Thursday, November 13, 2008

The Good and the Bad of 404(b)

Today in United States v. Davis, the Sixth Circuit reversed a district court's admission of 404(b) evidence offered by the government. Kevin Davis was charged with possession of more than 50 grams of crack cocaine with the intent to distribute and conspiracy to distribute crack cocaine. On appeal, Mr. Davis challenged both the sufficiency of the evidence offered to support the conspiracy conviction, and the government's introduction of prior acts evidence against him during trial. The Sixth Circuit found the evidence sufficient, but that the district court erred in admitting the 404(b) evidence.

At trial, the government sought to introduce evidence of a prior sale of marijuana by the defendant, using his now government-witness cousin to set up his sale. Because the government alleged that the same cousin was used to set up the sale charged in the indictment, the government sought to introduce evidence of this prior sale as proof of "whether the other act was committed in preparation for the offenses he is on trial for, or as part of the pattern of related conduct." The Sixth Circuit found that these were not legitimate purposes in the current case.

First, the Sixth circuit found that the prior sale of marijuana was not necessary for the completion of the sale of crack cocaine. The court instructed that for 404(b) evidence to be properly admitted under the preparation exception was limited to evidence that supported a finding of preparation "for the instant offense." Because the sale of marijuana could not be shown to be in preparation for the sale of crack cocaine, the Sixth Circuit found that this was an improper purpose for admitting the evidence.

Second, the court found that "pattern of related conduct" was not one of the permissible purposes enumerated in 404(b). The Court did find that pattern is often used to establish another permissible purpose, that of the identity of the defendant. However, the Court noted that the pattern evidence was not introduced in this case to show the defendant's identity, and that Mr. Davis's identity was not at issue.

Finally, the Sixth Circuit did the government's job for them on remand going into a long discussion regarding whether or not Mr. Davis's intent was at issue, and whether that intent could have been properly used to support the admission of the prior act evidence. The Court did find that the government did not argue, and the district court did not instruct on identity, so that it could not be properly used for that purpose under the current posture of the case. However, when the case is remanded for a new trial, the Sixth wanted to make sure to identify intent as the buzz word the prosecutor should argue when seeking to introduce the identical evidence at the new trial.

The Sixth Circuit, at least, did note that "[u]sing pattern to show intent is different from using it to show propensity, but it is close enough that it increases the importance of a clear instruction." Under the Sixth Circuit's theory, any prior bad act that can even remotely be related to a specific intent crime is admissible to prove that specific intent crime, but the district court needs to give a proper instruction. Seeing as the court remanded the case for a new trial, this example of the Sixth Circuit instructing the government on how they should properly prosecute their cases is rather disturbing. What is even more disturbing is that the Sixth Circuit failed to analyze under 403 whether or not the admission of an unrelated marijuana sale to show the (propensity of the defendant to engage in drug sales, c'mon that is really what is going on here) intent of the defendant to conspire to distribute the drugs was more probative than prejudicial.

McKeague wrote a concurrence, stating that he would have affirmed the conviction "had the issue of identity been raised on appeal."