GUY RUFUS HUDDLESTON, PETITIONER V. UNITED STATES OF AMERICA No. 87-6 In the Supreme Court of the United States October Term, 1987 On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit Brief for the United States TABLE OF CONTENTS Question presented Opinions below Jurisdiction Rule involved Statement Summary of argument Argument: A trial court may admit evidence of other crimes, wrongs, or acts without requiring clear and convincing proof that those acts took place A. Rule 404(b) authorizes the admission of similar act evidence under the same standard as other relevant evidence, provided that the evidence is not offered to prove character in order to show action in conformity therewith B. The courts should not create a special test for admission of similar act evidence C. The trial court properly admitted the government's similar act evidence in this case Conclusion OPINIONS BELOW The opinion of the court of appeals on rehearing (Pet. App. C1-C9) is reported at 811 F.2d 974. The initial opinion of the court of appeals (Pet. App. D1-D6) is reported at 802 F.2d 874. JURISDICTION The initial judgment of the court of appeals was entered on October 8, 1986. After the government filed a petition for rehearing, the court entered a new judgment on February 20, 1987, withdrawing the prior judgment and opinion and affirming petitioner's conviction. Petitioner then filed his own petition for rehearing, which was denied on April 30, 1987 (Pet. App. B1). The petition for a writ of certiorari was filed on June 27, 1987, and was granted on October 13, 1987. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). RULE UNVOLVED Rule 404(b) of the Federal Rules of Evidence 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. QUESTION PRESENTED Whether, before admitting "similar act" evidence under Fed. R. Evid. 404(b), a district court must find that the similar acts have been proved by clear and convincing evidence. STATEMENT 1. Petitioner was indicted on July 23, 1985, by a federal grand jury sitting in the Eastern District of Michigan. The indictment charged him with one count of selling stolen goods in interstate commerce, in violation of 18 U.S.C. (& Supp. IV) 2315, and one count of possessing stolen property in interstate commerce, in violation of 18 U.S.C. 659. The two counts related to two portions of a shipment of stolen Memorex video cassette tapes that petitioner was alleged to have possessed and sold, knowing that they were stolen. J.A. 3-4. The evidence at trial showed that in early 1985, the Tandy Bell & Howell plant in Northbrook, Illinois, manufactured a number of Memorex T-120 VHS video cassette tapes. The company sold those blank tapes, at its manufacturing cost of $4.53 per tape, to its exclusive sales subsidiary, Memtech Products. Memtech then sold a batch of 32,448 tapes to the Michigan K-Mart Corporation at the price of $4.69 per tape and shipped them to K-Mart via an Overnight Express semi-trailer truck. The trailer was sent to a trailer yard in South Holland, Illinois, on April 11, 1985, because K-Mart was not scheduled to take delivery of the tapes until April 16. On the morning of April 16, Overnight Express employees discovered that the trailer was missing. Tr. 40-52, 54-55, 57-63. Two days later, petitioner contacted Karen Curry, the manager of the Magic Rent-to-Own store in Ypsilanti, Michigan. Petitioner, who was employed as a housing contractor in Ann Arbor, Michigan, asked Curry to help him sell approximately 20,000 blank video cassette tapes. Tr. 69-72. Curry asked whether the tapes were stolen, and petitioner replied that they were not "hot" (J.A. 13; Tr. 73). He told Curry that he had purchased the tapes directly from the Chicago manufacturer for $1.00 per tape and that he had a bill of sale for the tapes (J.A. 13; Tr. 73, 101). Petitioner never produced the bill of sale, and Curry later learned that petitioner had gotten the tapes from a man named Leroy (J.A. 13, 23; Tr. 95). Petitioner told Curry that he wanted her to sell the tapes for $2.75 to $3.00 per tape. He said that he wanted only cash for the tapes, not checks, and that he wanted her to sell the tapes in lots of no fewer than 500 tapes to any one purchaser. Curry knew that $2.75 or $3.00 per tape for the blank Memorex tapes was an extremely low price. J.A. 12-23; Tr. 69-76, 93, 94-96, 101. Curry asked an officer she knew with the Ypsilanti Police Department to check whether the tapes petitioner was trying to sell were stolen. The officer advised her that the Department had not received a report that the tapes were stolen. Curry then arranged to sell several thousand of the tapes to various local retailers. Petitioner promised to pay Curry 25 cents per tape for arranging the sales. J.A. 14-18; Tr. 74-77, 80-82, 83-85. One of the persons Curry contacted was Steven Cole, the manager of a home entertainment store, who agreed to buy 4,000 of the Memorex tapes, which he then arranged to sell to an associate. Cole agreed to pay cash for the purchase and to take delivery of the tapes outside his store in Flint, Michigan, but at the time set for the transfer, petitioner arrived and told Cole that he "didn't do business" in Flint. Cole subsequently arranged to take delivery of the tapes on a street corner opposite a shopping mall in Lansing, Michigan. Petitioner subsequently met with Cole at the designated location and unloaded the 4,000 Memorex tapes from a U-Haul van. Cole gave petitioner $10,000 in cash for the tapes. Tr. 103-110, 115-117. That sale formed the basis for the charge in Count 1 of the indictment. During the same period, Curry contacted Ronald Hall, the owner of a video store in Livonia, Michigan. Hall agreed to buy 500 blank Memorex tapes for $3.00 per tape. Petitioner subsequently drove to Hall's store to make the delivery. When Hall tried to pay for the tapes by check, petitioner objected, saying that he wanted either cash or a cashier's check. Petitioner returned later, however, and agreed to take a company check for the tapes. Hall testified that he ordinarily had to pay between $5.50 and $6.50 for Memorex tapes of the type that he bought from petitioner for $3.00. Tr. 136-138. 146-150; see also Tr. 150-155. That sale formed the basis for the charge in Count 2 of the indictment. /1/ 2. Prior to trial the government filed a motion in limine in which it stated that it intended to offer evidence of petitioner's prior and subsequent dealings in goods of suspicious origin. The government offered that evidence to show that petitioner knew the blank Memorex tapes were stolen, which was the only significant issue in dispute at trial (see Tr. 37-38 (defense counsel's opening statement)). The district court concluded that the government's evidence was admissible, in accordance with Fed. R. Evid. 404(b), for the purpose of showing petitioner's knowledge of the stolen character of the tapes. J.A. 5-11; Tr. 4-10. The first piece of "similar act" evidence offered by the government was the testimony of Paul Toney, a record store owner in Benton Harbor, Michigan. Toney testified that he met petitioner at a Benton Harbor bar in February 1985. Petitioner arrived in the bar carrying a black and white television set and announced that he and several associates had a truckload of similar sets for sale at a very low price. Toney expressed an interest in the sets, and he arranged to purchase a number of them. Toney later traveled to the Magic Rent-to-Own store with petitioner, where Toney purchased 20 television sets for $28.00 each. Several days later, Toney purchased an additional 18 sets at the same price. Shortly thereafter, Toney offered to buy still more television sets; petitioner responded that he did not have any more sets, but he said that he had a truckload of blank video cassette tapes for sale for $2.75 per tape. J.A. 24-33; Tr. 161-170. The second piece of "similar act" evidence was the testimony of Robert Nelson, an undercover FBI agent. Nelson testified that he began an investigation into petitioner's activities in May 1985 by posing as a buyer for an appliance store in Southgate, Michigan. On May 1, 1985, Nelson met with petitioner to discuss the purchase of video cassette movies. Petitioner offered to sell Nelson 100,000 VHS video cassette movies for $1.57 per tape, and about 800 19-inch Zenith color television sets for $200 per set. Petitioner said that he was selling the VHS video cassettes for only $157,000 because he "could not afford to have the truck sitting around." J.A. 34-37; Tr. 185-188, 204, 214. Petitioner stated that he did not have an invoice for the merchandise, but he added that that was no problem and that he would make an invoice out to say whatever he wanted and that the invoice "would be good throughout the world" (J.A. 36-37; Tr. 188). Nelson asked whether the tapes were stolen, and petitioner, "in his words, stated that, 'Some were hot and some were not'" (J.A. 37; Tr. 188; see also J.A. 42; Tr. 204-205). When Nelson pressed petitioner on that point, petitioner said that "'most of it is not hot'" (Tr. 205). When asked about where the tapes had come from, petitioner told Nelson that he obtained the tapes "(o)ff the docks" in Chicago (J.A. 41; Tr. 193). Petitioner told Nelson that the delivery of the tapes and the television sets would take five days and that if Nelson needed some merchandise immediately, petitioner could deliver 28 Amana refrigerators, 2 ranges, and 40 icemakers to him for $8,000. That shipment, petitioner said, could be available within two hours. J.A. 37-38; Tr. 189-190. Nelson received a teletype message the following morning notifying the Detroit FBI Office that a shipment of Amana appliances had been stolen. After receiving that information, Nelson contacted petitioner and told him that he was interested in purchasing the Amana appliances. Petitioner arranged to meet with Agent Nelson in a parking lot to effect the transfer of the appliances. J.A. 38-39; Tr. 190-191. As petitioner greeted Agent Nelson, he said, "Man, I hope you're not with the F.B.I." (Tr. 360). Nelson replied, "Don't mention those words around me" (ibid.). Petitioner then told a man who was with him to make a telephone call to arrange for the delivery of the merchandise (Tr. 360-361). Before the appliances arrived, petitioner was arrested. Shortly thereafter, a truck containing the appliances was stopped approximately a block and a half away from the place where petitioner and Nelson arranged to meet. Leroy Wesby, who was driving the truck at the time, was arrested. The Amana appliances were determined to be from the stolen shipment and to have a value of approximately $20,000. J.A. 34-41, 55; Tr. 185-193, 206, 216-222. Petitioner testified at trial that he obtained the Memorex tapes, the television sets, and the Amana appliances from Leroy Wesby. He also testified that it was Wesby who arranged to provide him with the VHS movie cassettes that he offered to sell to Agent Nelson. Petitioner testified that with respect to each shipment of merchandise, he questioned Wesby as to whether it was stolen and was told that it was not. J.A. 42-63; Tr. 235-256. In fact, petitioner said when Wesby first approached him seeking his assistance in selling the truckload of black and white television sets, he and Alphonse Lewis, Jr., the owner of the Magic Rent-to-Own store, had interviewed Wesby for a day and a half, including "approximately five hours" on the first day, and that they made a number of phone calls to assure themselves that the television sets were not stolen. J.A. 44; Tr. 236-237. On cross-examination, however, petitioner stated that in the course of the two-day interview, he did not ask Wesby where he had obtained the merchandise. J.A. 63-64; Tr. 267-268. In his closing argument, the prosecutor referred to the testimony of Toney and Nelson as support for the government's theory that petitioner knew the Memorex tapes were stolen. The prosecutor stated to the jury that "the defendant is not on trial for those situations (the television sets and the Amana appliances)" and that that evidence was produced only to show that petitioner "knew that the tapes were stolen" (Tr. 380). He explained that petitioner's professed ignorance concerning the origins of the video cassette tapes involved in the instant indictment was simply not credible when viewed in the context of his repeated dealings with Wesby in selling large volumes of goods of suspicious origin at below market prices (id. at 380-388). /2/ 3. The court of appeals initially reversed petitioner's conviction by a divided vote. Pet. App. D1-D16. The court concluded that the district court abused its discretion by admitting evidence of petitioner's sale of television sets to Toney. It reasoned that the evidence was unduly prejudicial because the government failed to show by clear and convincing evidence that the television sets were stolen or that petitioner knew they had been stolen. The court also held that the error of admitting that evidence was not harmless beyond a reasonable doubt. Pet. App. D6. Judge Nelson dissented. In his view, the admission of the television set evidence was not unfairly prejudicial. He further stated that Fed. R. Evid. 404(b) permits admission of "similar act" evidence upon a showing that it is more likely than not that petitioner committed the acts and that the government satisfied this "prepondence of the evidence" standard by showing that petitioner obtained all of his goods -- including some that he admitted were "hot" -- from the same supplier. Even if the admission of the "similar act" evidence was error, Judge Nelson concluded that, under the harmless error test applicable to nonconstitutional errors, any error in the admission of the television set evidence was harmless. Pet. App. D9-D16. On rehearing, the court of appeals vacated its initial decision and affirmed the conviction. The court first held that Fed. R. Evid. 404(b) permits admission of "similar act" evidence under a preponderance of the evidence standard, citing the court's recent decision in United States v. Ebens, 800 F.2d 1422 (6th Cir. 1986). It next held that the government met that standard in this case because petitioner obtained all the goods from the same supplier; he did not ascertain the source of the goods or ask to examine the supplier's bill of sale; he offered to sell the goods at prices well below their value or even, in the case of the tapes, below the cost of their manufacture. Furthermore, petitioner admitted that some of the goods were "hot." The court also concluded that the district court's limiting instruction concerning the jury's use of the "similar act" evidence minimized any possibility of prejudice. Finally, the court concluded that any error in the admission of the evidence was harmless because the verdict was not substantially affected by that evidence. Pet. App. C1-C9. SUMMARY OF ARGUMENT A. Rule 404(b) of the Federal Rules of Evidence states that evidence of "other crimes, wrongs, or acts" is not admissible to prove the character of a person in order to show that he acted in conformity with that character on a particular occasion. The Rule further states, however, that such "similar act" evidence is admissible for other purposes, such as to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b). The Rule contains no special restriction on "similar act" evidence that is offered for a permissible purpose; the admission of that evidence is therefore subject to the same tests as any other evidence -- those set forth in Rules 401 through 403, Fed. R. Evid. This conclusion is not only consistent with the plain language of the Rule, it also accords with the principles underlying the Federal Rules of Evidence. Rules 401 and 402 state a fundamental theme of the Rules: relevant evidence should be admissible except in certain specified instances in which the demands of particular policies require the exclusion of evidence despite its relevancy. Rule 403 expresses the general qualification that relevant evidence may be excluded if its probative value is substantially outweighed by other adjudicative policies, such as the danger of unfair prejudice or undue delay. Rules 404 through 412 then describe a number of specific situations where Congress has determined that the strong presumption in favor of admitting all relevant evidence must give way to established policies against the use of certain types of evidence for certain purposes. The structure of the Federal Rules thus makes clear that evidence offered for an impermissible purpose must be excluded, but evidence offered for a permissible purpose is subject to the normal admissibility tests set forth in Rules 401 through 403. Petitioner's contention that a proponent of "similar act" evidence must satisfy an additional requirement of proving by "clear and convincing evidence" that the similar act occurred is at odds with the plain language, philosophy, and structure of the Federal Rules of Evidence. It is also inconsistent with the legislative history of Rule 404(b). The House and Senate Committees on the Judiciary both indicated that Rule 404(b) was intended to promote the admission of "simialr act" evidence for proper purposes. They made no suggestion that evidence admissible under Rule 404(b) would be subject to special tests. Quite to the contrary, they indicated that the admission of such evidence is subject, like all other evidence, to the ordinary criteria for admissibility, such as Rule 403. B. This Court has never sanctioned the "clear and convincing" test; instead, the Court's decisions predating the Federal Rules of Evidence follow the English common law practice and provide that "similar act" evidence, when offered for a permissible purpose, is subject to the usual relevancy requirements. Petitioner's sole support for the "clear and convincing" test derives from a view adopted by a minority of the federal courts of appeals. That minority view does not have the support of history or logic; the first federal court of appeals to employ the "clear and convincing" standard created it from a confusing amalgam of state law cases, and subsequent courts then adopted it without ever providing a persuasive justification for its use. Indeed, the test makes little sense. It excludes much evidence that obviously should be admissible, while failing to exclude some evidence that certainly should not be admitted. There is no need to supplement the Federal Rules of Evidence with special restrictions on the admission of "similar act" evidence -- whether it be petitioner's "clear and convincing" test or the Sixth Circuit's "preponderance" test -- because the Rules already contain sufficient safeguards against the misuse of "similar act" evidence. First, Rule 404(b) itself provides that "similar act" evidence must be offered for some purpose other than proving the character of the accused in order to show that he acted in conformity with his character on a particular occasion. Second, the evidence must satisfy the threshold relevancy requirements of Rules 401 and 402. Third, Rule 403 specifically provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Finally, Rule 105 provides that when evidence that is admissible for one purpose but is not admissible for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Thus, the general admissibility standards set forth in the Federal Rules of Evidence contain ample safeguards to accompany the admission of "similar act" evidence. There is no reason to superimpose any additional test upon this comprehensive and carefully considered scheme. C. The trial court properly admitted the government's "similar act" evidence in this case. The "similar act" evidence -- consisting of testimony concerning petitioner's prior sales and marketing techniques -- was part of the circumstantial evidence on which the government relied to prove that petitioner knew he was dealing in stolen merchandise. The evidence was relevant under Rules 401 and 402 because it demonstrated that petitioner's sales of stolen video cassette tapes were part of petitioner's continuing relationship with Wesby in selling large volumes of goods of suspicious origin at below market prices. Those facts, in turn, rebutted petitioner's claims that his role in the video cassette transactions was a limited one and that he had no reason to believe that the goods were stolen. The probative value of this evidence was not substantially outweighed by its prejudical effect under Rule 403 because the evidence had relatively little potential to encourage the jury to reach a result on grounds of passion, induced by the evidence of petitioner's similar acts. The possibility of any prejudice was further reduced by the trial court's limiting instruction under Rule 105. For those reasons, the district court was entirely correct in applying the Rules of Evidence to the "similar act" evidence in this case and concluding that the evidence should be admitted. ARGUMENT A TRIAL COURT MAY ADMIT EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS WITHOUT REQUIRING CLEAR AND CONVINCING PROOF THAT THOSE ACTS TOOK PLACE Rule 404(b) of the Federal Rules of Evidence provides that evidence of "other crimes, wrongs, or acts" is not admissible to prove the character of a person in order to show that he acted in conformity with that character on a particular occasion. The Rule further provides, however, that such "similar act" evidence is admissible for other purposes, such as to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b). Petitioner contends that the district court misapplied Rule 404(b), because it admitted the evidence of petitioner's efforts to sell a truckload of television sets without first requiring the government to show by "clear and convincing" proof that the sets were stolen. Petitioner correctly observes that the courts of appeals have provided inconsistent -- indeed, irreconcilable -- direction on this matter. /3/ We submit that Rule 404(b) does not impose a special burden on the proponent of "similar act" evidence to prove that the similar act took place. Once the proponent establishes that the evidence is offered for a proper purpose, the evidence is admissible under the same standards that govern the admissibility of any other type of probative evidence. That result is consistent with the language, history, and policies of Rule 404(b). There is no reason for this Court to create a special restriction for "similar act" evidence, such as requiring that the similar act be established by clear and convincing evidence, since the Federal Rules of Evidence already provide adequate safeguards to ensure that "similar act" evidence will not be introduced or used for an improper purpose. A. Rule 404(b) Authorizes The Admission Of Similar Act Evidence Under The Same Standard As Other Relevant Evidence, Provided That The Evidence Is Not Offered To Prove Character In Order To Show Action In Conformity Therewith 1. Rule 404(b) is quite unambiguous; it consists of two concise and straightforward sentences. The first sentence states that evidence of "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). It accordingly imposes a blanket exclusion of "similar act" evidence when that evidence is offered for the purpose of showing that a defendant has a bad character and therefore is likely to have done the unlawful act with which he is charged. /4/ The second sentence, however, makes clear the limited scope of the prohibition: evidence of similar acts is excluded only when it is offered for the purpose of proving the defendant's character. Where the evidence is relevant for some other purpose, Rule 404(b) has no role to play in excluding it. As the Rule states, similar act evidence may be admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ibid. That language indicates that the special treatment accorded to similar act evidence applies only when it is offered to establish propensity based on character. For all other purposes, similar act evidence falls outside the prohibition of Rule 404(b) and therefore must be assessed in the same way as any other type of evidence. Thus, if the similar act evidence is introduced for a permissible purpose, it is subject to admission under the normal tests set forth in Rules 401 through 403. This interpretation of Rule 404(b) is not only consistent with the plain language of the Rule, but it accords with the basic philosophy underlying the Federal Rules of Evidence, and particularly the rules in Article IV, the article that deals with relevancy. Rules 401 and 402 express one of the central themes of the Rules of Evidence: that relevant evidence is admissible except in certain limited instances, in which "the demands of particular policies() require the exclusion of evidence despite its relevancy." Fed. R. Evid. 402 advisory committee note. /5/ Rule 403 expresses the general qualification that relevant evidence may be excluded if its probative value is substantially outweighed by other adjudicative interests, such as the danger of unfair prejudice or undue delay. Rules 404 through 412 then address a number specific problems that arise in connection with evidence relating to character (Fed. R. Evid. 404-405), habit (Fed. R. Evid. 406), subsequent remedial measures (Fed. R. Evid. 407), compromise offers (Fed. R. Evid. 408), payment of medical expenses (Fed. R. Evid. 409), plea discussions (Fed. R. Evid. 410), liability insurance (Fed. R. Evid. 411), and a rape victim's past behavior (Fed. R. Evid. 412). Each of those rules addresses a particular topic with regard to which Congress has determined that the strong presumption in favor of admitting all relevant evidence must give way to protect other important policies. But the restrictions are narrowly drawn. Moreover, for the most part the rules in Article IV do not prohibit the admission of particular kinds of evidence, but instead distinguish between permissible and impermissible uses that can be made of that evidence. /6/ As the Advisory Committee observed, "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." Fed. R. Evid. 401 advisory committee note. The Article IV rules therefore recognize that, absent a specific prohibition, relevant evidence is admissible, and evidence that is inadmissible for one purpose may nonetheless be admissible for another. Rule 404 is consistent with that theme. As the Advisory Committee explained, the Rule reflects a judgment that the circumstantial use of character evidence raises special problems of unfair prejudice and therefore justifies a restriction on the use of evidence for that purpose. See Fed. R. Evid 404(a) advisory committee note. Rule 404(b), which "deals with a specialized but important application of the general rule excluding circumstantial use of character evidence," prohibits the use of similar act evidence "to prove character as a basis for suggesting the inference that conduct on a particular occasion was in conformity with it." Fed. R. Evid. 404(b) advisory committee note. The same evidence, however, may properly "be offered for another purpose, such as proof of motive, opportunity, and so on, which does not fall within the prohibition. In this situation the rule does not require that the evidence be excluded." Ibid. Thus, similar act evidence, provided that it is not offered for an impermissible purpose, is admissible under the same standards as other relevant evidence. 2. Petitioner contends that the government should be required to meet an additional test, nowhere stated in the Federal Rules, before similar act evidence is admitted. He argues that the government should be required to show, through "clear and convincing" proof, that the defendant committed the similar act in question. See Pet. Br. 15. Petitioner's proposed construction of Rule 404(b) is at odds with the plain language of the Rule. The Rule contains no hint whatever that the proponent of properly relevant similar act evidence must make a special preliminary showing -- whether under a "clear and convincing" standard or a "preponderance" standard -- that the similar act took place. As this Court has noted in a closely analogous context, the absence of any textual support for petitioner's construction should be "the end of the matter." Bourjaily v. United States, No. 85-6725 (June 23, 1987), slip op. 6. The Federal Rules of Evidence were not intended as a random collection of a few general principles of evidence law to be supplemented by the courts as they saw fit. Instead, the rules were designed to be a comprehensive set of principles governing the admissibility of evidence in federal trials. Where the rules intended those principles to be developed by the courts or derived from other sources, the rules expressly so provided. See Fed. R. Evid. 501 (privileges "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience"); Fed. R. Evid. 302 ("the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law"); Fed. R. Evid. 601 ("with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law"). The rules governing relevancy, however, contain no such indication that they are meant to be modified or supplemented by court decision. Thus, the absence in Rule 404(b) of any special preliminary test for admitting relevant similar act evidence demonstrates that no such test was intended. 3. When a Federal Rule of Evidence, such as Rule 404(b), provides clear guidance as to its application, it is ordinarily unnecessary to look to legislative history to confirm its meaning. See Bourjaily, slip op. 6. In this case, the legislative history is entirely consistent with the simple and straightforward application of the Rule that its language suggests; if there were any doubt concerning the meaning of Rule 404(b), the legislative history would put that doubt to rest. The legislative history of Rule 404(b) contains no hint that similar act evidence is subject to special heightened proof requirements such as a "clear and convincing evidence" standard, or even a "preponderance of the evidence" standard. To the contrary, the legislative history indicates that Congress's intention was that similar act evidence, if not offered to prove propensity, should be subject to the normal criteria of admissibility set forth elsewhere in the Federal Rules. The history of the Federal Rules of Evidence is, of course, familiar. In 1961, the Judicial Conference initiated a study of the need for uniform federal rules of evidence. See A Preliminary Report on the Advisability and Feasibility of Developing Uniform Rules of Evidence for the United States District Courts, 30 F.R.D. 73 (1962) (hereinafter Preliminary Report). Shortly thereafter, the Judicial Conference appointed the Advisory Committee on the Rules of Evidence to develop appropriate rules. From 1969 to 1971, the Advisory Committee formulated, circulated, and revised various drafts. See, e.g., Preliminary Draft of Proposed Rules of Evidence, 46 F.R.D. 183 (1969); Revised Draft of Proposed Rules of Evidence, 51 F.R.D. 315 (1971). On November 20, 1972, this Court approved the Advisory Committee's final version of the Federal Rules of Evidence. See 56 F.R.D. 184 (1973). The Rules were transmitted to Congress, where they were reviewed, amended, and ultimately enacted into law. Act of Jan. 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926. The Advisory Committee quite consciously avoided creating any sort of "mechanical solution" for admitting similar act evidence that is relevant for some purpose other than proving character. Fed. R. Evid. 404(b) advisory committee note. Rather, it indicated that a trial court should employ the standard criteria used to determine the admissibility of relevant evidence, i.e., "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. The House Committee on the Judiciary expressed no disagreement with this assessment, but made a slight change in the language of Rule 404(b) to emphasize that the Rule was intended to authorize the admission of similar act evidence, rather than to restrict its use. The Committee explained: The second sentence of Rule 404(b) as submitted to the Congress began with the words "This subdivision does not exclude the evidence when offered". The Committee amended this language to read "It may, however, be admissible", the words used in the 1971 Advisory Committee draft, on the ground that this formulation properly placed greater emphasis on admissibility than did the final Court version. H.R. Rep. 93-650, 93d Cong., 1st Sess. 7 (1973). The House Committee's modification of the Rule to place "greater emphasis on admissibility" is fully consistent with the Advisory Committee's view that properly relevant similar act evidence would be admitted on the same basis as other relevant evidence. The Senate Committee on the Judiciary confirmed that understanding in language that could not have been clearer. The Senate Report specifically noted that the use of the word "may" in the rule was "not intended to confer any arbitrary discretion on the trial judge" (S. Rep. 93-1277, 93d Cong., 2d Sess. 24 (1974)). Rather, the Senate Report stated, with respect to permissible uses of similar act 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" (id. at 25). In spite of this clear indication of congressional intent to prevent additional barriers to admissibility from creeping into Rule 404(b) by court decision, petitioner argues that the legislative history is contrary to the position we propose. He bases his argument on an observation made by Department of Justice representatives in response to the 1971 draft of Rule 404(b). That draft used the phrase "may * * * be admissible" in referring to the admissibility of similar act evidence for purposes for which it was relevant (see 51 F.R.D. at 346). The Justice Department and the United States Attorney for the District of Columbia both objected to the Advisory Committee's use of that phrase. They argued that the use of that language might suggest that the trial court could exercise uncabined discretion in excluding similar act evidence. See 117 Cong. Rec. 33650, 33658 (1971). The Department explained that similar act evidence, relevant for purposes other than establishing character, should be excludable "(o)nly if the probative value of these facts is substantially outweighed by the danger of unfair prejudice" (id. at 33650). The version of the Rule that was proposed by this Court used a slightly different formulation: it stated that "(t)his subdivision does not exclude (similar act) evidence" when offered for proper purposes. 56 F.R.D. at 219. Congress, however, returned to the phrase "may * * * be admissible," and that phrase was retained in the version of the Rule that was ultimately enacted. Petitioner argues that Congress's return to language about which the Department had expressed concern three years earlier constitutes proof that Congress was rejecting the premise on which the Department based its objection -- that similar act evidence should generally be admissible, except where it is offered solely to establish propensity. Petitioner's suggestion that a return to earlier language was meant as a silent rejection of the Department's position taken three years earlier would be quite strained even in the absence of other indications of why Congress made the change in the language of the Rule. In fact, however, petitioner's argument ignores what the pertinent congressional committees said was the purpose of the change. The statements in both the House and Senate reports, quoted above, make it clear that the change was made because the committees believed the "may * * * be admissible" formulation put more emphasis on admissibility rather than less. The statements in the 1973 and 1974 committee reports, which take exactly the same position with regard to the admissibility of similar act evidence that the Department of Justice had urged three years earlier, entirely dispose of petitioner's contention that the return to the language of the 1971 draft was intended as a silent rejection of the position that had been urged by the Department at that time. Thus, the legislative history of Rule 404(b) strongly supports the view that similar act evidence, offered for a permissible purpose, is admissible on the same basis as other relevant evidence. It offers no support whatsoever for the proposition that the proponent of such evidence must satisfy some unstated preliminary test -- whether conducted under a "clear and convincing evidence" standard or a "preponderance of the evidence" standard -- that the defendant committed the similar act. B. The Courts Should Not Create a Special Test for the Admission of Similar Act Evidence 1. Petitioner's legal authority for the imposition of a special "clear and convincing" test on similar act evidence derives from a minority view among the court of appeals (see note 3, supra) that predates the enactment Rule 404(b). Even if that test had anything to commend it by way of historical foundation and practical justification, it would not be appropriate for this Court to embrace it in light of the clearly contrary approach adopted by Congress when it enacted Rule 404(b). In fact, however, the "clear and convincing" test, which is followed in the Seventh, Eighth, Ninth, and D.C. Circuits (see note 3, supra), has both a dubious pedigree and virtually nothing by way of sound policy to recommend it. Petitioner's "clear and convincing" test certainly finds no support in this Court's treatment of similar act evidence. To the contrary, the Court's decisions prior to the adoption of the Federal Rules of Evidence support the interpretation of the Rule that we are proposing: those decisions are consistent with the view that similar act evidence may not be used simply to demonstrate criminal propensity, but that it may be admissible whenever it is relevant for other purposes. See, e.g., Lisenba v. California, 314 U.S. 219, 227 (1941) (upholding admission of testimony "on the widely recognized principle that similar but disconnected acts may be shown to establish intent, design, or system"); Hall v. United States, 150 U.S. 76, 81 (1893) (excluding evidence "intended to persuade the jury that the defendant had murdered one man in Mississippi, and therefore should be convicted of murdering another man in Arkansas"); Moore v. United States, 150 U.S. 57, 61 (1983) (upholding admission of evidence of a previous murder that suggested defendant's motive); Boyd v. United States, 142 U.S. 450, 458 (1892) (excluding evidence that the defendant had committed previous robberies where the evidence "afforded no legal presumption or inference as to the particular crime charged"). In each instance, the Court treated the issue as one of simple relevance; the Court neither suggested nor sanctioned the use of special standards, such as the "clear and convincing" test, for the admission of similar act evidence. In that respect, the Court followed the traditional English practice. See Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv. L. Rev. 988 (1938). At common law, as Professor Stone observed, "there never did exist any rule of evidence in England excluding proof of other offences of the accused where such proof was relevant to a fact in issue. All that there was to be found was a very narrow rule excluding proof where the relevance was merely to the evil disposition of the accused. Consequently the admission of similar facts where relevant to guilty knowledge in forgery and receiving cases was not, nor was it regarded at the time, as in any sense a derogation from the rule of exclusion. Such evidence was admitted not under exceptions to the rule, but as wholly outside its scope" Stone, supra, 51 Harv. L. Rev. at 990-991. See also Stone, The Rule of Exclusion of Similar Act Evidence: England, 46 Harv. L. Rev. 954, 985 (1933) ("the rule of exclusion of similar facts is and always has been very narrow"). Justice Story's reasoning in Wood v. United States, 41 U.S. (16 Pet.) 342 (1842), is particularly instructive, as it reflects adherence to the common law rule treating similar act evidence as raising a question of simple relevance, not as falling into a special category of disfavored proof. In the Wood case, the Court upheld the admission of similar acts to establish an intent to defraud, stating (id. at 360): The question was one of fraudulent intent or not; and upon questions of that sort, where the intent of the party is matter in issue, it has always been deemed allowable, as well in criminal as in civil cases, to introduce evidence of other acts and doings of the party, of a kindred character, in order to illustrate or establish his intent or motive in the particular act directly in judgment. Indeed, in no other way would it be practicable, in many cases, to establish such intent or motive, for the single act, taken by itself, may not be decisive either way; but when taken in connection with others of the like character and nature, the intent and motive may be demonstrated almost with a conclusive certainty. The court made no mention of a "clear and convincing" test or any other preliminary barrier to admission of similar act evidence. Instead, it treated the question of admissibility as one of simple relevance, stating, "at all events, if the proof be pertinent and competent, the admission of it cannot be matter of error" (id. at 361). The few cases in which this Court has dealt with the issue thus show that this Court has always addressed the admissibility of similar act evidence in an uncomplicated and sensible manner. In the first half of this century, however, lower courts followed an inconsistent pattern in dealing with similar act evidence and became intractably mired in a complex set of court-made rules. See Stone, supra, 51 Harv. L. Rev. at 988. /7/ The "clear and convincing" test emerged as a tuft in the "vast morass" (ibid.) of shifting and unsettled lower court authority. The Eighth Circuit was the first federal court of appeals to employ the "clear and convincing" test. It reversed a narcotics conviction in Paris v. United States, 260 F. 529 (8th Cir. 1919), on the ground that the trial judge erred by admitting evidence that the police had arrested the defendant one year earlier and had found morphine bottles in his possession. The court stated that similar act evidence may be admissible in some specific instances, but added, "it is essential to the admissibility of evidence of another distinct offense that the proof of the latter offense be plain, clear and conclusive. Evidence of a vague and uncertain character regarding such an alleged offense is never admissible." 260 F. at 531. It is difficult to resist the conclusion that in spite of the numerous citations offered to support that proposition, the court in Paris did not apply the rule, but rather simply made it up. /8/ Yet once the "clear and convincing" language had gained a foothold in Paris, it won unquestioning acceptance from several courts. Only four years after Paris, the Eighth Circuit cited the "clear and convincing" test as if it had always been the law. See Gart v. United States, 294 F. 66, 67 (8th Cir. 1923) ("Where a case falls within the exception, the proof must be clear and convincing."). That language eventually found its way into decisions of the Fifth, Seventh, Ninth, and District of Columbia Circuits. /9/ The "clear and convincing" test has never earned acceptance by a majority of the courts of appeals; indeed, the courts that adopted the "clear and convincing" test have never articulated a persuasive justification for its use. Those courts suggest, of course, that the test protects the defendant from unfair surprise, confusion of issues, and undue prejudice. See, e.g., Paris, 260 F. at 531. But it does so in a clumsy and haphazard way. It excludes much evidence that obviously should be admissible, and it fails to exclude some evidence that clearly should not be admitted. For example, the "clear and convincing" test would exclude proof of a series of similar acts where the series as a whole is highly probative, but where the evidence is not compelling with regard to any single act. As this Court recently explained, the "individual 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, slip op. 7. Similar act evidence, offered for a permissible purpose, is often highly probative for precisely that reason. A series of similar acts can establish a pattern or practice that demonstrates knowledge, intent, or absence of mistake or accident. To exclude the entire series because there is no compelling evidence with respect to any single act would be at odds with the language and purpose of Rule 404(b). Consider, for example, the following hypothetical case: A defendant is arrested at a neighborhood grocery store in the act of passing a counterfeit $50 bill. The defendant claims that he did not know that the bill was counterfeit, and that he must have come into possession of the bill innocently, by receiving it in change for another purchase. Further investigation reveals that on the day of his arrest, the defendant had visited four other neighborhood stores, he had made a small purchase at each store with a $50 bill, and the cash register of each store was later found to contain a counterfeit $50 bill. Under these circumstances, the government may not be able to establish -- under a "clear and convincing" test or even under a "preponderance" test -- that the defendant made his purchases with the same counterfeit $50 bills that were later found in the four cash registers. Nonetheless, this similar act evidence, in the aggregate, provides a compelling circumstantial basis for inferring that the defendant knew that the $50 bill he attempted to spend in the grocery store was counterfeit, since it allows (if not compels) the jury to conclude that the defendant was making a series of unusual purchases in order to obtain large amounts of good currency in exchange for a set of counterfeit bills. We do not believe that Rule 404(b) should be construed in a way that would prevent a jury from considering that type of highly probative evidence. Another defect in the "clear and convincing" test is that it focuses on the strength of the proof showing that the similar act occurred, rather than on the probative force of the act in the context of the case. It therefore favors evidence, such as a conviction, that conclusively establishes that a prior crime occurred, without questioning whether that crime has any significant probative value for purposes of the case at issue. This unresponsive feature of the "clear and convincing" test is well illustrated by the Paris case, the federal decision that apparently was the first to embrace the test. The evidence in that case, a prior narcotics violation, was apparently established quite conclusively. The problem with the evidence therefore had nothing to do with any lack of confidence that the similar act occurred. Instead, the problem with the evidence was that it was minimally probative and highly prejudicial. That evidence therefore should have been excluded under conventional relevance analysis. Thus, in a case such as Paris, the "clear and convincing" test adds nothing to the analysis, and in fact it distracts the attention of the court from the central relevance inquiry that should govern whether similar act evidence is admissible. 2. The Federal Rules of Evidence were designed to establish uniform rules in place of common law practices that were "archaic, paradoxical, and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counterprivilege to the other" (Michelson v. United States, 335 U.S. 469, 486 (1948)). See Preliminary Report, 30 F.R.D. at 108-110. Those rules, we submit, were intended to supplant the "morass" surrounding the admission of similar act evidence with a sensible uniform standard. The drafters of the Federal Rules of Evidence quite clearly intended to overrule questionable evidentiary practices, such as the "clear and convincing" test, which lacked both historical and logical support, and perpetuated nonuniformity in the federal system. The best evidence of this intent is, of course, the fact that the test was not incorporated into the Federal Rules. The drafters would no doubt be surprised to find that Rule 404(b) did not supplant those past practices. Indeed, the Advisory Committee's Reporter, Professor Cleary, specifically criticized the Fifth Circuit for continuing to apply its "clear and convincing" test following the adoption of the Federal Rules of Evidence. See Cleary, Preliminary Notes on Reading the Federal Rules of Evidence, 57 Neb. L. Rev. 908, 917 (1978). /10/ Professor Cleary observed that the "court decided to continue the former rule of the circuit which required that other crimes in intent cases be proved by clear and convincing evidence, although no such requirement is found in Rule 404(b)" (57 Neb. L. Rev. at 917). He explained that courts may make "acceptable extensions by analogy within the purpose of a rule" (ibid.), but the Fifth Circuit's decision amounted to "the amendment of a rule by engrafting a further requirement" (ibid.). "The result was to frustrate application of the Rule, to destroy uniformity of interpretation, and to violate the accepted principles of statutory construction" (ibid.). /11/ 3. Because the Federal Rules of Evidence contain sufficient safeguards against the misuse of similar act evidence, there is no need to engraft onto the rules a special restriction on the admission of such evidence -- whether it be petitioner's "clear and convincing" test or the Sixth Circuit's "preponderance" test. First, Rule 404(b) itself provides that similar act evidence must be offered for some purpose other than showing "the character of a person in order to show action in conformity therewith." Fed. R. Evid. 404(b). The burden is therefore on the proponent of similar act evidence to identify a permissible purpose to be served by the evidence and to show how the evidence bears on a material issue in the case. Second, even after overcoming the "improper purpose" objection, the proponent must satisfy the relevancy requirements of Rules 401 and 402. In particular, the similar act evidence must have a "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." Fed. R. Evid. 401. The general admissibility standards in the Federal Rules of Evidence provide other limitations, in addition to relevancy requirements, that prevent the jury from misusing logically relevant evidence. The most important limitation, of course, is Rule 403, which provides that 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." Fed. R. Evid. 403. That Rule vests the trial judge with the power to consider firsthand, and in the context of a particular trial situation, the potential prejudicial effect of similar act evidence. See United States v. Abel, 469 U.S. 45, 53-54 (1984). The Rule 403 standard is vastly preferable to a "clear and convincing" or "preponderance" test because it permits the trial judge to balance the competing interests that favor admission or exclusion of the evidence. The "clear and convincing" and "preponderance" tests -- which examine only the strength of the proof of the similar act -- take into account only half of the equation. Rule 403, by contrast, explicitly addresses the competing considerations by directing the courts to weigh the probative value of similar act evidence against the possibility that the evidence will result in unfair prejudice. In addition to the safequards found in Rules 401 through 403, Rule 105 further provides that, when "evidence which is admissible * * * for one purpose but not admissible * * * for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly" (Fed. R. Evid. 105). That Rule provides further protection against the possibility that jurors might misuse similar act evidence. The deeply rooted respect for jury trials rest in part on the reasonable belief that "jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them." Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985). That belief is founded on a "pragmatic" presumption (Richardson v. Marsh, No. 85-1433 (Apr. 27, 1987), slip op. 10). But the presumption, which has been applied "in many varying contexts" (id. at 6 (citing cases)), is particularly sensible and trustworthy when accompanied by a trial court's individualized determination, under Rule 403, that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. We note that the offer of similar act evidence on occasion raises an issue of "conditional" relevance and calls for the application of Rule 104(b). That Rule provides that "(w)hen 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." Fed. R. Evid. 104(b). For example, in the hypothetical counterfeit currency case that we described above, the defendant might object to the similar act evidence by arguing that the relevance of the evidence depends on the condition that he was the person who passed the counterfeit bills in the other four stores. If the government is unable to provide a basis from which the jury could conclude that the defendant was the person in the other stores, the court may exclude the evidence as irrelevant. However, this result follows directly from the relevancy requirements set forth in Rules 401 and 402, and not from any considerations unique to similar act evidence. We believe that the Fourth, Fifth, and Eleventh Circuits, which provide that similar act evidence is admissible if there is sufficient evidence to permit the jury to find that the defendant committed the act in question (see note 3, supra), are in fact responding to the particular problem of conditional relevance. In sum, the general admissibility standards set forth in the Federal Rules of Evidence contain ample safeguards to accompany the admission of similar act evidence. Those standards ensure that the evidence is relevant for a permissible purpose, that its probative value is balanced against the possibility of unfair prejudice, and that the jury fully understands the purposes for which the evidence has been admitted and the purposes for which the evidence has been admitted and the purposes for which it may not be used. There is no reason to superimpose any additional test upon this comprehensive and carefully considered scheme. C. The Trial Court Properly Admitted the Government's Similar Act Evidence in This Case Petitioner was charged with the possession and sale of stolen video cassette tapes. He admitted that he possessed and sold the tapes, but he defended by claiming that he did not know the tapes were stolen; thus, the central, if not the sole, factual issue in dispute at trial was petitioner's knowledge. As frequently occurs in cases involving stolen goods, the government needed to rely on circumstantial evidence to show that the possession and sale were "knowing" (18 U.S.C. (& Supp. IV) 659, 2315). The similar act evidence proffered by the government was part of the circumstantial evidence on which the government sought to rely to prove petitioner's guilty knowledge. See J.A. 5-11; Tr. 4-10. The government's similar act evidence consisted of testimony from Paul Toney, the record store owner, and Robert Nelson, the undercover FBI agent, concerning petitioner's past dealings in goods of suspicious origin. That testimony was clearly relevant to whether petitioner knew that the video cassette tapes that he had obtained from Wesby were stolen. Toney's testimony described petitioner's dealings in a truckload quantity of unusually low-priced television sets obtained shortly before petitioner received the stolen video cassette tapes. Nelson's testimony described petitioner's dealings in a large quantity of unusually low-priced kitchen appliances (some of which petitioner admitted were stolen), which petitioner obtained from Wesby shortly after petitioner's receipt of the video cassette tapes. Petitioner does not challenge the admission of Nelson's testimony concerning the kitchen appliances, but he does object to the admission of Toney's testimony concerning the television sets on the ground that the government had insufficient proof that the television sets were stolen. There are two answers to that claim. First, the fact that petitioner was offering the television sets for an extremely low price -- $28 apiece -- and the fact that he was marketing them in a surreptitious fashion -- by trying to find buyers in a barroom -- is sufficient to permit the jury to conclude both that the television sets were stolen and that petitioner knew they were stolen. Second, even apart from whether the television sets were stolen, Toney's testimony was relevant because it reflected something significant about petitioner's role in selling the merchandise he received during the spring of 1985. Viewed in isolation, the evidence regarding the Memorex tape sales might suggest that petitioner had only a fleeting contact with goods of a suspicious origin and thus may have overlooked the possibility that they were stolen. Indeed, at trial petitioner suggested through his testimony that he had only a limited role in selling the Memorex tapes, and that he had helped sell them simply as an incidental accommodation to Wesby. That testimony was obviously intended to suggest that because petitioner's involvement in the transaction was limited, he had no occasion to look too closely into the question whether the tapes were stolen. Toney's testimony helped rebut any suggestion that petitioner played only a limited, one-time role in selling merchandise for Wesby. Rather, it made it clear that petitioner was engaged in selling goods of suspicious origin throughout the State of Michigan, over a several-month period of time, and that he played a very active role in promoting the sales effort. Thus, whether or not the television sets were shown to be stolen, Toney's testimony was relevant because it revealed the ongoing nature of petitioner's activity in the "informal" merchandising of appliances and videotapes. The inference to be drawn from that evidence, in turn, is that if petitioner was deeply involved in the sales effort over an extended period of time, it was more likely that he was aware of the nature and origin of the merchandise he was selling. /12/ Petitioner did not raise a Rule 403 objection at trial that the probative value of Toney's testimony was substantially outweighed by the danger of unfair prejudice. In any event, such an objection would have been unavailing. On the one hand, Toney's testimony had substantial probative value for the purpose of showing that petitioner was engaged in extensive dealings in goods of suspicious origin and therefore was likely to be aware of the nature of the goods he was handling. On the other hand, the testimony did not have undue potential for unfair prejudice. Although that evidence gave rise to the inference that petitioner was involved in other acts of "fencing" stolen goods, the similar act evidence was not particularly prejudicial, as it did not involve conduct that was more heinous than the conduct with which petitioner was charged. Moreover, the television set evidence was less prejudicial than the testimony from Agent Nelson, the admissibility of which petitioner does not contest. And the offense of possession of stolen goods is not one that is likely to inflame the passions of a jury. Thus, Toney's testimony did not significantly increase the risk that the jury would be induced to reach its verdict based on passion, stemming from the evidence of petitioner's similar acts. The possibility of prejudice was further reduced by the trial court's instruction to the jury that Toney's testimony "is admitted only as it may bear on defendant's intent, plan, knowledge, or absence of mistake or accident" (J.A. 11; Tr. 429). The government itself made the same point in its closing argument by stating to the jury that "the defendant is not on trial for those situations" and that the evidence was produced only to show that petitioner "knew that the tapes were stolen" (Tr. 380). In sum, the district court handled the admission of the similar act evidence in this case flawlessly. It admitted the evidence for a proper purpose; the evidence was relevant to a material fact in issue; the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice; and the court gave a proper limiting instruction to the jury. Nothing more was required by the Federal Rules of Evidence, and no additional procedure should be imposed by means of a court-made rule. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General JEFFREY P. MINEAR Assistant to the Solicitor General THOMAS E. BOOTH Attorney FEBRUARY 1988 /1/ In addition to seeking her assistance in selling the blank Memorex tapes, petitioner in April 1985 asked Curry to help him sell a large number of video cassette movies for $15 apiece. He said he "wanted to get rid of the movies in one or two sales, if possible" and that he expected to sell the movies for between $135,000 and $157,000. J.A. 18-20; Tr. 85-88. /2/ The district court instructed the jury that the "similar act" evidence was admitted only to show petitioner's intent, plan, knowledge, or absence of mistake or accident and that the jury could not consider that evidence to show petitioner's character and to show that he acted in conformity with that character. J.A. 11; Tr. 429. /3/ For example, the First Circuit admits "similar act" evidence, offered for a permissible purpose, without any special preliminary proof that the similar act took place; the evidence is admitted on the same basis as other types of relevant evidence. See United States v. Currier, No. 86-2131 (1st Cir. Dec. 10, 1987), slip op. 11-17; see also United States v. D'Alora, 585 F.2d 16, 20 (1st Cir. 1978) ("all that is needed is a showing that the evidence 'tended to logically associate appellant with that particular crime'" (citation omitted)). The Fourth, Fifth, and Eleventh Circuits seem to hold that the "similar act" evidence is admissible as long as the evidence of the similar act is sufficient to permit the jury to find that the defendant committed the act. See United States v. Martin, 773 F.2d 579, 582 (4th Cir. 1985); United States v. Beechum, 582 F. 2d 898, 914 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920 (1979); United States v. Dothard, 666 F.2d 498, 502 (11th Cir. 1982). The Second and Sixth Circuits have required the government to establish the commission of the similar act by a preponderance of the evidence. See, e.g., United States v. Leonard, 524 F.2d 1076, 1090-1091 (2d Cir. 1975), cert. denied, 425 U.S. 958 (1976); United States v. Ebens, 800 F.2d 1422, 1432 (6th Cir. 1986); Pet. App. C4. The Seventh, Eighth, Ninth, and District of Columbia Circuits require the government to prove by clear and convincing evidence that the defendant committed the similar act. See United States v. Leight, 818 F.2d 1297, 1302 (7th Cir. 1987). cert. denied, No. 87-5636 (Nov. 16, 1987); United States v. Weber, 818 F.2d 14 (8th Cir. 1987); United States v. Vaccaro, 816 F.2d 443, 452 (9th Cir. 1987), cert. denied, No. 87-449 (Oct. 19, 1987); United States v. Lavelle, 751 F.2d 1266, 1276 (D.C. Cir.), cert. denied, 474 U.S. 817 (1985). /4/ For shorthand purposes, we refer to the evidence that is the subject of Rule 404(b) as "similar act" evidence. That evidence is sometimes referred to as "other crimes" evidence or "bad acts" evidence. The Rule makes clear, however, that the evidence to which the Rule is addressed is not limited to evidence of criminal conduct or, for that matter, evidence of bad conduct of any sort. Rather, the Rule prohibits the introduction of any evidence that is offered for the purpose of proving a person's character in order to suggest that the person acted in accordance with that character on an occasion that is at issue at trial. See United States v. Roe, 670 F.2d 956 (11th Cir.), cert. denied, 459 U.S. 856 (1982); United States v. Miller, 573 F.2d 388 (7th Cir. 1978); United States v. Evans, 572 F.2d 455 (5th Cir.), cert. denied, 439 U.S. 870 (1978). We also refer to the person who is the subject of the evidence at issue under Rule 404(b) as the defendant, since litigation under Rule arises most often when similar act evidence is offered against the defendant in a criminal case. Nonetheless, the Rule also applies in civil cases and to persons other than the defendant in criminal cases. /5/ Rule 401 defines "relevant evidence" as "evidence having 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." Fed. R. Evid. 401. Rule 402 then provides that all "relevant evidence" is admissible, except as otherwise provided by the Rules or other federal law. Fed. R. Evid. 402. /6/ See, e.g., Fed. R. Evid. 407 (excluding evidence of subsequent remedial measures to show negligence , but allowing the use of such evidence "for another purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted, or impeachment"); Fed. R. Evid. 408 (excluding evidence of compromise offers to show liability, but allowing the use of such evidence "for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution"); Fed. R. Evid. 411 (excluding evidence of liability insurance to show negligence, but allowing the use of such evidence "for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness"). /7/ Early Twentieth Century commentators despaired that the state courts' common law rules concerning admission of similar act evidence had grown so confused that "'it is hopeless to attempt to reconcile the precedents under the various heads'." Stone, supra, 51 Harv. L. Rev. at 988 (quoting 1 J. Wigmore, Evidence 616 (2d ed. 1923)). Dean Wigmore, a vocal critic of the "spirit of empiric eclecticism" that dominated the law of evidence during this period (1 J. Wigmore, Evidence Section 8, at 612-613 (Tillers rev. 1983)), believed that the inconsistency among the case reflected, in part, the divergent views that judges maintained as to the relevance of similar act evidence. See 2 J. Wigmore, supra Section 302, at 246-247 (Chadbourn rev. 1979); see also Stone, supra, 51 Harv. L. Rev. at 988-989. Professor Stone concluded that the case law reflected a conflict between "the original rule which only excluded similar fact evidence when relevant merely to disposition, and a much broader spurious rule excluding all similar facts except those falling within a few closed categories settled by earlier decisions." 51 Harv. L. Rev. at 989; see id. at 1033-1037. /8/ Paris relied on a number of cases to support its position, but none of them referred to a "clear and convincing evidence" standard. Indeed, those cases reflect the general confusion among the lower courts. Baxter v. State, 91 Ohio St. 167, 110 N.E. 456 (1914), states that "vague and uncertain" evidence should never be admitted (id. at 172, 110 N.E. at 458), and later adds, "Evidence that an accused was guilty of other similar offenses must be such that a jury would be authorized to find him guilty of these offenses" (id. at 173, 110 N.E. at 458). State v. Hyde, 234 Mo. 200, 136 S.W. 316 (1911), indicates that there must be "substantial testimony" to support the admission of similar act evidence (id. at 231, 136 S.W. at 324). State v. Lapage, 57 N.H. 245 (1876), states, "it will be found that the courts have always professed to put the admission of the testimony on the ground that there was some logical connection between the crime proposed to be proved other than the tendency to commit one crime as manifested by the tendency to commit the other" (id. at 295). People v. Sharp, 107 N.Y. 427, 14 N.E. 319 (1887), quotes Lapage with approval (id. at 469, 14 N.E. at 345). Fish v. United States, 215 F. 544 (1st Cir. 1914), came perhaps the closest to adopting a "clear and convincing evidence" standard when it stated that similar act evidence should be admitted "if at all, only in a plain case" (id. at 549), but for that proposition the court cited Sharp and Lapage, which offer absolutely no support for a "plain case" or "clear and convincing evidence" standard. /9/ The Fifth and Ninth Circuits both expressly followed the Eighth Circuit's Paris decision. See MacLaffery v. United States, 77 F.2d 715, 720 (9th Cir. 1935); Fabacher v. United States, 20 F.2d 736, 738 (5th Cir. 1927). The D.C. Circuit adopted the "clear and convincing" test in a footnote some 35 years later, citing only a state law decision. See United States v. Bussey, 432 F.2d 1330, 1335 n.23 (D.C. Cir. 1970). The Seventh Circuit adopted that standard in 1974 without the citation of any authority at all. United States v. Ostrowsky, 501 F.2d 318, 321 (7th Cir. 1974). /10/ Professor Cleary referred to United States v. Beechum, 555 F.2d 487 (5th Cir. 1977). The court of appeals, sitting en banc, subsequently overruled that decision. See United States v. Beechum, 582 F.2d 898 (5th Cir. 1978), cert. denied, 440 U.S. 920 (1979). /11/ Professor Cleary is not alone in his criticism of the test. For example, Weinstein and Berger state: No rigid standard is particularly helpful. If the evidence meets the test of (Rules) 401 and 404, it may still be highly prejudicial under 403. Less prejudicial and more probative evidence suggests a lower burden of proof. Contrariwise, if the evidence may tend to be highly prejudicial, the court is entitled to require a higher burden of proof. No strictly mechanical test provided by the appellate courts will help the trial judge much in sensitively drawing a fair balance. 2 J. Weinstein & M. Berger, Weinstein's Evidence Paragraph 404(10), at 404-73 (1986) (footnotes omitted). Imwinkelried observes: Since the adoption of the Federal Rules of Evidence, the judicial support for the clear and convincing standard has weakened. The proponents argue that the courts may continue to apply the prior standard as a gloss on Federal Rule of Evidence 403. There is a strong contrary argument. No Federal Rule expressly codifies a requirement for clear and convincing proof. Moreover, Federal Rule of Evidence 402 reflects a bias for the admission of relevant evidence and against the erection of new exclusionary barriers. E. Imwinkelried, Uncharged Misconduct Evidence Section 2:08, at 21 (1984) (footnotes omitted). Saltzburg and Redden criticize the "clear and convincing" test on the ground that it requires the judge to make credibility determinations, adding: For this reason, we believe that it is preferable for the Trial Judge to be aware of the prejudicial potential of other crimes evidence, to assure that it is needed in a case, to inquire whether less prejudicial evidence is available to prove a point, and to carefully make a balancing decision using the standard we have suggested under Rule 403. This is the real protection in the long run for all litigants. S. Saltzburg & K. Redden, Federal Rules of Evidence Manual 185 (4th ed. 1986). /12/ Because Toney's testimony was admissible without regard to whether the television sets were stolen, it was not necessary for the court to make a determination under Rule 104(b) that there was sufficient evidence of the stolen nature of the television sets to permit the jury to consider that evidence. Even if the relevance of Toney's testimony had been premised on the stolen nature of the television sets, Rule 104(b) would have been satisfied, as there was sufficient evidence at trial to permit the jury to infer that the television sets were stolen.