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Fed. R. Evid. 404 (b) provides in full: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. Because the rule recognizes the admissibility of prior crimes, wrongs, or acts, with only the one stated exception, it is understood to be a rule of inclusion.
Defendant was charged with conspiracy to tamper with a witness in violation of 18 U.S.C.S. § 371 and tampering with a witness in violation of 18 U.S.C.S. § 1512(b)(1). Before trial, the government notified the defendant that it intended to introduce evidence at trial indicating that defendant had tampered with witnesses in 1986. In response, defendant filed a motion in limine to exclude the evidence under Federal Rules of Evidence 404(b) and 403. The district court denied the motion in limine, ruling that the government’s evidence of prior acts was admissible under Federal Rule of Evidence 404(b) to show intent for the crimes charged and that, under Federal Rule of Evidence 403, the testimony would not be unduly prejudicial. In instructing the jury, the district court told the jury not to consider defendant’s prior acts evidence for any purpose other than to infer intent as to the charged crime. Defendant was convicted. On appeal, defendant argued that the district court abused its discretion in admitting the evidence of prior acts because such evidence could only have demonstrated his propensity to commit witness tampering in this case and therefore was prohibited by Federal Rule of Evidence 404(b).
Did the district court err in admitting evidence of defendant’s prior witness tampering to prove the essential element of intent?
On appeal, the court affirmed and held that defendant's prior witness tampering was admissible under Fed. R. Evid. 404(b) to prove the essential element of intent. The court found that the high degree of similarity between the prior acts and the act with which defendant was charged supported a finding that the evidence was relevant. The court also concluded that the evidence was not unduly prejudicial. In addition, the district court properly instructed the jury that it could only consider the evidence to infer the element of intent. The defendant’s conviction was affirmed.