Federal Rule of Evidence 404(b) provides that evidence of "other
crimes, wrongs, or acts" is not admissible to prove a person's
character, but may be admissible for other purposes, such as proof
of knowledge. Petitioner was charged under federal law with the
knowing possession and sale of stolen videocassette tapes. At his
trial, the District Court allowed the Government to introduce as
evidence of "similar acts" under Rule 404(b) evidence of
petitioner's involvement in a series of sales of allegedly stolen
televisions and appliances from the same suspicious source as the
tapes, concluding that such evidence had clear relevance as to
petitioner's knowledge that the tapes were stolen. The jury
convicted petitioner on the possession count only, and the Court of
Appeals ultimately affirmed, declaring that it could not say that
the District Court had abused its discretion in admitting the
"similar acts" evidence under United
States v. Ebens, 800
F.2d 1422 (CA6), which authorized courts to admit such evidence if
the proof showed by a preponderance of the evidence that the
defendant did in fact commit the prior bad act.
Held: The district court need not itself make a
preliminary finding that the Government has proved the "other act"
by a preponderance of the evidence before it submits "similar acts"
and other Rule 404(b) evidence to the jury. The requirement of such
a preliminary finding would be inconsistent with the structure of
Article IV of the Rules, which allows the admission of relevant
evidence for a proper purpose subject only to general strictures,
with Rule 404(b)'s plain language, and with the legislative history
behind that Rule. Rather, "similar" acts evidence should be
admitted if there is sufficient evidence to support a finding by
the jury that the defendant committed the similar act. Here,
petitioner does not dispute that the evidence of the appliance
sales was properly admitted. Moreover, the trial court properly
allowed the evidence of the television sales to go to the jury,
since the jury reasonably could have concluded that the televisions
were stolen in light of the low price sought by petitioner, the
large quantity of televisions he offered for sale, his inability to
produce a bill of sale, and his involvement in the sales of the
stolen tapes and appliances. Pp.
485 U. S.
685-692.
811 F.2d 974, affirmed.
Page 485 U. S. 682
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Federal Rule of Evidence 404(b) provides:
"Other crimes, wrongs, or acts. -- Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
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."
This case presents the question whether the district court must
itself make a preliminary finding that the Government has proved
the "other act" by a preponderance of the evidence before it
submits the evidence to the jury. We hold that it need not do
so.
Petitioner, Guy Rufus Huddleston, was charged with one count of
selling stolen goods in interstate commerce, 18 U.S.C. § 2315, and
one count of possessing stolen property in interstate commerce, 18
U.S.C. § 659. The two counts related to two portions of a shipment
of stolen Memorex videocassette tapes that petitioner was alleged
to have possessed and sold, knowing that they were stolen.
The evidence at trial showed that a trailer containing over
32,000 blank Memorex videocassette tapes with a manufacturing cost
of $4.53 per tape was stolen from the Overnight Express yard in
South Holland, Illinois, sometime between April 11 and 15, 1985. On
April 17, 1985, petitioner contacted Karen Curry, the manager of
the Magic Rent-to-Own
Page 485 U. S. 683
in Ypsilanti, Michigan, seeking her assistance in selling a
large number of blank Memorex videocassette tapes. After assuring
Curry that the tapes were not stolen, he told her he wished to sell
them in lots of at least 500 at $2.75 to $3 per tape. Curry
subsequently arranged for the sale of a total of 5,000 tapes, which
petitioner delivered to the various purchasers -- who apparently
believed the sales were legitimate.
There was no dispute that the tapes which petitioner sold were
stolen; the only material issue at trial was whether petitioner
knew they were stolen. The District Court allowed the Government to
introduce evidence of "similar acts" under Rule 404(b), concluding
that such evidence had "clear relevance as to [petitioner's
knowledge]." App. 11. The first piece of similar act evidence
offered by the Government was the testimony of Paul Toney, a record
store owner. He testified that. in February. 1985, petitioner
offered to sell new 12" black and white televisions for $28 apiece.
According to Toney, petitioner indicated that he could obtain
several thousand of these televisions. Petitioner and Toney
eventually traveled to the Magic Rent-to-Own, where Toney purchased
20 of the televisions. Several days later, Toney purchased 18 more
televisions.
The second piece of similar act evidence was the testimony of
Robert Nelson, an undercover FBI agent posing as a buyer for an
appliance store. Nelson testified that, in May, 1985, petitioner
offered to sell him a large quantity of Amana appliances -- 28
refrigerators, 2 ranges, and 40 icemakers. Nelson agreed to pay
$8,000 for the appliances. Petitioner was arrested shortly after he
arrived at the parking lot where he and Nelson had agreed to
transfer the appliances. A truck containing the appliances was
stopped a short distance from the parking lot, and Leroy Wesby, who
was driving the truck, was also arrested. It was determined that
the appliances had a value of approximately $20,000 and were part
of a shipment that had been stolen.
Page 485 U. S. 684
Petitioner testified that the Memorex tapes, the televisions,
and the appliances had all been provided by Leroy Wesby, who had
represented that all of the merchandise was obtained legitimately.
Petitioner stated that he had sold 6,500 Memorex tapes for Wesby on
a commission basis. Petitioner maintained that all of the sales for
Wesby had been on a commission basis, and that he had no knowledge
that any of the goods were stolen.
In closing, the prosecution explained that petitioner was not on
trial for his dealings with the appliances or the televisions. The
District Court instructed the jury that the similar acts evidence
was to be used only to establish petitioner's knowledge, and not to
prove his character. The jury convicted petitioner on the
possession count only.
A divided panel of the United States Court of Appeals for the
Sixth Circuit initially reversed the conviction, concluding that,
because the Government had failed to prove by clear and convincing
evidence that the televisions were stolen, the District Court erred
in admitting the testimony concerning the televisions. 802 F.2d 874
(1986). [
Footnote 1] The panel
subsequently granted rehearing to address the decision in
United States v. Ebens, 800 F.2d 1422 (CA6 1986), in which
a different panel had held:
"Courts may admit evidence of prior bad acts if the proof shows
by a preponderance of the evidence that the defendant did in fact
commit the act."
Id. at 1432. On rehearing, the court affirmed the
conviction.
"Applying the preponderance of the evidence standard adopted in
Ebens, we cannot say that the district court abused its
discretion in admitting evidence of the similar acts in question
here."
811 F.2d 974, 975 (1987) (per curiam). The court noted that the
evidence concerning the televisions was admitted for a proper
purpose, and that the probative value of this evidence was not
outweighed by its potential prejudicial effect.
Page 485 U. S. 685
We granted certiorari, 484 U.S. 894 (1987), to resolve a
conflict among the Courts of Appeals as to whether the trial court
must make a preliminary finding before "similar act" and other Rule
404(b) evidence is submitted to the jury. [
Footnote 2] We conclude that such evidence should be
admitted if there is sufficient evidence to support a finding by
the jury that the defendant committed the similar act.
Federal Rule of Evidence 404(b) -- which applies in both civil
and criminal cases -- generally prohibits the introduction of
evidence of extrinsic acts that might adversely reflect on the
actor's character, unless that evidence bears upon a relevant issue
in the case such as motive, opportunity, or knowledge. Extrinsic
acts evidence may be critical to the establishment of the truth as
to a disputed issue, especially when that issue involves the
actor's state of mind and the only means of ascertaining that
mental state is by drawing inferences from conduct. The actor in
the instant case was a criminal defendant, and the act in question
was "similar" to the one with which he was charged. Our use of
these terms
Page 485 U. S. 686
is not meant to suggest that our analysis is limited to such
circumstances.
Before this Court, petitioner argues that the District Court
erred in admitting Toney's testimony as to petitioner's sale of the
televisions. [
Footnote 3] The
threshold inquiry a court must make before admitting similar acts
evidence under Rule 404(b) is whether that evidence is probative of
a material issue other than character. The Government's theory of
relevance was that the televisions were stolen, and proof that
petitioner had engaged in a series of sales of stolen merchandise
from the same suspicious source would be strong evidence that he
was aware that each of these items, including the Memorex tapes,
was stolen. [
Footnote 4] As
such, the sale of the televisions was a "similar act" only if the
televisions were stolen. Petitioner acknowledges that this evidence
was admitted for the proper purpose of showing his knowledge that
the Memorex tapes were stolen. He asserts, however, that the
evidence should not have been admitted because the Government
failed to prove to the District Court that the televisions were in
fact stolen.
Petitioner argues from the premise that evidence of similar acts
has a grave potential for causing improper prejudice. For instance,
the jury may choose to punish the defendant for the similar rather
than the charged act, or the jury may infer that the defendant is
an evil person inclined to violate the law. Because of this danger,
petitioner maintains, the jury ought not to be exposed to similar
act evidence until the trial court has heard the evidence and made
a determination under Federal Rule of Evidence 104(a) that the
defendant
Page 485 U. S. 687
committed the similar act. Rule 104(a) provides that
"[p]reliminary questions concerning the qualification of a
person to be a witness, the existence of a privilege, or the
admissibility of evidence shall be determined by the court, subject
to the provisions of subdivision (b)."
According to petitioner, the trial court must make this
preliminary finding by at least a preponderance of the evidence.
[
Footnote 5]
We reject petitioner's position, for it is inconsistent with the
structure of the Rules of Evidence and with the plain language of
Rule 404(b). Article IV of the Rules of Evidence deals with the
relevancy of evidence. Rules 401 and 402 establish the broad
principle that relevant evidence -- evidence that makes the
existence of any fact at issue more or less probable -- is
admissible unless the Rules provide otherwise. Rule 403 allows the
trial judge to exclude relevant evidence if, among other things,
"its probative value is substantially outweighed by the danger of
unfair prejudice." Rules 404 through 412 address specific types of
evidence that have generated problems. Generally, these latter
Rules do not flatly prohibit the introduction of such evidence, but
instead limit the purpose for which it may be introduced. Rule
404(b), for example, protects against the introduction of extrinsic
act evidence when that evidence is offered solely to prove
character. The text contains no intimation, however, that any
preliminary showing is necessary before such evidence may be
Page 485 U. S. 688
introduced for a proper purpose. If offered for such a proper
purpose, the evidence is subject only to general strictures
limiting admissibility such as Rules 402 and 403.
Petitioner's reading of Rule 404(b) as mandating a preliminary
finding by the trial court that the act in question occurred not
only superimposes a level of judicial oversight that is nowhere
apparent from the language of that provision, but it is simply
inconsistent with the legislative history behind Rule 404(b). The
Advisory Committee specifically declined to offer any "mechanical
solution" to the admission of evidence under 404(b). Advisory
Committee's Notes on Fed.Rule Evid. 404(b), 28 U.S.C.App. p. 691.
Rather, the Committee indicated that the trial court should assess
such evidence under the usual rules for admissibility:
"The determination must be made whether the danger of undue
prejudice outweighs the probative value of the evidence in view of
the availability of other means of proof and other factors
appropriate for making decisions of this kind under Rule 403."
Ibid.; see also S.Rep. No. 93-1277, p. 25 (1974) ("[I]t
is anticipated that, with respect to permissible uses for such
evidence, the trial judge may exclude it only on the basis of those
considerations set forth in Rule 403,
i.e., prejudice,
confusion or waste of time").
Petitioner's suggestion that a preliminary finding is necessary
to protect the defendant from the potential for unfair prejudice is
also belied by the Reports of the House of Representatives and the
Senate. The House made clear that the version of Rule 404(b) which
became law was intended to "plac[e] greater emphasis on
admissibility than did the final Court version." H.R.Rep. No.
93-650, p. 7 (1973). The Senate echoed this theme:
"[T]he use of the discretionary word 'may' with respect to the
admissibility of evidence of crimes, wrongs, or other acts is not
intended to confer any arbitrary discretion on the trial
judge."
S.Rep. No. 93-1277,
supra, at 24. Thus, Congress was
not nearly so concerned with the potential prejudicial effect of
Rule 404(b) evidence
Page 485 U. S. 689
as it was with ensuring that restrictions would not be placed on
the admission of such evidence.
We conclude that a preliminary finding by the court that the
Government has proved the act by a preponderance of the evidence is
not called for under Rule 104(a). [
Footnote 6] This is not to say, however, that the
Government may parade past the jury a litany of potentially
prejudicial similar acts that have been established or connected to
the defendant only by unsubstantiated innuendo. Evidence is
admissible under Rule 404(b) only if it is relevant.
"Relevancy is not an inherent characteristic of any item of
evidence, but exists only as a relation between an item of evidence
and a matter properly provable in the case."
Advisory Committee's Notes on Fed.Rule Evid. 401, 28 U.S.C.App.
p. 688. In the Rule 404(b) context, similar act evidence is
relevant only if the jury can reasonably conclude that the act
occurred and that the defendant was the actor.
See United
States v. Beechum, 582 F.2d 898, 912-913 (CA5 1978) (en banc).
In the instant case, the evidence that petitioner was selling the
televisions was relevant under the Government's theory only if the
jury could reasonably find that the televisions were stolen.
Such questions of relevance conditioned on a fact are dealt with
under Federal Rule of Evidence 104(b).
Beechum, supra, at
912-913;
see also E. Imwinkelried, Uncharged Misconduct
Evidence § 2.06 (1984). Rule 104(b) provides:
Page 485 U. S. 690
"When the relevancy of evidence depends upon the fulfillment of
a condition of fact, the court shall admit it upon, or subject to,
the introduction of evidence sufficient to support a finding of the
fulfillment of the condition."
In determining whether the Government has introduced sufficient
evidence to meet Rule 104(b), the trial court neither weighs
credibility nor makes a finding that the Government has proved the
conditional fact by a preponderance of the evidence. The court
simply examines all the evidence in the case and decides whether
the jury could reasonably find the conditional fact -- here, that
the televisions were stolen -- by a preponderance of the evidence.
See 21 C. Wright & K. Graham, Federal Practice and
Procedure § 5054, p. 269 (1977). The trial court has traditionally
exercised the broadest sort of discretion in controlling the order
of proof at trial, and we see nothing in the Rules of Evidence that
would change this practice. Often the trial court may decide to
allow the proponent to introduce evidence concerning a similar act,
and at a later point in the trial assess whether sufficient
evidence has been offered to permit the jury to make the requisite
finding. [
Footnote 7] If the
proponent has failed to meet this minimal standard of proof, the
trial court must instruct the jury to disregard the evidence.
We emphasize that, in assessing the sufficiency of the evidence
under Rule 104(b), the trial court must consider all
Page 485 U. S. 691
evidence presented to the jury.
"[I]ndividual pieces of evidence, insufficient in themselves to
prove a point, may in cumulation prove it. The sum of an
evidentiary presentation may well be greater than its constituent
parts."
Bourjaily v. United States, 483 U.
S. 171,
483 U. S.
179-180 (1987). In assessing whether the evidence was
sufficient to support a finding that the televisions were stolen,
the court here was required to consider not only the direct
evidence on that point -- the low price of the televisions, the
large quantity offered for sale, and petitioner's inability to
produce a bill of sale -- but also the evidence concerning
petitioner's involvement in the sales of other stolen merchandise
obtained from Wesby, such as the Memorex tapes and the Amana
appliances. Given this evidence, the jury reasonably could have
concluded that the televisions were stolen, and the trial court
therefore properly allowed the evidence to go to the jury.
We share petitioner's concern that unduly prejudicial evidence
might be introduced under Rule 404(b).
See Michelson v. United
States, 335 U. S. 469,
335 U. S.
475-476 (1948). We think, however, that the protection
against such unfair prejudice emanates not from a requirement of a
preliminary finding by the trial court, but rather from four other
sources: first, from the requirement of Rule 404(b) that the
evidence be offered for a proper purpose; second, from the
relevancy requirement of Rule 402 -- as enforced through Rule
104(b); third, from 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, [
Footnote 8]
see Advisory Committee's Notes on Fed.Rule Evid. 404(b),
28 U.S.C.App. p. 691; S.Rep. No. 93-1277, at 25; and fourth, from
Federal Rule of Evidence 105, which provides that the trial court
shall, upon request, instruct the jury that the similar acts
evidence is to
Page 485 U. S. 692
be considered only for the proper purpose for which it was
admitted.
See United States v. Ingraham, 832 F.2d 229, 235
(CA1 1987).
Affirmed.
[
Footnote 1]
"[T]he government's only support for the assertion that the
televisions were stolen was [petitioner's] failure to produce a
bill of sale at trial and the fact that the televisions were sold
at a low price."
802 F.2d at 876, n. 5.
[
Footnote 2]
The First, Fourth, Fifth, and Eleventh Circuits allow the
admission of similar act evidence if the evidence is sufficient to
allow the jury to find that the defendant committed the act.
United States v. Ingraham, 832 F.2d 229, 235 (CA1 1987);
United States v. Martin, 773 F.2d 579, 582 (CA4 1985);
United States v. Beechum, 582 F.2d 898, 914 (CA5 1978) (en
banc),
cert. denied, 440 U.S. 920 (1979);
United
States v. Dothard, 666 F.2d 498, 502 (CA11 1982). Consistent
with the Sixth Circuit, the Second Circuit prohibits the
introduction of similar act evidence unless the trial court finds
by a preponderance of the evidence that the defendant committed the
act.
United States v. Leonard, 524 F.2d 1076, 1090-1091
(CA2 1975). The Seventh, Eighth, Ninth, and District of Columbia
Circuits require the Government to prove to the court by clear and
convincing evidence that the defendant committed the similar act.
United States v. Leight, 818 F.2d 1297, 1302 (CA7),
cert. denied, 484 U.S. 958 (1987);
United States v.
Weber, 818 F.2d 14 (CA8 1987);
United States v.
Vaccaro, 816 F.2d 443, 452 (CA9),
cert. denied sub nom.
Alyis v. United States, 484 U.S. 914 (1987);
United States
v. Lavelle, 243 U.S.App.D.C. 47, 57, 751 F.2d 1266, 1276,
cert. denied, 474 U.S. 817 (1985).
[
Footnote 3]
Petitioner does not dispute that Nelson's testimony concerning
the Amana appliances was properly admitted under Rule 404(b).
[
Footnote 4]
The Government also argues before this Court that the evidence
concerning the televisions is relevant even if the jury could not
conclude that the sets were stolen. We have found nothing in the
record indicating that this theory was suggested to or relied upon
by the courts below, and, in light of our ruling, we need not
address this alternative theory.
[
Footnote 5]
In his brief, petitioner argued that the Government was required
to prove to the trial court the commission of the similar act by
clear and convincing proof. At oral argument, his counsel conceded
that such a position is untenable in light of our decision last
Term in
Bourjaily v. United States, 483 U.
S. 171 (1987), in which we concluded that preliminary
factual findings under Rule 104(a) are subject to the
preponderance-of-the-evidence standard. Tr. of Oral Arg. 12.
Petitioner now asserts that, although the Sixth Circuit correctly
held that the Government must prove the similar act by preponderant
evidence before it is admitted, the court erred in applying that
test to these facts. We consider first what preliminary finding, if
any, the trial court must make before letting similar acts evidence
go to the jury.
[
Footnote 6]
Petitioner also suggests that, in performing the balancing
prescribed by Federal Rule of Evidence 403, the trial court must
find that the prejudicial potential of similar acts evidence
substantially outweighs its probative value unless the court
concludes by a preponderance of the evidence that the defendant
committed the similar act. We reject this suggestion because Rule
403 admits of no such gloss, and because such a holding would be
erroneous for the same reasons that a preliminary finding under
Rule 104(a) is inappropriate. We do, however, agree with the
Government's concession at oral argument that the strength of the
evidence establishing the similar act is one of the factors the
court may consider when conducting the Rule 403 balancing. Tr. of
Oral Arg. 26.
[
Footnote 7]
"When an item of evidence is conditionally relevant, it is often
not possible for the offeror to prove the fact upon which relevance
is conditioned at the time the evidence is offered. In such cases,
it is customary to permit him to introduce the evidence and
'connect it up' later. Rule 104(b) continues this practice,
specifically authorizing the judge to admit the evidence 'subject
to' proof of the preliminary fact. It is, of course, not the
responsibility of the judge
sua sponte to insure that the
foundation evidence is offered; the objector must move to strike
the evidence if at the close of the trial the offeror has failed to
satisfy the condition."
21 C. Wright & K. Graham, Federal Practice and Procedure §
5054, pp. 269-270 (1977) (footnotes omitted).
[
Footnote 8]
As petitioner's counsel conceded at oral argument, petitioner
did not seek review of the Rule 403 balancing performed by the
courts below. Tr. of Oral Arg. 14. We therefore do not address that
issue.