United States v. Crowder, Rochelle A.

acting receiv- the notion that the FDIC particular depository, liability

er for a directly,

acts will run FDIC unmediat- to the requirements governing

ed exhaustion against depositories. If

claims the FDIC receiver, expect generic

acts as a it must

be sued as such.

[*] ^{[*] [*]} clarification, petition

With this for re-

hearing hereby denied.

So ordered. America, Appellee,

UNITED STATES

v. CROWDER, Appellant.

Rochelle Ardall America, Appellee,

UNITED STATES DAVIS, Appellant.

Horace L.

Nos. 93-3059 94-3108. Appeals, Court of

District of Columbia Circuit.

Argued En Banc Jan. 1998. 1,May

Decided

intent) (1) thereby preclude govern and introducing ment from Evid., element, 404(b), prove Fed. R. (2) obtain an instruction that and or decide that element. need consider banc, we first heard these cases en When question court answered the this divided way: whenever there “a offer defendant’s knowledge and concede intent combined explicit jury instruction that the with an Gov longer prove no ernment needs either element,” renders bad acts States v. evidence inadmissible. United (Crowder I), (D.C.Cir.1996). peti government’s On the Jaffee, Public H. Assistant Federal Neil certiorari, tion for writ of DC, Defender, Washington, argued the writ, granted judg our vacated Davis, cause, and for Horace Lee appellant and remanded cases for reconsider ment DC, appointed Fisher, Washington, I. Gerald light in intervening decision ation cause, appellant court, for argued the by the U.S. Old Chief them on the With Ardall Crowder. Rochelle (1997). 644, 136 L.Ed.2d 574 See Unit- S.Ct. joint supplemental briefs A.J. and — Crowder, ed v.- U.S. Defender, Kramer, Santha Public Federal We now 136 L.Ed.2d Sonenberg Wright, B. Assistant and Lisa unequivocal despite a defendant’s hold Public Defenders. Federal offense, an an element of offer McLeese, III, U.S. At- Roy W. Assistant preclude does not causes, DC, argued the torney, Washington, of other introducing bad brief were appellee. him for With acts to that element. Holder, Jr., Attorney at the H.

Eric filed, and supplemental briefs were

time the Fisher, Attorney. R. Assistant U.S. John A WALD, EDWARDS, Judge, Before: GINSBURG, WILLIAMS, SILBERMAN, again we will recount For ease of reference HENDERSON, RANDOLPH, SENTELLE, separate jury of these cases. the facts ROGERS, TATEL, GARLAND, Circuit and trials, were convicted of both defendants Judges. offenses, possessing for drug heroin distribute, intent crack cocaine with and by filed Opinion for the Court Circuit and for distributing crack cocaine Davis Judge RANDOLPH. to distribute. possessing crack with by Judge Circuit Dissenting opinion filed along the driving officers Police Crowder. TATEL, Judge in which Chief EDWARDS Street, N.W., Washing- 1300 block of Newton Judges Circuit WALD D.C., ap- ton, engage in what saw Crowder join. SILBERMAN transaction, exchanging peared drug to be a stopped object cash. The officers small Judge Dissenting opinion filed Circuit ap- gestured for Crowder car and SILBERMAN. to come closer but proach. Crowder started RANDOLPH, Judge: Circuit ensuing During ran. turned and then paper bag a brown Crowder discarded cases is chase principal question cocaine containing ziplock bags of crack may, over the a criminal defendant whether packets of heroin. When wax-paper objection, offer to concede him, they (such found caught up with knowledge or the officers an offense carrying beeper that he dence that posses- $988 he had the in his $900 sion, small denominations. it’s coincidence that he had a beeper possession, his and that everything else Crowder’s first trial ended in a mistrial. place, presumably, took away running retrial, government gave Before the no- him, chasing and the officer and the officer tice that would seek to Crowder’s finding a large quantity drugs knowledge, operandi by intent and modus alley, nothing had at all to do with Mr. introducing to show that Crowder So, me, Crowder. to that raises an issue sold crack to an undercover cocaine officer on intent, knowledge, raises an issue of the on same block Newton Street seven issue, perhaps raises an was in raised months after his arrest in this case. Crow- ease, the knowledge Watson of his of even evidence, objected the partly der to drug me, trade. It to seems based stipulate willing basis that he was that to evidence, upon that that evi- drugs [by amounts of in police “seized probative. dence is with case] this were consistent distribution” “anybody possessed drugs so that who those J.A. 242-43. possessed with them to distribute.” Having probative found the evidence for a J.A. 203. proper 404(b), purpose under Rule the court The district court took the matter under turned to Federal Rule of Evidence 403 and government present- advisement. After the that probative concluded value of Crow- case-in-ehief, ed its a Crowder mounted de- drug der’s substantially crime was not theory police fense based on the that the had by “outweighed potential prejudice to undue witnesses, Through him. framed nine includ- Mr. Crowder.” 248. J.A The court noted ing nephew, father, his his mother his probative the highly nature of the evidence child, neighbors, and Newton Street he tried prove to knowledge, particularly intent and to looking show that came the officers in view of Crowder’s defense that “he doesn’t him to enlist aid in a investiga- his homicide anything know it ... about this a [and] is all tion, that the transaction the officers ob- setup by police.” J.A. 249. When the merely passing served consisted of a admitted the evidence in the cigarette, pay that he had the to $988 ease, gave ment’s. it limiting rebuttal a in- house, repairs family’s to his and his struction, repeated which during its beeper child’s mother had him the loaned charge. keep that he could touch her. purchased Davis. An undercover officer ease, At the gov- close of defense rock of crack cocaine from Horace Lee Davis ernment renewed its to effort introduce the Street, on the 900 block of 5th N.W. Davis evidence of drug Crowder’s other' offense. had obtained the sitting crack a man pretrial As stipulate, to Crowder’s offer to a nearby transaction, car. After the government argued that Crowder had undercover officer left the scene and broad- distribute, now contested his intent to description cast a of Davis and the other drug the evidence of his other deal had man. stopped Both were a short time later legitimate probative apart value from its positively by identified the undercover bearing on which all the proposed police officer. The apprehended Davis as he stipulation addressed. opening door the car from which 404(b): up The district court first took Rule he had obtained the rock. A search of the ques- It seems to the court that the first car grams uncovered more than 20 of crack tion is whether or this evidence is as well as $40 cash. The cash included probative case, anything and it pre-recorded buy bills the officer had used to seems to the court that this evidence is the rock from Davis. probative, trying because Mr. Crowder is think, suggest in his I put defense and if we Davis on a defense of misidentification. defense, look at explained the evidence in the purchased He that he had a beer just Mr. testimony, Crowder’s nearby that all of from a liquor simply store and had coincidence, just this was just was a coinci- walked out the store before his arrest. stipulate his offer to gave argument fendant’s trial, notice the. Before prior, of his^ conviction of three rendered to introduce evidence it intended Davis, accepted reaffirmed “the rule by in the vicini- irrelevant and all cocaine sales prior N.W., Street, only is entitled that the at 425 2nd ty of a shelter any option to charged of- case free from defendant’s from the site of the blocks few away,” 519 U.S. at sought introduce the evidence fense. at 654. The then went essential elements prior exception to that crime—knowledge intent. carve out narrow Davis’s rule, of felo- applicable his to “the element part on the basis of objected, Davis status,” ny-convict id. stipulation person who “that proposed cogniza- drugs Concluding in this that there was “no undercover officer the sold the con- judgment and all ble difference between” the intent distribute ease had proving felony convict status through viction order police, both drugs recovered effect, stipulation or to that from and an admission purchase through the seizure and description prior of the offense ear, knew that a that individual also and and that [the] defendant, prejudice might unduly the the from car.” J.A. drugs [the] the recovered of Rule 403 the Court held that the balance of court ruled that n.l. The district prejudice unfair accept probative value versus tilted Davis’s government did government’s proof. required excluding ele- of the prove the favor and could concession knowledge through intent evi- ments of prior acts. the Davis’s When dence of II acts, prior gave a of the admitted 404(b) provides: of other “Evidence Rule instruction, in- and reiterated the

limiting crimes, is not admissible to wrongs, charge. in its struction person in order to the character of conformity It may, therewith. show action B however, purposes, be for other admissible motive, proof opportunity, petition such certiorari as While the knowledge, identity, or ab- preparation, plan, pending, Supreme the cases was in these accident____” mistake or sence of handed down Old Chief been the defendant had There States. original en banc decision rested Our charged violating federal assault with following theory: “a defendant’s offer con- statutes, weapons including U.S.C. with an knowledge cede and intent combined prohibits persons previ- 922(g)(1), § which the explicit instruction that Government pos- ously certain felonies from convicted of prove either element” longer no needs to prior sessing The defendant’s a firearm. having, in the other crimes evidence results causing serious for “assault conviction was only purpose,” proof of the defen- as “its ——, bodily injury.” at 404(b) Rule forbids. propensity, dant’s which keep the Wanting these details from I, at 1410. The idea Crowder stipulate that jury, offered to the defendant (and proposed stipulation instruc- the of the sort unspecified had an conviction he tion) knowledge and “completely removed” 922(g)(1). §in described trial; from the that evidence offer, trial court the defense the refused could no crimes therefore defendant’s other judgment and commit- the order admitted to those ele- longer relevant be considered case, and the court ment in assault ments; if no other and that the evidence had appeals affirmed. its function nonpropensity purpose, 404(b) four, barred. what Dividing Supreme Court would five de- See id.1 rejected first reversed. The Court case," 1410. A majority expressed agreement from the

1. The en banc (2d Mohel, reject majority other circuits United States v. Cir.1979), clear evi- bad acts position. that “under Rule are dis- The cases Circuit’s Second to an ‘actual’ issue dence must be relevant opinion. addendum this cussed in an stipulate to that an offer to an issue removes against standing,” Supreme Court’s Old id. Tested at 650—a decision, theory I of Crowder fails. thesis Court reiterated several times la- - Stephen A; Saltzburg opinion. ter its n. See al„ et Federal ---,---, (7th 385-86 Rules of Evidence Manual ed.1998). n. 655-56. ultimately holding Old Chief’s rested on Federal Rule of Evidence aspect From this of Old several which courts to authorizes trial exclude evi- First, necessarily propositions if follow. “probative substantially dence value government’s other crimes evidence would outweighed by preju- danger unfair have been relevant 401—if it dice____” getting But before to Rule likely would have made it more with the dispose preliminary of a the Court had to evidence than without it defendants question, question directly bears the requisite knowledge had or intent—-the theory. I the Crowder The defendant Old despite evidence remained relevant the de- claimed, /held, that a de- Second, stipulate. fendants’ offers to stipulation fense of a crime element therefore could offer this evi- trial, completely removes purpose proving something dence for the thereby rendering other evidence of ele- expressly permits, namely, irrelevant thus inadmissible. See knowledge defendants’ or intent. We have (“Evidence is not recognized which rel- although before first sen- Fed.R.Evid. admissible.”). evant is not restrictively,” tence Rule is “framed rejected argument. permissive,” Court this A defendant’s rule “is quite prohibit- the itself stipulate offer to ing or concede element of an the admission of other crimes evidence offense, concluded, the Court not “in purpose does de- but one circumstance”—for the prive government’s proving person’s the of evidence relevance. of that a actions conformed at-, Chief, Jenkins, See Old 519 U.S. 117 S.Ct. at to his character. United States 1175, 1180(D.C.Cir.1991). not to 649. There does be an “actual 928 In other words, proven. viewed, sought properly issue” the facts to about the first sentence of it, 404(b) put such, “evidentiary As' the Court relevance Rule bars not evidence as but a theory Third, 401 by admissibility. compliance under Rule the avail- of [is not] affected ability proofs element,” of alternative of the with Rule not assure does admission as such a defendant’s or offer to of the concession other crimes evidence. Old stat Chief stipulate. support, quoted Id. In justification the Court ed that if “there were a advisory the in the receiving statement committee evidence felony of the [defendant’s notes to Rule 401 that “fact to the which the on conviction] some other than status intent], dispute.” evidence is be in knowledge [such directed need not as or “If, then, up: guarantees Id.2 The then summed opportunity Court the to seek its admis at-, pres- relevant evidence is inadmissible sion.” 519 U.S. at S.Ct. 655. it, “admission,” of “opportunity,” ence other evidence to its exclu- related The not the is ground that sion must rest not on the if “guarantees.”3 what Rule But ‘irrelevant,’ government’s evidence has rendered trial court to exclude acts, unfairly prejudicial, but its character as evidence of bad court could do like, cumulative notwith- ground relevance so “on the that the other evidence”— I, provision 2. Rule 401 is derived from of the had as we in Crowder "that defense can bar defining Code California Evidence "relevant evi- by the introduction of [other evidence] offense disputed "any dence” evidence of as fact is offering supposed to to the it is fact consequence to the of the determination ac- prove.” Id. (West 1995). § tion.” In Cal. Evid.Code drafting Rule the framers deleted the word Supreme point Court made a similar "disputed,” representing significant a deletion "a 681, 688, Huddleston v. United change in the law.” Charles Wright & Alan 1496, 1500-01, (1988): 108 S.Ct. 99 L.Ed.2d 771 Kenneth W. Graham, Jr., Federal Practice and Proce- proper purpose is offered for § Wright at 44 Professors dure 404(b), subject only "the evidence is suggest Graham the framers' decision to general limiting admissibility "disputed" "sponsored” by strictures such delete as the Justice Department prevent concluding, courts Rules and 403.” (id.); chapters” puzzled missing up by jury a ” at backed stipulation proposed at-, ‘irrelevant,’ (dissenting Old id. 117 S.Ct. also instruction—“rendered -, is, short, opinion). 117 S.Ct. at 650. a “need There U.S. mentioned, already particularity satisfy exclusion Instead, in all its that the evi- jurors’ proper proof on the basis expectations have to be about what prejudicial, cumulative or “unfairly be,” prevent -to nullification or dence should notwithstanding.” Id. like, at-, its relevance acquittal. unjustified at 654. ways, stands Old important In other in these original decision with our at odds points made Court According to Crowder cases. “stipulations to sta- distinguish between its bad acts may not introduce crime, which can be forced element tus of intent concession a “defendant’s because stipulations to oth- prosecution, and upon the knowledge deprives the evidence crime, er which elements .the value____” added). (italics at 1407 reject.” should remain free Saltzburg, problems lurking within There are several status, supra, 385. Proof of thing, one it hands to For this formulation. said, is “wholly concerns an ability to control the criminal defendants events” of the independent of the concrete ] its case. Yet presentation of 519 U.S. at-- charged crime. Old Chief agreed with all nine Justices contrast, 654-55. 117 S.Ct. at familiar, prosecu- rule that the standard “the knowledge at the are elements prove its case tion entitled charged in the cases of the offenses core choice, or, exactly, that a more its own Replacing proof these elements before us. stipulate, or ad- criminal defendant story gap “a stipulations creates way evidentiary full force mit his out criminality.” Id. subsequent of a defendant’s chooses to of the case as at-, sure, other at 655. To be it.” present typically relate to events crimes evidence will at---, 653; 117 at 658- id. S.Ct. in time from the or less removed more opinion). (dissenting 60 many But true charged that is offense. thing, every disagreed Justice For another prior A husband’s kinds of evidence. other has the stipulation that a with the notion he his while was physical abuse of wife evidentiary value as the same suggest his motive for mur- jealous rage may jury in- coupled with a Even proof. when her; incriminating made dering an statement must stipulated be that the fact struction intent; may tangible reveal the offense after stipulation give proven, cannot considered may identity. suggest later found everything “the Government the defendant said about what Evidence show,” at 1410. 87 F.3d could can a critical part at times be did of what a defendant “evidentiary account The crime, may introduced to story be of-a accomplish what thought done can has thinking or the defendant was prove what (Old ever could” no abstract statements This is true time of the offense. doing at the at---, 117 S.Ct. 519 U.S. actions whether the defendant’s regardless pres- 653-54); suddenly prosecution “[i]f in themselves occasions were those other on in the series different- some occurrence ents that establishes Old criminal. stipulation or admis- ly, by announcing as forced cannot be prosecution sion, may saying, be like ‘never effect away force of such evidence. door,’ may jurors mind what’s behind distinguished Old also The Court being kept from they well wonder what are that there was ground (id. Chiefs case 654); knowing” S.Ct. proof cognizable between the difference” “no propo- story, a naked “syllogism is not a present—a sought docu- prosecution- may no match for in a be sition courtroom prior reflecting the conviction—and be used the robust As offered. stipulation the defendant (id.); story jurors hear a prove it” “who to con- willing was stipulation, may be interrupted by gaps of abstraction once,” at---, requisite personally cede that he had the much at 519 U.S.

prior felony conviction. S.Ct. 653. Rule evidence will often utility, multiple showing have such at once stipulations pro- The Crowder and Davis intent, motive, knowledge, preparation and posed entirely sort. different like. Proof of an individual’s intent to signifi- Both were of uncertain and doubtful proof commit an act itself serve willing stipulate only cance. was act, the individual committed the as the Su- “anybody possessed drugs who those preme recognized possessed century more them the intent distribute.” than “anybody” Hillmon, But not on ago. was trial. Crowder See Mutual Ins. v.Co. Life “any- And it was. was Crowder’s not S.Ct. body’s,” prosecution that the had to establish L.Ed. In proving that a defen- jury’s stipulation to the The satisfaction. cocaine, dant intended to distribute crack piece. Davis offered is of a It mentioned instance, government might simulta- dealer, only some hypothetical drug some neously showing the defendant’s motive to “person.” prosecution’s Yet the evidence of crack, possess permits. which Rule prior Davis’s crack cocaine sales—sales close thereby Intent would serve as an intermedi- place charged in time and to those ate fact from which the infer could indictment—was not meant to show that another intermediate fact—motive—from knowledge. someone had intent and The which it could turn infer the evidence was introduced to that Davis Thus, possession. other-offense evidence of had distribute the crack and probative just intent would have value not on he possessing. Davis knew what- was element, possession the intent but on also proposed stipulation possi- Davis’s could not element of the offense. bly proof. substituted for such It did not even name. mention him Far from a multiple utility of Rule “propositions slightly vary- choice between illustrated Crowder’s case. See also ing abstraction,” the choice in these eases Latney, United States v. — between concrete evidence of defen- (D.C.Cir.), denied, 1448-50 cert. giving dants’ actions rise to natural and sen- (1997); L.Ed.2d inferences, sible stipulations and abstract Harrison, United States v. hypothetical persons about trial.4 (D.C.Cir.1982). permitted The trial court to introduce evidence of government’s proof of Crowder’s other Crowder’s other crime to his legitimate crime probative also had force distribute, intent to “knowledge but also his respect beyond with to matters those encom- possession.”5 of the within his passed proposed stipulation. “piece in his substance A evidence,” in charges against of the Court wrote One Crowder was Old “may separate possessing address number of with intent to distribute crack ele- ments, striking just hard away pa- because it shows so cocaine.6 a Crowder threw brown 4.Although proposed experience drug neither Crowder nor Davis 5. A defendant’s hands-on in the jury encompass a stipula- possessed drugs instruction to trade cannot alone he that tions, any given a charge Crowder I devised it model in an occasion. But can show that he , like, jury get drugs, they clearly effort to "ensure that knew how to what under- looked them, stands that the concession releases the where sell so forth. Evidence of a Govern- proof experience dealing drugs—evi- defendant’s ment from its burden of on the in conceded dence, is, elements,” may that of his "bad acts"—thus be a charge 87 F.3d at 1411. The model "brick” the "wall” improved language in of evidence needed to of Crowder’s and prove possession. advisory stipulations, See FedR.Evid Davis's but as a substitute for evi- dence, committee notes. it contradicted much A Chief. wrote, "syllogism,” is "not a story.” 519 117 S.Ct. at jury guilty 654. The 6. For a a find defendant of that warning offense, against replacing Court issued a prove, firm among must oth- narrative, jurors expect, are things, possessed which entitled to er the defendant crack cocaine, with “abstract in the form of he did and intention- knowingly statements” instructions, is, only jurors ally—that "consciously, voluntarily which can "won- and on make they knowing.” being kept purpose, mistakenly, accidentally der what are not or inadver- at---, tently"—and possessed 654. that when the defendant element, if the prove that even defendant’s police to avoid he ran from the

per bag as unequivocal, stipulation is and even wax-paper proposed bag contained paper arrest. The ziplock agrees if to a instruction bags crack. the defendant heroin and packets of clear; opinion. sort mentioned in our earlier bags were others ziplock Some larg- 87 F.3d at 1411. Other rules bags contained a See Crowder The clear were dark. bags. admissibility dark of evidence bear on the of crack than the er amount 404(b) satisfying we will showed Rule government’s other-offense evidence evidence enough it is get his arrest in this to them next. For now months after that several advisory repeat committee case, selling crack the words of the caught Crowder police 404(b): up on Rule is offered for block. Crowder held the same cocaine on 404(b) permits, proving purpose officer. Rule such as ziplock bags to an undercover two intent, clear; knowledge it for or “does he offered bag $20. One was dark; require it contained excluded.” bag was The other purity; he of crack of less smaller amount Ill told As the

offered it for $10. court, other offense was thus Crowder’s require While does “of matters conse- probative of several the exclusion bad acts evidence offered In quence” at trial. See Fed.R.Evid. purpose recognizes legitimate, the rule probable with it more terms of Rule instance, evidentiary might. rules For it that Crowder than without the evidence proper purpose offering the evidence for a crack cocaine intended distribute 404(b), satisfy will but will not bag. other occasion paper On the the brown relevancy of Rules satisfy the standards itself possession, cocaine his when he had crack explained 402. As Professor James with the probable was more he sold it. It article, highly-regarded to “determine Crowder knew than without relevancy of an offered item of evidence bags ziplock was crack in the the material proposition it must first discover to what one cocaine, just as he knew the substance govern supposed is be relevant.”7 The undercover officer bag he sold to the ziplock identify of the matters ment must which proba- was more cocaine. And it was crack 404(b)—“motive, opportunity, in Rule listed without it that with the evidence than ble identity, plan, knowledge, preparation, co- knowingly possessed the crack or absence mistake accident”—it bag. paper from the brown recovered caine evi intending by the other crimes dealt offer to Crowder’s objects, the must If the defense dence. not even therefore did someone’s intent and satisfy the evidence rele then itself that everything gov- covering come close matter. See Huddleston vant to that legitimately ernment’s Rule 681, 691, 108 S.Ct. proved him. against (1988).8 1496, 1502,99 L.Ed.2d 771 us, defendant the cases before neither of the other crimes reasons, relevancy upon re contested

For of these all intent, except on the basis to his light in evidence our decision consideration of earlier stipulations took intent proposed offer that that a defendant’s of we hold Old Chief Chief, as we have the out of case. stipulate to of offense does an element discussed, And so rejected argument. that government’s other crimes the not render 404(b) hurdle, Rule 403. on to another to we move inadmissible under Rule relevancy crack, adopts the test of specific and Rule 401 intent to distribute work he had the Jury proposed in 1941. he See Criminal it. the District Instructions ed.1993). (4th 4.29 Instruction Columbia, of instance, charged 8. For if defendant heroin, James, Probability distributing Relevancy, George F. (1941); why 689, pressed Law, to demonstrate see also hard 696 n.15 Cal. 29 L.Rev. rape was (John of a commission § defendant’s earlier 185 William 1 McCormick on Evidence provable properly ed., ed.1992). anything advisory Strong relevant commit- 4th 404(b). rely upon James’ Rule Professor tee notes cite 1210 language might

The familiar Rule is: “Al- such 40S an instruction be needed then- relevant, may be though excluded if proposed stipulations were to have force substantially probative value is out- something acknowledged the defendants weighed by danger preju- of unfair during argument for the first time the oral in ____” eases, dice In these the concern about judges presided I. who “prejudice” danger jury on focused possibly anticipat- their trials could not have way in using the other crimes evidence ed the model instruction later de- permit—to do not conclude that be- rules (see veloped 1411), 87 F.3d at some cause the defendant committed their failure to do “plain” so was neither nor crime, he must committed one “error.” Old against using warns Rule danger, charged in the indictment. This replace prosecution’s 403 course, 404(b) present every will be Rule awith instruction of the sort devised give case. But alone cannot rise to a 4, supra. Crowder I. See note exclusion, per se rule as Crowder and argued Davis when we first heard their eases short, In inquiry the Rule 403 in each adopting en banc. the Federal Rules of involving ease Rule evidence will be Evidence, Congress nearly con- “was case-specific. There no can be “mechanical potential prejudicial cerned with the effect of solution,” per no se rule of the sort Crowder ensuring Rule evidence as it was with and Davis advocate. placed that restrictions would not be We have considered defendants’ other Huddleston, admission of such evidence.” reject arguments and them. The convictions 688-89, 1501; 485 Ú.S. are affirmed. H.R.Rep. (1973) (noting also No. 404(b)’s that Rule second sentence is intend- So ordered. place emphasis admissibility). ed As to 403, will turn each case on the discre- ADDENDUM tionary judgment of trial court and its assessment, relevance, not of but the evi- As we opin mentioned footnote of the déntiary value of the ion, Mohel, 748, United v. States 604 F.2d On evidence. the same side (2d Cir.1979), held “under balance, trial eourt will take into account 404(b) bad acts evidence must be relevant limiting jury the effect aof instruction to an ‘actual’ stipulate issue and that an offer to protect rights of the accused. See Fed. to an removes the case.” So far 403, advisory R.Evm committee notes. tell, general as we can this is the rule in both Circuits, the Second Eleventh al maintained, Crowder and Davis how though the Eleventh Circuit has never re ever, that whenever defendant offers to appears versed a conviction on this basis and stipulate purported as both to do contrary to have position embraced in earli here, tip always the Rule 403 balance will See, Colon, e.g., er cases. v. United States Appel favor of exclusion. See Joint Brief for (2d 650, Cir.1989); 880 F.2d 25, United agree lants In Banc at Crowder I. We. Ortiz, (2d States v. 857 F.2d 903-04 that trial courts take offers Cir.1988); Figueroa, United States v. making into account in their Rule 403 deter (2d Cir.1980); F.2d v. United States minations. See advisory Fed.R.Evid. (2d Manafzadeh, Cir.1979); (“The availability committee notes of other Tokars, United v. States proof may appropriate means also be an (11th factor.”). Cir.1996); Taylor, But agree we do not (11th Cir.1994); necessarily existence of the will United States offer be deci (11th Costa, 919, Cir.1991); v. proposed sive. 947 F.2d 925 stipulations Here the Hernandez, 513, ambiguous, United States v. 896 conditional and tentative. Nei F.2d (11th Cir.1990); ther 522 v. directly. mentioned the defendant At United States Willi- (11th Cir.1985) point ford, 1493, no in their trials did 764 1498 either defendant F.2d (“This propose requiring a adopt per instruction circuit has refused to se to find the against conceded element intent. That rule either for or admission evi-

1211 accepted an offer is remains in the to an er such is relevant when that evidence dence stipu- judge.” discretion the district offers sound the defendant which Garcia, 1160, v. United States Rather, stipu- 983 F.2d 1175 analyze the offer we late. Williams, (1st Cir.1993); see United States v. making Rule 403 as one factor late O’Shea, (1st 634, Cir.1993); v. United determination.”); United States 985 F.2d 637 Ferrer-Cruz, (“As Cir.1984) (1st (11th v. 135, 138 States 1514, 899 F.2d 1516 724 F.2d Cir.1990). rule, preclude his may not The Third has noted that party Circuit general prior by generally or deem proof offer of admission “district courts should adversary’s (cid:127) acts bad evidence inadmissible stipulation.”). he is issue that the defendant makes clear rejected position Other circuits contesting” adopt a but has refused to Circuit, acts concluding that bad

the Second v. per se rule of exclusion. United States prove an ele admissible to (3d Cir.1994); Jemal, 1267, 26 F.3d 1274 regardless whether of a crime Sheeran, 112, 118 v. United States 699 F.2d dispute.” “in These include (3d Cir.1983); United States v. Proven- n. 12 Fifth, Seventh, Ninth, Fourth, Sixth, (3d Cir.1980). zano, 985, 620 F.2d 1003-04 See, v. e.g., States United Tenth Circuits. (4th Hernandez, 1035, Eighth Circuit seems to have taken 1040 Cir. 975 F.2d . Wallace, 921, Compare 1992); positions on the issue. United States v. 32 F.3d inconsistent Sumner, 658, v. v. United States (5th Cir.1994); States 119 F.3d 660- United 927-28 (5th (8th Cir.1997) Ponce, (supporting per Cir.1993); se rule 989, 61 993-94 8 F.3d Moore, Davis, v. exclusion), United States 1299, 98 F.3d v. 792 1305 United States F.2d (8th Cir.1996) (5th 347, (same), Spletzer, v. United Cir.1986); States 535 349-50 United (8th Thomas, 1318, 1321-23 v. States v. (5th United States 950, Cir.1976); 58 F.3d F.2d 955 Cir.1995) v. (6th Cir.), (same), States Jen cert. United 350, Myers, 123 F.3d 363 — (8th Cir.1993) kins, 803, denied, 611, 139 7 F.3d 806-07 Crouch, v. (same), v. Maul- with United States (1997); 46 United States 498 L.Ed.2d (8th Cir.1995) (6th 871, din, (reading Jenkins Cir.1997); 1159, F.3d 875 1161 109 F.3d Barry, v. 1199, Murphy, 107 F.3d United States narrowly), 133 F.3d v. States United , Cir.1998) (8th (6th Cir.1997); v. (acknowledging as States 582 United 1206-07 580 (6th Johnson, 1186, general that “the rule circuit 27 F.3d 1192-93 Cir. Hebeka, 287, stipu 1994); a defendant’s offer to United States v. 25 not bound F.3d Zalman, late”) omitted), (6th Cir.1994); (quotation and citation United v. marks 291 States 1228, DeAngelo, 13 (6th Cir.1989); v. United States 1047, United 1056 F.3d 870 F.2d (8th Cir.1994) (same), Brown, v. (7th States 569, United States v. 34 573 Cir. 1231 F.3d (8th Cir.1990) Hiland, Monzon, 1114, 1994); 1134 States v. 869 F.2d 909 F.2d United Bass, v. (7th (same), v. and United States Cir.1989); 794 F.2d United States 338, Cir.1986) (same). (8th (7th Cir.1986); Allen, n. 6 798 F.2d Liefer, down after 1236, 1240- v. F.2d decision handed United States (7th acknowledged v. Chaim- Cir.1985); Eighth Circuit Su United (7th Cir.1985); son, preme may have resolved Court’s decision 760 F.2d 805-06 1174, 1182 404(b)-stipulation question once and Mayans, the Rule United States v. Jones, (9th Spence, United States v. v. all. See Cir.1994); United States Cir.1997). (8th 1192, 1194 (9th Cir.1992); n. 382-83 F.3d F.2d (9th Hadley, States v. 851-52 Gano, TATEL,

Cir.1990); Judge, with whom United States Circuit Cir.1977). WALD, (10th EDWARDS, Judge, SILBERMAN, Judges, join, Circuit been other circuits have somewhat Still dissenting: Circuit, suggest while equivocal. The First 404(b)’s Although Rule first sentence— to an ing that a defendant’s offer “[ejvidenee crimes, wrongs, acts evidence of other bad element renders element, the character of has is not admissible prove that also inadmissible to conformity to show action analysis, person ... in order the final wheth stated that “[i]n 404(b)’s prosecutors therewith”—restrains and some- first sentence excludes bad juries evidence, acts evidence not for lack of deprives of relevant relevance—to times contrary, highly bad acts evidence is Congress the Rule’s valu- determined using relevant—but because the evidence protection against prejudice of bad able prejudice. overriding causes undue “The outweighs acts evidence its costs. Substitut- policy evidence, of excluding despite such its ing policy judgment Congress’, its own 'value,” probative Supreme admitted this now converts Rule a court from explained, practical Court has “is the experi- inquire pur- requirement that into courts prevent ence that its disallowance tends to poses of character threshold evidence—“[t]he issues, surprise confusion of unfair un- inquiry admitting must before make States, prejudice.” due Michelson v. United similar acts evidence under Rule 469, 476, 213, 218-19, 335 U.S. S.Ct. probative of a whether that evidence is mate- (1948). Elaborating L.Ed. 168 further in Old character,” rial issue other than Huddleston “ Chief, the said ... ‘[although Court States, 686, 681, v. United 485 U.S. 108 S.Ct. relevant, “propensity evidence” is risk (1988)—into 1496, 1499, 99 L.Ed.2d 771 that a will convict for crimes other than question of relevance. evi- Since bad acts that, charged—or those guilt, uncertain of always relevant, dence almost the court anyway will person convict because a bad 404(b)’s effectively has first sen- erased Rule punishment—creates prejudicial deserves tence, making all admissi- character evidence outweighs ordinary effect that relevance.’” 404(b)’s sentence, ble second sub- 519 U.S. at 650 S.Ct. ject balancing. Nothing to Rule 403 in Old (quoting Moccia, United States v. 681 F.2d States, 172, v. United 519 U.S. (1st Cir.1982) J.)). (Breyer, Far from (1997), requires 136 L.Ed.2d 574 irrelevant, propensity evidence tends to “ov- result, this nor does Old call for aban- Michelson, erpersuade” jury, 335 U.S. at doning our former en bane decision 218-19, powerfully aiding the I respectfully cases. dissent. implication with its inexorable person that a who once act committed bad century ago, Over a probably also did act for the bad which he is recognized prior that evidence of defendants’ 404(b)’s on trial. Rule first sentence thus “only prejudice bad acts the defen- tend[s] unambiguously prohibits jurors, dants to draw their minds using character pro- evidence to show issue, “ away from the produce real and to pensity, excluding it to ensure that ‘a defen- impression that defendants] were [the did, dant tried for what he [is] who he wretches whose lives were of no value to the Daniels, is.’” United 770 F.2d community, and who were not entitled to the (D.C.Cir.1985) (quoting prescribed by full benefit of the rules law for (5th Myers, States v. “ beings.” Boyd the trial of human v. United Cir.1977)). gives Because ‘it reflects and 450, 458, 292, 295, meaning precept system to the central of our later, Eighty years 35 L.Ed. 1077 justice, presumption criminal of inno- ” drafters the Federal Rules of Evi- cence,’ Dockery, United States v. recognized powerful dence likewise (D.C.Cir.1992) Daniels, (quoting tendency 1118), invidious of character evidence to prohibiting F.2d at the use of acts bad jurors’ shift focus from actions to propensity promotes defendants’ evidence to show fairer “ character, noting ‘subtly their trials. per- that it good mits the trier of fact reward the man is, Prejudicial though it bad acts evidence punish and to the bad because of man highly probative many can things respective despite characters what the evi- government may legitimately prove, need ” actually happened.’ dence in the case shows knowledge, such motive. Rule 404(a) Fed. R. advisory Evid. committee’s preju- strikes the balance between the (1972 Rules) Proposed (quoting

1213 404(b)’s-first unambiguously prohib- prove propensity. is to sentence only purpose dence’s putative person for which is offered ‘to the character of a Is its: Foskey, v. United States conformity uncontested? See order to show action there- ” (D.C.Cir.1980) 517, (prose- 524 n. 5 636 F.2d with.’ Id. at 1407. evidence remains evidence to could offer character relevant, cution just the excluded evidence in Old as identity identity not an was where relevant. But after a remained defen- James, issue) (citing United States v. 555 purpose dant has conceded the for which the (D.C.Cir.1977)). & n. 46 Has 1000 evidence, government seeks to introduce the eases, defendant, in these conceded any no longer serves function for which the non-propensity except put to character before the the evidence? See Unit- offered 404(b)’s jury. Rule first sentence therefore (2d Mohel, ed v. 604 F.2d requires its exclusion. Cir.1979). failed to Or has I, invalidating Far from Crowder Old authenticity of its court of the convince the supports its result. Old the Su- nonpropensity reasons? If the an- proffered preme confronted scenario similar Court yes, any questions swer to trying the one we face here—a defendant Rule must the evidence under exclude stipulate away an element of his crime 404(b)’s But sentence. if the first prejudicial preclude the admission of order legitimate articulates a material and the case arose evidence, evidence—but under differ- non-propensity purpose 404(b)’s rule, 404(b)’s Rule 403. Rule first ent Unlike sec- becomes admissible under prohibition against using flat bad sentence, sentence’s balancing. subject ond to Rule character, Rule essentially acts evidence to demonstrate By today, its decision this court requires step analysis. simply courts balance of this eliminates the first prejudicial against effect bad acts evidence Abandoning original our en banc decision probativeness. Notwithstanding fact- its this result in Crowder the court reaches at balancing nature of Rule 403 sensitive relying on and the unremarkable Old Chief court discretion “is at its which district remains proposition propensity Inc., Textron, Joy height,” Helicopter Bell v. Rules 401 and 402 even after relevant under (D.C.Cir.1993), 549, 555 the Court non-pro- completely removes defendant ruled that when Old Chief offered remove through pensity purposes from the con- case by stipulation, his' felon-status from the case agreement to a “must convict” cession and “the reasonable conclusion that” I jury instruction. But Crowder never held the name evidence of his status that revealed concession renders bad defendant’s prior felony so nature of his would be Rule 402. In- irrelevant under prejudicial that a district court’s admission stead, it held that the concession makes the always constitute such evidence 404(b)’s evidence inadmissible under Rule discretion, Chief, 519 at abuse of first sentence. United States ---, Explaining at 655-56. S.Ct. (D.C.Cir. (Crowder I), — nature of defendant’s that the name and vacated, U.S.-, 1996), relevant, -, felony id. at remained unambiguous 136 L.Ed.2d 708 An rule reiterating the usual S.Ct. instruction, I stipulation stipulation “generally can- that a defendant’s explained, thoroughly so the evi- drains choice prevail over the Government’s prosecu- non-propensity value for -the dence’s showing guilt all the cir- offer evidence that to admit evidence would tion’s ease offense,” surrounding id. cumstances (de- jury. at 1410 unduly prejudice the nevertheless “gives the Government concession fendant’s prejudice great as risk of found the undue ... with- everything the evidence could show exclusionary per rule. If require se the evidence out risk that the will use 403’s insufficient under Rule relevance was As impermissible propensity purposes”). standard, relatively flexible see id. it, put “the concession Crowder I defendant’s “probative- (distinguishing knowledge deprives the evi- of intent and from “relevance” ness” under dence of value other than what 401), certainly government Rule it is insufficient under lieves the from even this rela- 404(b)’s tively light Rule bar. per- absolute burden articulation and suasion. 404(b), interprets As the court now Rule the Rule’s first sentence never comes into quotes lengthy passages The court of Old play government is careless unless the regarding prosecutorial dicta narrative enough to confess motive jury’s expectations proper and the about introducing the is the de- evidence proof, Maj. Op. reiterating see at implica- The fendant’s bad character. clear point Old that intrinsic evidence Chief’s 404(b) today’s tion of decision is that Rule is be essential to “creat[e] coherent narrative propensity remotely if satisfied evidence is thoughts in [a defendant’s] and actions issue, relevant to even conceded issue perpetrating the offense which he is be- government prove. that the need never See at-, ing tried.” Old 519 U.S. 404(b) Maj. Op. at 1206. requires Rule more. nature, By very however, S.Ct. at 656. imposes prosecu- It an affirmative burden on from, separate “other bad acts” are not inte- ap- tors to articulate—and on courts to to, gral offense ... being “the tried.” Id. prove—material, non-propensity purposes for ease, In Davis’s the other bad acts evidence admitting acts evidence. As the Su- bad place concerned events that took before the Huddleston, put preme Court it in “[t]he offense with which he charged. The bad inquiry threshold a court must make before acts in Crowder’s case occurred after his first admitting similar acts evidence under Rule case, therefore, trial. In neither did probative is whether that is any place government’s evidence have of a material other than character.” actually happened narrative about what 1499. This alleged the dates of the crimes for which the burden constitutes the defendant’s first and trial, unless, course, defendants were on important protection against most the harm- government permitted argue ful effects of character evidence. Once propensity. based on But Rule re- passed, threshold is the evidence’s relevance quires prosecution produce rea- some tip will often Rule 403’s scales in the son propensity other than to connect a defen- favor, ment’s and once the admit- prior or subsequent dant’s acts with the limiting ted the curative effects of in- charged “narrative” of the offense. Absent “ ” ‘unmitigated structions an are fiction.’ connection, excluding such a the bad acts

Daniels, (quoting 770 F.2d at 1118 Krulew- prosecu- does detract States, 440, 453, itch United story any way, except tion’s by forbidding (1949) (Jackson, 93 L.Ed. 790 Indeed, tales of defendants’ bad character. J., concurring)). recognized that the sure, piece To a single can authority to construct its narrative of the Maj. many purposes, Op. serve at 1208- 404(b). charged crime is cabined Rule automatically satisfy but that does not S.Ct. at 404(b). actually Rule must multiple says court purposes articulate one as that Crowder I have introducing permitted a basis for If it prosecu- the evidence. defendants to control the does, evidence, presentation evidence can come in under the tion’s itsof but most 404(b), subject implicates second sentence of Rule evidence never all. balancing. balancing pre- Generally This speaking, defendants’ concessions cisely I happen prevent what Crowder held should cannot the admission of non-bad acts remand, crimes, in Crowder’s case on see Crowder evidence intrinsic to their such as I, 87 beeper. F.3d at 1413-14. It also Presumptively could Crowder’s admissi- happened ble, subject only Davis’s case such evidence is to Rule pur- had merely articulated unconceded material under which a concession functions pose for the By Only evidence such as motive. one factor the balance. because holding 404(b), evidence, that the specialized mere relevance of character rule of disfa- 404(b), evidence satisfies Rule re- imposes special this court vors character evidence and evidence, a “must unambigu- implication bad can an burdens require the evi- would not admission such convict” instruction block ous concession n perform gymnastic[s].’” ‘“mental dence. Daniels, (quoting at 1118 Nash v. court, similarity in According (2d Cir. drug two Crowder’s bags involved 1932)). Rather, simply in- the trial likely that it more he made transactions find structs the convict need Maj. were cocaine. See knew the substances beyond only possession a reasonable doubt. Crowder conceded Op. 1208-09. Because Hardly protects confusing, approach this de- however, this evidence would knowledge, prejudice of from the bad acts evi- fendants more, something such as modus have to show preserving government’s while dence Although offered operandi. ability prove case. district purpose, for that the evidence it, finding court excluded government of depriving Aside from any unique similari- to establish ment failed evidence, ability to introduce character present past and acts. See ties between pro- and Davis’s concessions and Crowder’s F.3d at 1413. Crowder posed jury instructions made the would have that a confused The court worries effect trans- task easier—in convict, but Crowder’s decline forming simple into these distribution cases accept a “must convict” willingness to Davis’s then, Why, possession gov- cases. does the danger. this jury instruction removes ernment decline the offer? The answer court’s concern instruction also answers the prejudicial this: Bad acts evidence is were unclear because stipulations it, likely by using government is more name, they refer to defendants failed to convict, proving all even with burden in- Maj. Op. The offered at 1207-08. crime, than it need three elements of pos- abundantly clear that struction makes only possession but cannot use session, knowledge or remains the ourselves,” said “Let’s not kid evidence. Supp. dispute. Appellants’ See issue Penn, Judge judge the trial then-Chief 9; I, 87 at 1412. As Br. at Crowder case, “the reason the Crowder’s I counsel explained, both defense [404(b) evidence] to introduce is be- seeks possession was the made clear trial that v. prejudicial.” United cause it’s only issue: Crowder, Tr. No. Trial Crim. attorney ... told district court Davis’s (D.D.C. 3,1992). March proved has that “[o]nce case, position our possession in this it’s SILBERMAN, Judge, dissenting: Circuit proved knowledge and they’ve expressed I to the views I adhere opening statement and well.” In both case, v. en see United States Crow- first banc attorney closing reiter- argument, Davis’s (D.C.Cir.1996). der, I not at knowledge and intent were ated that issue____ that, respect with all only add due attorney [likewise] [Crowder’s] Court, why I do understand case is: Did stated that this “[t]he by the thought that this case was affected possess drugs? those he or did he not opinion in Old Court’s thing that the Govern- That’s threshold 136 L.Ed.2d has in this case. able rest of it terms of what the facts— show, what the evidence will we concede.”

Id. at 1411-12. explained, the instruc-

As I also promotes clarity. at 1415.

tion See id. itself jury instructions that are limiting

Unlike admitted

used character evidence is when juries to the obvious require ignore

and that notes Califor- dicial effect of bad evidence and Commission, Report, nia Law Revision Rec- probative through process. two-step value (1964)). ord and Studies 615 The court first determines whether the evi-

Case Details

Case Name: United States v. Crowder, Rochelle A.

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 1, 1998

Citation: 141 F.3d 1202

Docket Number: 92-3133, 93-3059 and 94-3108

Court Abbreviation: D.C. Cir.