BLOG BULLETS:

• The Ninth Circuit hasn’t yet decided whether to follow theCrowder majority opinion discussed in last week’s post, so you can argue it should follow the dissent in Crowder.
• The Second Circuit still takes the position that an offer to stipulate to the element or fact on which Rule 404(b) evidence is offered creates an absolute bar to admission of the evidence.
• With this split in the circuits and the issue still open in the Ninth Circuit, you should make this argument both to preserve the issue and as leverage for a backup argument that the court should exclude the evidence at least under the discretion given by even the majority opinion inCrowder.

NOW THE BLOG:

In my post last week, I talked about how we can argue that Old Chief v. United States, 519 U.S. 172 (1997) supports an argument for discretionary exclusion of Rule 404(b) evidence when the defendant offers to stipulate even under the reading adopted by the majority opinion in United States v. Crowder, 141 F.3d 1202, 1206 (D.C. Cir. 1998) (en banc) and most other circuits. I left off by suggesting that we may not be limited to that, however. Don’t give up on arguing the minority view taken in the dissenting opinion in Crowder, which was signed onto by 4 of the D.C. Circuit’s 11 judges.

First, the Ninth Circuit hasn’t yet taken a clear position on the effect of Old Chief. No Ninth Circuit case I’ve found even citesCrowder. Neither does any Ninth Circuit case I’ve found independently analyze the effect of Old Chief on this issue. So there’s no controlling Ninth Circuit authority on the question.

Second, at least one other circuit – the Second – adheres to the view that a clear stipulation to the element or fact in question absolutely requires exclusion of the Rule 404(b) evidence being offered. That was the holding of United States v. Mohel, 604 F.2d 748 (2d Cir. 1979) and United States v. Figueroa, 618 F.2d 934 (2d Cir. 1980), see Figueroa, 618 F.2d at 940-41; Mohel, 604 F.2d at 751-52, and it’s reaffirmed in later cases like United States v. Colon, 880 F.2d 650 (2d Cir. 1989), and United States v. Tarricone, 996 F.2d 1414 (2d Cir. 1993), see Tarricone, 996 F.2d at 1421; Colon, 880 F.2d at 660. Those cases were all decided prior to Old Chief, but the Second Circuit hasn’t overruled them and its district courts continue to follow and apply the cases. See, e.g., United States v. Basciano, No. 05-CR-060 (NGG), 2011 WL 114867, at *4-5 (E.D.N.Y. Jan. 12, 2011);United States v. Kassir, No. 04 Cr. 356(JFK), 2009 WL 976821, at *5-6 (S.D.N.Y. April 9, 2009); United States v. Ozsusamlar, 428 F. Supp. 2d 161, 167 (S.D.N.Y. 2006); United States v. Nachamie, 101 F. Supp. 2d 134, 138-39 (S.D.N.Y. 2000); United States v. Frank, 11 F. Supp. 2d 314, 319-20 (S.D.N.Y. 1998).

Third, and finally, the Crowder dissent is a good, solid, persuasive – dare I say, better – reading of Old Chief. First, it makes the point that the court’s pre-Old Chief opinion which held a stipulation does require exclusion of the Rule 404(b) evidence doesn’t depend on whether or not the evidence is “relevant” but on whether the evidence is “admissible.” After quoting Rule 404(b)’s first sentence – that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith,”Crowder, 141 F.3d at 1211 (Tatel, J., dissenting) (quoting Fed. R. Evid. 404(b)) – the dissent noted that this sentence “excludes bad acts evidence not for lack of relevance – to the contrary, bad acts evidence is highly relevant – but because using the evidence causes undue prejudice,” id. at 1212. The dissent then explained:

Abandoning our original en banc decision in Crowder I, the court reaches the result by relying on Old Chief and the unremarkable proposition that propensity evidence remains relevant under Rules 401 and 402 even after a defendant completely removes its non-propensity purposes from the case through concession and agreement to a “must convict” jury instruction. But Crowder I never held that a defendant’s concession renders bad acts evidence irrelevant under Rule 402. Instead, it held that the concession makes the evidence inadmissible under Rule 404(b)’s first sentence. An unambiguous stipulation and jury instruction, Crowder I explained, so thoroughly drains the evidence’s non-propensity value for the prosecution’s case that to admit the evidence would unduly prejudice the jury. As Crowder I put it, “the defendant’s concession of intent and knowledge deprives the evidence of any value other than what Rule 404(b)’s first sentence unambiguously prohibits: ‘to prove the character of a person in order to show action in conformity therewith.’” The evidence remains relevant, just as the excluded evidence in Old Chief remained relevant. But after a defendant has conceded the purpose for which the government seeks to introduce the evidence, that evidence no longer serves any function except to put character evidence before the jury. Rule 404(b)’s first sentence therefore requires exclusion.

Crowder, 141 F.3d at 1213 (citations omitted) (emphasis in original).

The Crowder dissent also made an excellent point regarding the majority’s reliance on a lengthy discussion in Old Chief about how an “evidentiary account of what a defendant has thought and done can accomplish what no abstract statements ever could’”; a concern that “jurors may well wonder what they are being kept from knowing”; how a “syllogism is not a story” and “a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it”; that jurors “who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapters”; and the “need for evidence in all its particularity to satisfy the jurors’ expectations about what proper proof should be.” Crowder, 141 F.3d at 1207 (quoting Old Chief, 519 U.S. at 187-89). The dissent pointed out that these concerns do not apply to Rule 404(b) evidence because “[b]y their very nature, . . . ‘other bad acts’ are separate from, not integral to, ‘the offense . . . being tried.’” Crowder, 141 F.3d at 1214 (quoting Old Chief, 519 U.S. at 192). The dissent then illustrated this point with the “other bad acts” before the court there:

In Davis’s [the second defendant] case, the other bad acts evidence concerned events that took place before the offense with which he was charged. The bad acts in Crowder’s case occurred after his first trial. In neither case, therefore, did the evidence have any place in the government’s narrative about what actually happened on the dates of the alleged crimes for which the defendants were on trial, unless, of course, the government were permitted to argue based on propensity. But Rule 404(b) requires the prosecution to produce some reason other than propensity to connect a defendant’s prior or subsequent acts with the “narrative” of the charged offense. Absent such a connection, excluding the bad acts evidence does not detract from the prosecution’s story in any way, except by forbidding tales of defendants’ bad character. Indeed, Old Chief recognized that the government’s authority to construct its narrative of the charged crime is cabined by Rule 404(b).

Id.

All of this leaves us with at least three reasons to offer our stipulations and argue for exclusion of the government’s Rule 404(b) evidence. First, the Second Circuit cases at the very least create a split in the circuits that makes the possibility of Supreme Court review at some point more likely, so it’s important to preserve the issue. Second, the Crowder dissent’s persuasive reasoning and the lack of any contrary post-Old Chiefauthority in our circuit leave room for the argument that theHadley case I discussed in last week’s post has been undercut byOld Chief and that courts in this circuit should follow the Second Circuit’s cases and the approach taken in the earlier Coades andPowell cases I discussed in last week’s post. Third and finally, as a fallback argument, even if the courts aren’t required to exclude the Rule 404(b) evidence when we offer to stipulate, the offer of a stipulation at least gives them discretion to exclude the evidence. Exercising that discretion to exclude is one way for the court to avoid the more difficult question of whether exclusion is required.

To sum up, don’t let the government get away with prejudicing a jury with Rule 404(b) evidence on an issue that everyone knows isn’t a disputed issue in the case. Tell the judge it’s not a disputed issue, that you’ll agree to whatever stipulation, jury instruction, or other mechanism is needed to make that clear to the jury, and that the government’s claimed permissible theory for offering the evidence is just a cover for its impermissible propensity theory.