing. This was clearly prejudicial and irrelevant evidence. The prosecutor referred to the bombing in both his opening statement and closing argument. Again, this was entirely irrelevant to any issue in the case. The risk of unfair prejudice was substantial and the conviction was reversed on this basis. The government also invited reversal by having the agent introduce some bullets in evidence (to prove that they are “silvery” in color), even though they came from the agent’s desk drawer and had no connection to the defendant. Finally, it was error to permit the agent to testify that he kept an extra magazine of bullets in his car after receiving the defendant’s message.

United States v. Aguilar-Aranceta, 58 F.3d 796 (1st Cir. 1995)

Though the defendant’s prior possession of cocaine was probative of her knowledge that the package she picked up from the post office contained cocaine, the evidence was too prejudicial to be admitted and should have been excluded under Rule 403. The fact that the prior offense also involved the defendant’s receipt of a package mailed from Colombia to her post office box contributes to the risk that the jury would unfairly draw the inference that the prior crime proves that the defendant was guilty of the present crime.

United States v. Cortes, 949 F.2d 532 (1st Cir. 1991)

The prosecutor introduced the defendant’s identification card which showed that he was a Colombian national. The prosecutor argued that the defendant’s heritage linked him to the other Colombian conspirators. This was prejudicial evidence which far outweighed any probative value and required reversal of the conviction. The prosecutor was capitalizing on the preconceived prejudices which the jurors would have about Colombians.

United States v. Ferreira, 821 F.2d 1 (1st Cir. 1987)

The defendant was on trial for robbery. The trial court admitted into evidence the fact that the defendant was carrying weapons at the time of his arrest. Since the robberies were not armed, the Court of Appeals holds that this is reversible error. The weapons found on the suspect were not relevant to identity or any other issue in the case.

United States v. Forrester, 60 F.3d 52 (2d Cir. 1995)

An officer was asked why he had not included the defendant’s name in a report which detailed a cooperating witness’s statement. The officer responded that he already knew about the defendant, so there was no need to include this information. The government then asked the agent how he “already knew” about the defendant. The agent then detailed the hearsay statements of other participants. Although this evidence was technically not offered for the truth of the matter asserted (it was offered to explain why the name of the defendant did not appear in the report), it should have been excluded under Rule 403. The probative value of the evidence (in its non-hearsay context) was outweighed by the prejudicial impact the evidence would have.

United States v. Harvey, 991 F.2d 981 (2d Cir. 1993)

Defendant was charged with knowing receipt of visual depictions of a minor engaging in sexually explicit conduct. He claimed that he was entrapped and the government was permitted to introduce evidence of his predisposition. However, the introduction of obscene tapes seized from the defendant which depict adults engaged in acts of bestiality, sexual acts involving human waste and sado-masochism, was unduly prejudicial and necessitated reversal of the conviction.

Virgin Islands v. Pinney, 967 F.2d 912 (3rd Cir. 1992)

The defendant was charged with raping a young girl. The government introduced evidence that he raped the girl’s sister several years earlier. Though this evidence would have been relevant to prove intent, it was not admissible to prove “course of conduct,” because the prior offense occurred so long ago. With regard to the issue of intent, that was not a disputed issue – the only dispute was whether an act of sexual intercourse had occurred at all. Thus, introducing the evidence was reversible error. Under Rule 403, this evidence should have been excluded.

United States v. Ham, 998 F.2d 1247 (4th Cir. 1993)

Defendant led a Hare Krishna group which engaged in various acts of mail fraud, murder and trafficking in counterfeit goods. In its case in chief and in rebuttal, the government was improperly permitted to introduce evidence of the acts of child molestation which occurred in the community, as well as the defendant’s homosexuality. With regard to the child molestation, it was only shown that defendant was aware of these acts in the community and failed to take adequate steps to stop the practice. The government argued that the evidence was admissible to show the motive for the murder. The theory of the government was that the victim was killed because he published articles alleging that child molestation occurred in the community; proof that such acts did occur was necessary to show motive. The appellate court disagreed. The prejudicial effect outweighed the slight probative value of the truth of the victim’s allegations.

United States v. Riddle, 103 F.3d 423 (5th Cir. 1997)

In this bank fraud prosecution, the government offered, pursuant to Rule 803(8)(B), a bank examiner’s reports which detailed the defendants’ violations and the condition of the bank. The report also detailed numerous other violations which were not included in the indictment, as well as various other findings and conclusions which were not relevant to the prosecution. Though the report was admissible under Rule 803(8)(B), the court should have excluded substantial portions pursuant to Rule 403.

United States v. Morris, 79 F.3d 409 (5th Cir. 1996)

The defendant was acquitted of a substantive money laundering charge, but the jury was deadlocked on a conspiracy charge which included, as one of the overt acts, the same money laundering transaction. On retrial, the doctrine of collateral estoppel did not bar introduction of evidence of this transaction as an overt act in the conspiracy. However, the court concluded that the jury would be confused by this limited admissibility of the evidence and decided that pursuant to Rule 403, Fed.R.Evid., the evidence would be excluded. The Fifth Circuit affirmed, concluding that this was within the district court’s Rule 403 discretion.

United States v. Parada-Talamantes, 32 F.3d 168 (5th Cir. 1994)

The defendant was arrested as a passenger in a van which had false compartments and which was secreting over 100 pounds of marijuana. Over objection, the government was permitted to introduce evidence that the defendant’s brother sold the van to the driver. This was inadmissible evidence. Evidence of “guilt by association” is typically highly prejudicial and should be excluded. A defendant’s guilt may not be proven by showing that he is related to an “unsavory” person.

United States v. Ebens, 800 F.2d 1422 (6th Cir. 1986)

The defendant was on trial for violating the civil rights of an individual whom he killed. The trial court permitted the government to introduce evidence that the defendant had uttered racial slurs in the past. The Sixth Circuit holds this to be reversible error as the slurs had not been made in the recent past and had not been made against someone of the same race as the victim.

United States v. Irvin, 87 F.3d 860 (7th Cir. 1996)

The trial court erred in allowing the government to offer evidence of defendant’s membership in the Diablos gang. There was no showing that the gang was involved in drug activity and consequently there was no logical link between defendant’s membership in the gang and the charge that he possessed drugs with the intent to distribute.

United States v. Frasch, 818 F.2d 631 (7th Cir. 1987)

A defendant’s statement contained offensive words and highly offensive language and racially derogatory remarks. The trial court should have considered deleting these words from the confession or otherwise minimizing the unfair prejudicial impact of the language. Furthermore, the trial court should have questioned the venire panel using the actual language that the jury would later hear to determine whether that would impact on their ability to decide the case.

United States v. Roark, 924 F.2d 1426 (8th Cir. 1991)

Throughout the course of the trial, the prosecutor sought to convict the defendant of drug possession and manufacturing by referring repeatedly to the defendant’s membership in the Hell’s Angels. This was irrelevant to the charges and was prejudicial.

United States v. Roenigk, 810 F.2d 809 (8th Cir. 1987)

The defendant was on trial for perjury which was allegedly committed at a prior cocaine conspiracy trial of another defendant. At pre-trial, the trial court granted a motion in limine preventing the prosecutor from introducing evidence about the extent of the drug conspiracy which was involved in the earlier trial. The government violated this restriction during trial. Despite the defendant’s failure to object to the government’s violation of the restriction, the Eighth Circuit holds that it was plain error to admit this evidence. It was highly prejudicial and not relevant and should have been excluded. In essence, the government’s presentation of too much evidence constituted reversible error.

United States v. Ellis, 147 F.3d 1131 (9th Cir. 1998)

The defendant was charged with possessing stolen explosives. The statute does not require any proof that the defendant intended to use the explosives for any purpose. In this trial, the government introduced testimony that the defendant possessed enough explosives to blow up an office building and that he possessed the book “The Anarchist Cookbook.” The Ninth Circuit held that this evidence was more prejudicial than probative and required reversing the conviction. The book contained various passages advocating revolution, drug use and sabotage, none of which was relevant to the defendant’s alleged possession of stolen explosives. The evidence of the explosive potential of the material was especially prejudicial in light of the recent Oklahoma City bombing and lack of any relevance of “victim impact.”

United States v. Kallin, 50 F.3d 689 (9th Cir. 1995)

In this tax evasion trial, the government elicited testimony from the defendant’s daughter that the defendant “dislikes Mexicans.” This was irrelevant to any issue in the case and should have been excluded under Rule 403. The admission of the evidence amounted to an abuse of discretion.

United States v. Bland, 908 F.2d 471 (9th Cir. 1990)

The defendant was prosecuted for being a felon in possession of a firearm. He was initially captured by police pursuant to an arrest warrant. The trial judge improperly told the jury about the basis of the arrest warrant. Though the existence of the warrant was admissible, the underlying offense for which the defendant was being sought at the time of his arrest was highly prejudicial and should have been excluded under Rule 403.

United States v. Elkins, 70 F.3d 81 (10th Cir. 1995)

Though the court never cited Rule 403, the defendant’s conviction was reversed because of the improper admission of evidence that a defense witness was the member of a gang. Such evidence is only admissible if it is shown that the witness belongs to the same gang as the defendant, or if it is shown that the witness was afraid of the defendant. Neither showing was made in this case and therefore the prosecutor’s cross-examination of the witness on this topic was reversible error.

United States v. Church, 955 F.2d 688 (11th Cir. 1992)

Though the error was harmless, the trial court erred in admitting evidence that some four years before the charged murder conspiracy, the defendant had engaged in a conversation with an informant that he would assist in the murder of a prosecutor of another individual. Because the extrinsic offense occurred four years prior to the charged offense, it was not probative of the defendant’s state of mind at the time of the charged offense. The evidence, moreover, was likely to prejudice the jury, because it related to the murder of a prosecutor. Under the Rule 403 balancing test, the evidence should not have been admitted. In gauging the question of when a prior offense is too remote, one factor to consider is the nature of the crime: Prior crimes involving deliberate and carefully premeditated intent – such as fraud and forgery – are far more likely to have probative value than prior crimes involving a quickly and spontaneously formed intent – such as assault.

United States v. Manner, 887 F.2d 317 (D.C.Cir. 1989)

Though relevant on the issue of intent, evidence that a drug defendant sold drugs after the crimes with which he was charged should not have been admitted without an on-the-record finding that the relevance outweighed the prejudicial effect.