United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 25, 2000 Decided December 1, 2000
No. 99-3060
United States of America,
Appellee
v.
Juan Bowie,
Appellant
Appeal from the United States District Court
for the District of Columbia
(97cr00247-01)
Jonathan Zucker, appointed by the court, argued the cause
and filed the briefs for appellant.
Thomas S. Rees, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Wilma A. Lewis,
U.S. Attorney, and John R. Fisher, Thomas J. Tourish, Jr.,
and Alan M. Boyd, Assistant U.S. Attorneys.
Before: Williams, Randolph, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: Juan Bowie appeals his convic-
tion for possession of counterfeit currency, claiming the dis-
trict court improperly admitted evidence of his possession of
counterfeit currency on an earlier occasion. We find the
evidence admissible, though not on all the grounds cited by
the district court, and therefore affirm the conviction.
I.
On May 16, 1997, a joint Federal Bureau of Investiga-
tion/Metropolitan Police Department narcotics task force exe-
cuted a search warrant at a southeast Washington, D.C.
apartment. During the search, an officer outside noticed
Paul Little sitting in the passenger side of a parked green
Pontiac with Tennessee plates, drinking a beer and listening
to loud music. Little told the officer the car belonged to
"Boo" and consented to a search. He also indicated that the
driver was upstairs in the apartment building and motioned
toward the apartment being searched. Officers found Bowie
in the apartment. He identified himself as "Boo" but denied
owning the Pontiac.
The search of the Pontiac turned up a large amount of
counterfeit currency and several items linking Bowie to the
car. More than $3,000 of counterfeit twenty and fifty dollar
bills were inside a console between the driver's and passen-
ger's seats, laying underneath a pager activation form signed
by Juan Bowie and dated May 16, 1997. In the glove
compartment was a Maryland traffic ticket issued ten days
earlier. The ticket named Juan Bowie and indicated he was
driving a car with the same Tennessee plates. The glove
compartment also contained a court document bearing Bow-
ie's printed name and what appeared to be his signature. An
additional $90 in counterfeit fifty and twenty dollar bills were
inside the pocket of a black leather jacket in the trunk. The
serial numbers on the counterfeit bills from the Pontiac's
console and from the trunk were identical.
Secret Service agents summoned to the scene recognized
the serial numbers on the bills as the subject of an ongoing
investigation. They took Bowie to the Secret Service's Wash-
ington Office for questioning. Agents testified at trial that
Bowie confessed to owning the money and the other items in
the Pontiac and admitted that, using his brother Gary as an
intermediary, he had paid somebody named Kevin $2,000 in
genuine currency for $10,000 in counterfeit bills, $1,000 of
which he had already spent. Despite his admission, the
Secret Service found none of Bowie's fingerprints on the bills.
This was not Bowie's first arrest for possession of counter-
feit money. One month earlier, police in Maryland caught
Bowie with counterfeit bills identical to those seized on May
16. At 11:30 a.m. on April 17, 1997, Prince George's County
police responded to an automobile accident involving Bowie.
He was driving a Chevrolet Celebrity owned by a third party;
with him was James Toler. The police arrested Bowie on an
outstanding warrant and impounded the car because Toler,
the passenger, did not have a valid driver's license. An
inventory of the car turned up approximately $1,300 in coun-
terfeit currency inside the pocket of a jacket. An officer
found an additional $80 in counterfeit bills on Toler, but found
none on Bowie. The serial numbers on all of these bills
matched those on the counterfeit bills later seized on May 16.
Inside the car was a bag containing a pair of Reebok shoes
and Reebok socks as well as a receipt issued at 10:52 a.m.
that day from a nearby Lady Footlocker store.
Later in the day of April 17, police recovered from the
Laurel City Mall Lady Footlocker a $50 counterfeit bill
bearing the same serial number as the other $50 bills seized
from the Chevrolet Celebrity. According to the manager of
the Lady Footlocker, just before 11:00 that morning, a medi-
um-built man wearing a black leather jacket purchased a pair
of Reebok running shoes and Reebok socks with a $50 bill
and a couple of twenties. The manager could not positively
identify Bowie from a photo array as the man who had passed
the counterfeit $50 bill. However, when Bowie and Toler
were arrested with identical counterfeit bills a short distance
away from the Laurel City Mall and only forty minutes after
the Lady Footlocker transaction, Bowie was wearing a black
leather jacket and Toler a green coat.
The indictment in this case charged Bowie with possessing
counterfeit currency only on May 16, not on April 17. The
prosecution sought to introduce evidence of the uncharged
April 17 incident as prior acts evidence under Fed. R. Evid.
404(b). The district court admitted the evidence over Bowie's
objection. As a result, a significant portion of the trial was
devoted to Bowie's arrest on April 17, 1997, the discovery of
counterfeit notes in the car and on the passenger that day,
and the passing of a counterfeit bill at the Lady Footlocker.
The jury convicted Bowie of possessing counterfeit obli-
gations and he was sentenced to 41 months incarceration.
Bowie's only argument on appeal is that admission of evi-
dence of the April 17 incident violated Fed. R. Evid. 404(b).
II.
Federal Rule of Evidence 404(b) prohibits "evidence of
other crimes, wrongs, or acts * * * to prove the character of
a person in order to show action in conformity therewith." It
permits such evidence for purposes unrelated to the defen-
dant's character or propensity to commit crime, such as
"proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident." Fed.
R. Evid. 404(b). When the government plans to introduce
"bad acts" evidence, it must, upon request by the accused,
give notice of the "general nature of any such evidence." Id.
We review the district court's Rule 404(b) rulings for abuse of
discretion. See United States v. Mathis, 216 F.3d 18, 25-26
(D.C. Cir. 2000); United States v. Gaviria, 116 F.3d 1498,
1532 (D.C. Cir. 1997).
The district court admitted evidence of the April 17 inci-
dent on alternative grounds. The court first found the evi-
dence not barred by Rule 404(b) on the basis that it was
"inextricably intertwined" with Bowie's possession of counter-
feit bills on May 16. Because the serial numbers on the bills
seized in April tallied with those seized in May, the April
evidence was, the court thought, "in some sense really evi-
dence of the same crime." The court also found that the
April evidence had permissible non-propensity purposes un-
der Rule 404(b), chiefly to establish Bowie's intent to defraud
and his knowledge of the bills' inauthenticity but also to
corroborate his confession to the Secret Service.
A.
We begin with the district court's ruling that Rule 404(b)
did not apply to the April evidence. The court relied on a
line of decisions in this and the other circuits holding that
Rule 404(b) does not apply to evidence that is "inextricably
intertwined" with the crime charged. See, e.g., United States
v. Allen, 960 F.2d 1055, 1058 (D.C. Cir. 1992). The theory is
that because Rule 404(b) applies only to evidence of a defen-
dant's "other crimes, wrongs, or acts," it creates a dichotomy
between crimes or acts that constitute the charged crime and
crimes or acts that do not. Professors Wright and Graham
explain: "One of the key words in determining the scope of
Rule 404(b) is 'other'; only crimes, wrongs, or acts 'other'
than those at issue under the pleadings are made inadmissible
under the general rule." See 22 Charles Alan Wright &
Kenneth W. Graham, Jr., Federal Practice and Procedure
s 5239, at 445 (1978). Courts have denominated evidence of
the same crime "intrinsic" and evidence of "other" crimes
"extrinsic."
As a practical matter, it is hard to see what function this
interpretation of Rule 404(b) performs. If the so-called "in-
trinsic" act is indeed part of the crime charged, evidence of it
will, by definition, always satisfy Rule 404(b). The rule bars
bad acts evidence only when the evidence is offered solely to
"prove the character of a person in order to show action in
conformity therewith." Fed. R. Evid. 404(b). Evidence that
constitutes the very crime being prosecuted is not of that
sort. So far as we can tell, the only consequences of labeling
evidence "intrinsic" are to relieve the prosecution of Rule
404(b)'s notice requirement and the court of its obligation to
give an appropriate limiting instruction upon defense coun-
sel's request. See Fed. R. Evid. 404(b) advisory committee's
note on the 1991 amendment (indicating that the notice
requirement does not apply to "intrinsic" evidence); Fed. R.
Evid. 105 (mandating, upon request, limiting instruction for
multi-purpose evidence); United States v. Lewis, 693 F.2d
189, 197 (D.C. Cir. 1982) (requiring a court to issue a limiting
instruction without prior request only if the evidence "has the
potential for substantially prejudicing the defendant."); Unit-
ed States v. Miller, 895 F.2d 1431, 1439 (D.C. Cir. 1990).
Bifurcating the universe into intrinsic and extrinsic evi-
dence has proven difficult in practice. Which of a defendant's
acts should be considered the charged crime and which
should not is often uncertain. In order to brighten the line
separating intrinsic and extrinsic evidence, many courts have
focused on the connection between a given crime or act and
the charged crime. When evidence is "inextricably inter-
twined" with the charged crime, courts typically treat it as
the same crime.1 Every circuit now applies some formulation
of the inextricably intertwined "test." See United States v.
Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989); United
States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000); United
States v. Gibbs, 190 F.3d 188, 217-18 (3d Cir. 1999); United
States v. Lipford, 203 F.3d 259, 268 (4th Cir. 2000); United
States v. Morgan, 117 F.3d 849, 861 (5th Cir. 1997); United
States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995); United
States v. Hughes, 213 F.3d 323, 329 (7th Cir. 2000); United
States v. O'Dell, 204 F.3d 829, 833-34 (8th Cir. 2000); United
States v. Matthews, 226 F.3d 1075, 1082 (9th Cir. 2000);
United States v. O'Brien, 131 F.3d 1428, 1432 (10th Cir.
1997); United States v. Smith, 122 F.3d 1355, 1359 (11th Cir.
1997). This court has characterized evidence as inextricably
intertwined with the charged crime in four cases. See United
States v. Allen, 960 F.2d at 1058; United States v. Washing-
ton, 12 F.3d 1128, 1134-35 (D.C. Cir. 1994); United States v.
__________
1 "Inextricably intertwined," "intricately related," "intimately re-
lated," and other variations on this theme are used by different
courts to express the same concept, namely the interconnectedness
between a given crime or act and the charged crime. We will use
"inextricably intertwined" in this opinion because the district court
relied on it and it is recited more often in the case law.
Badru, 97 F.3d 1471, 1473-75 (D.C. Cir. 1996); United States
v. Gartmon, 146 F.3d 1015, 1020 (D.C. Cir. 1998).
As we have written, treating evidence as inextricably inter-
twined not only bypasses Rule 404(b) and its attendant notice
requirement, but also carries the implicit finding that the
evidence is admissible for all purposes notwithstanding its
bearing on character, thus eliminating the defense's entitle-
ment, upon request, to a jury instruction. See Fed. R. Evid.
105. There is, as well, a danger that finding evidence "inex-
tricably intertwined" may too easily slip from analysis to
mere conclusion. What does the "inextricably intertwined"
concept entail? When is a defendant's crime or act so
indistinguishable from the charged crime that an item of
evidence is entirely removed from Rule 404(b)?
We have not defined "inextricably intertwined" in the few
Rule 404(b) cases in which we used those terms. See United
States v. Allen, 960 F.2d at 1058; United States v. Washing-
ton, 12 F.3d at 1134-35; United States v. Badru, 97 F.3d at
1473-75; United States v. Gartmon, 146 F.3d at 1020. Our
sister circuits have attempted various formulations. The
Seventh Circuit, for instance, examines "whether the evidence
is properly admitted to provide the jury with a complete story
of the crime on trial, whether its absence would create a
chronological or conceptual void in the story of the crime or
whether it is 'so blended or connected' that it incidentally
involves, explains the circumstances surrounding, or tends to
prove any element of, the charged crime." United States v.
Hughes, 213 F.3d 323, 329 (7th Cir. 2000). According to the
Second Circuit, "evidence of uncharged criminal activity is not
considered other crimes evidence under Fed. R. Evid. 404(b) if
it arose out of the same transaction or series of transactions
as the charged offense, if it is inextricably intertwined with
the evidence regarding the charged offense, or if it is neces-
sary to complete the story of the crime on trial." United
States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000).
We do not find these formulations particularly helpful.
Some are circular: inextricably intertwined evidence is intrin-
sic, and evidence is intrinsic if it is inextricably intertwined.
Others are over-broad. The "complete the story" definition
of "inextricably intertwined" threatens to override Rule
404(b). A defendant's bad act may be only tangentially
related to the charged crime, but it nevetheless could "com-
plete the story" or "incidentally involve" the charged offense
or "explain the circumstances." If the prosecution's evidence
did not "explain" or "incidentally involve" the charged crime,
it is difficult to see how it could pass the minimal requirement
for admissibility that evidence be relevant. See Fed. R. Evid.
401 and 402.
The district court invoked the "res gestae" doctrine in
finding the April 17 evidence inextricably intertwined with the
charged crime. See 10/2/98 Tr. 98. To the extent this
Latinism2 was meant to suggest that the April 17 evidence
was outside Rule 404(b) because it "explained the events" or
"completed the story," we do not agree. As we have said, all
relevant prosecution evidence explains the crime or completes
the story. The fact that omitting some evidence would
render a story slightly less complete cannot justify circum-
venting Rule 404(b) altogether. Moreover, evidence neces-
sary to complete a story--for instance by furnishing a motive
or establishing identity--typically has a non-propensity pur-
pose and is admissible under Rule 404(b). We see no reason
to relieve the government and the district court from the
obligation of selecting from the myriad of non-propensity
purposes available to complete most any story.
We recognize that, at least in a narrow range of circum-
stances not implicated here, evidence can be "intrinsic to" the
charged crime. Rule 404(b), for instance, would not have
barred testimony from a witness who saw Bowie put the
counterfeit currency in the Pontiac's console. Although such
testimony relates to one of defendant's acts, the act is the
charged crime of possessing counterfeit currency.3 See, e.g.,
__________
2 See United States v. Krezdorn, 639 F.2d 1327, 1332 (5th Cir.
1981) (stating that the inextricably intertwined doctrine is some-
times labeled res gestae, "an appellation that tends merely to
obscure the analysis underlying the admissibility of the evidence.").
3 As noted earlier, the "intrinsic" label is unnecessary, as such
evidence by nature does not "prove the character of a person in
Badru, 97 F.3d at 1474-75 (evidence "offered as direct evi-
dence of the fact in issue" is not an "other" crime). In other
words, if the evidence is of an act that is part of the charged
offense, it is properly considered intrinsic. In addition, some
uncharged acts performed contemporaneously with the
charged crime may be termed intrinsic if they facilitate the
commission of the charged crime. See 22 Wright & Graham,
supra, s 5239, at 446-47 (noting that the "inseparable
crimes" interpretation of Rule 404(b)'s "other" crimes lan-
guage "seems justifiable when used to cover situations where
the seller of contraband must necessarily be shown to have
possessed it....").
On the other hand, we are confident that there is no
general "complete the story" or "explain the circumstances"
exception to Rule 404(b) in this Circuit. Such broad exclu-
sions have no discernible grounding in the "other crimes,
wrongs, or acts" language of the rule. Rule 404(b), and
particularly its notice requirement, should not be disregarded
on such a flimsy basis.
As to Bowie's case, we do not see how his acts on April 17
constituted the same crime as that charged in the indictment.
The authorities seized the counterfeit bills he had in posses-
sion on April 17, so the bills he possessed on May 16 could not
have been the same ones. Contrast United States v. Towne,
870 F.2d 880, 886 (2d Cir. 1989) ("The continuous possession
of the same gun does not amount to a series of crimes, but
rather constitutes a single offense."). All of the bills--those
recovered in April and those seized in May--were doubtless
from the same supplier and possibly the same batch, and the
evidence indicated that Bowie purchased them at one time.
But the indictment charged him only with possession of the
counterfeit bills found on May 16. Given the charge, the
April evidence was relevant, for reasons we give later. But it
cannot be that all evidence tending to prove the crime is part
of the crime. If that were so, Rule 404(b) would be a nullity.
__________
order to show action in conformity therewith." It is thus admissible
whether viewed as "intrinsic" or as containing no propensity infer-
ence.
While we therefore disagree with the district court that the
April evidence was outside Rule 404(b), we agree with the
court's alternative ruling that the government satisfied Rule
404(b).
B.
Rule 404(b) is a rule of inclusion rather than exclusion.
"[A]lthough 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 circum-
stance'--for the purpose of proving that a person's actions
conformed to his character." United States v. Crowder, 141
F.3d 1202, 1206 (D.C. Cir. 1998) (en banc) (Crowder II),
quoting United States v. Jenkins, 928 F.2d 1175, 1180 (D.C.
Cir. 1991). Compliance with Rule 404(b) does not itself
assure admission of the other crimes evidence. If the defen-
dant moves under Rule 403, the court may exclude the
evidence on the basis that it is "unfairly prejudicial, cumula-
tive or the like, its relevance notwithstanding." See Old Chief
v. United States, 519 U.S. 172, 179 (1997). The Supreme
Court made much the same 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."
Rule 404(b) thus is not so much a character rule as a
special aspect of relevance, constituting but one of many
exceptions to the general rule that "all relevant evidence is
admissible." Fed. R. Evid. 402. The rule does not prohibit
character evidence generally, only that which lacks any pur-
pose but proving character. See Crowder II, 141 F.3d at
1206. A proper analysis under Rule 404(b) begins with the
question of relevance: is the other crime or act relevant and,
if so, relevant to something other than the defendant's char-
acter or propensity? If yes, the evidence is admissible unless
excluded under other rules of evidence such as Rule 403.
Stated more formally, a Rule 404(b) objection will not be
sustained if: 1) the evidence of other crimes or acts is
relevant in that it has "any tendency to make the existence of
any fact that is of consequence to the determination of the
action more probable or less probable than it would be
without the evidence," Fed. R. Evid. 401; 2) the fact of
consequence to which the evidence is directed relates to a
matter in issue other than the defendant's character or
propensity to commit crime; and 3) the evidence is sufficient
to support a jury finding that the defendant committed the
other crime or act, see Huddleston v. United States, 485 U.S.
681, 689-90 (1988). See also United States v. Mathis, 216
F.3d 18, 26 (D.C. Cir. 2000); United States v. Gaviria, 116
F.3d 1498, 1532 (D.C. Cir. 1997); United States v. Washing-
ton, 969 F.2d 1073, 1080-81 (D.C. Cir. 1992).
In light of this standard, the district court properly admit-
ted evidence of the April 17 incident to show Bowie's intent
and knowledge. To convict Bowie under 18 U.S.C. s 472,4
the government had to prove three elements: possession of
counterfeit notes, intent to defraud, and knowledge the notes
were counterfeit. See, e.g., Albillo-Figueroa v. INS, 221 F.3d
1070, 1073 (9th Cir. 2000); United States v. Bolin, 35 F.3d
306, 309 (7th Cir. 1994). Intent and knowledge were there-
fore facts of consequence to the case. Evidence that Bowie
possessed and passed counterfeit notes on a prior occasion
was relevant because it decreased the likelihood that Bowie
accidentally or innocently possessed the counterfeit notes on
May 16. See Fed. R. Evid. 401; United States v. Burch, 156
F.3d 1315, 1324 (D.C. Cir. 1998). Intent and knowledge are
also well-established non-propensity purposes for admitting
evidence of prior crimes or acts. See Fed. R. Evid. 404(b).
The government presented sufficient evidence for a jury to
conclude that Bowie possessed counterfeit currency on April
17 and passed a counterfeit note that day at the Laurel City
__________
4 Title 18, U.S.C. s 472 states: "Whoever, with intent to defraud,
passes, utters, publishes, or sells, or attempts to pass, utter, pub-
lish, or sell, or with like intent brings into the United States or
keeps in possession or conceals any falsely made, forged, counter-
feited, or altered obligation or other security of the United States,
shall be fined under this title or imprisoned not more than fifteen
years, or both."
Mall Lady Footlocker. The government established that a
person matching Bowie's description passed a counterfeit bill
with the same serial number as on the bills found in the car
Bowie was driving and on his passenger. Although the police
found no counterfeit bills on Bowie's person, the jury heard
testimony that the man passing the bill wore a black leather
jacket, and that when Bowie and Toler were arrested barely
forty minutes later with matching counterfeit bills and a
receipt from the Lady Footlocker, Bowie was wearing a black
leather jacket and Toler a green coat.
This much Bowie does not contest. Rather, he claims that
the district court inadequately weighed the probative value of
the evidence against its potential for unfair prejudice. Evi-
dence of other crimes or acts having a legitimate non-
propensity purpose undoubtedly may contain the seeds of a
forbidden propensity inference. Recognizing this possibility,
we have consistently stated that Rule 403 may bar evidence
otherwise admissible under Rule 404(b). See, e.g., United
States v. Mathis, 216 F.3d 18, 26 (D.C. Cir. 2000). We do not,
however, prescribe any specific form this balancing must
take, and will not reverse for failure to make a formal Rule
403 finding if the applicable considerations are apparent from
the record. See United States v. Gartmon, 146 F.3d 1015,
1022 (D.C. Cir. 1998); United States v. Washington, 12 F.3d
1128, 1135 (D.C. Cir. 1994). Bowie's claim that the district
court performed no Rule 403 analysis at all regarding intent
and knowledge is belied by the record. The court may not
have recited Rule 403 verbatim, but it expressly considered
the probative value versus the risk of unfair prejudice before
admitting evidence of the April 17 events. See 11/10/98 Tr.
23-24; United States v. Gartmon, 146 F.3d 1015, 1022 (D.C.
Cir. 1998).
On the probative value side of the balance, Bowie claims
that his offer to stipulate deprived evidence of intent and
knowledge of its probative force because "those issues were
not even contested." Brief of Appellant at 24. Before trial,
Bowie orally offered to stipulate that whoever possessed the
currency seized on May 16 had the requisite intent to defraud
and guilty knowledge, but Bowie never presented a proposed
written stipulation or a jury instruction.5 Two months before
trial, Bowie told the court that "we'll stipulate to whoever had
the intent knew it was--we're not going to put at issue that
whoever had it didn't know it was counterfeit." 10/2/98 Tr.
96. Five weeks later, he stated that "if you want intent, we'll
stipulate to intent. If you want knowledge, we'll stipulate to
knowledge. We'll stipulate to absence of mistake....
Knowledge can be just about anything [the prosecutor] wants
as far as the intent to defraud or the intent or the absence of
mistake or knowledge." 11/10/98 Tr. 20-21. Bowie's offers
encompassed only intent and knowledge, not corroboration:
he never offered to stipulate that he confessed to owning the
money and other items found in the Pontiac on May 16 and to
having paid $2,000 in genuine currency for $10,000 in counter-
feit.
Whatever merit Bowie's stipulation argument had before,
see United States v. Crowder, 87 F.3d 1405 (D.C. Cir. 1996)
(en banc) (Crowder I), vacated, 519 U.S. 1087 (1997), recent
cases in this court and the Supreme Court have eviscerated
its conceptual underpinnings. We briefly adopted Bowie's
reasoning in Crowder I but later discarded it in light of Old
Chief v. United States, 519 U.S. 172 (1997). In Crowder II,
we held 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 ele-
ment, even if the defendant's proposed stipulation is unequiv-
ocal, and even if the defendant agrees to a jury instruction of
the sort mentioned in [Crowder I]." Crowder II, 141 F.3d at
1209. Following the Supreme Court's lead in Old Chief, we
reiterated that evidence may be relevant under the Federal
Rules of Evidence whether or not the issue it relates to is
disputed. See 141 F.3d at 1206; see also Old Chief, 519 U.S.
at 179 (evidence going to an undisputed fact may be relevant,
and "its exclusion must rest not on the ground that the other
__________
5 Bowie suggested at one point that a "must-charge" jury instruc-
tion like that discussed in United States v. Crowder, 87 F.3d 1405
(D.C. Cir. 1996) (en banc), vacated, 519 U.S. 1087 (1997), would do.
He did not offer his own jury instruction or one from a case that
has not been overruled.
evidence has rendered it 'irrelevant,' but on its character as
unfairly prejudicial, cumulative or the like, its relevance not-
withstanding"). We concluded that offers to stipulate may
figure into the Rule 403 balancing, but cautioned that such
offers are not determinative. See 141 F.3d at 1210.
Bowie's stipulation argument is identical to the one we
rejected in Crowder II. In the district court, Bowie tried to
deflect the impact of that case by arguing that "based on
Crowder I, we could offer to stipulate and give a must-charge
instruction and in so doing estop the government from intro-
ducing that. All Crowder II has done is said no, we're not
going to let the defendant make the choice. We're going to
let the Court make the choice." 11/10/98 Tr. 20-21. Bowie's
supposition misses the fundamental point of Old Chief and
Crowder II, which is that evidence of undisputed issues may
be relevant and highly probative regardless of the defen-
dant's willingness to concede certain points. Crowder II does
not, as Bowie insists, transfer the power to "estop" the
government from the defendant to the district court; rather,
it denies that offers to stipulate confer any such power at all.
To exclude relevant evidence based on an offer to stipulate,
the district court must do so under Rule 403, mindful of the
Supreme Court's admonition in Old Chief of the central role
of narrative integrity and our instruction in Crowder II that
an offer to stipulate does not automatically tilt the Rule 403
balance. See Old Chief, 519 U.S. at 187-89; Crowder II, 141
F.3d at 1210.
Aside from the conceptual deficiencies in Bowie's argument,
the stipulations he offered are indistinguishable from the
offers to stipulate that we rejected in Crowder II as wholly
insufficient. In Crowder II, the defendants offered to con-
cede "only that 'anybody who possessed those drugs pos-
sessed them with the intent to distribute'." See 141 F.3d at
1208. Similarly, Bowie offered to stipulate that some hypo-
thetical person in possession of counterfeit currency had the
requisite intent and knowledge. Crowder II is so closely on
point to Bowie's proposed stipulation that we can transplant
wholesale the reasoning from that case, changing only the
defendant's name and the label of the crime. As in Crowder
II, some hypothetical individual was not on trial, Bowie was.
And it was Bowie's intent and knowledge, not "anybody's,"
that the prosecution had to establish to the jury's satisfaction.
Yet the prosecution's evidence of Bowie's prior counterfeit
currency possession--a possession so close in time and cir-
cumstance to that charged in the indictment--was not meant
to show that someone had intent and knowledge. The evi-
dence was introduced to prove that Bowie had the intent to
defraud and that Bowie knew what he was possessing. Bow-
ie's proposed stipulation could not possibly have substituted
for such proof. It did not even mention him by name. Far
from a choice between "propositions of slightly varying ab-
straction," the choice in this case was between concrete
evidence of the defendant's actions giving rise to natural and
sensible inferences, and abstract stipulations about hypotheti-
cal persons not on trial. See Crowder II, 141 F.3d at 1208.
Bowie's offer to stipulate contains yet another fatal defect.
The district court admitted the prior crimes evidence in part
to corroborate Bowie's confession.6 Yet Bowie never offered
to stipulate that he told the Secret Service that he owned the
counterfeit currency and other items found in the Pontiac on
May 16 and that he had paid $2,000 in genuine currency for
$10,000 in counterfeit. The April evidence corroborates the
last element of Bowie's confession because it increases the
probability that Bowie did buy $10,000 in counterfeit currency
for $2,000 in genuine currency. See Fed. R. Evid. 401.
Adding the money seized in April (approximately $1,400) to
that seized in May (approximately $3,100) gets us closer to
the $10,000 Bowie said he bought, less the $1,000 he said he
spent. Although Rule 404(b) does not explicitly list corrobora-
tion among its examples of non-propensity purposes, evidence
of other crimes or acts is admissible to corroborate evidence
that itself has a legitimate non-propensity purpose. See
United States v. Everett, 825 F.2d 658, 660 (2d Cir. 1987);
United States v. Wimberly, 60 F.3d 281, 285 (7th Cir. 1995);
United States v. Pitts, 6 F.3d 1366, 1370-71 (9th Cir. 1993);
United States v. Blakeney, 942 F.2d 1001, 1018-19 (6th Cir.
__________
6 Bowie has not argued against the admission of his confession.
1991); United States v. Jiminez, 224 F.3d 1243, 1250 (11th
Cir. 2000); United States v. McLean, 138 F.3d 1398, 1405
(11th Cir. 1998).7 Bowie's stipulation argument fails to recog-
nize the legitimacy of corroboration as a non-propensity pur-
pose. To merit consideration, an offer to stipulate must, at a
minimum, address all legitimate uses of a piece of evidence.
See, e.g., United States v. Johnson, 40 F.3d 436, 441 n.3 (D.C.
Cir. 1994).
As in Crowder II, the April evidence had "multiple utility."
141 F.3d at 1208. It not only tended to establish Bowie's
intent and knowledge, but also corroborated Bowie's confes-
sion to the Secret Service. 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." Old Chief, 519 U.S. at 187.
Bowie's arguments on the prejudice side of the Rule 403
balance warrant only a few words. Contrary to his claim that
the prior crimes evidence threatened to mislead the jury
because Bowie had not been convicted, the chain of inferences
connecting Bowie to the money on April 17 was easily within
the jury's reach. See supra pp. 11-12; see also Weinstein's
Federal Evidence s 404.21[2][b] (1997) ("extrinsic evidence
need not establish that other criminal activity resulted in a
conviction"). As for Bowie's argument that the prior crimes
evidence created a substantial risk of convicting him based on
character evidence, the district court did not abuse its discre-
tion in finding that the risk of unfair prejudice did not
substantially outweigh its probative value. See Fed. R. Evid.
403.
__________
7 Some courts have imposed additional requirements for bad acts
evidence introduced for the purpose of corroboration, requiring that
the corroboration be direct and the corroborated matter be signifi-
cant. See, e.g., United States v. Everett, 825 F.2d 658, 660 (2d Cir.
1987); United States v. Pitts, 6 F.3d 1366, 1370-71 (9th Cir. 1993).
We see no reason to create such special rules. The underlying
concerns are properly addressed through Rule 403.
In sum, neither Rule 404(b) nor Rule 403 barred admission
of the April 17 evidence to prove Bowie's intent and knowl-
edge and to corroborate his confession to the Secret Service.
Affirmed.