Third Circuit Blog
COURT UPHOLDS PROHIBITION ON PROPENSITY EVIDENCE IN REVERSE 404(B) CASES. In USA v. Williams, 458 F.3d 312 (No.05-3772, Aug.18, 2006), the Third Circuit affirmed the district court's exclusion of defense evidence and held that under Fed.R.Evid 404(b), "reverse 404(b)" evidence of other crimes or bad acts cannot be offered by a defendant if its principal reason is to show the propensity of a third party to commit a crime. Defendant was charged with felonious possession of a gun after he was apprehended in a bedroom where the gun was found under a mattress. Two other men were also arrested in the house.
The defense theory was that the gun belonged to one of the co-defendants. It moved to introduce evidence under 404(b) that the co-defendant had a prior conviction for gun possession. It argued that under USA v. Stevens, 935 F.2d 1380 (3d Cir. 1991), defendants offering evidence of a third party's bad acts have a lower threshold than when such evidence is offered against the defendant. That case involved a bank robbery defendant who sought to introduce evidence of another robbery committed in a very similar manner in which he was not a suspect. It was offered to show identity between the two robberies, and the Third Circuit ruled the evidence admissible, finding that when evidence of other crimes of a third party is offered to show identity, a lower standard of similarity between the crimes should govern than when the evidence is offered against the defendant. In such cases of reverse 404(b) evidence, the court should allow it if its probative value is not substantially outweighed by risk of prejudice and other Rule 403 considerations.
Here, the court held that Stevens did not apply because propensity (not identity or other legitimate reason) was the only purpose for which the defense sought to introduce evidence of the co-defendant's prior conviction. The lower burden for reverse 404(b) evidence only applies when it is offered for a purpose other than propensity, and Stevens didn't change that basic mandate. The court also upheld the reasonableness of the sentence, finding that although there was no gun violence in the instant case, the district court did not abuse its discretion by making comments at sentencing about the general seriousness of gun violence and a recent shooting of a Newark police officer.