The Third Circuit issued another strongly worded precedential Rule 404(b) opinion today, explaining that the strictures of the rule are often "honored in the breach" by district courts.
In United States v. Terrell Davis, No. 12-1486, the Third Circuit held that the government's barebones evidence that the defendant had twice been convicted of simple possession of cocaine was not admissible at his trial for possession with intent to distribute a kilo of cocaine. The cocaine was in the back seat of the car Davis was riding in. In its motion to admit the simple possession convictions, the government argued a litany of enumerated Rule 404(b) purposes. On appeal, the government argued the evidence was admissible to prove knowledge that the drugs were in the back of the vehicle and/or Davis's intent to distribute the drugs. The government did not offer any any evidence to prove that the cocaine from Davis's past simple possession convictions was similar in appearance, quantity, or form to what was found in the vehicle on this occasion.
This second Rule 404(b) opinion of the week really sheds light on the second Huddleston prong - relevancy. The Court dug into the simple possession convictions, noting that simply because Davis possessed drugs before in some unknown quantity or form (i.e. powder, or crack, etc.) did not mean that he knew what the compressed powder cocaine was in this case. Similarly, with respect to intent, Davis' prior simple possession of drugs was hardly relevant to his intent to distribute, since far more people use drugs than sell them.
The Third Circuit also highlighted the district court's error at the fourth and final Huddleston prong - the cautionary instruction. Here, the district court did not caution the jurors regarding the limited purpose for the evidence at the time the evidence was presented. It only instructed the jury during the final jury charge. Furthermore, rather than specifying the limited purpose for which the court admitted the evidence, knowledge, the district court read off the litany of enumerated Rule 404(b) purposes in its instruction.
This opinion highlights the importance of challenging every step of the Huddleston test in defense responses to the government's motions to admit Rule 404(b) evidence.
The opinion is located here: http://www2.ca3.uscourts.gov/opinarch/121486p.pdf