Did You Notice That?: Eighth Circuit Notes That Rule 404(b)’s Notice Requirement Doesn’t Apply To Intrinsic Evidence

March 8, 2010

Federal Rule of Evidence 404(b) provides that

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, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

It is well established, however, that the pretrial notice requirement of the Rule only applies to extrinsic evidence, not intrinsic evidence, a point driven home by the Eighth Circuit in its recent opinion in United States v. Washington, 2010 WL 743919 (8th Cir. 2010).

In Washington, Burl Washington was convicted of two counts of distribution of a controlled substance resulting in the death of another person and two counts of distribution of a controlled substance. The person who died as the result of Washington’s alleged distribution of a controlled substance was Justin Knox. At trial, the prosecution presented evidence establishing not only that Washington sold Knox the drugs that led to his death but also that Washington had sold drugs to Knox in the past.

According to the district court, the evidence of these other drug transactions was admissible under Federal Rule of Evidence 404(b) because it “‘provid[ed] the context in which the charged crime[s] occurred,'” and was, thus, admissible in order to ‘complete[ ] the story or provide[ ] a total picture of the charged crime[s].'” In other words, it was admissible for purpose of narrative integrity.

After he was convicted, Washington appealed, claiming, inter alia, that the prosecution failed to provide him with reasonable pretrial notice of evidence of his other drug sales to Knox. According to the Eighth Circuit, however, “[t]he district court did not violate Rule 404(b), plainly or otherwise, by admitting this evidence because it does not fall within the confines of the rule

Rule 404(b), which governs the admission into evidence of wrongful conduct other than the conduct at issue, applies only to extrinsic and not to intrinsic evidence. Evidence of other wrongful conduct is considered intrinsic when it is offered for the purpose of providing the context in which the charged crime occurred. Such evidence is admitted because the other crime evidence completes the story or provides a total picture of the charged crime.”

In other words, because evidence of Washington’s prior drug sales to Knox was offered for the purpose of providing the context in which the charged crime occurred: “how Washington became Knox’s drug dealer.”

-CM