(dissenting).
I respectfully dissent. In my opinion Homer Phillips was denied a fair trial by the admission, over his repeated objection, of the testimony detailing the transaction between defendant and Tommie Phillips, the denial of repeated motions to strike the testimony, and the failure to limit the jury’s consideration of that testimony to the element of knowledge and intent. The likely result of these rulings was confusion in the jurors’ minds of the offense charged in the indictment with whatever offense was disclosed by the testimony of the Tommie Phillips transaction.
I agree with the majority that defendant was not prejudiced through surprise at the introduction of evidence of the Tommie Phillips transaction. The majority’s second reason, as I understand it, for approving the admissibility of the evidence, is that this transaction was “blended or connected with” the crime of concealing the narcotics found in the flat. There was no evidence, nor legal inference justified, that the tinfoil pack*82age the defendant gave to Tommie Phillips contained heroin taken from the narcotics in the flat. Even if such an inference were justified, the transaction was not relevant to “complete the story of the crime on trial.” McCormick, Evidence § 157, at 328 (1954); compare United States v. Levine, No. 14921, 7th Cir., 372 F.2d 70.
The third reason stated by the majority, that the Tommie Phillips transaction testimony was offered to prove knowledge and intent, does not of itself justify the admission of the testimony. The underlying purpose of the rule as to admission of “other crimes” testimony is to prevent unfair prejudice to the defendant while admitting all relevant evidence. That purpose is subverted by the majority’s result because the prejudice caused by the testimony of the Tommie Phillips incident far outweighs its probative value on the issue of knowledge and intent. A balancing rather than mechanical approach has been applied by the courts where the “other crime” was not substantially similar to the crime charged, Enriquez v. United States, 314 F.2d 703 (9th Cir. 1963),1 and has been approved where the issue of intent has not been raised by the defendant. United States v. Smith, 283 F.2d 760 (2d Cir. 1960) (dicta), cert. denied, 365 U.S. 851, 81 S.Ct. 815, 5 L.Ed.2d 815 (1961); cf. United States v. Magee, 261 F.2d 609 (7th Cir. 1958). The late Professor McCormick sharply criticizes the mechanical approach and cites a number of state cases, in support of the balancing approach to the other-crimes evidentiary problem. McCormick, op. cit. supra § 157, at 332.
In my view the factors to be considered in determining the admissibility of the testimony of the Tommie Phillips transaction are:
1. the weight of the evidence that the defendant committed a crime by participating in the transaction;
2. the probative value of the testimony on the issues of intent and knowledge;
3. the necessity of using it in view of the issues raised by the defendant and the other evidence available to, and used by, the prosecution;
4. the danger of arousing hostility in the jury by showing the defendant to be a “bad man”; and
5. the danger of confusing or misleading the jury by the introduction of a side issue and consuming an undue amount of time.
See Michelson v. United States, 335 U.S. 469, 475-476, 69 S.Ct. 213, 93 L.Ed. 168 (1948); McCormick, op. cit. supra § 157, at 332, & § 152, at 319; Uniform Rule of Evidence 45.2 3
On this record, the first two of these factors weigh in favor of admission, but not heavily. With respect to the first, there is some doubt that the defendant committed a crime by handing the tinfoil package to Tommie Phillips. There was no proof of knowledge by defendant that the package given to Tommie Phillips contained heroin, and the government was hard put to show that this package was the one found by the government chemist to contain heroin. As for the second factor, the dissimilarity between an exchange (the “other crime” with Tommie Phillips) and a conceal*83ment (the crime charged) would not of itself bar admission on this record. Compare Enriquez v. United States, 314 F.2d 703 (9th Cir. 1963).3
The last three factors, on the other hand, weigh heavily for exclusion of the evidence:
Third factor. There was other evidence not only available but used by the government from which the jury could find intent and knowledge.4 Moreover there was no substantial issue of intent. Yet the jury was told of the incident in the government’s opening argument over defense objection. The first government witness began his testimony by relating the incident, again over objection, and the incident grew in importance as the government’s case in chief progressed. A different question would be presented if the defendant had specifically raised the issue of knowledge and intent. The government then might properly meet that defense by introducing the other-crimes testimony on rebuttal. But, in fact, the defendant did not take the stand or offer other evidence on this issue. I think it was unfair to buttress an otherwise sufficient amount of evidence on this issue with testimony of questionable probative value and undisputable prejudicial effect.5 United States v. Smith, 283 F.2d 760 (2d Cir. 1960) (dicta), cert denied, 365 U.S. 851, 81 S.Ct. 815 (1961). The presumption of innocence cannot raise the issue so as to justify serious prejudice in these circumstances.6 United States v. Magee, 261 F.2d 609 (7th Cir. 1958).
Fourth factor. This testimony unduly prejudiced the defendant by giving an aspect of criminality to him — even if the testimony of the Tommie Phillips transaction was not legally sufficient to show that the defendant committed a crime, it raised the specter of his “bad” character.
Fifth factor (and most important in my view). The undue time and emphasis involved in the testimony of the Tommie Phillips incident, as well as its dramatic impact, must have confused the jury. This was not only the most interesting story in the government’s case, it was the first one told. The finding in the flat of the offending heroin, the *84subject of indictment, was not of comparable interest. And the Tommie Phillips story is the one which must have made the most vivid impression on the jury. Relevancy required showing that the tinfoil package handed to Tommie Phillips contained heroin. This necessitated establishing the “chain of possession” from the time defendant gave Tommie Phillips the package until the contents were chemically tested. And this in turn required introduction of the dramatic details of Tommie Phillips’ attempted getaway, the pursuit, the throwing away of the package, and the arrest. Faced with the admission of this evidence, defense counsel was forced to attempt to reduce its effect by challenging, with considerable success, the contents of the package through cross-examination, thus highlighting this evidence for the jury. This diverted the jury to the question: “Did that (Tommie Phillips) package contain heroin?” and away from the central issue: “Did the defendant violate section 174 by possession of heroin in the flat?”
Neither cross-examination by defense counsel nor closing argument by government counsel could supplant the trial court’s duty to insure that the jury fully understood the issues and the relevance of the evidence to them. The general instruction quoted by the majority did not adequately fulfil this duty either. The “crime that is charged in the indictment” was not specific enough to distinguish the Tommie Phillips transaction from possession in the flat.7 The court’s instruction that the indictment charged “possession or concealment” as defined in its previous instructions was no more enlightening to the jury, for both this phrase and the previous instructions were broad enough to apply to both sets of facts.
It is true that defendant tendered no written instruction. His counsel did say, “We don’t have any instruction,” but this was clearly a reference to a reasonable doubt instruction. A great part of the colloquy over instructions was given to the question of an instruction limiting the testimony of the Tommie Phillips episode to the knowledge and intent element. Defendant’s attorney persisted in arguing for an instruction using care to inform the jury that defendant was charged only with possession of the heroin in the flat and not with possession of the heroin which Tommie Phillips received from defendant and threw away. The district court finally decided to give the general instruction set out in the majority opinion, having stated it would not give “the instruction suggested by the defense” because it wanted to instruct generally on the point and not “upon the facts of the case.” Defense attorney asked whether the court was “denying the tendered instruction I have suggested. * * * ” The court said “Yes.”
The narcotics cases referred to in footnote 4 of the majority opinion do not militate against my dissent. First of all, determination of whether the general rule or exception applies depends upon the facts in each case. In Medrano v. United States, 285 F.2d 23 (9th Cir. 1960), cert. denied, 366 U.S. 968, 81 S.Ct. 1931, 6 L.Ed.2d 1258 (1961), the more detailed instruction given by the court is sufficient to distinguish that case. And there was no indication by the court that the “other crime” was any different from that charged. In Bible v. United States, 314 F.2d 106 (9th Cir.), cert. denied, 375 U.S. 862, *8584 S.Ct. 131, 11 L.Ed.2d 89 (1963), the court instructed the jury at the time the testimony was admitted, and again at the end of the case, with respect to the limitation to the purpose of the testimony. And the crime charged there was precisely the same as the “other crimes.” In United States v. Abbamonte, 348 F.2d 700 (2d Cir. 1965), cert. denied, 382 U.S. 982, 81 S.Ct. 1931, 6 L.Ed.2d 1258 (1966), the court merely stated the general rule, citing United States v. Massiah, 307 F.2d 62 (2d Cir. 1962), rev’d on other grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). And in Massiah there was no discussion whatever of the rule. In none of these cases was there any serious question of introducing a side issue which would have confused the jury.
Finally, United States v. Wall, 225 F.2d 905 (7th Cir. 1955), cert. denied, 350 U.S. 935, 76 S.Ct. 307, 100 L.Ed. 816 (1956), cited by the majority as primary authority, does not support admission of the Tommie Phillips incident. That case involved the exception allowing proof of other crimes showing the “distinctive handiwork” of the defendant on the issue of identity. The unique “modus operandi” of the defendant there rendered the other-crimes evidence in that case highly probative of identity. And the other-crimes evidence there involved no vivid side issue capable of prejudicing the defendant.
The “bad man” prejudice from the Tommie Phillips incident was aggravated by Agent Pringle’s testimony that the defendant had told him he did not want to go “back to jail.” I find it impossible to dismiss the “back to jail” testimony as having “very slight effect” as the majority indicates. Although the reference was obviously “brief,” it cannot be called “unemphasized.” Immediately following this statement of Pringle’s, defense counsel moved to strike the testimony or, alternatively, for a mistrial. The court instructed the jury to disregard that portion of Agent Pringle’s testimony and then adjourned court for the day. As the jury filed by the witness stand, one juror remarked to Agent Pringle to the effect that he had “better watch that,” clearly referring to the “back to jail” remark that was stricken. If the effect of the testimony and its being stricken impelled one juror to this impropriety, I doubt that it can be said to have had merely slight effect on the other jurors.
Due process required that the jury try Homer Phillips on the crime charged. I have a grave doubt that the jury could have done so on this record. Accordingly, resolving that doubt in favor of defendant, I would reverse and remand for a new trial.
. In Enriquez, the Ninth Circuit held that evidence of prior use of marihuana was inadmissible on the issue of intent in a case involving the sale of heroin. 314 F.2d at 717.
. In discussing the background of the rule in a context not relevant here, the Michelson Court said:
The inquiry [into other crimes] is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so over-persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice. (Footnotes omitted.)
335 U.S. at 475-476, 69 S.Ct. at 218.
. It appears from the cases that the similarity between the “other crime” and the crime charged need not be as precise in cases involving the intent exception, such as Enriques:, as in cases involving the “distinctive handiwork” exception. B. g., compare United States v. Wall, 225 F.2d 905 (7th Cir. 1955), cert. denied, 350 U.S. 935, 76 S.Ct. 307, 100 L.Ed. 816 (1956), with United States v. Magee, 261 F.2d 609 (7th Cir. 1958).
. There was the finding of the substance, stipulated to be heroin, in the flat used at times by the defendant, the testimony of codefendant Melsia Delaney of her relationship with defendant and the admission of the defendant that both the “pad” (apartment) and the heroin were his.
. In this context it should be pointed out that the rule and its exceptions are premised upon the inherent existence of prejudice in evidence of other crimes— which, in some circumstances, is overcome by considerations of relevancy.
. As Lord Sumner, an English jurist, has put it:
Before an issue can be said to be raised, which would permit the introduction of suck evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue raised must be the one to which the prejudicial evidence is relevant. The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defenses in order to rebut them at the outset with some damning piece of prejudice.
Thompson v. The King, [1918] App.C. 221, 232.
In Smith, the Second Circuit affirmed on the ground that other-crimes evidence was admissible on an entrapment issue. But with respect to the issue of intent, the court said it was not admissible since the “only” issue was whether any sale of heroin had been made. 283 F.2d at 763. In Magee, a bank robbery case, this court noted that other bank robberies were not admissible on the issue of intent because there was “obviously” no question of the bank robber’s intent, 261 F.2d at 612, and reversed because the other bank robberies were “not connected” to the bank robbery charged.
. The indictment charged:
That on or about April 24, 1964, at Chicago, Illinois, in the Northern District of Illinois, Eastern Division, HOMER PHILLIPS and MELSIA RUTH DELANEY,
defendants, did then and there fraudulently and knowingly receive, conceal, buy, sell and facilitate the transportation, concealment and sale of approximately 126.300 grams of heroin, a narcotic drug, which had been previously imported into the United States contrary to law, knowing the same to have been so unlawfully imported; in violation of Section 174, Title 21, United States Code, as amended by the Narcotic Control Act of 1956.