Stephen A. Saltzburg is the Wallace and Beverley University Professor at the George Washington University School of Law in Washington, D.C. He is also a contributing editor to Criminal Justice magazine and a Section delegate to the ABA House of Delegates.

It is generally the case that prosecutors may offer evidence of uncharged crimes for any purpose other than to prove a defendant’s propensity. The general rule is the subject of this column. Thus, the cases covered by rules like Federal Rules of Evidence 413 and 414, in which prosecutors may be permitted to prove propensity, are outside its scope.
There are almost always two issues that arise when prosecutors offer evidence of uncharged crimes. The first issue is whether the evidence is offered for a permissible purpose, and the answer to this question is almost always “yes,” since there are so many possible purposes for which the evidence may be offered and it is not hard to make a colorable argument that at least one applies in every case. Federal Rule of Evidence 404(b) illustrates the point. It provides in relevant part as follows: “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, . . .” It is the rare case in which intent, knowledge, and identity all are undisputed and the defendant does not claim mistake or accident.
The second issue often is more difficult: Is the probative value of the uncharged crimes substantially outweighed by the danger of unfair prejudice? The difficulty arises because experienced judges and lawyers know that, notwithstanding a limiting instruction, jurors may have a tendency to use evidence of uncharged conduct to determine a defendant’s character or propensity, which is impermissible. The question for the trial judge, then, is whether the danger that uncharged crimes will be used for the forbidden purpose is sufficiently high to warrant exclusion of the evidence.
It seems clear that, to balance properly, trial judges must pay close attention to the factual context of each case. Small differences in facts may make a big difference when a judge assesses the probative value of uncharged misconduct.

An illustrative case: The facts
United States v. Garner, 396 F.3d 438 (D.C. Cir. 2005) is typical of many drug and gun cases. It began with police stopping an auto. Police departments in the Washington, D.C., metropolitan area had combined to form the Washington Area Vehicle Enforcement team (WAVE) to deal with the problem of stolen cars. In March 2002, acting on a report of a stolen auto, members of WAVE stopped a green car with two male occupants in southeast Washington. Troy Haywood was the driver and Robert Garner was sitting in the front passenger seat. As officers approached the car, they ordered both occupants to raise their hands. Haywood complied, but Garner continued to stare ahead and smoke a cigarette as two WAVE officers tried to force open the passenger compartment door. Officer David Moseley testified that he saw Garner remove a large, silver handgun from his waistband and put it under the passenger seat. Moseley called out to the other officers that there was a gun. Another officer, John Trainum, who was also trying to get the door open, heard Moseley’s warning. Trainum was behind Moseley, however, and testified that he could not see Garner’s left hand but observed him “going forward and back, forward and back” until “one time when he was forward and stayed forward,” which was when Moseley warned of the gun. A third officer, Danita Matthews was standing by the driver’s window. She testified that she saw Moseley “moving around” with his hands “down, in a threatening manner” before hearing Moseley’s gun warning. The officers were able to force open the passenger door. They wrestled Garner to the ground and secured him with handcuffs. With Garner secured, they searched the car and found a nine-millimeter, semiautomatic handgun under the front passenger seat and 43 plastic bags of cocaine base in a container on the driver side floorboard. Three fingerprints were found on the gun. Two were unreadable; the readable print belonged to Haywood.
The government’s allegation that Garner had the gun rested upon the testimony of Moseley that he saw the gun in Garner’s hand, and that of Trainum and Matthews that they saw Garner’s movements. If the jury doubted that Moseley saw the gun, then Haywood’s print on the gun and the discovery of the drugs under the driver’s seat might have made the case seem stronger against Haywood than Garner.
The government indicated before trial that it planned to bolster its case against Garner when it moved in limine for the trial judge to permit testimony regarding another criminal episode involving the defendant. The government planned to call U.S. Park Police Officer Robert MacLean to testify that he stopped a car in the same Washington area for a traffic violation in January 1999. Garner was seated in the front passenger seat. When he was removed, MacLean found an ammunition clip in Garner’s pocket and a loaded, semiautomatic handgun under Garner’s seat. The government also planned to prove that Garner was convicted of carrying a pistol without a license in violation of District of Columbia law.

The legal ruling
Garner objected to MacLean’s testimony and raised both issues discussed above. He first claimed that the evidence was inadmissible evidence of a prior bad act under F.R.E. 404(b). He also argued that the evidence was unfairly prejudicial under F.R.E. 403. The trial judge granted the government’s in limine motion and MacLean testified. During the trial, the judge instructed the jury that Maclean’s testimony was “only offered with respect to the issues of intent and knowledge” and the jury could use the evidence “only to help [it] decide whether the government had proved beyond a reasonable doubt that the defendant, Mr. Garner, had the intent to possess the firearm” and “that he acted knowingly and on purpose and not by accident or mistake.”

The result
The government’s sense that its case against Garner needed help proved to be correct. The jury acquitted both defendants of cocaine possession, and the judge accordingly granted a judgment of acquittal on the charge of using a firearm during a drug offense. The jury did convict Garner of being a felon in possession of a firearm.

An earlier case
On appeal, Garner claimed that the trial judge erred in admitting the F.R.E. 404(b) evidence. He relied on a number of cases, including United States v. Linares, 367 F.3d 941 (D.C. Cir. 2004), which he claimed controlled his case. In Linares, the court held that a trial judge erred in admitting evidence of an uncharged crime because it was irrelevant. Linares was also arrested after a traffic stop in which shots were fired from the car he was driving. Three eyewitnesses—two police officers and a female passenger in the car—testified that a male passenger handed Linares a gun, which he fired several times and then held out his car window and tossed away. The trial judge ruled that no instruction on constructive possession would be given, apparently because all the government testimony supported actual possession. Nonetheless, the government offered the testimony of a police officer that she arrested Linares more than four years earlier after she saw him drop a loaded gun on the ground.
On appeal, the court concluded the prior crime testimony was not admissible to prove intent, knowledge, or mistake. The court found that the “the government had no obligation to prove intent.” (367 F.3d at 948.) The court treated the government’s arguments regarding knowledge and absence of mistake as closely related. It reasoned as follows: “If the jury believed the[] eyewitnesses, then Linares possessed the gun knowingly; if it did not, then it should have acquitted based on the government’s failure to prove possession rather than its failure to prove knowledge.” (Id. at 946.) And the court concluded “for essentially the same reason” that “[g]iven the government’s evidence, no reasonable jury could have found that the government had proven possession but failed to prove absence of mistake.” (Id. at 947.) In short, the court found that, given the context of the case—overwhelming evidence of actual possession and use of the gun—another incident in which the defendant had a gun was of no probative value. Despite its ruling on the other crime evidence, the court found harmless error and affirmed Linares’s conviction for the same crime for which Garner was convicted.

Context matters: Distinguishing Linares
The court held that Garner’s case was different than Linares’s. It recognized that jurors would have had to find actual possession if they believed Moseley’s testimony, and knowledge would not have been in dispute. But the court found that the context here mattered, and that the context was very different from the facts presented in Linares. The trial judge in Garner’s case did not force the jury to choose between actual possession and no possession at all. The court decided that the trial judge reasonably might have believed the jury might discredit Moseley’s testimony. Moseley’s observations were made through a tinted window and Garner’s cigarette smoke clouded the passenger compartment. The jury might still have convicted Garner of constructive possession. But to do so it would have to decide whether Garner knowingly was in a position to exercise dominion over the firearm. The uncharged crime evidence was therefore relevant.
Ironically, the court’s holding is that the evidence was properly admitted as relevant to prove constructive possession, even though the government chose to put its theory of actual possession to the jury and not to request an instruction on constructive possession. Because constructive possession “was not only viable under the facts but also still in play” when the trial judge ruled, the ruling that the evidence was probative was correct at the time it was made. (396 F.3d at 445.) The court did not have to rule on whether or not the trial judge should have granted a motion to strike the evidence at the conclusion of the government’s case.

Conclusion
Three lessons can be learned by comparing Linares and Garner.
1. The admissibility of uncharged criminal acts may turn on the context in which the evidence is offered. Similar evidence may be admissible in one case where knowledge or intent is disputed and inadmissible in a similar case in which it is clear that the elements are not disputed. The other crime evidence was similar in Linares and Garner, but, in context, was irrelevant in the former and potentially important in the latter.
2. In reviewing a trial judge’s ruling on other crime evidence, an appellate court will consider the issues in play at the time of the ruling. The fact that the government ultimately decides to rest its case on a single theory, even though another is available, does not render a decision admitting evidence on the other available theory erroneous.
3. When uncharged crimes are admitted but the theory to which they lend the most support is abandoned, the probative force of the evidence may be lost. Had the government argued constructive possession at the end of the case in Garner—either in lieu of or in addition to actual possession—the prior, similar incident of possession might have won the day. Once the government abandoned constructive possession, the jury apparently found that the prior incident shed little light on actual possession.

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