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December 1998 RICO Report By Barry Tarlow Barry Tarlow is a nationally prominent criminal defense lawyer practicing in Los Angeles, CA. He is a frequent author and lecturer on criminal law. He was formerly a prosecutor in the United States Attorney's Office and is a member of The Champion Advisory Board. The author wishes to thank Blair Berk and Kevin Jon Heller, members of his firm, for their invaluable assistance in the preparation of this column. L'Affaire Czuprynski Revisited Many of our readers are familiar with the travails of Edward M. Czuprynski, the Bay City, Michigan criminal defense lawyer who suffered a 1992 federal indictment and later spent over seven and a half months in custody while fighting his politically driven prosecution for possession of the equivalent of two joints of marijuana. In 1994, and again in 1995, this column awarded Czuprynski's prosecution "Hall of Shame" awards (see, Rico Report, The Champion, Aug., 1994; Sept./Oct., 1995), based on the federal government's unprecedented sanctioning and adoption of local prosecution and law enforcement efforts to smear Czuprynski -- based on old animosities and grudges among prosecutors and judges in the Bay City community. The federal indictment of Czuprynski for 1/28th of an ounce of marijuana was, at the time, possibly the first federal indictment of an individual charged with possession of such a small amount, not involving either an arrest on federal property or at an international border crossing. See, United States v. Czuprynski, 8 F.3d 1113 (6th Cir. 1993). The facts leading to Czuprynski's original indictment were themselves shocking. In March 1992, a local Bay City assistant prosecutor, Tim Kelly, began to investigate drug allegations against Czuprynski, brought to his attention by a disgruntled young lawyer in Czuprynski's firm. Based solely on the affidavit of the fired former employee, the local prosecutor unsuccessfully approached two different magistrates seeking approval for the issuance of a search warrant. The third time became the charm when a magistrate signed off on a search warrant for Czuprynski's home and office on suspicion that he was smoking and storing marijuana in his home and office. Id. at 1116. Although the subsequent raid revealed the small amount of marijuana, even the local police department declined to involve themselves in the matter because they knew it was a "politically driven case," as described by one state trooper in charge of the original investigation. Id. at 1116. The Bay County prosecutor at the time, George Mullison, referred the case, however, to an Assistant U.S. Attorney in the same jurisdiction, who had served as one of Mullison's assistant prosecutors in Bay City. In fact, Phillip Boes, the last magistrate of the three approached who was willing to sign the search warrant was later revealed to have been previously employed as a Bay County purchasing agent under the tenure of Ed Czuprynski when he served as an elected County Auditor. Unfortunately, Czuprynski had tried to get Boes fired -- something the Sixth Circuit Court of Appeals panel noted in its published decision when it eventually ruled on this case. Id. at 1115. Following a federal trial on the marijuana charge -- in which all manner of hearsay evidence about Czuprynski's beliefs and social conduct was wrongfully admitted -- along with other questionable evidence -- he was convicted of possessing 1.6 grams of marijuana on September 29, 1992. When sentenced in January 1993, the federal judge in the case, the Honorable Robert H. Cleland of the Eastern District of Michigan's Northern Division, actually rejected Federal Sentencing Guidelines which limited the sentence to a six-month term, and upwardly departed, sentencing Czuprynski to 14 months in federal prison. Although Judge Cleland was forced to concede at the sentencing hearing that none of Czuprynski's actions materially hindered any aspect of the criminal investigation against him, Judge Cleland enhanced the base offense level by two points for obstruction of justice. The stated rationale to more than double the maximum sentence under the guidelines was in part based on Czuprynski's previous acquittal in 1983 on a state charge of possession of marijuana, and in part due to what appeared to be Czuprynski's lawful invocation of his right to defend himself: "Earlier in the pendency of this matter, the defendant began a practice of spelling out extended and detailed objections to conditions of reporting in a letter-writing program directed at the pre-trial services officer." Statement on Sentencing Guidelines and Departure at p. 3. (United States v. Czuprynski, 1/5/93 Sentencing Memorandum). Further humiliation for the accused lawyer followed when he was denied bail and remanded pending appeal. The Court of Appeals conducted oral arguments in July 1993, and the panel expressed its dismay at the seemingly harsh treatment of Czuprynski, with one judge even commenting that "everything about this case has a distinct bad odor." The panel found that the original search warrant in the case was devoid of probable cause on its face. Underscoring both the staleness of Czuprynski's prior conviction and the staleness of the probable cause allegations, the court also emphasized the lack of trustworthiness of statements by a disgruntled former employee, on which the affidavit supporting the search warrant was largely based. Czuprynski, 8 F.3d at 1115-16. The panel also concluded that Leon's good faith exception was not applicable, because the search warrant was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. at 1118. Part of the shameful abuse of power exercised in this case also apparently emanated from the bench. Between the time of oral arguments in the first appeal before the Sixth Circuit and the reversal of his conviction by the panel on November 9, 1993, Czuprynski was forced to run a tortuous gauntlet in attempting to comply with Machiavellian restrictions imposed by U.S. District Judge Robert Cleland and local pre-trial service officers on the terms of his release pending appeal. Although minutes after oral argument before the Sixth Circuit, the panel considering the case had already issued a sua sponte order directing Czuprynski to be immediately released from prison, Judge Cleland took it upon himself to broadly expand the Court of Appeals' one bond condition -- "submission to urinalysis every 21 days." In his interpretation of the Court of Appeals' one condition for release pending retrial, Judge Cleland ordered that Czuprynski refrain from "all use and possession of alcohol in any consumable form, and avoid any place which dispenses alcohol for consumption on the premises, and the company of any person who is in possession of or affected by the use of alcohol." In a hearing in March 1994 requesting that the alcohol restriction be lifted on his bond, the prosecution went so far as to call a DEA expert, who testified about ongoing surveillance at local taverns and restaurants while Czuprynski met with his accountant. When Czuprynski attempted through the Freedom of Information Act (FOIA), to obtain discovery regarding what was revealed by the DEA's ongoing surveillance of him, the DEA astonishingly resisted disclosing its file. Although a standard condition of bond is to avoid excessive use of alcohol, Czuprynski was clearly being held to a different standard. Threatening to send him back to prison if he was seen in or around any local pub, Judge Cleland even went so far as to forbid him from attending an upcoming wedding reception. What originally merited Czuprynski receiving an unprecedented second "Hall of Shame" award was the fact that shortly after the Sixth Circuit panel reversed his conviction, an en banc majority of the court reinstated the conviction, concluding that the local law enforcement officers could have reasonably believed in the sufficiency of the warrant. In an Alice-in-Wonderland-like decision, the majority of the en banc court found the disgruntled former employee whose statements were the basis of the search warrant affidavit to be credible, in large part because she admitted her own extensive drug problems in her affidavit. See, United States v. Czuprynski, 46 F.3d 560, 564 (6th Cir. 1995)(en banc). The majority also reasoned that since the former employee was also a lawyer, she could somehow be trusted because as an officer of the court, she appreciated her legal duty to be forthright and honest. Id. at 564. Apparently one of the few times a presumption of honesty is given to a criminal defense lawyer is when they assist the prosecution's case. While conceding that there was a 13-year-old dispute with the issuing magistrate who signed off on the warrant involving Czuprynski's attempt to previously fire the magistrate, 11 of the judges reconsidering the case en banc determined that this was "too remote to demonstrate partiality on the part of Magistrate Boes." Id. at 564. The en banc court failed to address the larger issues of the case -- namely why the matter ever became a federal prosecution in the first instance. Czuprynski's original conviction led to the imposition of an upward departure without any plausible or legitimate rationale. His license was suspended for 51 weeks, and he was imprisoned without bail for more than seven months while fighting his first appeal. All of this in the face of what everyone agreed would have been a minor misdemeanor without bar sanctions, had the state proceeded with the prosecution. The four judges dissenting in the en banc opinion characterized the federal government's unprecedented prosecution of Czuprynski for essentially two joints, as "vindictive pettiness gone amuck." It was clear to dissenting Judge Boyce Martin, that the investigating officer in this case was "being taken advantage of by the local prosecutors who clearly, along with Czuprynski's former employee, intended to do whatever they could to remove him from his law practice." Czuprynski, 46 F.3d at 567-68 (Martin, J., dissenting). Although the en banc majority upheld the original search under Leon, it referred six remaining issues back to the original panel of three judges for determination. On August 31, 1995, the original three judge panel issued the final deathblow to this scurrilous and shameful conviction. In re Czuprynski, 73 F. 3d 361 (6th Cir.1995) (No full text publication pursuant to Rule 24). Since the ending had not previously been discussed in this column, it seemed appropriate to revisit this sordid tale. The introduction to that opinion, reversing and dismissing the case with prejudice, condemned both the lack of evidence and the waste of taxpayer dollars: "Despite the meager amount of marijuana that he allegedly possessed, Czuprynski was sentenced to a one year, two month term of imprisonment. The facts of his case have been rehashed beyond repeating; the case itself has occupied untold judicial resources." Id. Finding there was not sufficient evidence to support proof of the elements of the offense, the majority also recognized that the evidence admitted at Czuprynski's trial amounted to calculated character assassination:
The abuse of power and the resources of the federal government to pursue one criminal defense lawyer is a troubling reminder of the danger faced by those who have chosen to defend the citizen/accused. Exonerated after years of ordeal, Czuprynski has been placed in the unenviable position of having to rebuild both his law practice and his life. Sadly, the taint to his reputation in his own community because of this shameful prosecution may never be fully repaired. RICO Wiretap Implodes Because Previous Electronic Surveillance Was Not Disclosed Previous RICO Reports have discussed cases in which courts have suppressed evidence obtained through electronic surveillance, on the ground that the government violated Title III's "necessity" requirement, which mandates a demonstration that "normal investigative procedures have been tried and have failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. 2518(1)(c); see RICO Report, The Champion (Mar., 1998; May, 1998; Aug., 1998). In an interesting variation on those cases, Judge Marilyn Hall Patel, Chief Judge of the Northern District of California, recently suppressed evidence obtained through electronic surveillance on the ground that the government violated Title III's "previous applications" requirement, which requires the government to make:
The case, United States v. Luong, CR-94-0094 MHP, involves a long-term government investigation into the activities of John That Luong, aka "Johnny New York." According to the government, Luong has been the head of a vast Mafia-like organization engaged in drug trafficking, weapons dealing, immigrant smuggling, and credit-card counterfeiting since the early 1990s. Luong and a number of his associates are currently charged with RICO conspiracy, a violation of 18 U.S.C. 1962, Hobbs Act conspiracy, a violation of 18 U.S.C. 1951, conspiracy to distribute and distribution of heroin, a violation of 21 U.S.C. 746, 841(a)(1), and aiding and abetting, a violation of 18 U.S.C. 2. On January 12, 1996, Judge Edward R. Korman of the Eastern District of New York issued an order authorizing the interception of communications to and from two telephones, known as the "Rego Park telephone" and "Gerald Court telephone." The order was based on an application of the United States and a 39-page affidavit executed by a special agent of the FBI, Redentor Nucum ("SA Nucum"). The affidavit identified eight potential interceptees: Guo Ren Chan, Huan Xin Li, Chung Yiu Chang, John Doe One (aka "Ah Tong"), Jenny Cheung, John Doe Two (aka "Ah Yong"), Bing Fen Chen, and Bing Yi Chen. Prior to trial, the defendants in Luong who had not already pled guilty -- represented by such luminaries of the defense bar as Michael Stepanian, David Dratman, Chris Cannon, Peter Robinson, and Randy Sue Pollock -- argued that the evidence obtained through the interception order had to be suppressed because the government's application failed to satisfy Title III's "previous applications" requirement. The affidavit did state that Huan Xin Lee had been identified in earlier applications in California, and that conversations involving Guo Ren Chan and Huan Xin Li had been intercepted by those wiretaps. The affidavit also stated, however, that "[a] check of the FBI and Drug Enforcement Administration ("DEA") electronic surveillance indices found no other applications to intercept wire, oral or electronic communications over the SUBJECT TELEPHONES, or of the SUBJECT INDIVIDUALS, except as set forth below." The latter statement, it turns out, was patently false. As Peter Robinson, defendant Chinh Quoc Pham's lawyer, was able to demonstrate at the evidentiary hearing on the defendants' motion to suppress -- an extremely well-crafted legal analysis authored by Jason Solotaroff, a former federal public defender in Manhattan -- the affidavit failed to disclose, inter alia: (1) that on October 5, 1995, Huan Xin Li was named in a wiretap application for a cellular phone; (2) that on November 6, 1995, Bing Yen Chi was named in a wiretap application for a cellular phone; (3) that on November 22, 1995, Bing Yen Chi was named in a wiretap application for a residential phone; and (4) that on November 22, 1995, the government applied for interception orders for the digital pagers being used by Huan Xin Li and Bing Yi Chen. The prosecution did not dispute that the affidavit used to obtain the interception order for the Rego Park and Gerald Court telephones contained these omissions. Instead, the prosecution argued that the omissions were negligent, not intentional, because they resulted from SA Nucum's lack of familiarity with the requirements of Title III. The defense, by contrast, argued that SA Nucum was not simply negligent, but acted with reckless disregard for Title III's "previous applications" requirement. Judge Patel agreed with the defense, concluding that "the facts of the case clearly demonstrate both individual and institutional recklessness." Order at 10. The judge called attention to a number of facts demonstrating SA Nucum's individual recklessness. First, SA Nucum testified that although he had never received any training regarding Title III in his six years as an FBI agent and had never before been the case agent on a Title III warrant, he did not read the statute or the relevant portions of the FBI manual before submitting his affidavit. As a result, he submitted only a partial Elsur (electronic surveillance) request for the Gerald Court telephone, requesting an Elsur check only on the subscriber to the phone, Jenny Cheung, on the subscriber to the utilities, Bing Fen Chen, and on the address and phone numbers themselves -- not on all of the persons named in the application as potential intereceptees, even though probable cause for the wiretap came from several of those interceptees. Moreover, SA Nuc um failed to reveal in his affidavit that there was, in fact, an Elsur intercept record for Jenny Cheung. Second, and even more egregious, SA Nucum failed to make any Elsur request for the Rego Park telephone, despite knowing at that point in the investigation that such a request was required, and despite the fact that making an Elsur request consisted simply of sending a one and a half page teletype from the field office to the FBI headquarters in Washington, D.C. As Judge Patel pointed out, "[i]t was clearly reckless behavior for an FBI agent to do something he knew he was required to do, and then chalk it up to the speed with which the investigation was moving." Order at 10 (emphasis in the original). Third, SA Nucum misrepresented to Judge Korman that a review of FBI and DEA indices on both the Gerald Court and Rego Park telephones had been conducted. Indeed, he admitted the falsity of that statement under oath during the evidentiary hearing. Judge Patel also pointed out that there was considerable institutional recklessness regarding the government's application for the wiretap order. First, "[a]ccording to SA Nucum, despite the availability of the applicable statutes, a detailed FBI manual, and a checklist [of required procedures], his office chose to deal with important matters regarding Title III warrants solely by having agents talk to other agents" about how to apply for an order authorizing electronic surveillance." Order at 11. That policy greatly disturbed Judge Patel; she commented during the evidentiary hearing that "it is appalling that the agency and, perhaps, the agency who has the greatest responsibility for discharging the duties under Title III . . . finds that [it] is too busy, or whatever, to do the requisite training for Title III," Tr. 87, and she stated in her order that "[i]f SA Nucum is correct about how his field office conducts matters, the court shudders to think of what errors may be committed by agents less experienced than SA Nucum." Order at 11. Second, the AUSA who submitted the government's wiretap application misrepresented in the application that "the F.B.I. and the Task Force are not aware of any applications that have been made to any judge for authorization to intercept wire, oral, or electronic communications involving either the subject individuals or the subject telephones, except as set forth in the affidavit of Special Agent Nucum." That assertion was simply false; as an Elsur search would have demonstrated, the FBI was aware of a number of previous applications. "Apparently, Fleischman did not herself confirm whether a search for prior applications had been made; instead, she relied on SA Nucum." Order at 11. Having concluded that SA Nucum and the government had recklessly disregarded Title III's "previous applications" requirement, Judge Patel then turned to the central issue in the case: whether that reckless disregard required suppression of the evidence obtained through the electronic surveillance. The prosecution argued that recklessness is not enough to warrant suppression; intentional disregard is required. Judge Patel, however, disagreed. The judge began by noting that although all of the circuits that have dealt with violations of Title III's "previous applications" requirement have concluded that negligent, unintentional, or inadvertent failure to comply with section 2518(1)(e) does not require suppression, see United States v. Lujan, 936 F.2d 406, 409 (9th Cir. 1991); United States v. Bianco, 998 F.2d 1112, 1118 (2d Cir. 1993); United States v. Zannino, 895 F.2d 1, 9 (1st Cir. 1990); United States v. Pinelli, 890 F.2d 1461, 1475 (10th Cir. 1989); United States v. Van Horn, 789 F.2d 1492. 1500 (11th Cir. 1986), no circuit has specifically considered whether reckless disregard warranted suppression. Indeed, the only circuit that has ever even touched on the issue of recklessness, the Eleventh Circuit in Van Horn, declined to address the issue because there was no evidence of recklessness in the case. See Van Horn, 789 F.2d at 1501. Having noted the absence of authority on the issue, Judge Patel then easily concluded that recklessness was enough to warrant suppression. She pointed out that the D.C. Circuit had held that intentional disregard of Title III's "previous applications" requirement justified suppression, because section 2518(1)(e) is one of the "clearly worded stringent conditions with which a law enforcement agency must comply before conducting an interception of wire or oral communications." United States v. Bellosi, 501 F.2d 833, 840 (D.C. Cir. 1974). In reaching that conclusion, the Bellosi court noted that "a judge balancing constitutionally protected privacy rights of particular citizens would want to know whether the Government had previously attempted to invade those interests," because he might be more hesitant to authorize further electronic surveillance of an individual who had been subjected to such surveillance in the past. Id. at 838. The D.C. Circuit's reasoning in Bellosi, Judge Patel held, applies equally to reckless disregard of section 2518(1)(e). "Allowing reckless behavior to excuse non-compliance would allow any government behavior, no matter how egregious, to go unsanctioned, so long as it did not involve an agent intentionally attempting to deceive a judge. This cannot be what Congress intended in carving out the Title III exception to the Fourth Amendment." Order at 10. Judge Patel also noted that at least one district court has expressly concluded that recklessness warrants suppression. See United States v. Sullivan, 586 F. Supp. 1314, 1318 (D. Mass. 1984) ("Of course an applicant cannot intentionally or even recklessly remain ignorant of previous applications and expect to satisfy the requirements of 2518(1)(e).") (emphasis added). The prosecution attempted to avoid this extension of Bellosi to reckless disregard by arguing that the case is no longer good law in light of United States v. Donovan, 429 U.S. 413 (1977), in which the Supreme Court held that suppression is required only for "a 'failure to satisfy any of those requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.'" Id. at 433 (quoting United States v. Giordano, 416 U.S. 505, 527 f(1974)). Judge Patel rejected that argument, pointing out that the Ninth Circuit did not reject Bellosi in Lujan, but simply distinguished it on the ground that it involved intentional disregard for section 2518(1)(e), not, as in Lujan, inadvertent disregard. Lujan, 936 F.2d at 409; but cf. Van Horn, 789 F.2d at 1500 n.6 (finding Bellosi unpersuasive because it was filed before Donovan). The judge then concluded that, in light of the individual and institutional recklessness in Luong, all of the evidence obtained through the electronic surveillance had to be suppressed. Given Luong's notoriety and the seriousness of the allegations against him and his co-defendants, Judge Patel's decision to grant the defendants' motion to suppress is certainly courageous. Considering her long history of not being reluctant to make difficult decisions, however, it is not surprising. In addition, the decision is indisputably correct; as the judge herself noted, given that Congress' fundamental purpose in enacting Title III was "strictly to limit the employment of" electronic surveillance, see Gelbard v. United States, 408 U.S. 41, 47 (1972), no other decision was possible: "without suppression of evidence for reckless non-compliance with section 2518(1)(e), th[e] court would essentially be supporting behavior it finds to be outrageous and in outright violation of the statute." Order at 12. Stipulating Away Prior Bad Acts The first sentence of Federal Rule of Evidence 404(b) is unambiguous: "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." Fed. R. Evid. 404(b). Such bad acts evidence is often admissible, however, under the second sentence of Rule 404(b), if introduced for "other purposes" such as showing "knowledge" or "intent." Thus, under the second sentence of Rule 404(b), the prosecution may ordinarily introduce bad acts evidence to prove intent and knowledge as long as, under Federal Rule of Evidence 403, "its probative value is [not] substantially outweighed by the danger of unfair prejudice." Fed. R. Evid. 403. If the district court admits the evidence after Rule 403 balancing, the defendant may request an instruction limiting the jury's use of the evidence to proof of intent and knowledge. See, e.g., 1 Devitt & Blackmar, Federal Jury Practice & Instructions 17.08 (4th ed. 1992). The ability of a limiting instruction to overcome the prejudicial effects of bad acts evidence is, of course, little more than "an unmitigated fiction." United States v. Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985). As the D.C. Circuit colorfully put it in Daniels, the "mental gymnastic" such an instruction requires of the jury may be "well beyond mortal capacities." Id. Recognizing the practical futility of limiting instructions, defendants have often attempted to avoid the second sentence of Rule 404(b) by offering to stipulate to the existence of whatever non-propensity purpose the prosecution ostensibly wants to use the bad acts evidence to prove. With such a stipulation, the bad acts evidence at issue should no longer be admissible, because the stipulation deprives that evidence of any value other than what the first sentence of Rule 404(b) expressly prohibits: "to prove the character of a person in order to show action in conformity therewith." The circuit courts have long been split over whether a district court is required to accept a defendant's offer to stipulate to the existence of specific non-propensity purposes of bad acts evidence crime, thus preventing the prosecution from introducing that evidence. Compare, e.g., United States v. Hebeka, 25 F.3d 287, 291 (6th Cir. 1994) ("The defendant has no right to selectively stipulate to particular elements of an offense."), with, e.g., United States v. Kang, 934 F.2d 621, 628 (6th Cir. 1991) ("[I]f the defendant's intent is not contested, then the incremental probative value of the intrinsic evidence is inconsequential when compared to its prejudice; therefore in the circumstance, the evidence is uniformly excluded."). Just last year, however, the Supreme Court held that, in some circumstances, it is in fact an abuse of discretion for a district court to refuse to accept such a stipulation. Old Chief v. United States, 519 U.S. 172 (1997). In 1993, Johnny Lynn Old Chief was arrested after a fight that involved at least one gunshot. Old Chief was then charged, inter alia, with a violation of 18 U.S.C. 922(g)(1), which makes it unlawful for anyone "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year [to] possess in or affecting commerce, any firearm." The earlier crime charged in the indictment was assault causing serious bodily injury. Prior to trial, Old Chief moved for an order requiring the government "to refrain from mentioning . . . and to refrain from offering into evidence or soliciting any testimony from any witness regarding the prior criminal convictions of the Defendant, except to state that the Defendant has been convicted of a crime punishable by imprisonment exceeding one (1) year." Id. at __. In support of that motion, Old Chief agreed to stipulate that he had been convicted of a crime satisfying the felon-in-possession statute. The AUSA responsible for the case refused to join in Old Chief's stipulation, insisting that he had the right to prove his case in his own way. The district court agreed, ruling orally that "[i]f he doesn't want to stipulate, he doesn't have to." Id. at __. At trial, over renewed objection, the prosecution introduced the order of judgment for Old Chief's prior conviction, disclosing that the conviction was for assault causing serious bodily injury. The jury convicted. On appeal, the Ninth Circuit summarily rejected Old Chief's argument that the district court abused its discretion in not accepting his offer to stipulate. "Regardless of the defendant's offer to stipulate," the court held, "the government is entitled to prove a prior felony offense through introduction of probative evidence. Under Ninth Circuit law, a stipulation is not proof, and, thus, it has not place in the FRE 403 balancing process." United States v. Old Chief, No. 94-30277 (9th Cir. May 31, 1995) (unpublished). In a rare example of the Supreme Court disagreeing with the Ninth Circuit on behalf of a criminal defendant, the Court reversed. The Court began by noting that "there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant" in a felon-in-possession case "whenever the official record offered by the government would be arresting enough to lure a juror into a sequence of bad character reasoning." Old Chief, 519 U.S. at __. The Court then pointed out that because "Old Chief's proffered admission would, in fact, have been not merely relevant but seemingly conclusive evidence of the element,"although "the name of the prior offense may have been technically relevant, it addressed no detail in the definition of the prior-conviction element that would not have been covered by the stipulation or admission."Id. at __. The Court thus concluded that, under Rule 403, it was an abuse of discretion for the district court to refuse Old Chief's offer to stipulate to his status as a felon:
In reaching that conclusion, the Court rejected the prosecution's invocation of the traditional rule that it is entitled to prove its case by evidence of its own choice, and that a defendant may not stipulate or admit his way out of the full evidentiary force of the case as the prosecution chooses to present it. See, e.g., Parr v. United States, 255 F.2d 86, 88 (5th Cir. 1958). The Court agreed that the rule was "true as a general matter," given that "there lies the need for evidence in all its particularity to satisfy the jurors' expectations about what proper proof should be." Old Chief, 519 U.S. at __. The Supreme Court disagreed, however, that the rule applied to felon-in-possession cases, in which the details of the defendant's prior conviction are completely irrelevant to his guilt under the statute:
Given its recency, it is difficult to predict the impact of Old Chief when defendants seek to avoid the prejudicial effects of bad acts evidence by offering to stipulate to whatever non-propensity purposes the prosecution wants to use that evidence to prove. If a recent Washington, D.C. case, is any indication, however, Old Chief may actually -- and perversely -- turn out to do more harm than good: in United States v. Crowder, 141 F.3d 1202 (D.C. Cir. 1998) (en banc) ("Crowder II"), the D.C. Circuit, sitting en banc, interpreted Old Chief in a way that limits, not expands, defendants' ability to enter into such stipulations. To understand the negative implications of Crowder II, it is necessary to first understand the case it reversed, United States v. Crowder, 87 F.3d 1405 (D.C. Cir. 1996) (en banc) ("Crowder I"); see generally RICO Report, The Champion (Sept./Oct. 1996) (discussing briefly Crowder I and similar cases). Crowder I involved two defendants, Horace L. Davis and Rochelle Ardall Crowder. Davis was charged with possession of cocaine base with intent to distribute, a violation of 21 U.S.C. 841(a)(1). The prosecution's primary witness in the case was an undercover officer who testified that an intermediary directed him to a seller he had never met. After giving the seller $20, the seller acquired the drugs from another person sitting nearby in a parked car. The seller then placed the drugs on a store window ledge and motioned for the officer to retrieve them. The officer did so, then broadcast a "look out" to the arrest team, describing the seller. Soon thereafter, the arrest team arrested Davis. The officer then identified Davis as the seller at trial. Davis' defense, supported by two witnesses, was mistaken identity. Prior to trial, the prosecution informed Davis that it would introduce evidence of three prior cocaine sales to prove knowledge and intent. Davis then offered to stipulate to the existence of both knowledge and intent -- that is, he offered to concede that the person who possessed the drugs knew they were drugs and intended to sell them -- and argued that, in view of his stipulation, Rule 404(b) prohibited the prosecution from introducing the incidents, because they could only prove his bad character, in violation of the Rule. The district court, however, disagreed, and admitted the bad acts to prove knowledge and intent after conducting a Rule 403 analysis. The jury convicted. Crowder was charged with possession of crack and heroin with intent to distribute. According to the prosecution's witnesses, three police officers in a marked car saw Crowder exchange a small object for cash with another man then flee the scene after noticing the officers. The pursuing officer also testified that Crowder dropped a brown paper bag containing a sizeable amount of crack and heroin as he scaled a fence. After Crowder was arrested, the arresting officer searched him and found a pager and $988. Acknowledging the chase and arrest, Crowder contended at trial that he had not possessed the brown paper bag. According to Crowder, the police officers had questioned him about an unrelated, unsolved murder, then beat him and falsely accused him of possessing drugs when he refused to talk. Crowder's witnesses also testified that the object he passed to the other man was a cigarette, that the cash found on him was for home repair materials, and that Crowder used his pager to keep in touch with the mother of his eight-year-old daughter. The first trial ended in a mistrial. Prior to the second trial, the prosecution informed Crowder that it would introduce evidence that he had sold drugs to an undercover officer five months after the first trial. Crowder then offered to concede every element of the crime except whether he possessed the drugs on the day he was arrested. The district court rejected his offer and admitted the evidence to show intent and knowledge. Crowder was convicted. The D.C. Circuit, sitting en banc, reversed both convictions. The court held that, in light of Davis' and Crowder's unequivocal offers to stipulate, see, e.g., United States v. Manner, 887 F.2d 317, 322 (D.C. Cir. 1989) (noting that bad acts evidence may be admissible when defendant's concession is equivocal), the only purpose for introducing the bad acts evidence at trial was to tempt the jury into convicting Davis and Crowder because they had bad characters, in direct contravention of Rule 404(b). As the court saw it, "a defendant's offer to concede knowledge and intent combined with an explicit jury instruction that the Government no longer needs to prove either element gives the Government everything the evidence could show with respect to those two elements, doing so without the risk that the jury will use the evidence for impermissible propensity purposes." Crowder I, 87 F.3d at 1411; see also United States v. Powell, 587 F.2d 443, 448 (9th Cir. 1978) (holding that defendant's implicit offer to concede intent, knowledge, and motive rendered those issues immaterial for purposes of Rule 404(b)). Permitting defendants to stipulate to the existence of non-propensity uses for bad act evidence, the court added, also has the virtue of "not requir[ing] juries to perform any 'mental gymnastics."' The court simply "excludes the bad acts evidence, instructing the jury that to convict it need only find possession beyond a reasonable doubt." Id. at 1415. Less than six months after the D.C. Circuit decided Crowder I, the Supreme Court decided Old Chief. The Supreme Court then granted the government's petition for writ of certiorari in Crowder I, vacated the decision, and remanded the case back to the D.C. Circuit for reconsideration in light of Old Chief. United States v. Crowder, 519 U.S. 172 (1997). And reconsider it did. Directly contrary to Crowder I, the D.C. Circuit, again sitting en banc, held in Crowder II that "despite a defendant's unequivocal offer to stipulate to an element of an offense, Rule 404(b) does not preclude the government from introducing evidence of other bad acts to prove that element." Crowder II, 141 F.3d at 1203. According to the majority, Crowder I simply could not survive scrutiny in light of Old Chief. First, in Old Chief, "every justice disagreed with the notion that a stipulation has the same evidentiary value as the government's proof." Id. at 1207. That being the case, the majority asserted, Crowder I wrongly concluded that a defendant's "concession of intent and knowledge deprives the evidence of any value": there is still a "'need for evidence in all its particularity to satisfy the jurors' expectations about what proper proof should be,' and so to prevent nullification or unjust acquittal." Id. (quoting Old Chief, 519 U.S. at __). Second, whereas in Old Chief the defendant conceded nothing more than the status element of a crime, an element "wholly independent of the concrete events" of the charged crime, Old Chief, 519 U.S. at __, "the elements of intent and knowledge are at the core of the offenses charged in the [present] cases." Crowder II, 141 F.3d at 1207. "Replacing proof of these elements with stipulations" would thus create "a gap in the story of a defendant's subsequent criminality." Id. Third, in Old Chief there was "no cognizable difference" between the proof the prosecution wanted to present (a document reflecting the prior conviction) and the stipulation the defendant offered. In Crowder I, by contrast, "[t]he stipulations Crowder and Davis proposed were of an entirely different sort. Both were of uncertain and doubtful significance. Crowder was willing to stipulate only that "anybody who possessed the drugs possessed them with intent to distribute." But "anybody" was not on trial. Crowder was. And it was Crowder's intent, not "anybody's," that the prosecution had to establish to a jury's satisfaction." Id. at 1208. Fourth, and finally, unlike in Old Chief, where the stipulation covered every possible use of the bad acts evidence, in Crowder I the bad acts evidence "had legitimate probative force with respect to matters beyond those encompassed in [the] proposed stipulations." Id. In proving that a defendant intended to distribute crack, for example, "the government might simultaneously be showing the defendant's motive to possess the crack, which Rule 404(b) permits. Intent would thereby serve as an intermediate fact from which the jury could infer another intermediate fact -- motive -- from which it could in turn infer the element of possession." Id. Judge Tatel, the author of Crowder I, joined by even the staunchly-conservative Judge Silberman, strongly and persuasively dissented from Crowder II. As Judge Tatel pointed out, Crowder II's holding that a stipulation does not adequately replace bad acts evidence, because that evidence remains relevant to the defendant's guilt even with the stipulation, "effectively erase[s] Rule 404(b)'s first sentence, making all character evidence admissible under Rule 404(b)'s second sentence, subject to Rule 403 balancing. "Crowder II, 141 F.3d at 1212 (Tatel, J., dissenting). Judge Tatel first took issue with the majority's "unremarkable proposition" that propensity evidence remains relevant under Rules 401 and 402 even after a defendant completely removes its non-propensity purposes from the case through a stipulation. Id. at 1213. Crowder I, Judge Tatel noted, never held that such a stipulation renders the evidence irrelevant; it held that the stipulation makes the evidence inadmissible under Rule 404(b)'s first sentence. "An unambiguous stipulation and jury instruction, Crowder I explained, so thoroughly drains the evidence's non-propensity value for the prosecution's case that to admit the evidence would unduly prejudice the jury." Id. That distinction is crucial, Judge Tatel pointed out, because although both Crowder I and Old Chief involved defendants offering to stipulate to essential elements of a particular offense, Crowder I arose under Rule 404(b), whereas Old Chief arose only under Rule 403. Unlike Rule 404(b), whose first sentence flatly prohibits using bad acts evidence to prove propensity, Rule 403 simply requires courts to balance the prejudicial effect of such evidence against its probative value -- a test at which the discretion of the district court is "at its height." Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 555 (D.C. Cir. 19930. Thus, "[i]f relevance was insufficient under Rule 403's relatively flexible standard, it is certainly insufficient under Rule 404(b)'s absolute bar." Crowder II, 141 F.3d at 1213-14 (Tatel, J., dissenting). Judge Tatel also convincingly refuted the majority's emphasis on the idea that the bad acts evidence is often essential, in the words of Old Chief, "to create a coherent narrative of [a defendant's] thoughts and actions in perpetrating the offense for which he is being tried." Old Chief, 519 U.S. at __.
Crowder II, 141 F.3d at 1214 (Tatel, J., dissenting). Indeed, Old Chief itself recognized that the government's authority to construct its narrative of the charged crime is limited by Rule 404(b). See Old Chief, 519 U.S. at __. Finally, Judge Tatel rejected the majority's fear that a jury deprived of evidence on all of the elements of a particular crime would be confused by or dissatisfied with the prosecution and thus would be more likely to decline to convict. To begin with, both Crowder and Davis were willing to accept a "must convict" instruction that specifically identified them by name. More importantly, though, "[a]side from depriving the government of the ability to introduce character evidence, Crowder and Davis's concessions and proposed jury instructions would have made the government's task easier -- in effect transforming these distribution cases into simple possession cases." Crowder II, 141 F.3d at 1215 (Tatel, J., dissenting). Why, then, did the prosecution decline Crowder and Davis's offers to stipulate? The answer, Judge Tatel noted in concluding his dissent, is obvious:
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