GUY RUFUS HUDDLESTON, PETITIONER V. UNITED STATES OF AMERICA No. 87-6 In the Supreme Court of the United States October Term, 1987 On Petition for a 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 Statement Discussion 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-D16) 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 26, 1987, withdrawing the prior judgment and opinion and affirming petitioner's conviction. Petitioner's petition for rehearing was denied on April 30, 1987. The petition for a writ of certiorari was filed on June 27, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, before admitting "similar acts" 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 Following a jury trial in the United States District Court for the Eastern District of Michigan, petitioner was convicted of possessing stolen property in interstate commerce, in violation of 18 U.S.C. 659. He was sentenced to one year's imprisonment and ordered to make restitution. The court of appeals initially entered a decision reversing the conviction (Pet. App. D1-D16), but after the government filed a petition for rehearing, the court vacated that decision and affirmed the conviction (id. at C1-C9). 1. The evidence at trial, which is recounted in the initial opinion of the court of appeals (Pet. App. D2-D3), showed that in early 1985, the Tandy Bell & Howell company manufactured and sold a number of Memorex video cassette tapes to Memtech Products of Arlington Heights, Illinois. Memtech in turn sold the blank tapes to the K-Mart Corporation of Michigan for $4.69 per tape. Memtech arranged to ship 32,448 tapes to K-Mart via an Overnight Express semi-trailer truck. The trailer was sent to a trailer yard in South Holland, Illinois, because K-Mart was not scheduled to take delivery of the tapes until April 16, 1985. On April 15, Overnight Express employees discovered that the trailer was missing. On April 17, 1985, petitioner, a local housing contractor, informed Karen Curry, the manager of the Magic Rent-to-Own appliance store in Ypsilanti, Michigan, that he wanted her to help him sell a truckload of blank videotapes. When Curry asked whether the tapes were stolen, petitioner replied that they were not. He told Curry that he had purchased the tapes directly from the Chicago manufacturer for $1 per tape and that he possessed a bill of sale. In fact, petitioner had obtained the tapes directly from truckdriver Leroy Wesby. Petitioner told Curry that he wanted her to sell the tapes in lots of 500 for $2.75 to $3 per tape. Curry arranged for the sale of 5,000 tapes to various local retailers. Petitioner also sold 500 tapes to a local retailer for $1,500 and provided the purchaser with a receipt. Petitioner used his own name in every transaction and instructed Curry that he would be responsible for any damaged or defective tapes. Petitioner paid Curry twenty-five cents per tape for arranging the sales. The FBI subsequently contacted Curry and told her that the tapes were stolen. 2. Petitioner was arrested, together with Wesby, and was charged with possessing and selling stolen goods. As part of its effort to establish that petitioner knew the tapes were stolen, the government offered evidence that petitioner had engaged in a pattern of dealing in goods of suspicious origin. First, the government produced evidence that, about a month before the charged offense, petitioner sold approximately 40 black and white television sets to a record store owner for $28 each, and that he also offered to sell the record store owner a number of blank video cassette tapes. The government did not present any direct evidence that the television sets were stolen; instead, it relied on the inferences that could be drawn from petitioner's inability to produce a bill of sale and the unusually low price for which petitioner sold the television sets. Second, the government produced evidence that on May 1, 1985, petitioner offered to sell an undercover FBI agent 10,000 video cassette movies for $1.57 per tape and a quantity of color television sets for $200 per set. When the agent asked petitioner whether any of those items were stolen, petitioner replied either that "some are hot and some are not" or that most of the tapes "were not hot." Petitioner also offered to sell the agent a quantity of Amana refrigerators, ranges, and icemakers. The Amana appliances were part of an interstate shipment that had been reported stolen. Pet. App. D3-D4. The government disclosed its intention to present this "similar act" evidence through a pretrial motion in limine. Over petitioner's objection, the district court ruled that the evidence would be admitted. At trial, petitioner denied knowing that the goods he sold were stolen. /1/ The 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 establish petitioner's character or to establish that he acted in conformity with that character. At the conclusion of the trial, the jury convicted petitioner of possessing 500 solen video cassette tapes, but acquitted him of the charge of selling stolen tapes. See Pet. App. D12-D13 (Nelson, J., dissenting). 2. The court of appeals, by a divided vote, initially reversed petitioner's conviction. 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 the record store owner. 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. /2/ The court also held that the error of admitting that evidence was not harmless beyond a reasonable doubt. Id. at D6. /3/ 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 the 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 "preponderance 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 acts" evidence was error, Judge Nelson concluded that, under the nonconstitutional harmless error test, the admission of the television set evidence was harmless. Pet. App. D9-D16. On rehearing, the court of appeals vacated its initial judgment and affirmed the conviction. The court first held that Fed. R. Evid. 404(b) permits the 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 of 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; and he offered to sell his 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 judgment was not substantially affected by that evidence. Pet. App. C1-C9. DISCUSSION 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 provides, however, that such "similar act" evidence /4/ 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 (Pet. 6-15) that the district court misapplied Rule 404(b) in this case because it admitted evidence that petitioner previously possessed television sets obtained from Wesby without first requiring the government to show by clear and convincing evidence that the sets were stolen. 1. Petitioner correctly observes (Pet. 6-10) that there is a conflict among the courts of appeals over the standard to be applied in determining when "similar act" evidence may be admitted. In particular, the courts are divided on the issue of what standard of proof the government must satisfy as a preliminary matter in showing that the defendant committed the "other crimes" in question. The Seventh, Eighth, Ninth, and District of Columbia Circuits require the government to prove by clear and convincing evidence that the defendant committed the acts that are offered into evidence under Rule 404(b). See United States v. Leight, 818 F.2d 1297, 1302 (7th Cir. 1987); United States v. Weber, 818 F.2d 14 (8th Cir. 1987); United States v. Vaccaro, 816 F.2d 443, 452 (9th Cir. 1987); United States v. Lavelle, 751 F.2d 1266, 1276 (D.C. Cir.), cert. denied, 474 U.S. 817 (1985). The Second, Fourth, Fifth, and Eleventh Circuits have refused to require the government to meet that standard of proof before admitting "similar act" evidence. See United States v. Leonard, 524 F.2d 1076, 1090-1091 (2d Cir. 1975), cert. denied, 425 U.S. 958 (1976); United States v. Martin, 773 F.2d 579, 582 (4th Cir. 1985); United States v. Beechum, 582 F.2d 898, 913 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920 (1979); United States v. Dothard, 666 F.2d 498, 502 (11th Cir. 1982). Among the courts that have rejected the "clear and convincing evidence" test, the Second Circuit and the court below have required the government to establish the commission of the "similar acts" by a preponderance of the evidence. See, e.g., United States v. Leonard, 524 F.2d at 1091; United States v. Ebens, 800 F.2d 1422, 1432 (6th Cir. 1986); Pet. App. C4. Other courts that have rejected the "clear and convincing evidence" test have held 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, e.g., United States v. Martin, 773 F.2d at 582; United States v. Beechum, 582 F.2d at 914; see also United States v. D'Alora, 585 F.2d 16, 20 (1st Cir. 1978) (citation omitted) ("all that is needed is a showing that the evidence 'tended to logically associate appellant with that particular crime'"). The conflict among the circuits on this issue is well established and appears unlikely to be resolved without this Court's intercession. Moreover, the issue is an important one. Questions regarding the admissibility of "similar act" evidence under Rule 404(b) arise in district courts every day. The question of how the admissibility of such evidence should be determined is therefore of great practical significance to the administration of criminal justice in the federal system. For that reason, we do not oppose the petition for a writ of certiorari in this case. We believe that this case presents an appropriate opportunity for the Court to address and resolve the question of what, if any, preliminary showing the government must make in order to obtain the admission of "similar act" evidence under Rule 404(b). /5/ 2. In our view, neither the "clear and convincing evidence" test nor the "preponderance of the evidence" test has any proper role in determining the admissibility of "similar act" evidence. Neither the language of Rule 404(b) nor the policies underlying the Rule justify threshold tests of that sort that would bar relevant evidence from the jury's consideration. Rule 404(b) contains no express provision requiring a preliminary showing as to the strength of the proffered evidence. Rather, the Rule merely provides that evidence may not be admitted for the purpose of proving a person's character, in order to show that he acted in accordance with that character on a particular occasion. Except for that prohibited use, the Rule authorizes the admission of "similar act" evidence for any other purpose, subject only to the ordinary principles of relevance. United States v. D'Alora, 585 F.2d at 20; see Fed. R. Evid. 401, 403. Thus, the plain language of Rule 404(b) gives no support to the decisions that have read into the rule a requirement that when offering "similar act" evidence, the government must establish by either clear and convincing evidence or a preponderance of the evidence that the defendant committed the acts in question. Nor would the adoption of such threshold screening devices promote the policies underlying Rule 404(b). As the Advisory Committee's Note on the proposed version of Rule 404(b) makes clear, the purpose of the Rule was to ensure the admission of relevant evidence, such as "similar act" evidence, except when the evidence was offered for the prohibited purpose of showing propensity based on character, and except when the probative value of the evidence was outweighed by the danger of undue prejudice, see Fed. R. Evid. 403. Note of Advisory Committee on Proposed Rules, 28 U.S.C. App. Rule 404, at 690-691. The House and Senate Reports on the Federal Rules of Evidence both emphasized that the new rule was intended to promote the admission of "similar act" evidence and to exclude such evidence, when offered for a proper purpose, only on the grounds set forth in Rule 403. See S. Rep. 93-1277, 93d Cong., 2d Sess. 24-25 (1974); H.R. Rep. 93-650, 93d Cong., 1st Sess. 7 (1973); see also United States v. Sangrey, 586 F.2d 1312, 1314 (9th Cir. 1978); United States v. Fosher, 568 F.2d 207, 212 (1st Cir. 1978); United States v. Long, 574 F.2d 761, 766 (3d Cir.), cert. denied, 439 U.S. 985 (1978). Thus, the language and legislative history of Rule 404(b) suggests that Congress intended for the courts to treat "similar act" evidence that is offered for a proper purpose the same as any other evidence with regard to the issue of relevance. If the evidence is relevant to a material issue in the case, Fed. R. Evid. 401, and if the probative value of the evidence is not outweighed by its prejudicial effect, Fed. R. Evid. 403, it should be admitted. See Fed. R. Evid. 402. Of course, an inquiry into the logical relevance of "similar act" evidence requires the court to make a preliminary determination that there is a basis on which a jury could find that the defendant is the person who committed the act in question. There is nothing special about that kind of inquiry, however, and it is certainly not unique to cases involving Rule 404(b). To the contrary, that kind of inquiry must be made, explicitly or implicitly, in the case of every piece of evidence whose relevance is challenged at trial. For example, evidence that a person was seen running from a bank after a robbery is ordinarily not relevant in a bank robbery prosecution unless there is some basis for the jury to conclude that the person who was running was the defendant (or an accomplice). Before admitting such evidence, the court must consider whether there is any basis for the jury to conclude that the defendant was the person seen fleeing from the bank. The court must make the same inquiry in the case of "other crimes" evidence by determining whether there is any basis on which the jury could find that the defendant is the person who committed the acts in question. But that inquiry is much less exacting than an inquiry that must satisfy the "clear and convincing evidence" standard or an inquiry that must establish by a "preponderance of the evidence" that the defendant was guilty of a particular criminal act. In sum, we submit that there is no need to create a special standard of proof to be applied to "similar act" evidence, as some courts have done. The proper course for a district court in addressing "similar act" evidence is simply to determine whether there is a sufficient connection between the proffered evidence and the issues in the case to make the evidence relevant under ordinary principles of relevance. To require a court to make a finding that the defendant committed the conduct in question -- either by a preponderance of the evidence or by clear and convincing evidence -- would create a special and restrictive standard of relevance for "similar act" evidence that Congress did not intend to impose. To the extent that special protection is needed against the danger that a defendant will be prejudiced by the impact of powerful "similar act" evidence, that protection is provided by the district court's resposnsibility to balance the probative value of the evidence against its prejudicial impact under Fed. R. Evid. 403, and by limiting instructions to the jury regarding the proper uses that can be made of the "similar act" evidence. See United States v. Beechum, 582 F.2d at 911, 913-916. Because we believe that the analysis outlined above is consistent with Congress's intent when it enacted Rule 404(b), and because several courts of appeals have rejected that analysis in favor of a more restrictive approach, we believe that this Court's review of this important evidentiary issue is warranted. We accordingly do not oppose the petition for a writ of certiorari. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General THOMAS E. BOOTH Attorney SEPTEMBER 1987 /1/ In addition, Alphonse Lewis, an attorney and the owner of the "Magic Rent-to-Own" store, testified that he purchased 500 of the television sets from Wesby for resale, and that Wesby gave him a bill of lading after Lewis raised questions about the origin of the television sets. Lewis did not produce the bill of lading at trial. See Pet. App. D9-D10 (Nelson, J., dissenting). /2/ Government counsel conceded at oral argument that the government's proof of these issues did not rise to the level of being "clear and convincing." Pet. App. D6. /3/ The court responded to the government's contention that petitioner had failed to preserve the issue by holding that the admission of the television set evidence was plain error. Pet. App. D7. /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 the 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/ Although the matter is not free from doubt, we believe that petitioner has preserved this issue for review even though he did not object to the television set evidence when it was admitted at trial. The government raised the issue in a motion in limine prior to trial, and the district court ruled the evidence admissible at that time. To be sure, an objection during a pretrial hearing is often regarded as insufficient, standing by itself, to preserve an issue for appeal. See, e.g., United States v. Griffin, 818 F.2d 97, 102-106 (1st Cir. 1987); United States v. Roenigk, 810 F.2d 809, 815 (8th Cir. 1987); United States v. DiPaolo, 804 F.2d 225, 233 (2d Cir. 1986); United States v. Johnson, 767 F.2d 1259, 1270 (8th Cir. 1985); United States v. Wolfe, 766 F.2d 1525, 1526-1527 (11th Cir.), cert. denied, 475 U.S. 1066 (1985). Several courts, however, have held that general rule inapplicable where, as here, the district court's ruling on a motion in limine constitutes the definitive and final ruling on the issue; where that ruling is not affected by the evidence at trial; and where an objection at trial would be a mere formality. See Palmerin v. City of Riverside, 794 F.2d 1409, 1411-1413 (9th Cir. 1986); Sprynczynatyk v. General Motors Co., 771 F.2d 1112, 1118-1119 (8th Cir.), cert. denied, 475 U.S. 1046 (1985); American Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 324-325 (3d Cir. 1985). In light of those authorities, and because the court of appeals reached and decided the question in an opinion that will be binding in that circuit, we believe the question is properly presented, and we do not press the contention that petitioner failed to preserve his challenge to the admission of the television set evidence by failing to renew his objection to that evidence at the time it was admitted at trial.