United States v. Briley, 770 F.3d 267 (4th Cir. 2014)
The defendant was charged with reckless conduct (publicly engaging in sexual activity in a national park) and assault, which was the result of his encounter with the police who were arresting him for the reckless conduct. At trial, the government offered evidence that not long after the charged offense, the defendant once again visited the park and was about to engage in sex in his vehicle. The encounter with the police the second time was uneventful. The evidence should not have been admitted, because it was only marginally relevant to his conduct in the earlier incident, it was primarily just propensity evidence.
United States v. Gutierrez-Mendez, 752 F.3d 418 (5th Cir. 2014)
The defendant was charged with human trafficking. Two years prior to the events in this case, he had been stopped on the road with two illegal aliens in his vehicle. The Fifth Circuit held that the government failed to meet the threshold Huddleston test that the prior event had even occurred. There was insufficient proof that the prior offense involved the knowing harboring of illegal aliens. Thus, it could not be relevant to proving the intent (or knowledge) that the defendant committed the offense of human trafficking as charged in this prosecution.
United States v. Caldwell, 760 F.3d 267 (3rd Cir. 2014)
In this trial for possession of a weapon by a convicted felon, the trial court erroneously permitted the government to introduce evidence of the defendant’s prior conviction for possession of a weapon by a convicted felon. The defendant denied possessing the weapon. The police testified that they saw the defendant with the gun in his hand. The government argued (and the trial court agreed) that the prior conviction was admissible to prove knowledge and intent. The Third Circuit reversed: the prior conviction did not prove anything about the defendant’s intent or knowledge in this case. The defense was that he did not possess the gun at all, so his knowledge or intent was not relevant. In addition, the government argued that the prior conviction was admissible pursuant to Rule 609, because the defendant testified and the prior conviction was introduced to impeach his credibility. The Third Circuit held that the Rule 403 balancing test weighed in favor of excluding this form of impeachment. This is a significant decision that devotes nearly 20 pages in the published opinion to the inadmissibility of the prior conviction under either the Rule 404(b) or Rule 609 bases.
United States v. Brown, 765 F.3d 278 (3rd Cir. 2014)
In a trial for possession of a firearm by a convicted felon, a prior conviction for engaging in a straw purchase was improperly admitted under Rule 404(b). In the charged offense, the defendant was in a car and the weapon was found under the seat. The fact that he illegally purchased a gun six years earlier was not relevant to whether he knowingly possessed the gun in the car. One of the government’s arguments for admissibility was to show that the defendant knew what a gun was. The court dispatched this theory of admissibility summarily.
United States v. Smith, 725 F.3d 340 (3rd Cir. 2013)
The defendant was standing on a street corner when federal agents were conducting surveillance nearby. The defendant left, but then returned and was seen walking towards the agents with a gun in his hand. He was arrested. He was charged with possession of a weapon by a convicted felon and with assault of a federal officer. He claimed that he retrieved the gun in self defense (there had been a shooting at that intersection recently) and never had the intent to assault the officers. The trial court permitted the government to introduce evidence that two years earlier, the defendant had sold drugs on that street corner. Admitting this evidence was reversible error. The district engaged in precisely the logic that Rule 404(b) forbids (i.e., the defendant previously was selling drugs at that location, so it is more likely that that is what he was doing that day). Though “motive” is a legitimate basis for introducing evidence, the governmet cannot use the prior offense to show that he was engaged in the same conduct again, which was the motive for committing the charged offense. The prior offense must itself provide the motive. In short, the chain of logic may not include a link that explains that “if he did it before, he is likely to have done it again (i.e., propensity).” The prior offense also did not qualify as a “common scheme or plan” because that principle applies when the uncharged crime and the charged crime are parts of a single series of events. Finally, the Third Circuit noted that the fact that the prior offense (drug dealing) was not the same as the charged offense (possession of a weapon and assault) is not what matters. Rule 404(b) is not limited to prohibiting evidence of “similar” crimes; it applies to any crime that is admitted, other than the crime with which the defendant is charged.
United States v. Mack, 729 F.3d 594 (6th Cir. 2013)
At the time the government introduced the defendant’s prior conviction for a prior robbery, there was insufficient evidence that he was, in fact, the perpetrator of the prior offense. All that was introduced was a copy of a judgment of conviction from a state court that had the same name as the defendant. Only when the defendant testified and admitted that he had that prior conviction was there sufficient information that he was the perpetrator and, of course, had the evidence not been admitted during the government’s case, he never would have addressed the topic during his testimony. In addition, the evidence of the prior robbery was insufficiently similar to justify its admission under Rule 404(b). The defendant’s charge in this case involved luring delivery drivers to vacant homes, stealing cell phones and carjackings. The prior offense was a typical street robbery. Admitting the evidence, however, was harmless error.
United States v. Hamilton, 723 F.3d 542 (5th Cir. 2013)
The defendant was charged with possession of a firearm by a convicted felon. The gun was found after the police followed the defendant from an apartment complex and stopped him and later found that the gun had been thrown from the vehicle shortly before it was stopped. At trial, the government offered evidence that the defendant had been a member of a gang. This was reversible error. There was no proof that the defendant was currently a member of a gang and absent that proof, the fact that he was formerly a gang member was prejudicial and not sufficienty probative.
United States v. Adams, 722 F.3d 788 (6th Cir. 2013)
At the defendants’ vote-buying trial, the government introduced evidence that numerous defendants were associated with drug dealers and that many of the co-conspirators had been involved in drug dealing. The government’s theory that this was admissible “background” evidence, or otherwise admissible under Rule 404(b) was rejected by the Sixth Circuit and the conviction was reversed. The appellate court also held that it was reversible error to admit a television “documentary” that discussed drug dealing in the county and suggested that the vote-buying scandal was somehow related.
United States v. Moore, 709 F.3d 287 (4th Cir. 2013)
The defendant was charged with carjacking, using a revolver to perpetrate the offense. The government was permitted to offer evidence at trial that the defendant possessed a semi-automatic firearm. This was error. The possession of one type of firearm is not probative that the defendant actually possessed another firearm that was used to commit the offense.
United States v. Qin, 688 F.3d 257 (6th Cir. 2012)
The defendant was charged with theft of trade secrets from GM. Previously (according to the government), he stole property from another employer. The Sixth Circuit affirmed the lower court’s decision excluding the evidence as too prejudicial and not sufficiently probative.
United States v. Clay, 667 F.3d 689 (6th Cir. 2012)
The defendant was charged with carjacking. The victim died before trial (unrelated to the carjacking) and another witness was unable to identify the defendant. The government introduced evidence that several years earlier, the defendant assaulted a girl on the side of the road and knocked her unconscious. Admitting this evidence was reversible error. The government reasoned that the prior assault showed that the defendant had the specific intent to cause the carjacking victim serious bodily harm or death. The Sixth Circuit held that the government’s argument was simply “propensity evidence” using different words. The government also introduced evidence that the defendant had stolen a gun from another car. There was no proof that this was the gun used and the theft from the other car was not logically related to the charged carjacking. Introducing the gun theft was also reversible error. Rehearing en banc was denied at 677 F.3d 753.
United States v. Curley, 639 F.3d 50 (2d Cir. 2011)
The defendant was charged with interstate stalking. Many years earlier, the defendant’s brother had assaulted the victim (the defendant’s wife). The Second Circuit held that admitting the defendant’s brother’s assault of the victim was reversible error, even though it may have contributed to the victim’s fear of the defendant himself. The Second Circuit also found it to be reversible error that fourteen months after the stalking incident, the defendant was stopped in a car and was found to be in possession of firearms, guns, a bullet proof vest, a ski mask and a will. There was too much speculation involved in linking the defendant’s conduct when he was stopped to the stalking incident.
United States v. Fawbush, 634 F.3d 420 (8th Cir. 2011)
The defendant was charged with molesting two young children. Evidence that he had previously molested his own daughters was improperly admitted as Rule 404(b) evidence in this case. In fact, even if there had been some relevance, the evidence would have been excludable pursuant to Rule 403 because of the highly inflammatory nature of the evidence (including the fact that one of his daughters fathered his child).
United States v. Wilson, 624 F.3d 640 (4th Cir. 2010)
In order to introduce Rule 404(b) evidence in the Fourth Circuit, the evidence must be “necessary” to prove an element of the charged offense. In this kidnapping case, evidence of a prior drive-by shooting was not necessary to prove an element of the kidnapping charge. Harrmless error.
United States v. Corsmeier, 617 F.3d 417 (6th Cir. 2010)
The defendant was charged with being part of a mortgage fraud conspiracy. On several occasions, brokers would give her small quantities of cocaine. The government argued that this evidence was admissible pursuant to Rule 404(b) to show her motive to engage in the fraudulent conduct. The trial court admitted the evidence on this theory. The Sixth Circuit held that this was error. First, the defendant engaged in the same fraudulent conduct with another broker who did not provide cocaine, so the motive theory was not particularly persuasive. Second, the prejudicial impact of this evidence far outweighed what little probative value it had. The evidence showed that the defendant was the kind of person who was willing to break the law and her entire defense was that she did not knowingly participate in the fraud scheme, because she was a successful businesswoman. This is the type of propensity evidence that is inadmissible under Rule 404(b).
United States v. Phaknikone, 605 F.3d 1099 (11th Cir. 2010)
A picture of the defendant on his MySpace page holding a gun, and which referred to him by the name “Trigga FullyLoaded” was not admissible in his bank robbery trial. Harmless error.
United States v. Klebig, 600 F.3d 700 (7th Cir. 2009)
The defendant was charged with possession of an unlawful unregistered firearm. His home was full of junk. A “breath-taking” amount, according to the Seventh Circuit. Items, including squirrel tails, oil cans, p*rnography, syringes, chemicals, prescription bottles were everywhere. The government sought to introduce a sign that said, “Nothing in here is worth dying for” and a surveillance system at the house. The government contended that the evidence was admissible to show “knowledge” that the sawed off shotgun had the characteristics that required it to be registered. The government also argued that the evidence was inextricably intertwined with the crime of possession. The Seventh Circuit disagreed and reversed the conviction. Whatever minimal relevance the evidence had, it was outweighed by its prejudicial effect.
United States v. Williams, 585 F.3d 703 (2d Cir. 2009)
The defendant was arrested outside an apartment after being chased by the police and charged with being a felon in possession of a firearm. The gun that was found was in a garbage can near where he was arrested and an officer testified that he saw what he believed to be a gun in the defendant’s pocket as he was fleeing in the direction of where he was eventually arrested. Later the police searched the apartment where it was believed that he had previously been. Inside the apartment were numerous firearms and ammunition, which the trial court permitted the government to introduce as “background” or “to complete the story” or “opportunity.” The Second Circuit reversed the conviction. The evidence was not relevant or admissible for any of these purposes and was inadmissible bad character evidence, at best.
United States v. Commanche, 577 F.3d 1261 (10th Cir. 2009)
The defendant was charged with assault with a dangerous weapon (a box-cutter) on Indian Territory. He claimed that he acted in self-defense. The government offered evidence of two prior aggravated battery convictions involving sharp instruments. This was error. The prior offenses served no purpose other than to show the defendant’s violent propensity. There was no showing that he claimed self-defense in the other cases. The government also introduced the evidence pursuant to Rule 609. However, this, too, was error, because the Rule 609 only authorizes the introduction of evidence of the fact of conviction, not the details of the prior convictions.
United States v. Morena, 547 F.3d 191 (3rd Cir. 2008)
Throughout the course of this firearm possession prosecution, the prosecutor repeatedly asked witnesses about the defendant’s drug use. There was no relevance of the drug use and the trial court repeatedly told the prosecutor to avoid this topic. The Third Circuit reversed the conviction, condemning the prosecutor’s behavior as governmental misconduct.
United States v. Reyes, 542 F.3d 588 (7th Cir. 2008)
The government offered evidence that the defendant and his confederates had participated in certain prior burglaries. The evidence of these prior offenses, however, was quite vague (even though the co-conspirators testified briefly about these prior events). This is one of the rare cases in which the appellate court holds that there was insufficient evidence that the defendant committed the similar transaction. Harmless error.
United States v. Stout, 509 F.3d 796 (6th Cir. 2007)
The district court correctly excluded evidence in this child p*rnography possession case that the defendant had previously been convicted of videotaping a fifteen year old neighbor in the shower. The 404(b) evidence was more lurid than the charged offense and was too prejudicial. The Sixth Circuit affirmed the trial court’s decision.
United States v. Jones, 484 F.3d 783 (5th Cir. 2007)
The defendant was charged with being a felon in possession of a firearm. The government sought to introduce a prior conviction for being a felon in possession of a firearm. The trial court erred in admitting the prior offense. The defendant was found in actual possession of the firearm in this case, so there was no probative value in introducing the prior conviction as far as his intent, or knowledge are concerned. See also United States v. Linares, 367 F.3d 941 (D.C. Cir. 2004).
United States v. Sumlin, 489 F.3d 683 (5th Cir. 2007)
The defendant was stopped on the highway by a drug interdiction officer. Numerous characteristics of the car suggested to the officer that the defendant was involved in drug smuggling. No drugs were found, however. A gun was found. The defendant was prosecuted for possession of a firearm by a convicted felon. At considerable length, the officer explained to the jury why the defendant was a suspected drug smuggler, including features of the car that suggested that the defendant was involved in drug dealing. The Fifth Circuit reversed: The government failed to satisfy the requirement that the extrinsic offense ever occurred, consequently, the evidence of the officer’s conjecture was inadmissible.
United States v. Rendon-Duarte, 490 F.3d 1142 (9th Cir. 2007)
Evidence that the defendant previously possessed weapons was inadmissible Rule 404(b) evidence in this prosecution for possessing a weapon by a convicted felon. Harmless error.
United States v. Ortiz, 474 F.3d 976 (7th Cir. 2007)
The trial court probably erred in permitting the government to introduce evidence that the defendant and the informant were formerly engaged in an armed robbery together for the purpose of explaining their conversations relating to the charged offense of possessing a weapon by a convicted felon. The government argued that they had developed a code and that their prior involvement in the robber offense was necessary to explain the code. The Seventh Circuit held that admitting the evidence was a “close question” but that it was clearly harmless.
United States v. Curtin, 489 F.3d 935 (9th Cir. 2007)
The defendant crossed a state line, according to the government, with the intent to have sex with a minor, with whom he had “chat room” discussions. He defended the charge on the basis that it was all just role play and he expected to meet an adult woman. In his possession when he was arrested was a “personal digital assistant” (PDA) with numerous stories about men having sex with young girls. The defendant’s subjective intent was the focus of the trial. The Ninth Circuit concluded, en banc, that pursuant to Rule 404(b), the contents of the PDA were admissible. However, the lower court failed to undertake the proper Rule 403 analysis and the conviction was therefore reversed. The trial judge failed to read the entirety of the stories that he admitted, relying, instead, on summaries and highlights.
United States v. Johnson, 439 F.3d 884 (8th Cir. 2006)
The defendant was charged with knowingly possessing child p*rnography. He denied knowingly possessing the p*rnography, pointing out that many of the images on his computer had never been viewed. At trial, the government introduced evidence of written material that was included on the computer involving child rape. The Eighth Circuit reversed the conviction, relying in part on its earlier decision in United States v. Heidebur, 122 F.3d 577 (8th Cir. 1997). In Heidebur, the court held that it was error to admit evidence that the defendant abused his child in a trial for possessing child p*rnography. Such evidence is nothing more than inadmissible propensity evidence. In this case, admitting the evidence of the written material relating to child rape was reversible error.
United States v. Owens, 424 F.3d 649 (7th Cir. 2005)
Evidence that a defendant previously robbed a bank was improperly admitted in this bank robbery trial. Based on the defendant’s defense, the prior robbery did not refute the defense offered by the defendant. For example, the defendant did not claim that he was a mere “pawn” in the charged offense (thus making the prior offense probative of his actual role in the charged offense). Moreover, because bank robbery is a general intent crime, the prior offense did not establish the defendant’s mens rea for the charged offense.
United States v. Fleck, 413 F.3d 883 (8th Cir. 2005)
The police went to the defendant’s house as part of an insurance fraud investigation. While there, the police found guns and the defendant was charged with possession of a weapon by a convicted felon. The trial court erred in permitting the government to introduce evidence of the insurance fraud information “to explain the officer’s conduct” or to more fully explain the circ*mstances of “the crime.” Neither reason justified introducing the evidence.
United States v. Griffin, 389 F.3d 1100 (10th Cir. 2004)
The trial court erred in permitting the government to offer evidence from the defendant’s probation officer that the defendant knew that he was not permitted to possess a firearm. The defendant was on trial for being a felon in possession of a firearm. There is no requirement that the government prove that the defendant knew he was not permitted to possess a firearm. Thus, the evidence was irrelevant and the probation officer should not have been permitted to recite all the terms and conditions of the defendant’s probation. Harmless error.
Gibson v. Ortiz, 387 F.3d 812 (9th Cir. 2004)
The California state jury instruction in this case provided that a prior sexual offense need only be proven by a preponderance of the evidence; and that a prior sexual offense, if proven, could lead to the inference that the defendant committed the charged offense. This violated the due process clause, because it suggested a burden of less than proof beyond a reasonable doubt. The court also held that inconsistent instructions that emphasized the proper burden of proof did not cure the infirmity. “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” Francis v. Franklin, 471 U.S. 307, 322 (1985). See also Doe v. Busby, 661 F.3d 1001 (9th Cir. 2011). The Ninth Circuit later overruled Gibson v. Ortiz, on the basis that it applied the incorrect AEDPA standard of review. Byrd v. Lewis, 566 F.3d 855 (9th Cir. 2009).
United States v. Linares, 367 F.3d 941 (D.C. Cir. 2004)
The defendant was charged with being a felon in possession of a firearm. He denied ever possessing the gun. The government introduced evidence that he possessed (and threw down) a gun several years earlier in Connecticut. This evidence was not admissible to prove knowledge, or lack of mistake (because, though knowledge is an element of the offense of possession, there was no issue in this case that he “unknowingly” or “mistakenly” possessed the firearm and the previous conduct would not be relevant to prove that he knowingly possessed the weapon in this case); or to prove intent – because intent is not an element of a possession offense. The defendant must know that he possesses the weapon, but there is no additional “intent” element of the offense. Given the overwhelming evidence, however, erroneously admitting this evidence was harmless.
United States v. Moore, 375 F.3d 259 (3rd Cir. 2004)
Defendant was charged with arson and possession of a weapon by a convicted felon. Throughout the trial, the prosecutor introduced various “bad acts” evidence that had no bearing whatsoever on the charged offenses, including domestic abuse and drug dealing. No objection was raised by the defense attorney. Then, in closing argument, the prosecutor labeled the defendant a terrorist. Again, no objection. The Third Circuit held that the prosecutor’s behavior amounted to plain error and reversed the conviction, noting, “There was a serious break down here.”
United States v. Jackson, 339 F.3d 349 (5th Cir. 2003)
In this conspiracy case (interstate transportation of stolen jewelry), the government was permitted to introduce evidence that the defendant had a prior conviction for theft of watches. The government argued that this established the defendant’s state of mind. The Fifth Circuit concluded that the evidence was admissible to prove the state of mind element of the conspiracy offense, but that the probative value was outweighed by its prejudicial effect (Rule 403). The defendant’s defense at trial was that the government had the wrong guy. Thus, while the government was still required to prove that the defendant had the requisite state of mind, the importance of the evidence on this issue was considerably diminished in light of the defense raised by the defendant. The trial court also erred in permitting the government to introduce evidence that the defendant was on parole.
United States v. Thomas, 321 F.3d 627 (7th Cir. 2003)
The defendant was tried for possessing a firearm by a convicted felon. Introducing evidence that he had two prior state court gun convictions and that he had a tattoo of two guns on his forearms was error. This was improper propensity evidence.
United States v. Latouf, 132 F.3d 320 (6th Cir. 1997)
The defendant was charged with conspiring to burn down her restaurant to collect the insurance proceeds. The government offered evidence that the defendant had previously made comments to two employees that she would pay someone $5,000 to burn her house down. The Sixth Circuit concluded that the probative value of this evidence was outweighed by its prejudicial impact. The defendant's financial motive for burning the restaurant was abundantly established by other evidence, so the Rule 404(b) evidence was not necessary to show financial motive. Harmless error.
People of Territory of Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir. 1998)
The defendant was charged with molesting and sexually assaulting numerous young boys. The government introduced evidence that he had various sexually-explicit hom*osexual magazines in his house. The government argued that his proved his “intent” and his knowledge that having sex with minors was illegal. But the defense at trial was that he did not engage in the charged conduct. The Ninth Circuit reversed the conviction. “The mere possession of reading material that describes a particular type of activity makes it neither more nor less likely that a defendant would intentionally engage in the conduct described.” Moreover, introducing the evidence to prove his “propensity” is precisely what is prohibited by Rule 404(b). The court further noted that literature is filled with criminal behavior, ranging from Lolita to Les Miserables. Finally, possession of these materials did not qualify as a “bad act” and was thus not admissible under any Rule 404(b) theory. See also United States v. Curtin, 489 F.3d 935 (9th Cir. 1007) (en banc) – partially overruling Shymanovitz. In Curtin, the court held that the evidence was admissible under Rule 404(b), but the lower court failed to properly undertake the Rule 403 analysis.
United States v. Mills, 138 F.3d 928 (11th Cir. 1998)
The trial court erred in admitting evidence that the defendant had committed a similar crime previously. The defendant was charged with violating 18 U.S.C. § 1001, as part of a Medicaid fraud scheme. The government introduced evidence that she had lied to U.S. Customs about a jewelry purchase upon returning to the United States from overseas travel. The government's theory was that she was the type of person who would lie to the government. This is precisely what is forbidden by Rule 404(b) – that is, propensity evidence. Harmless error.
United States v. Utter, 97 F.3d 509 (11th Cir. 1996)
The defendant’s business burned down. Evidence was introduced by the government that one of the defendant’s residential tenants was behind in her rent and the defendant threatened to burn her property if she did not pay up. This evidence was inadmissible. The government also introduced evidence of a fire at the defendant’s residence in Kentucky. The government failed to show that that fire was caused by arson, or that the defendant was the perpetrator. Reversible error.
United States v. Gonzalez, 975 F.2d 1514 (11th Cir. 1992)
The trial court committed reversible error in failing to give a limiting instruction to the jury relating to 404(b) evidence. Defendant was charged with a conspiracy to engage in money laundering. Substantial evidence was introduced relating to events which occurred prior to the time of the conspiracy as set forth in the indictment. The failure to instruct the jury about the limited relevance of such evidence seriously prejudiced the defense. The trial court should have instructed the jury that the evidence of similar transactions may not be the basis of the conviction, though such evidence could be considered as to issues of knowledge and intent.
United States v. Hines, 955 F.2d 1449 (11th Cir. 1992)
It was reversible error to allow the government to introduce mug shots of the defendant in an effort to show that the complainant had previously identified the defendant as the perpetrator. The use of the mug shots impermissibly showed that the defendants were previously in custody and were “known criminals.”
United States v. Church, 955 F.2d 688 (11th Cir. 1992)
Though the error was harmless, the trial court erred in admitting evidence that some four years before the charged murder conspiracy, the defendant had engaged in a conversation with an informant that he would assist in the murder of a prosecutor of another individual. Because the extrinsic offense occurred four years prior to the charged offense, it was not probative of the defendant’s state of mind at the time of the charged offense. The evidence, moreover, was likely to prejudice the jury, because it related to the murder of a prosecutor. Under the Rule 403 balancing test, the evidence should not have been admitted. In gauging the question of when a prior offense is too remote, one factor to consider is the nature of the crime: Prior crimes involving deliberate and carefully premeditated intent – such as fraud and forgery – are far more likely to have probative value than prior crimes involving a quickly and spontaneously formed intent – such as assault.
United States v. Philibert, 947 F.2d 1467 (11th Cir. 1991)
The defendant was charged with making a threatening phone call. The prosecutor should not have been allowed to introduce evidence that several weeks before the threat, the defendant had purchased guns and ammunition. The error was exacerbated by the prosecutor’s presentation of the guns to the jury, including a Thompson machine gun.
United States v. Lequire, 943 F.2d 1554 (11th Cir. 1991)
The improper questions posed by the prosecutor which inevitably elicited evidence of the defendant’s prior indictments and convictions were grounds for reversal. Curative instructions from the trial judge were not adequate to cure the error.
United States v. Lail, 846 F.2d 1299 (11th Cir. 1988)
The defendant was charged with bank robbery. The government introduced evidence of another armed robbery which occurred close to the same time as the charged armed robbery. The defendant’s case rested on his presentation of alibi witnesses. The Eleventh Circuit holds that the 404(b) evidence was not admissible. The uncharged bank robbery was not sufficiently similar to the charged crime to admit such evidence to establish identity. In order to admit uncharged crimes on the basis of identity, there must be sufficient similarity that the perpetrator virtually left his “signature.” Here, the mere fact that in both cases the robber acted alone with a gun and without a disguise is not sufficient to constitute sufficient similarity to admit the evidence under the identity rule. Furthermore, there were sufficient dissimilarities between the charged and uncharged crime that the evidence should have been excluded.
United States v. Rhodes, 886 F.2d 375 (D.C.Cir. 1989)
It was plain error to permit the government to introduce evidence of fraudulent checks which were in no way connected to the indicted offenses involving bank fraud and forgery.
