United States v. Crowder

United States Court of Appeals for the District of Columbia Circuit · 1996 · Evidence

87 F.3d 1405 (D.C. Cir. 1996)

Updated August 22, 2026

EvidenceRule 404(b)Prior bad actsFederal Rule of Evidence 404(b)Federal Rule of Evidence 403intentknowledgepossession with intent to distribute

Facts

Davis was charged with possession with intent to distribute and unlawful distribution of crack, and his defense was mistaken identity; he offered before and during trial to concede that whoever possessed the drugs knew they were drugs and intended to sell them, but the district court admitted evidence of three prior cocaine sales to show knowledge and intent. Crowder was charged with possession with intent to distribute crack and heroin, and his defense was that he never possessed the drugs; he offered to concede every element except possession, but the district court admitted evidence of a later drug sale to show intent to distribute and knowledge of drug dealing. In both cases the challenged evidence was extrinsic bad acts evidence under Rule 404(b). The appeals focused on whether those concessions removed the relevant issues from the case for Rule 404(b) purposes.

Issue

When a defendant in a § 841(a)(1) prosecution unequivocally offers to concede intent and/or knowledge and agrees to a jury instruction that the government need not prove those elements, may the government still introduce prior bad acts evidence under Rule 404(b) to prove those conceded elements? In Crowder's case, the court also considered whether the evidence could be admitted for another non-propensity purpose and how that affected Rule 403 balancing.

Rule

Where a defendant unequivocally concedes intent and knowledge and accepts a jury instruction making clear that the government need not prove those elements, bad acts evidence offered solely to prove those conceded elements is inadmissible under Rule 404(b) because it has no remaining value except propensity. The concession must be unequivocal, must not later be undermined, and must be accompanied by an instruction clearly limiting the jury to the contested element or elements. If bad acts evidence is offered for some other permissible non-propensity purpose tied to a contested matter, it may still be considered under Rule 404(b), but Rule 403 balancing may not credit probative value as to conceded elements.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a federal drug case in Detroit, Malik Sorrell is charged with possession with intent to distribute methamphetamine. Before trial, Malik states in writing that if the jury finds he possessed the substance, he concedes he knew it was methamphetamine and intended to distribute it, and he agrees to a jury instruction that the government need prove only possession; the government offers evidence of Malik's earlier meth sale solely to prove knowledge and intent.

Should the trial judge admit the earlier sale evidence?

Explanation. Under the majority rule, bad-acts evidence offered solely to prove conceded elements is inadmissible when the defendant unequivocally concedes those elements and accepts a clear jury instruction that the government need not prove them. At that point, the evidence has no legitimate Rule 404(b) purpose left and serves only a forbidden propensity function.