United States v. Rochelle Ardall Crowder, United States of America v. Horace Lee Davis

ROGERS, Circuit Judge,

concurring:

The court concludes that Federal Rule of Evidence 404(b) should have prohibited the introduction of evidence of Horace Lee Davis’ prior drug sales in his trial for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841 (a)(1). In so doing, the court proceeds on the assumption *1417 that Davis would have been willing “to accept the type of [jury] instruction” formulated in the court’s opinion. Op. at 1412. This assumption not only makes the court’s task less difficult, but also changes the analysis by permitting the court to bypass several difficult questions, not least of which is what ought to happen if a defendant objects to the court’s instruction. In my view the assumption is proper because of the concession at oral argument to the in banc court that, in light of their concessions to intent and knowledge, the jury should be instructed that it “must convict” the defendants if it finds that the government has proved beyond a reasonable doubt that they possessed the drugs. 1 Such an instruction would, as the court requires, “completely remove[ ] from the trial” the conceded elements. 2 Under the circumstances, as the court points out, the only probative value of prior bad acts offered to prove intent and knowledge is to show propensity. 3 Op. at 1410. Hence, I concur in the conclusion that Rule 404(b) bars admission into evidence of Davis’ prior drugs sales. I write separately to emphasize what the court’s opinion does not say and to acknowledge several issues that the court does not reach, but that will arise if a defendant declines to acquiesce in the court’s instruction.

As the case has progressed in this court— from briefing and oral argument presented to a three-judge panel to new briefing and oral arguments before the in banc court — the question of how the jury should be instructed regarding a defendant’s concession has assumed greater importance. At least three types of instructions have been discussed. First, there is the standard type of instruction given when there is an actual stipulation, as opposed to a unilateral concession. In this instruction, the jury is told that it “may consider” the stipulated fact “proven.” 4 Second, there is the type of instruction that was discussed in questioning by the court during the in banc argument and to which the defense agreed during the argument. This instruction, also raised by the court during the *1418 panel argument in Crowder’s case, 5 tells the jurors that if they find that the government has proved the unconceded element(s) beyond a reasonable doubt, the jury “must convict” the defendant. Finally, there is the type of instruction formulated in the court’s opinion, in which the jury is told that the government “need not prove” the conceded elements. 6

Appellants’ acceptance of a “must convict” instruction eliminates any need for the court to reach several thorny questions that would otherwise have arisen. First, we need not determine whether a “need not prove” instruction or a “must convict” instruction could be forced on an unwilling defendant as the price of excluding prejudicial other bad acts evidence under Rule 404(b). The government assumed in its brief to the in banc court that the standard “may consider” instruction, given when the parties reach a stipulation, would be given in the event of a unilateral concession, 7 Brief for Appellee at 23 n.13, and appellants do not address the precise nature of the instruction in their joint brief to the in banc court. Nor did the district courts reach the issue in appellants’ trials. Our sister circuits have recently grappled with the issue of how to instruct the jury as to a stipulated or conceded element. 8 Three panels, two of them split 2-1, have come to differing outcomes, and one court has decided to reconsider the question in

banc. United States v. Mason, 85 F.3d 471 (10th Cir.1996); United States v. Muse, 83 F.3d 672 (4th Cir.1996); United States v. Jones, 65 F.3d 520 , opinion vacated and rehearing in banc granted, 73 F.3d 616 (6th Cir.1995). Because of appellants’ concession, we need not sort out many issues that arise in formulating a proper jury instruction. For example, the court has no occasion to inquire whether the general rule against partial verdicts in criminal trials 9 would be violated by either the “need not prove” or “must convict” instructions. Nor need we consider whether such instructions, over the defendant’s objection, would improperly interfere with the jury’s power of nullification. Compare United States v. Pierre, 974 F.2d 1355, 1357 (D.C.Cir.1992), cert. denied, 507 U.S. 1012 , 113 S.Ct. 1665 , 123 L.Ed.2d 283 (1993), with United States v. Hayward, 420 F.2d 142, 143-46 (D.C.Cir.1969). See also United States v. Washington, 705 F.2d 489, 494 (D.C.Cir.1983); United States v. Dougherty, 473 F.2d 1113, 1130-37 ; id. at 1139-44 (Bazelon, C.J., concurring in part and dissenting in part). Instead, because appellants have represented that they will not object to a “must convict” instruction on remand, our task is simplified. 10 See United States v. Mezzanatto, — U.S. -, ---, 115 S.Ct. 797, 801-02 , 130 L.Ed.2d 697 (1995).

Nonetheless, the fortuitous circumstances arising from the eleventh-hour concession to *1419 a “must convict” instruction should not mislead the district court and the Bar. Without such an instruction, the parties agree that the conceded elements remain in the case. Consequently, with the standard “may consider” instruction, the conceded elements would not, as the court requires, be “completely removed from the trial,” Op. at 1411, and evidence of the prior bad acts could not be excluded on the basis of Rule 404(b) alone. Under our well-established analysis of other bad acts evidence, the first question is whether the evidence is relevant for any purpose other than to show propensity; if it is, the court must proceed to the second step, which is to balance probative value against prejudicial effect pursuant to Rule 403. United States v. Washington, 969 F.2d 1073, 1080-81 (D.C.Cir.1992), cert. denied, 507 U.S. 922 , 113 S.Ct. 1287 , 122 L.Ed.2d 679 (1993). Without an instruction that truly conveys to the jury that it must not consider whether the government has met its burden of proof on the conceded elements, the other bad acts evidence offered to prove those elements would be relevant. It might be almost devoid of probative value in light of the concessions, but it would not be irrelevant. Thus, had appellants not accepted a “must convict” instruction, their appeals could not be resolved simply by reference to Rule 404(b); rather, the question would be, under Rule 403, whether the acknowledged prejudice flowing from other bad acts evidence substantially outweighed whatever probative value remained after the concession. 11

This is the position taken by all parties in the briefs to the in banc court. Notwithstanding defense concessions to intent and knowledge, the bad acts evidence may yet be relevant under Rule 401, even if only marginally so, where the jury is instructed that it “may” or “can” 12 consider those elements proven as a result of the concession. Under these circumstances, the government argues, the defendant’s concession is “a factor to be considered by the district court when it balances the probative value and prejudicial effect of the bad-acts evidence” under Rule 403. Brief for Appellee at 7. Appellants’ joint brief also argues the case in terms of Rule 403, contending that the concession dissipates the probative value of the other bad acts evidence, and that, “[bjecause of the unique nature of extrinsic act evidence, a proffered stipulation always will tip the Rule 403 balance in favor of exclusion of the evidence,” at least in the “absen[ce][of] particularized findings of unusual or extraordinary circumstances in which the probativeness of the evidence outweighs its prejudice to the accused.” Brief for Appellants at 25; Reply Brief for Appellants at 3. Thus, the parties see the issue as turning on Rule 403, differing only on how strongly the concession affects the probative-prejudicial balancing.

The point is simply that appellants’ eleventh-hour acceptance of a “must convict” instruction should not confuse an understanding of the court’s analysis. Without such an instruction, supra n. 2, intent and knowledge would remain in the case for the jury to decide, as the parties recognize in their briefs. If the standard “may consider” instruction on stipulations were given instead, the other bad acts evidence in these appeals would be addressed with reference to Rule 403; the analysis would not stop with the first sentence of Rule 404(b). Whether the standard instruction or other formulations could or should be given remains, along with several other difficult issues, for another day.

. In reply argument after the government had completed its argument to the in banc court, counsel for appellant Davis conceded that the jury should be instructed that it must convict Davis if the government proved the only remaining element — possession—beyond a reasonable doubt. Counsel for appellant Crowder, who filed a joint brief with Davis, heard the court's questions about the "must convict” concession, and argued thereafter, did not dissociate himself from this concession. See Op. at 1412.

. The court emphasizes that its Rule 404(b) analysis depends upon an instruction that eliminates the conceded elements from the jury’s consideration. In addition to requiring that "the conceded elements must be completely removed from the trial,” Op. at 1411, the court, in describing the role of the jurors, states they should be instructed that "to convict they need find only possession beyond a reasonable doubt.” Id. at 1416. In addition to referring at several points to "no need to prove either element” language, id. at 1410, 1411, the court expressly relies on Davis' assumed willingness "to accept an instruction limiting the jury’s consideration to the possession element of the crime ... completely relieving] the Government of having to prove knowledge and intent.” Id. at 1412; see also id. at 1415. It repeats this point in discussing the weighing that would occur under Rule 403 were the other bad acts evidence proffered to show motive, stating that "as long as a defendant remains willing to concede knowledge and intent to distribute and to accept an instruction limiting the jury's consideration to possession,” the court should exclude those elements from the balancing process. Id. at 1412. To meet these standards, the court suggests an instruction that "the Government need not prove” the conceded elements, id. at 1411; the language of its opinion indicates, however, that its suggested instruction is tantamount to a "must convict” instruction.

. The extrinsic bad acts evidence in the instant cases is unrelated to the factual circumstances of the charged offenses and does not provide contextual or background information to the jury, so its exclusion would not impair the government’s ability to make a full presentation of its evidence to prove the charges. The exclusion of extrinsic bad acts evidence is thus different from the potential exclusion of evidence intrinsic to the offense that concerns the dissent. Diss. op. at 1418 & n.2. Even after a defense concession, intrinsic evidence may still be admissible to permit the jury to understand the nature and circumstances of the charged offense, and it may also be relevant to unconceded elements or an affirmative defense. See United States v. Cockerham, 476 F.2d 542, 545 (D.C.Cir.1973) (per curiam).

. The standard instruction provides: "The government and the defendants] may stipulate— that is, agree — to certain facts. Any stipulation of fact is undisputed evidence, and you may consider it proven.” Criminal Jury Instructions, District of Columbia 1.04 (4th ed.1994). See also id. 2.04 (instruction at end of case, substantively identical). See infra n.7.

. Oral Arg. Tr. at 16, Appeal No. 92-3133, Jan. 30, 1995.

. See Daniel J. Buzzetta, Note, Balancing the Scales: Limiting the Prejudicial Effect of Evidence Rule 404(b) Through Stipulation, 23 Fordham Urb L.J. 389, 411 (1994) (suggesting instruction that "the prosecution need not prove” the conceded element).

. The government’s brief also implicitly assumes that the standard stipulation instruction applies even if the stipulated fact constitutes an element of the offense. Several courts have in fact used a similar instruction under those circumstances. E.g., United States v. Branch, 46 F.3d 440, 442 (5th Cir.1995) (per curiam); United States v. Ragosta, 970 F.2d 1085 , 1088 n. 1 (2d Cir.), cert. denied, 506 U.S. 1002 , 113 S.Ct. 608 , 121 L.Ed.2d 543 (1992).

. In approving the approach of the First, Second, Eighth, and Eleventh Circuits, Op. at 1410, the court finds no opinion that involves or requires a "must convict” instruction. See, e.g., United States v. Figueroa, 618 F.2d 934, 942 (2d Cir.1980) (suggesting jury be instructed that it “can" revolve undisputed issues against the defendant).

. See Edward J. Imwinkelried, The Right to "Plead Out" Issues and Block the Admission of Prejudicial Evidence: The Differential Treatment of Civil Litigants and the Criminal Accused as a Denial of Equal Protection, 40 Emory L.J. 341, 353-56 (1991) (describing historical rule and weight of authority in the federal and state courts against "special pleas” and suggesting it is an anachronism); 22 Charles A. Wright & Kenneth A. Graham, Jr., Federal Practice and Procedure § 5194 at 198-99 (1978); id. § 5164 at 44.

. Of course, the district court cannot avoid these problems simply by declining to inform the jury of the conceded elements at all. United States v. Fennell, 53 F.3d 1296, 1302 (D.C.Cir.1995).

. See 2 Jack B. Weinstein, et al„ Weinstein’s Evidence V 404[08] at 404-49 (1992) ("Rule 404(b) is a specialized rule of relevancy.... Evidence which [is relevant and not barred by Rule 404] must, in addition, satisfy the balancing test imposed by Rule 403.... ”).

. See supra n. 8.