Evidence - Rule 404(b) – Similar Transactions – General Principles

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

The Court suggests that it would not be proper to bar the government from introducing Rule 404(b) evidence when a defendant offers to stipulate the fact sought to be proved by the evidence (e.g., knowledge, intent).

Dowling v. United States, 493 U.S. 342 (1990)

The collateral estoppel component of the double jeopardy clause does not prohibit the use of conduct that was the subject of a prior acquittal as 404(b) evidence in a subsequent trial.

Huddleston v. United States, 485 U.S. 681 (1988)

The Supreme Court holds that the only preliminary decision which a trial court must make in admitting 404(b) evidence is whether the government can establish that there is sufficient evidence to support a finding by the jury that the defendant committed a similar act. The government need not establish the defendant’s commission of the prior act by a preponderance of the evidence or by any other standard.

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. Robinson, 724 F.3d 878 (7th Cir. 2013)

The defendant was charged with possession of a firearm by a convicted felon. The defendant stipulated that he had a prior felony conviction. The trial court read the stipulation to the jury, but never cautioned the jury that the stipulation was only admissible for the limited purpose of proving his status in connection with the felon in possession charge. The failure to limit the jury’s consideration of the stipulation was reversible error, because there was no reason the jury would not have also considered the fact that the defendant was a convicted felon in deciding that it was more likely that he did, in fact, possess the weapon (which he denied).

United States v. Bailey, 696 F.3d 794 (9th Cir. 2012)

The government may not simply offer a prior civil complaint (in this case an SEC Complaint) in order to prove a prior similar transaction. The government must offer evidence of the actual conduct, not an allegation for which there was no admission. See also United States v. Marshall, 173 F.3d 1312 (11th Cir. 1999) (evidence of prior arrests is not admissible to prove the commission of other acts under Rule 404(b)).

United States v. Scott, 677 F.3d 72 (2d Cir. 2012)

The defendant was observed by the police taking something from a woman on a street corner and then retrieving something from a hole in a tree and giving it to the woman. The defendant was arrested for possession with intent to distribute. He did not deny that he was the person that the police observed at the scene, but claimed that he was engaged in legal conduct and did not participate in a drug transaction. The government offered evidence that they had seen the defendant many times in the past and that they had spoken to him. The trial court admitted this testimony. The Second Circuit reversed the conviction. First, the Second Circuit held that Rule 404(b) is not limited to other crimes or other wrongful conduct. The Rule’s limitation also applies to “other acts” and thus the evidence of these prior encounters must have had some relevance other than propensity evidence. Moreover, the “other acts” are not required to be “bad acts” in order to be subject to Rule 404(b). Second the court held that there was no relevance to this testimony, other than creating jury speculation that the defendant was, in fact, involved in other prior encounters with the law enforcement officers. Importantly, the defense was not questioning the officers’ identification of the defendant (if that were the defense, then their ability to recognize him and their prior familiarity with him, would be relevant).

United States v. Green, 617 F.3d 233 (3rd Cir. 2010)

The Third Circuit abandoned the “inextricably intertwined” doctrine in this case. The court held that the doctrine confuses the issues involved in a proper Rule 404(b) analysis. If the evidence is not admissible under Rule 404(b) and it is not, in fact, part of the charged offense, then it will not be held to be admissible under the separate “inextricably intertwined” doctrine. However, offenses that are committed that facilitate the commission of the charged offense, will be admitted.

United States v. Gorman, 613 F.3d 711 (7th Cir. 2010)

The Seventh Circuit expresses considerable concern about the use of the “inextricably intertwined” evidence doctrine. If the evidence does not in fact relate directly to the charged offense then it should be required to pass the test under Rule 404(b) and 403, rather than being admitted pursuant to an ill-defined notion of “inextricably intertwined.”

United States v. McCallum, 584 F.3d 471 (2d Cir. 2009)

In addition to deciding that a similar transaction meets one of the permissible purposes outlined in Rule 404(b) and not for a proscribed “propensity” purpose, the trial court must also engage in the Rule 403 balancing test to determine if the prejudicial impact substantially outweighs the legitimate probative value. The trial court failed to articulate that he engaged in the Rule 403 balancing test in this case. The appellate court, however, was able to make that determination based on the evidence in the case and the conviction was affirmed.

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

The Sixth Circuit cautions trial courts not to instruct the jury on a laundry list of permissible reasons that Rule 404(b) evidence may be admitted when, in fact, only one permissible purpose applies. Thus, the court should not instruct the jury that other crime evidence may be admitted to establish motive, when the defendant’s motive is not an issue in the case and the other crime evidence has no relevance to any motive. The same applies to accident.

Gibson v. Ortiz, 387 F.3d 812 (9th Cir. 2004)

The California state jury instruction in this case provided that a prior sexual offense need only be proven by a preponderance of the evidence; and that a prior sexual offense, if proven, could lead to the inference that the defendant committed the charged offense. This violated the due process clause, because it suggested a burden of less than proof beyond a reasonable doubt. The court also held that inconsistent instructions that emphasized the proper burden of proof did not cure the infirmity. “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” Francis v. Franklin, 471 U.S. 307, 322 (1985). See also Doe v. Busby, 661 F.3d 1001 (9th Cir. 2011) (relying on Gibson in reversing defendant’s conviction). The Ninth Circuit later overruled Gibson v. Ortiz, on the basis that it applied the incorrect AEDPA standard of review. Byrd v. Lewis, 566 F.3d 855 (9th Cir. 2009).

United States v. Sampson, 385 F.3d 183 (2d Cir. 2004)

Defendant was charged with a drug offense committed in 1998 and another offense committed in 2000. He demonstrated that he would testify at a trial involving the 1998 offense, but not the 2000 offense. The Second Circuit concluded that the events surrounding the 2000 incident would not have been admissible in a trial involving just the 1998 transaction, because the defendant contended that he was not the person who was involved in the 1998 event – thus his “intent” was not in issue and the 2000 event could not be introduced to prove his intent. Because the evidence of the 2000 offense would not have been admissible under Rule 404(b) and the defendant demonstrated that he had a plausible basis for testifying at a trial involving just the 1998 offense, the failure to sever the counts was reversible error.

United States v. DeSantis, 134 F.3d 760 (6th Cir. 1998)

The defendant was charged with mail fraud. During trial, the government introduced evidence that the defendant's sales practices arguably violated Ohio state law. The appellate court held that in this context, the trial court should have instructed the jury that the violation of state law is not synonymous with mail fraud. Moreover, the intent to violate the state law is not sufficient to establish intent to commit mail fraud.

United States v. Jones, 159 F.3d 969 (6th Cir. 1998)

The trial court erred in prohibiting the defendant from stipulating to the prior conviction in this § 922(g)(1) prosecution. See Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644 (1997). Harmless error.

United States v. Thomas, 134 F.3d 975 (9th Cir. 1998)

In an entrapment case, the defendant is entitled, pursuant to both Rules 404(b) and 405(b) to introduce evidence of his lack of criminal record – that is, his good character. The defendant's "character" is relevant in an entrapment case on the issue of predisposition.

United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998)

The defendant was charged with a marijuana offense. The evidence established that a car was stopped and that the occupants fled and marijuana was found in the vehicle. The defendant denied being in the vehicle. He had previously been involved in an offense in which he fled from a car that had marijuana in it. This evidence was inadmissible under Rule 404(b). The question in the present case was whether the defendant was in the car – i.e., identity of the perpetrator. The fact that the defendant previously fled from a car in which there was marijuana did not establish that he was the perpetrator in this case, because the two offenses were not so similar that the jury could reason that whoever committed the first offense was likely to be the person who committed this offense.