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The Past Can Catch Up With You: Rule 404(b) and a New Trial In North Dakota

I spend a decent amount of time talking to people who have been charged with a crime. Perhaps more than most people. It is amazing how many people’s understanding of the law differs from what the law actually is.

The double jeopardy clause may be the part of the criminal law least understood by people who are not in the criminal justice system. The double jeopardy clause prevents the federal government, or a state government, from prosecuting you twice for the same crime.

Here are some things that the double jeopardy clause does not prevent:

  • Being prosecuted in a federal court for the same conduct that was in a state case.
  • Having a higher sentencing guidelines range because of a prior conviction
  • The government telling the judge at sentencing that you have a prior conviction
  • Having a higher mandatory minimum because of a prior conviction
  • The jury in a case being told about your prior conviction

That last one is hard. The double jeopardy clause doesn’t prevent the government from telling the jury about a person’s prior conviction for a similar crime.

That doesn’t mean, of course, that a prosecutor’s ability to tell the jury about a prior conviction is boundless. It is bounded by Federal Rule of Evidence 404(b).

Rule 404(b) says that a prior bad act, like a criminal conviction, can be presented to a jury as long as it isn’t being presented just to prove that the person on trial is a bad person, but, rather, that he or she has “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident”.

In an outlier case, this rule makes some sense – if a guy was previously convicted of committing a murder while wearing a pink prom dress, and is on trial again for committing a new murder in a pink prom dress, we can probably agree that the jury may find his prior pink prom dress murder particularly helpful. The government isn’t introducing the evidence just to make him seem like a bad guy, but like a very particular kind of pink-prom-dress-murdering bad guy.

The way the rule is written is slippery though. The Eighth Circuit’s recent case, United States v. Williams, shows how slippery this can be.

Mr. Williams was on trial for drug distribution. He had a prior conviction for drug distribution. The government wanted to tell the jury about his prior conviction to prove that he knew how being a drug dealer worked. Knowledge, of course, is a reason to introduce evidence under 404(b).

This let the government go hog wild on Williams knowledge of the drug dealing life. The facts of the case (see for yourself in the opinion) don’t really show that Williams needed to know much more than what a regular viewer of The Wire would know. Yet Rule 404(b) let the government tell the jury over and over again – “mark[ing] Williams as a previous drug dealer.”

The district court, thankfully, found that the government went too far. They were simply tarring Williams with his past conviction. Sadly, this district court may be an outlier. Rule 404(b) is routinely stretched to allow any kind of prior criminal conduct that was related in almost any way to go to a jury.

 

* And, by the way, kudos to the district court for having the humility to correct a prior mistake. Though, he’s not in the Sixth Circuit.

  • As bad as the courts have made Rule 404(b), at least it’s not Texas, see Mean But Stupid
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If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

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One response to “The Past Can Catch Up With You: Rule 404(b) and a New Trial In North Dakota”

  1. Jamison says:

    One of my favorite U.S. Supreme Court cases is Ashe v. Swenson, 397 U.S. 436 (1970). Ashe holds that collateral estoppel is encompassed within the notion of double jeopardy, thereby expanding the protection of the Double Jeopardy Clause considerably.