Eighth Circuit Suggests "Outer Limits" For Remoteness of Prior Act Evidence Admissibility

In trial for a felon for possession of a firearm, admitting under FRE 404(b) as proof of knowledge and intent evidence of defendant's prior conviction for an armed criminal action 19 years before the charged crime; the 19 year gap, while "near the outer limits" for prior act admissibility, was "not so remote" where the defendant had been incarcerated for over 12 years of the 19 year lapse, in United States v. Halk, __ F.3d __ (8th Cir. March 11, 2011) (No. 10-2381)

One confounding factor to be considered in the application of FRE 404(b), admitting evidence of other acts or crimes, is the remoteness of the prior crime from the conduct in the charged case. As suggested by the Eleventh Circuit, the test of remoteness does not involve a "mechanical application based solely on the amount of time that has elapsed." United States v. Scott, 701 F.2d 1340, 1345-46 (11th Cir. 1983). At a minimum the acceptable lapse of time between the prior act and the charged offense depends on the nature of the prior and charged crime to be proved. In a recent case, the Eighth Circuit demonstrated a typical approach to determining remoteness of evidence to be admitted under FRE 404(b).

In the case, the prosecution sought to admit prior crime evidence as proof of the defendant's knowledge and intent for the charged crime of being a felon in possession of a firearm. According to the circuit, the defendant's

criminal record revealed that on May 12, 1989, he pleaded guilty to murder in the second degree and armed criminal action and was sentenced to fifteen years' imprisonment. He was released on parole on April 23, 1999. On February 7, 2000, he was arrested for unlawful use of a weapon after a police officer observed him holding a shotgun. No charges resulted, but Halk's parole was revoked. He was finally released from prison on August 6, 2002.
Halk, __ F.3d at __. When the defendant was charged with illegal possession of a firearms, the defendant sought to preclude admission of evidence of his prior conviction for an armed criminal action because a gap of 19 years between the prior crime and the currently charged crime.

The Eighth Circuit affirmed the trial court's admission of the evidence. The circuit applied its standard test for admission of other act evidence, which required:

To be admissible, other crimes evidence must be (1) relevant to a material issue raised at trial, (2) similar in kind and close in time to the crime charged, (3) supported by sufficient evidence to support a jury finding the defendant committed the other act, and (4) of probative value not substantially outweighed by its prejudicial effect.
Hauk, __ F.3d at __ (citing United States v. Oaks, 606 F.3d 530, 539 (8th Cir. 2010).

In applying this test, the circuit focused on the second element, requiring that the prior crime be "similar in kind and close in time to the crime charged." The circuit noted that the defendant claimed the trial court erred because it allowed evidence of his 1989 conviction even though:

it was not close in time to the instant offense. 'To determine if evidence is too remote, the court applies a reasonableness standard and examines the facts and circumstances of each case.' '[T]here is no fixed period within which the prior acts must have occurred.' We have generally been reluctant to uphold the introduction of evidence relating to acts or crimes which occurred more than thirteen years prior to the conduct challenged. Nevertheless, our reluctance does not constitute a definitive rule, and we have approved the admission of prior firearm convictions under Rule 404(b) where more time separated the prior offense and the charged offense.
Hauk, __ F.3d at __ (citing United States v. Walker, 470 F.3d 1271, 1274-75 (8th Cir. 2006) (allowing gap of 18 years, noting that “[w]e review a district court's decision to admit such evidence for an abuse of discretion, and will reverse only when the evidence clearly had no bearing on the case and was introduced solely to prove the defendant's propensity to commit criminal acts.”); United States v. Strong, 415 F.3d 902, 905 (8th Cir.2005) (allowing an 16 year gap)

In light of the test for reasonableness in determining an acceptable lapse between the prior act and the charged crime, the circuit employed the following analysis:

Although approximately nineteen years elapsed between Halk's armed criminal action offense in 1988 and the instant offense conduct in July 2008, it is 'an important circumstance' that Halk was incarcerated from May 12, 1989 through April 23, 1999, and again from March 21, 2000 through August 6, 2002. In Walker, we affirmed the district court's finding that the defendant's prior conviction for armed robbery was admissible under Rule 404(b) even though approximately 18 years had elapsed between the robbery offense and the defendant's arrest for being a felon in possession of a firearm. We reasoned that because the defendant had been incarcerated for a ten-year period between offenses and had been out of prison for only eight years before committing the instant offense, 'the total number of years separating the prior offense and the charged offense did not significantly diminish the probativeness of the evidence.' Similarly, here, offered the 1989 conviction for armed criminal action because Halk committed the crime while carrying a firearm. Likewise, the government offered the 2000 arrest for unlawful use of a weapon because Halk was arrested for carrying a shotgun. According to the government, this evidence was relevant to prove Halk's knowledge and intent.
Hauk, __ F.3d at __ (quoting United States v. Walker, 470 F.3d 1271, 1275 (8th Cir. 2006) (internal quotation marks omitted)).

Even though the panel was unanimous that the prior act evidence was admissible, Circuit Judge Hansen filed a concurring opinion to note that he did not even consider the issue a close one:

I concur in all of the court's opinion and its judgment except for the certainty of its observation that the facts of this case may be near the outer limits of Rule 404(b) admissibility. Given that the appellant was incarcerated for over 12 years of the 19-year lapse between the first and last events and that he committed the instant offense within six years of his release from prison, I conclude that this case falls comfortably within the time frames in our previous cases where we found no abuse of discretion.
Hauk, __ F.3d at __ .


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