Understanding The Foundation For Admission Of FRE 404(b) Other Act Evidence

In trial for possession with intent to distribute cocaine base (crack), because the Fourth Circuit requires as a foundation for the admission of other act evidence under FRE 404(b) (in this case, evidence of the defendant's prior drug convictions), the proponent of the evidence must show that the other act evidence is “necessary,” which actually involves a showing that it was “probative of an essential claim or an element of the offense,” in United States v. Rooks, 596 F.3d 204 (4th Cir. Feb. 25, 2010) (No. 08-4725)

The admission of other act evidence in a criminal case is subject to a number of different foundational elements, depending on the circuit in which the defendant is tried. See, e.g., Supreme Court Watch: Will The Supreme Court Eventually Resolve A FRE 404(b) Circuit Split?

Often these elements differ between the circuits and to make matters worse, the elements required by any particular circuit may not be stated in clearest or most direct language. A case determined in the Fourth Circuit provides an example of the difficulty in discerning the foundational elements that might be required by a particular circuit in order to admit other act evidence under FRE 404(b).

In the case, defendant Rooks was arrested after fleeing a search being conducted during a traffic stop and in the process, throwing away individually wrapped bags of crack that the police collected and used to charge the defendant for a drug offense. Prior to the trial the prosecutor gave notice to the defendant that they would introduce evidence of the defendant's prior 1993 drug convictions. The defendant opposed this, arguing that under Fourth Circuit precedent, FRE 404(b) evidence was admitted only when:

“(1) the prior-act evidence must be relevant to an issue other than character, such as intent; (2) it must be necessary to prove an element of the crime charged; (3) it must be reliable; and (4) ... its probative must not be substantially outweighed by its prejudicial nature.”

Rooks, 596 F.3d at 211.

In his appeal of his conviction, the defendant argued that the prosecution had not shown that the evidence of the defendant's three prior convictions was “necessary" to prove an element of the crime of possessing with intent to distribute cocaine base. The circuit rejected this contention, applying all four elements of the circuit's FRE 404(b) test, as well as showing that the defendant had mis-cast the element of necessity. According to the circuit:

“Put simply, the district court did not abuse its discretion in admitting evidence of the Federal Convictions under Rule 404(b). That evidence was relevant to Rooks's familiarity with the drug distribution business, as well as his intent to distribute the drugs recovered from the plastic bag, thereby satisfying the first prong of [United States v.] Queen [, 132 F.3d 991 (4th Cir. 1997)]. See United States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004) (concluding that evidence of earlier, out-of-state drug transactions was relevant “in that it tended to show the existence of a continuing narcotics business and therefore to show [the defendant's] knowledge of the drug trade and his intent to distribute the cocaine found”). Moreover, evidence of the Federal Convictions was “necessary” to prove an element of the charged offense, i.e., that Rooks intended to distribute the seized drugs. That the evidence was not critical to the prosecution's case against Rooks does not render it unnecessary for purposes of Rule 404(b), as Queen's second prong focuses on whether the evidence is necessary “in the sense that it is probative of an essential claim or an element of the offense.” Queen, 132 F.3d at 997. Finally, the evidence was neither unreliable nor unfairly prejudicial, especially in light of the court's limiting instruction to the jury. See United States v. White, 405 F.3d 208, 213 (4th Cir. 2005) ( “[A]ny risk of such prejudice was mitigated by a limiting instruction from the district court clarifying the issues for which the jury could properly consider [the] evidence.”). Accordingly, the court did not abuse its discretion in admitting evidence of the Federal Convictions."

Rooks, 596 F.3d at 211-12.

In its analysis, the circuit in Rooks showed how it had redefined its foundational test. While this recasting occurred in 1997 in the case of United States v. Queen, 132 F.3d 991 (4th Cir. 1997), over a decade later, the circuit is still explaining the application of the "necessity" factor in its test for admissibility of FRE 404(b) evidence.


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