Considering the "Remoteness" Of The Prior Act Under FRE 404(b)

What role does the "remoteness" of a prior act serve in considering its admissibility FRE 404(b)? The Fifth Circuit noted this issue concerning a seven year old prior conviction and observed that no "per se" rules apply, in United States v. Wallace, _ F.3d _ (5th Cir. July 18, 2014) (No. 12–51192)

FRE 404(b) provides that uncharged conduct may be admitted where the requirements of the rule are met. The Fifth Circuit recently addressed the issue of whether evidence may be "per se" inadmissible due to the remoteness of the prior act to the charges.

Trial Court Proceedings: Admitting Prior Convictions To Show Knowledge And Intent

In the case, two defendants, Wallace and Blocker, were charged with conspiring to possess with intent to distribute methamphetamine. Before trial, the government provided notice of its intent to introduce defendant Wallace's prior seven year old conviction for possession of 1 to 4 grams of methamphetamine and defendant Blocker's prior conviction for manufacturing 400 grams of methamphetamine under FRE 404(b) to show knowledge and intent. The trial court granted the motion. After the jury convicted them, the defendants challenged the admission of the prior convictions on appeal. One argument raised by defendant Wallace was that his seven year old prior conviction was simply to remote.

Fifth Circuit Review: Considering The Role Of "Remoteness"

The Fifth Circuit affirmed the admission of the prior convictions based on prior precedent: "A prior conviction for narcotics possession or manufacture is probative to a defendant’s intent when he is charged with conspiracy to distribute." Wallace, _ F.3d at _ (emphasis added) (citing United States v. Gadison, 8 F.3d 186, 192 (5th Cir. 1993) (“[The defendant] put his intent at issue when he entered his plea of not guilty to the conspiracy charge in the indictment.”); United States v. Harris, 932 F.2d 1529, 1534 (5th Cir. 1991) (“evidence of a pre-existing relationship between parties is relevant in determining whether they were engaged in a conspiracy”)).

The circuit found the remoteness argument unpersuasive. As the circuit explained, "remoteness may weaken a conviction’s probative value, but remoteness has never been held to be a per se bar to the admission of a prior conviction." Wallace, _ F.3d at _. The circuit also noted that "any unfair prejudice was assuaged by the district court’s limiting instruction regarding Appellants’ prior convictions." Wallace, _ F.3d at _ (citation omitted). On the remoteness issue, the circuit cited to the following cases:

  • United States v. Hernandez-Guevara, 162 F.3d 863, 872 (5th Cir. 1998) (“The age of a prior conviction has never been held to be a per se bar to its use under Rule 404.”)
  • United States v. Cockrell, 587 F.3d 674, 680 (5th Cir. 2009) (“Although remoteness of the extrinsic acts evidence may weaken its probative value, the age of the prior conviction does not bar its use under Rule 404.”) (internal quotation marks omitted)
  • United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996) (finding no prejudice in admitting a prior conviction more than ten years before the charged offense)
  • See also United States v. Chavez, 119 F.3d 342, 347 (5th Cir. 1997) (per curiam) (affirming the admission of a 15–year–old conviction).

Finally, the Fifth Circuit cautioned “that our holding today does not render all prior narcotics convictions per se admissible in a drug conspiracy case" as the proponent must establish the evidence “is relevant and admissible under 404(b).” Wallace, _ F.3d at _ (citing United States v. Yeagin, 927 F.2d 798, 803 (5th Cir. 1991) (“A trial judge faced with the problem of admissibility of other crimes evidence should exercise caution and should require the government to explain why the evidence is relevant and necessary on a specific element that the government must prove.”)).

Conclusion

The Wallace case shows that remoteness may serve as a factor in considering the admissibility of evidence offered under FRE 404(b), however, no per se rule will apply. Ultimately, the admissibility will turn on the facts and whether the proponent has met its burden to admit the evidence. Certainly, the older the prior act, the more it will tip the scales against admissibility.

For other cases addressing this issue, previously noted in the Federal Evidence Blog, consider:

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