dissenting:
Convinced that admission of Agent Peacock’s testimony — if error at all — is not plain error, I respectfully dissent.
As the majority acknowledges, a reversal such as this for an error not raised below turns on the facts of the particular case. United States v. Morales, 477 F.2d 1309 (5th Cir. 1973). The record before us reveals that the government originally had no intention to call Agent Peacock as a witness or to introduce evidence of erroneous tax returns other than the 17 contained in the indictment. Defense counsel, however, inadvertently opened the door to the challenged evidence by eliciting on cross-examination of IRS Agent Barnett the information that 163 returns prepared by appellant had been audited. As the trial court recognized, this evidence of 163 audited returns — without explanation of the audit results — could give rise to the inference and defense argument that out of more than 160 returns prepared by appellant Brown only 17 had contained innocent “errors” of overstated deductions.
Defense counsel suggested that the court could “re-bag the cat” let loose by his cross-examination of Agent Barnett by granting an unopposed government motion to strike the testimony concerning the 163 audited returns. The trial judge recognized the futility of instructing the jury to disregard this damaging evidence; and he accepted instead the government’s suggestion, without any objection from appellant, that the *1211IRS auditor be questioned to determine what percentage of the 163 returns had actually been found to contain overstated deductions. Agent Adrienne Peacock, learning only an hour or two before she was called to the stand that she would testify, had no chance to obtain and review the relevant tax returns. Testifying from her best recollection, Peacock related that she had personally audited all but two or three of the 163 returns prepared by appellant Brown and reviewed by the IRS. Of those returns that she audited, between 90 and 95 percent had contained substantially overstated itemized deductions. As a result of disallowed deductions the IRS had assessed additional taxes totalling $50,856, an average of $312 per taxpayer. At the close of Peacock’s testimony the court instructed the jury to consider it only on the issue of appellant’s intent.1
Testifying in his own defense, appellant Brown denied that he had knowingly or willfully prepared any false returns. He did not, however, deny that he had prepared tax returns for others or that many of those tax returns had contained overstated deductions ultimately disallowed by IRS. And neither he nor any other witness challenged the accuracy of Agent Peacock’s testimony concerning the number of audited returns Brown had prepared or the approximate percentage of those returns found to contain overstated, disallowed deductions.
The majority declares, however, that Peacock’s testimony concerning unindicted tax returns was inadmissible for two reasons: (1) her testimony constituted hearsay, and (2) it failed to meet the requirements of Federal Evidence Rules 403 and 404(b) as “[ejvidence of other crimes, wrongs or acts ..”2 Thus, in spite of the government’s need for the evidence, its clear relevance to establishing appellant’s intent, and the judge’s instruction limiting its admissibility to the intent issue, the majority holds that admitting Peacock’s evidence was a plain error so adversely affecting appellant’s substantial rights that reversal is required even absent a timely objection — or even an untimely one — by defendant in the court below.
Because I disagree that Peacock’s testimony constituted hearsay or that it so violated standards of admissibility for other-offense evidence as to amount to plain error, I cannot join in reversing appellant’s conviction on the grounds enunciated by the majority.
Hearsay
The majority’s characterization of Agent Peacock’s testimony as “hearsay” represents an unprecedented departure from usual hearsay concepts. F.R.Evid. 801 defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Agent Peacock’s statements at trial were (1) that she personally audited all but two or three of the 163 tax returns prepared by appellant and audited by IRS, and (2) that her audit had determined that 90 to 95 percent of those returns contained overstated itemized deductions disallowed under IRS standards. Agent Peacock obviously testified from her own personal knowledge about the results of tax audits she conducted. In her testimony she neither related nor relied upon out-of-court statements by other persons.
It is too plain for argument that Peacock’s testimony as to what she knew herself from the returns she individually audited does not fall within Rule 801’s hearsay definition. An examination of the record reveals that all of Peacock’s testimony was *1212based on knowledge she personally acquired while auditing the tax returns prepared by Brown. In fact, the majority points to no statement whatever by Agent Peacock which it claims contains hearsay; she mentioned no statements others had made to her during the course of her audit. The majority objects, however, that Agent Peacock’s audit necessarily rested on “ ‘proof’ of the overstatements through conversations with each of the taxpayers audited.”3 Since her testimony had to have been based directly on the out-of-court statements of these taxpayers who could not be cross-examined, it is said that “a clearer case of hearsay testimony would be difficult to imagine.”4 I find little difficulty in doing so.
In the first place, the taxpayer statements made to Agent Peacock probably were themselves admissible in evidence. A taxpayer declares to a revenue agent that his deductions are overstated (and his tax should therefore be higher). Probably most would agree that this is a declaration against the taxpayer’s interest. As such, it is, if the declarant be “unavailable,” admissible under Federal Evidence Rule 804(b)(3):
Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true.
And in the circumstances of this case, the 150 taxpayer declarants were likely “unavailable,” in any practical sense, within the intendment of Rule 804(a)(5).
In the second place, Agent Peacock’s testimony was that of an auditor, an expert in her line of work. If the majority opinion be right, here is an end of such expert testimony by auditors, accountants and similar professionals as to the results of audits, ascertainments of financial conditions, etc. But it is not, for Federal Evidence Rule 703 explicitly treats the matter of opinions based on inadmissible data:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
And the Advisory Committee’s Note makes plain that Agent Peacock’s testimony is the type which the Rule contemplates:
Facts or data upon which expert opinions are based may, under the rule, be derived from three possible sources. The first is the firsthand observation of the witness, with opinions based thereon traditionally allowed. A treating physician affords an example. . . . The third source contemplated by the rule consists of presentation of data to the expert outside of court and other than by his own perception. In this respect the rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the experts themselves when not in court. Thus a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and rel*1213atives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes. Rheingold, supra, at 531; McCormick § 15. A similar provision is California Evidence Code § 801(b).
Writing as though Rule 703 did not exist, the majority today fashions a new category of inadmissible evidence: implied hearsay. I can find no justification for this new creation in either policy or precedent and thus dissent from the finding that Agent Peacock’s testimony constituted hearsay inadmissible at appellant’s trial.
Broadway and the Rules
As an alternative ground for excluding Agent Peacock’s testimony, the majority purports to rely on the new rules of evidence and on this court’s holding in United States v. Broadway, supra, that proof of other offenses, to be admitted at trial, must be “plain, clear, and conclusive.” In fact, however, the reasoning executes a simple circle: to be admissible as “evidence” of other crimes, wrongs and acts, matter must first be “evidence”; hearsay is not “evidence”; ergo, since Agent Peacock’s testimony is not evidence, it is not evidence of other crimes, etc. Thus, Broadway and the rules are dragged in by the heels; one might as well have said that since courts hear only evidence, and this is not evidence, it will not be heard. As I think the rules have displaced Broadway entirely and that under them the matter is admissible, I take respectful leave briefly to say why.
Rules 403 and 404(b) deal with the admissibility of “other crimes” evidence and the exclusion of otherwise relevant and admissible evidence to avoid undue prejudice. F.R.Evid. 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
F.R.Evid. 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The legislative history of Rule 404(b)’s treatment of other-offense evidence clearly reveals a congressional preference for admitting evidence of other acts, crimes, or wrongs when relevant for one of the listed purposes. In explaining a change in wording for Rule 404(b), the Report of the House Committee on the Judiciary observed:
The second sentence of Rule 404(b) as submitted to the Congress began with the words “This subdivision does not exclude the evidence when offered.” The Committee amended this language to read “It may, however, be admissible”, the words used in the 1971 Advisory Committee draft, on the ground that this formulation properly placed greater emphasis on admissibility than did the final Court version.
1974 U.S.Code Cong. & Admin.News pp. 7075-7081 (emphasis added). The Report of the Senate Committee expresses the view that Rule 404(b) carefully circumscribes the judge’s discretion to exclude relevant other-crimes evidence:
Although your committee see no necessity in amending the rule itself, it anticipates that the use of the discretionary word “may” with respect to the admissibility of evidence of crimes, wrongs, or acts is not intended to confer any arbi*1214trary discretion on the trial judges. Rather, it is anticipated that with respect to permissible uses for such evidence, the trial judge may exclude it only on the basis of those considerations set forth in Rule 403, i. e. prejudice, confusion or waste of time.
1974 U.S.Code Cong. & Admin.News pp. 7051, 7071 (emphasis added). Thus, Broadway’s hostility toward admission of such evidence is — or is supposed to be — replaced by Congress’ hospitality and receptive view toward it.
The Advisory Committee Note to Rule 404(b) leaves no doubt that the admissibility of other-offense evidence should be determined by reference to Rule 403’s balancing test of prejudice against probativeness:
No mechanical solution is offered. The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other facts appropriate for making decisions of this kind under Rule 403.
And the language of Rule 403 itself requires tilting the scales in favor of admissibility, sanctioning exclusion only when probativeness is substantially outweighed by prejudice.
Agent Peacock’s testimony that she had found overstated deductions in 90 to 95 percent of the 163 tax returns prepared by appellant was clearly admissible under Rule 404(b) as tending to show appellant’s willful intent and the absence of mistake or accident in his preparation of the indicted returns.5 Relevant and admissible under Rule 404(b), the evidence could properly be excluded under Rule 403 only if the trial judge found that “its probative value is substantially outweighed by the danger of unfair prejudice.” Even if appellant Brown had objected below to admission of Peacock’s testimony, I would be reluctant to find that the trial judge abused the discretion given him in Rule 403 by finding that the probative value of the Peacock evidence was not substantially outweighed by danger of unfair prejudice.
Agent Peacock’s evidence was both necessary and highly probative on the crucial disputed issue of appellant’s intent. Her unchallenged testimony that 90 to 95 percent of the more than 160 returns prepared by appellant Brown contained overstated deductions certainly tended to rebut Brown’s defense that he had not intentionally inflated deductions, implying instead that overstatements resulted from mistakes or erroneous information from taxpayers. The government’s acute need for Peacock’s testimony was created entirely by defense counsel when he brought out on cross-examination of a government witness the audit of 163 returns appellant had prepared. Peacock’s explanation of the audit results thus abruptly became necessary to forestall the defense argument that only 17 of 163 returns contained mistakes of overstated deductions.
The dangers of unfair prejudice to defendant from Peacock’s testimony are minimal. Proof that appellant on other occasions prepared income tax returns with *1215overstated deductions is not the type of other-crimes evidence that appeals unduly to the emotions and prejudice of a jury, as would evidence of more opprobrious “other crimes” such as drug trafficking or armed robbery. As noted by the majority, the simple overstatement of allowable deductions on a tax return may occur in several quite innocent ways: misinformation from the taxpayer, an honest dispute with IRS, mistake, or a paucity of records to substantiate the deductions. The degree and possibility of undue prejudice from Peacock’s testimony is thus lessened considerably by the numerous innocent explanations for overstated deductions. Applying Rule 403’s balancing test to the particular facts of this case, I simply cannot conclude that the necessity and probative value of Peacock’s evidence was substantially outweighed by the possibility of unfair prejudice to defendant so as to make admission of her testimony an error — much less a plain error requiring reversal even without timely objection below.
Even assuming, as I do not believe, that United States v. Broadway’s “plain, clear, and conclusive” standard retains some vitality as a kind of pre-existing judicial gloss on Rules 403 and 404(b),6 I am unable to agree with the majority that the Peacock testimony falls so short of the Broadway standard as to make its admission plain error. An examination of the purpose and application of the Broadway rule reveals that it is not designed to exclude credible and undisputed evidence of other similar acts like that given by Agent Peacock in the instant case.
The Broadway court, fearful of the possibility of prejudice inherent in allegations that defendant had committed other offenses similar to those charged, established the rule in this circuit that the government could not merely intimate that defendant had committed other similar crimes. Evidence tending to show similar offenses would be excluded unless the government could clearly prove that defendant had committed acts similar to those charged:
Our holding is simply that when proof of an assertedly similar offense is tendered to establish necessary intent, the other offense proved must include the essential physical elements of the offense charged, and these physical elements, but not the mental ingredients of the offenses must be clearly shown by competent evidence.
477 F.2d at 995.
The essential physical elements of the offense charged in the instant case are established by showing (1) that Brown assisted in the preparation or presentation of tax returns and (2) that those returns were false as to a material matter.7 These are exactly the physical elements proved by Agent Peacock’s undisputed testimony: (1) appellant Brown had assisted in the preparation and presentation to IRS of more than 160 tax returns; and (2) 90 to 95 percent of those returns audited by Agent Peacock were determined to be false as to the material matter of allowable deductions. Moreover, I can find nothing in the case law of this circuit to support the majority’s use of Broadway to screen out the kind of evidence Peacock gave. The Broadway opinion itself gives little guidance on *1216how to apply its “plain, clear and conclusive” standard, because the reversal in Broadway turned on the lack of sufficient similarity between the offense charged and the other acts alleged.8 One of the Eighth Circuit cases cited with approval in Broadway, however, sheds some light on the type of other-offense evidence which, under its superceded test, should be excluded as too vague and uncertain. In Kraft v. United States, 238 F.2d 794 (8th Cir. 1956), defendant was charged with a scheme to defraud by inducing persons to send him money in anticipation of receiving “rare geraniums” as advertised in several newspapers. Kraft defended against the charge by denying that he had possessed the requisite criminal intent to defraud. To help show his fraudulent intentions the government introduced — and the court admitted over defendant’s objection — 39 letters sent in 1950 from the Minneapolis Tribune to defendant when he had been operating a mail-order tulip venture. The letters intimated that defendant had been dilatory in making refunds or delivering bulbs as advertised in the Tribune. The Eighth Circuit ruled that the letters should have been excluded because they constituted “mere accusations of some other offense,” rather than the kind of “plain, clear, and conclusive” proof requisite for admission of other-offense evidence. 238 F.2d at 802.
Since announcing the Broadway proof standard for other-crimes evidence, this court has only once found challenged evidence to be insufficiently “plain, clear, and convincing.” In United States v. Vosper 493 F.2d 433 (5th Cir. 1974), defendant was charged with participating in a bank robbery, which had actually been carried out by another man, Blanton Lynn. To help establish a relationship between Vosper and Lynn, an FBI agent testified that he had seen the two together approximately five weeks before the robbery when he had them under surveillance for suspicion of other robberies. Not surprisingly, the Vosper court held that, if offered to prove similar crimes, the agent’s reference to other robberies was deficient under Broadway’s “plain, clear, and conclusive” test.
Kraft and Vosper contain classic illustrations of the type of unreliable, unsubstantiated intimations or accusations of other crimes that the Broadway rule was designed to exclude. The five-year-old complaint letters in Kraft and the reference to “suspicion” of other robberies in Vosper carried little probative weight, yet injected into the defendants’ trials the highly prejudicial implication of previous similar criminal activities.
Recent cases in this circuit in which challenged other-offense evidence was admitted despite the Broadway test consult the reliability of the evidence and the certainty that other similar acts have, in fact, been committed by defendant. For example, in United States v. Pollard, 509 F.2d 601 (5th Cir. 1975), cert. denied, 421 U.S. 1013, 95 S.Ct. 2419, 44 L.Ed.2d 681 (1976), defendant was charged with robbing an Atlanta bank by “till tapping.” 9 An FBI agent testified that Pollard said that he had also participated in five or six California larcenies in October and November of 1973 (subsequent to the Atlanta robbery) using the same till tapping technique. The trial judge carefully instructed the jury to consider this testimony only on the issue of defendant’s guilty knowledge or intent. This evidence given by the FBI agent that defendant had participated in “five or six” California robberies in “October and November of 1973” lacked details of the crimes such as the names of the victimized banks, the dates of each robbery, and the exact amounts stolen. Nevertheless, the Pollard court in an opinion by Judge Simpson, who also authored *1217the Broadway opinion, found the agent’s testimony to meet all requisites for admission of other-offense evidence.
In United States v. Bloom, 538 F.2d 704 (5th Cir. 1976), defendant was charged with possessing with intent to distribute and with distributing heroin. Over defense objections to evidence of uncharged drug trafficking, government undercover agents testifying about their dealings with defendant indicated that their discussions with defendant had involved cocaine as well as heroin, that defendant had also been engaged in procuring and marketing marijuana, and that defendant had had considerable prior experience in procuring Mexican heroin for prospective buyers. The panel, in an opinion by Judge Ainsworth, specifically held that the undercover agents’ “extrinsic evidence of heroin, cocaine and marijuana dealings was ‘plain, clear, and convincing.’ ” 538 F.2d at 709.10 Thus, the court’s conclusion that the other-offense evidence met the Broadway standard must have turned upon the credibility of the witnesses, the reliability of the source of their testimony (i. e., the defendant himself), and the clear and convincing nature of their testimony about their dealings with defendant, in which he had revealed his involvement with other drug transactions.
The testimony of IRS Agent Peacock in the instant case was at least as detailed as the evidence in Pollard and was far more specific than the testimony in Bloom. Her evidence of tax audit results, undisputed and unimpeached by defendant, clearly established that a number of materially false tax returns had been presented to IRS and that defendant had assisted in the preparation of those returns.11 In light of the purpose of the Broadway rule and its previous application by this court, I would hold, if required to do so, that Peacock’s testimony was sufficiently “plain, clear, and conclusive” to be properly admissible at appellant’s trial under the Broadway standard, as well as under the Federal Rules of Evidence balancing test.
Plain Error?
Whether an error rises to the magnitude of plain error, justifying reversal even absent a timely trial objection, calls for subjective judgments on questions of fairness and prejudice which inherently involve considerable latitude for defensible differences of judicial opinion. I have already registered my strong disagreement with my brothers’ conclusion that the error, if any, in admitting Peacock’s testimony was “obvious and manifest” and “severely prejudicial to the defendant.” 12 To further belabor my arguments on these points would profit little. However, beyond my disagreement with the grounds and significance of the errors discovered by the majority, I am gravely disturbed by the application of the plain error rule to the particular facts of this case. A consideration of the practical ramifications of the holding will, I think, illustrate the grounds for my concern.
Even the majority’s opinion leaves no doubt that the government may properly *1218introduce, on the disputed issue of appellant’s intent, evidence of other unindicted tax returns prepared by him which also contain overstated deductions. Apparently, both the hearsay and Broadway defects in Peacock’s testimony could have been cured to the majority’s satisfaction by introducing the unindicted tax returns and by calling each of the 145 taxpayers involved to testify about the amounts of overstated deductions and the reasons for disallowance.13 It is difficult for me to believe that defendant’s case would have been less damaged by the suggested introduction and explanation one by one of more than 145 erroneous tax returns prepared by appellant.14 Although the majority claims to find no evidence of intentional “sandbagging” in this case, it seems quite reasonable to me that defense counsel — if alerted by the court to possible hearsay or Broadway objections — would probably have chosen to accept the summary of admissible proof given by Agent Peacock, rather than insisting upon the introduction and explication of 145 individual vignettes of damning evidence.
In cases such as this where defendant’s commission of similar acts is essentially undisputed and easily provable in detail by the government, the accused may understandably wish to avoid, rather than to encourage, the introduction of “plain, clear, and conclusive” proof of the details of all his other “crimes.” We must bear in mind that Broadway was intended as a shield to protect defendants from vague and unsubstantiated accusations of other offenses. If a defendant chooses (or even neglects) to invoke the shield’s protection at trial, he should not then be allowed to use the Broadway rule as an appellate sword to extract from this court reversal of his conviction for noncompliance with an evidentiary standard he will no doubt decline to enforce on retrial.
For example, if the government in a new trial of appellant attempts to introduce detailed testimony on more than 145 erroneous tax returns, a wise defense counsel will likely interpose an objection to the cumulative and time-consuming nature of the evidence and simply offer to stipulate the number of tax returns prepared by appellant which contained overstated deductions. Thus, if defendant’s objection is sustained, the government’s other-offense evidence at retrial would probably be that appellant Brown prepared 163 tax returns audited by IRS, and 146 of those returns contained substantially overstated deductions. Requiring a retrial of the entire cause in order to obtain such a slight transmogrification in the government’s other-crimes evidence seems a patently unproductive use of judicial resources.
Furthermore, this is not a case in which the substance of the government’s chal*1219lenged evidence was wholly inadmissible under any circumstances. When a defendant’s conviction seems to have been substantially affected by such clearly inappropriate evidence, the plain error rule exists to rescue him from the unfair conviction even absent a proper trial objection. In the instant case, however, the subject and substance of the government’s other-offense evidence was properly admissible on the issue of appellant Brown’s intent; the majority objects only to the form which the evidence took, specifically, its alleged hearsay character. The plain error rule was simply not designed to reverse otherwise proper convictions for mere technical evidentiary defects when no objection to the defects was raised below. A successful objection at trial would not have protected the instant defendant from admission of the highly probative other-offense evidence offered by Agent Peacock; it would have simply required the government to alter slightly its manner of proof. Thus, it is difficult to understand how this easily correctible defect in the form of admissible proof could have so prejudiced defendant as to make his conviction unfair.
Because the admission of Peacock’s testimony in the form she gave it, if error, was not a plain error substantially prejudicing defendant or leading to his conviction on wholly improper evidence, and because the majority’s rulings in this appeal are unlikely to alter significantly either the conduct or the outcome of another trial, I find application of the plain error rule disturbingly inappropriate to the facts of this case. Thus, I vigorously dissent from the reversal of appellant’s conviction on the ground that 1 admission of the Peacock evidence constituted a plain error.15
. See n. 16 of majority opinion for judge’s instruction.
. As we shall shortly see, however, the two reasons are in fact one. The opinion simply declares that before matter can meet the requirements of Rule 404(b) it must be “evidence,” and that Peacock’s testimony is not evidence because it is hearsay,
. See note 13, supra.
. See majority opinion at 1205. Where also, in note 19, Professor Morgan’s rhetorical question is quoted: “[Sjhould we not recognize that the rational basis for the hearsay classification is not the formula, ‘assertions offered for the truth of the matter asserted’ . . ..”? To me, it is moderately clear that we should not, in view of Rule 801’s definition of hearsay as out-of-court statements “offered in evidence to prove the truth of the matter asserted.” F.R. Evid. 801.
. See, e. g., United States v. King, 505 F.2d 602, 610 (5th Cir. 1974) (“The admission of . . . -||idence [of similar acts] is highly relevant aere, as here, there has been a repetition of .udulent dealings such as to indicate a great probability of ignorance or innocent in-4t.”); United States v. Tunnell, 481 F.2d 149 (6th Cir. 1973) (in trial for willful evasion of íes, consistent pattern of understanding g amounts of income couples with evidence nadequate records kept by the taxpayer fits inference of willfulness); United States v. Jernigan, 411 F.2d 471, 472 (5th Cir. 1969) (“Proof of this repetitious conduct was admissible for the limited purpose of showing the intent of the appellant, where, otherwise it might be claimed that the acts in the tax years were either inadvertent or innocent.”); Escobar v. United States, 388 F.2d 661 (5th Cir. 1967) (in prosecution of attorney experienced in tax field for willfully making and subscribing false tax returns, evidence that taxpayer understated his income by almost one-half for four consecutive years is relevant and admissible on issue of willfulness).
. In the recent case of United States v. Bloom, 538 F.2d 704 (5th Cir. 1976), another panel of this court treated as still applicable pre-Rules cases announcing particular standards for admissibility of other-offense evidence. These cases undoubtedly will continue to serve as valuable guides to the factors to be considered in weighing probativeness against prejudice. However, no single factor can be determinative of admissibility; Rule 403 makes clear that all factors are to be thrown into the scales to assist in the decisive test of whether unfair prejudice substantially outweighs probativeness. In fact many recent pre-Rules cases— though considering particular admissibility criteria for other-offense evidence, such as remoteness in time, need for evidence, and the Broadway rule — applied a balancing test similar to Rule 403’s to determine admissibility. E. g., United States v. Simmons, 503 F.2d 831 (5th Cir. 1974); United States v. Silvas, 483 F.2d 1392 (5th Cir. 1973); United States v. Goldsmith, 483 F.2d 441 (5th Cir. 1973); United States v. Calles, 482 F.2d 1155 (5th Cir. 1973).
. 26 U.S.C.A. § 7206(2).
. Similarly, the only previous Fifth Circuit case cited by the Broadway court for the proposition that proof of other offenses must be clear and convincing had also turned on an insufficient similarity of the other offenses, rather than insufficient proof. Labiosa v. Government of Canal Zone, 198 F.2d 282 (5th Cir. 1952).
. Defendant Pollard explained this technique as having an accomplice divert a bank teller’s attention while he reached over the counter and took currency from the cash drawer. 509 F.2d at 604 n. 1.
. Although in a special concurrence the other panel members, Judges Tuttle and Clark, disagreed with Judge Ainsworth that a substantial need for the extrinsic evidence existed, they took no exception to his finding that the evidence was sufficiently “plain, clear, and convincing.” 538 F.2d at 711.
. Cf. United States v. Cavallino, 498 F.2d 1200 (5th Cir. 1974), holding other-offense evidence to be “plain, clear, and conclusive” when facts of bank robberies and of defendant’s participation in them were clearly established.
. Majority opinion at 1208.
One of the reasons that the majority gives for finding Peacock’s testimony “severely prejudicial” is the alleged weakness of other evidence to show appellant’s guilty intent. The majority intimates that the evidence of appellant’s guilty intentions was so weak that he probably would not have been convicted without the testimony of Agent Peacock. On the contrary, the indicted returns themselves established a clear pattern of substantially overstated deductions for medical insurance premiums, interest payments, and church contributions, as well as several instances of apparently purely fabricated casualty losses. See summary of count witnesses’ testimony in note 17 of majority opin*1218ion. Even more damaging count witnesses for six of the twelve counts on which defendant was convicted testified to particular instances in which they had given defendant specific amounts for deductible expenses which were substantially less than the amounts defendant had recorded on their tax returns. See summary of count witnesses’ testimony under Counts 3, 7, 8, 9, 10 and 15 in note 17 of majority opinion. One of these witnesses (Edward A. Leeks, Count 9) had given defendant a sheet of paper listing the amounts of particular expenses, while another witness (Robert A. Sims, Count 15) had given defendant the receipts for his mortgage interest payments.
The consistent pattern of overstatement coupled with direct taxpayer testimony that defendant had entered deductions considerably in excess of the specific amounts given him constitutes, to my mind at least, fairly persuasive and convincing proof of Brown’s guilty intent even absent the Peacock testimony.
. The majority emphasizes the importance of knowing the IRS “reason” for disallowance of deductions. As a practical matter, the reason for disallowance will usually be that the taxpayer was simply unable to substantiate the claimed deductions with adequate records. Thus, the reason for disallowance will generally have little probative worth in determining the “reason for overstatement,” which is the relevant inquiry in determining appellant’s intent.
. Agent Peacock testified that 90 to 95 percent of the 163 audited returns contained inflated deductions; 90 percent of 163 would be about 146 returns.
. I would not, however, deny appellant Brown all relief. His motion for new trial, supported with affidavits, raised serious allegations of jury misconduct. Specifically, he claimed that one of the principal prosecution witnesses had engaged during the trial in a private conversation with one of the jurors (to whom the witness was related by marriage) and that one of the jurors had been subjected to improper pressures to reach a verdict during the deliberations.
The court below failed to conduct a “full investigation” into the alleged misconduct and its effect as required by United States v. McKinney, 429 F.2d 1019 (5th Cir. 1970). I would, therefore, remand the case for proper inquiry into the allegations of jury misconduct.