United States v. Green

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-2330

UNITED STATES OF AMERICA

v.

DAVID GREEN,

Appellant

On Appeal from the United States District Court

for the District of New Jersey

District Court No. 1-06-cr-00612-001

District Judge: The Honorable Robert B. Kugler

Argued March 10, 2010

Before: AMBRO, SMITH, and ALDISERT, Circuit Judges

(Filed: August 9, 2010)

Mark S. Greenberg (argued)

LaCheen Wittels & Greenberg

1429 Walnut Street, Suite 1301

Philadelphia, PA 19102

Counsel for Appellant

Ralph J. Marra, Jr.

George S. Leone

Jennifer H. Chin

Steven G. Sanders (argued)

Office of United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102

Counsel for Appellee

OPINION

SMITH, Circuit Judge.

A jury convicted David Green of attempted possession

with intent to distribute 500 grams or more of cocaine. Green

appeals, arguing that the District Court erred by allowing the

Government to introduce evidence that he threatened to kill an

undercover police officer. We will affirm.

I.

2

In March of 2006, Green was arrested in New Jersey on

state-law drug charges. This arrest came about in part through

the efforts of an undercover officer identified in the record as

“A.G.,” “Gus,” and “Gussy.”

Three months later, Green and an acquaintance,

Jacqueline Stahl, were in a vehicle together when they drove

past A.G.’s home. Green told Stahl that he was going to blow

up A.G. as retaliation for getting him arrested. He stated his

desire to purchase dynamite and blasting caps, as well as

cocaine. Alarmed, Stahl contacted law enforcement, reported

what Green had said, and agreed to act as an informant.1 In the

weeks that followed, Stahl, acting at the direction of the FBI,

surreptitiously recorded a series of conversations with Green

about the possibility of acquiring dynamite and cocaine through

“Frankie,” Stahl’s boyfriend from Florida.

On July 1, 2006, Stahl and Green met at a convenience

store in Mantua, New Jersey. Green confirmed his interest in

buying dynamite and blasting caps. Stahl told Green that

Frankie could get him six sticks of dynamite. The conversation

then turned to the possibility of buying cocaine through a man

Green knew in Miami. Stahl volunteered to drive to Florida to

consummate the deal. Green agreed that Stahl should make the

trip, because she was “middle class looking” and would not

1

Three of Stahl’s brothers were active or retired state

troopers.

3

arouse suspicion. Later, the conversation returned to the subject

of explosives. Green said, “look, serious . . . let’s do some

dynamite.” Stahl asked him what he planned to do with it, and

told him he’d better not kill anyone she knew, or “go blow up

that Gus’s house.” Green remained coy, saying only that he

wanted to keep “something handy” because he intended to do

“something.” When Stahl pressed him, asking “who you got in

mind?”, Green responded, “you never know.”

On July 7, Stahl and Green again discussed the possibility

of buying cocaine and dynamite from Frankie. Stahl asked

Green whether he needed small sticks of dynamite, such as

would be used to blow up a car or a tree stump, or big sticks, to

destroy a building. She again asked whether he intended to use

it to blow up A.G.’s home. Green steadfastly refused to specify

his target, but he did ask Stahl to tell him more about A.G. The

remainder of the conversation revolved around the terms of the

deal. Stahl told Green that Frankie would accept “fifteen

hundred [dollars] and an ounce of coke for six little ones or 300

apiece for the small ones,” or “2 ounces of coke and a thousand

cash” for “the big ones.” Green told Stahl that these prices were

too high. He was also skeptical that Frankie would have any use

for cocaine from New Jersey, since the drug was abundant in

Florida. Stahl promised to find out how much cash Frankie

would require.

In the weeks that followed, Green’s interest in buying

dynamite appeared to wane. At one meeting, Green told Stahl

4

that the dynamite was on the “back burner” because he was low

on money. But he was still interested in cocaine, which he could

sell for a hefty profit. On July 19, Stahl told Green that Frankie

would sell him a kilogram of cocaine in exchange for $5,000 up

front and $11,000 more within a month. She also told him that

the total purchase price of $16,000 included “the sticks [of

dynamite].” Green responded, “I ain’t, forget the sticks. I’m

talking about the powder.” He also told Stahl that he did not

“wanna keep talking about this thing” because he feared he was

under surveillance. The next day, Green told Stahl that he

would accept Frankie’s terms, and described his plan to sell the

cocaine through a friend in Pottstown, Pennsylvania. On July

28, Stahl told Green that Frankie’s associates would be up from

Florida the following weekend and that Green should have his

$5,000 ready. Stahl reminded him that “the sticks are right in

with the 11 grand . . . . Take it, book and then you can deal more

with him later.”

The sale was scheduled for August 3. Green had not

pulled together the necessary $5,000, but he brought along

$3,100 plus the title to a vehicle he intended to offer as

collateral. Stahl picked up Green at his apartment and drove

him to a motel, where they met “Mario,” an FBI agent posing as

Frankie’s friend. After initial conversations inside the motel,

Mario, Green, and Stahl went to Mario’s vehicle. Mario opened

the trunk and showed Green one bag containing dynamite and

another containing cocaine. Green twice said, “alright,” then

went to retrieve Stahl’s vehicle. As he walked to the car,

5

however, he noticed police officers sitting in several of the

vehicles in the parking lot. He decided to abandon the deal. He

got into Stahl’s car, stopped in front of Mario’s car, pulled Stahl

into the vehicle, and sped away. As they drove away, Green

exclaimed to Stahl that there were police officers (“the man”) in

the parking lot. Stahl feigned ignorance, but Green angrily

accused her of setting him up. He exclaimed: “Look, look.

That’s the fucking man . . . . bitch I oughta kill your fucking

ass.” Stahl denied any involvement with the police, but Green

was not convinced. He ordered Stahl to stay away from him,

drove her car back to his apartment, and dropped himself off.

Stahl drove away unharmed.

Green was arrested four days later. He was indicted on

one count of attempted possession with intent to distribute 500

grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B) and 21 U.S.C. § 846. He was not charged in

connection with his attempts to procure dynamite or his threat

to kill A.G.

Before trial, the Government filed a motion in limine to

admit recorded and testimonial evidence of Green’s attempts to

purchase dynamite and threats to kill A.G. Specifically, the

Government’s theory of admissibility was that Green’s pursuit

of dynamite constituted “intrinsic evidence” concerning the

charged cocaine offense. This argument relied on United States

v. Williams, 900 F.2d 823 (5th Cir. 1990), and similar cases

from other courts of appeals. In Williams, the Fifth Circuit

6

stated that evidence of uncharged bad acts is “intrinsic” to the

charged offense “when the evidence of the other act and the

evidence of the crime charged are ‘inextricably intertwined’ or

both acts are part of a ‘single criminal episode’ or the other acts

were ‘necessary preliminaries’ to the crime charged.” Id. at 825.

The court distinguished such evidence from “extrinsic”

evidence, which, unlike intrinsic evidence, must be analyzed

under Rule 404(b). Id. The Government contended that

Green’s attempts to buy dynamite were inextricably intertwined

with the charged cocaine offense because Green’s drug crime

“occurred concurrently with and arose out of [his] negotiations

for explosives, and because the final price, quantity, and terms

of the charged cocaine transaction were inextricably bound up

in and influenced by Green’s negotiations for explosives.”

Green argued for exclusion of all references to the

dynamite and why he wanted it. He argued that discussions

about dynamite and killing A.G. were not “intrinsic” to the

charged cocaine offense, and could easily be redacted from the

recordings of his conversations with Stahl about cocaine. He

also argued that even if the references to dynamite were intrinsic

evidence, they should be excluded under Rule 403.

After a hearing, the District Court granted the

Government’s motion. The District Judge apparently accepted

the Government’s “intrinsic evidence” argument, because he did

not conduct a Rule 404(b) analysis. He reasoned that “the

dynamite explains how we got into a drug deal in the first

7

place,” and that “the Government certainly is entitled to give the

background [and an] explanation [of] how this all came about,

how they ended up together in this position to arrest [Green]

under these charges.” The District Judge also declined to

exclude the Government’s evidence under Rule 403. He

recognized that the evidence was highly prejudicial, but offered

to give a limiting instruction to the jury.

At trial, the jury heard recordings of the conversations

between Stahl and Green recounted above. Stahl supplemented

those recordings with testimony about the conversations and

Green’s attempts to procure dynamite and cocaine. She testified

that she went to the FBI after she learned that “Green wanted to

kill a couple officers and he was looking for . . . some cocaine

and dynamite.” She also said that she agreed to cooperate with

the subsequent investigation because “officers’ lives were in

danger.” Shortly after that testimony, the jury heard the July 7

conversation in which Stahl questioned Green about his desire

to “blow up” Gussy. The prosecutor asked who Gussy was.

Stahl responded that Gussy was “an officer” and that Green

“wanted to know where he lived . . . because . . . you know, he

wanted to kill him. He wanted to murder him because he was

busted.”

Meanwhile, Green attacked Stahl’s credibility throughout

the trial. In his opening statement, he called her a “profane,

aggressive, and unpleasant individual” whose cooperation with

the FBI was “motivated by money.” He developed this line of

8

attack during his cross-examination of the Government’s first

witness, FBI Agent Robert Barbieri, who was Stahl’s FBI

handler. Barbieri testified that the FBI paid Stahl approximately

$900 for her work as an informant, both to compensate her for

her time and to reimburse her for gas and the use of her cell

phone. He acknowledged that Stahl had asked for money from

the FBI “five or six times” since the investigation of Green had

concluded, and had threatened not to testify against Green

unless the FBI gave her more money. He also admitted that

Stahl had asked if the FBI could help her son, who was facing

state-law criminal charges in an unrelated matter. Green

resumed this attack during cross-examination of Stahl herself.

He suggested that the $900 she received from the FBI was a lot

of money to her, and again suggested that she cooperated to help

her son. Stahl denied any improper motive and insisted that she

approached the FBI out of a desire to “protect people, lives that

[were] in danger.”

Near the end of the trial, the District Court reminded the

jury that Green was “not on trial for any acts or attempted acts

relating to dynamite,” and cautioned jurors not to use evidence

about dynamite as proof that Green was a bad person with a

propensity for committing criminal acts. Green’s trial counsel

approved this charge, telling the District Court that its proposed

instruction was “great.” The jury found Green guilty.

In determining Green’s offense level for purposes of

calculating his advisory Guidelines range, the District Court

9

applied a two-level enhancement for obstruction of justice under

U.S.S.G. § 3C1.1. Obstructive conduct under § 3C1.1 includes

“threatening, intimidating, or otherwise unlawfully influencing

a . . . witness . . . directly or indirectly, or attempting to do so.”

U.S.S.G. § 3C1.1 cmt. n.4(a). Green received this enhancement

because he yelled, “bitch I oughta kill your fucking ass” at Stahl

as they drove away from the motel. The District Court

concluded that this statement amounted to a “threat,” inasmuch

as Green had menaced Stahl precisely because he realized she

had set him up, and was likely to be a witness against him in the

future.

The Court sentenced Green to 96 months in prison.

Green filed a timely notice of appeal. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).2

II.

In the District Court, Green challenged the admissibility

of all evidence concerning his attempts to buy dynamite. He has

narrowed his challenge on appeal. He admits that his

discussions about dynamite permeated and “could be said to

have intertwined” with his discussions about cocaine. Green

contends, however, that the District Court erred in allowing

evidence that he had threatened to use that dynamite to kill A.G.

2

The District Court had jurisdiction under 18 U.S.C. §

3231.

10

In other words, he no longer argues that the jury should not have

learned that he sought to buy dynamite. He argues only that it

should not have been allowed to learn why he wanted that

dynamite. He claims that this evidence was not “intrinsic

evidence.” Additionally, he argues that evidence of his threat to

kill A.G. was inadmissible under Rule 404(b), and in any event

should have been excluded under Rule 403.3

As it did in the District Court, the Government asserts

that evidence of Green’s threat to kill A.G. was intrinsic

evidence and thus admissible without reference to Rule 404(b).

In the alternative, it argues that the evidence was admissible

under Rule 404(b), and need not have been excluded under Rule

3

He also claims that the District Court erred by

enhancing his offense level pursuant to U.S.S.G. § 3C1.1. He

admits that he threatened Stahl, but argues that he did not

obstruct justice because his threat was neither “real” nor

“credible” and was never carried out. We are not persuaded.

See United States v. Ramey, 24 F.3d 602, 609 (4th Cir. 1994)

(upholding § 3C1.1 enhancement in light of defendant’s threats

against trial judge, which the defendant claimed were merely

“idle” threats, because “[a]s between the threatener and the

threatened, we think that the threatener should bear the risk of

misunderstanding”), abrogated on other grounds by Jones v.

United States, 529 U.S. 848 (2000); United States v. McIntosh,

23 F.3d 1454, 1459 (8th Cir. 1994) (rejecting argument that §

3C1.1 enhancement was unjustified because defendant’s threats

against suspected informants were never carried out).

11

403. As a fallback position, the Government maintains that

admission of the evidence was, at worst, harmless error.

“We review the district court’s evidentiary rulings

principally on an abuse of discretion standard.” Complaint of

Consolidation Coal Co., 123 F.3d 126, 131 (3d Cir. 1997). An

abuse of discretion occurs only where the district court’s

decision is “arbitrary, fanciful, or clearly unreasonable”—in

short, where “no reasonable person would adopt the district

court’s view.” United States v. Starnes, 583 F.3d 196, 214 (3d

Cir. 2009). “We exercise plenary review, however, of [the

district court’s] rulings to the extent they are based on a legal

interpretation of the Federal Rules of Evidence.” Complaint of

Consolidation Coal Co., 123 F.3d at 131. This includes plenary

review “of whether evidence falls within the scope of Rule

404(b).” United States v. Cruz, 326 F.3d 392, 394 (3d Cir.

2003).4

III.

4

The fact that Green has narrowed his intrinsic evidence

argument on appeal does not necessitate plain error review. The

argument he advances here—that evidence of his motive for

purchasing dynamite should have been excluded—was

necessarily included within, and specifically advanced as part of,

his broader argument in the District Court for exclusion of all

evidence about dynamite.

12

We begin with Green’s argument that evidence of his

threat to kill A.G. was not “intrinsic” to the crime charged. In

doing so, we examine several evidentiary concepts that have

frustrated courts and commentators alike. Accordingly, recourse

to some legal history affords useful context.

“The original attitude of the English courts was that any

relevant evidence of the defendant’s misconduct was admissible

even if the only theory of relevance was to establish the

defendant’s character and, in turn, use character as

circumstantial proof of conduct.” 1 Edward J. Imwinkelried,

Uncharged Misconduct Evidence § 2:25 (2009) [hereinafter

Imwinkelried, Uncharged Misconduct Evidence]. Abuse of this

rule, among others, by the inquisitors of the Star Chamber

prompted Parliament to pass the Treason Act of 1695. Id. That

law granted several new rights to individuals accused of treason.

First, it entitled the accused to a copy of the indictment stating

the charges against him. Second, it mandated that any overt act

of treason alleged in the indictment be proved by two witnesses,

testifying in open court subject to cross-examination. Third, and

most importantly for present purposes, it provided that no overt

act that was not alleged in the indictment could be proved at

trial. See Thomas J. Reed, Trial by Propensity: Admission of

Other Criminal Acts Evidenced in Federal Criminal Trials, 50

U. Cin. L. Rev. 713, 716-17 (1981) [hereinafter Reed, Trial by

Propensity] (citing 7 Will. III, ch. 3 (1695)). Over time, courts

extended the rule against proving uncharged acts to criminal

trials generally, not just trials for treason. Id. at 717. By 1810,

13

it was more or less settled that “bad acts evidence which merely

demonstrate[d] the propensity of the defendant to do acts similar

to those charged” was inadmissible. See Norman Krivosha et

al., Relevancy: The Necessary Element in Using Evidence of

Other Crimes, Wrongs, or Bad Acts To Convict, 60 Neb. L. Rev.

657, 664 (1981) (citing the 1810 case of Rex v. Cole).5

English decisions in this area influenced American

courts, and the rule here throughout the 19th and 20th centuries

mirrored that of England: evidence that the accused had

committed some other crime was not admissible to prove that

the defendant had a propensity for committing crimes, and

5

See also Imwinkelried, Uncharged Misconduct

Evidence, supra, § 2:26 (explaining that Cole “forbade the

prosecution only from using the defendant’s subjective character

as circumstantial proof of the defendant’s conduct” with respect

to the crime charged); David P. Leonard, The New Wigmore:

Evidence of Other Misconduct and Similar Events § 4.3.1 (2009)

(“The general ban on evidence of character to prove action in

conformity was well-established in Great Britain by 1810.”).

But see Julius Stone, The Rule of Exclusion of Similar Fact

Evidence: England, 46 Harv. L. Rev. 954, 960-61 (1933)

(recounting English courts’ treatment of character evidence and

arguing that Cole announced “a very narrow principle of

exclusion” that was not widely followed).

14

therefore probably committed the charged crime.6 Reed, Trial

by Propensity, supra, at 736, 739. See also David P. Leonard,

The New Wigmore: Evidence of Other Misconduct and Similar

Events § 3.3 at 101 (2009) (“American courts plainly followed

English practice in excluding [uncharged misconduct] evidence

when offered to prove guilt through an inference of bad

character.”).

It was held early on, however, that this rule did not

require the exclusion of all evidence of uncharged crimes.7

Courts allowed such evidence when it was introduced not to

demonstrate propensity, but to establish the “res gestae” (“thing

6

Theories varied for why this should be. Some argued

that evidence that the defendant had committed an uncharged

crime as proof of criminal propensity was simply irrelevant.

The most common view was that such evidence was relevant,

but that the risk of unfair prejudice outweighed its usefulness.

Others pointed out the unfairness of surprising the defendant

a n d f o rc in g h im to defend again s t u n c h a rg e d

misdeeds—hearkening back to the abuses that brought about the

Treason Act of 1695. See Leonard, supra, § 1.2 (collecting

citations).

7

We will sometimes use the term “crimes” as a

shorthand for the more accurate, but cumbersome, term “crimes

or wrongful acts.” For purposes of this discussion, there is no

material difference between criminal and non-criminal bad acts.

15

done”) of the charged crime.8 Most of the early cases arose in

the state courts. Walker v. Commonwealth, 28 Va. (1 Leigh)

574, 1829 WL 772 (Va. 1829), was one such case, though it did

not explicitly invoke the term “res gestae.” In Walker, the

defendant was indicted for larceny of a watch, a gold chain, and

a key. At trial, the prosecution was permitted to introduce

evidence that the defendant had also stolen a cloak, a theft

which was the subject of a separate indictment. Id. at *1. The

defendant was convicted and appealed, contending that

admission of evidence concerning the stolen cloak was error.

The General Court of Virginia agreed. It began its analysis by

acknowledging the general rule that the prosecution was

forbidden to “go into proof of the commission of any other

8

Use of the term “res gestae” in the evidentiary context

originated in the law of hearsay. It developed as one exception

to the general rule against hearsay, with the applicable rule

being stated as follows: “Whenever any act may be proved,

statements accompanying and explaining that act made by or to

the person doing it, may be proved if they are necessary to

understand it.” James B. Thayer, Bedingfield’s Case –

Declarations as a Part of the Res Gesta, 15 Am. L. Rev. 1, 2

(1881). See also 2 Kenneth S. Broun, McCormick on Evidence

§ 218 (6th ed. 2009) (explaining hearsay origins of res gestae).

The idea was that, with respect to the events at issue in a case,

“the conduct and the accompanying words were all part of the

same transaction or the ‘things done,’ and if the conduct was

admissible, so were the words.” Chris Blair, Let’s Say Goodbye

to Res Gestae, 33 Tulsa L.J. 349, 350 (1997).

16

offence than that charged or of the character of the prisoner[.]”

Id. at *2. It then recognized that

[i]t frequently happens, however, that as the

evidence of circumstances must be resorted to for

the purpose of proving the commission of the

particular offence charged, the proof of those

circumstances involves the proof of other acts,

either criminal or apparently innocent. In such

cases, it is proper . . . that the chain of evidence

should be unbroken. If one or more links of that

chain consist of circumstances . . . which tend to

prove that the prisoner has been guilty of other

crimes than that charged, this is no reason why the

court should exclude those circumstances. They

are so intimately connected and blended with the

main facts adduced in evidence . . . that they

cannot be departed from with propriety; and there

is no reason why the criminality of such intimate

and connected circumstances . . . should exclude

them, more than other facts apparently innocent.

Id. The court gave the following hypothetical: suppose a man

is indicted for murder. Suppose further that the murder weapon

was a pistol; that this pistol once belonged to another man, but

was stolen on the same night the defendant was seen at the

rightful owner’s house; and that the defendant was seen in

possession of the pistol on the day of the murder. This evidence

would tend to suggest that the defendant had stolen the pistol.

Should it be admitted in the murder trial? The court said yes,

17

even though the evidence tended to prove both larceny and

murder, because it was “intimately connected and blended with

the main facts” of the charged murder. The court distinguished

between evidence which “constitute[d] a part of the

transaction”—the sort of evidence that became known as res

gestae—and evidence of “circumstances hav[ing] no intimate

connexion with the main fact.” Id. The former was admissible;

the latter was not.

Application of similar rules led to a different result in

Commonwealth v. Heath, 40 Va. (1 Rob.) 735, 1842 WL 2475

(Va. 1842). There, the trial court allowed a witness to testify

that the defendant had shot him shortly before he murdered the

victim. The General Court upheld that decision, noting that “the

fact of the shooting, as being part of the circumstances and of

the res gestae, ought not to have been precluded from being

given in evidence to the jury, although such evidence might

itself have tended to prove a distinct felony committed by the

prisoner.” Id. at *5. Brown v. Commonwealth, 76 Pa. 319, 1874

WL 13019 (Pa. 1874), was to the same effect. In that case, the

defendant was accused of murdering a husband and wife. In a

separate trial for the murder of the wife, prosecutors sought to

prove that the husband’s body had been found nearby. The

defendant argued that nothing about the husband’s murder

should be admitted. The Pennsylvania Supreme Court

disagreed. It held that “[b]eing parts of the same res gestae,”

the two murders “together, tend[ed] to throw light on each other,

and there is no reason that the truth should be thrown out by

18

excluding” evidence concerning the murder of the husband. Id.

at *16. This despite the general rule that “the commission of a

distinct offense, even similar in character, cannot be given in

evidence” against a defendant. Id.

The most famous case on this issue was People v.

Molineaux, 6 Bedell 264 (N.Y. 1901). In that case, Molineaux

was accused of poisoning and killing one Mrs. Adams. At trial,

the court allowed the prosecution to introduce evidence

suggesting that Molineaux had also poisoned a romantic rival

with the same drug that felled Mrs. Adams. Id. at 281-84. The

New York Court of Appeals held that this evidence should not

have been admitted. It declared it “universally recognized and

. . . firmly established in all English-speaking lands” that “the

general rule of evidence applicable to criminal trials is that the

state cannot prove against a defendant any crime not alleged in

the indictment, either as a foundation for a separate punishment,

or as aiding the proofs that he is guilty of the crime charged.”

Id. at 291. The court recognized that there were exceptions to

this rule, however, such as where the evidence tended to prove

“(1) motive; (2) intent; (3) the absence of mistake or accident;

(4) a common scheme or plan embracing the commission of two

or more crimes so related to each other that proof of one tends

to establish the others; [or] (5) the identity of the person charged

with the commission of the crime on trial.” Id. at 293. In

explaining the “common scheme” exception, the court

acknowledged that evidence of other crimes could be admissible

“where two or more crimes are so connected that it is impossible

19

to distinguish them and proof of all, in the effort to establish

one, is a part of the res gestae.” Id. at 308 (citing Brown, 76 Pa.

319, and People v. Foley, 31 N.W. 94 (Mich. 1887)).

In the decades that followed, federal courts generally

adhered to the approach outlined in Molineaux. They held that

evidence of uncharged misconduct was generally inadmissible,

but recognized many exceptions to that rule, including one for

evidence that was part of the res gestae. Gianotos v. United

States, 104 F.2d 929 (9th Cir. 1939), is representative. In that

case, Gianotos and two others were charged with unlawfully

importing opium. Thomas, a co-defendant who had been caught

with the opium, pleaded guilty and agreed to testify for the

government. Thomas testified that he agreed to hold the opium

only because Gianotos had threatened to inform police that

Thomas had assisted him in a separate act of opium smuggling

months earlier. Id. at 930. On appeal, Gianotos argued that no

evidence concerning the earlier smuggling should have been

admitted. The Ninth Circuit disagreed. It began by recognizing

the general rule against admitting evidence “that the accused has

committed another crime wholly independent of that for which

he is on trial.” Id. at 932. The court recognized, however, that

there were many exceptions to this rule, including one for

instances in which “two distinct offenses are so inseparably

connected that the proof of one necessarily involves proving the

other[.]” Id. Applying this exception, the Ninth Circuit held

that the challenged evidence was admissible because it

explained why Thomas feared Gianotos enough to go along with

20

the charged offense. The court reasoned that “[t]he purpose of

this evidence relating to the former crime was not to establish

the commission of a distinct offense,” but the charged offense,

insofar as it explained Thomas’s involvement. Id. (emphasis

added). It concluded by stating the prevailing rule: “in proving

a crime, all the res gestae may always be shown, though it

involve proof or evidence concerning the commission of another

and independent crime by the defendant at the same time.” Id.

at 933.

Similarly, in United States v. Tuffanelli, the Seventh

Circuit allowed evidence of uncharged wrongful acts in a

conspiracy case involving violations of federal liquor laws, on

the theory that those acts were “logically connected” with the

charged offense and “so closely and inextricably mixed up with

the history of the guilty act itself as to form part of the plan or

system of criminal action.” 131 F.2d 890, 893 (7th Cir. 1942).

In Bracey v. United States, the D.C. Circuit synthesized more

than a dozen cases and concluded that, notwithstanding the

general rule against the admission of uncharged crimes,

“evidence of other criminal acts has been held admissible by this

court when they are so blended or connected with the one on

trial as that proof of one incidentally involves the other; or

explains the circumstances thereof; or tends logically to prove

any element of the crime charged.” 142 F.2d 85, 88 (D.C. Cir.

1944). See also United States v. Hughes, 441 F.2d 12, 19-20

(5th Cir. 1971) (upholding admission of evidence that

defendants possessed firearms in a trial for counterfeiting

21

because the defendants’ guns were part of the res gestae; they

“were so closely blended and inextricably bound up with the

history of the crime itself as to constitute a part of the plan or

system of criminal action involved in the case”); United States

v. Crowe, 188 F.2d 209, 212 (7th Cir. 1951) (citing Tuffanelli

and Gianotos); Lynch v. United States, 12 F.2d 193, 194 (4th

Cir. 1926) (“The general rule is that, where a defendant is on

trial for one offense, evidence of separate and distinct offenses

is not permissible, except where . . . the subject of inquiry is so

related to the main offense as to throw material light thereon.”).

While use of the res gestae exception grew common,

critics argued the term was too vague to be useful and

encouraged rote incantation of Latinisms in lieu of thoughtful

analysis. Professor Wigmore was especially unsparing. He

wrote that res gestae was an “empty phrase [which encouraged]

looseness of thinking and uncertainty of decision,” 6 John

Wigmore, Wigmore on Evidence § 1767 (Chadbourn rev. 1976),

and “most frequently used as a cover for loose ideas and

ignorance of principles,” 1A John Wigmore, Wigmore on

Evidence § 218 (Tillers rev. ed. 1983). Professor Morgan wrote

that res gestae was a “troublesome expression” which owed its

prominence “to an inclination of judges and lawyers to avoid the

toilsome exertion of exact analysis and precise thinking.”

Edmund Morgan, A Suggested Classification of Utterances

Admissible as Res Gestae, 31 Yale L.J. 229, 229 (1922). He

argued that the phrase was marked by “exasperating

indefiniteness” that did “nothing but bewilder and perplex,” and

22

faulted courts for choosing to “express[] in a dead and foreign

tongue an idea for which there are accurate and adequate

English words.” Id. Professor Thayer likewise criticized the

“growing and intolerable vagueness of the expression.” James

B. Thayer, Bedingfield’s Case – Declarations as a Part of the

Res Gesta, 15 Am. L. Rev. 1, 10 (1881). These criticisms were

chiefly directed to the use of res gestae as a hearsay exception,

but they were equally applicable to its use in the context of

uncharged crimes.9 See Leonard, supra, § 5.2 at 322-24.

In 1975, Congress adopted the Federal Rules of

Evidence. The new codification included Rule 404(b), which

provided that evidence of “other crimes, wrongs, or acts” was

inadmissible to prove a person’s character in order to show

action in conformity therewith, but admissible for “other

purposes, such as proof of motive, opportunity, intent,

9

These criticisms live on. See, e.g., United States v.

Hill, 953 F.2d 452, 457 n.1 (9th Cir. 1991) (cautioning against

use of the “overly-broad” res gestae doctrine); United States v.

Krezdorn, 639 F.2d 1327, 1332 (5th Cir. Unit A Mar. 1981)

(describing res gestae as “an appellation that tends merely to

obscure the analysis underlying the admissibility of the

evidence”); 1 Christopher B. Mueller & Laird C. Kirkpatrick,

Federal Evidence § 4:33 (3d ed. 2003) (describing res gestae as

a “mind-numbing and elastic term” which “pretends much but

means little”); Chris Blair, Let’s Say Goodbye to Res Gestae, 33

Tulsa L. J. 349 (1997) (arguing that Oklahoma courts should

abandon the term).

23

preparation, plan, knowledge, identity, or absence of mistake or

accident.” The rule codified the common law bar against the

use of uncharged crimes to prove criminal propensity—albeit in

a modified form. The common law rule was widely, though not

universally, stated in “exclusionary” terms. That is, it set forth

a general rule of inadmissibility, subject to exceptions, such as

res gestae. See, e.g., United States v. Clemons, 503 F.2d 486,

489 (8th Cir. 1974) (describing “narrow exceptions to [a]

general rule of exclusion”); Molineaux, 6 Bedell at 293. By

contrast, Rule 404(b) was “inclusionary.” It stated a general rule

of admissibility, subject to a single exception—evidence of

other wrongful acts was admissible so long as it was not

introduced solely to prove criminal propensity. Thus, the

proponent no longer had to pigeonhole his evidence into one of

the established common-law exceptions, on pain of exclusion.

If he could identify any non-propensity purpose for introducing

the evidence, it was admissible.10 See, e.g., United States v.

10

A minority of courts, including this Court, adhered to

an inclusionary rule even before Rule 404(b) was adopted. See

United States v. Stirone, 262 F.2d 571, 576 (3d Cir. 1958)

(adopting the inclusionary statement of the rule against other

crimes evidence), rev’d on other grounds, Stirone v. United

States, 361 U.S. 212 (1960). See also Thomas J. Reed, The

Development of the Propensity Rule in Federal Criminal Causes

1840-1975, 51 U. Cin. L. Rev. 299, 303-04 (1982) (explaining

that the Second and Tenth Circuits also took the inclusionary

view before Rule 404(b) was adopted).

24

Long, 574 F.2d 761, 765-66 (3d Cir. 1976) (contrasting the

exclusionary and inclusionary approaches); United States v.

Bradwell, 388 F.2d 619, 621-22 (2d Cir. 1968) (same); Leonard,

supra, § 4.3; Reed, Trial by Propensity, supra, at 728-30.

Since Rule 404(b) was enacted, the term “res gestae” has

largely given way to its “modern, de-Latinized” descendant:

“intrinsic evidence,” the term invoked by the Government in this

case.11 See 1 Christopher B. Mueller & Laird C. Kirkpatrick,

Federal Evidence § 4:33 (3d ed. 2003). See also Edward J.

Imwinkelried, The Second Coming of Res Gestae, 50 Cath. U.

L. Rev. 719, 728 (2010) [hereinafter Imwinkelried, The Second

Coming of Res Gestae] (describing the inextricably intertwined

doctrine as “arguably the second coming of the common-law res

gestae principle”). As mentioned earlier, modern cases divide

evidence of other crimes and bad acts into two categories: those

“extrinsic” to the charged offense, and those “intrinsic” to it.

Extrinsic evidence must be analyzed under Rule 404(b); intrinsic

evidence need not be. Recalling the logic for allowing res

gestae evidence, courts today exempt intrinsic evidence from

application of Rule 404(b) on the theory that there is no “other”

wrongful conduct at issue; the evidence is admissible as part and

parcel of the charged offense. Compare Gianotos, 104 F.2d at

932 (res gestae evidence admissible “not to establish the

11

The term “res gestae” is still incanted by courts from

time to time. See, e.g., United States v. Till, 434 F.3d 880, 884

(6th Cir. 2006).

25

commission of a distinct offense . . . . but for its bearing on the

crime under investigation”), with United States v. Gibbs, 190

F.3d 188, 217-18 (3d Cir. 1999) (intrinsic evidence is not

subject to Rule 404(b) analysis because there is no “other”

crime). The distinction between intrinsic and extrinsic evidence

has been criticized, see, e.g., United States v. Cross, 308 F.3d

308, 320 (3d Cir. 2002); United States v. Bowie, 232 F.3d 923,

927 (D.C. Cir. 2000), but it is one we have accepted, see, e.g.,

United States v. Hoffecker, 530 F.3d 137, 189 (3d Cir. 2008);

Gibbs, 190 F.3d at 217.

This brings us to the issue presented in this appeal. Was

evidence of Green’s threat to kill A.G. “intrinsic” to the charged

offense of attempted possession of cocaine with intent to

distribute? The answer to that question depends on the

definition of “intrinsic evidence,” a term we have used before

but never conclusively defined. Exhuming the “inseparably

connected” and “inextricably mixed up” language of res

gestae,12 most courts of appeals today hold that acts are

“intrinsic” to the charged offense if they are “inextricably

intertwined” with that offense. Cross, 308 F.3d at 320. They

allow this evidence for the same reason courts once allowed res

gestae evidence: it helps the factfinder to “evaluate all of the

circumstances under which the defendant acted.” United States

v. Smith, 930 F.2d 1081, 1087 (5th Cir. 1991). In other words,

12

See Gianotos, 104 F.2d at 932; Tuffanelli, 131 F.2d at

893.

26

it aids understanding by “complet[ing] the story” of the charged

crime. See, e.g., United States v. Basham, 561 F.3d 302, 326

(4th Cir. 2009); United States v. Sumlin, 489 F.3d 683, 687 (5th

Cir. 2007); United States v. Carboni, 204 F.3d 39, 44 (2d Cir.

2000).

Courts following this reasoning employ a variety of tests

for determining whether an act is “inextricably intertwined” with

the charged offense. The Eleventh Circuit holds that evidence

is inextricably intertwined if it is “not part of the crime charged

but pertain[s] to the chain of events explaining the context” of

the crime; or is “linked in time and circumstances with the

charged crime”; or “forms an integral and natural part of an

account of the crime”; or “complete[s] the story of the crime for

the jury.” United States v. Wright, 392 F.3d 1269, 1276 (11th

Cir. 2004). The Seventh Circuit exempts from Rule 404(b)

evidence of misconduct that supplies “a complete story of the

crime on trial”; evidence necessary to avoid “a chronological or

conceptual void in the story of the crime”; and evidence that is

“so blended or connected that it incidentally involves, explains

the circumstances surrounding, or tends to prove any element of,

the charged crime.” United States v. Gibson, 170 F.3d 673, 681

(7th Cir. 1999) (internal quotations omitted). The Eighth Circuit

considers evidence inextricably intertwined if it is “an integral

part of the immediate context of the crime charged.” United

States v. Hall, 604 F.3d 539, 543 (8th Cir. 2010). The Second

Circuit inquires whether the uncharged crime evidence is

“necessary to complete the story of the crime on trial.” United

27

States v. Quinones, 511 F.3d 289, 309 (2d Cir. 2007) (internal

citations and quotations omitted). The Tenth Circuit asks

whether a witness’s testimony “would have been confusing and

incomplete without mention of the [uncharged] act.” United

States v. Johnson, 42 F.3d 1312, 1316 (10th Cir. 1994).

There are at least three problems with the “inextricably

intertwined” test and its subsidiary formulations. The first is

that the test creates confusion because, quite simply, no one

knows what it means. Such an impediment stands as an obstacle

to helpful analysis. Indeed, we have criticized the “inextricably

intertwined” standard as “a definition that elucidates little.”

Cross, 308 F.3d at 320. The Seventh Circuit, which has

consistently used the test, admits that it is often “unhelpfully

vague.” United States v. Taylor, 522 F.3d 731, 734 (7th Cir.

2008).13 Professors Mueller and Kirkpatrick argue that it “has

proved elastic and invites abuse.” 1 Mueller & Kirkpatrick,

supra, § 4:33. Others note that it “substitutes a careful analysis

with boilerplate jargon,” 1-404 Stephen A. Saltzburg et al.,

Federal Rules of Evidence Manual § 404.02[12] (9th ed.), and

“invites sloppy, non-analytical decision-making,” Leonard,

supra, § 5.2 at 327. Even Professor Imwinkelried, who defends

13

See also United States v. Conner, 583 F.3d 1011,

1018-21 (7th Cir. 2009) (crediting several criticisms of the

inextricably intertwined test and holding that the district court

abused its discretion by admitting evidence pursuant to the

doctrine).

28

the test, concedes that the “vacuous nature of [its] wording gives

courts license to employ sloppy analysis and allows them

quickly to slip from a conclusory analysis to a desired

conclusion.” Imwinkelried, The Second Coming of Res Gestae,

supra, at 729-30.

Indeed, this case exemplifies how elusive and unhelpful

the “inextricably intertwined” standard can be. All of the

formulations used by the courts of appeals purport to embody

the same test, but clearly they are not interchangeable. Whether

evidence qualifies as intrinsic in a particular case may well

depend on which version of the test one employs. For example,

Green’s threat to kill A.G. would qualify as intrinsic if the test

is whether it “pertain[s] to the chain of events explaining the

context” of the crime, Wright, 392 F.3d at 1276, because it

“pertained to” (in fact, triggered) Stahl’s decision to go to the

FBI and the subsequent chain of events through which Green

was caught attempting to possess cocaine. The same threat

would not be intrinsic, however, if the test were whether that

threat was “an integral part of the immediate context of the

crime charged.” Hall, 604 F.3d at 543. The District Court just

as easily could have forced the Government to start the tale of

Green’s wrongdoing with the fact that Stahl went to the FBI

because Green had expressed interest in buying cocaine and

dynamite. It was not strictly necessary for the jury to know why

Green wanted dynamite in order for it to understand that he did,

and that his inquiries on that point drove Stahl to the FBI.

Likewise, Green’s threat to kill A.G. would probably be intrinsic

29

evidence if the touchstone were whether that threat “explain[ed]

the circumstances surrounding” Stahl’s decision to warn the

FBI. Gibson, 170 F.3d at 681. It would not be intrinsic,

however, if the relevant inquiry is whether Stahl’s testimony

“would have been confusing and incomplete without mention”

of the threat against A.G. Johnson, 42 F.3d at 1316. We see no

principled way to choose among these competing incarnations

of the test, yet that choice could well be determinative. “Simply

stated, the indefinite phrasing of the doctrine is a virtual

invitation for abuse.” Imwinkelried, The Second Coming of Res

Gestae, supra, at 730.

The second problem with the inextricably intertwined test

is that resort to it is unnecessary. The most common

justification for admitting evidence of “intertwined” acts is to

allow a witness to testify freely and coherently; we do not want

him to have to tiptoe around uncharged bad acts by the

defendant, and thereby risk distorting his narrative. This is a

worthy goal, but it can be accomplished without circumventing

Rule 404(b). As the D.C. Circuit explained in Bowie:

If the so-called “intrinsic” act is indeed part of the

crime charged, evidence of it will, by definition,

always satisfy Rule 404(b). The rule bars bad acts

evidence only when the evidence is offered solely

to “prove the character of a person in order to

show action in conformity therewith.”

Fed.R.Evid. 404(b). Evidence that constitutes the

very crime being prosecuted is not of that sort.

30

232 F.3d at 927. There is little practical difference between

admitting inextricably intertwined evidence as “background”

pursuant to Rules 401 and 402, and admitting it under Rule

404(b). In both cases, the evidence must be relevant, it must

pass muster under Rule 403, and it must not be introduced solely

to prove the defendant’s criminal propensity. “[T]he only

consequences of labeling evidence ‘intrinsic’ are to relieve the

prosecution of Rule 404(b)’s notice requirement and the court

of its obligation to give an appropriate limiting instruction upon

defense counsel’s request.” Id. See also United States v. Ameri,

297 F. Supp. 2d 1168, 1173 (E.D. Ark. 2004) (“It is difficult for

me to conjure up a fact situation where ‘inextricably

intertwined’ evidence wouldn’t be admissible under Rule

404(b). If this is true, why discard the Rule 404(b) safeguards?

. . . . [T]he notice requirement of 404(b) is manifestly important,

and is often crucial if the Defendant is to meet the ‘bad act’

evidence.”). Stated another way, the “inextricably intertwined”

doctrine exempts evidence of wrongful acts that explain the

circumstances of the crime from the rigors of Rule 404(b). But

the same evidence would also be admissible within the

framework of that rule because allowing the jury to understand

the circumstances surrounding the charged crime—completing

the story—is a proper, non-propensity purpose under Rule

404(b). See, e.g., United States v. O’Leary, 739 F.2d 135, 136

(3d Cir. 1984) (identifying the need “to show the background of

the charges [and] the parties’ familiarity with each other” as a

proper purpose); United States v. Simmons, 679 F.2d 1042, 1050

(3d Cir. 1982) (concluding that providing the jury with

31

“necessary background information” was a proper purpose

under Rule 404(b)); United States v. Dansker, 537 F.2d 40, 58

(3d Cir. 1976) (upholding introduction of prior criminal acts by

defendants because “the background information provided by

this testimony enabled the jury to better understand [the

witness’s] role in the bribery scheme as well as his testimony as

a whole”).14 All that is accomplished by labeling evidence

“intrinsic” is relieving the Government from providing a

defendant with the procedural protections of Rule 404(b).

The third problem with the inextricably intertwined test

is that some of its broader formulations, taken at face value,

classify evidence of virtually any bad act as intrinsic. See, e.g.,

Gibson, 170 F.3d at 681 (permitting evidence of any act that

“explains the circumstances surrounding . . . the charged

crime”). As we warned in Cross, such a regime would

eviscerate Rule 404(b). See 308 F.3d at 320. See also Bowie,

232 F.3d at 929; Ameri, 297 F. Supp. 2d at 1169 (explaining that

a “liberal view of the ‘inextricably intertwined’ exception to

Rule 404(b) would essentially nullify the 404(b) restrictions on

‘bad act’ evidence”).

14

See also Taylor, 522 F.3d at 736 (describing the need

to avoid juror confusion as a proper purpose); United States v.

Masters, 622 F.2d 83, 86-88 (4th Cir. 1980) (explaining that the

need to “complete the story” of the crime for the factfinder is a

proper purpose under Rule 404(b)); 1 Kenneth S. Broun,

McCormick on Evidence § 190 (6th ed. 2009) (same).

32

This Court has never adopted its own version of the

“inextricably intertwined” test. In Cross, we noted some of the

problems with the test but ultimately reserved judgment. We

observed that “the distinction between intrinsic and extrinsic . .

. evidence is often fuzzy” and noted that “most circuit courts

view evidence as intrinsic if it is ‘inextricably intertwined’ with

the charged offense . . . or if it ‘completes the story’ of the

charged offense.” Cross, 308 F.3d at 320. We pointed out that

the former approach was “a definition that elucidates little,” and

the latter “so broad that it renders Rule 404(b) meaningless.” Id.

However, we found it unnecessary to go beyond highlighting

these “pedagogical problems with understanding intrinsic

evidence.” Because Cross arose from a criminal conspiracy

charge, the intrinsic/extrinsic issue was easy to resolve. We

noted that, under Third Circuit precedent, “acts are intrinsic

when they directly prove the charged conspiracy.” Id. (citing

Gibbs, 190 F.3d at 217-18). We concluded that because the

evidence at issue did not directly prove the charged conspiracy,

it was not intrinsic. Id. Accordingly, we declined to decide the

boundaries of intrinsic evidence for every case. Specifically, we

expressed “no view on whether ‘other acts’ evidence that does

not directly prove an element of the charged offense may be

‘intrinsic’ . . . if [it is] ‘inextricably intertwined’ with the events

underlying the charge, so that the evidence is necessary for the

jury to understand how the offense occurred or to comprehend

crucial testimony.” Id. at 320 n.19.

Our resistance to the “inextricably intertwined” standard

33

has not diminished since Cross, and today we make clear that

this is not our test for intrinsic evidence. Like its predecessor

res gestae, the inextricably intertwined test is vague, overbroad,

and prone to abuse, and we cannot ignore the danger it poses to

the vitality of Rule 404(b).

That is not to say we reject the concept of intrinsic

evidence entirely. Instead, we will reserve the “intrinsic” label

for two narrow categories of evidence. First, evidence is

intrinsic if it “directly proves” the charged offense. See e.g.,

Cross, 308 F.3d at 320; Gibbs, 190 F.3d at 218 (acts of violence

admissible as direct proof of the charged drug conspiracy). See

also Bowie, 232 F.3d at 929 (acknowledging that evidence of

“an act that is part of the charged offense . . . is properly

considered intrinsic”). This gives effect to Rule 404(b)’s

applicability only to evidence of “other crimes, wrongs, or acts.”

Fed. R. Evid. 404(b) (emphasis added). If uncharged

misconduct directly proves the charged offense, it is not

evidence of some “other” crime. Gibbs, 190 F.3d at 218.

Second, “uncharged acts performed contemporaneously with the

charged crime may be termed intrinsic if they facilitate the

commission of the charged crime.” Bowie, 232 F.3d at 929.

But all else must be analyzed under Rule 404(b).

As a practical matter, 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. We reiterate that the purpose of

34

Rule 404(b) is “simply to keep from the jury evidence that the

defendant is prone to commit crimes or is otherwise a bad

person, implying that the jury needn’t worry overmuch about the

strength of the government’s evidence.” Taylor, 522 F.3d at

735-36. “No other use of prior crimes or other bad acts is

forbidden by the rule,” and one proper use of such evidence “is

the need to avoid confusing the jury.” Id. at 736 (emphasis

added). See also Simmons, 679 F.2d at 1050 (recognizing that

other crimes evidence may be admissible if offered for any non-

propensity purpose, and identifying the need “to provide

necessary background information” about the relationships

among the players as a proper purpose). Thus, most, if not all,

other crimes evidence currently admitted outside the framework

of Rule 404(b) as “background” evidence will remain

admissible under the approach we adopt today.15 The only

difference is that the proponent will have to provide notice of

his intention to use the evidence, and identify the specific, non-

propensity purpose for which he seeks to introduce it (i.e.,

allowing the jury to hear the full story of the crime). See Bowie,

232 F.3d at 927. Additionally, the trial court will be required to

give a limiting instruction upon request. See United States v.

Kemp, 500 F.3d 257, 296 (3d Cir. 2007); Bowie, 232 F.3d at

15

Of course, the fact that evidence is admissible for

some purpose does not necessarily mean that it should be

admitted. As always, district courts must exclude evidence

under Rule 403 where its clarifying value as “background” may

be substantially outweighed by the risk of unfair prejudice.

35

927-28 (explaining that designation of evidence as “inextricably

intertwined” unduly deprives the defendant of the right to a

limiting instruction).

Applying the standards set forth above, this is a

straightforward case. Evidence of Green’s threat to kill A.G.

with dynamite was not intrinsic evidence. First, it did not

directly prove that Green attempted to possess cocaine with

intent to distribute. Additionally, it did not in any meaningful

way facilitate his attempt to procure cocaine through “Frankie”

and “Mario”—the only crime with which he was charged.

Mindful that we may affirm for any reason supported by

the record, however, we turn to the government’s alternative

argument that evidence of Green’s threat to kill A.G. was

admissible under Rule 404(b).

IV.

To be admissible under Rule 404(b), evidence of

uncharged crimes or wrongs must (1) have a proper evidentiary

purpose; (2) be relevant; (3) satisfy Rule 403; and (4) be

accompanied by a limiting instruction (where requested) about

the purpose for which the jury may consider it. United States v.

Butch, 256 F.3d 171, 175 (3d Cir. 2001). As explained above,

the District Court gave a limiting instruction that Green

explicitly approved. We conclude that the remaining

requirements were met as well.

36

First, the evidence served at least two proper purposes.

A proper purpose is one that is “probative of a material issue

other than character.” Huddleston v. United States, 485 U.S.

681, 686 (1988). The evidence must fit “into a chain of logical

inferences, no link of which may be the inference that the

defendant has the propensity to commit the crime charged.”

United States v. Himelwright, 42 F.3d 777, 782 (3d Cir. 1994).

As explained in the previous section, one proper purpose under

Rule 404(b) is supplying helpful background information to the

finder of fact. Simmons, 679 F.2d at 1050. Here, evidence of

Green’s threat was admissible as background information which

completed the story of the crime. It explained why Green was

under investigation, why Stahl agreed to serve as an informant,

and the references to A.G. in their conversations. See id.;

O’Leary, 739 F.2d at136; Dansker, 537 F.2d at 58.

Evidence that Green threatened to kill A.G. was also

admissible proof of motive. Fed. R. Evid. 404(b). “Motive” is

“[s]omething . . . that leads one to act.” Black’s Law Dictionary

at 1039 (8th ed. 2004). Here, Green put Stahl’s motives for

cooperating with the FBI squarely at issue during the trial. Both

in his opening statement and on cross-examination, he

vigorously suggested that Stahl cooperated with the

investigation in order to make money, or to get the FBI to help

her son with his criminal charges. In light of that attack, the

Government was entitled to produce evidence of an alternative

motive for her cooperation—namely, her concern that “officers’

lives were in danger”—which it hoped would improve her

37

credibility with the jury, especially in light of her testimony that

three of her brothers were either active or retired state troopers.16

See United States v. Scarfo, 850 F.2d 1015, 1021 (3d Cir. 1988)

(upholding district court decision to allow other crimes evidence

which helped the jury “evaluate the witnesses’ motives for

cooperating with the government”). We recognize that in the

ordinary case the requisite “proper purpose” explains something

about the defendant’s motive, plan, or knowledge. This case is

unusual in that the proper purpose we have identified relates to

a witness’s motive, not the defendant’s. While this may be

uncommon, it is appropriate. Rule 404(b) provides that

evidence of other crimes is inadmissible to prove the character

of “a person,” but may be admissible as proof of that person’s

“motive, opportunity, intent,” etc. It does not specify that

evidence is only admissible to prove the defendant’s motive,

opportunity, or intent. See, e.g., Scarfo, 850 F.2d at 1021;

Imwinkelried, Uncharged Misconduct Evidence, supra, § 6:12

(noting that other crimes evidence may be admissible “to explain

the conduct of the police, . . . the victim, an informer, a

government witness, or the defendant”). In this case, the fact

16

Or, to skip a step in the analysis, the required proper

purpose was the rehabilitation of Stahl’s credibility, in light of

Green’s suggestions that she was motivated by money and

cooperated solely for selfish reasons. See United States v.

Jemal, 26 F.3d 1267, 1272 (3d Cir. 1994) (noting that the list of

permissible purposes provided in the text of Rule 404(b) is not

exhaustive).

38

that evidence of Green’s threat helped to explain Stahl’s motives

for acting as an informant was sufficient to satisfy Rule

404(b).17

Second, evidence that Green threatened to kill A.G. was

relevant. Evidence is relevant if it has “any tendency to make

the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.” Fed. R. Evid. 401. This

definition is “very broad.” Gibson v. Mayor & Council of

Wilmington, 355 F.3d 215, 232 (3d Cir. 2004). “Proof of bias

is almost always relevant,” United States v. Werme, 939 F.2d

108, 114 (3d Cir. 1991), because a “showing of bias on the part

of a witness would have a tendency to make the facts to which

he testified less probable in the eyes of the jury than it would be

without such testimony.” United States v. Abel, 469 U.S. 45, 49

(1984). See also Schledwitz v. United States, 169 F.3d 1003,

1015 (6th Cir. 1999) (“[b]ias is always relevant in assessing”

17

Green’s only argument against admissibility under

Rule 404(b) is that evidence of his threat to kill A.G. could not

have been admitted under Rule 404(b) because his motive for

buying dynamite (retribution) was entirely unrelated to his

motive for the charged cocaine offense (making money). Even

if true, the point is irrelevant. As we have explained, Rule

404(b) does not require that the evidence at issue help explain

the defendant’s motives, only the motive of some person whose

motive is relevant.

39

credibility).

If proof of bias is almost always relevant, so too is

evidence of a lack of bias. United States v. Fusco, 748 F.2d

996, 998 (5th Cir. 1984) (“Because evidence of bias or lack of

bias is substantive, rather than collateral, it may be developed on

direct . . . [or] cross-examination, just like any other substantive

evidence”) (emphasis added). Recognition of the value of such

evidence settles the relevance issue here. Green attacked Stahl

as less than credible because she was biased in favor of the

Government. See United States v. Sumlin, 271 F.3d 274, 282

(D.C. Cir. 2001) (explaining that an accusation of bias “is an

acceptable method of attacking a witness’[s] credibility”).

Therefore, evidence that Stahl cooperated not for the purpose of

obtaining favors from the Government, but because A.G.’s life

was in danger, was relevant. It provided an explanation for her

cooperation that, if believed, increased her credibility relative to

what it would have been if Green’s attacks had gone

unanswered, and thus made the facts to which she testified

“more probable . . . .[than they would have been] without the

evidence.” Fed. R. Evid. 401. See also United States v. Porter,

881 F.2d 878, 886 (10th Cir. 1989) (because the government

witness’s “credibility had been placed in issue by the defense,”

evidence corroborating that witness’s testimony was “relevant

for the purpose of overcoming that attack”). Indeed, evidence

concerning a witness’s credibility is always relevant, because

credibility is always at issue, see United States v. Universal

Rehab. Servs. (PA), Inc., 205 F.3d 657, 666 (3d Cir. 2000) (en

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banc) (noting that “[j]urors are instructed, . . . in almost all

cases, that they are to determine the credibility of all witnesses

who testify . . . . even in the absence of an affirmative challenge

to witness credibility”), especially when the witness is testifying

for the government in a criminal trial. United States v.

Gambino, 926 F.2d 1355, 1363 (3d Cir. 1991) (recognizing that,

“[i]n any criminal trial, the credibility of the prosecution’s

witnesses is central”).

Third, and contrary to Green’s argument on appeal, the

District Court was not required to exclude evidence of Green’s

threat under Rule 403. That rule permits a trial judge to exclude

relevant evidence if “its probative value is substantially

outweighed by the danger of unfair prejudice.” Fed. R. Evid.

403. We review for abuse of discretion, which means we must

uphold the District Court unless its ruling was “arbitrary or

irrational.” Universal Rehab. Servs., 205 F.3d at 665.

We find no abuse of discretion here. The evidence at

issue carried some probative value. It helped explain why talk

of dynamite permeated Green and Stahl’s taped conversations

about cocaine, and why Stahl was working with the FBI.

Meanwhile, the risk of unfair prejudice, while certainly present

given the deplorable nature of Green’s threat, was not so great

as to require reversal. We note that we have rejected Rule 403

challenges to the admission of evidence that was just as

prejudicial as the evidence at issue here. See, e.g., Scarfo, 850

F.2d at 1020 (evidence of uncharged murders); United States v.

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Sriyuth, 98 F.3d 739, 748 (3d Cir. 1996) (evidence of uncharged

rape). Furthermore, any risk of unfair prejudice was minimized

by the District Court’s limiting instruction, which carefully

circumscribed the purpose for which the jury could consider the

evidence pertaining to dynamite. See Sriyuth, 98 F.3d at 748

(trusting the jury to “compartmentalize the evidence and

consider it for its proper purposes” in light of trial court’s

limiting instruction).

For these reasons, we hold that the challenged evidence

was admissible under Rule 404(b). As a result, we need not

decide whether its admission was harmless error.

V.

Evidence of Green’s threat to murder A.G. was not

intrinsic evidence. It was, however, admissible under Rule

404(b). The District Court did not err by admitting it at trial.

We will affirm the judgment.

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