Federal Evidence Review

Circuit rejects argument that prior precedent was wrong about rule's inclusiveness in United States v. Cole, 537 F.3d 923 (8th Cir. Aug. 12, 2008) (No. 08-1091)

In Cole, the Eighth Circuit was presented with the argument that prior circuit precedent “improperly interpret[ed] FRE 404(b) as a rule of inclusion.” Cole, 537 F.3d at 928. The circuit noted: “We have long viewed Rule 404(b) as a rule of inclusion, and in our circuit, one panel is not at liberty to overrule the decision of another.” Cole, 537 F.3d at 928 (citing United States v. Brown, 499 F.3d 817, 822 (8th Cir. 2007) (“Rule 404(b) is a rule of inclusion, and when determining the admissibility of Rule 404(b) evidence, courts consider the following: whether the evidence is relevant, similar in kind and close in time to the crime charged, proven by a preponderance of the evidence, and not unfairly prejudicial.”), cert. denied, 128 S. Ct. 1222 (2008); other citation omitted).

On the merits of the drug case, the circuit had little difficulty affirming the admission of the defendant’s three prior state convictions, including two for possession of marijuana and one for possession of marijuana along with possession of cocaine base with intent to distribute, occurring within three to seven years prior to the charges. After a search warrant resulted in the discovery of crack cocaine, marijuana and other tools of the trade at the defendant’s residence, he was charged with possession with intent to distribute 5 grams or more of crack cocaine within 1,000 feet of a school after a prior felony drug conviction, and possession of marijuana after two previous possession of marijuana convictions. The offenses were similar and close in time, including time the defendant had spent in jail. The prejudicial impact from the prior convictions was minimized by a stipulation which noted the dates and offenses of conviction, and the trial court’s limiting instruction.

The Cole case is a reminder that some courts consider FRE 404(b) to be an inclusive rule. While FRE 404(b) clearly specifies impermissible bases to admit uncharged other act evidence (inadmissible “to prove the character of a person in order to show action in conformity therewith”), the rule expressly acknowledges permissible grounds to admit the evidence upon a proper showing (“admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident”).