United States v. Robin Rochelle Lucas , 357 F.3d 599 ( 2004 )

CONCURRENCE

ROSEN, District Judge,

concurring.

I agree with the majority and join in affirming Lucas’s conviction and sentence. I write separately, however, on the “reverse 404(b)” issue discussed in Part II of the majority opinion as I find the relevancy/prejudice test and rationale set out by the Third Circuit in United States v. Stevens, 935 F.2d 1380 (3rd Cir.1991), more compelling than the standard Rule 404(b) analysis adopted by the majority where, as here, the prior “bad act” is that of an absent third party, not that of the defendant, and the evidence is not being used by a prosecutor against a defendant, but rather is offered as exculpatory evidence by the defendant.

Lucas’s defense at trial was that Morell Presley, not Lucas, committed the crime with which she was charged. To support this defense, Lucas sought to admit evidence of Presley’s prior conviction for possession with intent to distribute cocaine. The district court denied this request finding that it was more prejudicial than probative. Although not disagreeing with the district court’s finding, the majority now holds that the straightforward relevance/prejudice analysis under Rules 401 and 403 is inapplicable in the context of “reverse 404(b)” evidence.¹ Under the majority’s ruling here, evidence of “other crimes,” whether offered to incriminate or to exonerate the defendant, is subject to a straightforward application of Rule 404(b).

Fed.R.Evid. 404(b) provides:

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, preparation, plan, knowledge, identity, or absence of mistake or accident.

Observing that the Rule is directed to evidence of other acts of “a person ” and not only the other acts of “a defendant,” the majority finds that the standard Rule 404(b) analysis should apply with respect Morell Presley’s prior conviction for possession with intent to distribute cocaine. Because Lucas failed to demonstrate that Presley’s conviction could have been offered for any purpose other than to prove Presley’s propensity to commit the crime with which Lucas was charged, the majority finds admission of the evidence to be precluded by a straightforward application of Rule 404(b).

Although at first blush, the majority’s “plain language of the rule” approach carries some weight and finds some support in the case law, a closer examination of the policies underlying Rule 404(b) and the case law addressing the “reverse 404(b)” evidence issue, persuades me that the Rule 404(b) should not be applied in cases where, as here, the defendant offers prior act evidence of a third party to prove some fact — even propensity — relevant to the defense.

First, both the source and policy underlying Rule 404(b) demonstrate that the Rule is intended to protect a patty to the litigation — in particular, the criminal defendant — from the prejudice of the propensity/character taint danger. Rule 404(b)’s basic rule of exclusion — that 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 — has its source in the common law. The common law rule was that “the doing of a criminal act, not part of the issue, is not admissible as evidence of the doing of the criminal act charged.” See Wigmore, Code of Evidence, 3d ed., p. 81. See also, United States v. Dudek, 560 F.2d 1288, 1295-96 (6th Cir.1977) (noting that Fed.R.Evid. 404(b) restates the common law). The policy underlying the common law rule was the protection of the criminal defendant. See Wright & Graham, Federal Practice and Procedure: Evidence, § 5239, pp. 436-439.

Rule 404(b) continues the policy of the common law. Id. at 439. This is clear from this Court’s observation in United States v. Phillips, 599 F.2d 134 (6th Cir.1979). In Phillips, the Court noted that Rule 404(b)’s exclusionary rule addresses two main policy concerns:

(1) that the jury may convict a “bad man” who deserves to be punished not because he is guilty of the crime charged but because of his prior or subsequent misdeeds; and (2) that the jury will infer that because the accused committed other crimes, he probably committed the crime charged.

599 F.2d at 136.

Professor Weissenberger explained these policy concerns in his treatise as follows:

[Ejvidence of the extrinsic act is excluded because it is thought that the jury might punish an individual for the discrete conduct rather than weighing only the direct evidence of the charged crime. Another policy supporting Rule 404(b) is a recognition of the danger that the jury may misestimate the probative value of the extrinsic act evidence in evaluating its significance.... The natural and inevitable tendency of the tribunal— whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take proof of it as justifying a condemnation irrespective of guilt of the present charge.

Weissenberger’s Federal Evidence, § 404.12 3d. ed. (1998).

The foregoing discussion demonstrates that the principal policy consideration underlying Rule 404(b)’s exclusionary rule is to protect the parties in an action, and in particular, criminal defendants, from the danger of unfair prejudice. The danger of prejudice to a party — particularly a criminal defendant — -however, does not exist in the context of “reverse 404(b)” evidence where, as here, the defendant offers evidence of other crimes or bad acts of a third party exculpatorily.

Notwithstanding these policy considerations, because of the language used in Rule 404(b), i.e., the use of “a person” instead of “a party”, the courts have not treated “reverse 404(b)” evidence uniformly and the circuits are divided on the issue of the Rule’s applicability with regard to such evidence. The Seventh and the Ninth Circuits, like my colleagues on the panel in this case, have taken a “plain language” approach, and because Rule 404(b) speaks not of the parties to a case but of “a person,” have held that Rule 404(b) applies not only to the extrinsic acts of the parties but also to the acts of absent third parties. See Agushi v. Duerr, 196 F.3d 754, 759-761 (7th Cir.1999); United States v. McCourt, 925 F.2d 1229 (9th Cir.1991).

However, the First, Second, Third, Fifth and Eleventh Circuits have taken the opposing view and have all determined that Rule 404(b) is not applicable to evidence of acts of third parties. See United States v. Gonzalez-Sanchez, 825 F.2d 572, 582 (1st Cir.1987), cert. denied, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508; United States v. Aboumoussallem, 726 F.2d 906, 911-912 (2nd Cir.1984); United States v. Stevens, 935 F.2d 1380 (3rd Cir.1991); United States v. Krezdorn, 639 F.2d 1327, 1332-33 (5th Cir.1981), cert. denied, 465 U.S. 1066, 104 S.Ct. 1416, 79 L.Ed.2d 742 (1984); United States v. Morano, 697 F.2d 923, 926 (11th Cir.1983). These courts were persuaded by the policy underpinnings of Rule 404(b). The Eleventh Circuit’s explanation in United States v. Krezdorn, supra, is illustrative:

The extrinsic acts rule is based on the fear that the jury will use evidence that the defendant has, at other times, committed bad acts to convict him of the charged offense. Consequently, where the only purpose served by extrinsic offense evidence is to demonstrate the propensity of the defendant to act in a certain way, the evidence must be excluded. When, however, the extrinsic offense was not committed by the defendant, the evidence will not tend to show that the defendant has a criminal disposition and that he can be expected to act in conformity therewith. When the evidence will not impugn the defendant’s character, the policies underlying Rule 404(b) are inapplicable.

639 F.2d at 1332-1333 (citations omitted).

Courts adopting the policy approach to Rule 404(b) found that policy considerations were particularly persuasive with regard to evidence of acts of third parties offered exculpatorily by criminal defendants. For example, in United States v. Aboumoussallem, supra, a narcotics trafficking defendant sought to offer in support of his defense that he had been duped into transporting the drugs by his cousins evidence that a few months earlier, another individual had been similarly duped by these same cousins to transport narcotics. The district court excluded the evidence as not relevant, more prejudicial than probative, and not admissible under Rule 404(b). The Second Circuit disagreed with the district court’s determination that the defendant’s proffered evidence was not relevant and inadmissible under Rule 404(b), explaining:

We believe the standard of admissibility when a criminal defendant offers similar acts evidence as a shield need not be as restrictive as when a prosecutor uses such evidence as a sword. The prosecution, in the Anglo-American tradition, may not ordinarily offer evidence of a defendant’s prior wrongdoing for the purpose of persuading the jury that the defendant has a propensity for crime and is therefore likely to have committed the offense for which he stands trial. As Dean Wigmore points out, the evidence is objectionable not because it has no appreciable probative value but because it has too much. Presumably, the “too much” argument means that a guilty person, and, of far more serious concern, an innocent person, may be convicted primarily because of the jury’s willingness to assume his present guilt from his prior misdeed.

Wigmore also identifies objections based on the risk that the jury will convict because the defendant may not have been punished for his prior offenses and the injustice of requiring the defendant to defend against a series of accusations. These possibilities of prejudice must be assessed even in cases where the prosecutor offers similar acts evidence, not to prove the character of the accused, but to prove one of the permissible subsidiary facts listed in Rule 404(b), such as intent or plan. However, risks of prejudice are normally absent when the defendant offers similar acts evidence of a third party to prove some fact pertinent to the defense. In such cases the only issue arisiny under Rule 404(b) is whether the evidence is relevant to the existence or non-existence of some fact pertinent to the defense.

726 F.2d at 911-912 (citations and footnotes omitted; emphasis added).

The absence of prejudice in the context of “reverse 404(b)” evidence was similarly emphasized by the Third Circuit in Stevens, supra, 935 F.2d at 1404, and by the New Jersey Supreme Court in State v. Garfole, 76 N.J. 445, 388 A.2d 587 (1978), which both the Stevens court and the Aboumoussallem court cited with approval:

... [Ojther-crimes evidence submitted by the prosecution has the distinct capacity of prejudicing the accused. Even instructions by the trial judge may not satisfactorily insulate the defendant from the hazard of the jury using such evidence improperly to find him guilty of the offense charged merely because they believe he has committed a similar offense before.... But when the defendant is offering that kind of proof excul-patorily, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility, since ordinarily, and subject to rules of competency, an accused is entitled to advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made.

Id., 76 N.J. at 452-53, 388 A.2d at 591 (footnote omitted).

It was precisely because of the absence of prejudice to the defendant that the Third Circuit held in Stevens that admissibility of “reverse 404(b)” evidence was governed by the relevancy/prejudice considerations of Fed.R.Evid. 401 and 403:

We agree with the reasoning of Garfole and with its holding that the admissibility of “reverse 404(b)” evidence depends on a straightforward balancing of the evidence’s probative value against considerations such as undue waste of time and confusion of the issues. Recasting this standard in terms of the Federal Rules of Evidence, we therefore conclude that a defendant may introduce “reverse 404(b)” evidence so long as its probative value under Rule 401 is not substantially outweighed by Rule 403 considerations.... [Thus], a defendant must demonstrate that the “reverse 404(b)” evidence has a tendency to negate his guilt, and that it passes the Rule 403 balancing test.

935 F.2d at 1404-05 (footnote omitted).

I agree with the reasoning of the Second and Third Circuits. In my view, the simple fact that proffered evidence involves somebody’s prior bad act — not the defendant’s — does not automatically bring it under the Rule 404(b) rubric and admission standard. The entire 404(b) paradigm is intended to protect a party to the litigation from the prejudice of the propensity/character taint danger. The danger of prejudice to a party,- — particularly a criminal defendant — however, does not exist in the context of “reverse 404(b)” evidence; indeed, it is that party which the Rule is intended to protect who is offering the evidence.

I find the Third Circuit’s reasoning particularly persuasive and would apply the relevancy/prejudice test established in Stevens here because, where the character interests and inferences of a party are not implicated, there is simply no evidentiary policy or purpose served by precluding a propensity consideration by the jury that is not already addressed by the traditional Rule 401/403 evidentiary analysis. (For example, any concerns about prejudice to a party — here, the Government — or confusion of the issues, by admission of the evidence would be adequately dealt with in the context of a Rule 403 analysis.)

In this case, there seems little doubt that Presley’s prior conviction for cocaine distribution would tend to negate Lucas’s guilt by corroborating her defense that the drugs were Presley’s, not hers, albeit through the propensity inference, and there can be no serious question, therefore, that such evidence is relevant. Further, the danger of character taint posed by the propensity inference is not present here because Presley, whose character would be tainted, is not a party. Therefore, the more rigidly constructed constraints of Rule 404(b) need not and should not apply. Instead, this should be treated as a simple relevance issue and, since the proffered evidence has a tendency to negate Lucas’s guilt, it passes Rule 401 relevancy muster.

This leaves only the Rule 403 part of the analysis. The disputed evidence is especially probative here because the Defendant testified and her credibility was, in the absence of much other independent evidence showing her involvement with the drugs, an important element for the jury to weigh. Unlike the district court, I would have found that the probative value of the evidence of Presley s prior conviction was not substantially outweighed by the dangers of prejudice or confusion, particularly with the availability of a limiting instruction, and would have admitted the evidence. But, the standard of review is abuse of discretion, and although I believe this presents a close question, the fact that I would have admitted the evidence does not mean that the trial judge here abused his discretion in excluding it. I am particularly persuaded that there is no abuse of discretion here since the issue is a close one and there is a split in the circuits as to the appropriate standard to apply to reverse 404(b) evidence — and, I agree with the majority that the only use of the evidence here would have been for the propensity inference, and that is not permitted by the straightforward Rule 404(b) analysis applied by the majority and the other circuits that have adopted this test.² Accordingly, with respect to the reverse 404(b) issue, I concur in the result reached by majority although not in its analysis. With respect to all of the other issues presented, I join in the majority opinion.

1 . To the extent that the majority's opinion can be read to imply that a Rule 403 probative value/prejudice analysis is not part of a traditional Rule 404(b) analysis, that would be an inaccurate statement of the law. Well-settled law clearly provides that a Rule 403 balancing is an essential part of a Rule 404(b) analysis. See e.g., United States v. Largent, 545 F.2d 1039, 1043 (6th Cir.1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1117, 51 L.Ed.2d 546 (1977); United States v. Ring, 513 F.2d 1001, 1005 (6th Cir.1975); United States v. Blankenship, 775 F.2d 735, 739 (6th Cir.1985); United States v. Vance, 871 F.2d 572, 575 (6th Cir.1989), cert. denied, 493 U.S. 933, 110 S.Ct. 323, 107 L.Ed.2d 313 (1989); United States v. Blakeney, 942 F.2d 1001, 1018 (6th Cir.1991), cert. denied, 502 U.S. 1035, 112 S.Ct. 881, 116 L.Ed.2d 785 (1992).

2 . I have somewhat the same view about the jail rape evidence offered by way of explanation for Defendant’s nervousness. The rather circumscribed, limited testimony she was allowed to give — that she was afraid of going to jail (as would be most people) hardly gives the same texture and context to her nervous reaction as does the purported real reason (i.e., the rape experience). Indeed, taken alone, the limited "afraid of going to jail' reason she was allowed to testify to seems to be a weak one and the jury might well have been misled by it. But again, although I might have allowed Defendant to testify that she was raped while in jail, I cannot say that the trial judge abused his discretion in keeping that testimony out.