The only material issue at trial was whether petitioner knew
they were stolen.
The District Court allowed the Government to introduce evidence
of "similar acts" under Rule 404(b).
Concluding that such evidence had "clear relevance as to
Similar Act Evidence (First Piece)
Paul Toney, record store owner, testified the petitioner offered
to sell him 12 TVs.
Petitioner said he had thousands more.
Toney purchased 20, then another 18 TV.
Similar Act Evidence (Second Piece)
Robert Nelson, an undercover FBI agent, testified the petitioner
offered to sell him a large number of appliances.
Petitioner was arrested.
It was determined that the appliances had a value of
approximately $ 20,000 and were part of a
shipment that had been stolen.
Leroy West was the supplier of the Memorex Tapes.
The sales were on a commission basis.
He had no knowledge that ANY of the goods were stolen.
Instructed the jury that similar acts evidence was to be used
ONLY to establish the petitioners knowledge, and NOT to prove
Jury convicted on the possession count only.
Certiorari was granted to resolve, whether the trial court must
make a preliminary finding before similar act and other Rule
404(b) evidence is submitted to the jury.
Evidence > Relevance > Prior Acts, Crimes & Wrongs Rule
Evidence should be admitted IF there is sufficient evidence to
support a finding by the jury that the defendant committed the
Fed. R. Evid. 404(b),
Applies in both civil and criminal cases,
Generally prohibits the introduction
of evidence of extrinsic acts
that might adversely reflect on the
unless that evidence bears upon
a relevant issue in the case such as motive, opportunity, or
Ascertaining State Of Mind
Extrinsic acts evidence may be critical to the establishment of
the truth as to a disputed issue, especially when that
issue involves the actor's
state of mind and the
only means of ascertaining that mental state is by
drawing inferences from conduct.
The District Court erred in admitting Toneys testimony as to
the petitions sale of the televisions.
Courts Threshold Inquiry (Probative material issue other than
The threshold question a court must make before admitting
similar act evidence under Rule 404(b) is
whether that evidence is probative of
a material issue other than character.
The Government's theory of relevance was that the televisions
were stolen, and proof that
petitioner had engaged in a series of sales of stolen
merchandise from the same suspicious source
would be strong evidence that he
was aware that each of these items, including the
Memorex tapes, was stolen.
(Failed to Prove TVs were stolen)
The evidence should not have been admitted because the
Government failed to prove to the District Court that the
televisions were in fact stolen.
This has the grave potential for causing improper prejudice.
Punish for similar acts rather than the charged act
The jury may choose to punish the Df for the similar rather than
the charged act, or the jury may infer that the Df is an evil
person inclined to violate the law.
The Court needs to Make Determination First
Because of this danger, petitioner maintains, the jury ought not
to be exposed to similar act evidence until the trial court has
heard the evidence and made a determination under Federal Rule
of Evidence 104(a) that the defendant [*687] committed the
Preponderance of the Evidence
According to petitioner, the trial court must make this
preliminary finding by at least a preponderance of the evidence.
Rule 104(a) Preliminary Questions
Rule 104(a) provides that "preliminary
questions concerning the qualification of a person to be a
witness, the existence of a privilege, or the admissibility of
evidence shall be determined by the court, subject to
the provisions of subdivision (b)."
The court rejects the petitioners language that Rule 404(b)
requires a preliminary showing that Rule 404(b) act occurred
before admitting the act into evidence.
Rule 104(b) Relevancy conditioned on fact.
relevancy of evidence
depends upon the fulfillment of a condition
court shall admit it upon,
the introduction of evidence sufficient to support a finding of
the fulfillment of the condition.
Courts 104(b) Analysis to introduce sufficient evidence
The Trial court neither weighs
credibility nor makes a finding that the
Government has proved the conditional fact by a preponderance of
Jury could reasonably find the conditional fact
The court simply examines all the evidence in the case and
decides whether the jury could
reasonably find the conditional fact -- here, that the
televisions were stolen -- by a preponderance of the evidence.
Access sufficiency can be determined later in trial
Often the trial court may decide to allow the proponent to
introduce evidence concerning a similar act, and at a later
point in the trial assess whether sufficient evidence has been
offered to permit the jury to make the requisite finding.
Disregard if failed to meet minimal standard of proof
If the proponent has failed to meet this minimal standard of
proof, the trial court must instruct the jury to disregard the
In assessing the sufficiency of the evidence under Rule 104(b),
the trial court must consider all evidence presented to the
"Individual pieces of evidence, insufficient in themselves to
prove a point, may in cumulation prove it.
Sum of Parts
The sum of an evidentiary presentation may well be greater than
its constituent parts."
In assessing whether the evidence was sufficient to support a
finding that the televisions were stolen, the court here was
required to consider not only
the direct evidence on that point
the low price of the televisions,
the large quantity offered for sale, and
petitioner's inability to produce a bill of sale
the evidence concerning
petitioner's involvement in the sales of other stolen
merchandise obtained from Wesby, such as the Memorex
tapes and the Amana appliances.
Given this evidence, the jury reasonably
could have concluded that the
televisions were stolen, and the trial court
therefore properly allowed the evidence to go to the jury.