On The "Slippery Boundary Between ... Intent And ... Propensity"

In distribution of crack cocaine trial, admission of defendant's other drug dealing (e.g., occurring before charged activity, "front[ing]" informant cocaine; offering informant "extra cocaine for [his] money", and recording of defendant discussing purchase of crack) was erroneous under FRE 404(b) as proof of intent; this evidence was cumulative because the charged crime was a general intent crime and the defendant never put his intent at issue; however, any error in admitting the other act evidence was harmless, in United States v. Powell, __ F.3d __ (7th Cir. July 13, 2011) (No. 10–2535)

The interpretation and application of FRE 404(b) can be notorious - so much so that some courts have suggested that the rule established a "slippery boundary" between properly admitting evidence of a defendant's intent and improperly admitting evidence of a defendant's propensity. In a recent case, the Seventh Circuit briefly explored where a court had slipped beyond the boundary, although the Circuit concluded the error was harmless.

In the case, defendant was arrested after a confidential informant (Yarbrough) arranged and conducted two controlled purchases of crack cocaine from the defendant. At trial, the informant, who was the "star witness":

...testified that Powell had “fronted” him some cocaine in May 2007 because Yarbrough was low on cash at the time. Yarbrough also testified that, in March 2008, after the charged sales of cocaine, Powell was going out of town to pick up some cocaine and offered Yarbrough “extra cocaine for [his] money” if he paid in advance. Lastly, Yarbrough testified that he had called Powell on July 16, 2008, to discuss a possible purchase of crack cocaine. This brief telephone call was recorded, and the recording was played for the jury. The district court overruled Powell's objections to all of this testimony, instructing the jury that it could consider Yarbrough's statements only as evidence of Powell's intent.
Powell, __ F.3d at __.

The circuit agreed with the defendant on appeal that the trial judge erred by admitting the evidence described in the previous paragraph as evidence of the defendant's intent to distribute crack cocaine. The circuit noted that in admitting this evidence, the court invited the jury to "slide across Rule 404(b)'s slippery boundary between proper consideration of intent and improper consideration of propensity." Powell, __ F.3d at __. As explained by the circuit:

Although Rule 404(b) generally allows evidence of other bad acts as proof of a defendant's intent, such bad acts may be admitted as evidence of a defendant's intent to distribute illegal narcotics only when that defendant has put his intent at issue. Distribution of cocaine is, by its very nature, “a general intent crime,” the necessary intent for which “is not above or beyond that which can generally be inferred based on proof of the act (distribution) in question.” After all, when a person knowingly exchanges a dime bag of cocaine for a handful of cash, his intent is rarely in doubt. For this reason, without a direct challenge to the prosecution's evidence of intent, such other bad acts are merely cumulative of direct evidence that a defendant distributed drugs on the dates charged in the indictment, and have little additional probative value on the issue of the defendant's intent for the charged crimes.
Powell, __ F.3d at __ (citing United States v. Hicks, 635 F.3d 1063, 1070–71 (7th Cir. 2011); United States v. Manganellis, 864 F.2d 528, 539 (7th Cir. 1988))

The circuit particularly explained why intent in this instance was not an issue upon which proof was needed and admission of the other act evidence of intent was therefore more prejudicial than probative. The circuit contrasted the charged crime of distribution of crack cocaine, a general intent crime, with a crime requiring the showing of a specific intent, such as homicide crimes. There "[w]hen one person kills another, a wide variety of mental states—intent, recklessness, negligence—may be consistent with that act, making specific evidence beyond that of the act itself often necessary to show the killer's precise mental state." Powell, __ F.3d at __ n.1. The circuit also cautioned about the proximity of the other act evidence to the charged offense, explaining that "[t]wo of the other acts at issue here occurred after Powell's charged drug sales. While Rule 404(b) does not restrict the evidence concerning other acts to events that took place before the alleged crime, the probative value of post-offense conduct may often be somewhat limited, depending on the circumstances." Powell, __ F.3d at __ n.2 (emphasis added) (citing United States v. Anifowoshe, 307 F.3d 643, 646–47 (7th Cir. 2002)).

Despite the error in applying FRE 404(b), the circuit affirmed the defendant's conviction because the error was harmless, particularly in light of the "overwhelming evidence" against the defendant properly admitted at trial.


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Federal Rules of Evidence