rejecting defendants' method of packaging drugs as signature crime and stating that "the Government presented no evidence, expert or otherwise, that the mode of packaging was distinctive to [defendant] or even unusual in the drug trade"
How later courts described this case
- rejecting defendants' method of packaging drugs as signature crime and stating that "the Government presented no evidence, expert or otherwise, that the mode of packaging was distinctive to [defendant] or even unusual in the drug trade"
- "evidence that a defendant charged with a drug distribution crime has previously committed drug distribution crimes should be admissible to show likelihood (propensity, if you will) that the defendant did it again"
Written by the judges who cited it.
The opinion
SILBERMAN, Circuit Judge,
concurring,
with whom BUCKLEY and WILLIAMS, Circuit Judges, join:
I join Judge Tatel’s opinion because I think the majority’s construction of Rule 404(b) is the correct one. The second sentence of the Rule sets forth so many permitted uses to be distinguished from the first sentence’s proscribed use as to suggest a certain ambivalence on the part of the draftsmen as to the Rule’s wisdom. But, if we are to take their words at face value, we simply do not get to the second sentence of the Rule if some purpose such as proof of knowledge, intent, etc. is not at issue in the case. Normally, I would think it inappropriate to opine as to the policy underlying a statute I am obliged to apply. But in this case we deal with the Federal Rules of Evidence which, although adopted by Congress, originate with the federal judiciary. Therefore, I feel free to express my view, which is that the rationale of the Rule — at least in its full sweep— is misconceived, indeed silly.
To be sure, evidence of prior bad acts that are unrelated to the crime charged should normally be excluded. It simply would not do to allow the prosecution to show that the defendant is of general bad character. Not only is that approach unfairly prejudicial to the defendant while providing little probative value, but it also would turn our criminal trials into even more of a circus than they have become. On the other hand, evidence that a defendant charged with a drug distribution crime has previously committed drug distribution crimes should be admissible to show likelihood (propensity, if you will) that the defendant did it again. Probably no segment of American society, other than many of its lawyers (and judges), would think that such reasoning is somehow unreliable. And the vast majority of other countries readily admit such evidence. England, our common law ancestor, is one of the very few countries that in the past has excluded such evidence, but even it has shifted the focus of its admissibility inquiry to the probative value of the evidence rather than the purpose for which it is offered. See Office of Legal Policy, Report to the Attorney General on the Admission of Criminal Histories at Trial, 22 J. Law Reform 714, 750-52 (1989); Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 Fordham Urb. L.J. 285 , 285-86 (1995). As I understand Judge Randolph’s position, it would essentially accomplish this result, but I feel obliged to await the intervention of one of the policymaking organs east of us.