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Where the evidence offered at trial fails to make “any fact material to the indictment ‘more or less probable than it would be without the evidence,'” same is not relevant, and thus, inadmissible over objection. U.S. v. Ferreira, 821 F.2d 1, 6 (1st Cir. 1987) [quoting FED. R. EVID. 401, and holding fact that defendant possessed two loaded guns at time of arrest is irrelevant where charge was for unarmed bank robbery].



Even if evidence is relevant or would be relevant under some other provision of the rules, it may be excluded where the trial court determines its probative value is “substantially outweighed” by the danger of unfair prejudice, confusion of the issues, misleading the jury or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.

See                  U.S. v. Reynolds, 268 F.3d 572 (8th Cir. 2001)[fact that government witness had syringes in car when arrested was only marginally relevant to show motive or to impeach credibility and was unfairly prejudicial to the prosecution];

U.S. v. Kasouris, 474 F.2d 689 (5th Cir. 1973) [evidence of prior extortion attempt had greater prejudicial effect than probative value];

U.S. v. Jones, 570 F.2d 765 (8th Cir. 1978) [evidence against physician of some

478 other prescriptions without any limiting instruction or proof of doctor’s treatment of patients in those instances was prejudicial]; U.S. v. Stirling, 571 F.2d 708 (2d Cir.), cert. denied, 439 U.S. 824 (1978) [the impact of judges as witnesses, especially in testifying as to “normalcy” of certain practices];

U.S. v. Lyles, 593 F.2d 182 (2d Cir.), cert. denied, 440 U.S. 972 (1979) [evidence of second drug transaction inadmissible through tape recordings of co-conspirator and third party];

U.S. v. Aims Back, 588 F.2d 1283 (9th Cir. 1979) [evidence of subsequent rape of witness inadmissible, especially without a specific limiting instruction];

U.S. v. Dolliole, 597 F.2d 102 (7th Cir.), cert. denied, 442 U.S. 946 (1979) [reliability of “prior crimes” evidence and government’s “need” for such evidence are factors to be weighed];

U.S. v. Hendrix, 549 F.2d 1225 (9th Cir. 1977);

U.S. v. Robinson, 560 F.2d 507 (2d Cir.), cert. denied, 435 U.S. 905 (1978) [firearm not shown to jury even though testimony regarding same admitted];

U.S. v. Williams, 561 F.2d 859 (D.C. Cir. 1977) [error to admit testimony that money stolen from bank was found in apartment shared by defendant’s sister];

U.S. v. Turquitt, 557 F.2d 464 (5th Cir. 1977) [error to admit for purposes of handwriting exemplar a lease signed by defendant under a false name];

U.S. v. Green, 548 F.2d 1261 (6th Cir. 1977) [error to admit physical effects of usage of controlled substance];

U.S. v. Benveniste, 564 F.2d 335 (9th Cir. 1977) [government allowed expert testimony regarding predisposition while defendant precluded opportunity to call his psychiatrist to testify defendant not predisposed, for fear same would confuse the jury].

The trial court must perform its “balancing” analysis and state it’s reasoning on the record.

U.S. v. Long, 574 F.2d 761 (3d Cir. 1976). For example, evidence that an informant’s testimony had lead to over 100 other convictions was too prejudicial to admit in evidence. Moreover, its unfairly prejudicial effect far outweighed its probative value, under Rule 403, as to render it inadmissible for purposes of rebutting the defense of entrapment. Certainly, the evidence was relevant. Because the informant had been believed by a large number of other jurors, this made the defendant’s claim he had been entrapped less likely. Nevertheless, under the balancing test contained in Rule 403 the admission of the evidence was plain error, given its unfairly prejudicial nature. U.S. v. Sorando, 845 F.2d 945 (11th Cir. 1988). See also U.S. v. Cosentino, 844 F.2d 30 (2d Cir. 1988)[a written cooperation agreement, extrinsic evidence, was held inadmissible for the “other purpose” of rehabilitation of a witness whose credibility was attacked during the opening statement].



Character Evidence Generally.

 Evidence of a person’s character or a particular character trait is not admissible to prove that person acted in conformity therewith on a particular occasion, except:

 Character of Accused [FED. R. EVID. Rule 404(a)(1)].

 Evidence of a particular trait of an accused:

Offered by Accused.

U.S. v. Jackson, 588 F.2d 1046 (5th Cir.), cert. denied, 442 U.S. 941 (1979) [stating that truthfulness must be at issue];

U.S. v. Davis, 546 F.2d 583 (5th Cir.), cert. denied, 431 U.S. 906 (1977)[the defendant charged with escape not entitled to show sound record at penitentiary];

U.S. v. Sullivan, 803 F.2d 87 (C.A. Pa. 1986) [directing defendant to call nonjudicial character witnesses first, then excluding character testimony of ten judges did not deny defendant due process].

Offered by Prosecution to Rebut Same.

 U.S. v. Wiley, 534 F.2d 659 (6th Cir.), cert. denied, 425 U.S. 995 (1976) [prosecution cannot put in evidence of bad character unless defendant first puts on good character evidence — and even then, evidence of specific instances is inadmissible];

U.S. v. Corey, 566 F.2d 429 (2d Cir. 1977);

U.S. v. Giese, 597 F.2d 1170 (9th Cir. 1979) [portions of revolutionary treatise named and read by defendant];

U.S. v. Gilliland, 586 F.2d 1384 (10th Cir. 1978) [prosecution cannot put on bad character testimony through defense fact witnesses who do not testify as to character];

U.S. v. Yarns, 811 F.2d 454 (8th Cir. 1987)[evidence that defendant was a “good liar” admissible as both an admission by party opponent and as relevant to defendant’s veracity].

Character of Victim [FED. R. EVID. Rule 404(a)(2)]

 Evidence of a pertinent character trait of the victim of the crime offered by an accused or by the prosecution to rebut same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide prosecution to rebut evidence the victim was the first aggressor. U.S. v. Kelley, 545 F.2d 619 (8th Cir.), cert. denied, 430 U.S. 933 (1977); Government of Virgin Islands v. Solis, 475 F. Supp. 542 (D.Vir.Is. 1979).

Character of Witness [FED. R. EVID. Rule 404(a)(3)]

 Evidence of the character of a witness may be proved where admissible pursuant to Federal Rule of Evidence Rule 607, 608 and 609.


Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation plan, knowledge, identity or absence of mistake or accident. Even if an extraneous offense fits within Rule 404(b)’s exception it may be excluded as any other relevant evidence might be, where the trial court determines that unfair prejudice from such evidence substantially outweighs its probative value under Federal Rule of Evidence 403. U.S. v. Santisteban, 833 F.2d 513 (5th Cir. 1987);U.S. v. Fortenberry, 860 F.2d 628 (5th Cir. 1988)[The government’s inability to articulate the probative value of the evidence, as well as the weakness of the evidence linking Fortenberry to the extrinsic offenses, warrants the conclusion that the primary impact of the evidence on the proceedings was to increase the prejudice against Fortenberry].


U.S. v. Johnson, 525 F.2d 999 (2d Cir.), cert. denied, 424 U.S. 920 (1976) [drug abuse relevant to show defendant robbed bank in order to pay off drug contact];

U.S. v. Johnson, 528 F.2d 926 (5th Cir.), cert. denied, 426 U.S. 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. U.S., 323 F.2d 613 (D.C. Cir. 1963).

Although evidence of a defendant’s financial condition may be admitted to show motive in a prosecution for crimes such as larceny or embezzlement, a trial court should be extremely cautious in admitting such evidence. The government must have more than a mere conjecture that impecuniosities was a motive, lest a poor defendant be subject to greater suspicion of having committed a crime, even a theft offense, because of the very fact of his poverty. Accordingly, the district court in an embezzlement prosecution remanded for a new trial instructing the court to consider with care whether to admit into evidence the details of defendant’s financial condition.

U.S. v. Zipkin, 729 F.2d 384 (6th Cir. 1984).

Note, another example of weighing unfair prejudice with probative value. U.S. v. Simon, 839 F.2d 1461 (11th Cir. 1988).

“[The defendants]… maintain that the district court committed reversible error in admitting testimony that each [defendant] worked at [an oil and gas company]. This testimony contains evidence suggesting that some of the [defendants] were instrumental in accomplishing a fraud on the customers of the former companies. The government however, did not argue that [these defendants] had the requisite intent to characterize their actions [at the oil company] as criminal. The government claims it sought to introduce evidence of the [defendants’] ‘prior acts,’ i.e. their mere participation, however innocent [sic], in the scheme at U.S. Oil.”

“Before a district court can admit evidence of [a defendants’] prior acts, the prosecution must convince the court that 1) there was a proper purpose for introducing the evidence, 2) the [defendants] actually did the prior acts and [sic],

3) the probative value of introducing the evidence outweighs any prejudicial effect the evidence might have. The propriety of the lower court in admitting this evidence turns on the purpose for which the ‘prior acts’ were introduced. The appellants contend that the government introduced their participation in the US Oil scheme simply to show that they ‘acted in conformity therewith’ at Alaska Oil. Rule 404(b) of the Federal Rules of Evidence makes clear that a court cannot admit evidence of a prior act to show that the defendant acted similarly. The government, on the other hand, contends that the prior act evidence introduced at trial merely showed that the appellants knew of the government investigation of U.S. Oil and of the indictment of several employees at the company. Thus, the government argues, the Court properly admitted evidence of the [defendants’] prior acts to help establish the present crime. Evidence that the [defendants] knew of the government’s investigation and subsequent indictment of employees for fraud at U.S. Oil is certainly relevant since the evidence helps to determine whether appellants had the requisite intent to defraud in the instant case.” U.S. v. Simon, 839 F.2d 1461 (11th Cir. 1988) [emphasis added/citations omitted].

Therein, lies the danger created by Huddleston regardless of remaining safeguards. A more practical and honest approach is suggested by the Court of Appeals for the District of Columbia. Thompson v. U.S., 546 A.2d 414, (D.C.App.1988). The court found that an examination of four issues regarding the admissibility of ‘prior acts’ to show intent, as opposed to propensity to act in conformity therewith, “is helpful in resolving whether other crimes should be admitted.”

“These issues are:

  • whether, and to what degree, intent as an issue  can be  distinguished from predisposition to commit the crime;
  • whether intent is a genuine, material and important issue, rather than a merely formal one;
  • whether the trial judge made his decision whether or not to admit that evidence at an appropriate time, when information as to all pertinent factors was available, and
  • whether the trial judge’s instructions to the jury could and did resolve any issue of “


U.S. v. Gonzalez-Lira, 936 F.2d 184 (5th Cir. 1991) [holding that evidence of prior marijuana smuggling attempt involving tractor trailer owned by defendant was admissible in prosecution for possession of marijuana with intent to distribute to show that defendant knew that marijuana was smuggled across the border in tractor trailer rigs, and that it had previously been smuggled in his own tractor trailer];

U.S. v. Namer, 835 F.2d 684 (5th Cir. 1988) [although improper, prosecutor’s references to the defendant’s acquittal for other incidents as evidence of intent was harmless error];

U.S. v. Bloom, 538 F.2d 704 (5th Cir.), cert. denied, 429 U.S. 1074 (1977) [evidence of trafficking in other drugs admissible at trial for possession of heroin with intent to distribute];

U.S. v. Hearst, 563 F.2d 1331 (9th Cir.), cert. denied, 435 U.S. 1000 (1978);

U.S. v. Beechum, 582 F.2d 898 (5th Cir.), cert. denied, 440 U.S. 920 (1979).

In Beechum, the en banc Fifth Circuit overruled U.S. v. Broadway, 477 F.2d 991 (5th Cir. 1973), holding that where “other crimes” evidence is offered on the issue of intent, 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, requiring that:


The evidence of the “extrinsic offense”, is “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”.

For example, in a prosecution for conspiracy to possess cocaine with intent to distribute, the district court erred by admitting defendant’s statement that he had once flown a DC-3 airplane to Colombia and back, since there was nothing to indicate that defendant’s intent in making the trip to Colombia was the same as his intent in committing the charged offense. Extrinsic act evidence is relevant to a defendant’s intent to commit the charged crime only if the extrinsic act and the charged offense require the same intent. U.S. v. Chilcote, 724 F.2d 1498 (11th Cir. 1984).

Balancing Test.

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,
  • stipulations,
  • inferences, or
  • is not contested by the

Moreover, the government must prove that the defendant committed the “other crimes” by a preponderance of the evidence. See U.S. v. Huddleston, 811 F.2d 974 (6th Cir. 1987) [the court reasoned that use of the “clear and convincing evidence” standard was too stringent in this context].


 U.S. v. Thompson, 503 F.2d 1096 (5th Cir. 1974).

Cf.                   U.S. 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”];

Ali v. U.S., 520 A.2d 306 (D.C. App. 1987) [in prosecution for sex offense, evidence that defendant abused complainant’s younger sister is inadmissible to prove common acts of misconduct are not inherently relevant to a common scheme or plan];

U.S. v. Everett, 825 F.2d 658, 660 (2d Cir. 1987) [bank teller’s testimony satisfied the requirement that corroboration is “direct and the matter corroborated is significant].


See                  U.S. v. Quade, 563 F.2d 375 (8th Cir. 1977);

U.S. v. Brown, 562 F.2d 1144 (9th Cir. 1977)[even as to dismissed counts of indictment];

U.S. v. Wilson, 536 F.2d 883 (9th Cir. 1976), cert. denied, 429 U.S. 982 [defendant’s denial of familiarity with cohort’s disposition to commit crime makes relevant evidence of his knowledge of their criminal past [eq. previous prison sentences]];

U.S. v. Neary, 733 F.2d 210 (2d Cir. 1984)[in prosecution of restaurant owner charged with committing arson in order to collect his insurance proceeds, the Second Circuit held that the trial court committed reversible error in admitting evidence of three prior fines on defendant’s property where he received insurance money as a result without any other evidence of wrongdoing [Trial Court’s ruling was held to be in contravention of Rule 403]].


See                  U.S. v. Park, 525 F.2d 1279 (5th Cir. 1976)[crime was too dissimilar to admit as proof of identity as identity exception is narrow];

U.S. 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 identity as the handiwork of defendant].

Absence of Mistake or Accident.

See                  U.S. v. Hogue, 827 F.2d 660 (10th Cir. 1987) [evidence of defendant’s dissimilar prior violent conduct toward another victim only goes to prove acts that are in conformity therewith and as such are inadmissible to prove absence of mistake or accident].

See also           U.S. v. Beasley, 809 F.2d 1273 (7th Cir. 1987) [in prosecution for possession with intent to distribute dilaudid, evidence tending to show that the defendant dealt in the kinds of drugs from the same source was inadmissible to show a “pattern” because mere temporal similarities were insufficient to show “identity, intent, plan, absence of mistake or one of the other listed grounds”];


See                  U.S. v. Alonzo, 571 F.2d 1384 (5th Cir. 1978)[while evidence of flight may be insufficient without more to support a conviction, same is still relevant to guilt];

U.S. v. Thunder, 604 F.2d 550 (8th Cir. 1979);

U.S. v. Tille, 729 F.2d 615 (9th Cir. 1984) [attempted flight at the time of arrest was admissible to permit an inference of knowledge].

Rebut a Defensive Theory.

See                  U.S. v. Cook, 538 F.2d 1000 (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];

U.S. v. Riggins, 539 F.2d 682 (9th Cir. 1976);

Lovely v. U.S., 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];


See U.S. v. Boyd, 595 F.2d 120 (2d Cir. 1978) [subsequent acts not admissible to show predisposition];

U.S. v. Bramble, 641 F.2d 681 (9th Cir. 1981) [prior possession of marijuana plants not relevant to show predisposition to sell cocaine]; U.S. v. Mejias, 552 F.2d 435 (9th Cir. 1984) [in prosecution for conspiracy to possess cocaine the court ruled that an unsolicited request to sell marijuana had a direct bearing upon defendants predisposition and intent to sell cocaine. The fact that the marijuana evidence arose from the same transaction as the charged crime added to its probative value and lessened its prejudicial effect].

See also           U.S. v. Cosentino, 844 F.2d 30 (2d Cir. 1988) [extended use of extrinsic evidence, prohibited under rule 608(b); in the form of a written cooperation agreement held admissible for the “other purpose” of rehabilitation offered during direct examination in response to an attack on credibility in the opening statement];

U.S. v. Beasley, 809 F.2d 1273 (7th Cir. 1987) [in prosecution for possession with intent to distribute dilaudid, evidence tending to show that defendant dealt in other kinds of drugs prescribed by the same doctor was inadmissible to show a “pattern because mere temporal similarities were insufficient to show “identity, intent, plan, absence of mistake or one of the other listed grounds];

U.S. v. Gomez, 810 F.2d 947 (10th Cir. 1987)[conduct related to the conduct charged in the superseding indictment is inadmissible as “other crimes” evidence under 404(b)].

Order of Proof.

See    U.S. v. Juarez, 561 F.2d 65 (7th Cir. 1977) [knowledge and intent are always material issues in narcotics prosecutions [especially where defense made no effort to preclude same] no error in allowing government to introduce evidence of prior sales during case-in-chief];

U.S. 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].

Removing Issue.

See                  U.S. 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”];

U.S. v. Mobel, 604 F.2d 748 (2d Cir. 1979);

U.S. v. King, 616 F.2d 1034, cert. denied, 446 U.S. 969 (8th Cir. 1980).


Rule 404(b) includes a requirement that the prosecution, upon request of the defendant, provide “reasonable notice in advance of trial” of its intent to use 404(b) evidence in its case-in- chief. It is therefore important for defense attorneys to file such a request as a standard part of pretrial motions or discovery letters, as early as possible in the case. It should also be noted that this provision is not reciprocal. Thus, if the defense intends to introduce evidence of the “other crimes, wrongs, or acts” of a government witness or the agents involved in the case, notice of same need not be provided to the prosecution even upon timely request.

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