May the prosecutor at a federal criminal trial introduce evidence that the defendant has previously committed another crime?Federal Rule of Evidence 404(b), of course, provides that this type of evidence is inadmissible if the only reason it is being introduced is to show the propensity of the defendant to commit crimes. The rule then goes on to provide that such evidence may be admissible if it is being introduced for another purpose, such as proof of motive, opportunity or intent.But what if the shoe is on the other foot? What if it is the defense that is trying to use "other crimes" evidence to show that a third party, not the defendant, is actually guilty of the crime charged?

In a recent decision, an Eastern District of Texas court conducted an analysis under Federal Rule of Evidence Rule 404(b) outside the criminal context to allow evidence of “other acts” in a trade secrets litigation. The decision appears to be the first application of Rule 404(b) to a trade secrets dispute by a court in the Fifth Circuit.The case, Resman, LLC v. Karya Property Management, involves the alleged misuse by Defendants of Plaintiff’s property management software.

A “mixer” or “tumbler” allows customers, for a fee, to send cryptocurrency to designated recipients in a manner that is designed to conceal the source or owner of the bitcoin.Helix was linked to and associated with “Grams,” a darknet search engine also run by Harmon, and moved over 350,000 bitcoin — valued at over $300 million at the time of the transactions — on behalf of customers, with most of that volume coming from darknet markets.1 Harmon explicitly advertised Helix to customers on darknet marketplaces as a way to conceal transactions from law enforcement. As part of his guilty plea, Harmon agreed to forfeit more than 4,400 bitcoin, valued at more than $200 million at recent prices, and he faces a maximum penalty under 18 § U.S.C. 1956(a)(1) of up to 20 years in prison and a fine of $500,000, or twice the value of the property involved in the transaction.2Weaponizing Federal Rule of Evidence 404(b)The DOJ first charged Harmon in December 2019 with three crimes: conspiracy to launder monetary instruments, operating an unlicensed money transmitting business, and money transmission without a license.3 Harmon pled guilty to the first and most serious charge of conspiracy to launder monetary instruments.In the lead-up to securing the guilty plea, the government filed a motion to admit evidence of other crimes under Federal Rule of Evidence 404(b), which the court granted.

Michael H. Graham (University of Miami – School of Law) has posted two articles on "other crimes" evidence under Federal Rule of Evidence 404(b) on SSRN. The first is Other Crimes, Wrongs, or Culpable Acts, Fed.R.Evid. 404(B): ‘Defining’ a New Paradigm (Criminal Law Bulletin, Vol. 47, p. 998, 2011).

Seefederalevidence review. “As noted in the Federal Evidence Blog the past few years, the Seventh Circuit continues to criticize and closely scrutinize the admission of other act evidence under FRE 404(b). One aspect that has drawn criticism concerns “inextricably intertwined” evidence that may be admitted independent of FRE 404(b).

Otherwise the instances can’t have contributed to the accused’s state of mind at the time of the offense.The circuit explained that admissibility of the evidence as specific incidents to prove the defendant’s state of mind was admitted under restricted circumstances under FRE 404(b), as "Drapeau would have been required to present evidence that he had pre-incident knowledge of the evidence." Drapeau, __ F.3d at __ (citing United States v. Gregg, 451 F.3d 930, 935 (8th Cir. 2006) (defendant’s state of mind ans well as the reasonableness of the defendant’s use of force was admissible under FRE 404(b)); United States v. Bordeaux, 570 F.3d 1041, 1049 (8th Cir. 2009) (“[E]vidence of prior bad acts of the victim are admissible under Rule 404(b) to establish the defendant’s state of mind and the reasonableness of the defendant’s use of force.”); United States v. Scout, 112 F.3d 955, 962 n.7 (8th Cir. 1997) ( “[The defendant] testified that he did not know the identity of the police officers pursuing him.

Second, in two instances, a response deadline for a document should have been tied to the date of “service,” but the rules provided for a response within a set time following serviceandfiling. This year’s revisions resolve both of those issues.Revisions to S.D. Fla. L.R. 88.10(h)An amendment to Federal Rule of Evidence 404(b) impacted the notice obligations placed on federal prosecutors in criminal cases, which in turn required an amendment to the local criminal discovery rule, S.D. Fla. L.R. 88.10(h). While the federal rule amendment obviates certain aspects of S.D. Fla. L.R. 88.10(h), the rule itself remains necessary in order to make S.D. Fla. L.R. 88.10(o)(2)’s 14-day-after-arraignment-deadline applicable to Fed. R. Evid. 404(b) notices.Revisions to Magistrate Rule 4(a)A small change to Magistrate Rule 4(a) has been enacted—addressing “Appeal of Non-dispositive Matters-Government Appeal of Release Order”—to bring it into harmony with Magistrate Rule 4(b), addressing “Review of Case-Dispositive Motions.”

And thus the Tenth Circuit affirmed the defendant's false-statements conviction in United States v. Williams.In Williams, the Tenth Circuit reminds us that "[a] false statement can be material regardless of its influence on the decisionmaker and can also be material even if the decisionmaker had already arrived at her conclusion before the statement is made."FRE 404(b) evidence v. "intrinsic" evidence v. FRE 403The Williams Court held that Mr. Williams's prior false statements were admissible as "intrinsic to the charge," and therefore their admission was not limited by Fed. R. Evid. 404(b). But the Court also noted that even intrinsic evidence may be excluded "if it upsets the balancing test of Rule 403."

Second, the panel said the testimony of the three witnesses would have been cumulative to other evidence Tapaha presented. Tapaha offered it as reverse Fed.R.Evid. 404(b) evidence and as proof of a specific character trait allowed by Rule 405. The panel found the testimony “would not have added anything significant to the testimony already admitted.”

Nearly every circuit has recognized the "inextricable intertwinement" theory (or “inextricably intertwined” doctrine). Several circuits have cautioned about admission of uncharged evidence in a case as part of the "inextricably intertwined" exception to FRE 404(b). Recently, this doctrine has come under increasing judicial criticism. . . .SeeUnited States v. Gorman, 613 F.3d 711 (7th Cir. 2010) (“[T]he inextricable intertwinement doctrine has since become overused, vague, and quite unhelpful.