Can You Keep Rule 404(b) Evidence Out With a Stipulation?

June 24, 2014
By Hanging Out with Carl Gunn


  • While older Ninth Circuit case law held an offer to stipulate to a fact precluded the government from introducing Rule 404(b) evidence on the fact, later case law held that a stipulation can never prevent the government from introducing Rule 404(b) evidence to prove an element of the offense.
  • The Supreme Court’s later opinion in Old Chief v. United States, 519 U.S. 172 (1997) holds alternative evidence has to be considered in deciding whether to exclude evidence under Rule 403 and that an offered stipulation is one piece of “evidence” that has to be considered in the Rule 403 balancing.
  • An en banc D.C. Circuit opinion filed after remand for reconsideration in light of Old Chief explains that an offered stipulation may justify exclusion of Rule 404(b) evidence under Rule 403 in an appropriate case, and a subsequent Ninth Circuit decision is an example of such a case.


One of the things I’ve always found outrageous is the government’s attempt to introduce evidence of a client’s prior conviction to prove an element of an offense about which there’s absolutely no actual dispute. One common example would be an attempt to introduce a client’s prior bank robbery conviction to prove his intent in a new bank robbery prosecution when everyone knows the defense will be that the client wasn’t the person who took the money.

When I first started as a Deputy Federal Public Defender long ago (yes, those were the good old days – or at least the not so bad days), there were two great cases on Rule 404(b) evidence that we liked to use to prevent this. The first was United States v. Coades, 549 F.2d 1303 (9th Cir. 1977), in which the court held that a defense offer to stipulate to the element or fact that the government was offering the Rule 404(b) evidence to prove made the probative value of the evidence so slight that its probative value “was patently outweighed by the danger of unfair prejudice,” so the evidence became inadmissible under Rule 403. Id. at 1306. Then, in United States v. Powell, 587 F.2d 443 (9th Cir. 1977), the court went one step further and held that “[w]hen a defendant denies participation in the act or acts which constitute the crime, intent is not a material issue for the purpose of applying Rule 404(b).” Id. at 448. Armed with these two cases, we could simply stipulate to the element of intent to keep out the Rule 404(b) evidence, at least on an intent theory. And other stipulations might be offered to counter other theories.

Unfortunately, the Ninth Circuit reversed course in United States v. Hadley, 918 F.2d 848 (9th Cir. 1990). It asserted that the above language from Powell was “nonbinding dicta.” Hadley, 918 F.2d at 852. It then rejected the “dicta” on the ground that “[t]he government must prove every element of a crime beyond a reasonable doubt”; (2) “[t]his burden is not relieved by a defendant’s promise to forego argument on an issue”; and (3) a defendant “cannot preclude the government from proving intent by focusing his defense on other elements of his crime.” Id. at 852. The court did acknowledge Rule 403’s requirement that the probative value of evidence not be substantially outweighed by the danger of unfair prejudice, but found that test satisfied because the Rule 404(b) evidence “was highly probative on the question of intent” and “its prejudicial effect was limited by the instruction given by the district court.” Id. It made no mention of the seemingly contrary holding in Coades.

The Supreme Court subsequently granted a petition for writ of certiorari in Hadley – perhaps because the Second Circuit had taken a directly contrary position in cases like United States v. Figueroa, 618 F.2d 934 (2d Cir. 1980), see id. at 941-42, andUnited States v. Colon, 880 F.2d 650 (2d Cir. 1989), see id. at 660. The Court later dismissed the petition as improvidently granted, however. See Hadley v. United States, 506 U.S. 19 (1992).

This left Ninth Circuit law in a seemingly bad state. But the Supreme Court then decided Old Chief v. United States, 519 U.S. 172 (1997). The actual holding in Old Chief was the narrow, offense-specific holding that the government can be compelled to accept a defense stipulation to the prior felony conviction element in a felon in possession prosecution and be precluded from offering actual evidence of the conviction. The sub-holdings that led to the ultimate holding sweep more broadly, however. On the one hand, the Court held that the basic relevance of evidence under Rule 401 is “[not] affected by the availability of alternative proofs of the element to which it [goes].” Id. at 179. On the other hand, it held that “what counts as the Rule 403 ‘probative value’ of an item of evidence, as distinct from Rule 401 ‘relevance,’ may be calculated by comparing evidentiary alternatives.” Id. at 184. It then pointed to advisory committee notes that “explicitly say that a party’s concession is pertinent to the court’s discretion to exclude evidence on the point conceded,” Old Chief, 519 U.S. at 184 (citing Fed. R. Evid. 401 advisory committee’s note), and “stat[e] that when a court considers ‘whether to exclude on grounds of unfair prejudice,’ the ‘availability of other means of proof may . . . be an appropriate factor,’” Old Chief, 519 U.S. at 184 (quoting Fed. R. Evid. 403 advisory committee’s note). Finally, the Court held that the defendant’s offer to stipulate was “a defendant’s admission[, which] is, of course, good evidence.” Old Chief, 519 U.S. at 186 (citing Fed. R. Evid. 801(d)(2)(A)).

Old Chief’s potential applicability to offers to stipulate on the admissibility of evidence under Rule 404(b) was suggested by the Supreme Court’s action on a then pending petition for writ of certiorari on that issue in United States v. Crowder, 519 U.S. 1087 (1997). Rather than granting the petition in that case and directly deciding the issue, the Court vacated the judgment – which had held that a defense offer to stipulate did require exclusion of Rule 404(b) evidence – and remanded for reconsideration in light of Old Chief. See id. A majority of the en banc court of appeals (of the D.C. Circuit) then reversed its prior holding, though over a vigorous dissent arguing for adherence to the prior holding. The majority read Old Chief (more on the dissent’s reading in a second post next week) as establishing (1) that evidence remains relevant even if the defendant has offered to stipulate to the fact at issue and (2) that “its exclusion must rest not on the ground that the other evidence has rendered it ‘irrelevant’ but on its character as unfairly prejudicial, cumulative or the like, its relevance notwithstanding.” United States v. Crowder, 141 F.3d 1202, 1206 (D.C. Cir. 1998) (en banc) (quoting Old Chief, 519 U.S. at 179). The court then held that several propositions followed for Rule 404(b) evidence: first, if the evidence would be relevant without the defendant’s offer to stipulate, it remains relevant; second, the government can therefore offer it to prove something Rule 404(b) expressly permits; but third – and most helpful for the defense – “compliance with Rule 404(b) does not assure admission of the other crimes evidence.” Id. The court acknowledged Old Chiefstated that “Rule 404(b) guarantees the opportunity to seek [the evidence’s] admission,” Crowder, 141 F.3d at 1206 (quotingOld Chief, 519 U.S. at 190), but held that “[t]he ‘opportunity,’ not the ‘admission,’ is what Rule 404(b) ‘guarantees,’” Crowder, 141 F.3d at 1206. The court concluded by leaving a ray of hope, stating that, while “[t]here can be no ‘mechanical solution,’ no per se rule of the sort [the defendants] advocate [and Coadesand Powell seemed to establish],” “[w]e agree that trial courts may take offers to stipulate into account in making their Rule 403 determinations.” Crowder, 141 F.3d at 1210.

Most other courts of appeals have taken the same view as the majority opinion in Crowder. See, e.g., United States v. Walker, 428 F.3d 1165, 1169 (8th Cir. 2005); United States v. Tan, 254 F.3d 1204, 1213 (10th Cir. 2001); United States v. Williams, 238 F.3d 871, 876 (7th Cir. 2001); United States v. Bilderbeck, 163 F.3d 971, 977-78 (6th Cir. 1999); United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997). (But see the Second Circuit’s contrary view taken in the Figueroa and Colon cases cited above, which still stands, is noted again below, and will be discussed further next week.) Still, Old Chief and even the majorityCrowder opinion suggest a better world than at least a worst case reading of the Ninth Circuit’s Hadley opinion. First, “probative value” under Rule 403 means something different than “relevance” under Rule 401 and requires the comparison of evidentiary alternatives. Second, an offer to stipulate is one type of evidentiary alternative that has to be considered in the comparison. Third, there’s no per se, mechanical rule and an offer to stipulate could require exclusion of Rule 404(b) evidence in an appropriate case.

There’s a post-Old Chief Ninth Circuit case that illustrates this, moreover. In United States v. Merino-Balderrama, 146 F.3d 758 (9th Cir. 1998), the court held it was an abuse of discretion to admit certain child pornography evidence in part because the defendant had offered to stipulate to the two elements it was offered to prove. In a perfect illustration of how Old Chief can be applied to exclude Rule 404(b) evidence, the court explained:

After Merino-Balderrama offered to stipulate that the films were child pornography and had traveled in interstate commerce, his argument for excluding the films became persuasive, for both quantitative and qualitative reasons. Quantitatively, Merino-Balderrama’s offer to stipulate added to the pool of available evidentiary alternatives, at least on the two elements he was willing to concede. See[Old Chief, 519 U.S. at 186] (characterizing a proffered stipulation as “evidence”). (Footnote omitted.) Qualitatively, Merino-Balderrama’s proffered stipulation would have been conclusive on those two elements and therefore could have required the district court to exclude further evidence probative of those elements. See Old Chief, [519 U.S. at 186] (stating that a proffered admission is “not merely relevant but seemingly conclusive evidence of the element”); Advisory Committee’s Notes on Fed. Rule Evid. 401, 29 U.S.C. App., p. 859 (noting that a party’s concession sometimes “call[s] for the exclusion of evidence offered to prove [the] point conceded by the opponent . . .”).

Merino-Balderrama, 146 F.3d at 762 (emphasis in original).

Where does all this leave us? First, even under the majority opinion in Crowder – and Ninth Circuit case law, given Merino-Balderrama – it’s worth offering to stipulate. The offer may sometimes require a court to exclude Rule 404(b) evidence and will often, if not always, give the court discretion to exclude the evidence even if it’s not actually required to exclude it. (For some thoughts on how a court may have discretion to exclude evidence even if it isn’t required to exclude it, see “The Case Law They Cite Is About the Abuse of Discretion, Not the Use of Discretion,” in the March 2013 link at the right.) Second, I’m not sure the issue of Old Chief’s effect is decided in this circuit. We may be able to argue that it’s the Crowder dissent this circuit should follow, and we can certainly argue there’s a split in the circuits that justifies Supreme Court review. More on that next week.