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To meet the test of Fed. R. Evid. 404(b), there must be a showing that an issue has been joined as to intent, or another of the 404(b) categories, discrete from a showing of mere propensity. To differentiate between the illegitimate use of a prior conviction to show propensity and the proper use of a prior conviction to prove intent, the government must affirmatively show why a particular prior conviction tends to show the more forward-looking fact of purpose, design, or volition to commit the new crime. In every Rule 404(b) case relying on intent, the court (1) must consider the probative value of the prior act to prove present intent, and (2) must weigh that value against the tendency of the evidence to suggest unfairly a propensity to commit similar bad acts. The availability of precedent that balances the relevance of bad acts evidence and decides to admit it does not excuse prosecutors or courts from asking in each new case whether and how prior bad acts evidence might be relevant, probative, and fair.
In April 2008, acting on a tip from a confidential informant, police obtained a search warrant and then raided a home where defendant Shariff Miller and several other people were staying. After apprehending defendant on his way out the side door, police searched the house and found several guns and a quantity of crack cocaine. The cocaine and a pistol were found close to some of defendant's personal effects in a room where he was alleged to be staying. At trial, the prosecution used Fed. R. Evid. 404(b) to admit evidence that defendant had been convicted in 2000 of felony possession of cocaine with intent to distribute it. Defendant was convicted. On appeal, defendant argued that the drug crime evidence from 2000 was substantially more prejudicial than it was probative.
Was it an error to admit details of defendant's prior drug conviction, thereby warranting the reversal of defendant’s conviction?
The court concluded that admission of the details of defendant's prior drug conviction violated the character evidence prohibition of Rule 404(b) and was an abuse of discretion. The court agreed with defendant that the drug crime evidence from 2000 was substantially more prejudicial than it was probative. The only purpose for which it could have been used by the jury was to draw an impermissible propensity inference. The court determined that the government's arguments suggested that admission of prior drug crimes to prove intent to commit present drug crimes had become too routine. When the drugs in question were clearly a distribution quantity, the packages had price tags, and defendant did not deny they were intended for distribution by someone, intent was "at issue" in only the most attenuated sense. Even though the purpose of proving "intent" was invoked, the bad acts evidence was not probative of intent except through an improper propensity inference.