join, dissenting:
As the lights are being extinguished on Broadway, I feel impelled to light a few candles in requiem.
The majority has gone well out of its way1 to overrule Broadway. In the panel *919opinion, 555 F.2d 487 (5th Cir. 1977), the panel majority explained why the policies and doctrines of Broadway are sound. I affirm those views here. But I must add a few comments because the opinion of the en banc majority leaves the law in this area in such a confused state. In this dissent I make two broad arguments. First I show how the majority misinterpreted Rule 404(b) of the Federal Rules of Evidence. Basically the majority’s reading of the rule fails because it reads so broadly the second sentence in Rule 404(b), which makes certain evidence admissible, that it allows the second sentence to swallow up the first sentence of Rule 404(b), which explicitly bars the admissibility of certain evidence. In addition, this too broad reading of Rule 404(b)’s second sentence conflicts with explicit language in other related federal evidence rules, such as Rules 609 and 608. Finally I note that no other circuit or legal commentator has seen in Rule 404(b) the same destructive and revolutionary intent that the majority apparently sees. On the contrary, many circuits calmly preserved doctrines similar to Broadway in the wake of Rule 404(b)’s passage, often even terming the rule a codification of their law. My second broad argument concerns the test with which the majority replaces Broadway. I argue that not only is this test little more than a subjective, difficult to apply version of Broadway, but that it is even more hostile to extrinsic offense evidence than Broadway in some respects.
I. The Majority Misinterprets Rule 404(b).
A. The Majority’s Too Broad Reading of the Second Sentence in Rule 404(b) Allows it to Swallow Up the First Sentence.
Rule 404(b) provides:
(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.
Rule 404(b) seems to me to identify two conflicting policies and to require the courts to reconcile them. One policy is that extrinsic acts evidence is sometimes probative of material facts. For that reason, the second sentence authorized us to reason from unrelated past acts and states of mind to current states of mind. But at the same time the drafters of the rule were wary of *920such reasoning. Thus they wrote the first sentence. Its purpose is to caution us that extrinsic acts evidence is fraught with dangers of prejudice — extraordinary dangers not presented by other types of evidence.2 Had the drafters not thought the dangers were extraordinary, they would never have given us the first sentence; they would have written only the second sentence and the general balancing test of Rule 403. Broadway and similar doctrines were designed precisely to deal with such extraordinary dangers.
The majority reads this rule differently. It thinks that so long as the probative value of extrinsic acts evidence is not “substantially outweighed” by its prejudicial effect, Rule 403, the evidence is to be admitted. (Majority opinion, p. 911.) How does the majority dispose of the first sentence, then? Here is where, to my mind, it seriously misapprehends the rule. The majority reads the rule to establish two watertight compartments: extrinsic acts evidence which relates “solely to . the defendant’s character”, ante at 914; see also ante at 910, 911, 913, 914 in n. 19, and that which is relevant for other purposes, including state of mind. Thus the majority thinks the rule unequivocally allows us to reason that because a defendant displayed an improper intent in the past, he is more likely to have had an evil intent in the act for which he is tried. See p. 913. How this differs from reasoning that the defendant has a “propensity” to act with evil intent, id. is beyond reason; but the majority says the rule prohibits references based on propensity. There simply are no such watertight compartments to be found, unless we engage in subtle and sophisticated metaphysical analysis.3
Even the majority implies at one point that extrinsic offense evidence submitted allegedly to show intent is really just bad character evidence in sheep’s clothing. The majority writes:
“Our analysis applies whenever the extrinsic activity reflects adversely on the character of the defendant, regardless whether that activity might give rise to criminal liability.” (emphasis added.) Majority opinion p. 903 n. 1.
And in footnote 17 the majority adds: “The reader should recall that we use the term ‘offense’ to include noncriminal activity that impugns the defendant’s character.” (emphasis added.) Majority opinion p. 914 n. 17. These comments don’t nibble at the first sentence in Rule 404(b) — they consume it altogether.
Moreover, the majority’s “watertight compartment” view of Rule 404(b) leads to a conclusion that the first sentence of Rule 404(b) is superfluous. Simply, evidence which is probative “solely” of bad character and not of any fact related to the elements of the crime, such as intent, identity, etc., is inadmissible in any event, under Rule 401, because it is irrelevant. As Rule 401 provides:
“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.
*921To be sure, I find it nearly impossible to imagine any “extrinsic offense” which would make a jury think that the defendant had a bad character or a criminal propensity, but which did not also have at least some tendency to make it less probable than it would be without the evidence that he had a purely innocent, law-abiding intent in the charged offense. But, more importantly, if such “extrinsic offense” evidence were so purely irrelevant to intent and to the other elements of the charged crime, I can not see how it could pass the Rule 401 relevancy test even to necessitate the application of the Rule 404(b) bar to its admission.
The “watertight compartment” view of Rule 404(b) could lead to other peculiarities as well. Constrained by the explicit words of Rule 404(b), the majority concedes that extrinsic offense evidence which relates “solely” to a defendant’s propensity to commit the charged crime is barred by the first sentence of Rule 404(b), no matter how much its probative value outweighs its prejudicial effect.4 But when a judge thinks the extrinsic offense also relates to the defendant’s propensity to intend to commit the charged crime, then the question leaps over to the second watertight compartment, where the presumption is heavily in favor of admitting the evidence, unless its probative value is substantially outweighed by prejudice. The alchemy of the majority opinion would radically change the rule from a total bar of the evidence regardless of the probative-prejudice balance to a balancing test substantially weighted in favor of admissibility, simply because a judge metaphysically classifies the question as propensity to intend rather than as propensity to commit. Since propensity is largely a concept of a person’s psychological bent or frame of mind, it seems extreme to have so much turn on so little, if any, of a distinction. I respectfully refuse to adopt the majority’s Dr. Jekyll-Mr. Hyde interpretation of Rule 404(b). It is a horror fantasy that should pass by the boards of Broadway.5
B. The Majority’s Reading of Rule 404(b) Conflicts With the Explicit Language in Rules 609 and 608.
Another problem with the majority’s interpretation of the vague language in Rule 404(b) is that it conflicts with the specific language in Rules 608 and 609. Suppose, for example, that Beechum had been convicted of fraudulent use of credit cards 10 years before his trial for the coin theft. Under Rule 609, if Beechum took the stand his credibility could be impeached with evidence of the prior conviction only if the probative value of the prior offense substantially outweighed its prejudicial impact on the jury. If the conviction had been more recent than 10 years ago, then the test would be a simple weighing of probativeness and prejudice.
Next, suppose that the evidence of the prior offense were clear and convincing, but that the defendant had never been convicted for it. In this case, Rule 608 would forbid any admission of the evidence of the prior offense except for what could be elic*922ited from the defendant on the stand. If the defendant chose to exercise his Fifth Amendment right of silence, then no evidence of the prior offense could reach the jury-
Now, finally, consider the result under the majority’s reading of Rule 404(b). Here the evidence of a prior offense is independently admissible to the jury,6 as long as its probative value is not substantially outweighed by its prejudicial impact. The pri- or offense need not be proved beyond a reasonable doubt, as in Rule 609, nor even clearly and convincingly, as might be the case under Rule 608, but rather only to the minimal Rule 104 standard, i. e. where a reasonable jury might find the defendant committed the crime. This leads to a bizarre anomaly. According to the majority, the government under Rule 404(b) can submit with ease prejudicial, flimsy evidence of an extrinsic offense, but under Rule 609, where the crime was proved beyond a reasonable doubt, the admissions standards are much stricter. Under Rule 608, the evidence is inadmissible entirely except from the defendant’s own mouth, even if the evidence of the other crime is clear and convincing, or established beyond a reasonable doubt.7 You might say then that, for purposes of admitting extrinsic offense evidence, the majority of this court may at times presume a defendant guilty until he is proven guilty beyond a reasonable doubt, at which point the court may begin presuming him innocent.
C. The Majority’s View of Rule 404(b) Conflicts with the Views of Other Circuits and with Leading Commentators.
The majority is of the opinion that Rule 404(b) demands that Broadway be strictly overruled. Majority opinion p. 910. No other circuit or legal commentator has come close to giving the rule such destructive force or intent. The Eighth Circuit has calmly preserved a doctrine similar to Broadway, citing for authority pre-Rule 404(b) cases, post-Rule 404(b) cases, and the rule itself.8
The Ninth Circuit, terming the rule a codification of prior case law,9 continues to apply the same test as the Eighth Circuit, including the “clear and convincing” proof requirement.10
The Seventh Circuit has continued its use of the same three-part test used by the Eighth and Ninth Circuits, including the “clear and convincing” evidence requirement, calling the test “well established.” 11
Other circuits also have maintained tests much stricter than the test the majority here feels is required by Rule 404(b). For example, the Sixth Circuit still requires a *923“substantial similarity” between the extrinsic and charged offenses as a “prerequisite to qualify for one of the exceptions” in Rule 404(b).12 The Second Circuit continues to apply its “well-established” threshold test that evidence of the “similar” extrinsic acts must be “substantially relevant for a purpose other than merely to show defendant’s criminal character or disposition.” 13 (emphasis added.) Even the Third Circuit, which has one of the least rigid Rule 404(b) tests in the country, sees the rule as codifying its requirement that the probative value must outweigh the prejudice, rather than our majority’s “substantially outweighed” by prejudice test.14 Weinstein’s Evidence also concludes the rule has little or no impact on the case law.15
Even the Advisory Committee Notes cast doubt on the majority’s sense that Rule 404(b) compels us to use the “substantially outweighed” test in Rule 403. The Notes say:
“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.” 28 U.S.C.A. Rules of Evidence at 109 (1975).
Thus, the Notes seem to advise use of a straight-forward prej udice/probativeness balancing test, not the “substantially outweighed” test of Rule 403.16
II. The Majority Replaces Broadway with a Worse Test.
If Rule 404(b) were no more than the intersection of Rules 104, 401 and 403, as the majority at times implies, then the prosecution of any crime in which intent was an element could include evidence of any extrinsic wrong-doing of the defendant which had any tendency to prove that it was less probable he acted with law-abiding intent (Rule 401), and which evidence had a prejudicial effect which might outweigh its probativeness, but not substantially (Rule 403).17 Instead the majority restricts this hopelessly broad floodgate for extrinsic offense evidence by building into Rule 401 a “similarity” test reminiscent of Broadway. Strictly speaking, the relevance test in Rule 401 is no more than a requirement that the evidence have some “tendency” to change the probability of a consequential fact, such as criminal intent. But the majority adds to this simple, albeit grossly overbroad threshold test, the requirement that the intent of the extrinsic crime be the “same” as the intent of the charged crime. The majority writes:
Where the issue addressed is the defendant’s intent to commit the offense charged, the relevancy of the extrinsic offense derives from the defendant’s in*924dulging himself in the same state of mind in the perpetration of both the extrinsic and charged offenses. Majority opinion, p. 911.
And it states:
The touchstone of the trial judge’s analysis in this context should be whether the Government has proved the extrinsic offense sufficiently to allow the jury to determine that the defendant possessed the same state of mind at the time he committed the extrinsic offense as he allegedly possessed when he committed the charged offense. Majority opinion, p. 914.
The majority nowhere explains where it gets' this additional test.18 It is no more stated in Rules 401, 403 and 404 than is Broadway. Admittedly it does seem to serve the same critical function of preventing the second sentence in Rule 404(b) from swallowing the first. Nevertheless, it is a poor replacement for Broadway for two reasons. First, it replaces Broadway’s objective test of similar physical elements with a subjective, psychological test of determining when a defendant was “indulging ... in the same state of mind in the perpetration of both the ... offenses.” Second, in some situations it could be even more hostile to the admission of extrinsic offense evidence than Broadway was.
A. The Majority’s New Similarity Test is a Subjective Version of Broadway.
The majority’s “psychological indulgence” test seems to call on a district judge to decide whether the defendant “indulged himself” in the “same state of mind” in the preparation of two crimes. It totally escapes me how one would go about making this decision. If a person snatches a purse, cheats on his income taxes, and then steals a coin from the mail, is he “indulging himself in the same state of mind in the perpetration” of the offenses? Would a court say, for example, that the defendant is “indulging himself in the same state of mind in the perpetration” of these offenses because, at some point in each offense, he intends to possess property rightfully belonging or owed to another? Moreover, is this Freudian and ill-defined type of psycho-analysis required, or even suggested, by Rule 401’s definition of relevance?
It was precisely this impossibility of comparing psychological states of mind that led Broadway to settle on a simple comparison *925of only the physical elements of the two crimes.19 As is demonstrated in the next section, the issue of the strictness of a test can be kept entirely separate from whether the test turns on subjective or objective factors. Thus I do not see what the majority accomplishes by telling a district judge to match up psychological indulgences rather than physical elements.20 The new test seems to add little to the effort except hazy uncertainty. One might even say that the majority did not overrule Broadway at all; it simply moved it from Times Square to the Bermuda Triangle.
B. The Majority’s “Psychological Indulgence” Test Could be Even Stricter Than Broadway.
Needless to say, turning a test of objective facts into a test of subjective facts does not necessarily make it a looser test. In fact, in this case there is a good chance that the majority’s “psychological indulgence” *926test could be even more hostile to extrinsic offense evidence than was Broadway. The majority deludes itself on this point by defining Broadway too harshly. Specifically, the majority seems to think that Broadway requires a one-to-one correspondence between all the physical elements of the two offenses. This is wrong.21 In fact, in this case the panel opinion even left open the question whether both thefts had to involve the mails. For example, it might be possible that Broadway would be satisfied by an extrinsic offense involving a theft of credit cards from a neighbor’s wallet, as long as the essential physical elements of theft were shared and there was “some basis for an inference of similarity between the mental elements of the extrinsic and charged offenses.” 555 F.2d 487, 494. As the panel opinion said,
“we must not demand perfect identity between the prior and charged offenses or impose mechanical requirements that lose sight of the underlying purpose of the rule. Broadway's requirement that the essential physical elements of the charged offense be matched by physical elements of the prior conduct allows a surprising degree of flexibility to this end.”
Id. at 496.22
But in its “psychological indulgence” test, the majority requires much more than “some basis for an inference of similarity between the mental elements.” To be specific, the majority requires that the government must prove “the extrinsic offense sufficiently to allow the jury to determine that the defendant possessed the same state of mind at the time he committed the extrinsic offense as he allegedly possessed when he committed the charged offense.” Majority opinion p. 914. (emphasis added.)
We might easily imagine a situation in which two crimes involved the same essential physical elements and in which there was “some basis for an inference of similarity between the mental elements” of the two crimes, but in which there was not enough evidence to support a jury determination that the defendant possessed the same state of mind in both cases. For example, imagine a defendant who stole two cars, one for a joy ride around the block and one to resell surreptitiously. Broadway might allow in evidence of the joy ride, whereas the “psychological indulgence” test might not.
Conclusion
The concepts in this case are not simplistic. But our task is made especially difficult here by the language we use to solve it. We are all guilty to some extent (mea culpa) of indulging in jurisprudential jargon. But the analysis of the majority too often bogs down by trying to solve problems with a few key words, phrases and clauses, such as “substantially outweighed,” “relevance,” “probative,” “similarity,” “prejudicial effect,” and the like. To make matters worse, the majority debases these words by trading their established meanings for its own language of semantic subjectivity, such as its “psychological indulgence” test.
At the heart of the majority’s error in this case is its mistaken placement of the spotlight on the Federal Rules of Evidence, instead of where it rightfully belongs — on the criminal trial of a human being. The majority places the vague and uninformed stage hands of the drama — the Federal Rules of Evidence — in the center of the stage, and pushes the principles of a fair criminal trial into weak, whispered support*927ing roles off to the edge of the proscenium wall. This means the death of Broadway, the majority admits. But it is also an assault on the legitimacy of our criminal system. The majority has, and is, misdirected. The Federal Rules can be supporting actors, at most. They must be directed one way in a civil trial and another way altogether in a criminal trial where human freedom is at stake. Rule 404(b), and most of the other federal rules as well, were designed to be broadly applicable to both criminal and civil trials. But evidence is allowed into a civil trial under a much more flexible, utilitarian standard than in a criminal trial. Due process requires extreme vigilance against the contamination of a criminal trial with cheap and mean character slander, and against the conviction of a citizen for improper reasons. The majority cannot possibly think that Rule 404(b) overrules this central principle of justice, or that it collapses the criminal trial into the utilitarianism of civil litigation.
Broadway may not be stylish, it may not be chic, but its old-fashioned virtues should command our reverence. Broadway was one more last bastion of judging a man by the specifics of the charged crime, rather than by a vague, undocumented, unauthenticated record of misbehavior. The protective mantle of presumed innocence is under severe attack in some modern-day jurisprudence, but the majority’s Cain marks become almost ineradicable. The majority’s opinion goes far in making one slip a noose.
At the heart of this dissent is a concern about the proper level of hostility or hospitality to extrinsic offense evidence. But in this dissent I am even more concerned about the practicality and integrity of the analysis this circuit will employ in making these judgments. In this case the majority has obliterated a venerable, well-reasoned body of law for no good reason at all, and has replaced it with a Freudian, difficult to apply subjective test that, outside this and a few other similar cases, will not even accomplish what the majority wants. It is especially ironic that the majority should justify its evisceration of Broadway by declaring that the “revolutionary” drafters of Rule 404(b) wanted the old standards cleared from the stage to make room for the free form, .uncontrolled balancing-test discretion of the new Theatre of the Absurd. For no sooner were the objective flats and screens of the legitimate Broadway stage pulled aside, than the majority brought in the psychological psychedelics of the Theatre of Indulgence. I can only hope that the majority will soon see the error of its ways and return to the Great White Way of Broadway with the appreciation and respect that the grand old boulevard deserves.
I would reverse the judgment of the district court and remand the case for a new trial.
. There are numerous reasons why an overruling of United States v. Broadway, 477 F.2d 991 (5th Cir. 1973) was unnecessary and inappropriate in this case. In some ways, the court’s overruling of Broadway might even be viewed as a form of dictum.
The most obvious reason is that the majority seems to view the facts of this case in such a way that the Broadway test is actually satisfied. In order to overrule Broadway it mistakenly defines the Broadway test as stricter than it really is. The majority is of the opinion that the “physical elements” part of the Broadway test would require that both offenses involve thefts from the mails. But of course the panel opinion left this an open question under Broadway. 555 F.2d 487, 499-500.
The panel opinion said the credit card evidence flunked the Broadway test because there was an insufficient showing that the cards were stolen or wrongfully possessed at all, not whether they were stolen from the mails. Id. at 499. The panel majority felt the evidence showed neither unlawful nor illicit possession of the cards, just “unexplained possession.” Id. It is not illegal or illicit to possess credit cards loaned to one by friends, or even perhaps to carry and not use cards found in the street. In any case, the physical elements and intents of these acts are quite different from the elements and intent of keeping a coin one knows is stolen from the mails. The majority does not dispute this. Instead the majority asserts that it is convinced the evidence did prove wrongful possession. At one point it states, “we think the evidence in the record clearly supports a finding that Beechum possessed the credit cards with the intent not to relinquish them to their rightful owners.” (emphasis added.) p. 916 see also p. 917. If so, then the majority should change the result under Broadway, not *919the underlying law itself. To reach the extreme position of overruling Broadway in this case, instead of just disputing the result of its application to the facts in this particular case, as Judge Gee did in his panel dissent, 555 F.2d at 510, the majority had to define Broadway’s test too strictly and to break down doors left open by the panel.
In addition, the majority replaced the “clear and convincing” proof part of the Broadway test with a loose Rule 104 test. But then the majority goes on to state that in this particular case the evidence “clearly” supports incriminating findings. (Id. at p. 916.)
Second, the majority itself writes of the “peculiar” and “unique” aspects of the case insofar as it is colored by the 5th amendment waiver and scope of cross-examination issues. (See, e. g., p. 916 n. 21) It is easy to see how such collateral issues could preempt the Broadway test. For example, consider a case where a defendant took the stand and testified that he knew he intended to return the silver dollar because he recently found two Sears credit cards and returned those immediately. Clearly this might open the door to evidence of the cards that Broadway otherwise would keep out. But in such a case Broadway would be pre-empted, not overruled. And yet the majority repeatedly states that Broadway must be overruled here because justice demands that the defendant’s testimony be rebutted. See, e. g., p. 909 (“But where the defendant testifies to controvert an element of the Government’s case, such as intent, to which the extrinsic offense is highly relevant, the integrity of the judicial process commands that the defendant be faced with that offense.”) The problem with this sort of logic is that in the next case when the defendant does not so testify, Broadway is no longer pre-empted by a conflicting policy, but it is also no longer law, because it was overruled in an earlier “peculiar” and “unique” case. We suggest to the majority that Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), restricted Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it did not presume to overrule it.
. Evidence of other offenses allegedly committed by the defendant seriously threatens the integrity of a criminal trial.
As we explained in our panel opinion:
First, the jury may punish the defendant for • the prior rather than the charged offense. Second, the jury may infer from the defendant’s assumed guilt of the prior offense that he committed the charged offense. Third, the jury may infer that two incomplete or unproved offenses somehow cumulate to justify some punishment. This, of course, is the danger of bootstrapping, whereby a prosecutor uses an incomplete prior offense and an incomplete charged offense to reinforce each other, each providing the basis of an inference that completes the other. 555 F.2d 487, 508.
These risks are even higher in a case such as Beechum where the defendant has never faced prosecution for the extrinsic offenses, tempting a jury to think he has escaped his due punishment.
. Wigmore noted the inextricable interrelation of intent and bad character evidence when he wrote that, in the “anxiety not to infringe upon the character rule, evidence highly appropriate to show knowledge, intent, or design, and amply fulfilling the proper tests for that purpose, has often been excluded.” 2 J. Wigmore, Wig-more on Evidence § 305 (3rd ed.).
. On page 910 of its opinion the majority “deems” that the probative value of this evidence could never outweigh its prejudicial impact, but deeming is not believing. Of course some scale-tipping probative evidence is kept out by this sentence, or else it is made superfluous by Rule 403 and the second sentence in Rule 404(b).
. At worst, of course, the extreme result of the majority position might even be that the first sentence in Rule 404(b) effectively applies only to crimes in which criminal intent is not an element.
Even where intent is not disputed by the defendant, the majority notes at p. 914 n. 18, extrinsic offense evidence would still be relevant and admissible. Thus, it might be that once intent is an element of the crime — as it is with almost all crimes — then the defendant is left only with the minimal protection afforded by the “substantial prejudice” test in Rule 403. Such a lop-sided reading of Rule 404(b) is sheer illogic. More importantly, it invites a flagrant abuse of the rights of accused citizens.
To escape this unthinkable result, the majority reads into Rule 401 a “same intent” requirement that is little more than a subjective version of Broadway, and in some ways is even stricter than Broadway. This aspect of the majority opinion is discussed in Part II infra.
. That is, the government can submit it directly to the jury, whether or not the defendant takes the stand, and does not have to elicit it from the defendant on the stand, as in Rule 608.
. The majority might try to explain this by asserting that impeachment evidence of a criminal defendant is generally less probative of guilt than evidence of an element of the crime, such as intent. We find this argument less than convincing. Inferring intent in one crime from the defendant’s behavior in a totally unrelated crime seems to us at least as tenuous and unprobative as evidence that a defendant is lying on the stand. The 609/404 distinction is especially flimsy where the defendant is testifying about his intent. Where extremely tenuous evidence is involved, we see little difference between trying to prove that the defendant is lying, and trying to prove that what he is saying is a lie.
Moreover, probativeness is a factor taken into account in the balancing process itself. If impeachment evidence is inherently less probative, then this can be fully reflected by its weight in the balancing test itself without also requiring that the test be weighted specially against the evidence.
. The Eighth Circuit has required that the extrinsic offense be proved by “clear and convincing evidence,” that its probative value outweigh its prejudicial effect, and that the extrinsic offense be “similar in kind and reasonably close in time” to the charged crime. United States v. Bledsoe, 531 F.2d 888, 891 (8th Cir. 1976) .
. U. S. v. Rocha, 553 F.2d 615, 616 (9th Cir. 1977) .
. United States v. Brashier, 548 F.2d 1315, 1325 (9th Cir. 1976).
. United States v. Feinberg, 535 F.2d 1004, 1009 (7th Cir. 1976).
. United States v. Ailstock, 546 F.2d 1285, 1289 (6th Cir. 1976).
. United States v. Cavallaro, 553 F.2d 300, 305 (2d Cir. 1977).
. United States v. Goichman, 547 F.2d 778, 782 (3rd Cir. 1976).
. 2. J. Weinstein & M. Berger, Weinstein’s Evidence, § 404[08] (1976):
“Rule 404(b) lists some of the instances in which other crimes evidence may be admissible . . . In point of fact the decisions are not appreciably affected by the form of the rule.” Id.
. The Notes’ reference to Rule 403 is only to the kinds of facts “appropriate” under Rule 403, not to that rule’s “substantially outweighed” test. See the discussion of this point in our panel decision, 555 F.2d 487, 505-506.
. This standard would be as unfair as it is all encompassing, given that criminal defendants invariably tend to live in the real world, which is not inhabited by saints alone. (Even visitors to Broadway must travel a few paces on 42nd Street before reaching the comfort and safety of their loge seats.) The plain fact is that many people think there is a criminal “type” who not only has a bad “character,” but everything that goes with it — bad intentions, bad motives, bad plans, etc. This kind of thinking is inimical to the principles of due process and presumed innocence that dignify our criminal system. In this country our government simply may not deprive one of its citizens of his freedom unless it charges that he committed a specific crime and proves beyond a reasonable doubt that he committed that specific crime.
. Similarly, in footnote 15 on page 21 the majority trots out several other venerable old pre-Rule 404(b) tests for the admissibility of extrinsic offense evidence. In support, the opinion cites pre-Ruie 404(b) cases and law review articles. For example, the majority cites the “handiwork” test for use of other offense evidence to show identity, the “same knowledge” test where criminal knowledge is to be proved, and the “so linked” test where common plan evidence is involved. My question is this: where does the majority find these tests in the 57 words of Rule 404(b)? Why do these venerable common law tests survive the onslaught of the “revolutionary” Rule 404(b) when Broadway does not? If we logically extend the illogical purge begun by the Beechum majority against the structured common law standards in the intent area for screening out unfair or improper evidence of extrinsic offenses in a criminal trial, must we not also eviscerate the reasoned, objective tests in the other areas mentioned in Rule 404(b), such as identity and common plan? And if we do extend the analysis of the Beechum majority to the other areas of proof named in Rule 404(b), must not this circuit say that, for example, whenever the government offers extrinsic offense evidence to show a defendant’s identity, the district court simply asks whether the evidence is relevant under Rule 401, and then whether its probative value is not substantially outweighed by its prejudicial impact? Certainly the majority would not contend that other offense evidence that just barely fails the old “handiwork” test would be accorded no relevance value at all under the evidence-hungry looseness of Rule 401. What if it were shown (unclearly and unconvincingly, of course) that a defendant stole one car by hot wire, and then is accused of stealing a second car with a key? Clearly there is no handiwork involved. But does not evidence of the first theft, under Rule 404(b), affect to some minimal degree the probability that the defendant in the second is the same man? Is the defendant then left with nothing but the hope that the judge finds that the prejudice substantially outweighs the probative value of the evidence?
. In the panel opinion we wrote:
It is usually as difficult to prove the mental element of the prior offense as it is to prove the mental element of the charged offense, which, of course, the prior offense is introduced to establish in the first place. Consequently, the mental element of the prior offense need not be “clearly” proved but may be inferred by the trier of fact from the totality of the circumstances.
555 F.2d 487, 494. Citing Broadway, 477 F.2d 991, 995 n.5.
. Switching the comparisons from the concrete to the fuzzy and subjective did not seem a key concern of the drafters of the Federal Rules of Evidence, either. One might argue, of course, that where intent is the element to be proved, it is more apt to compare mental elements than physical elements, regardless of the proof difficulties inherent in the former. The U.S. Supreme Court has not directly addressed this question. But in Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), it was called upon to decide whether the evidence of one fraudulent real estate transaction could be considered evidence of the intent in another allegedly fraudulent real estate transaction. The question came up in a challenge to the seizure of the evidence of the extrinsic offense under a warrant authorizing the seizure only of evidence of the charged fraud involving Lot J3T. To determine whether the seized evidence was sufficiently related to the Lot 13T transaction under investigation to constitute evidence of the intent in the latter, the court painstakingly compared the physical elements of the two transactions, in a manner much like Broadway. The Court’s analysis follows:
In the present case, when the special investigators secured the search warrants, they had been informed of a number of similar charges against petitioner arising out of Potomac Woods transactions. And, by reading numerous documents and records supplied by the Lot 13T and other complainants, and by interviewing witnesses, they had become familiar with petitioner’s method of operation. Accordingly, the relevance of documents pertaining specifically to a lot other than Lot 13T, and their admissibility to show the Lot 13T offense, would have been apparent. Lot 13T and the other lot had numerous features in common. Both were in the same section of the Potomac Woods subdivision; both had been owned by the same person; and transactions concerning both had been handled extensively by petitioner. Most important was the fact that there were two deeds of trust in which both lots were listed as collateral. Unreleased liens respecting both lots were evidenced by these deeds of trusts. Petitioner’s transactions relating to the other lot, subject to the same liens as Lot 13T, therefore, were highly relevant to the question whether his failure to deliver title to Lot 13T free of all encumbrances was mere inadvertence. Although these records subsequently were used to secure additional charges against petitioner, suppression of this evidence in this case was not required. The fact that the records could be used to show intent to defraud with respect to Lot 13T permitted the seizure and satisfied the requirements of Warden v. Hayden, [387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782].
Id. at 2750.
Of course the majority does not contend that a dissimilarity between the physical elements of two offenses is irrelevant to the admissibility question. Rather, the majority instructs the district judge to take dissimilarity into account in the second stage balancing test by giving a lower probative value assessment to evidence of dissimilar crimes. Majority opinion at pp. 913-914. But in its next breath, the court tells us that “the probative value of the extrinsic offense correlates positively with its likeness to the offense charged,” and that “the more closely the extrinsic offense resembles the charged offense, the greater the prejudice to the defendant.” Majority opinion at 915. In other words, the majority seems to think that, as a general rule, as the extrinsic offense becomes more dissimilar, it becomes less probative and less prejudicial at the same time. Since the balancing test the court proposes simply weighs the probative value against the prejudicial cost of evidence, dissimilarity all but factors out of the equation.
. See discussion at 918 n. 1 supra.
. The key word here is “essential.” As the panel opinion stated:
there must remain in the trial court some discretion to determine the level of generality at which to apply the Broadway rule. In other words, given the above hypothetical we would simply say that the fact that one statute specifies “government checks” does not make the latter element an essential physical element of the offense for purposes of determining similarity between prior and charged offenses.
We thus abstract from the prior and charged offenses a level of generality at which similarity will retain substantial probative value, (emphasis added.)
555 F.2d 487, 497.