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Criminal Justice Magazine
Spring 2001
Volume 16, Issue 1

Trial Tactics

By Stephen A. Saltzburg

Inextricably Intertwined? Maybe Not

There are probably more fights over the use of other act evidence in both federal and state courts than with respect to any other evidence principle. The basic rule that has existed in the United States is captured in Federal Rule of Evidence 404(b), which reads:

(b) - Other crimes, wrongs, or acts. - Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action 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, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

The common sense of the rule is that evidence of acts that are not the ones charged in an indictment, information, or complaint may not be introduced to show that a defendant or other actor in a criminal case had a predisposition to act in a certain way and, thus, probably did act in that way. Evidence offered for another purpose-and Rule 404(b) sets forth a number of other purposes that are illustrative but not exclusive-is not excluded.

The first sentence of Rule 404(b) reflects a historic distrust of character evidence in both criminal and civil cases. It stands in sharp contrast to the more recent enactment of Fed. R. Evid. 413, 414, and 415 that open the door to predisposition evidence in cases involving sexual assault or child molestation.

The typical fight

It is common for prosecutors to offer other act evidence as part of their case-in-chief. They will offer it to prove intent, knowledge, identity, or for one of the other permissible uses. They know not to offer it to prove predisposition. Defense counsel routinely object to the evidence, arguing that it is actually offered to prove character, or that there is too great a chance that a jury will treat it as character evidence, even if it is offered for a permissible purpose. In the end, trial judges balance the probative value of the evidence against its prejudicial effect, using rules like Fed. R. Evid. 403: "Although 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, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Exception to the Rule: the easy case

A number of cases have suggested that Rule 404(b) does not apply to other act evidence that is "inextricably intertwined" or bound up with the crimes charged in a case. Some of these cases are quite easy to understand. For example, consider United States v. Pace, 981 F.2d 1123 (10th Cir. 1992), cert. denied, 507 U.S. 966 (1993). Three defendants-Pace, Leonard, and Carter-were charged in a four-count indictment alleging violations of the federal drug laws. Count 1 charged all three defendants with a conspiracy with two objects: (1) to possess with intent to distribute methamphetamine/amphetamine; and (2) to attempt to manufacture methamphetamine. Count 4 charged all three defendants with traveling in interstate commerce to promote the attempted manufacture and distribution of methamphetamine/amphetamine. Count 2 charged Carter alone with possession of a listed chemical to be used to manufacture a controlled substance. Count 3 charged Leonard alone with distribution of methamphetamine/amphetamine. The jury convicted all three on all counts with one exception.

Pace claimed on appeal that the trial judge erred in admitting evidence concerning codefendant Leonard's distribution of methamphetamine on October 26, 1990. According to Pace, the evidence should have been excluded because the transaction occurred after the conspiracy ended. The problem for Pace was that the indictment charged Pace with a conspiracy to attempt to manufacture and distribute methamphetamine/amphetamine that ended on or about October 26, 1990. Thus, even though co-defendant Carter was arrested before October 26, the fact remained that the other coconspirators remained free to carry on the objectives of the conspiracy. Thus, the conspiracy had not terminated. The court of appeals reasoned as follows:

Rule 404(b) only applies to evidence of acts extrinsic to the charged crime. Huddleston v. United States, 485 U.S. 681, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988). Evidence of Leonard's sale was direct evidence of the conspiracy, which the indictment charged as occurring between July 1 and October 26, 1990. Conduct during the life of a conspiracy that is evidence of the conspiracy is not Rule 404(b) evidence. United States v. Merida, 765 F.2d 1205, 1221 (5th Cir.1985). For the same reason we reject Pace's argument that the court erred in denying his proposed limiting instruction, which would have required the jury to disregard Leonard's sale as evidence against Pace.

(981 F.2d at 1134-35).

It seems that few people would disagree with this reasoning. Any act that was part of the conspiracy would seem to be part of the conduct that the government alleged in the indictment. This would be true whether or not the act was specifically alleged as an overt act. Evidence that proves the very conspiracy alleged in a case would not appear to be "other act" evidence. Rather, it is evidence of the very crime charged.

The more difficult case

The notion of "inextricably intertwined" evidence becomes more complicated when it is examined in cases such as United States v. Hilgeford, 7 F.3d 1340 (7th Cir. 1993). Hilgeford suffered what the court of appeals described as "hard times." He had borrowed more than $1 million from a bank and the Farmer's Home Administration using the two farms he owned as security. When he suffered financial difficulties, the bank foreclosed on one of the farms. The bank then bought the farm at the foreclosure sale and evicted Hilgeford. The government foreclosed on his other farm.

Hilgeford retaliated by sending bills to employees of the bank and Farmers' Home Administration. He then took deductions on his tax return for the unpaid bills. Among the charges brought against him were counts alleging willful filing of false tax returns. To prove the tax counts, the government offered evidence that in the years prior to the challenged tax returns, Hilgeford had generated "a blizzard of complicated and groundless litigation, primarily involving his fruitless attempts to regain his two farms." (7 F.3d at 1344). The court of appeals held that Rule 404(b) was not applicable to this evidence, because it was "intricately related to the fact of the case at hand." (7 F.3d at 1345). The court pointed out that the defendant had objected to the litigation evidence under Rule 404(b), and it addressed the government's response that Rule 404(b) was not implicated by the admitted evidence:

The government responds that the evidence of trial and appellate court proceedings initiated by defendant was admitted not to disparage his character, but for two other reasons. First, the government claims that the evidence was used as proof that defendant's conduct was willful, which is a basic element of the crime with which he is charged. Thus, the government argues, the disputed evidence is not even subject to Rule 404(b) at all because it is directly probative of the crime with which defendant is charged. Second, the government claims that even if the evidence is subject to Rule 404(b), it falls within several of the exceptions listed in the rule. The government notes also that even if the admission of the evidence were error, it is not prejudicial because the other evidence against defendant was overwhelming. When deciding if the "other acts" evidence was admissible without reference to Rule 404(b), we must determine whether such evidence was "intricately related to the facts of the case" at hand. United States v. Hargrove, 929 F.2d 316, 320 (7th Cir. 1991); see also United States v. Carrillo, 561 F.2d 1125 (7th Cir.1977) (evidence of conduct which might have been the basis for state court prosecution admissible because it was "inextricably tied to basic elements of proof of filing false tax returns"). If we find the evidence is so related, the only limitation on the admission of such evidence is the balancing test required by Rule 403. This test permits the exclusion of relevant evidence if its prejudicial effect substantially exceeds its probative value. Id.

Had the trial court been required to decide whether the evidence was admissible under Rule 404(b), it would have had to apply a more elaborate, four-part test which we set forth in United States v. Zapata, 871 F.2d 616, 621 (7th Cir.1989). However, the government is correct as to the status of the evidence objected to, so the trial court had only to apply the simpler balancing test.

(7 F.3d at 1345).

The criticism

I have joined with Professors Dan Capra and Mike Martin in suggesting that cases such as Hilgeford are not successful in distinguishing between acts that are inextricably intertwined and those that are not. We question whether it is worthwhile to create a category of cases that are outside of Rule 404(b) when the prosecution offers evidence of acts not charged in the indictment:

Cases such as Hilgeford are more difficult than the conspiracy cases discussed above, because the bad acts in Hilgeford did not occur in the time period covered by the indictment. The fact that the act was probative of an element of the prosecution's case does not distinguish it from bad act evidence covered by Rule 404(b); presumably all evidence offered by the prosecution in a criminal trial must be somehow probative of an element of the crime. The difference between the evidence in Hilgeford and that in Huddleston, where the Supreme Court held that Rule 404(b) was applicable when a prior act was offered to show the knowledge element as to the charged crime, is at best one of degree rather than of kind.

We note that there is no significant cost to requiring a Rule 404(b) analysis; all the prosecution must do is establish a not-for-character purpose for the bad acts evidence, and give pretrial notice, as discussed below. Nor does avoiding Rule 404(b) absolve the Court of the duty, upon request, to provide a limiting instruction. Therefore, we suggest that Rule 404(b) should apply to all specific bad acts proffered by the prosecution, unless such acts occurred in the time period covered by the indictment and are substantively related to the charges.

(Stephen A. Saltzburg, Michael M. Martin & Daniel J. Capra, 1 Federal Rules of Evidence Manual 397-98 (7th ed. 1998) (footnotes omitted).

Recently the United States Court of Appeals for the District of Columbia has similarly called into question the notion that there should be an exception from Rule 404(b) for acts that are inextricably intertwined with charged offenses. The case is United States v. Bowie, 232 F.3d 923 (D.C. Cir. 2000).

The Bowie facts

Juan Bowie was arrested, prosecuted, and convicted for possession of counterfeit money. The money that led to the charges was discovered on May 16, 1997, when a joint Federal Bureau of Investigation/Metropolitan Police Department narcotics task force executed a search warrant at a Washington, D.C., apartment. While officers conducted the search inside the apartment, according to court papers, another officer was outside the apartment for security purposes. This officer noticed a man sitting in the passenger side of a parked car that had Tennessee license plates. The officer engaged the passenger in conversation, and the man consented to a search of the car, saying it belonged to "Boo," who was upstairs in the apartment building where the search was under way. Officers found Bowie, who identified himself as "Boo" but denied owning the car.

The consent to search the car resulted in the discovery of a large amount of counterfeit currency and several items linking Bowie to the money. More than $3,000 in counterfeit $20 and $50 bills was discovered inside a console between the driver's and passenger's seats. The bills were under a pager activation form signed by Bowie and dated May 16, 1997. Other identifying items included a Maryland traffic ticket issued 10 days earlier showing both Bowie's name and the license number of the car, and a court document that had Bowie's name printed along with his signature. As the search continued, an additional $90 in counterfeit bills was found inside the pocket of a black leather jacket in the trunk. The serial numbers on all of the bills were identical.

The search team notified Secret Service agents, who came to the scene and identified the serial number as one that was related to an ongoing investigation. The Secret Service took Bowie into custody. Although the agents would testify at trial that Bowie confessed to owning the money and to involving his brother and another person in the counterfeiting effort, the Secret Service found none of Bowie's fingerprints on the bills.

In order to prove Bowie's guilt, the prosecution sought to use evidence of Bowie's earlier arrest for possession of counterfeit money. On the morning of April 17, 1997, Bowie was involved in an automobile accident in a suburb of Washington, D.C. County police came to the scene and arrested Bowie on an outstanding warrant. They also impounded Bowie's car. The county police later did an inventory search of the car and found approximately $1,300 in counterfeit currency inside the pocket of a jacket. Although no counterfeit bills were found on Bowie, officers found an additional $80 in counterfeit money on the passenger.

When the officers searched the apartment and car a month later, they found that the serial number on all of the counterfeit money matched the number found on the money that was seized in April-a significant match.

During the April arrest, police found a bag containing a pair of Reebok shoes and socks and a receipt from a nearby store. The police went to the store and discovered a $50 counterfeit bill bearing the same serial number as the other bills found in Bowie's car. Although the manager of the store could not identify Bowie, he recalled that the man was wearing a black leather jacket. When Bowie was arrested approximately 40 minutes later, he had been wearing a black leather jacket.

The trial judge's ruling

The district court overruled Bowie's objection to the introduction of the April 17th evidence. First, the court ruled that Rule 404(b) did not apply because the acts were inextricably intertwined with the charged crime. The court reasoned that, because the serial numbers on the bills seized in April were identical to those seized in May, the April evidence was "in some sense really evidence of the same crime." (232 F.3d at 927). Second, the court ruled that the April 17th evidence was admissible under Rule 404(b) to prove intent and knowledge. It was the first ruling with which the court of appeals disagreed.

The court of appeals' reasoning

The court of appeals criticized the "inextricably intertwined" analysis as follows:

We begin with the district court's ruling that Rule 404(b) did not apply to the April evidence. The court relied on a line of decisions in this and the other circuits holding that Rule 404(b) does not apply to evidence that is "inextricably intertwined" with the crime charged. See, e.g., United States v. Allen, 960 F.2d 1055, 1058 (D.C. Cir. 1992). The theory is that because Rule 404(b) applies only to evidence of a defendant's "other crimes, wrongs, or acts," it creates a dichotomy between crimes or acts that constitute the charged crime and crimes or acts that do not.

* * *

As a practical matter, it is hard to see what function this interpretation of Rule 404(b) performs. If the so-called "intrinsic" act is indeed part of the crime charged, evidence of it will, by definition, always satisfy Rule 404(b). The rule bars bad acts evidence only when the evidence is offered solely to "prove the character of a person in order to show action in conformity therewith." Fed. R. Evid. 404(b). Evidence that constitutes the very crime being prosecuted is not of that sort. So far as we can tell, the only consequences of labeling evidence "intrinsic" are to relieve the prosecution of Rule 404(b)'s notice requirement and the court of its obligation to give an appropriate limiting instruction upon defense counsel's request. See Fed. R. Evid. 404(b) advisory committee's note on the 1991 amendment (indicating that the notice requirement does not apply to "intrinsic" evidence); Fed. R. Evid. 105 (mandating, upon request, limiting instruction for multi-purpose evidence); United States v. Lewis, 693 F.2d 189, 197 (D.C. Cir. 1982) (requiring a court to issue a limiting instruction without prior request only if the evidence "has the potential for substantially prejudicing the defendant."); United States v. Miller, 895 F.2d 1431, 1439 (D.C. Cir. 1990).

(232 F.3d at 927.)

The court of appeals also questioned whether the distinction between intrinsic and extrinsic facts was workable.

Bifurcating the universe into intrinsic and extrinsic evidence has proven difficult in practice. Which of a defendant's acts should be considered the charged crime and which should not is often uncertain. In order to brighten the line separating intrinsic and extrinsic evidence, many courts have focused on the connection between a given crime or act and the charged crime. When evidence is "inextricably intertwined" with the charged crime, courts typically treat it as the same crime. Every circuit now applies some formulation of the inextricably intertwined "test." See United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989); United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000); United States v. Gibbs, 190 F.3d 188, 217-18 (3d Cir.1999); United States v. Lipford, 203 F.3d 259, 268 (4th Cir. 2000); United States v. Morgan, 117 F.3d 849, 861 (5th Cir. 1997); United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995); United States v. Hughes, 213 F.3d 323, 329 (7th Cir. 2000); United States v. O'Dell, 204 F.3d 829, 833-34 (8th Cir. 2000); United States v. Matthews, 226 F.3d 1075, 1082 (9th Cir. 2000); United States v. O'Brien, 131 F.3d 1428, 1432 (10th Cir. 1997); United States v. Smith, 122 F.3d 1355, 1359 (11th Cir. 1997). This court has characterized evidence as inextricably intertwined with the charged crime in four cases. See United States v. Allen, 960 F.2d at 1058; United States v. Washington, 12 F.3d 1128, 1134-35 (D.C. Cir. 1994); United States v. Badru, 97 F.3d 1471, 1473-75 (D.C. Cir. 1996); United States v. Gartmon, 146 F.3d 1015, 1020 (D.C. Cir. 1998).

(232 F.3d at 927-28 (footnote omitted).)

The court of appeals concluded that not only is the line between intrinsic and extrinsic offenses difficult to draw, but that there is a danger when trial judges seek to find the line:

As we have written, treating evidence as inextricably intertwined not only bypasses Rule 404(b) and its attendant notice requirement, but also carries the implicit finding that the evidence is admissible for all purposes notwithstanding its bearing on character, thus eliminating the defense's entitlement, upon request, to a jury instruction. See Fed. R. Evid. 105. There is, as well, a danger that finding evidence "inextricably intertwined" may too easily slip from analysis to mere conclusion. What does the "inextricably intertwined" concept entail? When is a defendant's crime or act so indistinguishable from the charged crime that an item of evidence is entirely removed from Rule 404(b)?

We have not defined "inextricably intertwined" in the few Rule 404(b) cases in which we used those terms. See United States v. Allen, 960 F.2d at 1058; United States v. Washington, 12 F.3d at 1134-35; United States v. Badru, 97 F.3d at 1473-75; United States v. Gartmon, 146 F.3d at 1020. Our sister circuits have attempted various formulations. The Seventh Circuit, for instance, examines "whether the evidence is properly admitted to provide the jury with a complete story of the crime on trial, whether its absence would create a chronological or conceptual void in the story of the crime or whether it is 'so blended or connected' that it incidentally involves, explains the circumstances surrounding, or tends to prove any element of, the charged crime." United States v. Hughes, 213 F.3d 323, 329 (7th Cir. 2000). According to the Second Circuit, "evidence of uncharged criminal activity is not considered other crimes evidence under Fed. R. Evid. 404(b) if it arose out of the same transaction or series of transactions as the charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime on trial." United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000).

We do not find these formulations particularly helpful. Some are circular: inextricably intertwined evidence is intrinsic, and evidence is intrinsic if it is inextricably intertwined. Others are over-broad. The "complete the story" definition of "inextricably intertwined" threatens to override Rule 404(b). A defendant's bad act may be only tangentially related to the charged crime, but it nevertheless could "complete the story" or "incidentally involve" the charged offense or "explain the circumstances." If the prosecution's evidence did not "explain" or "incidentally involve" the charged crime, it is difficult to see how it could pass the minimal requirement for admissibility that evidence be relevant. See Fed. R. Evid. 401 and 402.

(232 F.3d at 928.)

In the end, the court of appeals boldly stated the following: "[W]e are confident that there is no general 'complete the story' or 'explain the circumstances' exception to Rule 404(b) in this Circuit. Such broad exclusions have no discernible grounding in the "other crimes, wrongs, or acts" language of the rule. Rule 404(b), and particularly its notice requirement, should not be disregarded on such a flimsy basis." (232 F.3d at 929.)

Addressing the facts

To demonstrate its concerns, the court of appeals turned to the Bowie facts and found that the district court was wrong to have concluded that the events on April 17 were part of the res gestae of the offense charged on May 16. The court reasoned that the April 17 evidence was within Rule 404(b) even if it "explained the events" or "completed the story." (232 F.3d at 929). It reasoned as follows:

As to Bowie's case, we do not see how his acts on April 17 constituted the same crime as that charged in the indictment. The authorities seized the counterfeit bills he had in possession on April 17, so the bills he possessed on May 16 could not have been the same ones. Contrast United States v. Towne, 870 F.2d 880, 886 (2d Cir. 1989) ("The continuous possession of the same gun does not amount to a series of crimes, but rather constitutes a single offense."). All of the bills-those recovered in April and those seized in May-were doubtless from the same supplier and possibly the same batch, and the evidence indicated that Bowie purchased them at one time. But the indictment charged him only with possession of the counterfeit bills found on May 16. Given the charge, the April evidence was relevant, for reasons we give later. But it cannot be that all evidence tending to prove the crime is part of the crime. If that were so, Rule 404(b) would be a nullity.

(232 F.3d at 929.)

Conclusion

Bowie highlights the concerns that Professors Martin and Capra and I already have raised with respect to a broad "inextricably intertwined" exception to Rule 404(b). Although Bowie is a decision by a single court of appeals, it is especially significant because the court clearly understood that it was criticizing a doctrine that had received widespread acceptance throughout the country.

The problems with the exception are real. The exception tends to cloud a clear analysis of Rule 404(b) issues and substitute a careful relevance and prejudice examination with boilerplate jargon. It deprives a defendant of the benefit of notice under Rule 404(b) and, as the Bowie opinion suggests, of the right to a limiting instruction upon request. It may also lead to a trial judge's failure to consider the possible prejudicial effect of other act evidence, since judges are unlikely to exclude evidence that is perceived as part of the charge brought by the government.

The rejection of the "inextricably intertwined" exception does not mean that trial judges should not consider evidence that actually proves the actus reus of charged crimes as "intrinsic" and admissible. The Bowie opinion "recognize[d] that, at least in a narrow range of circumstances not implicated here, evidence can be 'intrinsic to' the charged crime. Rule 404(b), for instance, would not have barred testimony from a witness who saw Bowie put the counterfeit currency in the Pontiac's console. Although such testimony relates to one of defendant's acts, the act is the charged crime of possessing counterfeit currency. See, e.g., Badru, 97 F.3d at 1474-75 (evidence 'offered as direct evidence of the fact in issue' is not an 'other' crime). In other words, if the evidence is of an act that is part of the charged offense, it is properly considered intrinsic." (232 F.3d at 929.) The same is true, I would argue, of the Pace case. The overt acts, whether or not all are alleged in the charging instrument or must be proved, are the acts of a conspiracy and ought not to be subjected to a Rule 404(b) analysis.

Bowie is a signal that it is unnecessary to create an exception to Rule 404(b) in order to permit the government to offer relevant evidence that supports its case. The Bowie opinion affirmed the district court's admission of the April 17 evidence to show knowledge and intent. Similarly, the Hilgeford opinion did not need to remove the other act evidence from Rule 404(b) to find it relevant and to hold that the district court did not err in admitting it.

The analysis set forth in cases such as Bowie demonstrates that defendants may obtain some procedural advantages when evidence is deemed within the reach of Rule 404(b) rather than outside it. So, defendants ought to welcome Bowie. Ironically, prosecutors, who might view Bowie as taking away something they prefer, may actually benefit along with defendants from a rejection of a broad view of "inextricably intertwined" evidence. The reason is that the more clearly a prosecutor focuses a trial judge on the probative value of other act evidence and the more clearly a trial judge considers any claim of prejudice, the greater the deference appellate courts will pay to the ruling admitting evidence. Reliance on an "inextricably intertwined" exception may make both prosecutors and judges a little lazy, whereas reliance on the precise reason for offering other act evidence may create a trial record that will withstand any appeal.

Stephen A. Saltzburg is Howrey Professor of Trial Advocacy, Litigation, and Professional Responsibility at George Washington University Law School in Washington, D.C. He is a contributing editor to Criminal Justice magazine and a member of the Section's Council.


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