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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2009 Decided March 5, 2010
No. 08-3018
UNITED STATES OF AMERICA,
APPELLEE
v.
EDWARD EVERETT BROWN, JR.,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 06cr00295-01)
Edward C. Sussman, appointed by the court, argued the
cause and filed the brief for appellant.
John P. Gidez, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Roy W. McLeese III
and Chrisellen R. Kolb, Assistant U.S. Attorneys.
Before: HENDERSON, ROGERS and BROWN, Circuit Judges.
2
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Edward Brown was convicted by
a jury of bank fraud, in violation of 18 U.S.C. § 1344, and
passing fictitious financial instruments, in violation of 18 U.S.C.
§ 514, for trying to deposit two fictitious “bills of exchange” in
his account at a federal credit union. He appeals on the ground
the district court abused its discretion by permitting introduction
of other crimes evidence that was unnecessary to the
government’s proof of the charged offenses and unfairly caused
the jury to focus on his character and propensity to commit
crime, thereby denying him a fair trial. Relying on the limits
established by Federal Rules of Evidence 404(b)1 and 403,2
1
Rule 404(b) of the Federal Rules of Evidence provides:
Evidence of other crimes, wrongs, or acts, is not
admissible to prove the character of the 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.
2
Rule 403 of the Federal Rules of Evidence provides:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.
3
Brown maintains that “much of the substantive testimony
introduced by the government focused, not on [his] attempt to
negotiate the instruments that were the subject of the
indictment, but his attempted purchase of three cars and a $1.8
million Maryland home,” Appellant’s Br. 22, and “likely
exceeded the time devoted to the indicted charges,” id. at 23.
The Rule 404(b) evidence, with one exception, concerned
Brown’s use of fictitious financial documents before the first
charged offense and shortly before the second charged offense.
Although this evidence consumed a large part of the
government’s case-in-chief, the district court could reasonably
conclude there was no unfair prejudice to Brown under Rule
403. Brown’s intent was the contested issue at trial: The
government had to prove he acted with specific intent to defraud
the credit union, and Brown claimed to have acted in good faith.
The extrinsic evidence of Brown’s other uses of fictitious
financial documents was substantively and temporally tied to
the charged offenses, and those other uses were distinct enough
not to be the “needless presentation of cumulative evidence,”
FED. R. EVID. 403. The extrinsic evidence that Brown had
failed to pay for a house inspection, on the other hand, was not
probative of his intent to defraud the credit union and therefore
inadmissible under Rule 404(b); but this evidence was quite
limited in length, not inflammatory, and was not mentioned
during the government’s closing arguments. The district court’s
limiting instructions guarded against the jury’s reliance on
impermissible inferences that might have been drawn from the
Rule 404(b) evidence. Accordingly, we affirm.
I.
Following a mistrial when the jury could not reach a
verdict, Brown was found guilty by a jury at his second trial.
The government presented evidence through four witnesses
4
regarding Brown’s attempts on two occasions to deposit a
fictitious “bill of exchange” in his account at the Treasury
Department Federal Credit Union on July 20, 2005 and
February 21, 2006. This testimony also revealed that Brown
thought House Joint Resolution 192, enacted in 1933 by the
73rd Congress, had created a private direct account with the
Treasury Department for all citizens of the United States once
they filed a “Uniformed Code financing statement.” Having
obtained what he thought were genuine financial documents in
the form of “bills of exchange,” Brown attempted to use them
to access his Treasury account. The government also
introduced the two “bills of exchange” into evidence.
We summarize the testimony presented in the government’s
case-in-chief, separating the testimony of the Rule 404(b)
witnesses in view of Brown’s contentions on appeal. At trial,
however, the jury heard first about Brown’s attempt to deposit
a “bill of exchange” at the credit union on July 20, 2005 and the
subsequent warning to him by a Special Agent from the
Treasury Department. The jury then heard from two Rule
404(b) witnesses about Brown’s attempt to purchase a house in
February 2006. Testimony about the second charged offense on
February 21, 2006 followed. A Rule 404(b) witness from PNC
Bank then testified about events in June 2005. He was followed
by a document expert from the Treasury Department. Two Rule
404(b) witnesses then testified about Brown’s attempt to
purchase three cars and a subsequent warning to him by a
detective assigned to the Secret Service.
A.
Timothy Anderson, the Chief Operating Officer and Vice
President of the credit union, testified that on July 20, 2005,
Brown presented for deposit in his credit union account a “bill
of exchange” in the amount of $2.9 million, which was labeled
“Certified U.S. Department of Treasury,” with a three-digit
5
number, printed with the name “SunTrust Bank International
Bill of Exchange,” and stated it was payable through SunTrust
Bank. Anderson explained that although the “bill of exchange”
had some similarities to valid bills, such as check and routing
numbers, the words “paid to the order of,” and the name of a
bank it was payable through, it also contained a number of
irregularities, such as being printed on paper rather than “check
stock” and in multiple colors, as well as containing the words
“UNCITRAL Conventions,” which “have no meaning as far as
negotiating the check.” In response to his inquiries, Treasury
Department agents instructed Anderson to contact Brown, who
subsequently provided Anderson with additional documents
purporting to validate the $2.9 million “bill of exchange.” One
such document was labeled “Original Silver Surety Bond,”
which, according to Anderson, Brown “incoherent[ly]”
explained “would support” the “bill of exchange.” A videotape
of Anderson’s meeting with Brown on August 5, 2005 was
played for the jury. Anderson testified he never intended to
deposit the “bill of exchange” in Brown’s account.
Eventually, he stopped responding to Brown’s telephone
messages.
Patrick Blake, a Special Agent at the Treasury Department,
testified that he met with Brown on August 30, 2005. He told
Brown that his “bill of exchange” was worthless and that it was
illegal to try to negotiate it.
Shawn Kahler, a compliance officer at the credit union,
testified that he met with Brown on February 23, 2006
regarding Brown’s second attempt, on February 21, 2006, to
deposit a fictitious “bill of exchange,” this time for $5.5 million.
The bill showed a certification by the Treasury Department and
was made payable to Brown. Brown gave Kahler a second
deposit slip for the $5.5 million “bill of exchange” and a wire
transfer request for $1.8 million to be sent to the Bank of
6
America. Brown did not mention his first attempt to deposit a
“bill of exchange” at the credit union, although Kahler was
aware of it and had responded to one of Brown’s telephone
messages for Anderson. A videotape of their meeting and a
tape of their prior telephone conversation were played for the
jury.
Alexis Rohan, a Treasury Department forensic document
examiner, testified as an expert witness. He opined that each
“bill of exchange” Brown had presented to the credit union was
not a valid financial document. He explained the Treasury
Department does not certify financial instruments for
individuals, contrary to the representations in Brown’s
documents.
B.
Over defense objection, the district court also allowed the
government to introduce, pursuant to Rule 404(b), testimony
from five witnesses about other occasions when Brown used
fictitious financial documents in attempts to obtain something
of value. Brown had indicated during the course of the charged
offenses that he was acting in good faith, and, in moving for
admission of Rule 404(b) evidence, the government stated it
anticipated that he would present a good faith defense at trial.
The district court ruled the Rule 404(b) evidence was relevant
to show Brown’s intent, knowledge, motive, and absence of
mistake or accident.
Sam Fisher, a real estate agent with Coldwell Banker,
testified that in January or February of 2006 Brown gave her a
$50,000 “certified check” from “Suntrust Bank” as an earnest
money payment on the purchase of a $1.8 million house located
in Maryland. When the check bounced, Brown told her the
bank had made a mistake and gave her a silver “surety bond”
for $50,000. After Fisher refused to accept the “surety bond”
7
and asked for another certified check, she never heard from
Brown again. Fisher also testified that she had paid for a $700
home inspection fee, but Brown had never reimbursed her.
Matthew Hurd, a settlement officer for NRT Mid-Atlantic
Title Services, LLC, testified that in February 2006 he contacted
Brown about the Maryland real estate purchase. Brown told
him that the house was being purchased by a trust, “Arcturus
Telecommunications Enterprises,” which would wire the
needed funds. Hurd subsequently received from Brown by fax
a “trust document,” which stated that the trust was formed in
England and identified Brown as the “lawful bearer of 100 units
of beneficial interest” and the managing director. After Hurd
informed Brown that the earnest-money check had bounced and
refused to accept another, Brown gave Hurd a $50,000 Treasury
Department “surety bond” to demonstrate that he had money, as
well as wiring instructions. Hurd faxed the wiring instructions
to the credit union and was subsequently informed by a U.S.
Secret Service agent that Brown did not have any funds on
deposit at the credit union.
Joel Gold, in-house counsel at PNC Bank, testified that in
June 2005 Brown had given him for deposit a “bill of
exchange” in the amount of $2.9 million payable to “Arcturus
Telecommunications Enterprise.” Gold wrote Brown several
letters advising that the bank would not honor the demand of
payment because the “bill of exchange” had no legal or
monetary value and that Brown should stop using them.
Rita Nyambi, a manager at CarMax in Maryland, testified
that in August 2004 Brown attempted to buy three cars with
“registered” drafts in the amounts of $23,000; $25,000; and
$40,000; which exceeded the total purchase price. The
salesperson on the lot accepted the drafts in payment and Brown
took possession of the cars. After the drafts proved non-
8
negotiable, Brown told Nyambi she had not followed the
instructions and insisted she resubmit the drafts to the bank.
When the drafts bounced, CarMax repossessed the cars and
contacted law enforcement.
Pete Medley, a detective assigned to the U.S. Secret
Service Federal Financial Crimes Task Force, testified that in
September 2004, after the CarMax incident, he had warned
Brown that his financial documents were bogus and that it was
unlawful to use them.
The district court gave limiting instructions to the jury on
the proper use of the Rule 404(b) testimony after the real estate
agent’s direct testimony, after the PNC Bank testimony, and
after the CarMax testimony.3 Additionally, it instructed the jury
3
After Fisher’s direct examination the district court instructed
the jury regarding the evidence about Brown’s attempt to purchase the
house:
Because [Fisher’s testimony is] evidence of other types of
activity and it’s allowed in [evidence] only to help you decide
whether the government has proved beyond a reasonable
doubt that the defendant had specific intent set forth in the
elements of the counts I’ve read to you earlier to commit the
crimes alleged. * * * It doesn’t come in to show that he’s a
bad person. * * * It’s [to be] considered only for [the]
limited purpose [of] whether or not the defendant . . . did so
with specific intent to commit these crimes as relevant [to the]
crimes before you, and he didn’t do it accidentally or by
mistake. He acted knowingly with a motive to do so.
July 31, 2007 Trial Tr. 154–56. Similar instructions were given after
the PNC and CarMax testimony.
9
on the Rule 404(b) evidence before it retired to deliberate.4 The
government introduced into evidence the fictitious financial
documents Brown had used in the real estate, PNC bank, and
CarMax transactions.
C.
Brown testified in his defense. He explained his
understanding that House Joint Resolution 192 created Treasury
accounts that citizens could access upon filing documents like
the “bills of exchange” he had tried to deposit at the credit
union. Brown told the jury he believed that the “bills of
exchange” had value once the Treasury account was accessed
correctly and that depositing “bills of exchange” at the credit
union, which he thought was part of the Treasury, could access
this account. He also believed the silver “surety bonds” were
4
The district court instructed the jury:
You have heard evidence about other alleged acts of
the defendant with which he is not charged in the indictment.
. . . It is up to you to decide whether to accept that evidence.
If you consider the evidence of the defendant’s other acts, you
may use it only to help you decide whether the government
has proved beyond a reasonable doubt that the defendant had
the intent to defraud, or acted knowingly and on purpose and
not by mistake or accident. * * * You may not consider this
evidence for any other purpose. The defendant has not [been]
charged with any offense related to the other acts. You may
not consider this evidence to conclude that the defendant has
a bad character, or that the defendant has a criminal
personality. The law does not allow you to convict a
defendant simply because you believe he may have done bad
things not specifically charged as crimes in this case.
August 2, 2007 Trial Tr. 53–54; see Instruction No. 2.51 of the
Criminal Jury Instructions for the District of Columbia (4th ed. 2007).
10
valid based on the “Coinage Act” but was unable to identify the
exact date that statute was passed. Finally, Brown emphasized
that he never intended to defraud anyone.
The jury found Brown guilty, and the district court
sentenced him to six months’ imprisonment followed by three
years’ supervised release. The district court denied Brown’s
motion for a new trial. United States v. Brown, 535 F. Supp. 2d
80 (D.D.C. 2008).
II.
Brown’s challenge to his conviction focuses on two rules
of evidence. Each addresses Brown’s concern, acknowledged
by this court in United States v. Mitchell, 49 F.3d 769, 777
(D.C. Cir. 1995), that when other acts evidence is introduced to
show intent, there is an inherent risk the jury will misuse the
evidence because such evidence necessarily involves an
inference of bad character and little separates the inference from
the defendant’s prior conduct and the general propensity
inference that must be prevented.
A.
Rule 404(b) provides that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.” FED.
R. EVID. 404(b). Although it is axiomatic that “a defendant
must be tried for what he did, not for who he is,” United States
v. Linares, 367 F.3d 941, 945 (D.C. Cir. 2004), in some cases
“[e]xtrinsic acts evidence may be critical . . ., especially when
th[e] issue involves the actor’s state of mind and the only means
of ascertaining that mental state is by drawing inferences from
conduct,” Huddleston v. United States, 485 U.S. 681, 685
(1988). This court reviews the district court’s determination
that evidence is admissible pursuant to Rule 404(b) for abuse of
11
discretion, United States v. Bowie, 232 F.3d 923, 926–27 (D.C.
Cir. 2000), bearing in mind that “Rule 404(b) is a rule of
inclusion rather than exclusion,” id. at 929.
Evidence of Brown’s intent, as demonstrated by extrinsic
evidence of his knowledge, motive, and the absence of mistake
or accident, was relevant to show his specific intent to defraud,
see generally United States v. Breedlove, 204 F.3d 267, 269
(D.C. Cir. 2000), and his lack of a good faith belief that the
“bills of exchange” he tried to deposit at the credit union were
legitimate and valuable. As the district court stated in denying
Brown’s motion for a new trial:
In order to support a conviction for bank fraud, the
Government had to prove beyond a reasonable doubt
that Mr. Brown “knowingly execut[d], or attempt[ed]
to execute, a scheme or artifice — (1) to defraud a
financial institution; or (2) to obtain any of the
moneys, funds, credits, assets, securities, or other
property owned by, or under the custody or control of,
a financial institution, by means of false or fraudulent
pretenses, representations, or promises.” 18 U.S.C.
§ 1344 (emphasis added). Similarly, to support a
conviction for fictitious obligation, the Government
had to prove Mr. Brown’s “intent to defraud,” as well
as his knowledge that the instruction was fictitious and
his intent to represent the instruction as an “actual”
security issued under the authority of the United
States. 18 U.S.C. § 514.
Brown, 535 F. Supp. 2d at 82 (alterations in original).
The Rule 404(b) evidence regarding Brown’s recent
conduct in using fictitious financial documents to obtain things
of value “bears a close relation to the offense charged,” United
12
States v. Moore, 732 F.2d 983, 989 (D.C. Cir. 1984); see also
United States v. Long, 328 F.3d 655, 661 (D.C. Cir. 2003). The
CarMax and PNC Bank evidence concerned events shortly
before the charged offenses. The CarMax evidence was proper
Rule 404(b) evidence, as appellant’s counsel acknowledged
during oral argument, because it showed that before the charged
offenses, Brown had been warned by a detective from the Secret
Service that it was unlawful to use his “registered” drafts. It
also showed Brown had succeeded in obtaining valuable
property through use of his fictitious “registered” drafts, which
were sufficiently authentic in appearance to fool a lay person.
Similarly, the PNC Bank evidence showed Brown had been
warned by bank counsel that his “bill of exchange,” made
payable to the same trust that he later claimed was purchasing
the Maryland house, would not be accepted by a financial
institution because it was worthless. This evidence was relevant
to Brown’s intent by reason of his prior knowledge, motive, and
absence of mistake or accident in presenting a “bill of
exchange” to the credit union for deposit. Such evidence tended
to rebut Brown’s claim that he acted in good faith in twice
attempting to deposit a “bill of exchange” at the credit union.
See United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000);
United States v. Dahlstrom, 180 F.3d 677, 684–85 (5th Cir.
1999), cert. denied, 529 U.S. 1036 (2000). Although the
similarity of Rule 404(b) evidence to the pending charges can
present special problems associated with a jury’s tendency to
infer guilt where a defendant has previously done the same
thing, see Old Chief v. United States, 519 U.S. 172, 185 (1997),
the district court gave limiting instructions to the jury to guard
against its misuse, see Mitchell, 49 F.3d at 777, including after
the PNC evidence, leaving the jury free to focus on Brown’s
intent in view of evidence he knew his fictitious financial
documents could fool a lay person but not a bank or Treasury
Department official.
13
No less relevant to Brown’s intent, knowledge, motive, and
the absence of mistake or accident was the real estate evidence.
It showed that even after the credit union had refused to deposit
his “bill of exchange” in July 2005 and despite the warning by
a Treasury Department agent in August 2005, Brown continued
to represent to lay persons that his fictitious financial documents
were legitimate and valuable and, when they bounced, to blame
others and to protest his good faith. The temporal link between
his failed attempt to purchase real property with these
documents and his subsequent attempt to deposit a fictitious
“bill of exchange” for $ 5.5 million at the credit union suggests
his motive in making the second attempt — to cover the real
estate purchase.
On the other hand, Brown correctly points out that the
evidence about his failure to pay the $700 home inspection fee
would not make it more likely than not that he knowingly
passed fictitious financial documents at the credit union and was
therefore inadmissible under Rule 404(b). See Linares, 367
F.3d at 946–47; FED. R. EVID. 401. The government’s
suggestion that this bad acts evidence establishes Brown’s
motive “to get money,” Appellee’s Br. 42, is too far removed
from the charged offenses. It had nothing to do with Brown’s
use of fictitious “bills of exchange” and showed only his bad
character in “stiffing” the agent for the fee.
The error in admitting the inspection fee evidence,
however, does not require reversal of Brown’s conviction. See
Linares, 367 F.3d at 952. The fee testimony was neither so
dramatic nor compelling as to rivet the jury’s attention on
Brown’s bad character; it consumed a small part of the trial (just
over three transcript pages); and the government did not
mention the fee during closing arguments to the jury. The
“district court took caution to guard the space between the
permissible and impermissible inferences by instructing the jury
14
to consider the evidence only for its proper purpose.” Mitchell,
49 F.3d at 777; Brown, 535 F. Supp. 2d at 83. The jury is
presumed to have followed this cautionary instruction, see
Shannon v. United States, 512 U.S. 573, 585 (1994) (citation
omitted), and there is nothing to suggest the jury did not do so
in Brown’s case.
B.
Rule 403 contemplates that other crimes and bad acts
evidence properly admitted as relevant pursuant to Rule 404(b)
may nonetheless be inadmissible because its “probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence,” FED. R. EVID. 403.
“[T]he Rule 403 inquiry in each case involving Rule 404(b)
evidence will be case-specific. There can be no ‘mechanical
solution,’ no per se rule.” United States v. Crowder, 141 F.3d
1202, 1210 (D.C. Cir. 1998) (en banc). Because the decision on
exclusion rests in the sound discretion of the district court, this
court’s review is for abuse of discretion. Henderson v. George
Wash. Univ., 449 F.3d 127, 133 (D.C. Cir. 2006).
Brown’s appeal presents the question of the appropriate
considerations for evaluating the district court’s exercise of
discretion under Rule 403 when the defendant contends he was
denied a fair trial because of unfair prejudice and unnecessarily
cumulative Rule 404(b) evidence. Although there is “no
mechanical solution” for when the admission of 404(b)
evidence becomes impermissible under Rule 403, Old Chief,
519 U.S. at 184 (quoting FED. R. EVID. 403, Advisory
Committee Notes (1972 Proposed Rules)), the Supreme Court
has noted that one consideration should be an assessment of the
availability of evidentiary alternatives, id. at 184-85 (citing
FED. R. EVID. 403, Advisory Committee Notes (1972 Proposed
15
Rules)). Additionally, a court should consider whether the
district court issued limiting instructions to guard against
improper inferences. See Mitchell, 49 F.3d at 777; FED. R.
EVID. 403, Advisory Committee Notes (1972 Proposed Rules).
The difficult question raised in Brown’s case is when Rule
404(b) evidence is “needless,” the last of the countervailing
considerations in Rule 403. This court has recognized that
generally “it is difficult, if not impossible, to draw a line at
which such evidence, by virtue of its sheer volume, necessarily
becomes unfairly prejudicial.” Long, 328 F.3d at 664. Cases in
other circuits appear to adopt the approach suggested by
Professors Wright and Graham: The district court is not merely
to consider the sufficiency of the evidentiary alternatives but
rather
whether the evidence on one side is so full that no jury
that rejected it would be likely to change its mind
because of the introduction of the proffered evidence.
If in order to find against the proponent the jury would
have to find that ten eye-witnesses lied, there has to be
some special justification for supposing a favorable
judgment on the credibility of an eleventh witness to
the same facts. * * * This is a rather severe test for the
exclusion of cumulative evidence but it is necessary if
the judge is to be prevented from using Rule 403 as a
device for usurping the function of the jury.
22 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR.,
FEDERAL PRACTICE AND PROCEDURE § 5220, pp. 306 (1st ed.
1978). See, e.g., United States v. Rodriguez-Felix, 450 F.3d
1117, 1129 (10th Cir. 2006) (citing Wright and Graham). In
United States v. Williams, 81 F.3d 1434, 1443 (7th Cir. 1996),
the Seventh Circuit suggested:
16
Evidence is “cumulative” when it adds very little
to the probative force of the other evidence in the case,
so that if it were admitted its contribution to the
determination of truth would be outweighed by its
contribution to the length of the trial, with all the
potential for confusion, as well as prejudice to other
litigants, who must wait longer for their trial, that a
long trial creates.
At Brown’s trial, a substantial part of the government’s
case-in-chief consisted of Rule 404(b) evidence. However, the
outcome of Brown’s trial turned on the issue of his intent.
Brown’s conduct in attempting on two occasions to deposit a
fictitious “bill of exchange” at the credit union was undisputed.
But Brown had claimed each time that he believed the “bill of
exchange” was legitimate and valuable, and that he had no
intent to defraud the credit union. Extrinsic evidence to show
Brown’s intent was key to the government’s ability to meet its
burden of proof that Brown acted with specific intent to
defraud. See Huddleston, 485 U.S. at 685.
On appeal Brown has not suggested that there were any
evidentiary alternatives, see Old Chief, 519 U.S. at 185, or that
the Rule 404(b) evidence was too remote in time, only that
some was not relevant and that the remainder unfairly
dominated his trial. Each Rule 404(b) witness, in fact, testified
about different occasions when Brown used fictitious financial
documents and was warned they were worthless, from which a
reasonable jury could infer his intent at the credit union. In this
context, the district court could reasonably conclude the
properly admitted Rule 404(b) evidence did not implicate
needless “piling on” of cumulative evidence, as occurred in
United States v. Weiland, 420 F.3d 1062, 1078 (9th Cir. 2005),
where the government introduced certificates of four nearly
identical prior convictions when one sufficed to establish his
17
felon status. Nor was any of that evidence inflammatory, as in
United States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997),
where the government introduced a photograph of the defendant
holding a gun, with his finger on the trigger, at the head of
another man when other photographs linked the defendant to the
gun. The events described by the Rule 404(b) witnesses were
normal commercial transactions save for the use of fictitious
financial documents.
Contrary to Brown’s suggestion, the number of Rule 404(b)
witnesses and the number of transcript pages their testimony
consumed in the government’s case-in-chief is not the only
standard by which to determine whether the district court
abused its discretion under Rule 403. Rather, consistent with
the discretion the rule reposes in the district court, two
considerations provide more helpful guidance. First, because of
the substantive and temporal connection of the Rule 404(b)
evidence to Brown’s claim of good faith at the time of the
charged offenses, the district court could reasonably conclude
that a properly instructed jury would focus on Brown’s intent
with regard to the charged offenses and not veer off course to
focus on his bad character. The CarMax and PNC Bank
evidence preceded the charged offenses to show that Brown’s
fictitious financial documents could fool a lay person and that
he had been warned a financial institution would treat his
fictitious “bill of exchange” as worthless. The real estate
evidence occurred shortly after the first charged offense and the
Treasury agent’s warning to show why Brown again attempted
to deposit a “bill of exchange” at the credit union. These
circumstances are in sharp contrast to the circumstances in
United States v. Hays, 872 F.2d 582, 588 (5th Cir. 1989), for
example, in which the testimony of eleven witnesses about the
defendant’s unscrupulous conduct years prior to the charged
conspiracy was “at best” of “fleeting” relevance to the charged
offenses.
18
Second, in view of the government’s need to prove
Brown’s specific intent to defraud by use of extrinsic evidence
and the fact that the Rule 404(b) evidence was not merely
duplicative, see supra Part II.A, the district court could
reasonably conclude, because Brown’s intent was the only
contested issue at trial, that although the Rule 404(b) evidence
consumed a large part of the government’s case-in-chief, there
was no unfair prejudice to Brown or needless presentation of
cumulative evidence by the government contrary to Rule 403.
Brown did not deny his prior uses of fictitious financial
documents, which were fairly recent, only his intent in using
them. These circumstances contrast with the circumstances in
United States v. Jones, 570 F.2d 765, 768–69 (8th Cir. 1978),
where the admission of 478 prescriptions, while relevant to
establish the nature of the defendant’s medical practice and his
knowledge of restrictions on prescribing Schedule II drugs,
lacked substantial probative force as to the two charged
prescription offenses and presented the danger of unfair
prejudice, confusion of the issues, and misleading of the jury.
The district court might reasonably conclude in Brown’s trial,
in the absence of compelling prejudice, which the home
inspection fee was not, that limiting instructions would serve
their intended purpose to guard against the improper use of the
Rule 404(b) evidence, see, e.g., United States v. Douglas, 482
F.3d 591, 601 (D.C. Cir. 2007); Mitchell, 49 F.3d at 777.
Accordingly, we affirm the judgment of conviction.