See US v. Johnson, 525 F.2d 999 (2d Cir. 1975) (drug abuse relevant to show defendant robbed bank in order to pay off drug contact); US v. Johnson, 538 F.2d 926 (5th Cir. 1976), cert. den. 426 US 951 (1976) (prior felony record admissible to show defendant’s motives in resisting arrest where he was carrying a firearm at time [constituting felon in possession]);
Cantrell v. US, 323 F.2d 613 (D.C. Cir. 1963).
See US v. Partyka, 544 F.2d 345 (8th Cir. 1976) (evidence of marijuana conviction should not be admitted at trial for possession of phencyclidine);
US v. Bloom, 538 F.2d 704 (5th Cir. 1976) (evidence of trafficking in other drugs admissible at trial for possession of heroin with intent to distribute);
US v. Hearst, 563 F.2d 1331 (9th Cir. 1977);
US v. Beechum, 582 F.2d 898 (5th Cir. 1978).
In Beechum, the en banc Fifth Circuit overruled US v. Broadway, 477 F.2d 991 (5th Cir. 1973) holding that where “other crimes” evidence is offered on the issue of intent that there is no longer any requirement that the “physical elements” of the offenses be “identical.” Rather under Rule 404(b), the Fifth Circuit has held there is now a two-step analysis.
The evidence of the “extrinsic offense,” if “relevant” to an issue other than the defendant’s character, and is offered as to the issue of “intent,” then all that need be established is that the “extrinsic offense” requires the same “intent” as the crime charged. The reasoning being that such evidence makes it less likely the defendant engaged in the charged conduct with “lawful intent.”
Applying the balancing test of FED. R. EVID. Rule 403, the probative value is not substantially outweighed by the danger of prejudice. The Beechum court expressly recognizes that the “probative value” would be slight where intent could be established by:
- Other evidence,
- Inferences, or
- Is not contested by the
See US v. Krohn, 560 F.2d 1977 (7th Cir. 1977);
US v. Thompson, 503 F.2d 1096 (5th Cir. 1974);
US v. Goodwin, 492 F.2d 1142, 1153 (5th Cir. 1976) (“when the prosecution seeks to prove design or plan by the doing of similar acts, more is required than the mere similarity that may suffice for showing intent”).
See US v. Quade, 563 F.2d 375 (8th Cir. 1977);
US v. Brown, 562 F.2d 1144 (9th Cir. 1977) (holding even as to dismissed counts of indictment);
US v. Wilson, 536 F.2d 883 (9th Cir. 1976), cert. denied, 429 US 982 (defendant’s denial of familiarity with cohort’s disposition to commit crime makes relevant evidence of his knowledge of their criminal past [e.g. previous prison sentences]).
See US v. Park, 525 F.2d 1279 (5th Cir. 1976) (crime too dissimilar as identity exception is narrow);
US v. Silva, 580 F.2d 144 (5th Cir. 1978) (reversible error to admit drug negotiations after sale in which defendant was charged, since defendant’s sole defense was mistaken identity, intent was not a material issue, and the “other crime” was not so distinctive that it would be relevant to identify as the handiwork of the defendant).
See US v. Alonzo, 571 F.2d 1384 (evidence of flight may be insufficient without more to support a conviction, same is still relevant to guilt);
US v. Thunder, 604 F.2d 550 (8th Cir. 1979).
REBUT A DEFENSE THEORY
See US v. Cook, 538 F.2d 100 (3d Cir. 1976) (reversible error to admit sodomy conviction at armed robbery trial where defense counsel on cross of arresting officer merely elicited testimony that possession of firearm was not illegal);
US v. Riqgins, 539 F.2d 719 (9th Cir. 1976);
Lovely v. US, 169 F.2d 386 (4th Cir. 1948) (in rape prosecution where consent is at issue, similar extraneous offense committed by defendant against another woman without her consent is not admissible on that issue);
Jones v. Dugger, No. 87-5363 (11th Cir. March 14, 1988) (unpublished decision) (holding defendant’s Fifth Amendment privilege not violated where policeman who subjected defendant to improper interrogation testified as to defendant’s demeanor during the same to rebut defendant’s insanity claim, since officer did not testify to the substance of the statement).
See US v. Biggins, 511 F.2d 64 (5th Cir. 1977);
US v. Daniels, 572 F.2d 335 (5th Cir. 1978) (while evidence of “subsequent acts” may have some relevancy to predisposition, Rule 403’s balancing test applied to hold same inadmissible);
US v. Boyd, 595 F.2d 120 (2nd Cir. 1978) (subsequent acts not admissible to show pre- disposition);
US v. Bramble, 641 F.2d 681 (9th Cir. 1981) (prior possession of marijuana plants not relevant to show predisposition to sell cocaine).
ORDER OF PROOF
See US v. Juarez, 561 F.2d 65 (7th Cir. 1977) (knowledge and interest are always material issues in narcotics prosecutions [especially where defense made no effort to defend same] no error in allowing government to introduce evidence of prior sales during case-in-chief).
US v. Halper, 590 F.2d 422 (2d Cir. 1978) (introduction of such evidence should normally await the conclusion of the defendant’s case and not be offered during government’s case- in-chief).
See US v. Roberts, 619 F.2d 379, 383 n.2 (5th Cir. 1980) (the defendant may “affirmatively take issue of intent [identity or other issues] out of case” by making an appropriate stipulation “to avoid the introduction of extrinsic offense evidence”);
US v. Mobel, 604 F.2d 748 (2nd Cir. 1979);
US v. King, 616 F.2d 1034, cert. denied, 446 US 969 (8th Cir. 1980).
See also Marshall v. Lonberger, 103 S. Ct. 843 (1983) (concurring and dissenting opinions).
But see US v. Marino, 617 F.2d 761, cert. denied, 449 US 1015 (5th Cir. 1980);
DISCOVERY OF EXTRANEOUS OFFENSES
Where trial court has ordered Government to advise defense of any “other crimes” evidence upon which it intended to rely, at least one court has held it to be reversible error to offer an extraneous offense where no such pretrial notice was given. US v. Scanland, 495 F.2d 1104 (5th Cir. 1984).