In federal criminal cases, the government can’t offer so-called “propensity” evidence—evidence that tends to show that, because the defendant also did some unrelated bad thing, he must have committed the charged crimes. But the government may offer evidence of other crimes or wrongs for non-propensity purposes. Federal Rule of Evidence 404(b)(2) offers various examples. For example, in a case where the crime at issue was committed in a unique way (i.e., a “signature crime”), evidence that the defendant had previously committed the same crime could be relevant to “identity” (i.e., that the defendant committed the charged crime).
Beyond 404(b), evidence of some other crime could also come in under the “intrinsic evidence” doctrine. At bottom, that doctrine is a “context” doctrine; the notion being that the evidence at issue puts the charged crime in context. As the Eleventh Circuit has said, evidence is intrinsic if it is “(1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense.” United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).
In a recent case—United States v. Joseph, No. 19-11198, 2020 WL 6279676, at *8 (11th Cir. Oct. 27, 2020)—the Eleventh Circuit applied the intrinsic evidence doctrine. The defendant in the case, Balmy Joseph, had been convicted of drug charges, including possessing heroin and fentanyl with the intent to distribute it. On appeal, he argued that the government had violated the propensity rule by offering evidence that Joseph had committed identity theft. By way of brief background, the drugs at issue had been found in an apartment. At trial, the government offered evidence that Joseph had used a stolen identity to rent the apartment. Specifically, the government called an assistant manager to testify that Joseph had rented the apartment as “Wilbert Desir.” The government also called Desir to testify that he didn’t know Joseph or authorize him to use his identifying information.
On appeal, the Eleventh Circuit held that the stolen identity evidence was intrinsic evidence. The Court explained that the evidence helped show, among other things, that Joseph had taken steps to conceal his drug dealing. The Court also noted that the trial court had given a limiting instruction, telling the jury that Joseph was only on trial for narcotics crimes. The Court wrote:
“Here, Joseph’s use of Desir’s false identity to rent the property in which he stored the narcotics was inextricably intertwined with the narcotics offenses and was not inadmissible under Rule 404(b). That evidence established that Joseph, not Desir, leased the property and exercised dominion and control over the drugs. The use of a false identity was also (1) relevant as a step Joseph took to conceal the criminal activity, and (2) necessary to complete the story of how officers discovered Joseph was renting the apartment and garage. Further, the district court gave a limiting instruction about the identity-theft evidence: that Joseph ‘[was] on trial only for the specific narcotics crimes charged in the indictment.’”
The Joseph case is a good reminder that there are various theories under which seemingly unrelated evidence could be offered at trial. If you’re representing a criminal defendant, you should consider moving in limine to get pre-trial rulings on such evidence. If you prevail, you’ll avoid having the jury even hear about the evidence. And, if you lose, you will have at least preserved the issue on appeal.
If you want to read the Joseph decision, you can click on the link below.
