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2.10 Other Crimes, Wrongs or Acts of Defendant

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2.10 OTHER CRIMES, WRONGS OR ACTS OF DEFENDANT

You are about to hear evidence that the defendant committed other [crimes] [wrongs] [acts] not charged here. You may consider this evidence only for its bearing, if any, on the question of the defendant’s [intent] [motive] [opportunity] [preparation] [plan] [knowledge] [identity] [absence of mistake] [absence of accident] and for no other purpose. [You may not consider this evidence as evidence of guilt of the crime for which the defendant is now on trial.]

Comment

"Under Federal Rule of Evidence 404(b), evidence of other acts may be admissible to prove, among other things, motive, opportunity, intent, or knowledge. In order for other act evidence to be admissible, (1) the evidence must tend to prove a material issue in the case, (2) the acts must be similar to the offense charged, (3) proof of the other acts must be based upon sufficient evidence, and (4) the acts must not be too remote in time. See United States v. Montgomery, 150 F.3d 983, 1000 (9th Cir.1998)." United States v. Fuchs, 218 F.3d 957, 965 (9th Cir.2000). See also Fed. R. Evid. 413 and 414 (Evidence of Similar Crimes in Sexual Assault and Child Molestation Cases).

In Montgomery, the Ninth Circuit concluded the trial court’s giving of the following limiting instruction supported a finding that admitting the other acts evidence was not an abuse of discretion: "You have heard evidence that defendant [ ] has previously been convicted of conspiracy to manufacture methamphetamine. You may consider that evidence only as it bears on intent, knowledge, or lack of mistake and for no other purpose. You may not consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial." Montgomery, 150 F.3d at 1001.

Such a limiting instruction must be given if requested, Fed. R. Evid. 105, and it may be appropriate to give such an instruction sua sponte. Nonetheless, it is "well-settled that where no limiting instruction is requested concerning evidence of other criminal acts, the failure of the trial court to give such an instruction sua sponte is not reversible error." United States v. Multi-Management, Inc., 743 F.2d 1359, 1364 (9th Cir.1984).