PAUL A. MILLER, PETITIONER V. UNITED STATES OF AMERICA No. 89-7136 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-18a) is reported at 895 F.2d 1431. JURISDICTION The judgment of the court of appeals was entered on February 6, 1990. The petition for a writ of certiorari was filed on April 6, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether evidence of a defendant's prior crimes is admissible under Federal Rule of Evidence 404(b) if the evidence is probative of a witness's state of mind and the witness's state of mind is a material issue. 2. Whether, if such evidence is admissible under Rule 404(b), the court of appeals correctly concluded that the testimony of two witnesses concerning petitioner's prior crime and incarceration did not require reversal in this case. STATEMENT Following a jury trial in the United States District Court for the District of Columbia, petitioner was convicted on one count of conspiring to defraud a financial institution, in violation of 18 U.S.C. 371, and one count of defrauding a financial institution, in violation of 18 U.S.C. 1344. He was sentenced to consecutive terms of one to three years' imprisonment on each count. The court of appeals affirmed. Pet. App. 2a-3a, 6a & n.6. 1. The evidence at trial established that petitioner's girlfriend, Myrna Mann, who was a secretary at a Washington bank, embezzled $37,000 from the bank by preparing six forged cashier's checks. Mann testified that petitioner coerced her into furnishing forged checks by threatening to harm her and her four-year-old son. Petitioner and his brother also recruited payees to cash checks for them in return for a fee. Pet. App. 3a; Gov't C.A. Br. 2-8. On the first day of trial, the government informed the court that it intended to elicit testimony from Mann concerning petitioner's prior conviction and incarceration for robbery. Petitioner's counsel objected to the proposed testimony as irrelevant and prejudicial; the government argued that it was necessary to support Mann's claim that she had been coerced into participating in the check-forging scheme. The court ruled that it would allow Mann to "testify that she was being threatened, and that she knew that (petitioner) had a prior criminal record and had served time, without going into the specific offense." Pet. App. 4a. In accordance with this ruling, Mann testified that shortly after she met petitioner, he told her "that he had just gotten out of prison from a previous offense that he had committed." Id. at 4a n.3. The government also called as a witness Tracie Barnes, the payee of one of the forged checks, who testified that she agreed to cash the check for petitioner in exchange for $2,000 -- one fourth of the value of the check. At the conclusion of the government's direct examination, the court asked Barnes whether petitioner had told her why he wanted her to cash the check. The prosecutor then approached the bench and informed the court that Barnes would probably testify that petitioner had told her that he had recently been released from prison and that she assumed he had not had an opportunity to open a bank account. Over the objection of petitioner's counsel, the court ruled that this testimony was admissible, reasoning that there was no danger of unfair prejudice since evidence of petitioner's prior conviction was already before the jury, and that "the jury is entitled to know why a total stranger would go and handle a cashier's check." Barnes testified that petitioner had "mentioned he had just gotten out of jail" and that she had surmised that he had not yet opened a checking or savings account. Pet. App. 5a-6a; Gov't C.A. Br. 7-8. Petitioner did not present any evidence at trial. Through argument and cross-examination of the government's witnesses, petitioner's attorney sought to convince the jury that Mann had devised the check-forging scheme herself and had falsely implicated petitioner as part of a plea bargain with the government. Pet. App. 3a; Gov't C.A. Br. 8. 2. On appeal, petitioner contended that the district court erred in admitting evidence of his prior conviction and incarceration. Petitioner maintained that Federal Rule of Evidence 404(b) permits admission of evidence of prior crimes only if the evidence relates directly to the conduct or state of mind of the defendant. /1/ The court of appeals rejected this contention and applied the settled standard for "analyzing the admissibility of evidence of prior criminal convictions and other 'bad acts,'" as set forth in Huddleston v. United States, 485 U.S. 681, 685-688 (1988). Pet. App. 6a-7a. That two-part standard requires consideration, first, of whether the "'evidence is probative of a material issue other than character'"; if so, the evidence is not barred by Rule 404(b). Pet. App. 7a. Second, even if the evidence is not barred by Rule 404(b), the evidence nonetheless remains subject to the "'general strictures limiting admissibility,'" including Rule 403; /2/ it thus may be prohibited if its probative value is "substantially outweighed" by potential prejudice. Pet. App. 7a. The court of appeals then applied this test to the testimony of the two witnesses. With regard to Mann, the court concluded that her testimony regarding the conviction and incarceration was not barred by Rule 404(b) because it was admitted to "lend credence to (her) claim that she feared for her safety if she did not comply with (petitioner's) demands for bogus checks"; her "state of mind was relevant to her credibility, a material issue in the case by virtue of (petitioner's) own trial strategy." Pet. App. 7a-8a. The testimony also was not prohibited by Rule 403 because it was within the trial court's discretion to conclude that the probative value outweighed any possible prejudicial impact -- the trial strategy adopted by petitioner's attorney "put Mann's credibility in issue, creating a need to bring Mann's awareness of (petitioner's) conviction to the jury's attention," and "knowledge of the bare fact that (petitioner) had previously been in jail" was unlikely to have a strong prejudicial impact on the jury. Pet. App. 10a-11a. With regard to Barnes, the court ruled that the testimony regarding petitioner's statement that he had been released from jail should not have been admitted. The court concluded that, under Rule 404(b), it was difficult to connect Barnes' "awareness of (petitioner's) record with any material issue in the case"; under Rule 403, moreover, the probative value of the evidence of petitioner's prior conviction was "infinitestimal," and, because it "had so little probity," the district court had abused its discretion in admitting the testimony. Pet. App. 12a-13a. Applying the D.C. Circuit's standard for evaluating the effect of an erroneous evidentiary ruling, the court determined that the error was harmless -- "(t)he strength of the Government's case against (petitioner) was overwhelming"; two other witnesses besides Barnes also testified regarding "their agreement to cash bogus checks supplied by" petitioner; petitioner "put on no defense"; and "the issue of whether Barnes acted innocently" was not central either to Barnes' testimony or to the case against petitioner generally. Pet. App. 13a. /3/ ARGUMENT Petitioner renews his contentions that Rule 404(b) bars evidence of a defendant's prior crimes for any purpose other than the defendant's state of mind or conduct, and that, if such evidence is admissible for another purpose, the court of appeals' analysis of the role of that evidence in this case is erroneous. Neither contention is well-founded, and neither requires review. 1. Petitioner first contends (Pet. 8-11) that the court of appeals' ruling that evidence of prior crimes may be admitted to show a witness's state of mind conflicts with two decisions of the Fifth Circuit, in which that court held that Rule 404(b) permits the admission of evidence of prior bad acts only where that evidence is relevant to the defendant's conduct or mental state. See United States v. Hernandez, 750 F.2d 1256 (5th Cir. 1985); United States v. Wesevich, 666 F.2d 984 (5th Cir. 1982). The narrow view of the admissibility of evidence of prior bad acts under Rule 404(b) that was adopted in Hernandez and Wesevich is inconsistent with this Court's subsequent decision in Huddleston v. United States, 485 U.S. 681 (1988). Accordingly, the court of appeals correctly determined that the Fifth Circuit's decisions, which were decided before the Huddleston decision, are not "in keeping with the structure of the Federal Rules generally and with Rule 404(b) in particular." Pet. App. 10a. As this Court explained in Huddleston, Rule 404(b) "protects against the introduction of extrinsic act evidence when that evidence is offered solely to prove character." 485 U.S. at 687. Thus, in determining whether evidence of prior crimes is admissible under Rule 404(b), the court must first determine "whether that evidence is probative of a material issue other than character." Id. at 686. If the evidence is "offered for such a proper purpose," it is then "subject only to general strictures limiting admissibility such as Rules 402 and 403." Id. at 688. Because Mann's testimony concerning petitioner's statement regarding his prior conviction and incarceration was relevant to "a material issue other than character" -- her credibility -- it was offered for a "proper purpose" under Rule 404(b). /4/ The contrary view taken in Hernandez and Wesevich, which interpret Rule 404(b) as limiting the admission of evidence of other crimes even when that evidence is not offered to prove criminal propensity, cannot survive this Court's decision in Huddleston. Accordingly, petitioner's reliance on these decisions is misplaced, and his suggestion that the court of appeals' decision in this case creates a conflict warranting review is incorrect. /5/ 2. Petitioner also argues (Pet. 11-17) that the court of appeals erred in ruling that the probative value of Mann's testimony outweighed any danger of unfair prejudice and in concluding that the admission of Barnes' testimony was harmless error. These fact-bound contentions do not merit review by this Court, and, in any event, are not well founded. As the court of appeals noted, the central theme of petitioner's defense was that Mann had fabricated her story about having been threatened by petitioner in order to "cut a deal with the United States Attorney's office to attempt to save herself." Pet. App. 10a. Thus, evidence of Mann's awareness of petitioner's criminal record was essential to support her claim that she had been coerced into participating in the check-forging scheme. The probative value of this evidence outweighed any prejudice resulting from the jury's being informed, without elaboration, that petitioner had been incarcerated following an earlier conviction. /6/ Finally, the court of appeals correctly concluded that any error in the admission of Barnes' testimony concerning petitioner's incarceration did not warrant reversal. This testimony was an insignificant part of the government's case against petitioner, which the court described as "overwhelming." Pet. App. 13a. Accordingly, the district court's admission of the disputed testimony clearly did not have a "'substantial and injurious effect or influence in determining the jury's verdict,'" United States v. Lane, 474 U.S. 438, 449 (1986), and was at most harmless error. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. JOHN G. ROBERTS, JR. Acting Solicitor General /7/ EDWARD S.G. DENNIS, JR. Assistant Attorney General NINA GOODMAN Attorney JULY 1990 /1/ Federal Rule of Evidence 404(b) provides: 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. /2/ Federal Rule of Evidence 403 provides: Although 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. /3/ Petitioner also argued that the district court erred in failing to give a limiting instruction after admitting testimony concerning his prior conviction. The court of appeals rejected this argument, noting that petitioner's attorney had not requested such an instruction and that the record strongly supported the inference that the attorney had made a tactical decision to forego a limiting instruction in order to avoid focusing the jury's attention on the evidence. Pet. App. 14a-15a. /4/ See United States v. Foster, 889 F.2d 1049, 1053 (11th Cir. 1989) (evidence of prior drug transaction was necessary to explain witness's willingness to participate in charged transaction); United States v. Scarfo, 850 F.2d 1015, 1020-1021 (3d Cir.) (evidence of defendant's participation in murders was admissible to establish credibility of government's witnesses), cert. denied, 109 S. Ct. 263 (1988); United States v. Stockton, 788 F.2d 210, 219 n.15 (4th Cir.) (witness's grand jury testimony concerning threats by defendant's wife and associates could be used to impeach witness's inconsistent testimony at trial; impeachment of a witness "qualifies as a permissible purpose for the introduction of other crimes" under Rule 404(b)), cert. denied, 479 U.S. 840 (1986). /5/ Petitioner's assertion (Pet. 10 n.9) that Huddleston supports his claim is also mistaken. Petitioner ignores this Court's statement in Huddleston that "(t)he threshold inquiry * * * is whether (the) evidence is probative of a material issue other than character." 485 U.S. at 686 (emphasis added). Cf. Pet. App. 7a (emphasizing this statement from Huddleston); Scarfo, 850 F.2d at 1019 (same). In contrast to petitioner's suggestion that "the underlying rationale of the rule" (Pet. 9) requires a restrictive reading of its scope, moreover, this Court specifically concluded, based on a review of the pertinent legislative history, that "Congress was not nearly so concerned with the potential prejudicial effect of Rule 404(b) evidence as it was with ensuring that restrictions would not be placed on the admission of such evidence." 485 U.S. at 688-689. /6/ Petitioner asserts (Pet. 14-15) that the prejudicial effect of Mann's testimony was exacerbated by what petitioner asserts was the prosecutor's implicit reference to it in the rebuttal closing argument. As the court of appeals held, "the Government's statement responded expressly to (petitioner's) closing argument, which repeatedly voiced doubt concerning Mann's testimony. * * * By pressing the issue in his closing, (petitioner) invited the Government's implicit reference to his conviction, * * * a reminder consistent with the purpose for which the trial court properly admitted the evidence in the first instance." Pet. App. 11a. See also United States v. Young, 470 U.S. 1, 12 (1985) (in reviewing propriety of prosecutor's comments, court must "take into account defense counsel's opening salvo"). Petitioner also emphasizes (Pet. 15) that the court of appeals did not give a limiting instruction; as the court of appeals determined, however, petitioner did not request a limiting instruction, and the failure to give such an instruction sua sponte was not erroneous. Pet. App. 14a-15a. /7/ The Solicitor General is disqualified in this case.