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In the Fourth Circuit, under Fed. R. Evid. 404(b) prior bad acts are admissible if they are (1) relevant to an issue other than character; (2) necessary, and (3) reliable. Evidence that passes this test is not automatically admissible, however. Fed. R. Evid. 403 requires the trial judge to determine that its probative value outweighs the danger of undue prejudice to the defendant. In the Fourth Circuit, unlike others, the trial court is not required to make an explicit statement of the purpose for which the evidence is admitted. The use of limiting instructions setting out the purpose for which the evidence is admitted and admonishing the jury against considering it as improper evidence of guilt will do much to alleviate difficulties raised by its admission.
Defendant Xiomaro Hernandez was charged with conspiracy to distribute and to possess with intent to distribute cocaine. During trial, a witness who was testifying pursuant to a plea agreement, testified that defendant was present at the apartment where the witness obtained the drugs. Another witness, who was also testifying pursuant to a plea agreement in an unrelated drug case, related that defendant told the witness that she knew a special recipe for cooking crack because defendant use to sell crack in New York. The district court admitted the testimony under Rule 404(b) and instructed the jury that they were not to consider the defendant guilty of the crime merely because the defendant was a bad person. The trial court further instructed the jury to only consider the evidence if they found that defendant had committed the acts charged in the indictment and, if so, to consider it only as evidence of the intent with which she did those acts. The jury convicted defendant of the crime charged. On appeal, defendant argued that the district court abused its discretion by admitting extraneous evidence of bad acts or crimes under Fed. R. Evid. 404(b).
Under the circumstances, was the admission of the witnesses’ testimony improper?
The court held that testimony that showed that, before her move from New York to Washington, defendant had learned a special recipe for making crack and that she had made and apparently sold it in New York at that time had little relevance of intent to engage in the charged conspiracy, it bore at best a slight relationship to the acts charged in the indictment, and careful consideration of the reliability of the testimony did not generate a compelling argument for its admission. The trial record did not reflect that the district court engaged in an explicit balancing of the probative value of the evidence against prejudice pursuant to Fed. R. Evid. 403, and upon consideration of all the circumstances, the balance was so one-sided that admission of the evidence was error. The error in admitting the testimony was not harmless where the sole evidence linking defendant to the conspiracy came from witnesses directly interested in obtaining a reduced sentence in exchange for their assistance in the instant case, and the testimony at issue was given by a witness testifying pursuant to a plea agreement that offered him hope that his testimony would result in a reduced sentence. Accordingly, the judgment was vacated, and the case was remanded for retrial.