Good Succinct Discussion of 404(b) Evidence (11/13/13)

In United States v. Anderson, 2013 U.S. App. LEXIS 22050 (11th Cir. 2013), here, an unpublished opinion, the Court discusses Rule 404(b), here, evidence, finding that the evidence in question had minimum probative value and thus perhaps should not have been admitted under Rule 403, here, titled "Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons." Nevertheless, it was harmless.  Rule 404(b) provides:

(b) Crimes, Wrongs, or Other Acts.
  (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
  (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
    (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
    (B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

The Court's discussion is a good succinct summary of key features of Rule 404(b),. so I thought I would offer that discussion

Anderson argues that the district court improperly admitted into evidence under Federal Rule of Evidence 404(b) a pro se "letter" that she mailed to the district court before trial. In this "letter," Anderson asserted that a magistrate judge had "convert[ed]" the magistrate judge and an Assistant U.S. Attorney "into accommodated parties with respect to [a] debt," which Anderson thereby purported to "discharge." Anderson contends that this document had no probative value and was highly prejudicial, as it could only be perceived as bad-character evidence. 

We review a district court's Rule 404(b) rulings for an abuse of discretion. United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005). Under this standard, we must affirm, even if we might have decided the issue differently, so long as the trial court's decision was not based on a clear error of judgment or application of the wrong legal standard. See id. at 1312. Rule 404(b) prohibits the admission of evidence of a person's crimes or other wrongful acts except in certain circumstances. Fed.R.Evid. 404(b). Nevertheless, Rule 404(b) is a "rule of inclusion," and relevant Rule 404(b) evidence "should not lightly be excluded" when it is central to the government's case. United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003) (internal quotation marks omitted); see also United States v. Sanders, 668 F.3d 1298, 1314 (11th Cir. 2012) (explaining that Rule 404(b) allows extrinsic evidence "unless it tends to  prove only criminal propensity" (internal quotation marks omitted)). In order to be admissible under Rule 404(b) the evidence must be relevant to an issue other than the defendant's character, the government must offer sufficient proof for the jury to find by a preponderance of evidence that the defendant committed the act, and its probative value must not be substantially outweighed by its undue prejudice, satisfying Rule 403. Matthews, 431 F.3d at 1310-11 (quoting United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995)).

Where an extrinsic offense is offered to prove intent, its relevance is determined by comparing the defendant's state of mind in perpetrating both the extrinsic and charged offenses. United States v. Zapata, 139 F.3d 1355, 1358 (11th Cir. 1998). Thus, the first prong of the Rule 404(b) test is satisfied where the state of mind required for both offenses is the same. Id. Under the third prong of the test, to determine whether the probative value of the evidence is substantially outweighed by its prejudicial effect, a district court must assess all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, and temporal remoteness. See id. A district court's limiting instruction can reduce the risk of undue prejudice. See Zapata, 139 F.3d at 1358. When the district court gives a curative instruction to address improper and prejudicial evidence, we will reverse only if the evidence is "so highly prejudicial as to be incurable by the trial court's admonition." United States v. Harriston, 329 F.3d 779, 787 n.4 (11th Cir. 2003) (internal quotation marks omitted). Finally, even if the district court abused its discretion in admitting evidence in violation of Rule 404(b), we may still affirm if the error was harmless. See Fed.R.Crim.P. 52(a); United States v. Hubert, 138 F.3d 912, 914 (11th Cir. 1998). 

Here, we conclude that the document at issue had minimal probative value because it shed no light on whether Anderson possessed the intent to defraud the government, as it was patently frivolous on its face and did not seek to defraud the government out of anything. Nevertheless, any error in its admission was harmless, as the jury was presented with substantial additional evidence similar to the unorthodox views set forth in the document as well as substantial  [*6] evidence of Anderson's guilt. It is highly unlikely that this single document—out of hundreds of documents introduced over the course of a 6-day trial in which 24 witnesses testified—had any appreciable effect on the outcome. See Fed.R.Crim.P. 52(a); Hubert, 138 F.3d at 914. Moreover, the court instructed the jury to consider the document only to the extent that it shed light on Anderson's state of mind, which also served to mitigate any possible prejudice resulting from its admission. See Zapata, 139 F.3d at 1358; Harriston, 329 F.3d at 787 n.4. Thus, we affirm as to this issue.