MICHELSON vs US
presence of the jury, if Michelson was arrested for receiving stolen
FACTS:
In 1947 Michelson was convicted of bribing a federal revenue
agent. The Government proved a large payment by accused to the
agent for the purpose of influencing his official action. The defendant,
as a witness on his own behalf, admitted passing the money but
claimed it was done in response to the agent's demands,
threats, solicitations, and inducements that amounted to
entrapment. It is enough for our purposes to say that determination
of the issue turned on whether the jury should believe the agent or
the accused.
On direct examination of defendant, his own counsel brought out
that, in 1927, he had been convicted of a misdemeanor having to do
with trading in counterfeit watch dials.
On cross-examination it appeared that in 1930, in executing an
application for a license to deal in second-hand jewelry, he answered
'No' to the question whether he had theretofore been arrested or
summoned for any offense.
Defendant called five witnesses to prove that he enjoyed a good
reputation. Two of them testified that their acquaintance with him
extended over a period of about thirty years and the others said they
had known him at least half that long.
Witnesses claim that they never had heard anything against
Michelson.
On cross-examination, four of the witnesses were asked, in
substance, this question: 'Did you ever hear that Mr. Michelson on
March 4, 1927, was convicted of a violation of the trademark law in
New York City in regard to watches?' This referred to the twenty-
year-old conviction about which defendant himself had testified on
direct examination. Two of them had heard of it and two had not.
To four of these witnesses the prosecution also addressed the
question if they heard that Michelson was arrested for stolen goods
which the witnesses did not know of. Defendant objected to the
question which the court thereafter ruled that the allowance of which
is claimed to be reversible error:
TRIAL COURT asked the counsel for the prosecution, out of
goods. Counsel replied that it was, and to support his good faith
exhibited a paper record which defendant's counsel did not
challenge. The judge also on three occasions warned the jury, in
terms that are not criticized, of the limited purpose for which this
evidence was received.
COURT of APPEALS held that it was permissible. The opinion,
however, points out that the practice has been severely criticized
which was aimed at common-law doctrine on the whole subject
of proof of reputation or character. It would not be possible to
appraise the usefulness and propriety of this cross-examination
without consideration of the unique practice concerning character
testimony, of which such cross-examination is a minor part.
ISSUE:
WON the prosecution has the right to cross-examine the character
witnesses og the defendant Michelson.
HELD:
YES. JUDGMENT is AFFIRMED.
GENERAL RULE is that the prosecution may NOT resort to any kind
of evidence of the defendant’s negative or evil character, disposition,
and reputation to establish the required proof of his guilt. (COMMON-
LAW TRADITION: Courts almost unanimously have come to
disallow resort by the prosecution to any kind of evidence of a
defendant's evil character to establish a probability of his guilt. )
HOWEVER, the prosecution may cross-examine the defendant’s
character witnesses as to the contents and etent of the hearsay
where they base their conclusions WHEN the defendant puts his
reputation to issue. The right to inquire into the reputation or
character of the defendant is denied to the State but is available to
the defendant because character is relevant in resolving
probabilities of guilt. He may introduce affirmative testimony that
the general estimate of his character is so favorable that the jury may
infer that he would not be likely to commit the offense charged. This
privilege is sometimes valuable to a defendant for this Court has held
that such testimony alone, in some circumstances, may be enough
to raise a reasonable doubt of guilt and that in the federal
courts a jury in a proper case should be so instructed.
(Edgington v. United States, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed.
467.)
When the defendant elects to initiate a character inquiry, not only is
he permitted to call witnesses to testify from hearsay, but indeed
such a witness is not allowed to base his testimony on anything but
hearsay.
‘CHARACTER EVIDENCE’ is only such when 'character' is
employed as a synonym for 'reputation.'
 The witness may not testify about defendant's specific acts
or courses of conduct or his possession of a particular
disposition or of benign mental and moral traits; nor can he
testify that his own acquaintance, observation, and
knowledge of defendant leads to his own independent
opinion that defendant possesses a good general or specific
character, inconsistent with commission of acts charged.
 The witness is, however, allowed to summarize what he has
heard in the community, although much of it may have been
said by persons less qualified to judge than himself. The
evidence which the law permits is not as to the personality of
defendant but only as to the shadow his daily life has cast in
his neighborhood. This has been well described in a different
connection as 'the slow growth of months and years, the
resultant picture of forgotten incidents, passing events,
habitual and daily conduct, presumably honest because
disinterested, and safer to be trusted because prone to
suspect. It is for that reason that such general repute is
permitted to be proven. (Finch J., in Badger v. Badger, 88
N.Y. 546, 552, 42 Am.Rep. 263.)
Reputation hearsay into the 'brief phrase of a verdict' is one of the
few instances in which conclusions are accepted from a witness
on a subject in which he is not an expert. PROVIDED:
 witness must qualify to give an opinion by showing such
acquaintance with the defendant, the community in which he
has lived and the circles in which he has moved, as to speak
with authority of the terms in which generally he is regarded.
To require affirmative knowledge of the reputation may seem
inconsistent with the latitude given to the witness to testify
when all he can say of the reputation is that he has 'heard
nothing against defendant.'
 If no ill is reported of one, his reputation must be good. But
this answer is accepted only from a witness whose
knowledge of defendant's habitat and surroundings is
intimate enough so that his failure to hear of any relevant ill
repute is an assurance that no ugly rumors were about.
While the law gives defendant the option to show as a fact that his
reputation reflects a life and habit incompatible with commission of
the offense charged, it subjects his proof to tests of credibility
designed to prevent him from profiting by a mere parade of
partisans. In calling friends to vouch for defendant's good character,
and its counterpart—calling the rivals and enemies of a witness to
impeach him by testifying that his reputation for veracity was so bad
that he was unworthy of belief on his oath were favorite and frequent
ways of converting an individual litigation into a community contest
and a trial into a spectacle.
Courts of last resort have sought to overcome danger that the true
issues will be obscured and confused by investing the trial court with
discretion to limit the number of such witnesses and to control cross-
examination.
Wide discretion is accompanied by heavy responsibility on trial
courts to protect the practice from any misuse. The question
permitted by the trial court, however, involves several features. The
questions pertaining to arrest is valid as opposed to conviction; and
for an offence not closely similar to the one on trial; and concerned
about a past occurence. What is allowed is to ascertain the general
talk of the people about the defendant; that is questions of “Have you
heard” has a general approval as opposed to “Do you know”.
IN THIS CASE the crime inquired about was receiving stolen goods;
the trial was for bribery. The Court of Appeals thought this
dissimilarity of offenses too great to sustain the inquiry in logic,
though conceding that it is authorized by preponderance of authority.
It asks us to substitute the Illinois rule which allows inquiry about
arrest, but only for very closely similar if not identical charges.
The good character which the defendant had sought to establish was
broader than the crime charged and included the traits of 'honesty
and truthfulness' and 'being a law-abiding citizen.' Possession of
these characteristics would seem as incompatible with offering a
bribe to a revenue agent as with receiving stolen goods. The crimes
may be unlike, but both alike proceed from the same defects of
character which the witnesses said this defendant was reputed not to
exhibit. It is not only by comparison with the crime on trial but by
comparison with the reputation asserted that a court may judge
whether the prior arrest should be made subject of inquiry. By this
test the inquiry was permissible.
It was proper cross-examination because reports of his arrest for
receiving stolen goods, if admitted, would tend to weaken the
assertion that he was known as an honest and law-abiding citizen.
The cross-examination may take in as much ground as the testimony
it is designed to verify. To hold otherwise would give defendant the
benefit of testimony that he was honest and law-abiding in reputation
when such might not be the fact; the refutation was founded on
convictions equally persuasive though not for crimes exactly
repeated in the present charge.
The inquiry here concerned an arrest twenty-seven years before the
trial. Events a generation old are likely to be lived down and dropped
from the present thought and talk of the community and to be absent
from the knowledge of younger or more recent acquaintances. The
court in its discretion may well exclude inquiry about rumors of an
event so remote, unless recent misconduct revived them. But two of
these witnesses dated their acquaintance with defendant as
commencing thirty years before the trial. Defendant, on direct
examination, voluntarily called attention to his conviction twenty
years before. While the jury might conclude that a matter so old and
indecisive as a 1920 arrest would shed little light on the present
reputation and hence propensities of the defendant, we cannot say
that, in the context of this evidence and in the absence of objection
on this specific ground, its admission was an abuse of discretion.
UNITED STATES of America, Plaintiff-Appellee, v. Arthur Thomas NIXON,
David L. Snoddy and Donald E. Gilbreth,
FACTS: David Paige, a DEA agent posing as a drug dealer, used three
confidential informants; James McMillan, Donald Smith, and James
Marshall, to garner information about illicit drug dealing activity by the
three defendants; Donald Gilbreth, David Snoddy, and Arthur Tommy
Nixon. Defendants Gilbreth and Snoddy were introduced to Donald Smith
and James McMillan, two of the CIs, in the late summer of 1983. The CIs
led the defendants to DEA agents posing as big-time drug smugglers.
Several meetings between the defendants and the undercover agents
occurred. Paige and another agent, met with defendants Snoddy, Gilbreth,
and Nixon on November 21, 1983, in Hammond, Louisiana, to further
discuss the transaction. Several arrangements were made that day. The
down payment for the 42,000 pounds of marijuana was set at $200,000
but the condominiums in Destin, Florida would be part of the deal.
Defendants Snoddy, Gilbreth, and Nixon had also indicated that they
wanted to see the marijuana before buying it. After inspecting the weed,
defendants Snoddy and Gilbreth signed a document transferring
ownership of the condominiums in Destin, Florida to Agent Paige.
Defendant Nixon was responsible for sending an eighteen-wheel tractor
trailer to pick up the marijuana and transport it to a farm in Corinth,
Mississippi for safekeeping. The parties agreed that one of Paige's
associates would stay at the farm in Corinth to protect Paige's investment.
On November 27, 1983, upon his arrival at Hammond, Louisiana, Nixon
told Agents Paige and Ruggerio that two truck drivers and a truck were
waiting nearby at the Hammond Holiday Inn to load the marijuana. The
number of the room the drivers were in would be etched in the dirt on the
truck door. When he was arrested, Nixon was carrying $50,000 cash and
the deeds to two farms he owned in Alabama and Tennessee. Agent
Ruggerio proceeded to the Holiday Inn where he found the truck described
by Nixon. The truck drivers were arrested as they left their hotel room to
go to the farm. Defendants Snoddy and Gilbreth, who were not present in
Hammond, Louisiana, at the time, were arrested later. The defendants
were charged with conspiring to commit an offense against the United
States, traveling in interstate commerce in aid of an unlawful enterprise,
aiding a principal in the commission of an offense, attempted possession of
a controlled substance, And using a communication facility in the
commission of a felony.
On the ninth day of trial defendants Gilbreth and Snoddy put on three
character witnesses who had business dealings with these two defendants.
Two of the witnesses, Scott Ray and William Phipps, bank officers at the
Bank of Lexington and the Southern Bank of Lauderdale County
respectively, knew defendants Snoddy and Gilbreth because of certain
loans taken out by them through each of the banks. The third witness,
Roger Pettus, was in the automobile business but also had overlapping
business interests with defendants Snoddy and Gilbreth. One of defendant
Gilbreth's businesses was the leasing of a customized bus to traveling
music stars. The purchase of one particular bus was financed by a purchase
money loan from the Bank of Lexington. Scott Ray, an officer of the bank,
knew that the bus served as collateral for the loan but he did not know any
specifics about the bus. William Phipps and Roger Pettus knew that one of
Gilbreth's businesses was the leasing of this bus to music stars but knew
little else about it.
On cross-examination of Scott Ray, the prosecuting attorney asked the
witness whether he knew if the bus was "used to transport large quantities
of cocaine." Defense counsel reacted by questioning the government's
good faith basis for suggesting that fact to the jury. The government
intimated that it had a basis in fact for asking the question and that it
would provide it to the court. At a post-verdict bond hearing for the
defendants, the government produced two pictures that had been seized
by Alabama law enforcement officers at the home of defendant Snoddy's
brother pursuant to a search warrant for marijuana unrelated to the
charges made in this case. The pictures depicted several persons inside
some kind of vehicle handling what appeared to be cocaine. Defense
counsel placed the U.S. Attorney on the stand to elicit testimony about her
good faith basis for having asked questions about the transportation of
cocaine on a bus owned by defendant Gilbreth. At this hearing it
developed that the pictures the prosecuting attorney relied on as a good
faith basis had apparently been taken before Gilbreth had ever owned the
bus. It turned out that the pictures had not been taken inside a bus, rather
they apparently had been taken inside a converted railway car located
outside the Chattanooga Choo Choo Hilton in Chattanooga, Tennessee and
rented out as lodging by the hotel. The U.S. Attorney also testified,
however, that she had relied on hearsay statements by certain Alabama
police officers familiar with the defendants to the effect that defendant
Snoddy had transported cocaine on busses that were leased out to music
celebrities.
ISSUE: Whether or not the prosecutor lacked a good faith basis for asking
three defense character witnesses whether they knew that defendants
Snoddy and Gilbreth transported cocaine on a bus owned by them
HELD: The government had a good faith basis for asking the questions.
We will not launch into a discourse on the practical and theoretical
underpinnings of the law of evidence that allows a prosecuting attorney to
probe a defense character witness's familiarity with the defendant by
asking questions about purported prior bad acts of the defendant. We
note only that the potential for abuse here, by wafting before the jury "did
you know?" type questions that have no basis in fact but which can be fatal
to the defendant, has led to the imposition of two safeguards that should
be complied with before such questions may be asked in the presence of a
jury. First, the alleged bad act must have a basis in fact and second, the
incidents inquired about must be relevant to the character traits at issue
in the trial. That does not mean that the basis in fact must be proved as a
fact before a good faith inquiry can be made. The government should have
laid a foundation out of the presence of the jury before asking these
questions, to give the judge an opportunity to rule on the propriety of
asking them. Defense counsel attempts to make much of the fact that the
prosecuting attorney erred in her evaluation of the pictures. Nonetheless,
after hearing argument and evidence from both parties the district court
found that the government had a good faith basis for asking the
questions. The court further found that even if the questions based on the
photographs should not have been asked, there was sufficient
independent evidence of guilt to support the jury verdict and the error, if
any, did not have a substantial adverse impact on the jury's verdict. We see
no reason to disturb this finding.
Character of Accused and Victim
UNITED STATES of America, v. David Lee JACKSON.
No. 06-41680. November 17, 2008
David Jackson was sentenced to death for murder. He appeals,
arguing that (1) the court incorrectly excluded certain pieces of
evidence;  (2) the court erred by not allowing Jackson to impeach a
government witness with evidence of a prior conviction for sexual
assault;  (3) the court incorrectly allowed the government to impeach
one of Jackson's witnesses with a non-final conviction; (4) the verdict
is inconsistent. Finding no reversible error, we affirm.
FACTS:
1. JACKSON, a prisoner, argued with another inmate,
BROWN, while a third inmate, GULLEY, watched. A fight
broke out. The three were running from the yard, where the
argument started, to a cell, where JACKSON or GULLEY
allegedly held BROWN as the other attacked him with a
shank (a homemade knife). JACKSON and GULLEY left the
cell walking in opposite directions. BROWN, bleeding
profusely, collapsed and was soon pronounced dead.
2. JACKSON had BROWN’S blood on his clothes and an injury
to his palm consistent with recent use of a shank.
3. JACKSON was apprehended. He was placed in a special
housing unit. While held by security, he tried to flush
gambling paraphernalia down the toilet. When guards tried
to place another inmate in the special housing unit with him,
he told officials that he would kill the inmate if the inmate
were not removed, saying “if you don't believe me, look at
the security tapes, I'll kill again.”
4. JACKSON claimed that BROWN pulled out a shank.
5. The government contended that BROWN was unarmed and
only attempted to begin a fistfight.
6. The district court convicted JACKSON for murder and
possession of a dangerous weapon in prison and sentenced
him to death.
7. At sentencing, the government presented evidence of
JACKSON’S other convictions, including multiple counts of
armed robbery and various firearms charges, and testimony
about his poor disciplinary record in prison. An expert
witness for the government who had conducted psychiatric
evaluations of JACKSON testified that there was a high
probability that he would commit violent crimes in the future.
8. JACKSON presented evidence of a poor home life growing
up, low intelligence, post-traumatic stress disorder, and
institutionalization. He also noted that the government had
not sought the death penalty against GULLEY, and he
submitted an apology he had written for his most recent
armed robbery. JACKSON also apologized to BROWN’S
family, though he blamed BROWN for starting the fight.
JACKSON explained, “I just wanted to stab Brown. I didn't
want to kill him.” To demonstrate that he acted in self-
defense, JACKSON tried to introduce BROWN’S prison
disciplinary records into evidence.
9. The district court barred the evidence, ruling that it should
be admitted only if JACKSON could prove that he had
knowledge of the specific acts described by the records.
10. JACKSON now contends that that ruling was improper and
deprived him of the ability to present a complete defense.
ISSUE: Whether BROWN’S prison disciplinary records were
admissible in evidence and Jackson was deprived to present a
complete defense. [NO]
HELD:
Under Federal Rule of Evidence 404(a), character evidence is
generally not admissible “for the purpose of proving action in
conformity therewith on a particular occasion․” The rules make an
exception, however, and permit the introduction of “evidence of
a pertinent trait of character of the alleged victim of the crime
offered by an accused․”
Such a “trait of character” may be demonstrated by presenting
evidence of the victim's reputation. On the other hand, testimony
about “specific instances of conduct” may be used only if the
“character or a trait of character of a person is an essential
element of a charge, claim, or defense․”
Brown's propensity for violence is a pertinent trait of character,
because it supports Jackson's argument that Brown was the first
aggressor. Accordingly, the court allowed extensive testimony on
Brown's reputation in the prison community.
The disciplinary records that Jackson attempted to introduce,
however, involved specific instances of conduct. Under Rule
405, such evidence is admissible only if Brown's violent character
was “an essential element of [Jackson's] defense.”
Brown's prior specific acts were not admissible to prove his
alleged inclination for violence. First, the plain language of Rule
405(b) limits the use of conduct to prove essential elements of a
charge or defense. Second, Brown's character was not an
essential element of the self-defense claim in the “strict sense”
because a self-defense claim may be proven regardless of whether
the victim has a violent or passive character.
Jackson cites Holmes v. South Carolina, which declared
unconstitutional an “evidence rule that the defendant may not
introduce proof of third-party guilt if the prosecution has introduced
forensic evidence that strongly supports a guilty verdict.” Evidentiary
rules are given so much weight unless they prejudicial to a
substantial interest of the accused and are arbitrary or
disproportionate to the purposes they serve.” By limiting the
admissibility of specific acts, rules 404 and 405 serve the legitimate
interest of ensuring that juries do not acquit or convict on
impermissibly prejudicial grounds, but those rules allow limited
exceptions where more context is necessary in the interest of justice.
This careful balance is hardly disproportionate or arbitrary, and
Jackson provides no argument to the contrary beyond assertion.
The disciplinary records would not be even arguably relevant unless
they demonstrated that the guards had in fact caught Brown with a
shank.
Of the records related to violence, one documents an incident in
which Brown threw hot coffee on a guard, and the other reports that
he threatened to stab a guard. In the remaining records, only two
involved shanks. Any relationship between the subject and the
proffered evidence was weak or unsubstantiated at best, and the
court did not abuse its discretion in excluding it.
Just in case Sir asks:
(1) Jackson argues that the district court should not have
forbade him from impeaching government witness Victor Richards
with evidence that Richards is a registered sex offender.
Richards, an inmate, testified that Jackson and Gulley chased Brown
into a cell and stabbed him. In the 1980's, Richards was convicted of
sexual assault. Federal Rule of Evidence 609 establishes two
relevant restrictions regarding impeachment by prior criminal
convictions. First, the impeachment evidence is subject to Federal
Rule of Evidence 403, which says that even relevant evidence “may
be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the
jury ․” Second, under rule 609(b), evidence of a conviction may not
be used “if a period of more than ten years has elapsed since the
date of the conviction or of the release of the witness from the
confinement imposed for that conviction, whichever is the later date․”
The district court excluded the evidence finding that the conviction
was too old and unfairly prejudicial.
Jackson raises the conviction's probative value is significant;   of the two death sentences could stand.
Jackson argues the evidence was probative because Richards was
“a registered sex offender, a result of his felony conviction and so he
likely may also be untruthful.” Further, he might have “potential bias
to testify for the government, thereby staying in the ‘good graces' of
those who could prosecute him should he ever fail to comply with his
registration requirements.” Moreover, there was ample reason for the
jury to find Richards untrustworthy without introducing the prejudicial
evidence-the jury already knew that (1) Richards had been convicted
of several other crimes (including burglary and theft);  (2) he was
currently in prison for a 1999 bank robbery;  (3) the government
would attempt to get his bank robbery sentence reduced in exchange
for his testimony;  and (4) he had a history of mental issues and drug
abuse.
The court did not err. Evidentiary rules generally are upheld
unless they “infringe upon a weighty interest of the accused
and are arbitrary or disproportionate to the purposes they are
designed to serve” “Well-established rules of evidence permit trial
judges to exclude evidence if its probative value is outweighed by
certain other factors such as unfair prejudice, confusion of the
issues, or potential to mislead the jury. The decision to exclude
the evidence because of its prejudicial value was therefore
constitutionally permissible.
(2) Defense witness Shannon Agofsky testified that Brown had
a knife and said he was going to assault Jackson. The government
impeached Agofsky under Federal Rule of Evidence 609 with
evidence that Agofsky had been convicted of two counts of
capital murder. Jackson questions whether Agofsky was improperly
impeached with non-final convictions. Agofsky's convictions for
capital murder were the result of a single killing. In July 2006, in
United States v. Agofsky, we held that the Double Jeopardy Clause
forbade convicting Agofsky of both counts, because the charges
amounted to the same offense. We nonetheless concluded that one
Jackson argues that Agofsky should not have been impeached with
either conviction. The question now is whether, at the time of the
impeachment, Agofsky had two convictions (per the original district
court verdict), zero convictions (per the panel order vacating the
convictions), or one conviction (per the instruction that the district
court reimpose one of the two original convictions on remand). We
conclude that he was correctly impeached with both convictions. This
court's decisions are “not final until we issue a mandate.” Because
the mandate had not yet issued, the original district court judgment
remained in effect;  Agofsky was still convicted of both crimes at the
time of his testimony.
Further, under Rule 609(e), “the pendency of an appeal therefrom
does not render evidence of a conviction inadmissible.” Accordingly,
neither the stayed mandate in this court nor the pending certiorari
petition affected the admissibility of Agofsky's convictions. “Evidence
of the pendency of an appeal is admissible.” Jackson declined to do
so despite being reminded of the option by the district court.
(3) Jackson claims that the verdict is inconsistent. He
questioned why Gulley, an equally culpable defendant, did not
receive a sentence of death as a result of the offense.
It was held that, Jackson testified that Gulley “didn't help me kill the
man” and in fact yelled “let's get out of here” after the first stab.
Further, yes, Jackson cited his head injury as a baby, low I.Q. score,
possible retardation, bad home life, good behavior in prison, and
diligence in teaching himself to read. Jackson argues “the evidence
overwhelmingly established those factors without controversion by
the government.” This mitigation evidence, however, was provided
by Jackson's childhood and current girlfriend, whom the jury was free
to disbelieve, and the government used cross-examination to cast
doubt on the reliability of Jackson's expert witnesses. Likewise,
despite Jackson's claims to good behavior and educational
achievement, the jury, upon learning that he ran a gambling
operation in prison, reasonably could have concluded that his
rehabilitation was not going well.
The jury did not merely rubber-stamp the prosecution's request for a
death sentence. Four jurors found that Jackson's father was abusive
and that the abuse was mitigating. Every juror found it mitigating that
Jackson had no positive role model. Six found it mitigating that he
was in prison for a non-violent offense. Ten found it mitigating that he
was not actively looking to kill someone. Nine found it mitigating that
he was the first aggressor. Eight found it mitigating that there are
prisoners with worse records who are not sentenced to death. In
short, the jurors appear to have properly and conscientiously carried
out their duties. Unfortunately, these factors did not outweigh or
weigh against a sentence of death.
UNITED STATES of America, Plaintiff-Appellee,
v.
Constance F. CUNNINGHAM, Defendant-Appellant.
FACTS:
 Constance Cunningham was sentenced to 84 months in prison
after being convicted by a jury of tampering with a consumer
product "with reckless disregard for the risk that another person
will be placed in danger of death or bodily injury and under
circumstances manifesting extreme indifference to such risk."
 Cunningham was a registered nurse at an Indiana hospital. The
hospital staff discovered that syringes containing the powerful
painkiller Demerol (a brand name for meperidine hydrochloride,
had been tampered with; in some instances the Demerol had
been replaced with a saline solution.
 Cunningham was one of five nurses who, during a period when
some of the syringes were known to have been tampered with,
had access to the locked cabinet in which they were kept. All five
nurses were interviewed by the police and denied having
tampered with the syringes. But Cunningham acknowledged
having once been a Demerol addict. She said the problem was in
the past and to prove this she offered to have her blood and
urine tested for Demerol.
 The blood test was negative but the urine test positive, which
was consistent with recent use, since Demerol remains in the
urinary tract longer than in the bloodstream. The government
believes that Cunningham was stealing Demerol from the
syringes in order to feed a Demerol addiction.
 Cunningham argues that merely withholding pain medication
does not "place" anyone "in danger of ... bodily injury." The
statute defines "bodily injury" to include "physical pain," but she
 argues that failing to relieve pain is not the same as causing pain.
Since with the pain medication there is no (or less) pain, the
withholding of the medication is a necessary condition of pain;
but not all necessary conditions are causes.
 Having a nervous system is a necessary condition of experiencing
pain, but we would not ordinarily say that having a nervous
system causes pain. Causal ascription is purposive. In law it is
based on social ideas about responsibility; it is policy-driven. In
light of the goals reasonably to be imputed to a statute that
punishes product tampering with injurious consequences
expressly including pain, conduct that perpetuates an injury by
preventing it from being alleviated by the product designed for
that end is on the same footing as tampering that creates a fresh
injury, as when the tamperer introduces a poison into a drug.
 In either case there is an injury that would not have occurred had
the tampering not occurred. We cannot think of any reason to
distinguish between the two cases.
RELEVANT TO TOPIC:
We must next consider whether the district judge abused his discretion
in admitting evidence of prior "bad acts" of the defendant.
 Four years before the tampering, Cunningham had pleaded guilty
to stealing Demerol from the hospital at which she was then
employed as a nurse under another name. Her nurse's license
had been suspended, but it had later been reinstated subject to
several conditions including that she submit to periodic drug
testing. She falsified the results of some of these tests. The judge
sustained an objection to placing the conviction in evidence but
allowed in the suspension of her license because of her earlier
theft of Demerol, the falsification of the test results, and the
addiction that had led to the earlier theft and resulting
suspension.
ISSUE: WHETHER OR NOT THE BAD ACTS OF CUNNINGHAM MAY BE
ADMITTED IN EVIDENCE
HELD: YES!
 GR: Rule 404(b) forbids the introduction of evidence of a
person's prior conduct for the purpose of showing a propensity
to act in accordance with the character indicated by that
conduct. So the fact that Cunningham had stolen Demerol in the
past could not be introduced to show that she is likely to have
stolen Demerol in the present.
 EXC: But evidence of prior conduct may be introduced (subject
to the judge's power to exclude it under Rule 403 as unduly
prejudicial, confusing, or merely cumulative) for other purposes,
for example to show the defendant's motive for committing the
crime with which he is charged.
 "Propensity" evidence and "motive" evidence need not overlap.
They do not, for example, when past drug convictions are used
to show that the defendant in a robbery case is an addict and his
addiction is offered as the motive for the robbery.
 They do overlap when the crime is motivated by a taste for
engaging in that crime or a compulsion to engage in it (an
"addiction"), rather than by a desire for pecuniary gain or for
some other advantage to which the crime is instrumental in the
sense that it would not be committed if the advantage could be
obtained as easily by a lawful route.
 EXAMPLE: As between two suspected molesters, then, only one
of whom has a history of such molestation, the history
 establishes a motive that enables the two suspects to be
distinguished.
 We do not have a complete overlap between evidence of
propensity and evidence of motive in this case. Most people
don't want Demerol; being a Demerol addict gave Cunningham a
motive to tamper with the Demerol-filled syringes that, so far as
appears, none of the other nurses who had access to the cabinet
in which the syringes were locked had. No one suggests that any
of the five nurses might have wanted to steal Demerol in order
to resell it rather than to consume it personally.
 The evidence of her addiction was thus admissible, unless the
judge decided that its prejudicial effect--the effect that is
inherent in any evidence that a jury, however instructed, might
use to draw the forbidden inference that once a thief always a
thief--clearly outweighed its probative value.
 The evidence of Cunningham's suspension might seem to have
been similarly superfluous and equivocal, as being merely the
civil equivalent of the criminal conviction that the judge properly
excluded. But the suspension, unlike the conviction, did not
merely duplicate the evidence of Cunningham's addiction or
insinuate a propensity to steal; it also provided essential
background to the evidence of her having falsified the results of
tests required as a condition of regaining her license.
 That evidence furnished the basis for an inference that she had
falsified the test results in order to enable her to continue to
feed her addiction without detection and without losing access
to a "free" supply of the addictive substance, and so, like the
addiction itself, established motive to tamper with the Demerol
syringes.
U.S. v. ESTEBAN GONZALES and ALFREDO COLON
April 4, 1997
Facts:
1. Police officer Crowe left his apartment to buy dinner, and
noticed three men in a Chevrolet parked across the street (two
of them were the defendants). When he drove back, Colon,
whom Crowe recognized as one of the men he had seen
earlier, was walking alone down the street in the vicinity of
Crowe's apartment. Seated in his car, Crowe observed Colon
approach the door of Crowe's apartment building and then
shrug his shoulders, as though lost or mistaken about the
address. Then, as Crowe walked toward his own apartment, he
saw Colon walk down one side of the street to the end of the
block, cross the street, and walk up the other side.
2. Suspicions aroused, Crowe monitored Colon's activities from
just inside the doorway to his building. Crowe next saw the
same white Corsica he had seen earlier slowly moving up his
street, followed by a red Chevrolet Baretta. The lights were off
on both cars. The cars pulled up to where Colon was standing
under a street light. The three men had an animated
conversation that appeared to Crowe as though they were
discussing directions. After several minutes of this discussion,
Esteban and Emilio Gonzalez drove the two cars away, once
again with their headlights off.
3. Believing that the three were planning to steal a car, Crowe
retrieved his off-duty revolver and a cordless telephone from his
apartment. Colon was still pacing up and down the street.
4. Crowe dialed 911. Unable to get through, he handed the phone
to his girlfriend and asked her to place the call.
5. Crowe left the apartment building to confront Colon and
Gonzalez. By now the two men had retreated from the fence,
and were crouching behind a car. As Crowe approached the
sidewalk in front of his house, he saw both Gonzalez and Colon
draw guns and begin to run in Crowe's direction--the whole time
looking over their shoulders in the direction they had been
facing while earlier crouching by the fence. As the two men ran
 towards him, Crowe identified himself as a police officer and
directed them to stop.
6. They did not stop. Instead, Gonzalez fired a shot at Crowe.
Crowe returned fire, and then sought cover behind a parked
car. Crowe then saw the two toss their weapons over a nearby
hedge and run down the street, away from Crowe. Crowe gave
chase and managed to apprehend Colon after a brief struggle.
7. police officers Sapienza and Parks arrived at the scene in a
marked patrol car. Sapienza took custody of Colon while Crowe
retrieved one of the weapons discarded by the defendants.
Crowe also gave the officers a description of Esteban and
Emilio Gonzalez.
8. Officer Coakley, after hearing a description of the white Corsica
over the police radio, spotted a car fitting that description, pulled
it over, and arrested its driver, Emilio Gonzalez. Some thirty
minutes later, police officer Ralph Argiento located the red
Baretta, pulled it over and detained its driver, Esteban
Gonzalez, until Crowe arrived and identified him as the man
who had fired a shot at him.
9. Later that evening, after securing the crime scene, a police
officer found a second gun in the bushes near the spot where
Crowe reported seeing Colon and Gonzalez discarding their
weapons. No evidence of spent shell casings or ballistic
damage was found.
10. Prior to trial, the government sought an in limine ruling from the
district court permitting the government to introduce the
testimony of George Mascia describing a break-in and burglary
attempt at his home, located around the corner from Crowe's
residence, at about the time of Crowe's confrontation with the
defendants.
11. Colon and Gonzales were indicted, and are now appealing.
Issue 1: W/N the evidence was sufficient to sustain a guilty verdict
Held: Yes
Ratio:
1. Defendants' contention that the evidence against them was
insufficient is based on the absence of any physical evidence to
corroborate Crowe's testimony. They argue that although
Crowe testified that he and the defendants exchanged gunfire,
no bullet casings were ever found, nor was any damage to
property ever detected. In addition, neither defendant's
fingerprints were found on the guns recovered. These and other
defects in proof are particularly significant, defendants argue,
given the unreliability of Crowe's testimony at trial.
2. Where the government’s case is based primarily on eyewitness
testimoney describing criminal activity, any lack of corroboration
goes only to the weight of the evidence, not to its sufficiency.
The weight is a matter for argument to the jury, not a ground for
reversal on appeal.
a. The jury was fully apprised by defense counsel of the
absence of corroborating physical evidence in support of
the defense theory of the case--namely, that Crowe planted
weapons and otherwise fabricated much of the incident in
order to justify the improper discharge of his own weapon.
The jury plainly rejected this theory, and thus was entitled, if
it so chose, to rest its verdict solely on Crowe's testimony.
b. Besides, there was testimony to show that snow, extreme
cold, and the presence of pedestrian traffic impeded the
search for evidence and, in addition, that searches for spent
shell casings at crime scenes are only rarely successful.
There was also testimony that the chances of finding
fingerprints on the found weapons were remote. The jury
quite reasonably could have favored these explanations
over defendants' more sinister theory that, for example, had
Crowe planting guns in the bushes near his house in full
view of other officers who had arrived at the crime scene.
Issue 2: W/N the court may allow the testimony of George Mascia
Held: Yes
Ratio:
1. The district judge granted the government's motion but limited
the scope of Mascia's testimony. Mascia was permitted to
testify that he heard his alarm go off, saw a person climbing out
of a window of his house, and was later unable to identify any of
the defendants as the intruder.
2. Defendants argue that the evidence of the attempted burglary
was irrelevant; unfairly prejudicial; and improperly admitted
extrinsic evidence of a prior bad act
3. To be relevant, evidence need only tend to prove the
government's case, and evidence that adds context and
dimension to the government's proof of the charges can have
that tendency. Relevant evidence is not confined to that which
directly establishes an element of the crime.
4. The burglary evidence in this case was relevant both to a
possible motive for the defendants' possession of firearms and
to provide crucial background evidence that gave coherence to
the basic sequence of events that occurred on the night of the
crime.
5. Mascia's testimony tended to add meaning to defendants'
activities because it tended to show that Gonzalez and Colon
were functioning as armed look-outs while Emilio Gonzalez
robbed Mascia's house. This theory explained defendants'
patrolling activities and other behavior, including their animated
discussions, their furtive crouching and apparent monitoring of
goings-on on a nearby block. And significantly, evidence of a
failed burglary offered an explanation as to why Colon and
Gonzalez would have been running down the street toward
Crowe, with guns drawn, while looking over their shoulders in
the direction of Mascia's home. Based on the testimony of
Mascia and Sapienza, the government was able to argue that
the time of defendants' flight from the vicinity of Mascia's home
corresponded to the time that Sapienza's patrol car arrived at
Mascia's home to investigate the break-in.
JONES V. STATE
Topic: Evidence of other bad acts
Keywords: Other crimes evidence may prove the existence of a larger plan
Ponente: Presiding Judge Woodley
Decision: Judgement is affirmed
Doctrine: Where the existence of a plan or system of criminal action is
in issue, evidence of other or similar offenses committed by
the accused, both before and after the commission of the
offense with which he is charged, is admissible to show that
the offense charged was part of a common plan, scheme, or
system.
Gladys JONES, Appellant, v. The STATE of Texas, Appellee
FACTS:
The indictment alleged that the appellant took money from the person
and possession of D. M. Hause without his knowledge and without his
consent, and with the intent to deprive him of its value and to
appropriate it to her use and benefit. The indictment further alleged a
prior conviction in the State of California for Grand Theft, and a
conviction prior to the commission of that offense in the State of
Oklahoma for Grand Larceny. The prior convictions were proved as
alleged.The state relied upon circumstantial evidence to show appellant's
guilt of theft of money from the person and possession of D. M. Hause.
Hause testified that on December 13, 1962, the appellant came to his
auto parts place of business around 3 P.M., while he was working on a
generator; she grabbed C. V. Wells, who later became a partner in the
business, and propositioned him for sexual intercourse. She had her
hands all over him. He pushed her away. She then said she had to urinate
and was shown an outside rest room. On the way of, she fell, or claimed
to have fallen, and Hause, thinking she was drunk, tried to get her up.
She raised up her dress and grabbed him.
Before he could drag her out she turned around and rubbed "her rear
end" on him. She then said she had to use the telephone. He did not see
her again until she was arrested on March 6, 1963. Some five minutes
after the appellant left, Hause reached for his handkerchief and
discovered that the $150 or more he had in his billfold was gone, but the
billfold was in his pocket and the checks were still in it. C. V. Wells gave
similar testimony to that of Hause. He testified that he had no money in
his billfold and lost none. The theft of Hause's money was promptly
reported to the police.
**other similar incidents
The state was permitted to prove that the appellant, on March 6, 1963,
went to an automobile service shop or Transmission Shop in Austin
during the noon hour and, after announcing that she wanted to use the
bathroom, grabbed Mr. Grady, the proprietor, and propositioned him and
he "pushed her back because she was drunk." She grabbed him again
and then walked out. All of this time Mr. Grady was talking on the
telephone. He discovered some 15 minutes later that the $125 he had in
his billfold was gone.
A truck driver for Travis Materials testified that the appellant went into
the Transmission Shop and some 5 or 10 minutes later she came running
by his truck, jumped in a black Ford car parked about a block and a half
from the shop and "took off. She was throwing gravel and the car was
spinning and digging out when she left."
Later the same day the appellant was apprehended near Taylor, Texas.
The state was also permitted to introduce evidence to the effect that the
appellant, on or about December 31, 1962, went to the place of business
of an Orthopedic Brace Company, where Mr. Hess, was at work at his
bench, put her hand on him like she was trying to keep from falling and
acting "as if she was trying to solicit a street job," and as though she was
drugged or doped. She then left suddenly and the brace maker soon
found that his billfold, in which he had $20 or more, was gone.
Appellant was identified by the witnesses as the person who came to
each of the shops, propositioned the owner (each of whom was married
and living with his wife), put her hand upon them, and left suddenly, her
departure being soon followed by the discovery that the men's money
had likewise departed.
ISSUE: W/N it was correct for the Court to admit and consider the evidence
(other incidents)?
HELD: YES!
The evidence regarding the conduct of the appellant and the loss of
money from the billfold of Mr. Hess, the brace maker, and from the
owner of the Transmission Shop was admitted over the objection that it
was "irrelevant and immaterial, highly prejudicial. It is at a time different
and subsequent to the date alleged in the indictment of December the
13th." The evidence was offered and was admitted only for the purpose
of showing identity, intent, motive, malice or common plan or scheme. It
was so limited in the court's charge and the jury was instructed that such
evidence could not be considered for any purpose unless they believed
beyond a reasonable doubt that the defendant committed such other
offenses.
The intent of the appellant in making physical contact with Mr. Hause
was material and was uncertain. Proof that the money was taken as well
as the intent of the appellant rested upon the circumstances.
The two collateral offenses show more than a similarity in results. They
show a common plan and systematic course of action. The peculiar way
in which the other business men lost their money upon the same course
of conduct by the appellant was a circumstance that was available to the
state to prove the appellant's guilt of theft from the person of Hause. The
evidence showed system, not merely systematic crime, and the court did
not err in admitting it for the limited purposes stated."Where the
existence of a plan or system of criminal action is in issue, evidence of
other or similar offenses committed by the accused, both before and
after the commission of the offense with which he is charged, is
admissible to show that the offense charged was part of a common plan,
scheme, or system. But to render such evidence admissible, there must be
more than a certain degree of similarity in results between the crime with
which he is charged and the other crimes committed by him. There must
indeed be such a concurrence of common features between the several
crimes as will show logically that all of them might well have resulted
from a common plan or systematic course of action." The evidence is
sufficient to sustain the conviction and no error appears.
UNITED STATES v. JONES
Topic: Evidence of other bad acts
Keywords: Crack; written confession; motion for a continuance; prior
conviction
Ponente: Judge Ripple
Decision: Appeal denied; judgment of the circuit court is affirmed
Doctrine: In reviewing a district court's decision to admit evidence for an
abuse of discretion, the four-pronged test below must be considered:
(1) The evidence is directed toward establishing a matter in issue
other than the defendant's propensity to commit the crime
charged;
(2) The evidence shows that the other act is similar enough and
close enough in time to be relevant to the matter in issue;
(3) The evidence is sufficient to support a jury finding that the
defendant committed the similar act; and
(4) The probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice.
FACTS:
Several police officers were performing surveillance of that residence at
940 North Main Street in Decatur, Illinois. Jones and his nephew, Montae,
left the home, got into a car and drove away. Detective Sturdivant
followed and observed the car, driven by Jones, make a left turn without
signaling. He then ordered Jones to pull the car to the curb. Jones was
arrested for driving with a suspended license and taken to the police
station. Meanwhile, other police officers began the search of 940 North
Main Street. They found a plastic bag containing crack, Jones' identification
card, and pages from his address book.
After the search, Jones was advised of his Miranda rights, and afterwards
he signed a form indicating that he understood his rights. Detective Ramey
testified that, after signing, Jones admitted that he had moved to 940
North Main Street about a month earlier and that the duffel bag belonged
to him; that he had been selling crack from the house during the previous
two or three weeks and that the crack in the dresser belonged to him.
Detective Ramey then asked Jones to draft a written confession. Jones
indicated to the police that he wanted to cooperate with the investigation.
Thus, he signed a "confidential source" form, and told the detectives that
he had received on consignment the crack that had been seized, and
admitted that he had intended to sell it.
Jones was indicted by a grand jury and charged with knowingly and
intentionally possessing with intent to distribute five or more grams of
crack cocaine. Trial originally was scheduled for June 10, 2002. On May 30,
2002, the district court granted his motion for a continuance; the trial date
was reset for July 15, 2002. On July 3, 2002, a second motion for a
continuance was filed, requesting additional time to obtain a handwriting
analysis of the statement allegedly penned by Jones. Jones' counsel
admitted that he had been provided the written confession by the
prosecution, and had been under the mistaken impression that a police
officer had written the statement and that Jones had only signed it. Given
this new information, counsel contended that he needed additional time
to obtain a handwriting expert to determine whether or not the document
had been written by Jones. The district court denied the motion.
At the close of the prosecution's case during trial, the Government asked
the court to take judicial notice of Jones' prior conviction for the unlawful
delivery of a controlled substance in Macon County, Illinois. The district
court also gave the jury a limiting instruction, which instructed the jury to
consider the prior conviction only for the purpose of establishing intent.
The jury returned a verdict of guilty.
Jones filed a motion requesting that his prior conviction not be entered
into evidence because the conviction was "not relevant to proving any fact
in issue other than [his] propensity to commit the crime charged," that it
was too remote in time to be admissible and that any probative value
would be outweighed by the prejudice that it would cause him. In
response, the Government argued that the prior conviction was admissible
to that show Jones possessed the intent to distribute the crack because
possession with intent to distribute is a specific intent crime.
ISSUE:
Whether the district court erred in admitting his previous conviction into
evidence
HELD & RATIO:
NO. In reviewing a district court's decision to admit evidence for an abuse
of discretion, the four-pronged test below must be considered:
(5) The evidence is directed toward establishing a matter in issue other
than the defendant's propensity to commit the crime charged;
(6) The evidence shows that the other act is similar enough and close
enough in time to be relevant to the matter in issue;
(7) The evidence is sufficient to support a jury finding that the defendant
committed the similar act; and
(8) The probative value of the evidence is not substantially outweighed by
the danger of unfair prejudice.
First prong: It is proper to admit the evidence on the issue of intent
The most obvious justifiable situation in which prior convictions are
admissible in drug prosecutions on the issue of intent are in those
situations in which defendant, while admitting possession of the
substance, denies intent to distribute it. The issue of intent must be
established by the Government and evidence of prior convictions for drug
trafficking may be helpful. It is incumbent on the Government to
"affirmatively show why a particular prior conviction tends to show volition
to commit the new crime."
An examination of the record reveals that, at trial, counsel for the
defendant argued to the jury that only a small amount of cocaine was near
the defendant's identification card and that the remainder of the cocaine,
a larger amount, was situated in another place in the house. Counsel also
emphasized the presence of others at the scene at the time that the search
warrant was executed. A fair reading of counsel's argument is that Jones
did not control the larger amount and that the lesser amount was held for
personal use rather than resale. In this context, an earlier conviction for
drug trafficking was certainly relevant and probative on, among other
things, the issue of Jones' intent. It evidenced his knowledge of the drug
trade and the practices of drug dealers in selling their deadly wares. It also
was relevant and probative with respect to the defendant's knowledge of
the commercial value of even small amounts of the drug and therefore of
his intent to sell the lesser amount. Accordingly, it certainly was in the
sound discretion of the district court to determine, given the facts and
circumstances presented by this case, that this evidence was relevant and
probative on the issues placed into contention by Jones.

Second prong: An 8-year old conviction is not too old to be admissible
The district court acted within its discretion in deciding that the prior
conviction was close enough in time and sufficiently similar in
circumstances to be relevant to the issue of intent. Jones' prior conviction
occurred six years before the charged offense. In previous cases, it was
held that a prior conviction for distribution of crack is admissible in a case
where the charged act involves distribution of cocaine, as the distinction
between the two drugs is a "distinction without substance" as both crimes
involve the possession with intent to distribute a chemical composition of
cocaine.
Third prong: A conviction is sufficient to support a jury finding that a
defendant committed a similar act – not an issue in this appeal
Fourth prong: The conviction was not more prejudicial than probative
Any probative evidence of prior convictions will be prejudicial; however,
we must determine if it was unfairly prejudicial. Here, the trial court
offered a limiting instruction, and it was held that such instructions "are
effective in reducing or eliminating any possible unfair prejudice from the
introduction of Rule 404(b) evidence."
United States of America vs Robert Smith Wales
Facts:
Robert Smyth Wales entered the United States at Honolulu International
Airport on a flight which he boarded in Singapore. He checked the "no" box
on a customs declaration form to deny that he was carrying more than
$10,000. Customs agents found he was carrying $48,000. He was arrested
and charged with knowingly and willfully making a false statement on a
customs declaration form he gave to an officer of the United States
Customs Service. The jury found him guilty. The district court sentenced him
to 14 months’ imprisonment, followed by supervised release for 2 1/2
years, a fine of $15,000 and a special assessment of $50. On appeal, Wales
contends the evidence was insufficient to support his conviction and the
district court erred in several evidentiary rulings.
Issue: WON there was sufficient evidence to convict Wales of knowingly and
willfully making a false statement on a customs declaration form
Held:
YES.
Sufficiency of Evidence
The $48,000 in U.S. currency Wales was carrying was almost five times
the $10,000 limit for disclosure purposes. The money was packaged in three
separate envelopes, each from the hotel in Singapore that Wales had left
that morning. Two of the envelopes were packed in different parts of
Wales's luggage. The third he carried in the breast pocket of his jacket.
When he filled out his customs declaration form, Wales completed it
accurately in full, except only for checking the "no" box in response to the
printed statement: "I am carrying currency or monetary instruments over
$10,000 U.S. or foreign currency."
When the customs inspector asked Wales what was in the first envelope
found in his suitcase, Wales answered "my money." When the inspector
opened the envelope and saw that it did indeed contain money, he asked
Wales how much money there was. Wales shrugged his shoulders. The
inspector then pointed to the declaration form and told Wales that if he
was carrying more than $10,000, he had to declare it on the form. Wales
did not say anything. This envelope contained $20,000 in $100 bills
An additional $8,000 was found in an envelope in Wales's toiletry kit.
Another customs inspector then explained to Wales that if he carried more
than $10,000 in currency, he would have to fill out a form known as the
currency transaction and reporting form. Wales did not ask to fill out the
form. He was then led to a room where he was to be searched. On the way
he was asked if he had any more money with him. He did not respond
audibly, but reached into his breast pocket and handed the customs officer
another envelope. This envelope was similar to the two found in his
luggage, and like the others it contained $100 bills which had been bound
by money wrappers. The currency in this envelope totalled $20,000.
Viewing the evidence in the light most favorable to the government, a
reasonable jury could have found that Wales knew he was bringing more
than $10,000 in U.S. currency into this country and knowingly and willfully
stated on his customs declaration form that he was not.
Evidence of Other Bad Acts
The government presented evidence that between five and seven days
after his arrest, Wales falsely told a bank officer that the key to his safety
deposit box had been stolen and, for this reason, he wanted the box (which
it turned out contained $150,000 in gold coins) drilled open and the
contents returned to his wife. Wales contends the government should not
have been allowed to introduce this post-arrest attempt to retrieve the
contents of the safety deposit box and the fact that the box contained
$150,000 in gold coins. He argues this conduct bore no similarity to the
charged offense. We disagree.
Under Federal Rule of Evidence 404(b), evidence of other crimes, wrongs,
or acts may be admissible to prove motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.
In this circuit "Rule 404(b) applies to other act evidence regardless of
whether it occurred before or after the alleged offense
Wales's deceitful attempt to clean out his safe deposit box before the
government could examine its contents was clearly an attempt to conceal
the $150,000 in gold coins. This evidence was consistent with the
government's theory of the case that Wales had a motive for submitting a
false customs declaration: to conceal his assets and to avoid an explanation
of their source. The use of this evidence to prove motive was proper.
United States v. Leo LeCompte
SYLLABUS: Before the trial for the alleged sexual abuse of his wife's
11-year-old niece, the defendant moved to exclude evidence of prior
uncharged sex offenses against another niece by marriage. The
government argued that the evidence was admissible under Federal
Rule of Evidence 414 (Evidence of Similar Crimes in Child
Molestation Cases). The District Court ruled to exclude the evidence.
The government appealed this evidentiary ruling. The SC reversed
and held that the motion should not have been granted by the District
Court. Basis of the SC: in order to give effect to the decision of
Congress, expressed in Rule 414, to loosen to a substantial degree
the restrictions of prior law on the admissibility of such evidence.
FACTS:
 LeCompte was charged with child sex offenses, specifically
the abuse of his second wife’s 11-year-old niece “CD”,
allegedly committed in January 1995. According to CD,
LeCompte had played games with her at her aunt's trailer
and had exposed himself to her on at least one occasion.
The actual incidents of molestation allegedly occurred while
she was lying on a couch at her aunt's, with her siblings
 sleeping on the floor next to her. LeCompte allegedly joined
her on the couch, forced her to touch his penis, and touched
her breasts.
 For alleged sex offenses committed by LeCompte during his
first marriage between 1985 and 1987, the government
offered evidence to support the case of CD. The alleged
(first) victim, “TT”, testified that LeCompte had played games
with her at her aunt's house, had exposed himself to her,
had forced her to touch his penis, and had touched her
private parts.
FIRST TRIAL: Of victim “TT”
 District Court: Convicted LeCompte.
o Admitted evidence based on Rule 404 (b):
(B) subject to the limitations in Rule 412, a
defendant may offer evidence of an alleged victim’s
pertinent trait, and if the evidence is admitted, the
prosecutor may: (i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait.
o It was not then able to offer the evidence under Rule
414 because of its failure to provide timely notice of
the offer.
 Appellate Court: held that the District Court's admission of
the evidence under Rule 404(b) was improper, and reversed
LeCompte's conviction (hence, second marriage and alleged
second victim).
2nd Trial DISTRICT COURT: Evidence excluded by Rule 403:
Excluding Relevant Evidence for Prejudice, Confusion, Waste of
Time, or Other Reasons.
 DC ruled that the evidence was of limited probative value
and therefore, the risk of unfair prejudice was high. Although
there were similarities between CD's and TT's accounts; it
also noted CD’s allegation (1) that her molestation occurred
in the presence of her siblings while TT was alleged to have
been molested in isolation; (2) that LeCompte had not
played games with C.D. immediately before molesting her,
as he had with T.T.; (3) and that the acts against C.D. and
T.T. were separated by a period of eight years
 To admit TT’s testimony, the probative evidence should
carry a high degree of probative value.
ISSUE: Whether TT’s testimony is admissible in LeCompte’s retrial
or whether the first trial foreclosed consideration of admissibility
under a different rule of evidence on retrial
HELD: No.
 Rule 414 provides in relevant part: (a) In a criminal case in
which the defendant is accused of an offense of child
molestation, evidence of the defendant's commission of
another offense or offenses of child molestation is
admissible, and may be considered for its bearing on any
matter to which it is relevant. Rule 414 and its companion
rules-Rule 413 (Evidence of Similar Crimes in Sexual
Assault Cases), and Rule 415 (Evidence of Similar Acts in
Civil Cases Concerning Sexual Assault or Molestation) are,
according to the statement of Congress, “general rules of
admissibility in sexual assault and child molestation cases
for evidence that the defendant has committed offenses of
the same type on other occasions․ The new rules will
supersede in sex offense cases the restrictive aspects of
Federal Rule of Evidence 404(b).
 The sexual offenses committed against T.T. were
substantially similar to those allegedly committed against
C.D. By comparison, the differences were small. In
particular, the District Court itself acknowledged that the time
lapse between incidents “may not be as significant as it
appears at first glance, because defendant was imprisoned
for a portion of the time between 1987 and 1995, which
deprived defendant of the opportunity to abuse any children.”
 Moreover, the danger of unfair prejudice noted by the District
Court was that presented by the “unique stigma” of child
sexual abuse, on account of which LeCompte might be
convicted not for the charged offense, but for his sexual
abuse of T.T. This danger is one that all propensity evidence
in such trials presents. It is for this reason that the evidence
was previously excluded, and it is precisely such holdings
that Congress intended to overrule. Order of the District
court reversed.