*1 MIKVA, TAMM, Before WILKEY and Judges. Circuit by Circuit filed Opinion for the Court Judge WILKEY. Judge
Dissenting filed Circuit opinion MIKVA.
984
WILKEY, Judge: Circuit MOORE: Yea. SMITH: OK Is it you get definite can presented by The issue this case primary the Herbie. of “bad is whether the admission certain MOORE: Yea. proper. Because we acts” Herbie, SMITH: See I carefully con- and will see the judge’s find the trial your four girl today. white friends of sidered admission fully Rules both Federal formed with MOORE: Yea.4 cases, affirm. we of Evidence and our call, subsequent telephone Smith
and Moore price established that the would I. Facts $6,000 cocaine, for four ounces of approximately per pound $355 to spring appellant $365 1982 Ronald pounds marijuana. shopping Smith in a mall. Moore met Robin night. out to dinner is, The went you two MOORE: well I Ok know what agreed that Smith would leave her The two talking am about going you it is to cost move in motel and with Moore. six. SMITH: OK. period
Smith lived with Moore for a get MOORE: You four. spring. weeks that Because her several Moore, relationship with she was able to SMITH: your girl OK You know ties of coke.”3 The na and “white As she later testified at informant. She contacted the dealer who “was with was also involved three to Smith In the first using During soon struck. special offered to set transactions, principally er sponded witnessing tified observe Smith cocaine.2 telephone that Moore’s arrest was knowledge by turning paid almost avidly to this ultimately code words telephone several course and decided to girl” he could obtain the had access to all up conversations with Moore. dealing large quantities facets of his friend Perceval for an set for cocaine: became disenchanted “Herbie” for call, police apparently offer, some for 8 June 1982. as Moore’s sales.1 Smith Moore confirmed day, profit and a deal was arrest large that included those police, Smith had home from her marijua- quanti- suppli- drugs, police life. tes- re- that. bly accept half SMITH: Yeah um. MOORE: OK SMITH: Oh now let me tell SMITH: He feels MOORE: MOORE: That the MOORE: Tell him —OK MOORE: $3.55 get SMITH: Yea. right. MOORE: And the weighs an MOORE: SMITH: Yeah saying do most. [*] break tickets, is three-sixty Go [*] Yes, ounce that —the best I ahead. they're going she does those right 50$ at least other, best five.5 if for at tickets, [*] the least $3.55 still can can do—will [*] you you he what I’m wants or cost him do should 50$ about possi- know * * at now, I Following SMITH: OK need to some- telephone know several more conver- thing, Smith, Ron. sations between Moore and Transcript replete grammatical Trial with errors. Rather than burden the reader "sic’s," overabundance 191-92, Id. at transcripts presented are verbatim. 3. Id. at 202. 5. Id. at 3-5.' Appendix Appellee, Appendix Brief and A tape recordings transcripts are a lot That’s of coke. It’s a lot MOORE: Bright ultimately at Smith’s arrived of coke. conversations subsequent room. hotel in the hidden Metropolitan Police Detective from ston, Hairston insisted price apparent agreement offering dispute as to ounces for ing Moore and Hairston claimed that sumed discussions: BRIGHT: his who told Virginia. for the room were introduced microphone. At quality Virginia suppliers to sell. Bright six,”6 price You them he marijuana, After Hairston tape-recorded had The two the two want but Moore and price of the cocaine. quickly not been set.7 $360 Hairston then the hotel price then entered had been began discuss- appellants to then reached do Ronnie pound Moore through a business? explained Bright dealer as the room, “four Hair- dry, re- you. HAIRSTON: business. you BRIGHT: We’re SMITH: Where going? HAIRSTON: [pause] know now BRIGHT: ness BRIGHT: We ain’t said deal can we do it? HAIRSTON: other well [*] got is she’ll that could right you. to understand (cid:127) [*] enough Where we’re now. We ain’t None pick up Fine. I can understand Alright, send [*] are *3 trying to that I can do trying you us don’t know us to [*] me too. uh-huh. So going package. all nothing, right, jail. planning [*] understand go ain’t you, my I When don’t [*] busi- your each jail, on to do going We’re business. get now. She can it MOORE: Well, so far. O.K. HAIRSTON: put going to it in mo- BRIGHT: We’re go- I tion now. You understand? ain’t all, got you First of to be. BRIGHT: You got to do is [*] package. got [*] bring money, [*] right? money [*] ... All [*] pick [*] you up telligible] and certain how get in long motion motion, place you and how. until I then we’ll [unintelligible]. see tell money you exactly money When [unin- in a it to do busi- BRIGHT: You want some Alright, try let’s it HAIRSTON: well doing serious about busi- ness? You you got up- I have again, man. no— ness? got dope? You per hand. is, you good thing do want got MOORE: money you see BRIGHT: Let’s coke, you some bullshit?8 money did want right you’re That’s the there. buying with?10 increase, price Hairston Faced with deal, inspecting insisted on agreed then canceled the brought him. money Hairston with The three then be- the cocaine.9 purchase inspection, he called Moore After brief logistics: gan a discussion inspect over to also: bills my bring your money You BRIGHT: money] up Hold to the BRIGHT: rather, [the spot to our neutral spot, to our light. place. wrong What’s with it? HAIRSTON: can’t, in oth- We HAIRSTON: We can’t. [unintelligible] light. MOORE: words, saying I’m [pause] er What light. upit Turn money, [unintellig- BRIGHT: Hold that’s a lot of side. That it on other side. Other ble] Appendix Appendix B at 9. Appellee, 9. Id. Brief and 6. at Id. Id. Id. at 7. your hand, you had in turn this one missible.19 Smith then testified at trial at length other side. Look. some about the defendants’
lished that the appellant’s prior drug employ testimony ed strenuously.16 attorneys for “provide apartment. Bright’s quently charged caine, and a marijuana and hashish were retrieved from business because Bright’s truck. Both their homes were searched, been dusted for Moore as truck. to Hairston that ined the government proceeded Before room without ed.” Before Even turkey.11 Moore court and the don't [*] leaving, A though After home. money possession allegations.14 want to trial, and a somewhat gun variety No [*] setting” was recovered from Moore’s Hairston Moore and testimony concluding no Moore left *4 fingerprints.13 The two and concluded The parties from Smith do they [*] deal was very left, government no for the crime.15 The were recovered from other offenses relat- dealings government apparently to arrest money then left the didn’t want to do business that it intended to small amounts of scene Hairston reexam- [*] would men were subse- Bright objected larger concluded, detailing was “mark- [*] Bright be to sell co- informed indicated order to Bright’s used to amount estab- it had hotel [*] deal. and only the purposes.25 Moore and held considered there.” ing tan thing he wanted up to what he had Bright purchaser’s money, part of which she would then use to drugs. claimed Moore.22 bona fide in drug dealings. dupe fact that the transaction in the “things mony involving aborted er sembled—and was intended to resemble—a drug dealings,20 At Both defendants then they who instruction bad acts to Smith’s merely the close of the directly was As his had the [in would-be drug sale, he admissible.24 Bright, along simply As their counsel given he bad acts sale.21 believed testimony attacked the issue of wheth- attorney argued departing forbidding scam devised hotel necessary before events on the knew chose aMoore been purchaser. on room] but claimed it was in repay do the trial the testimony proceeding nothing presented not as a The with the would-be told was intent deal would lead just ride, to seek a limit- hotel acknowledged her debts to impermissible attorneys good other ... candidly judge again get day about According didn’t and when would be Smith to room defenses the only to testi- Samari- engage out of to use hand, jury, add ex- re- plained prove intent,17 argument, at oral the decision not entrapment rebut an limiting to seek proposed defense which Moore instruction raise.18 tacti- The duly objections, cal noted choice made in order to avoid reinforc- testimony ruled that the bad acts damaging ad- impact of the bad acts 11. Id. at 14. 19. Id. at 12.
12. Id. at 15. 20. Id. at 185-201.
13. Id. 21. Id. at 208-28. 14. Original Appeal Record on at 26. 22. Id. at 601-16. ‘ Transcript 15. Trial at Id. at 642-43. 16. Id. at Id. at 710. 17. Id.
18. Id. at 8.
Id. at 753-55.
(cid:127)
being
404(b)
specialized
the Rule
rule of
then convicted
testimony.26
404(b) specifies
relevancy.”30
par-
Rule
conspiracy charge, and
defendants on
use
ticular
for which
evidence is
appeal
This
fol-
acquitted
all others.27
proving that the defendant
lowed.
admissible—
general
predisposition
commit
has
Analysis
II.
specifies
also
the same rule
crimes—but
acts testimony
for which bad
several uses
considering
ad
whether to
A court
testimony
can be admitted.31 The
at issue
testimony must undertake
mit bad acts
properly
here could
have been admitted
First,
analysis.
the court
two-part
two of these uses:
rebut a
under
least
testimony
is relevant
inquire whether
prove
entrapment,
or to
defense
in Federal Rule
the standards
under
set
necessary
had the
intent to com-
defendant
404(b).28
if
Secondly,
the court
Evidence
mit the crime.
relevant, testimony
must deter
finds
Federal Rule of Evidence
mine under
government
prov-
had the burden of
impact
testi
prejudicial
whether
404(b),
ing intent.
Under Rule
outweighs
probative
mony substantially
its
can be
order to
introduced
case,
testimo
In this
the bad acts
value.29
intent,32
government speci-
prove
and the
issues,
disputed
ny
highly
fied before trial
this was
use
outweighed any un
its
value
would be
prejudice.
fair
offered
used.33
very
proved to
relevant on
issue of
*5
Testimony
Acts
the Bad
A. Relevance of
minimum, it set a
intent. At a
context
deciding
in
bad
step
jury
whether
evaluate
The first
which enabled the
to
whether
“willing
is deter-
fact
testimony should be admitted
the defendants were in
acts
proceed
drug
Espe-
mining
is relevant.
to
with the
sale.
able”
whether
Bright’s
he
in
cially given
un-
claim that
provide
Rules of Evidence
The Federal
a
area,
simply
of horrible
guidance in this
with the hotel room
because
usually precise
another
The fact that a defendant committed
26. See TAN 51-58.
may
variety
a wide
of
crime
be relevant to
years
sentenced to three
incarcera-
27. Each was
facts,
consequential
propositions, de-
material
Appeal
Original
at 31-32.
tion.
Record
steps
pending
kind of circumstantial
on the
Only one
of
with
it is used.
series
which
404(b)
of
reads:
28. Federal Rule Evidence
hypotheses
in
evidential
is forbidden
criminal
crimes,
(b)
wrongs, or acts. Evidence
Other
by
a
cases
Rule 404: a man who commits
crimes, wrongs, or acts
not admis-
of
is
other
character;
probably has a
of
crime
defect
person
prove
of
in
the character
sible to
more
man
such a defect of character is
conformity
show that he acted in
order to
likely
generally to have committed
than men
however,
may,
admissible
It
be
therewith.
404(b)
question.
the act
Rule
which ad-
motive,
proof
purposes,
of
such
.other
crimes, wrongs or acts
mits evidence of other
intent, preparation, plan,
opportunity,
knowl-
person
purposes
other than to show that a
identity,
edge,
or acci-
or absence mistake
conformity
is not
acted in
with his character
dent.
404(a)
404(a)
exception to
since Rule
an
Rule
29. Federal Rule
403
of Evidence
reads:
propensity
apply when
does not
criminal
circumstantially
Evidence on Grounds
as the
for in-
Exclusion Relevant
not used
basis
Prejudice, Confusion,
ferring
or Waste Time
an act.
relevant,
may
Although
be exclud-
Id. at 404-45-46.
substantially
probative
out-
ed if its
value
weighed
prejudice,
specified in
are
danger
The uses
the rule
not meant
of unfair
exhaustive,
issues,
misleading
merely
confusion of
or
illustrative.
delay,
jury,
undue
considerations
time,
presentation of
waste
or needless
Childs,
(D.C.Cir.
F.2d 169
598
cumulative
312,
evidence.
Anderson,
1979);
509
United States
denied,
(D.C.Cir.1974),cert.
420 U.S.
328-29
30. See 2 J. Weinstein & M.
Berger,
Weinstein’s
(1975).
L.Ed.2d
S.Ct.
trea-
Evidence 404-49. The authors of the same
provide a useful
tise
summation of the thrust
33. Trial
Transcript at 11.
the rule:
mistake,
government
claim that
there was
rule.
and Moore’s
The
then produced an
drugs,
eyewitness
to sell
acted
no intent
specific
acts who
testified to
allowing
absolutely properly
drug use and drug dealing.
This
clear
of this evidence.
benefit
have the
convincing
proof
support
find-
ing
alleged
bad
acts
had
fact
testimony was also relevant
Finally,
occurred.
entrapment
—a
raised
defense of
entrapment defense,
pattern
raising
possession
deal-
Moore.
argued
govern-
essentially
taking
place
immediately before the
origin
and in-
constituted
ment action
alleged in the
indictment—
obviously
It
of the crime.34
ducement
clearly
logically
relate
to the offense
entrapment
defense
suc-
easier
charged. This
was not
case where the
entrapped
previous-
persons
had
ceed if the
time,35
bad acts were
remote
or of a
no
ly
lives and had
knowl-
led blameless
fundamentally
different
nature.36
edge
type
iniquity
made the sub-
presenting the evidence of the defendants’
ject
entrapment.
government
dealings,
government produced
right
claim
to rebut Moore’s
pos-
forceful evidence
defendants
predisposition
no
to commit
he had
sessed
necessary ability
desire
charged,
the bad
crime
sell
days
scant few
later.
directly
this rebuttal.
fully
thus
carried
government
its
Prejudice
B. Unfair
404(b).
burden under Rule
Prior
all
purposes for
Not
identified at least
two
relevant evidence is admissi
ble.
would be used.
Relevant
be excluded under
legitimate
purposes
These
under
Rule
“if
were
its
value is substan-
Mueller,
charged.
D.
& C.
Federal
opinion
perfectly
See 2
Louisell
Evi-
The court’s
makes it
government lawyers
dence 129.
clear that the
—unlike
government attorneys
spe
in this case—did not
cify any
why
reason as
readily
the evidence was
distinguishable
35. This case is thus
from
404(b):
(D.C.Cir.
*6
relevant under Rule
Foskey,
United States v.
1980).
38. See Weinstein
Weinstein's
the law
a criminal
Evidence 403—26-27.
to hold that
defendant should
get
prejudiced
a new
because he
trial
himself
(D.C.
during
Day,
39. United
cross-examination.
Cir.1978) (emphasis
original);
United States
urges
testimony by
45. The
Harrison,
(D.C.Cir.1982).
dissent
believed,
"vague” be
Smith was too
and hence
this,
urging
has no
value.
Transcript
40. Trial
appropriate
apparently
dissent
believes
appeal
test is
court on
whether the
is convinced
at 188-89.
41. Id.
at issue.
190-92,
approach
improperly
Id. at
in-
dissent’s
would
*7
solely
appellate
rely
vite
paper
courts—who
on a
must
record,
opportunity
at 196.
Id.
and have no
to ob-
province
invade
the
serve the witness—to
the
Nor,
judge
jury.
trial
The
aside from the one
and
assessment
44. Id.
reference
(used
credibility
primarily
the “rock”
cocaine at Moore’s
of a witness
a matter for
to
house
judge
jury.
explain
the trial
which cocaine
believed Moore
to
about)
Appellate
speaking
was the
should
to
acts
courts
limit themselves
to be
bad
shotgun
examining
type
testimony interspersed in a
the
is suffi-
whether
manner
ciently
regard,
testimony.
probative.
through
tion,
On direct
In this
trial courts
Smith's
examina-
proceed
premise
jury
testimony proceeds
rough
should
from the
her
chrono-
appellate
may
logical
discussed
believed
witness. The
court
order. She first
what she did
the
Moore,
testimony, accepted
Washington
prior meeting
the
as
to
then ask whether
true,
area
in the
180-83,
proceeded
sufficiently
inquiry
the
to
Transcript
then
advances
offset
at
to her ini-
Moore,
183-84,
any
respect,
appel-
meeting
prejudice. In this
id. at
unfair
the
with
then
tial
primarily
moving
to
the evi-
proceeded
in with
id. at
late court looks
whether
to
184-
lifestyle
closely
the
which it
while
dence relates
to
for
discussed Moore’s
then
admitted,
there,
merely plays
very
drug
dealings,
attenuat-
including
use and
or
a
his
lived
185-201,
complet-
marginally
proceeded to her
relevant —role in
initiation
ed—albeit
id. at
then
201-07,
police,
complex
re-
negotiations
id.
a
chain of inferences.
In this
with
testimony
spect,
appellate
only
proceeds
her
as to
court
consider whether
then
deal,
eyewitness
testimony
involves
observation
drug
the aborted
id. at
Any tangential
Prejudice
chance
that
Unfair
could have
testimony
misused the bad acts
prejudice
this case
of unfair
The risk
and,
could have been
on the
minimized —
only
obvious use
is minimized because
case,
this
facts of
effectively eliminated—
proper
is the
through the use of a limiting instruction.47
government’s
heart of
case
use. The
prosecution proposed
The
limiting
a
such
tape recordings
presentation
was the
judge
give
instruction.48 The
did not
it
engaging
appeared
in what
the defendants
only
the defense lawyers
because
affirma-
tively
right
drug transaction.
The defendants
exercised their
to block it.49
be a
essence,
they only ap-
that
argued,
role
Given the
of the defense in blocking
drug
peared
engaging
to be
in a
transac-
instruction,
limiting
this court should
context,
only
use of
look
that
tion.
obvious
which would
despite
giving
proper
have
accrued
is the use for
the bad
limiting
instruction. On the facts
this
goes
It
show intent.46
it was admitted —to
relevant
case —where
evidence was not
show,
foremost,
the dra-
first
convictions,
any
it was not
other
where
captured
the au-
matic
transaction
materially
any
element
appeared
to be.
It
tapes
dio
was what
intent,
charge
besides
likely
quite
the defendants
in-
shows
highly probative
appro-
where it
on the
through
their
tended to follow
priate issue of intent —there is no unfair
deal.
prejudice.50
testimony per-
bad
evidence,
merely
Transcript
or
circumstantial
whether the
Trial
at 754-55. This court
recently
approach
dated
witnessed were recent or so
as to
reviewed
events
its
role of
value,
limiting
be of little
and whether the
instructions when bad acts
actually
Lewis,
hap-
witness testified that the events
pened
used.
States
the court ob-
Here,
only might
happened.
served:
eyewitness testified to recent events of a sub-
simple
responsi-
scheme
allocates
[A]
...
stantially
personally
similar nature that she had
against
bility
guarding
evi-
misuse
observed.
ny,
If the
believed Smith’s testimo-
by jury
dence
between trial
and trial
court
little reason to doubt
During
fairly
counsel.
counsel
bears
necessary
had the
intent to follow
guarding against
burden
heavier
the misuse
through
on the aborted
deal.
generally
of evidence. Trial
re-
counsel must
quest
limiting
poten-
instruction whenever
defendants,
46. Even without a waiver
tially inflammatory
put
to an
can be
required
this
is not
case
one that would have
use;
improper
reversible
if the
error arises
propose
sponte
limiting
sua
instruc-
grant
request.
court fails to
such
The court
Childs,
tion.
In United
The bad
This court made short shrift of the de-
fully
under
to be
admissible
seem
claim that such
would
fendant’s
bad
testimo-
in
established
our
ny
the standards
inadmissible. The court’s conclu-
testimony concern-
eyewitness
sion,
might
cases.
as the trial court here
well have
only
observed,
applies fully
acts was not
relevant but
to the case at
recent
hand:
prejudice was
highly probative. No unfair
Here,
undeniably
con-
use of the testi-
likely, in that the natural
close[ly]
cerned “evidence ...
rela[ted]
use,
appropriate
its
mony
be for
charged,”
would
the offense
and there is noth-
any
To the extent
proving intent.
admitting
ing “unfair” in
direct evidence
chance existed that
minimal
past
eye-
of the defendant’s
an
possibility could have
misused that
could be
thereto that constituted
witness
substan-
through
limiting
instruc-
avoided
been
proof of the relevant intent
tive
government.
proposed
tion
in the indictment. The intent with which
given
person
commits an act on a
occa-
rely
able to
The district
many
proven by
sion can
times be best
more, however,
extrapolation
than mere
his acts over a
testimony or evidence of
Barely six months before
from the rule.
thereto,
particularly
period of time
panel of this court
trial in this case a
activity
a continuous
when the
involves
set forth facts
opinion
issued
dealing.53
course of
here.
In
almost identical to those
Harrison,51
testifying
are,
course, precisely
the witness
cases
No two
identical,
defendant’s wife. As
can
acts was the
and some minor differences
case,
she was able to witness the
Harrison and the
be identified between
important
she lived with the
The most
of those
prior bad acts because
case at bar.
for,
case,
against,
in this
those bad acts
cuts
rather than
defendant. As
distinctions
storing
admitting
evidence. Harrison did
drug sales and the
included
case,
powerful
argue entrapment,54 and so
As in this
at the house.
Transcript
F.2d at 948.
53. 679
Trial
mentioned in
The bad acts otherwise were not
opinion
in-
This court’s
in Harrison nowhere
readily
closing argument.
dis
This case is thus
case raised an
dicates that the defendant in that
DeLoach,
tinguishable from United States v.
entrapment defense.
concurring),
J.,
763,
(D.C.Cir.1980)(Tamm,
suggests
opinion
other
in Harrison also
denied,
S.Ct.
450 U.S.
rt.
ce
that case and this one. In
distinctions between
(1981),
government
where
fact, no cocaine substantially if its value is out- during investiga- the entire course weighed by danger unfair preju- tion. dice, issues, or confusion of mislead- jury____ opening, prior jury selec- At trial’s Fed.R.Evid. 403. These rules must be ap- tion, inten- prosecution announced its plied in to determine whether evi- tandem of Moore’s tion introduce evidence pri- dence defendants have committed dealing, Bright’s alleged or bad is admissible in a criminal case. Smith, through testimony provide 404(b), starting point Rule for the anal- crime, proof defend- “setting” for the as ysis, provides: narcot- to distribute conspire ants’ intent crimes, ics, entrap- wrongs, Evidence of other or acts and to rebut defense prove objected to the admis- is not admissible character ment. Defendants person ruling in order to show he requested a sion of this evidence and conformity may, necessity acted therewith. It evidence to on the however, pur- for other prosecution’s case. The ruled admissible motive, evidence, poses, proof opportu- Rob- solely of such which consisted intent, plan, preparation, knowl- nity, earlier observations of Smith’s edge, identity, or of mistake involving and/or absence transactions Bright, accident. was admissible. *11 404(b). Advisory the Satisfaction of 403 Committee By Note. defini-
Fed.R.Evid. 404(b) requires tion, of purposes” clause balancing this specific “other fact and will that prosecutor’s assertion vary than Moreover, more from case to case. because bad prior of defendant’s balancing the evidence the Rule 403 is a matter within excepted cate- is offered under one court, the discretion of the trial appel- Ring, 513 United States gories. court will late overturn the trial court’s 1001, (6th Cir.1975). fit 1004 To within a only balancing where discretion has been initially category, prosecutor must dem- Poretsky, abused. Miller v. 780, 595 F.2d purpose for onstrate that the limited (D.C.Cir.1978); United 783 Day, States v. is offered is material fact in the evidence 861, (D.C.Cir.1978). 591 F.2d 878-79 dispute evidence is that the relevant to Assuming presented that the evidence existence of this fact. establish the To be 404(b) this case survives the Rule inquiry, I relevant, must the tendency have evidence it believe that was an abuse of discretion to make “the existence of ... [the fact] prior admit the bad evidence because probable probable or less more than it testimony associated with the evidence.” would be without Fed.R. clearly outweighs any probative so value it 401. To be deemed relevant under Evid. might have had. The initial focus is that 404(b), prior of bad acts also must part of pro- the balance that addresses the adequately charged. linked to the crime be of the proffered bativeness evidence. The minimum, requires aAt that the testimony record here revealed that was bad acts be similar to the offense for which noteworthy only vagueness for its charged. Moreover, the defendant when countless incidents of selective recall. prove intent, intent introduced to testimony Smith’s concerning Moore’s commit both the Bright’s prior “drug transactions” charged substantially offense be simi- very unspecific many and contained so See, DeLoach, e.g., United States v. lar. gaps degree proba- which was 763, (D.C.Cir.1980), de- cert. 654 F.2d 769 tive of element the indictable of- nied, 1004, 1717, 101 U.S. S.Ct. insignificant. fense borders on the Fos- (1981); States v. L.Ed.2d 209 key, 636 F.2d (D.C.Cir.1980). Not did once Smith the name of recall Equally important, the evidence any person alleged drug involved alleged prior nects the defendant to the transactions, transactions, of dates stronger specula- acts must than mere or even the number transactions Shelton, United States tion. Indeed, testimony she had observed. her (D.C.Cir.1980). unclear actually transpired about what dur- motion,
At
pretrial
prosecutor
transactions,”
“drug
including
these
sought
404(a) by
to meet
specific involvement,
the burden
any,
appel-
if
indicating
See,
Bright.
lants Moore and
e.g.,
Tran-
establish,
inter
would be
introduced
script
Moreover,
frequently
she
alia, the defendants’ intent
to commit
money
could not remember the amount of
needing
crime.
proof,
Intent was an issue
exchanged
type
or the
quantity
Smith,
and the
however tan-
example,
sold. For
recalls
gential, could have
relevance
de-
some
Bright
early
visited
in the
fendants’ intent to commit the crime under morning to show him what
described
she
the indictment.
cocaine; yet, on cross examination she ad-
mitted
substance
not cocaine.
Even if the evidence is found admissible
354-,
Compare, e.g.,
id. at 191
id. 404(b),
under
apply
court still must
trial
best,
balancing
marginally probative
At
sec-
test
set forth
Rule 403.
requires
This Rule
tions
her
the trial court to bal-
concerned
visit
“probative
ance the
for Moore’s house
the purpose
value of and need
two men for
against
likely
buying marijuana
the evidence
harm
and one occasion when
result
from its
allegedly brought
admission.”
man
an unidentified
Fed.R.Evid.
putative
knowledge
for the
Smith’s
Bright’s
to Moore’s
Moore’s and
house
acts,
knowledge
But her
buying drugs.
as revealed
her testi-
stops
mony, did
there. The over-
not remotely approach
those incidents
Mrs. Har-
import
long-term
of her
was that
whelming
rison’s
observations of a continu-
sideline observer of some activi-
course of drug
she was a
ous
dealing. The majority
ty that
involved Moore
dismisses
differences between Harri-
*12
Testimony
in
conduct.
character-
son
unlawful
this case as minor. These differ-
by
significant gaps
ences,
such
and inconsist-
however,
ized
are substantial and direct-
probative
encies is of minimal
value.
ly relate
probativeness
to the
of the bad
Indeed,
testimony.
the differences
testimony
specificity
The lack of
of the
emphasize
serve
legiti-
fact that the
strikingly
admitted here can be
contrasted
mate
consequences of Smith’s
with the
bad acts evidence held admis-
testimony are
jury
miniscule. Here the
Harrison,
States v.
in
United
sible
had to assimilate
contradictory,
Smith’s
942,
(D.C.Cir.1982), a recent visita-
vague,
confusing
statements into a co-
tion
this court to this area of the law
representation
herent
of Moore’s and
majority relies.
upon
and a case
which the
Bright’s
possess
intent
and distribute
witness,
There the
who was the wife of
high degree
narcotics. The
vagueness
defendant,
had observed a continuous
in
testimony
Smith’s
proba-
diminishes the
drug dealing
eighteen
course of
testimony
tive value of her
to almost zero.
aspects of
months. She testified to all
prior drug
telephone
deals —the
calls
Turning
prejudice
to the
side of the bal
sales,
cerning drug
weighing
ance,
the evidence and the mode of its
marijuana,
marijuana to
the distribution of
presentation
ripe
created a situation
house, and the
people who came to their
prejudice.
testimony
Because Smith’s
con
money. Sig-
handling
large
amounts of
only snippets
separate
sisted of
from
inci
nificantly,
participated
the witness had
ac- dents,
complete descrip
and contained no
tively
by helping
in the
deals
her
any single drug transaction,
tion of
and, once,
package
husband
encouraged
bootstrap
inferenc
counting
speci-
over
for him. The
$2000
upon
es
inferences —to infer as much
ficity
testimony
of her
was corroborated
gossam
involvement as it desired from this
periodic telephone calls over a six month
then,
that,
er web of evidence and
from
period
police
in which she detailed her
infer
that because
husband’s
sales.
She was also able
defendants were of bad character and thus
police
packages
direct
to seventeen
mari-
laymen,
convicted. A
should be
juana in her basement
ledger
and to a
unlimited as to the
for which such
listing names with
along
numbers
side.
used,
testimony
help
could be
could not
but
comparison
testimony
directly
In
related
depth
detail
treat Smith’s
as
judice,
sub
testimony,
just
conspiracy
Mrs. Harrison’s
to the
and not
of Ms.
in
question
the instant case is
related to
of intent.*
evanescent.
*
majority
part
my analysis
testimony, accepted
claims that
must ask "whether the
true,
prejudice
sufficiently
inquiry
inherent
in Smith’s
in-
advances the
to offset
credibility.
by merging
volves an evaluation of witness
Ma-
any
prejudice.”
unfair
Id. But
jority opinion at
n. 45.
The criticism
vagueness
veracity,
majori-
is
questions of
majority
made from whole cloth. The
confuses
sidesteps any
ty
real consideration of the fact
vague
an
observation
with an
gaps
Smith’s
was so filled with
veracity.
attack on a witness’
These are two
only
play
"very
attenuated role
that it could
very
concepts. Vagueness goes
distinct
to the
complex
completing a
chain of inferences."
Id.
specificity
testimony;
lack
in the witness’
majority
beyond
It
me how the
can state that
veracity goes
honesty
lack of
in the wit-
we
ask whether the evidence advances
testimony.
ness’
asking
inquiry, but that in so
we must
attack, however,
testimony.
pursuing
ignore any
specificity
this misdirected
lack of
in the
majority
exposed
approach,
has
its flank and has re-
an
conclusion as to
Under such
analysis.
probativeness
vealed the
in its
of the evidence is sure to be
inconsistencies
majority
applying
meaningless.
Rule
we
concedes that in
stems,
large part,
complex
tends to be
potential
also
and a
source
in which the
from manner
evidence was
jury. See,
of confusion for the
e.g., Mar-
Our observation
United
introduced.
States,
cante
Foskey
equally applicable
here:
(10 Cir.1931) (noting
th
in multi-defendant
record,
reviewing
into
we take
inexperienced
case that “with
itself,
the evidence
account
jurors,
complicated
such
testimony is too
present-
the manner in which it was
also
apt
jumble,
to become but a confused
and a
jury.
ed
The evidence we have
apt
verdict too
represent
impression
presented
from the record ... was
culled
guilty
defendants are
of some
fashion,
disorganized
confusing
thing, with little reference to the crime
import
raising serious doubts whether its
charged”).
are
gener
See
jury.
was even made clear to the
ally
Marcus,
P.
Prosecution
and Defense
997
va-
chooses not to seek an
(D.C.Cir.1978). I would therefore
instruction. Rule
879
clearly
the convictions.
was never intended to have
cate
such a limited role.
result,
majority
opposite
reach the
To
jury
that a
impact
speculates about
404(b) impose
Rules 403 and
a difficult
had
been
would have
instruction
task on the
evidentiary
trial court because
if
impact
discern
given.
able to
Somehow
motions allow little time to reflect on the
limiting instruction not
from a
on the
balancing
relevancy
preju-
critical
that such an
majority concludes
given, the
Yet,
system
justice
dice.
our
relies
prejudice
cured
instruction would
heavily
ability
on the trial court’s
to ensure
Majority opinion
testimony.
in Smith’s
presentation
a fair
accurate
disagree.
The majority
charged.
of evidence of the crime
must,
limiting
cedes,
instruction
as it
prosecution
duty
has
to assist the
always
as-
not
overcome
will
court
this effort and cannot treat Rules
See
testimony.
acts”
“bad
sociated with
404(b)
403 and
see
47;
Majority opinion at 990
also
n.
costs,
to be cleared at all
obstacles
even
606,
Kaplan, 510 F.2d
v.
United States
by cutting around corners
whenever
Brown,
(2d Cir.1974);
possible to do so. These rules were de-
(D.C.Cir.1973); United States
signed to ensure a defendant a fair and
(D.C.Cir.
Bussey,
just
upon
trial based
Bussey,
1970).
court found that the
presented,
upon impermissible
infer-
question was of an insufficient
predisposition
criminal
ences of
prejudicial im
weight
its
to counterbalance
*14
confusion of the issues.
jury.
therefore held
pact on the
The court
Foskey,
States v.
cautionary
during
instruction
could not cure the reading Rule 403 out of
thus comes close to and, given
existence when an instruction disturbingly,
more when the defendant