How to Oppose the Government's Rule 404(b) Motion

United States v. Smith, No. 12-1516. Too often, it can seem that Rule 404(b) is applied in a manner that glosses over the government’s obligation to articulate how proffered evidence serves a proper purpose and why it warrants admission despite being prejudicial. In Smith, the Third Circuit offers a reminder that the strictures limiting admissibility under 404(b) are real.

Durrell Smith was charged with assaulting federal officers, possessing a firearm in furtherance of a crime of violence, and possessing a firearm as a convicted felon. He admitted that he had been in possession of a gun at the time of his arrest, but told police he had retrieved it moments before in self defense, fearing attack from whoever was in a car with tinted windows that had just pulled up across the street. In fact, the car was an unmarked police vehicle in which agents were conducting surveillance in an ongoing drug investigation.

At trial, the government sought to introduce evidence that two years earlier, Smith had been observed selling drugs on the same street corner. The government’s theory of admissibility was that this showed motive. Smith, the prosecutor argued, "has a history of selling heroin on this corner," tending to show that he would be inclined to assault officers to protect his "turf." The district court admitted the evidence and Smith was convicted.

In a unanimous opinion by Judge Fuentes, the Court held the evidence’s admission improper under Rule 404(b). The Court agreed that motive was relevant, and even that Smith had placed motive in controversy by claiming self defense. But this alone was not enough. Under Rule 404(b), "the proponent must set forth a chain of logical inferences, no link of which can be the inference that because the defendant committed offenses before, he therefore is more likely to have committed this one." The Court explained that the government’s motive theory embodied such a propensity inference because it required the jury to infer motive by reasoning that, since Smith was selling drugs two years earlier, he must have been doing so again -- and thus have "turf" to protect.

Moreover, the Court faulted the district court for the Rule 403 balancing it was required to conduct as one part of the Rule 404(b) analysis. The district court had stated that the earlier conduct was "significantly prejudicial" but, "given the issues in this case," not "unfairly prejudicial." This "recitation" was not sufficient because it did not address the "diminished probative value" of the prior bad act in light of its dissimilarity from the charged conduct: "one involved drugs and no gun and the other a gun and no drugs."

Smith illustrates the importance of making the government articulate the chain of inferences it wishes to have the jury draw. The government may not simply invoke "motive" or "knowledge" as a mantra. And the defense needs to insist on scrutiny of the proposed chain so that any forbidden propensity "link" is revealed, as well as to ensure that whatever force the government's inferences do carry is not exaggerated relative to prejudicial effect.

Congratulations to Kevin Carlucci and his colleagues in the Defender’s office in Newark.