Bad Acts Admissible as Intrinsic Evidence without Regard to FRE 404(b) (12/12/11)

I have written before about government attempts to end run the strictures of FRE Rule 404(b) by arguing that the evidence in question, even if of the type the Rule 404(b), here, would prohibit, could still be admitted if it is intrinsic to the crime(s) charge.  This type of evidence is usually prejudicial to the defendant which is why the prosecutors want it in and the defendant does not want it in.  We have posted that the Seventh Circuit, having previously sanctioned an "inextricable intertwinement" test of intrinsic evidence, had backed away from that test.  See Seventh Circuit Sounds the Death Knell for Inextricable Intertwinement as End-Run Around Rule 404 and 403 (8/3/10), here.

In a recent case, United States v. Shelow, 2011 U.S. Dist. LEXIS 151626 (ED PA 2011), a district court summarized the state of the Third Circuit's consideration of this issue as follows (case citations and some quotation marks omitted for readability):

Rule 404(b) does not apply "to evidence of acts which are 'intrinsic' to the offense charged." Fed. R. Evid. 404(b) advisory committee's note to 1991 amendments. The Third Circuit recently rejected the definition of "intrinsic evidence," common in other circuits, as evidence that is "inextricably intertwined" with the charged offense. United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010), cert. denied, 131 S. Ct. 363 (2010). n2 In Green, the Third Circuit held that the "intrinsic" label applies only to two narrow categories of evidence. The first category is evidence of uncharged acts that directly proves the charged offense.  The second category is evidence of uncharged acts performed contemporaneously with the charged crime that "'facilitate the commission of the charged crime.'" For example, in a hypothetical case where the defendant is charged with the sale of contraband, the defendant's necessary possession of that contraband would be a facilitating act. Evidence of other acts outside of these two narrow categories is extrinsic. 

   n2 The Third Circuit has distinguished its definition of intrinsic evidence from "most courts of appeals," which "hold that acts are 'intrinsic' to the charged offense if they are 'inextricably intertwined' with that offense." Green, 617 F.3d at 245. Before renouncing the "inextricably intertwined" test in Green, the Third Circuit critiqued the definitions of intrinsic evidence as either inextricably intertwined with the charged offense or completing the story' of the charged offense as too narrow and too broad, respectively. However, the Green Court noted that it is unlikely that our holding will exclude much, if any, evidence that is currently admissible as background or 'completes the story' evidence under the inextricably intertwined test.