Petition for Writ of Certiorari — Eriston Wilson, Petitioner v. United States

Supreme Court briefOct 7, 2024

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No. 24-

In The Supreme Court of the United States

___________________________

ERISTON WILSON

Petitioner,

UNITED STATES OF AMERICA

Respondent.

____________________________________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

Carol A. Kolinchak

Counsel of Record

Bayou Road Justice Center

2563 Bayou Road, Second Floor

New Orleans, LA 70119

(504) 259-8395

cakolinchak@gmail.com

Counsel for Eriston Wilson

QUESTION PRESENTED

This case arises from a significant conflict in the Circuit Courts of Appeals

regarding the admissibility of extrinsic evidence under Fed. R. Evid. 404(b) when

a plea of not guilty to a conspiracy charge is entered. The Fifth Circuit has held

that a plea of not guilty to a conspiracy charge automatically renders extrinsic

evidence of acts similar to the charged offense relevant to “intent” and thus

admissible under Rule 404(b). In addition to the Fifth Circuit, the First, Eighth,

and Eleventh Circuits have also adopted this rule. Conversely, the Second, Third,

Fourth, and Seventh Circuits have expressly rejected it. The question presented

is:

Does the Fifth Circuit’s rule that a plea of not guilty to a conspiracy charge

automatically renders similar, extrinsic acts admissible as relevant to the issue of

intent conflict with the plain text of Rule 404(b), as well as this Court’s precedent?

PARTIES TO THE PROCEEDING

Eriston Wilson is the Petitioner herein and was the Appellant below.

The United States of America is the Respondent here and was Appellee below.

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDING .............................................................................. ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES ......................................................................................... iv

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1

STATEMENT OF THE CASE....................................................................................... 2

REASONS FOR GRANTING THE WRIT .................................................................. 10

I. Fifth Circuit precedent violates Huddleston and Federal Rule of

Evidence 404(b). ................................................................................................ 12

II.

Significant circuit conflict has developed around the Fifth Circuit’s per

se rule and the proper application of Rule 404(b)............................................ 16

CONCLUSION............................................................................................................. 20

iii

TABLE OF AUTHORITIES

Cases

Huddleston v. U.S., 485 U.S. 681 (1988)................................................... 10, 11, 12, 15

Eriston Wilson v. U.S., Docket No. 22-7204 ............................................................... 10

United States v. Bailey, 990 F.2d 119, 123 (4th Cir. 1993) ........................................ 18

United States v. Barnes, 822 F.3d 914, 920 (6th Cir. 2016) ........................................ 11

United States v. Beechum, 582 F.2d 898 (5th Cir. 1978).............................. 4, 7, 12, 13

United States v. Bell, 901 F.3d 455, 465 (4th Cir. 2018) ............................................. 11

United States v. Bermea, 30 F.3d 1539, 1562 (5th Cir. 1994) ................................... 14

United States v. Caldwell, 760 F.3d 267, 276 (3d Cir. 2014) ..................................... 19

United States v. Carpenter, 923 F.3d 1172, 1182 (9th Cir. 2019) ............................... 11

United States v. Cockrell, 587 F.3d 674, 679 (5th Cir. 2009) ................................. 7, 14

United States v. Contreras, 816 F.3d 502, 511 (8th Cir. 2016) ................................... 11

United States v. Cooper, 990 F.3d 576, 584 (8th Cir. 2021)........................................ 16

United States v. Foster, 891 F.3d 93, 108 (3d Cir. 2018) ............................................ 18

United States v. Garner, 961 F.3d 264, 273 (3d Cir. 2020) ........................................ 11

United States v. Gutierrez-Mendez, 752 F.3d 418, 423 (5th Cir. 2014) ...................... 11

United States v. Hernandez, 975 F.2d 1035, 1039-40 (4th Cir. 1992) ....................... 18

United States v. Horner, 853 F.3d 1201, 1213 (11th Cir. 2017) .................................. 11

United States v. Martinez-Mercado, 919 F.3d 91, 101 (1st Cir. 2019) ........................ 11

United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005)............................. 17

United States v. Miller, 673 F.3d 688, 696 (7th Cir. 2012) ........................................ 17

United States v. Moore, 732 F.2d 983, 987 (D.C. Cir. 1984)....................................... 11

United States v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988) ............................................ 19

United States v. Parziale, 947 F.2d 123, 129 (5th Cir. 1991) .................................... 14

United States v. Roberts, 619 F.2d 379, 382 (5th Cir.1980) ....................... 13, 14, 15, 16

United States v. Rutkoske, 506 F.3d 170, 177 (2nd Cir. 2007) ................................... 11

United States v. Smith, 804 F.3d 724, 735 (5th Cir. 2015) .......................................... 4

United States v. Sterling, 860 F.3d 233, 247 (4th Cir. 2017) ..................................... 18

United States v. Tennison, 13 F.4th 1049, 1055 (10th Cir. 2021) ................................ 11

United States v. Torres-Chavez, 744 F.3d 988, 991 (7th Cir. 2014) ............................ 11

United States v. Weldon et al., No. 2:19-cr-034, ECF No. 69, at 5 (E.D. La. Oct. 9,

2019) ........................................................................................................................... 5

United States v. Zeuli, 725 F.2d 813, 816 (1st Cir. 1884) ........................................... 16

United States. v. Heard, 709 F.3d 413, 430 (5th Cir. 2013) ....................................... 14

Statutes

28 U.S.C. § 1254(1) ........................................................................................................ 1

Fed. R. Evid. 105 …………………………………………………………………………….11

Fed. R. Evid. 401……………………………………………………………………………...12

Fed. R. Evid. 402…………………………………………………………………………11, 17

Fed. R. Evid. 403 ……………………………………………………………………….passim

Fed. R. Evid. 404(b) ............................................................................................. passim

Constitutional Provisions

U.S. Const. Am. V .................................................................................................... 1, 10

U.S. Const. Am. VI......................................................................................................... 1

APPENDIX A:

Opinion, United States v. Eriston Wilson, No. 21-30474, (5th Cir. September

21, 2022) ............................................................................................................ 1a

APPENDIX B:

Opinion, United States v. Eriston Wilson, No. 23-30596, (5th Cir. July 12,

2024) ............................................................................................................... 18a

PETITION FOR A WRIT OF CERTIORARI

Petitioner Eriston Wilson respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The Fifth Circuit issued its judgment affirming Mr. Wilson’s convictions but

remanding for resentencing on September 21, 2022. This decision is attached as

Appendix A. The Fifth Circuit issued its judgment affirming Mr. Wilson’s sentence on July 12,

2024. This decision is attached as Appendix B.

JURISDICTION

The Fifth Circuit issued its decision on July 12, 2024. Petitioner did not apply

for rehearing.

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

part:

The Fifth Amendment to the United States Constitution provides, in relevant

No person shall . . . be deprived of life, liberty, or property, without due

process of law[.]

part:

The Sixth Amendment to the United States Constitution provides, in relevant

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury[.]

Federal Rule of Evidence 404(b) provides, in relevant part:

1. (b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not

admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose,

such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.

(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:

(A) provide reasonable notice of any such evidence that the prosecutor

intends to offer at trial, so that the defendant has a fair opportunity

to meet it;

(B) articulate in the notice the permitted purpose for which the

prosecutor intends to offer the evidence and the reasoning that

supports the purpose; and

if the court, for good cause, excuses lack of pretrial notice.

STATEMENT OF THE CASE

John Weldon and Eriston Wilson were accused of conspiring to commit Hobbs

Act robbery. A series of seven armed robberies of gas stations and convenience stores

were alleged as the “overt acts” of that conspiracy. Mr. Wilson was also charged with

brandishing a firearm in furtherance of one of those robberies. John Weldon was

separately charged with committing a bank robbery and another gas station robbery

during the same time frame.

The sole issue at trial was whether Mr. Wilson was one of the two individuals

depicted in surveillance footage of these robberies. The robberies Mr. Wilson was

accused of committing with Mr. Weldon were all observed by eyewitnesses and

captured by surveillance cameras. However, none of the witnesses could identify the

offenders or describe them in any detail, and the two suspects depicted in the

surveillance footage were fully masked.

The evidence against John Weldon was overwhelming. It included testimony

from his accomplice in the separate bank robbery (in which Mr. Wilson was not alleged

to have been involved), surveillance footage of his distinctive tattoos, a gun found in

his girlfriend’s car that matched the one used in the robberies, a large amount of cash

found in his home that matched the amount stolen in the bank robbery, cell site data

placing his phone in the vicinity of several of the robberies, and various clothing items

and shoes found in his home and car that were similar to items worn by the two

suspects in the gas station and convenience store robberies.

In contrast, the government’s evidence against Eriston Wilson was slim at

best. During the three-day, 24-witness trial, only three witnesses provided any

information related to the government’s allegation that Mr. Wilson was Weldon’s

accomplice in the two-person gas station and convenience store robberies: two law

enforcement officers and Eriston’s brother (Lee Wilson). At trial, law enforcement

officers identified photographs from co-defendant Weldon’s cellphone depicting Mr. Wilson

and Weldon together. They further testified that in these photographs Mr. Wilson was

wearing similar clothing and shoes to one of the perpetrators of the robberies, was of a similar

height and build to one of the perpetrators, and that his eyes and the bridge of his nose

matched one of the perpetrators.

As one officer candidly admitted, a search executed at Mr. Wilson’s home

revealed nothing of evidentiary value, and law enforcement’s evidence

implicating him in the robberies consisted exclusively of about ten

photographs and videos of Mr. Wilson that officers found on Mr. Weldon’s

phone. Some of the images showed Mr. Wilson wearing shoes that the officer

believed matched a suspect in a few of the robberies, while other photos

showed Mr. Wilson with a gun in his waistband or holding cash in his hands.

Lee Wilson testified that all three men—John Weldon, Eriston, and Lee—

routinely swapped clothes.

ROA. 275-276.

By far, the most incriminating evidence against Mr. Wilson was testimony by

law enforcement about his commission of an entirely unrelated robbery three months

after Mr. Weldon went to jail for the charged offenses. That evidence was admitted

under Fed. R. Evid. 404(b), over the objection of defense counsel. ROA.1329. Officers

testified that multiple individuals robbed a gas station, and they were able to track

the getaway vehicle to an apartment complex, where officers observed Mr. Wilson and

others exit the car and enter an apartment. Upon searching that apartment, officers

found guns, money, and Mr. Wilson hiding in a closet. ROA.1333.

In determining whether evidence is admissible under Rule 404(b), courts in

the Fifth Circuit apply the two-prong test articulated in United States v. Beechum,

582 F.2d 898 (5th Cir. 1978) (en banc). Under that test, admissibility of an extrinsic

offense “hinges on whether (1) it is relevant to an issue other than the defendant’s

character, and (2) it ‘possess[es] probative value that is not substantially

outweighed by its undue prejudice’ under Federal Rule of Evidence 403.” United

States v. Smith, 804 F.3d 724, 735 (5th Cir. 2015) (quoting Beechum, 582 F.2d at

911). Rule 404(b)(2) provides a list of non-propensity purposes for which extrinsic

evidence may be admissible, including to prove “motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

Prior to Mr. Wilson’s trial, the prosecution filed a “notice of intent” to

introduce evidence of this extrinsic robbery offense “to show [his] motive, intent,

preparation, plan, knowledge, and absence of mistake or lack of accident.” United

States v. Weldon et al., No. 2:19-cr-034, ECF No. 69, at 5 (E.D. La. Oct. 9, 2019). In

other words, the government cited all of the propensity purposes from Rule

404(b)(2) as the basis for introducing the extrinsic offense, without explaining its

relevance. In a subsequent filing, the government asserted that the extrinsic

offense was evidence of Mr. Wilson’s “knowledge, plans, and conspiring to commit

armed robberies” and “also go[es] to show [his] identity” as one of the robbers in the

pending charges. Weldon, ECF No. 112, at 3 (E.D. La. Dec. 6, 2019). In that filing,

the prosecution relied on Fifth Circuit precedent holding that the first prong of the

Beechum test is automatically satisfied whenever a defendant enters a plea of

not guilty in a conspiracy case. See id. (citing United States v. Broussard, 80 F.3d 1025,

1040 (5th Cir. 1996).

At trial, the district court admitted the extrinsic robbery for two purposes: (1) to

prove Mr. Wilsons identity as one of the individuals who committed the robberies

alleged as overt acts of the charged conspiracy; and (2) to prove his intent to join the

robbery conspiracy. Weldon, ECF No. 274, at 72-76 (E.D. La. Oct. 20, 2021). Of course,

the government had no need to prove intent; as the prosecution made clear to the jury,

the intent of the two suspects who committed the underlying conspiracy charge was

obvious. The prosecution told the jury:

A conspiracy is pretty simple. … It’s exactly what you would think it would

be. It’s two people working together to commit a crime. That’s what they are

doing. They agree to work together to try to accomplish the goal of committing

a crime.

That’s what these guys did in this particular case. Clearly, they both

worked together. You saw it from every video, that they were together.

They had a plan and every one of those were similar. They went in

and they decided to rob those convenience stores.

Id. at 207 (E.D. La. Oct. 20, 2021) (emphasis added). In other words, the element

of intent was a foregone conclusion upon any determination that Mr. Wilson did, in

fact, commit one of the charged robberies. Thus, the government used the Rule

404(b) evidence at trial for the sole purpose of proving Mr. Wilson’s the intent to

commit the charged robberies, an element that was not at issue, and to make

improper, character- based arguments. Most glaringly, the prosecution argued in

closing that Mr. Wilson “went and committed another [robbery]” after Mr. Weldon

went to jail because: “That’s what he does. That’s how he supports himself.” Id. at

227-28.

Mr. Wilson challenged the admission of this highly prejudicial Rule 404(b)

evidence on appeal. The Fifth Circuit correctly determined that the district court

erred in admitting the extrinsic robbery offense for the purpose of proving

Mr. Wilson’s identity as one of the perpetrators of the charged robberies. App. at 9a.

As the court noted, the only similarities between the charged and extrinsic

robberies were “common elements in armed robberies generally”—i.e., armed men

wearing masks and gloves stealing money from a gas station and using a getaway

vehicle. App. at 9a. However, the court affirmed the district court’s determination

that the evidence was relevant to the issue of intent, relying solely on the Fifth

Circuit precedent holding that Beechum’s first prong is satisfied whenever “a

defendant enters a plea of not guilty in a conspiracy case[.]” App. at 10a (citing

United States v. Cockrell, 587 F.3d 674, 679 (5th Cir. 2009). The court found no

abuse of discretion in the evidence’s admission, despite the fact that intent was

never placed at issue at trial. The only question at trial was whether Mr. Wilson

was one of the suspects in surveillance footage of the robberies, and the footage

clearly demonstrated that the two people committing the robberies—whoever they

may be—were acting in concert with one another.

The Fifth Circuit affirmed Mr. Wilson’s conviction but remanded his case for

resentencing based on a miscalculation of Mr. Wilson’s criminal history under the

Federal Sentencing Guidelines. After this remand, the Federal Public Defender’s

Office identified a potential conflict of interest and moved to withdraw from Mr.

Wilson’s case. ROA.289. The motion was granted and undersigned counsel was

appointed to represent him on December 27, 2022. ROA.293.

Prior to Mr. Wilson’s resentencing, undersigned counsel discovered that

during the February 13, 2019 detention hearing for Eugene Lewis, who testified

against Mr. Wilson at trial, Mr. Lewis was accused of being a “person of interest”

in the two-person gas station and convenience store robberies committed by Mr.

Weldon and another person. Weldon, ECF No. 51 at 47. Agent Wesley Lambright

testified regarding other “non-bank robberies” that occurred in the area,

specifically identifying “a Shell gas station, a Brothers’ Food Mart, and other local

convenience stores along that corridor.” In addition, using photographs, Agent

Lambright testified regarding the “significant” similarities between these twoperson robberies and the bank robbery; including blue gloves worn, similarity in

build and height to Mr. Lewis and a pair of brown boots worn by one of the

perpetrators that were similar to boots recovered at Mr. Lewis’s residence. Weldon,

ECF No. 51 at 25-26, 43-44. The Court used these crimes, in part, as a basis for

detention of Mr. Lewis. Specifically, the Court concluded “[o]n top of that, however,

there is the evidence in the BOLO of other similar crimes that have not been

resolved yet with significant similarities to the MO in this case, the boots, the

firearms, the hoodies, the blue gloves, the body shape and size.” Weldon, ECF No.

51 at 57. In other words, the facts regarding these other similar crimes that were

relied on in support of detention of Mr. Lewis were equal to, if not stronger than,

the facts relied on to convict Mr. Wilson.

In spite of this, at Mr. Wilson’s trial, investigating agents were asked

specifically whether they had developed any suspects other than Mr. Weldon and

Mr. Wilson for the two-person gas station and convenience store robberies alleged

to have been committed between December 23, 2018 and February 2, 2019. In stark

contrast to the testimony at Lewis’s detention hearing, Agents responded with a

definitive “no.’ ROA.1162, 1163, Weldon, ECF No. 272 at 600, 617, 899.

In addition, at Mr. Wilson’s trial, in response to direct questions by the

Government, Eugene Lewis testified that he “never walked into a Shell Station to

commit a robbery,” … “never robbed a Tiger Mart,” … a “Dollar General,” … a

“Circle H Food Market,” … or “any other store or bank or gas station. ROA.493.

On cross examination by counsel for Mr. Wilson, Mr. Lewis was not asked a single

question about the two-person armed robberies of the gas stations and convenience

stores; including whether or not he was ever considered a person of interest or a

suspect and whether or not these armed robberies were a part of his plea bargain

discussions with the Government. ROA.511.

Believing this newly discovered evidence regarding Eugene Lewis

constituted a material Brady claim relevant to both Mr. Wilson’s conviction and

sentence, undersigned counsel filed a Motion for New Trial on March 15, 2023.

ROA.301. The district court ordered the government to file a written response

(ROA.314) and the government filed its response on March 31, 2023. ROA.316. In

a written ruling, the district court denied Mr. Wilson’s motion for new trial on May

20, 2023. ROA.326.

While Mr. Wilson’s resentencing was pending, he filed a Petition for Writ of

Certiorari in this Court challenging the Fifth Circuit’s per se rule that extrinsic

evidence of acts similar to the charged offense is automatically relevant to intent

and thus admissible under Federal Rule of Evidence 404(b) any time a defendant

pleads not guilty to a conspiracy charge. In its response, the government argued

that Mr. Wilson’s case was in an interlocutory posture because his sentence had

been vacated and his case had been remanded for resentencing. The government

further argued that this basis alone was sufficient to deny the petition for

certiorari. Finally, the government addressed the substance of the claims. See

Eriston Wilson v. USA, Docket No. 22-7204. The Petition for Certiorari was denied

on October 2, 2023.

Mr. Wilson was resentenced on August 23, 2023 and the Fifth Circuit affirmed

the District Court’s Judgment on July 12, 2024

REASONS FOR GRANTING THE WRIT

In criminal trials, prosecutors long have been prohibited from introducing

evidence of a defendant’s unrelated crimes “to prove a person’s character in order

to show that on a particular occasion the person acted in accordance with the

character.” Fed. R. Evid. 404(b)(1). This prohibition is consistent with the Fifth and

Sixth Amendments of the United States Constitution guaranteeing criminal

defendants the right to due process and the right to be tried on the charged offenses

by an impartial jury. Thus, in prosecuting a defendant for an alleged robbery, the

government cannot introduce evidence that the defendant committed a different

robbery on some other occasion to prove that he is someone who commits robberies

and thus more likely to have committed the charged offense. Yet that is exactly

what the government did here.

In Huddleston v. United States, this Court recognized legitimate concerns

that prosecutors might attempt to introduce unduly prejudicial evidence under Rule

404(b). 485 U.S. 681, 691 (1988). However, the Court explained “that the protection

against such unfair prejudice emanates” from four specific sources. Id. Those

sources include: (1) “the requirement of Rule 404(b) that the evidence be offered for

a proper purpose”; (2) “the relevancy requirement of Rule 402”; (3) “the assessment

the trial court must make under Rule 403 to determine whether the probative value

of the similar acts evidence is substantially outweighed by its potential for unfair

prejudice”; and (4) the requirement under Rule 105 that the trial court, upon

request, issue a limiting instruction to the jury “that the similar acts evidence is

to be considered only for the proper purpose for which it was admitted.” Id. at 69192. Huddleston also held that extrinsic acts can be admitted only “if there is

sufficient evidence to support a finding by the jury that the defendant committed

the similar act.” Id. at 685.

Since Huddleston, the Courts of Appeals all have adopted and applied their

own specific tests for Rule 404(b) admissibility. See, e.g. United States v. MartinezMercado, 919 F.3d 91, 101 (1st Cir. 2019); United States v. Rutkoske, 506 F.3d 170,

177 (2nd Cir. 2007); United States v. Garner, 961 F.3d 264, 273 (3d Cir. 2020); United

States v. Bell, 901 F.3d 455, 465 (4th Cir. 2018); United States v. Gutierrez-Mendez,

752 F.3d 418, 423 (5th Cir. 2014); United States v. Barnes, 822 F.3d 914, 920 (6th Cir.

2016); United States v. Torres-Chavez, 744 F.3d 988, 991 (7th Cir. 2014); United States

v. Contreras, 816 F.3d 502, 511 (8th Cir. 2016); United States v. Carpenter, 923 F.3d

1172, 1182 (9th Cir. 2019); United States v. Tennison, 13 F.4th 1049, 1055 (10th Cir.

2021); United States v. Horner, 853 F.3d 1201, 1213 (11th Cir. 2017); United States v.

Moore, 732 F.2d 983, 987 (D.C. Cir. 1984). The Fifth Circuit has continued to enforce

decades-old precedent holding that a plea of not guilty to a conspiracy charge

automatically makes similar, extrinsic offenses relevant to the issue of intent—

regardless of whether intent is actually a disputed, material element for which the

government needs to present additional evidence at trial. Additionally, circuit splits

have emerged related to the “proper purpose” and relevancy protections articulated

by this Court in Huddleston. For the reasons discussed in detail below, this Court

should grant certiorari to address whether the Fifth Circuit’s per se rule conflicts with

this Court’s prior decisions and Rule 404(b)’s limitation, resolve circuit conflict, and

clarify the requirements of Rule 404(b).

Fifth Circuit precedent violates Huddleston and Federal Rule of

Evidence 404(b).

In the Fifth Circuit, “admissibility under Rule 404(b) hinges on whether (1)

[the extrinsic act] is relevant to an issue other than the defendant’s character, and

(2) it ‘possess[es] probative value that is not substantially outweighed by its undue

prejudice’ under Federal Rule of Evidence 403.” Smith, 804 F.3d at 735 (quoting

Beechum, 582 F.2d at 911). That two-part test was developed more than a decade

before this Court’s decision in Huddleston and the Fifth Circuit continues to apply it

today. According to the Fifth Circuit, the first prong “is identical” to the relevance

inquiry under Rule 401, and thus extrinsic evidence is deemed relevant “when 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.” Beechum, 582 F.2d at 911 (quotation marks omitted).

The relevance of an extrinsic offense “is a function of its similarity to the

offense charged,” which “is determined by the inquiry or issue to which the extrinsic

offense is addressed.” Id. When the extrinsic offense is offered to prove a defendant’s

“intent” to commit the charged offense, “the relevancy of the extrinsic offense derives

from the defendant’s indulging himself in the same state of mind in the

perpetration of both the extrinsic and charged offenses.” Id. “The reasoning is that

because the defendant had unlawful intent in the extrinsic offense, it is less likely

that he had lawful intent in the present offense.” Id.

In 1980—again, several years before this Court decided Huddleston—the

Fifth Circuit addressed for the first time the question of “[w]hether a not guilty plea

of itself sufficiently raises the issue of intent to make extrinsic offense evidence

admissible in the government’s case in chief[.]” United States v. Roberts, 619 F.2d

379, 382 (5th Cir.1980). The defendant in that case was charged with participating

in a gambling conspiracy, and the prosecution sought to introduce evidence of the

defendant’s prior conviction for a gambling offense. Id.at 381. Despite the fact that

“the prosecution had no reason to anticipate a denial of criminal intent, and the

defendant never openly made it an issue,” the trial court ruled that the defendant’s

“plea of not guilty itself raised the issue of intent,” thereby satisfying the relevance

prong. Id. at 381-82. The Fifth Circuit affirmed, reasoning that intent is often

difficult to prove in conspiracy cases, especially when a defendant “is a passive or

minor actor in a criminal drama,” and noting that the government “may be forced

to present some independent evidence of intent” if “the evidence linking the

defendant to a conspiracy is subject to an innocent interpretation.” Id. at 382-83.

The court thus held:

In every conspiracy case, therefore, a not guilty plea renders the

defendant’s intent a material issue and imposes a difficult burden on

the government. Evidence of such extrinsic offenses as may be

probative of a defendant’s state of mind is admissible unless he

affirmatively takes the issue of intent out of the case.

Id. at 383 (quotation marks, alteration, and citation omitted).

In the decades following Roberts, the Fifth Circuit simplified that holding

into a per se rule that wholly eliminates any relevance or “proper purpose” inquiry

from the Rule 404(b) admissibility test in conspiracy cases—rendering the Rule

404(b) analysis merely coextensive with Rule 403. The Fifth Circuit has explicitly

and repeatedly held: “The mere entry of a not guilty plea in a conspiracy case raises

the issue of intent sufficiently to justify the admissibility of extrinsic offense

evidence.” United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996); see also,

e.g., United States v. Bermea, 30 F.3d 1539, 1562 (5th Cir. 1994); United States v.

Parziale, 947 F.2d 123, 129 (5th Cir. 1991); United States. v. Heard, 709 F.3d 413,

430 (5th Cir. 2013). Put another way: “Where . . . a defendant enters a plea of not

guilty in a conspiracy case, the first prong of the Beechum test is satisfied.” Cockrell,

586 F.3d at 679.

In this case, the government alleged that Mr. Wilson and his co-defendant

conspired to commit Hobbs Act robbery, identifying seven completed robberies as

the “overt acts” of the conspiracy. The central evidence was surveillance footage

from each robbery, which depicted two masked individuals entering and robbing

stores together in a coordinated fashion. There was no question that the two people

depicted in each robbery conspired—i.e., agreed with one another to commit the

robbery. Indeed, the prosecution told the jury exactly that—observing that two

perpetrators “clearly” worked together, as evidenced by every video. The only

material issue before the jury was whether Mr. Wilson was, in fact, one of the

masked individuals in any of the robberies, as the government alleged.

Nevertheless, the Fifth Circuit affirmed the district court’s admission of Mr.

Wilson’s extrinsic robbery offense to prove his intent to join the charged Hobbs Act

conspiracy, relying solely on the Fifth Circuit rule derived from Roberts. App. 10a.

That holding—and the decades of precedent upon which it relied—contradicts the

plain language of Rule 404(b) and flies in the face of this Court’s holding in

Huddleston.

Rule 404(b) expressly limits the purposes for which extrinsic offenses

evidence may be admitted at a criminal trial. The rule is directed to the prosecution’s

intended use of the evidence—not the mere existence of some similarity to the case

at bar. By its plain language, it limits the admission of extrinsic evidence to the

“purpose” of “proving motive, opportunity, intent,” etc. Fed. R. Evid. 404(b)(2). And,

in seeking to introduce such extrinsic evidence, the prosecution is required to

“articulate . . . the permitted purpose for which [it] intends to offer the evidence

and the reasoning that supports the purpose[.]” Fed. R. Evid. 404(b)(3)(B). In

Huddleston, this Court cited the rule’s requirement “that the evidence be offered

for a proper purpose” as the primary source of protection against unfair prejudice.

485 U.S. at 681-82 (emphasis added).

The Fifth Circuit’s per se rule, and its application in this case, betray this core

requirement and fundamental protection of Rule 404(b). Faced with a weak case

against Mr. Wilson, the government was able to introduce highly prejudicial evidence

that Mr. Wilson committed an unrelated robbery to convince the jury that he

committed the charged offenses, without it actually being offered for any permissible

purpose. This Court’s intervention is needed to correct the Fifth Circuit’s decades-old

precedent, which violates this Court’s prior decisions and Rule 404(b)

II.

Significant circuit conflict has developed around the Fifth

Circuit’s per se rule and the proper application of Rule 404(b).

Each circuit has instituted its own multi-pronged test for determining the

admissibility of extrinsic evidence under Rule 404(b). The tests all incorporate the

central requirements that (1) the evidence is relevant to a proper, non-characterbased purpose (i.e., a purpose identified in Rule 404(b)(2)), and (2) its admission

satisfies Rule 403’s balancing test. However, significant and deeply entrenched

conflict has developed among the circuits over adoption of the Fifth Circuit’s rule

derived from Roberts and, more broadly, the question of what degree of materiality

or necessity is required to render extrinsic offense evidence relevant and admissible

under Rule 404(b).

In addition to the Fifth Circuit, the First, Eighth and Eleventh Circuits all

have adopted the rule that a plea of not guilty to a conspiracy charge automatically

renders similar, extrinsic offenses relevant to the issue of intent. See e.g., United

States v. Zeuli, 725 F.2d 813, 816 (1st Cir. 1884); United States v. Cooper, 990 F.3d

576, 584 (8th Cir. 2021); United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir.

2005). Though bound by precedent, at least one judge on the Eleventh Circuit has

noted that the doctrine that has emerged from Roberts “has evolved into one that

undermines Rule 404(b) itself[.].” Matthews at 1313 (Tjoflat, J., concurring). The

per se admissibility rule is “reflexively invoked” in conspiracy cases, as it was here,

and “frequently without reference to context, or any other analysis for that

matter[.]” Id. at 1315.

Other circuits—including the Second, Third, Fourth, and Seventh Circuits—

have expressly disagreed with the Fifth Circuit’s rule. For example, the Seventh

Circuit has explained:

Rule 404(b) does not provide a rule of automatic admission whenever

bad acts evidence can be plausibly linked to ‘another purpose,’ such as

knowledge or intent, listed in the rule. The Rule 402 requirement of

relevance and the unfair prejudice balancing inquiries of Rule 403 still

apply with full force. This must be so because the list of exceptions in

Rule 404(b), if applied mechanically, would overwhelm the central

principle.

{…}

When . . . intent is not meaningfully disputed by the defense, and the

bad acts evidence is relevant to intent only because it implies a pattern

or propensity to so intend, the trial court abuses its discretion by

admitting it.

United States v. Miller, 673 F.3d 688, 696 (7th Cir. 2012) (quotation marks and

citations omitted) (emphasis added). Indeed, “if a mere claim of innocence were

enough to automatically put intent at issue, the resulting exception would swallow

the general rule against admission of prior bad acts.” Id. at 697.

The Fourth Circuit has similarly rejected the notion that Rule 404(b)

evidence is automatically relevant and admissible simply because intent is “at

issue” as an element of the charged offense. See, e.g., United States v. Hernandez,

975 F.2d 1035, 1039-40 (4th Cir. 1992); United States v. Sterling, 860 F.3d 233, 247

(4th Cir. 2017). And, in contrast with the Fifth Circuit and others, the Fourth

Circuit’s Rule 404(b) admissibility test actually incorporates an independent

requirement of necessity. See Hernandez, 975 F.3d at 1040. Thus, even if an extrinsic

offense bears some relevance to the “intent” element of the charged offense, it still

is not admissible unless it is “probative of an essential claim or an element in a

manner not offered by other evidence available to the government.” Sterling, 860 F.3d

at 247 (quotation marks and citation omitted) (emphasis added). In other words,

the mere fact that the charged crime includes an intent element “does not throw

open the door to any sort of other crimes evidence.” United States v. Bailey, 990

F.2d 119, 123 (4th Cir. 1993).

The Third Circuit has likewise held that “[s]imply invoking a non-propensity

purpose does not magically transform inadmissible evidence into admissible

evidence.” United States v. Foster, 891 F.3d 93, 108 (3d Cir. 2018) (quotation marks

and citation omitted). “Rather, the testimony concerning other acts must materially

advance the prosecution’s case.” Id. (quotation marks and citation omitted)

(emphasis added). Thus, a court cannot simply look to the elements of the charged

offense to determine whether the extrinsic act bears some marginal relevance or

similarity to the charge. Instead, courts must “consider the material issues and

facts the government must prove to obtain a conviction.” United States v. Caldwell,

760 F.3d 267, 276 (3d Cir. 2014) (quotation marks and citation omitted).

The Second Circuit has gone even further, establishing a rule that prohibits

the admission of Rule 404(b) evidence to prove intent when the defendant denies

committing the charged acts. United States v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988)

(“Intent is not placed in issue by a defense that the defendant did not do the charged

act at all.”). Thus, in the Second Circuit’s view, “[w]hen a defendant unequivocally

relies on such a defense, evidence of other acts is not admissible for the purpose of

proving intent.” Id.

All of this clearly indicates that there are irreconcilable conflicts in the

circuits in their application of Rule 404(b), particularly as it relates to conspiracy

cases and the permissible purpose of admitting extrinsic acts to prove “intent.” In

several circuits, the district court’s admission of the highly prejudicial evidence

regarding Mr. Wilson’s commission of an unrelated robbery undoubtedly would

have been held to be an abuse of discretion—particularly considering that the

element of intent was not at issue. The sole issue that was in dispute was whether

Eriston Wilson was one of the perpetrators of the two person armed robberies

alleged as overt acts in this conspiracy case. This Court should grant certiorari not

only to review the Fifth Circuit’s rule but also to resolve the significant, pervasive

circuit conflict over the proper application of Rule 404(b).

The question presented in this petition invokes longstanding precedent and

deep-seeded circuit conflicts that warrant this Court’s intervention. Mr. Wilson’s

case presents an ideal vehicle to address this Rule 404(b) issue. His challenge to

the admission of the extrinsic evidence was well-preserved below, and that evidence

was highly prejudicial, serving as the most incriminating evidence against him at

trial. Indeed, it was by far the strongest evidence implicating Mr. Wilson in the

commission of any robbery. Finally, this is a case in which the Roberts-derived rule

was used to admit extrinsic evidence when the intrinsic evidence related to the

charged offenses left no doubt whatsoever regarding the intent of the offenders,

whoever they may be. For these reasons, Mr. Wilson’s case is an excellent vehicle

for the Court to address the Fifth Circuit’s sweeping rule and the related circuit

conflict that has emerged.

CONCLUSION

For all the foregoing reasons, the petition for a writ of certiorari should be

granted.

Respectfully submitted,

/s/ Carol A. Kolinchak________