dissenting:
The court’s massive opinion struggles to justify retaining various trammels on the receipt of “other crimes” evidence, trammels which some cases in our circuit had imposed before enactment of the Federal Rules of Evidence. Its essential message is that the homogeneous rulings of our court on this subject remain unchanged by this enactment. Since I think that our rulings are in no sense homogeneous, that the court has selected as our future norm the most extreme of our cases — Broadway1—and that the new rules were intended to change the law in such matters, I write briefly to demonstrate why I think so. And since it seems to me as well that the court has reached a strange and incongruous result in this case, I therefore also respectfully dissent.
Beechum's Case
For convenient reference, I epitomize the relevant record facts: defendant Beechum’s supervisors, it appearing to them that he had on several occasions engaged in “trepidation 2 of the mails,” placed a bait letter in one of his collection boxes containing, among other things, a distinctive and heavy coin. When Beechum turned his mail in, the bait letter was found to have been rifled and resealed. Later that afternoon, as Beechum went to his automobile on the parking lot,3 he was waylaid by a postal inspector. After Beechum had ostensibly turned out his pockets, the inspector searched him and found the unique coin from the bait letter. Also found, in his wallet, were credit cards which Sears, Roebuck and Company had issued and mailed about ten months before to two addressees on routes he had served. It is for the admission of these cards, offered to counter Beechum’s defense that the coin got into and remained in his pocket by an unfortunate chain of innocent circumstances and without intent on his part to steal it, that the court reverses his conviction.
It is, of course, almost always necessary to prove intent by circumstantial evidence, and intent was the only real issue in this case. “Other crimes” evidence is a species of circumstantial evidence going to intent. I am satisfied that any reasonable man-on-the-street, unfavored by a legal education, would believe that finding valuable matter mailed to others in the wallet of the mailman, months after it was sent, strongly indicates that the postman is getting into the mails. Nevertheless, the majority holds that in this case such evidence may not be received. A course of reasoning which reaches a result so at variance with common sense seems worth examining.
The court says that proof of the prior crime, to be probative and admissible, must be clear and convincing and that this proof is not clear and convincing because “non-receipt” by the addressees was not proved. Had nonreceipt been shown, the court says, the evidence would have been properly admitted. Supra at 500 of 555 F.2d. This plainly does not follow. To see why, one need only consider the sole practical circum*510stance which proof of nonreceipt would have ruled out: that each of two distinct and different addressees on a route sometimes served by Beechum received his Sears, Roebuck credit card in the mails, opened the envelope, and thereafter either gave his card to Beechum (or to someone else who gave it to Beechum) to carry around in his wallet, or misplaced it where Beechum (or someone who gave it to Beec-hum) found it. Can it be said that this doubt about Beechum’s having extracted the two cards from the mails is a reasonable one? How much more reasonable to believe that Beechum — possessed of both access and motive and caught red-handed with the goods — simply purloined the cards from the mails!
On such evidence as this, a jury would doubtless have been upheld in convicting Beechum of stealing the credit cards themselves, reasonably believing the likelihood that both addressees received their credit cards in the mails and that afterwards each card somehow legitimately found its way back into the mail carrier’s wallet too slight to be troubling. Yet the majority concludes that the trial judge could not have determined, in the exercise of his broad discretion to admit or exclude evidence, that absent proof of nonreceipt, Beechum’s possession of two cards long previously mailed to one of his mail routes was not “clear and convincing” evidence that he purloined them from the mails. I therefore conclude that the majority has wrongly applied even the Broadway rule which it claims to follow, holding to be not “clear and convincing” evidence which to the contrary could properly be thought to have put the matter beyond reasonable doubt and, so holding has achieved a result wrong even by its own measure.
In the face of such tortured reasoning, it is small wonder that enforcement of the criminal law proceeds unevenly and uncertainly. And this is serious enough. But even more serious, the majority’s treatment of Rule 404 seems to me to be clearly at variance with the congressional purpose in enacting it, so as to perpetuate into the future and for other cases the mischief and confusion which the rule was meant to end.
Admitting Evidence of Prior Misdeeds: General Considerations
Rule 404 represents an uneasy compromise between two undesirables, neither of which courts have found themselves long able to stomach. The first of these is countenancing proof designed to show merely that the defendant is a bad man generally, a person of bad character, and therefore probably performed the specific bad act with which he is charged. It is not that such evidence is without some probative value. All things being equal, it probably is more likely that one who beats his wife, batters his children and cheats at cards would steal from the mails than that one of better character and behavior would do so. The reason that such evidence is excluded is that it is believed to raise a danger that the jury may convict because the defendant is a bad man who deserves punishment whether or not he is guilty of the crime charged. These considerations are embodied in prior case law, codified in Rule 403, and explained in the Advisory Committee’s note appended to it:
Rule 403.
EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME
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.
* * * * * *
[Advisory Committee’s Note]
The case law recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful *511than merely wasting time, at the other extreme. Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission, [citations omitted]. The rules which follow in this Article are concrete applications evolved for particular situations. However, they reflect the policies underlying the present rule, which is designed as a guide for the handling of situations for which no specific rules have been formulated.
Exclusion for risk of unfair prejudice, confusion of issues, misleading the jury, or waste of time, all find ample support in the authorities. “Unfair prejudice” within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.
Courts have dodged with equal vigor, however, the other horn of the dilemma: the view which would exclude all evidence of extraneous behavior. Most courts have simply found it too much to swallow to exclude such evidence as the majority says should not have been admitted in this case. For what ensues in this event are arguments whereby the defense undertakes to pound into the jury that there is not a shred of evidence before it that defendant has ever erred before and that he should, therefore, receive the benefit of all doubts, however far fetched. And especially has this been so where such'questions as motive or intent are, as here, dispositive.
Pinched between these rocks, courts in the past have compromised. And the classic compromise has taken the form of admitting evidence of similar wrongdoings by the defendant, not in order to prove his general bad character,4 but to show pattern, practice, intent or absence of accident or coincidence. It has been thought worth tolerating the detrimental effect such evidence may have5 on the jury’s general estimate of the defendant as a person in order to avoid the spectacle of having him represented in argument as a lamb led to the slaughter by a one-time combination of curious but innocent circumstances.
Inside these perimeters, then, the law of “other crimes” evidence has oscillated from court to court and case to case, sometimes leaning more to one extreme and sometimes to the other. And the devices by which the evidentiary gate through which such matter comes in has been edged open or closed have always been the same: the court’s requiring greater or lesser similarity between the elements of the prior act and that for with which the defendant is being tried, together with tightening or relaxing the standard of certainty with which the prior act is required to be established. Our court has done so no less than others, and our jurisprudence contains cases leaning first one way and then the other, as I shall later show.
The Broadway Rule
It is safe to say, however, that Broadway, which the majority would lay down from henceforth as a per se rule of decision, and on which it founds its opinion, is probably as hostile to the receipt of such evidence as any that our court has handed down. Both of the restrictive devices noted above are there applied with a vengeance. In Broadway the defendant was charged with transporting in interstate commerce a forged or stolen money order. That he had done all the physical acts charged was all too plain, but the defense was that he had not known the order he passed was forged or stolen— want of intent, in-fine. His conviction was reversed because, in these circumstances, two other money orders passed about the same time had been allowed in evidence. All three orders, as part of a serially numbered group of four hundred, had been reported missing several weeks before defendant passed the one charged. The two others were, like the one he passed, endorsed to the defendant. All three were *512endorsed in the same hand — the defendant’s hand, according to expert testimony accepted by the jury. Nevertheless, said the Broadway panel, the offense indicated by defendant’s possession of the other two orders admitted in evidence was reversibly dissimilar to that with which he was charged because the prosecutor did not establish that Broadway himself had cashed the two other money orders or had otherwise placed them in the flow of commerce. The prior offense indicated was, in other words, required to be identical in all its physical elements to the crime charged in order to be sufficiently similar to it for receipt in evidence. And for good measure, the opinion laid down that proof of the prior offense must be “plain, clear and conclusive.” 477 F.2d at 995. What this last means is probably best evidenced by the majority opinion in this present cause, where evidence which seems to me of such a quality as to have supported a conviction of the prior crime beyond a troubling doubt is held to fail the test. And so the road along which such evidence comes in was, in 1973 and by Broadway, so narrowed and mined as to be for practical purposes closed. Yet such evidence continued to come in since, as might have been expected, the Broadway rule was by our court sometimes followed, sometimes distinguished and sometimes passed over in silence.
Our “Homogeneous” Decisions: Conflict and Chaos
The majority’s opinion labors at length to show that the inadmissibility of these credit cards" is but another predetermined step down the clearly marked and homogeneous path of Fifth Circuit authority dealing with prior misbehavior. This is not so. As I read the cases, the road is not clearly marked but branches off in every direction, full of deceptions and detours. Indeed, in the current state of disarray of our case authority there is no way for a district judge to predict whether evidence of a prior wrongdoing or crime is or is not properly admissible. As one awkward example, possession of credit cards belonging to another by one employed in the postal service was held properly admissible in United States v. Robertson, 460 F.2d 1250 (5th Cir. 1972), with only circumstantial proof that the credit cards were stolen. Today the majority holds that almost identical evidence is not admissible. The distinctions urged by it are neither significant nor convincing and certainly offer no guide to a district judge as to whether to admit evidence of unexplained credit cards found on the person of a defendant accused of stealing from the mails. Robertson is, in fact, simply brushed aside.
In United States v. Park this court reversed a conviction for theft of a television because of improper cross-examination about defendant’s possession of other stolen merchandise. In doing so'the court made the following sweeping statement: “[It is] the well established rule in this circuit that ‘a witness may not be impeached by inquiry about specific acts of misconduct not resulting in conviction.’” 525 F.2d 1279, 1284 (5th Cir. 1976). And yet as recently as Bloom v. United States this court found no error in repeated testimonial reference to a defendant’s previous unindicted trafficking in other drugs distinct from the offense charged. 538 F.2d 704 (5th Cir. 1976). Accord United States v. Pollard, 509 F.2d 601 (5th Cir. 1975) (no proof of conviction is required before introducing evidence of subsequent acts).
Finally, as evidence of the bewilderment the Broadway rule has wrought in our circuit, I would point to the case of United States v. Blewitt, 538 F.2d 1099 (5th Cir. 1976), where five forged checks were admitted into evidence without proof that the checks had been cashed, a seeming repudiation of Broadway itself.6 The majority’s elaborate construct resulting from San Martin’s7 so-called “thresholds,” coupled with Broadway’s requirement of similar *513physical elements, offers neither guidance nor predictive value to trial courts. Believing that the new Federal Rules of Evidence offer us an opportunity to extricate ourselves from our own quagmire of contradictory directives, I would take this opportunity to draw a new blueprint for the admissibility of prior wrongdoings, relying on the principles set forth in the rules themselves.
The New Rule 404
For mercifully, across this tangled and conflicting mass of authority, in 1975 fell Rule 404 and with it a golden opportunity to bring order out of the chaos. Simple and direct, the rule both describes clearly what sort of “prior crimes” evidence is admissible and lays down the test by which its admission or exclusion is to be determined. The pertinent portion of Rule 404 is section (b):
(b) Other crimes, wrongs, or acts. 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.
Elided to remove its prohibition against general character blackening, then, the rule lays down the following standard for admission of such evidence as the credit cards found on Beechum:
Evidence of other crimes, wrongs or acts . may ... be admissible . for . . . purposes such as proof of motive, opportunity, intent,' preparation, plan, knowledge, identity, or absence of mistake or accident.
One searches this language in vain for such niceties and “thresholds” as the majority would require: proof of identity of every technical, physical element of the prior crime to that of the offense charged,8 “plain, clear and conclusive” evidence of it, and the like. These elaborate controls upon the admission of such evidence are — quite simply — abandoned by the new formulation, a formulation proposed by the Supreme Court and adopted with one minor change by Congress — a change intended, ironically enough in view of today’s result, to militate for and not against admission of such evidence.9
It does not follow, however, that Congress and the Court intended there be no controls. Refusing to embrace such exquisite and mechanical appellate exclusionary devices as the majority applies here, the rulemakers adopted a different and more flexible standard. It will be recalled that Rule 404(b) does not provide that evidence such as this is admissible, only that it “may be.” Nor are we left in doubt what test is to determine whether it may or may not come in: it is the discretion of the trial judge, guided by the “unfair prejudice or delay vs. probative value” balancing test of Rule 403. The Advisory Committee says so:
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 factors appropriate for making decisions of this kind under Rule 403.
So does the House Committee on the Judiciary:
Although your committee sees 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*514trary discretion on the trial judge. 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, (emphasis added).
It is thus to be the trial judge, applying Rule 403’s balancing test and bearing in mind Rule 401’s definition of relevant evidence (“evidence having any tendency to make the existence of any fact . of consequence . . . more probable or less probable than it would be without the evidence”) and Rule 402’s command to admit all relevant evidence unless the Constitution, statute or rule forbids it, who admits or excludes such evidence. He is to do so in the exercise of a broad discretion, one which we review only for abuse. United States v. Madrid, 510 F.2d 554 (5th Cir. 1975). This is the plan and command of Congress and the Supreme Court.
The Sinking Ship Opens Fire on its Rescuers
But it is not the plan applied by the majority. In place of the above rule of presumptive admission of such evidence, laid down by the Supreme Court and enacted by the Congress, the majority institutes its exact contrary by resurrecting Broadway’s rule of presumptive exclusion : “We start with the general rule which is of course that evidence which shows or tends to show commission of crimes not charged is inadmissible in a trial for a particular crime.” 477 F.2d at 994. And having commenced by turning Congress’ basic scheme of treating such evidence inside out, it then proceeds, by the engraftment on Rule 404 of mechanical “thresholds” (supra at 492 of 555 F.2d) of our own prior devising, thresholds through which the district court must first screen such evidence before he may admit or exclude it, to substitute our rulemaking power and our discretion for that of Congress and the Supreme Court. In so doing it produces such quixotic results as have occurred here and, by engrafting its own notions onto Congress’ simple plan, deranges it and insures that evidence clearly admissible under Rule 404 will be excluded in the Fifth Circuit. Since I think it would be better if we did as we are told by those who have a right to tell us, I dissent.
. United States v. Broadway, 477 F.2d 991 (5th Cir. 1973).
. By this term the witness presumably meant molestation.
. Whether he was leaving for the day is in question.
. In spite of its tendency to do so, as the majority somewhat confusedly but correctly notes. Supra at 494 of 555 F.2d.
. Partially controllable, to one degree or another, by proper jury instructions.
. The panel distinguished Broadway on the ground that the charge of aiding and abetting in United States v. Blewitt made the proof that the forged checks had been cashed irrelevant.
. 505 F.2d 918 (5th Cir. 1974).
. Indeed, under Rule 404 the prior misdeed need not even have been a crime at all, merely an “act”; and surely Broadway’s “act” of forging other purloined money orders was probative, whether he had personally put them into commerce or not.
. The Report of the House Committee on the Judiciary states:
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 fínal Court version, (emphasis supplied).