In the past, I’ve written about so-called “propensity” evidence—evidence that tends to show that, because a criminal defendant did some unrelated/uncharged bad thing, he must have committed the charged crime. The government can’t offer propensity evidence at trial. 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, the government may offer evidence to help prove that the defendant had the requisite criminal “intent” when carrying out the charged acts.
When deciding whether to admit 404(b) evidence, a trial court must consider a number of factors. A recent decision from the Eleventh Circuit—United States v. Jones, No. 19-11444, 2021 WL 672907, at *1 (11th Cir. Feb. 22, 2021)—highlights a few of these factors. Although the decision is unpublished, it is nevertheless worth reading if you practice in the federal criminal space. In particular, in Jones, the Eleventh Circuit made clear that trial courts should be wary of admitting 404(b) evidence where (1) the 404(b) evidence is old and (2) the government has a strong case on the charged crimes.
A. The Legal Framework
To put the Eleventh Circuit’s analysis in context, it’s worth briefly reviewing the legal framework to a 404(b) analysis. In the Eleventh Circuit, courts use a three-part test to determine whether evidence is admissible under Rule 404(b).
- (1) the evidence must be relevant to an issue other than the defendant’s character;
- (2) there must be sufficient proof that a jury could find by a preponderance of the evidence that the defendant committed the act; and
- (3) the probative value of the evidence must not be substantially outweighed by undue prejudice.
United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007)
With respect to the third factor, when determining whether the danger of unfair prejudice substantially outweighs the probative value of extrinsic act evidence, a court considers “(1) the government’s incremental need for the evidence to prove guilt beyond a reasonable doubt, (2) the similarity of the extrinsic act and the charged offense, and (3) the closeness or remoteness in time between the extrinsic act and the charged offense.” United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008).
B. The Facts of Jones
With the legal framework in place, we briefly discuss the facts of Jones. The defendant in Jones was charged with eight counts of distribution of cocaine base and one count of possession with intent to distribute cocaine. The government’s evidence was strong. The government had (i) video recordings of the defendant selling drugs to the informant; (ii) testimony from the informant itself; (iii) testimony from the law enforcement officer who worked with the informant; and (iv) the seizure of drugs and money from the defendant’s house.
Nevertheless, the government offered 404(b) evidence at the trial, specifically, the defendant’s twelve-year-old prior conviction for drug dealing.
C. The Eleventh Circuit Suggests Trial Court’s Admission of 404(b) Evidence was Erroneous
Although the Eleventh Circuit didn’t come out and say it—instead, ultimately avoiding the question with a harmless error analysis—it strongly intimated that the trial court had erred in admitting the 404(b) evidence. Specifically, the Eleventh Circuit focused on the “undue prejudice factor” of the 404(b) analysis.
With respect to the “government’s incremental need for the evidence,” the Court found that the government had little need for the unrelated drug conviction. The Eleventh Circuit observed that “[w]hen the government has a strong case without the extrinsic evidence, fairness dictates that the extrinsic evidence should be excluded.” Here, the Court observed, the “government had little incremental need for the evidence” because of the video recordings, seizure evidence, etc.
With respect to the “similarity of the extrinsic act and the charged offense,” the Eleventh Circuit noted that the factual proffer associated with the defendant’s prior conviction “included little information to establish similarity between the prior and charged transactions.”
Finally, with respect to the “closeness or remoteness in time between the extrinsic act and the charged offense,” the Court observed that the prior conviction had occurred a “long time—approximately 12 years—before the charged transactions.”
Nevertheless, the Eleventh Circuit held that, if the trial court had erred in admitted the 404(b) evidence, the error was harmless. On this point, the Court noted the strength of the government’s case—which had actually militated against admitting the 404(b) evidence—as the key consideration in the harmless error analysis.
D. Takeaways
Although the Jones case is unpublished, it is nevertheless notable. It is a relatively rare instance of the Eleventh Circuit second-guessing a trial court’s admission of 404(b) evidence. Although the result ended up being favorable for the government, it serves as a reminder to the government that it should choose its 404(b) evidence carefully. And, for criminal defense lawyers, it again serves as a reminder of the importance of motion in limine practice. Indeed, in a case like Jones, a criminal defense lawyer could use the strength of the government’s case-in-chief to his or her client’s advantage, noting that the government does not need the evidence in question to prove its case.
