United States v. Crowder, Rochelle A.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued En Banc January 28, 1998 Decided May 1, 1998

No. 92-3133

United States of America,

Appellee

v.

Rochelle Ardall Crowder,

Appellant

Consolidated with

No. 94-3108

No. 93-3059

United States of America,

Appellee

v.

Horace L. Davis,

Appellant

_________

Appeals from the United States District Court

for the District of Columbia

(91cr00353-01 & 91cr00150-01)

Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant Horace Lee Davis, and Gerald I.
Fisher, appointed by the court, argued the cause for appellant
Rochelle Ardall Crowder. With them on the joint and sup-
plemental briefs were A.J. Kramer, Federal Public Defender,
Santha Sonenberg and Lisa B. Wright, Assistant Federal
Public Defenders.

Roy W. McLeese, III, Assistant U.S. Attorney, argued the
causes for appellee. With him on the brief were Eric H.
Holder, Jr., U.S. Attorney at the time the supplemental briefs
were filed, and John R. Fisher, Assistant U.S. Attorney.

Before: Edwards, Chief Judge, Wald, Silberman,
Williams, Ginsburg, Sentelle, Henderson, Randolph,
Rogers, Tatel, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Dissenting opinion filed by Circuit Judge Tatel, in which
Chief Judge Edwards and Circuit Judges Wald and
Silberman join.

Dissenting opinion filed by Circuit Judge Silberman.

Randolph, Circuit Judge: The principal question in these
cases is whether a criminal defendant may, over the govern-
ment's objection, offer to concede an element of an offense
(such as knowledge or intent) and thereby (1) preclude the
government from introducing evidence under Rule 404(b),
Fed. R. Evid., to prove that element, and (2) obtain an
instruction that the jury need not consider or decide that
element. When we first heard these cases en banc, a divided
court answered the question this way: whenever there is "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," Rule 404(b) renders
the bad acts evidence inadmissible. United States v. Crowder
(Crowder I), 87 F.3d 1405, 1410 (1996). On the government's
petition for a writ of certiorari, the Supreme Court granted
the writ, vacated our judgment and remanded the cases for
reconsideration in light of the intervening decision in Old
Chief v. United States, 117 S. Ct. 644 (1997). See United
States v. Crowder, 117 S. Ct. 760 (1997). We now hold 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.

I

A

For ease of reference we will again recount the facts of
these cases. In separate jury trials, both defendants were
convicted of drug offenses, Crowder for possessing heroin and
crack cocaine with intent to distribute, Davis for distributing
crack cocaine and for possessing crack with intent to distrib-
ute.

Crowder. Police officers driving along the 1300 block of
Newton Street, N.W., Washington, D.C., saw Crowder engage
in what appeared to be a drug transaction, exchanging a small
object for cash. The officers stopped their car and gestured
for Crowder to approach. Crowder started to come closer
but then turned and ran. During the ensuing chase Crowder
discarded a brown paper bag containing 93 ziplock bags of
crack cocaine and 38 wax-paper packets of heroin. When the
officers caught up with him, they found that he was carrying
a beeper and $988 in small denominations.

Crowder's first trial ended in a mistrial. Before the retrial,
the government gave notice that it would seek to prove
Crowder's knowledge, intent and modus operandi by intro-
ducing evidence to show that Crowder sold crack cocaine to
an undercover officer on the same block on Newton Street
seven months after his arrest in this case. Crowder objected

to the evidence, partly on the basis that he was willing to
stipulate that the amounts of drugs "seized [by the police in
this case] were consistent with distribution" so that "anybody
who possessed those drugs possessed them with the intent to
distribute." J.A. 178, 203.

The district court took the matter under advisement. Af-
ter the government presented its case-in-chief, Crowder
mounted a defense based on the theory that the police had
framed him. Through nine witnesses, including his nephew,
his father, the mother of his child, and Newton Street neigh-
bors, he tried to show that the officers came looking for him
to enlist his aid in a homicide investigation, that the transac-
tion the officers observed consisted merely of the passing of a
cigarette, that he had the $988 to pay for repairs to his
family's house, and that his child's mother had loaned him the
beeper so that he could keep in touch with her.

At the close of the defense case, the government renewed
its effort to introduce the evidence of Crowder's other drug
offense. As to Crowder's pretrial offer to stipulate, the
government argued that Crowder had now contested his
intent to distribute, and that the evidence of his other drug
deal had legitimate probative value apart from its bearing on
intent, which is all the proposed stipulation addressed.

The district court first took up Rule 404(b):

It seems to the court that the first question is whether or
not this evidence is probative of anything in the case, and
it seems to the court that this evidence is probative,
because Mr. Crowder is trying to suggest in his defense
and I think, if we look at the evidence in the defense, not
just Mr. Crowder's testimony, that all of this was just a
coincidence, it was a coincidence that he had the $900 in
his possession, it's a coincidence that he had a beeper in
his possession, and that everything else took place, pre-
sumably, the running away and the officer chasing him,
and the officer finding a large quantity of drugs in the
alley, had nothing at all to do with Mr. Crowder. So, to
me, that raises an issue of intent, raises an issue of
knowledge, perhaps raises an issue, as was raised in the

Watson case, of his knowledge of even the drug trade.
It seems to me, based upon that evidence, that the 404(b)
evidence is probative.

J.A. 242-43.

Having found the evidence probative for a proper purpose
under Rule 404(b), the court turned to Federal Rule of
Evidence 403 and concluded that the probative value of
Crowder's other drug crime was not substantially "out-
weighed by potential undue prejudice to Mr. Crowder." J.A.
248. The court noted the highly probative nature of the
evidence to prove intent and knowledge, particularly in view
of Crowder's defense that "he doesn't know anything about it
... [and] this is all a setup by the police." J.A. 249. When
the court admitted the evidence in the government's rebuttal
case, it gave a limiting instruction, which it repeated during
its jury charge.

Davis. An undercover officer purchased a rock of crack
cocaine from Horace Lee Davis on the 900 block of 5th
Street, N.W. Davis had obtained the crack from a man
sitting in a nearby car. After the transaction, the undercover
officer left the scene and broadcast a description of Davis and
the other man. Both were stopped a short time later and
positively identified by the undercover officer. The police
apprehended Davis as he was opening the door to the car
from which he had obtained the rock. A search of the car
uncovered more than 20 grams of crack as well as $40 in cash.
The cash included pre-recorded bills the officer had used to
buy the rock from Davis.

Davis put on a defense of misidentification. He explained
that he had purchased a beer from a nearby liquor store and
had simply walked out of the store just before his arrest.
Before trial, the government gave notice that it intended to
introduce evidence of three prior cocaine sales by Davis, all in
the vicinity of a shelter at 425 2nd Street, N.W., only a few
blocks from the site of the charged offense. The government
sought to introduce these prior acts to prove essential ele-
ments of Davis's crime--knowledge and intent. Davis object-
ed, in part on the basis of his proposed stipulation "that the

person who sold the undercover officer the drugs in this case
had the intent to distribute any and all drugs recovered by
the police, both through their purchase and through the
seizure from [the] car, and that that individual also knew of
the drugs recovered from [the] car." J.A. 79 n.1. The
district court ruled that the government did not have to
accept Davis's concession and could prove the required ele-
ments of knowledge and intent through evidence of Davis's
prior acts. When the court admitted evidence of the prior
acts, it gave a limiting instruction, and reiterated the instruc-
tion in its jury charge.

B

While the government's certiorari petition in these cases
was pending, the Supreme Court handed down Old Chief v.
United States. There the defendant had been charged with
violating federal assault and weapons statutes, including 18
U.S.C. s 922(g)(1), which prohibits persons previously con-
victed of certain felonies from possessing a firearm. The
defendant's prior conviction was for "assault causing serious
bodily injury." 117 S. Ct. at 647. Wanting to keep these
details from the jury, the defendant offered to stipulate that
he had an unspecified conviction of the sort described in
s 922(g)(1). The government refused the defense offer, the
trial court admitted the order of judgment and commitment
in the assault case, and the court of appeals affirmed.

Dividing five to four, the Supreme Court reversed. The
Court first rejected the defendant's argument that his offer to
stipulate rendered the evidence of his prior conviction irrele-
vant and reaffirmed "the accepted rule that the prosecution is
entitled to prove its case free from any defendant's option to
stipulate the evidence away," 117 S. Ct. at 654. The Court
then went on to carve out a narrow exception to that rule,
applicable only to "the element of felony-convict status," id. at
655. Concluding that there was "no cognizable difference
between" a judgment and conviction order proving felony
convict status and an admission or stipulation to that effect,
and that a description of the prior offense might unduly

prejudice the defendant, the Court held that the Rule 403
balance of probative value versus unfair prejudice tilted in
favor of excluding the government's proof.

II

Rule 404(b) provides: "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, howev-
er, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident...."

Our original en banc decision rested on the following
theory: "a defendant's offer to concede knowledge and intent
combined with an explicit jury instruction that the Govern-
ment no longer needs to prove either element" results in the
other crimes evidence having, as "its only purpose," proof of
the defendant's propensity, which Rule 404(b) forbids. Crow-
der I, 87 F.3d at 1410. The idea was that the proposed
stipulation (and instruction) "completely removed" knowledge
and intent from the trial; that evidence of the defendant's
other crimes therefore could no longer be considered relevant
to those elements; and that if the evidence had no other non-
propensity purpose, its only function would be to prove what
Rule 404(b) barred. See id.1

Tested against the Supreme Court's Old Chief decision, the
theory of Crowder I fails. See 1 Stephen A. Saltzburg et al.,
Federal Rules of Evidence Manual 385-86 (7th ed. 1998).
Old Chief 's holding ultimately rested on Federal Rule of
Evidence 403, which authorizes trial courts to exclude evi-
dence if its "probative value is substantially outweighed by
the danger of unfair prejudice...." But before getting to

__________
1 The en banc majority expressed agreement with United
States v. Mohel, 604 F.2d 748, 751 (2d Cir. 1979), that "under Rule
404(b) bad acts evidence must be relevant to an 'actual' issue and
that an offer to stipulate to an issue removes it from the case."
Crowder I, 87 F.3d at 1410. A clear majority of the other circuits
reject the Second Circuit's position. The cases are discussed in an
addendum to this opinion.

Rule 403, the Court had to dispose of a preliminary question,
a question that bears directly on the Crowder I theory. The
defendant in Old Chief claimed, as Crowder I held, that a
defense stipulation to an element of a crime completely
removes the element from trial, thereby rendering other
evidence of the element irrelevant and thus inadmissible. See
Fed. R. Evid. 402 ("Evidence which is not relevant is not
admissible."). The Supreme Court rejected this argument.
A defendant's offer to stipulate or concede an element of an
offense, the Court concluded, does not deprive the govern-
ment's evidence of relevance. See Old Chief, 117 S. Ct. at
649. There does not have to be an "actual issue" about the
facts sought to be proven. As the Court put it, "evidentiary
relevance under Rule 401 [is not] affected by the availability
of alternative proofs of the element," such as a defendant's
concession or offer to stipulate. Id. In support, the Court
quoted the statement in the advisory committee notes to Rule
401 that the "fact to which the evidence is directed need not
be in dispute." Id.2 The Court then summed up: "If, then,
relevant evidence is inadmissible in the presence of other
evidence related to it, its exclusion must rest not on the
ground that the other evidence has rendered it 'irrelevant,'
but on its character as unfairly prejudicial, cumulative or the
like, its relevance notwithstanding," id. at 650--a thesis the
Court reiterated several times later in its opinion. Id. at 651,
651 n.7, 653-54, 655-56.

__________
2 Rule 401 is derived from a provision of the California Evi-
dence Code defining "relevant evidence" as evidence of "any disput-
ed fact that is of consequence to the determination of the action."
Cal. Evid. Code s 210 (West 1995). In drafting Rule 401, the
framers deleted the word "disputed," a deletion representing "a
significant change in the law." 22 Charles Alan Wright & Ken-
neth W. Graham, Federal Practice and Procedure s 5164, at 44
(1978). Professors Wright and Graham suggest that the framers'
decision to delete "disputed" was "sponsored" by the Justice De-
partment to prevent courts from concluding, as we had in Crowder
I, "that the defense can bar the introduction of [other offense
evidence] by offering to stipulate to the fact it is supposed to
prove." Id.

From this aspect of Old Chief, several propositions neces-
sarily follow. First, if the government's other crimes evi-
dence would have been relevant under Rule 401--if it would
have made it more likely with the evidence than without it
that the defendants had the requisite knowledge or intent--
the evidence remained relevant despite the defendants' offers
to stipulate. Second, the government therefore could offer
this evidence for the purpose of proving something Rule
404(b) expressly permits, namely, the defendants' knowledge
or intent. We have recognized before that although the first
sentence of Rule 404(b) is "framed restrictively," the rule
itself "is quite permissive," prohibiting the admission of other
crimes evidence "in but one circumstance"--for the purpose
of proving that a person's actions conformed to his character.
United States v. Jenkins, 928 F.2d 1175, 1180 (D.C. Cir.
1991). In other words, properly viewed, the first sentence of
Rule 404(b) bars not evidence as such, but a theory of
admissibility. Third, compliance with Rule 404(b) does not
assure admission of the other crimes evidence. Old Chief
stated that if "there were a justification for receiving evidence
of the [defendant's felony conviction] on some issue other
than status [such as knowledge or intent], Rule 404(b) guar-
antees the opportunity to seek its admission." 117 S. Ct. at
655. The "opportunity," not the "admission," is what Rule
404(b) "guarantees." 3 But if a trial court were to exclude the
government's evidence of bad acts, the court could not do so
"on the ground that the other evidence"--the proposed stipu-
lation backed up by a jury instruction--"rendered it 'irrele-
vant,' " Old Chief, 117 S. Ct. at 650. Instead, as already
mentioned, exclusion would have to be on the basis that the
evidence is "unfairly prejudicial, cumulative or the like, its
relevance notwithstanding." Id.

In other important ways, Old Chief stands at odds with our
original decision in these cases. According to Crowder I, the

__________
3 The Supreme Court made a similar point in Huddleston v.
United States, 485 U.S. 681, 688 (1988): if evidence is offered for a
proper purpose under Rule 404(b), "the evidence is subject only to
general strictures limiting admissibility such as Rules 402 and 403."

government may not introduce its bad acts evidence because
a "defendant's concession of intent and knowledge deprives
the evidence of any value ...." 87 F.3d at 1407 (italics
added). There are several problems lurking within this for-
mulation. For one thing, it hands to criminal defendants the
ability to control the government's presentation of its case.
Yet all nine Justices in Old Chief agreed with "the familiar,
standard rule that the prosecution is entitled to prove its case
by evidence of its own choice, or, more exactly, that a criminal
defendant may not stipulate or admit his way out of the full
evidentiary force of the case as the government chooses to
present it." 117 S. Ct. at 653; see id. at 658-60 (dissenting
opinion).

For another thing, every Justice disagreed with the notion
that a stipulation has the same evidentiary value as the
government's proof. Even when coupled with a jury instruc-
tion that the fact stipulated must be considered proven, a
stipulation cannot give "the Government everything the evi-
dence could show," Crowder I, 87 F.3d at 1410. The "eviden-
tiary account of what a defendant has thought and done can
accomplish what no abstract statements ever could" (Old
Chief, 117 S. Ct. at 653-54); "[i]f suddenly the prosecution
presents some occurrence in the series differently, as by
announcing a stipulation or admission, the effect may be like
saying, 'never mind what's behind the door,' and jurors may
well wonder what they are being kept from knowing" (id. at
654); a "syllogism is not a story, and a naked proposition in a
courtroom may be no match for the robust evidence that
would be used to prove it" (id.); jurors "who hear a story
interrupted by gaps of abstraction may be puzzled at the
missing chapters" (id.); see also id. at 659 (dissenting opin-
ion). There is, in short, 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
unjustified acquittal. Id. at 654.

The Supreme Court made these points to distinguish be-
tween "stipulations to the status element of a crime, which
can be forced upon the prosecution, and stipulations to other
elements of a crime, which the prosecution should remain free

to reject." 1 Saltzburg, supra, at 385. Proof of status, the
Court said, concerns an element that is "wholly indepen-
dent[ ] of the concrete events" of the charged crime. Old
Chief, 117 S. Ct. at 654-55. In contrast, the elements of
intent and knowledge are at the core of the offenses charged
in the cases before us. Replacing proof of these elements
with stipulations creates "a gap in the story of a defendant's
subsequent criminality." Id. at 655. To be sure, other
crimes evidence will typically relate to events more or less
removed in time from the charged offense. But that is true
of many other kinds of evidence. A husband's prior physical
abuse of his wife while he was in a jealous rage may suggest
his motive for murdering her; an incriminating statement
made after the offense may reveal intent; tangible evidence
found later may suggest identity. Evidence about what the
defendant said or did at other times can be a critical part of
the story of a crime, and may be introduced to prove what the
defendant was thinking or doing at the time of the offense.
This is true regardless whether the defendant's actions on
those other occasions were in themselves criminal. Old Chief
establishes that the prosecution cannot be forced to stipulate
away the force of such evidence.

The Supreme Court also distinguished Old Chief's case on
the ground that there was "no cognizable difference" between
the proof the prosecution sought to present--a document
reflecting the prior conviction--and the stipulation the defen-
dant offered. Id. As to the stipulation, Old Chief was willing
to concede that he personally had the requisite prior felony
conviction.

The 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 those drugs possessed them with the
intent to distribute." But "anybody" was not on trial. Crow-
der was. And it was Crowder's intent, not "anybody's," that
the prosecution had to establish to the jury's satisfaction.
The stipulation Davis offered is of a piece. It mentioned only
some hypothetical drug dealer, some "person." Yet the pros-
ecution's evidence of Davis's prior crack cocaine sales--sales

close in time and place to those charged in the indictment--
was not meant to show that someone had intent and knowl-
edge. The evidence was introduced to prove that Davis had
the intent to distribute the crack and that Davis knew what
he was possessing. Davis's proposed stipulation could not
possibly have substituted for such proof. It did not even
mention him by name. Far from a choice between "proposi-
tions of slightly varying abstraction," the choice in these cases
was between concrete evidence of the defendants' actions
giving rise to natural and sensible inferences, and abstract
stipulations about hypothetical persons not on trial.4

The government's proof of Crowder's other crime also had
legitimate probative force with respect to matters beyond
those encompassed in his proposed stipulation. A "piece of
evidence," the Court wrote in Old Chief, "may address any
number of separate elements, striking hard just because it
shows so much at once," 117 S. Ct. at 653. Rule 404(b)
evidence will often have such multiple utility, showing at once
intent, knowledge, motive, preparation and the like. Proof of
an individual's intent to commit an act may itself serve as
proof that the individual committed the act, as the Supreme
Court recognized more than a century ago. See Mutual Life
Ins. Co. v. Hillmon, 145 U.S. 285, 296 (1892). In proving that
a defendant intended to distribute crack cocaine, for instance,
the government might simultaneously be showing the defen-
dant's motive to possess the crack, which Rule 404(b) permits.

__________
4 Although neither Crowder nor Davis proposed a jury instruc-
tion to encompass their stipulations, Crowder I devised a model
charge in an effort to "ensure that the jury clearly understands that
the concession releases the Government from its burden of proof on
the conceded elements," 87 F.3d at 1411. The model charge
improved on the language of Crowder's and Davis's stipulations, but
as a substitute for evidence, it contradicted much of Old Chief. A
"syllogism," the Supreme Court wrote, is "not a story." 117 S. Ct.
at 654. The Court issued a firm warning against replacing a
narrative, which jurors are entitled to expect, with "abstract state-
ments" in the form of jury instructions, which can only make jurors
"wonder what they are being kept from knowing." Id. at 653-54,
654.

Intent would thereby serve as an intermediate fact from
which the jury could infer another intermediate fact--mo-
tive--from which it could in turn infer the element of posses-
sion. Thus, other-offense evidence of intent would have
probative value not just on the intent element, but also on the
possession element of the offense.

The multiple utility of Rule 404(b) evidence is illustrated in
Crowder's case. See also United States v. Latney, 108 F.3d
1446, 1448-50 (D.C. Cir.), cert. denied, 118 S. Ct. 355 (1997);
United States v. Harrison, 679 F.2d 942, 948 (D.C. Cir. 1982).
The trial court permitted the prosecution to introduce evi-
dence of Crowder's other crime to prove not only his intent to
distribute, but also his "knowledge of the substance within his
possession." 5 One of the charges against Crowder was pos-
sessing with intent to distribute crack cocaine.6 Crowder
threw away a brown paper bag as he ran from the police to
avoid arrest. The paper bag contained wax-paper packets of
heroin and ziplock bags of crack. Some of the ziplock bags
were clear; others were dark. The clear bags contained a
larger amount of crack than the dark bags. The govern-
ment's other-offense evidence showed that several months
after his arrest in this case, the police caught Crowder selling
crack cocaine on the same block. Crowder held up two
ziplock bags to an undercover officer. One bag was clear; he

__________
5 A defendant's hands-on experience in the drug trade cannot
alone prove that he possessed drugs on any given occasion. But it
can show that he knew how to get drugs, what they looked like,
where to sell them, and so forth. Evidence of a defendant's
experience in dealing drugs--evidence, that is, of his "bad acts"--
thus may be a "brick" in the "wall" of evidence needed to prove
possession. See Fed. R. Evid. 401, advisory committee notes.

6 For a jury to find a defendant guilty of that offense, the
government must prove, among other things, that the defendant
possessed crack cocaine, that he did so knowingly and intentional-
ly--that is, "consciously, voluntarily and on purpose, not mistakenly,
accidentally or inadvertently"--and that when the defendant pos-
sessed the crack, he had the specific intent to distribute it. See
Criminal Jury Instructions for the District of Columbia, Instruc-
tion 4.29 (4th ed. 1993).

offered it for $20. The other bag was dark; it contained a
smaller amount of crack of less purity; he offered it for $10.
As the government told the court, Crowder's other offense
was thus probative of several matters "of consequence" at
trial. See Fed. R. Evid. 401. In terms of Rule 401, it was
more probable with the evidence than without it that Crowder
intended to distribute the crack cocaine in the brown paper
bag. On the other occasion when he had crack cocaine in his
possession, he sold it. It was more probable with the evi-
dence than without it that Crowder knew the material in the
ziplock bags was crack cocaine, just as he knew the substance
in the ziplock bag he sold to the undercover officer was crack
cocaine. And it was more probable with the evidence than
without it that Crowder knowingly possessed the crack co-
caine recovered from the brown paper bag. Crowder's offer
to stipulate dealt only with someone's intent and therefore did
not even come close to covering everything the government's
Rule 404(b) evidence legitimately proved against him.

* * *

For all of these reasons, upon reconsideration of our earlier
decision in light of Old Chief we hold that a defendant's offer
to stipulate to an element of an offense does not render the
government's other crimes evidence inadmissible under Rule
404(b) to prove that element, even if the defendant's proposed
stipulation is unequivocal, and even if the defendant agrees to
a jury instruction of the sort mentioned in our earlier opinion.
See Crowder I, 87 F.3d at 1411. Other rules of evidence may
bear on the admissibility of evidence satisfying Rule 404(b)
and we will get to them next. For now it is enough to repeat
the words of the advisory committee on Rule 404(b): if
evidence is offered for a purpose Rule 404(b) permits, such as
proving knowledge or intent, Rule 404(b) "does not require
that the evidence be excluded."

III

While Rule 404(b) does not require the exclusion of bad
acts evidence offered for a purpose the rule recognizes as

legitimate, other evidentiary rules might. For instance, of-
fering the evidence for a proper purpose will satisfy Rule
404(b), but it will not in itself satisfy the relevancy standards
of Rules 401 and 402. As Professor James explained in a
highly-regarded article, to "determine the relevancy of an
offered item of evidence one must first discover to what
proposition it is supposed to be relevant." 7 The government
must identify which of the matters listed in Rule 404(b)--
"motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident"--it is intending to
prove by the other crimes evidence. If the defense objects,
the court must then satisfy itself that the evidence is relevant
to that matter. See Huddleston v. United States, 485 U.S.
681, 691 (1988).8

In the cases before us, neither defendant contested the
relevancy of the other crimes evidence to his intent, except on
the basis that their proposed stipulations took intent out of
the case. Old Chief, as we have discussed, rejected that
argument. And so we move on to another hurdle, Rule 403.

The familiar language of Rule 403 is: "Although relevant,
evidence may be excluded if its probative value is substantial-
ly outweighed by the danger of unfair prejudice...." In
these cases, the concern about "prejudice" focused on the
danger of the jury using the other crimes evidence in a way
the rules do not permit--to conclude that because the defen-
dant committed some other crime, he must have committed
the one charged in the indictment. This danger, of course,
will be present in every Rule 404(b) case. But that alone
cannot give rise to a per se rule of exclusion, as Crowder and
Davis argued when we first heard their cases en banc. In

__________
7 George F. James, Relevancy, Probability and the Law, 29
Cal. L. Rev. 689, 696 n.15 (1941); see also 1 McCormick on
Evidence s 185 (John William Strong ed., 4th ed. 1992). The
advisory committee notes cite and rely upon Professor James' work
and Rule 401 adopts the test of relevancy he proposed in 1941.

8 For instance, if a defendant were charged with distributing
heroin, the government would be hard pressed to demonstrate why
evidence of the defendant's earlier commission of a rape was
relevant to anything properly provable under Rule 404(b).

adopting the Federal Rules of Evidence, Congress "was not
nearly so concerned with the potential prejudicial effect of
Rule 404(b) evidence as it was with ensuring that restrictions
would not be placed on the admission of such evidence."
Huddleston, 485 U.S. at 688-89; see also H.R. Rep. No.
93-650, at 7 (1973) (noting that Rule 404(b)'s second sentence
is intended to place emphasis on admissibility). As to Rule
403, each case will turn on the discretionary judgment of the
trial court and its assessment, not of relevance, but of the
evidentiary value of the government's Rule 404(b) evidence.
On the same side of the balance, the trial court will take into
account the effect of a limiting jury instruction to protect the
rights of the accused. See Fed. R. Evid. 403, advisory
committee notes.

Crowder and Davis maintained, however, that whenever a
defendant offers to stipulate to intent, as both purported to
do here, the Rule 403 balance will always tip in favor of
exclusion. See Joint Brief for Appellants In Banc at 25,
Crowder I. We agree that trial courts may take offers to
stipulate into account in making their Rule 403 determina-
tions. See Fed. R. Evid. 403, advisory committee notes ("The
availability of other means of proof may also be an appropri-
ate factor."). But we do not agree that the existence of the
offer will necessarily be decisive. Here the proposed stipula-
tions were ambiguous, conditional and tentative. Neither
mentioned the defendant directly. At no point in their trials
did either defendant propose a jury instruction requiring the
jury to find the conceded element of intent. That such an
instruction might be needed if their proposed stipulations
were to have any force is something the defendants acknowl-
edged for the first time during the oral argument in Crowder
I. The judges who presided at their trials could not possibly
have anticipated the model jury instruction that later devel-
oped (see Crowder I, 87 F.3d at 1411), and their failure to do
so was neither "plain" nor "error." Old Chief warns against
using Rule 403 to replace the prosecution's evidence with a
jury instruction of the sort devised in Crowder I. See note 4,
supra.

In short, the Rule 403 inquiry in each case involving Rule
404(b) evidence will be case-specific. There can be no "me-
chanical solution," no per se rule of the sort Crowder and
Davis advocate.

We have considered the defendants' other arguments and
reject them. The convictions are affirmed.

So ordered.

ADDENDUM

As we mentioned in footnote 1 of the opinion, United States
v. Mohel, 604 F.2d 748, 751 (2d Cir. 1979), held that "under
Rule 404(b) bad acts evidence must be relevant to an 'actual'
issue and that an offer to stipulate to an issue removes it
from the case." So far as we can tell, this is the general rule
in both the Second and the Eleventh Circuits, although the
Eleventh Circuit has never reversed a conviction on this basis
and appears to have embraced a contrary position in earlier
cases. See, e.g., United States v. Colon, 880 F.2d 650, 660 (2d
Cir. 1989); United States v. Ortiz, 857 F.2d 900, 903-04 (2d
Cir. 1988); United States v. Figueroa, 618 F.2d 934, 942 (2d
Cir. 1980); United States v. Manafzadeh, 592 F.2d 81, 87 (2d
Cir. 1979); United States v. Tokars, 95 F.3d 1520, 1537 (11th
Cir. 1996); United States v. Taylor, 17 F.3d 333, 338 (11th
Cir. 1994); United States v. Costa, 947 F.2d 919, 925 (11th
Cir. 1991); United States v. Hernandez, 896 F.2d 513, 522
(11th Cir. 1990); United States v. Williford, 764 F.2d 1493,
1498 (11th Cir. 1985) ("This circuit has refused to adopt a per
se rule either for or against admission of evidence when that
evidence is relevant to an issue to which the defendant offers
to stipulate. Rather, we analyze the offer to stipulate as one
factor in making the Rule 403 determination."); United
States v. O'Shea, 724 F.2d 1514, 1516 (11th Cir. 1984) ("As a
general rule, a party may not preclude his adversary's offer of
proof by admission or stipulation.").

Other circuits have rejected the position of the Second
Circuit, concluding that bad acts evidence may be admissible
to prove an element of a crime regardless whether that
element is "in dispute." These include the Fourth, Fifth,
Sixth, Seventh, Ninth, and Tenth Circuits. See, e.g., United
States v. Hernandez, 975 F.2d 1035, 1040 (4th Cir. 1992);
United States v. Wallace, 32 F.3d 921, 927-28 (5th Cir. 1994);
United States v. Ponce, 8 F.3d 989, 993-94 (5th Cir. 1993);
United States v. Davis, 792 F.2d 1299, 1305 (5th Cir. 1986);
United States v. Spletzer, 535 F.2d 950, 955 (5th Cir. 1976);
United States v. Myers, 123 F.3d 350, 363 (6th Cir.), cert.
denied, 118 S. Ct. 611 (1997); United States v. Mauldin, 109

F.3d 1159, 1161 (6th Cir. 1997); United States v. Murphy, 107
F.3d 1199, 1206-07 (6th Cir. 1997); United States v. Johnson,
27 F.3d 1186, 1192-93 (6th Cir. 1994); United States v.
Hebeka, 25 F.3d 287, 291 (6th Cir. 1994); United States v.
Zalman, 870 F.2d 1047, 1056 (6th Cir. 1989); United States v.
Brown, 34 F.3d 569, 573 (7th Cir. 1994); United States v.
Monzon, 869 F.2d 338, 344 (7th Cir. 1989); United States v.
Allen, 798 F.2d 985, 1001 (7th Cir. 1986); United States v.
Liefer, 778 F.2d 1236, 1240-43 (7th Cir. 1985); United States
v. Chaimson, 760 F.2d 798, 805-06 (7th Cir. 1985); United
States v. Mayans, 17 F.3d 1174, 1182 (9th Cir. 1994); United
States v. Jones, 982 F.2d 380, 382-83 (9th Cir. 1992); United
States v. Hadley, 918 F.2d 848, 851-52 (9th Cir. 1990);
United States v. Gano, 560 F.2d 990, 993 (10th Cir. 1977).

Still other circuits have been somewhat equivocal. The
First Circuit, while suggesting that a defendant's offer to
stipulate to an element renders evidence of other bad acts
inadmissible to prove that element, also has stated that "[i]n
the final analysis, ... whether such an offer is accepted
remains in the sound discretion of the district judge." Unit-
ed States v. Garcia, 983 F.2d 1160, 1175 (1st Cir. 1993); see
United States v. Williams, 985 F.2d 634, 637 (1st Cir. 1993);
United States v. Ferrer-Cruz, 899 F.2d 135, 138 (1st Cir.
1990). The Third Circuit has noted that "district courts
should generally deem prior bad acts evidence inadmissible to
prove an issue that the defendant makes clear he is not
contesting" but has refused to adopt a per se rule of exclu-
sion. United States v. Jemal, 26 F.3d 1267, 1274 (3d Cir.
1994); see United States v. Sheeran, 699 F.2d 112, 118 n.12
(3d Cir. 1983); United States v. Provenzano, 620 F.2d 985,
1003-04 (3d Cir. 1980).

The Eighth Circuit seems to have taken inconsistent posi-
tions on the issue. Compare United States v. Sumner, 119
F.3d 658, 660-61 (8th Cir. 1997) (supporting per se rule of
exclusion), United States v. Moore, 98 F.3d 347, 349-50 (8th
Cir. 1996) (same), United States v. Thomas, 58 F.3d 1318,
1321-23 (8th Cir. 1995) (same), and United States v. Jenkins,
7 F.3d 803, 806-07 (8th Cir. 1993) (same), with United States
v. Crouch, 46 F.3d 871, 875 (8th Cir. 1995) (reading Jenkins

narrowly), United States v. Barry, 133 F.3d 580, 582 (8th Cir.
1998) (acknowledging as general rule of circuit that "the
government is not bound by a defendant's offer to stipulate")
(quotation marks and citation omitted), United States v.
DeAngelo, 13 F.3d 1228, 1231 (8th Cir. 1994) (same), United
States v. Hiland, 909 F.2d 1114, 1134 (8th Cir. 1990) (same),
and United States v. Bass, 794 F.2d 1305, 1312 n.6 (8th Cir.
1986) (same). In a decision handed down after Old Chief, the
Eighth Circuit acknowledged that the Supreme Court's deci-
sion may have resolved the Rule 404(b)-stipulation question
once and for all. See United States v. Spence, 125 F.3d 1192,
1194 n.2 (8th Cir. 1997).

Tatel, Circuit Judge, with whom Edwards, Chief Judge,
Wald, and Silberman, Circuit Judges, join, dissenting: Al-
though Rule 404(b)'s first sentence--"[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the charac-
ter of a person in order to show action in conformity there-
with"--restrains prosecutors and sometimes deprives juries
of relevant evidence, Congress determined that the Rule's
valuable protection against the prejudice of bad acts evidence
outweighs its costs. Substituting its own policy judgment for
Congress', this court now converts Rule 404(b) from a re-
quirement that courts inquire into the purposes of character
evidence--"[t]he threshold inquiry a court must make before
admitting similar acts evidence under Rule 404(b) is whether
that evidence is probative of a material issue other than
character," Huddleston v. United States, 485 U.S. 681, 686
(1988)--into a question of relevance. Since bad acts evidence
is almost always relevant, the court has effectively erased
Rule 404(b)'s first sentence, making all character evidence
admissible under Rule 404(b)'s second sentence, subject to
Rule 403 balancing. Nothing in Old Chief v. United States,
117 S. Ct. 644 (1997), requires this result, nor does Old Chief
call for abandoning our former en banc decision in these
cases. I respectfully dissent.

Over a century ago, the Supreme Court recognized that
evidence of defendants' prior bad acts "only tend[s] to preju-
dice the defendants with the jurors, to draw their minds away
from the real issue, and to produce the impression that [the
defendants] were wretches whose lives were of no value to
the community, and who were not entitled to the full benefit
of the rules prescribed by law for the trial of human beings."
Boyd v. United States, 142 U.S. 450, 458 (1892). Eighty
years later, the drafters of the Federal Rules of Evidence
likewise recognized the powerful and invidious tendency of
character evidence to shift jurors' focus from defendants'
actions to their character, noting that it " 'subtly permits the
trier of fact to reward the good man and to punish the bad
man because of their respective characters despite what the
evidence in the case shows actually happened.' " Fed. R.
Evid. 404(a) advisory committee's notes (1972 Proposed

Rules) (quoting California Law Revision Commission, Report,
Record and Studies 615 (1964)).

Rule 404(b)'s first sentence excludes bad acts evidence
not for lack of relevance--to the contrary, bad acts evidence
is highly relevant--but because using the evidence causes
undue prejudice. "The overriding policy of excluding such
evidence, despite its admitted probative value," the Supreme
Court has explained, "is the practical experience that its
disallowance tends to prevent confusion of issues, unfair
surprise and undue prejudice." Michelson v. United States,
335 U.S. 469, 476 (1948). Elaborating further in Old Chief,
the Court said that " '[a]lthough ... "propensity evidence" is
relevant, the risk that a jury will convict for crimes other
than those charged--or that, uncertain of guilt, it will convict
anyway because a bad person deserves punishment--creates
a prejudicial effect that outweighs ordinary relevance.' " Old
Chief, 117 S. Ct. at 650 (quoting United States v. Moccia, 681
F.2d 61, 63 (1st Cir. 1982) (Breyer, J.)). Far from irrelevant,
propensity evidence tends to "overpersuade" the jury, Mi-
chelson, 335 U.S. at 476, powerfully aiding the prosecution
with its inexorable implication that a person who once com-
mitted a bad act probably also did the bad act for which he is
on trial. Rule 404(b)'s first sentence thus unambiguously
prohibits the government from using character evidence to
show propensity, excluding it to ensure that "[a] defendant
[is] tried for what he did, not for who he is." United States v.
Daniels, 770 F.2d 1111, 1116 (D.C. Cir. 1985) (quoting United
States v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977)). Be-
cause " 'it reflects and gives meaning to the central precept of
our system of criminal justice, the presumption of inno-
cence,' " United States v. Dockery, 955 F.2d 50, 53 (D.C. Cir.
1992) (quoting Daniels, 770 F.2d at 1118), prohibiting the use
of bad acts evidence to show propensity promotes fairer
trials.

Prejudicial though it is, bad acts evidence can be highly
probative of many things the government may legitimately
need to prove, such as knowledge, intent, or motive. Rule
404(b) strikes the balance between the prejudicial effect of
bad acts evidence and its probative value through a two-step
process. The court first determines whether the evidence's

only purpose is to prove propensity. Is the putative issue for
which it is offered uncontested? United States v. Foskey, 636
F.2d 517, 524 n.5 (D.C. Cir. 1980) (prosecution could not offer
character evidence to prove identity where identity was not
an issue) (citing United States v. James, 555 F.2d 992, 1000 &
n.46 (D.C. Cir. 1977)). Has the defendant, as in these cases,
conceded the non-propensity element for which the govern-
ment offered the evidence? United States v. Mohel, 604 F.2d
748, 753 (2d Cir. 1979). Or has the government failed to
convince the court of the authenticity of its proffered non-
propensity reasons? If the answer to any of these questions
is yes, the court must exclude the evidence under Rule
404(b)'s first sentence. But if the government articulates a
material and legitimate non-propensity purpose for the evi-
dence, it becomes admissible under Rule 404(b)'s second
sentence, subject to Rule 403 balancing. By its decision
today, this court essentially eliminates the first step of this
analysis.

Abandoning our original en banc decision in Crowder I, the
court reaches this result by relying on Old Chief and the
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 concession and agreement to a "must convict"
jury instruction. But Crowder I never held that a defen-
dant's concession renders bad acts evidence irrelevant under
Rule 402. Instead, it held that the concession makes the
evidence inadmissable under Rule 404(b)'s first sentence.
United States v. Crowder (Crowder I), 87 F.3d 1405, 1407
(D.C. Cir. 1996), vacated, 117 S. Ct. 760 (1997). An unambig-
uous 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. at 1410 (defendant's concession
"gives the Government everything the evidence could show
... without risk that the jury will use the evidence for im-
permissible propensity purposes"). As Crowder I put it, "the
defendant's concession of intent and knowledge deprives the
evidence of any value other than what Rule 404(b)'s first sen-

tence unambiguously prohibits: 'to prove the character of a
person in order to show action in conformity therewith.' "
Id. at 1407. The evidence remains relevant, just as the
excluded evidence in Old Chief remained relevant. But after
a defendant has conceded the purpose for which the govern-
ment seeks to introduce the evidence, that evidence no long-
er serves any function except to put character evidence
before the jury. Rule 404(b)'s first sentence therefore re-
quires its exclusion.

Far from invalidating Crowder I, Old Chief supports its
result. In Old Chief, the Supreme Court confronted a sce-
nario similar to the one we face here--a defendant trying to
stipulate away an element of his crime in order to preclude
the admission of prejudicial evidence--but the case arose
under a different rule, Rule 403. Unlike Rule 404(b)'s first
sentence's flat prohibition on using bad acts evidence to
demonstrate character, Rule 403 simply requires courts to
balance the prejudicial effect of bad acts evidence against its
probativeness. Notwithstanding the fact-sensitive nature of
Rule 403 balancing at which district court discretion "is at its
height," Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549,
555 (D.C. Cir. 1993), the Court ruled that when Old Chief
offered to remove his felon-status from the case by stipula-
tion, "the only reasonable conclusion was that" evidence of his
status that revealed the name or nature of his prior felony
would be so prejudicial that a district court's admission of
such evidence would always constitute an abuse of discretion,
Old Chief, 117 S. Ct. at 655-56. Explaining that the name
and nature of the defendant's felony remained relevant, id. at
649, and reiterating the usual rule that a defendant's stipula-
tion "generally cannot prevail over the Government's choice
to offer evidence showing guilt and all the circumstances
surrounding the offense," id. at 651, the Court nevertheless
found the risk of undue prejudice so great as to require a per
se exclusionary rule. If relevance was insufficient under Rule
403's relatively flexible standard, see id. at 652 (distinguishing
"probativeness" under Rule 403 from "relevance" under Rule

401), it is certainly insufficient under Rule 404(b)'s absolute
bar.

As the court now interprets Rule 404(b), its first sentence
never comes into play unless the government is careless
enough to confess that its only motive for introducing the
evidence is to prove the defendant's bad character. The clear
implication of today's decision is that Rule 404(b) is satisfied if
propensity evidence is remotely relevant to any issue, even a
conceded issue that the government need never prove. See
Maj. Op. at 9. Rule 404(b) requires more. It imposes an
affirmative burden on prosecutors to articulate--and on
courts to approve--material, non-propensity purposes for ad-
mitting bad acts evidence. As the Supreme Court put it in
Huddleston, "[t]he threshold inquiry a court must make
before admitting similar acts evidence under Rule 404(b) is
whether that evidence is probative of a material issue other
than character." 485 U.S. at 686. This burden constitutes
the defendant's first and most important protection against
the harmful effects of character evidence. Once that thresh-
hold is passed, the evidence's relevance will often tip Rule
403's scales in the government's favor, and once the evidence
is admitted the curative effects of limiting jury instructions
are an " 'unmitigated fiction.' " Daniels, 770 F.2d at 1118
(quoting Krulewitch v. United States, 336 U.S. 440, 453 (1949)
(Jackson, J., concurring)).

To be sure, a single piece of evidence can serve many
purposes, see Maj. Op. at 12-13, but that does not automati-
cally satisfy Rule 404(b). The government must actually
articulate one of these multiple purposes as a basis for
introducing the evidence. If it does, the evidence can come in
under the second sentence of Rule 404(b), subject to Rule 403
balancing. This balancing is precisely what Crowder I held
should happen in Crowder's case on remand, see Crowder I,
87 F.3d at 1413-14. It also could have happened in Davis's
case if the government had articulated an unconceded materi-
al purpose for the evidence such as motive. By holding that
the mere relevance of character evidence satisfies Rule
404(b), this court relieves the government from even this
relatively light burden of articulation and persuasion.

The court quotes lengthy passages of Old Chief dicta
regarding prosecutorial narrative and the jury's expectations

about proper proof, see Maj. Op. at 10-11, reiterating Old
Chief 's point that intrinsic evidence may be essential to
"creat[e] a coherent narrative of [a defendant's] thoughts and
actions in perpetrating the offense for which he is being
tried." Old Chief, 117 S. Ct. at 656. By their very nature,
however, "other bad acts" are separate from, not integral to,
"the offense ... being tried." Id. In Davis's case, the other
bad acts evidence concerned events that took place before the
offense with which he was charged occurred. The bad acts in
Crowder's case occurred after his first trial. In neither case,
therefore, did the evidence have any place in the govern-
ment's narrative about what actually happened on the dates
of the alleged crimes for which the defendants were on trial,
unless, of course, the government were permitted to argue
based on propensity. But Rule 404(b) requires the prosecu-
tion to produce some reason other than propensity to connect
a defendant's prior or subsequent acts with the "narrative" of
the charged offense. Absent such a connection, excluding the
bad acts evidence does not detract from the prosecution's
story in any way, except by forbidding tales of defendants'
bad character. Indeed, Old Chief recognized that the govern-
ment's authority to construct its narrative of the charged
crime is cabined by Rule 404(b). Id. at 651.

The court says that Crowder I would have permitted
defendants to control the prosecution's presentation of its
evidence, but most evidence never implicates Rule 404(b) at
all. Generally speaking, defendants' concessions cannot pre-
vent the admission of non-bad acts evidence intrinsic to their
crimes, such as Crowder's beeper. Presumptively admissible,
such evidence is subject only to Rule 403 under which a
concession functions merely as one factor in the balance.
Only because Rule 404(b), a specialized rule of evidence,
disfavors character evidence and imposes special burdens on
the prosecution can an unambiguous concession block admis-
sion of such evidence.

According to the court, the similarity in the bags involved
in Crowder's two drug transactions made it more likely that
he knew the substances were cocaine. See Maj. Op. at 13-14.
Because Crowder conceded knowledge, however, this evi-

dence would have to show something more, such as modus
operandi. Although the prosecution offered the evidence for
that purpose, the district court excluded it, finding that the
government failed to establish any unique similarities be-
tween the past and present acts. See Crowder I, 87 F.3d at
1413.

The court worries that a confused jury may decline to
convict, but Crowder and Davis's willingness to accept a
"must convict" jury instruction removes this danger. The
instruction also answers the court's concern that the stipula-
tions were unclear because they failed to refer to defendants
by name, see Maj. Op. at 11-12. The offered instruction
makes abundantly clear that possession, not knowledge or
intent, remains the only issue in dispute. See Appellants'
Supp. Br. at 9; Crowder I, 87 F.3d at 1412. As Crowder I
explained, both defense counsel made clear at trial that
possession was the only issue:

Davis's attorney ... told the district court that "[o]nce
the government has proved possession in this case, it's
our position they've proved knowledge and intent as
well." In both opening statement and closing argument,
Davis's attorney reiterated that knowledge and intent
were not at issue.... [Crowder's] attorney [likewise]
stated that "[t]he issue in this case is: Did he or did he
not possess those drugs? That's the threshold thing that
the Government has to be able to prove in this case. The
rest of it in terms of what the facts--what the evidence
will show, we concede."

Id. at 1411-12.

As Crowder I also explained, the instruction itself promotes
clarity. See id. at 1415. Unlike limiting jury instructions
that are used when character evidence is admitted and that
require juries to ignore the obvious implication of bad acts
evidence, a "must convict" instruction would not require the
jury to perform " 'mental gymnastic[s].' " Daniels, 770 F.2d
at 1118 (quoting Nash v. United States, 54 F.2d 1006, 1007
(2d Cir. 1932)). Rather, the trial court simply instructs the
jury that to convict it need find only possession beyond a

reasonable doubt. Hardly confusing, this approach protects
defendants from the prejudice of bad acts evidence while
preserving the government's ability to prove its case.

Aside from depriving the government of the ability to
introduce character evidence, Crowder and Davis's conces-
sions and proposed jury instructions would have made the
government's task easier--in effect transforming these distri-
bution cases into simple possession cases. Why, then, does
the government decline the offer? The answer is this: Bad
acts evidence is so prejudicial that by using it, the govern-
ment is more likely to convict, even with the burden of
proving all three elements of the crime, than if it need prove
only possession but cannot use the evidence. "Let's not kid
ourselves," said then-Chief Judge Penn, the trial judge in
Crowder's case, "the reason the government seeks to intro-
duce [404(b) evidence] is because it's prejudicial." United
States v. Crowder, Crim. No. 91-351, Trial Tr. at 603 (D.D.C.
March 3, 1992).

Silberman, Circuit Judge, dissenting: I adhere to the
views I expressed in the first en banc case, see United States
v. Crowder, 87 F.3d 1405, 1416 (D.C. Cir. 1996). I would only
add that, with all due respect to the Supreme Court, I do not
understand why it thought that this case was affected by the
Court's opinion in Old Chief v. United States, 117 S. Ct. 644
(1997).