concurring.
1.
I concur in the result reached by the majority. However, my concern regarding an important and recurring issue in the administration of criminal justice prompts me to set forth my views separately.
My difference with the majority stems from a divergence of perspectives on the process by which a trial court must evaluate attempts to admit concededly prejudicial evidence of prior misdeeds against a defendant in a criminal case. Because of the expansive scope of the threshold concept of “relevance” under the Federal Rules of Evidence 1 the trial judge’s duty to balance the probative value of proffered evidence against its potential for prejudice is an essential safeguard to the fairness of criminal trials.2 In performing that duty under the Federal Rules of Evidence, I believe the trial judge must articulate his weighing of those two factors. To maintain, as the majority appears to suggest, that the trial judge need not set forth the reasons for his action so long as his ruling cannot be characterized as irrational or arbitrary is not deference to the admitted discretion of the trial court, but a refusal to assure that such discretion is in fact exercised.
2.
From the evidence produced at trial it would appear that Francis Long, the appellant here, was involved in a scheme to obtain garbage collection contracts for his company from a number of boroughs in the western part of Pennsylvania by offering kick-backs to councilmen in such boroughs. There is also evidence that when pay-offs in the Borough of North Braddock became the subject of a grand jury investigation, Long and his associate, John Hackett, attempted to fabricate a story that would explain, in non-criminal terms, their payments to the councilmen.
It was this latter aspect of their conduct which gave rise to the specific charges leading to this appeal. Long and Hackett were not indicted for bribing borough councilmen, but for lying before and conspiring to mislead a grand jury that was investigating the alleged bribery. More particularly, Long was charged with falsely denying before a grand jury his bribery of a North Braddock official. Additionally, the indictment charged Long with conspiring to “corruptly influence” a grand jury witness, and conspiring to suborn perjury in an effort to cover up his alleged bribery.
The FBI conducted its investigation by persuading Irvin, a North Braddock Borough councilman, to wear a body recorder while meeting with Long and Hackett. As a result of the information secured in this manner by the recorder, the evidence of Hackett’s participation in the bribery, obstruction of justice, and conspiracy was overwhelming. Hackett’s own recorded comments went far in establishing his guilt, and he was convicted.
The evidence against Long, however, was less convincing, for no damaging admissions out of his own mouth were captured on tape. Indeed, this must have been the perception of the prosecution, because in Long’s trial for lying to the grand jury the prosecutor sought to elicit from Irvin, the *769informant, a statement that Long had told Irvin of on-going bribery efforts in four surrounding boroughs.3
Long’s counsel objected to this testimony on the ground that “[evidence of] prior bad acts ... is not admissible in a trial of a defendant.” (280a) In the course of his objection, however, Long’s counsel did not specifically mention either Rule 404(b) or Rule 403 by number.
The trial judge overruled the objection on the basis that the evidence was relevant to establish “a common scheme” (281a), and to prove that Long “knows what a payoff or kickback is.” (282a) He did not, however, weigh the relevancy against the prejudice that such evidence might engender in the minds of the jury.
3.
To determine whether the ruling by the trial judge in admitting this evidence constituted reversible error, my analysis begins with the precepts embodied in Federal Rule of Evidence 404(b).4 That rule provides that testimony regarding other wrongs may not be used to show a propensity to perpetrate the wrongs at issue, and that an accused should not be subject to conviction on the basis of crimes with which he is not charged.5 Closely associated with such salutary principles is the proposition that even when introduced for another relevant purpose, evidence of other criminal misconduct will frequently carry with it a danger that the jury will draw the forbidden inference that a person who has committed criminal acts once, is likely to do so again.
Potential for prejudice was especially great in the case at hand. One of the offenses charged is not a substantive crime, itself, but a conspiracy to commit a substantive crime, namely, obstructing justice by misleading a grand jury about still another substantive crime, bribery. Evidence of yet a third crime — another effort at bribery similar to the crime allegedly concealed— may well cause, indeed invite, the jury to focus attention on the defendant’s culpability for “bribery” in general. This is so for it is the defendant’s proclivities to bribe — not the specific crimes of perjury and obstructing justice presently before the jury — to which the evidence in question is most directly relevant. To admit testimony regarding other alleged bribes might well encourage the outcome which Rule 404(b) seeks to avoid: conviction on the basis of “guilt by reputation.”6
There is no doubt that the Federal Rules of Evidence were not designed to deprive the trial courts of their discretion. Such discretion is most important, because a trial judge is in an advantageous position to ascertain the climate of the trial and to appraise the impact of the prejudicial material. Nonetheless, the safeguard provided by the Federal Rules against prejudicial use of evidence is established by requiring a balancing of the probative value of the tendered material, on the one hand, and its potential for prejudice, on the other, before determining whether it is appropriate to allow it to be submitted to the jury.7 In *770this regard, we recently stated:8
Because the weighing entails competing interests, it is delicate and must be employed with care, lest accommodation to the prosecutor’s needs result in subverting a principle that is central to our concept of fairness.
I am somewhat troubled because the protection which Rule 403 attempts to establish may have been disregarded in the case before us. Since no balancing took place, at least none which is set forth on the record, it is difficult to determine whether there has been an exercise of discretion or a mistake.
The explicit weighing which Rule 403 mandates need not, of course, be as extensively articulated as the balancing in which this concurring opinion engages. Eviden-tiary decisions most often are made in the course of a trial, and extensive explication might unduly delay the proceedings. Nonetheless, the record should reflect some reckoning of the balance between relevance and prejudice and the alternatives available for the substitution of less prejudicial proof. Such reasoned adjudication is the cornerstone of the legitimacy of the actions of the judiciary, and an essential safeguard of the proper exercise of the trial court’s broad discretion.9
4.
Evidence that Long engaged in other bribery schemes — in this case evidence of hearsay quality — was of limited relevance to the specific issues before the jury. Certainly this is true if our inquiry is limited to the reasons addressed by the trial court. The district judge declared that he admitted the evidence to “show part of the general plan or scheme.” 10 Apparently he believed that the allegation that Long may have sought to bribe other borough councils was relevant to the issue being tried. Yet, as the trial judge recognized, the case being tried “ha[d] to do with obstruction of justice and perjury before the grand jury,”11 not bribery in Duquesne, Munhall, Homestead and Rankin. Any conclusion that the “payoffs” referred to in the challenged testimony were part of a common scheme to commit perjury before the grand jury or to *771obstruct that body’s inquiry would appear to be speculative.12
The trial judge also suggested13 that the objectionable evidence rebutted an implication planted during the cross-examination of a prior witness14 to the effect that Long’s denial of “payoffs” might have been confused by a misapprehension as to the meaning of that term. However, the possibility of Long’s confusion regarding the meaning of the word “payoffs” would not appear to be negatived by the testimony in question here: that Long had said that he was “paying off” other city councils. Long may have been equally confused in making the latter utterance.
Even if a reviewing court is not limited to the reasoning articulated by the trial judge, the probative value of the questioned testimony remains marginal. The prosecution’s terse invocation of the purpose of showing “intent, motive and knowledge”15 as the basis for the relevancy of the testimony guides attention only to minimal probative worth. Taking the facts to be as the prosecution represented them, Long might be said to have had a motive for concealing his misdeeds in North Braddock from the grand jury: i. e., avoiding prosecution for his misconduct in North Braddock. But the fact that Long may also have hidden other misconduct, even if proven, adds little to the prosecution’s case as to Long’s motive for lying to the grand jury. Similarly, it seems that Long’s knowledge and intent regarding his statements to the grand jury on the subject of his actions in North Braddock were illumined only to a limited extent by his alleged comments to Irvin, the informer, about activities in four surrounding boroughs.
Concern that potential prejudice substantially outweighed any probative value is heightened by the use that the government ultimately made of the testimony at issue. Thus, in his closing, the prosecutor did not refer to the prejudicial evidence as it bore on intent, motive or any of the other grounds set forth when the prosecution urged the inclusion of the testimony. Instead, the prosecutor invited the jurors to consider the evidence in question primarily as it touched on Long’s character.16 The defendant was to be convicted, according to the prosecutor, because his activities in Du-quesne, Munhall, Homestead and Rankin were socially pernicious. The judge’s charge did not remedy this state of affairs, for it left unclear the purposes for which the jury could consider the testimony.17
*772It is difficult to discern clearly the principle for which the majority contends.18 The thrust of their comments seems to be that the trial judge need only state that the admitted material is “relevant” in order to comply with Rules 403 and 404. Such a procedure, in my view, is not the one contemplated by the Federal Rules or our cases.
5.
But although I believe that, where the prosecution seeks to introduce potentially prejudicial evidence, Rule 4Ó3 and the cases require the trial court to balance probative value against prejudice, the judgment here need not be reversed.
The evidence of guilt in this particular case is so substantial that the legal error may be considered harmless.19
. F.R.Evid. 401 reads:
“Relevant evidence” means evidence having 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.
. F.R.Evid. 403. The Advisory Committee’s Note to Rule 401 states that the broad sweep of Rule 401 is to be “limited by the exclusionary principles of Rule 403.”
. The testimony proffered was that Long had said to Irvin that Long “was still paying off in Duquesne, Munhall, Homestead, and Rankin.” While this indirect testimony is not objectionable “hearsay” within the meaning of the Federal Rules of Evidence, since Long is a party to the proceeding (F.R.Evid. 801(d)(2)), it nonetheless carries with it a number of the factors which militate against placing reliance upon hearsay.
. Rule 404(b) provides: . “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show 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.”
. See e. g., United States v. Cook, 538 F.2d 1000, 1003-1004 (3d Cir. 1976); United States v. James, 181 U.S.App.D.C. 55, 555 F.2d 992, 1000-1001 (1977); United States v. Beechum, 555 F.2d 487, 507-509 (5th Cir. 1977).
. See e. g. United States v. Cook, 538 F.2d 1000, 1004 (3d Cir. 1976); quoting Govt. of the Virgin Islands v. Toto, 529 F.2d 278, 283 (3d Cir. 1976).
. Federal Rule of Evidence 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially out*770weighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . .
The Advisory Committee’s Notes to Rule 404(b) state that where the evidence of prior bad-acts is offered for a permissible purpose,
“[t]he 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.”
See Govt. of the Virgin Islands v. Felix, 569 F.2d 1234 at 1279-1280 (3d Cir. 1978); John McShain, Inc. v. Cessna Aircraft Co., 563 F.2d 632 at 635 (3d Cir. 1977); United States v. Cook, 538 F.2d 1000, 1003-04 (3d Cir. 1976); United States v. Robinson, 174 U.S.App.D.C. 224, 530 F.2d 1076, 1081 (1976).
Even before the Federal Rules, the standard in this Circuit was phrased in these terms:
Evidence of other offenses may be received if relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime. Of course, the trial judge may, in the exercise of his sound discretion exclude evidence which is logically relevant to an issue other than propensity, if he finds that the probative value of such evidence is substantially outweighed by the risk that its admission will create a substantial danger of undue prejudice.
United States v. Stirone, 262 F.2d 571, 576 (3d Cir. 1958) revd on other grounds 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).
. United States v. Cook, 538 F.2d 1000, 1004 (3d Cir. 1976). See Govt. of the Virgin Islands v. Felix, 569 F.2d 1274 at 1279-1280 (3d Cir. 1978).
. As Justice Frankfurter stated in a different context:
That a conclusion satisfies one’s private conscience does not attest to its reliability. The validity and moral authority of a conclusion largely depend on the mode by which it was reached.
Joint Anti Facist Refugee Committee v. McGrath, 341 U.S. 123, 171, 71 S.Ct. 624, 649, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring).
. 281a.
. Id.
. Cf. United States v. Klein, 515 F.2d 751, 755-56 (3d Cir. 1975).
. 282a.
. Id. at 160a-162a.
. Appendix p. 281a.
. The prosecutor’s comments were:
Now, what did Mr. Long say to Norm Irvin at lunch? What do you recall about that testimony? Mr. Irvin, as I recall it, said the defendant, Long told him at lunch, I am still paying, still paying; Rankin, Munhall, Du-quesne and Homestead. I am paying there. Does that mean that he is still paying there but he is not paying in North Braddock because the heat is on? That is something for you to think about.
* * * * * *
Mr. Cindrich talked about presumption of innocence. Mr. Wedner talked about presumption of innocence. Mr. Cindrich talked about a reasonable doubt. Mr. Wedner talked about a reasonable doubt. But, you must follow the law given to you by the Court.
But, there are other foundations and other pillars upon which our country is built and one of those is a government of the people, by the people, for the people. Not in the back rooms at Long Hauling Company and other — under the table to the Council of North Braddock and how many other garbage contracts Mr. Long has bought that way.
. The jury charge on this point reads:
THE COURT: Now, there is a principle of law that says that you may consider like acts or a pattern of activity to prove specific intent. The willful, intentional or deliberate value of the acts charged.
That is, which are not concerned here with — let me put it the other way. We are concerned here with whether or not there were payoffs, kickbacks or bribes. As far as North Braddock is concerned. You may look to any other statements such as Rankin, Munhall, anything of that kind, if you first find that the statements were made.
You may look to them to determine whether there was a pattern of activity to prove the specific intent about which we are talking. *772We are not concerned in this case with any questions with respect to Munhall or any other place than North Braddock because these questions were solely related at that point and that is solely the charge in this indictment. But, you can look to those other matters to determine whether or not there was a conspiracy to answer the questions as charged in the indictment.
. The majority suggests that we are “taking the trial judge to task.” To the contrary, the sole purpose of this discussion is to point out the necessity of careful balancing in order to avoid the improper use of other alleged-misconduct to obtain a conviction on a charge based on an'unrelated transgression.
. See Govt. of Virgin Islands v. Toto, 529 F.2d 278, 283-84 (3d Cir. 1976) (test for harmless error is whether it is highly probable that evidentiary error did not contribute to conviction); Federal Rule of Criminal Procedure 52(a) (harmless error is one that does not affect substantial rights).