dissenting in part:
I concur fully in affirmance of the District Judge’s exclusion of the other-crimes evidence implicating appellee Sheffey. I join also in today’s rejection of most of Mason’s expected testimony in relation to Williams’ conduct and statements. I think, however, that my colleagues err in approving introduction of the remainder of that hearsay testimony.1 I disagree, too, with recommittal to the District Judge of the question of the prior-crimes evidence pertaining to appellee Day, for I see no justification as yet for an undertaking to weigh prejudice in this case.2 And even were my brethren correct in their view that the balancing stage of prior-crimes analysis must be reached, I am disquieted by their broad indications of how the District Judge should exercise its discretion on remand.3 The District Judge is reversed in these respects on the narrowest of grounds — grounds that were never meaningfully presented to him or to us by the Government.
I. OTHER CRIMES EVIDENCE AND DAY
My colleagues correctly note that evidence of a crime or bad conduct other than that for which the accused is on trial is admissible if probative on a material issue unless the possibility that the jury will draw the prejudicial conclusion “that, having once fallen into sin, a second slip is likely”4 outweighs the legitimate value of the evidence.5 Thus the first question to be answered is what is the material issue here that the proffered facts of prior criminality support, and that involves a look not just at the issue but at the evidence as well, first to see what it suggests and then to see how strongly it does so. Additionally, this examination must be advertent to the full context of the case, for evidence that is merely cumulative, that only weakly supports a material contention or that goes solely to uncontested issues will seldom survive a balance against the ever-present and often compelling risk of prejudice.6 On the other hand, evidence essential to the Government’s prima facie case or to rebuttal of defenses set up by the accused will often tilt the scale in favor of admission.7
As the court outlines more fully, the Government here contends in essence that evidence of two other crimes is relevant to two material issues in this prosecution. It is argued first that the Irving’s robbery is probative of motive because, the Government believes, the homicide resulted from a dispute between Day and Williams partly over shotguns procured during the robbery. *889Beyond that, proof of the Irving’s robbery and the automobile theft is sought to be introduced to show identity, since the death weapon and the car allegedly used in the murder — and other shotguns whose barrels were shortened — were all allegedly obtained by Day as a result of the earlier offenses.
Both identity and intent are fundamental elements of the prosecution’s prima facie case, but both the Government and the court fail to realize that that is not the end of the matter. Before turning to the prejudice counterpoise, one must first ascertain whether the fact of prior crime, as opposed to a fact that is an ingredient of the crime but is neutral on its face, is indicative of either identity or intent. If not — if the evidence can serve no purpose other than “to prove the character of a person in order to show that he acted in conformity therewith” 8 — then we do not reach the stage of balancing prejudice.9 Only when the criminal nature of the earlier occurrences is itself probative on material issues,10 or when evidence of facts that were parts of those occurrences cannot adequately be presented in a manner free of the taint of associated criminality,11 can it be said that a showing of the prior crimes themselves seeks a permissible objective.
A. Motive and Intent
On the question of motive to commit murder, the Government wants to show that Day and Williams had been arguing prior to the shooting. That, of course, could be done without mentioning any prior criminality,12 so it is suggested further that the two were bickering over the shotguns. But that fact, for all we have yet been shown, could be established without any reference whatever to the robbery. Though it is contended that the jurors need to know how the shotguns were acquired, I must simply ask why, and I have yet to hear a palatable answer.
The disagreement between Day and Williams was allegedly over guns and some coats and whether Williams should have asked Day why he was using drugs. Yet the Government apparently has no desire to *890show how the jackets were originally acquired, or for that matter how Day first started to use narcotics. Should the prosecutor undertake to prove that the coats over which Day and the victim had quarreled all had been lawfully purchased at a department store, would anyone dispute a ruling that the line of questioning was irrelevant? Surely not. The end promotable by evidence of the origin of the guns, and the only end, is that knowledge of that illicit acquisition will poison the jury against Day. The District Judge quite properly noted that the dispute was not over the Irving’s robbery or the theft of the automobile themselves, and I agree with him that the prosecutor did not demonstrate “that there is a relationship between the robbery in terms of what he is actually endeavoring to show, namely, that there was ill will, a dispute or controversy between the decedent and the Defendant Day.”13
The court embraces the Government’s argument on motive by reliance on the shibboleth that “[tjhieves will out.”14 Under this theory, no competent evidence need be proffered or introduced to show that Day and Williams had a falling out stemming from one of their earlier criminal enterprises. Rather, prior criminal activity is considered ipso facto probative of motive, and the rule that evidence of the accused’s past crimes is inadmissible to prove a general criminal disposition is swallowed by the motive exception in cases where the victim of the crime and the defendant were former colleagues in criminal endeavors.15
The traditional rationale for the motive exception is that “[ejvidence of other crimes is admitted to show that defendant has a reason for having the requisite state of mind to do the act charged, and from this mental state it is inferred that he did commit the act.”16 The court adopts an inverted view, reasoning that “the motive may be inferred from the killing itself,” “[gjiven the criminal relationship between the parties and their theft of the guns and the car.”17
More troubling, no evidence of a disagreement between Day and Williams is required. The basis for the court’s ruling is its theory of human behavior — thieves are prone to fighting and killing each other. Thus boiled down, the court’s thesis seems indistinguishable from the not unnatural jury inference that Rule 404(b) is designed to guard against: that an accused with a criminal past is probably guilty.18
*891The majority also says that the evidence was admissible to prove intent because it is probative of a plan to commit the crimes with which Day is charged. A criminal, it is said, would want to saw off stolen shotguns since they then could not be traced to him through records attending legitimate purchases.. Similarly, it is added, a- person contemplating use of an automobile in a murder plot would want to use a stolen one to conceal his participation. I agree that the shotgun evidence might barely meet the minimal relevancy standards of Rule 401 for the purpose proposed by the court, but the District Judge would still have to determine whether its value was outweighed by its potential for prejudice.19 And I am unable to accept at all the court’s hypothesis with respect to the automobile theft, for I believe an inference of a murder scheme, in the absence of even a single piece of evidence thereof, is unwarranted. Any such deduction, though a possible analysis of human behavior, is not a substitute for probative evidence.
The court informs the District Judge that his inadmissibility-ruling on the ground of irrelevancy was “both premature and over-broad”20 because the Government should have the opportunity to lay a proper foundation for the evidence. If the judge’s action was premature, it was so simply because the Government requested a pretrial decision and did not fulfill its burden of advancing adequate ground for the ruling desired. If the Government could have come up with better reasons, if could always have gone back before the District Judge and sought modification of the earlier order. I think it a serious waste of judicial resources for us to be called upon to do what the prosecution should have requested in the District Court. Furthermore, the rationale now advanced by the majority was never driven home to the District Judge. In my view, he was correct on every point upon which he passed but nonetheless he now is somehow being reversed in part.
B. Identity
The attempt to use the prior misconduct to show identity is somewhat more justifiable, but not by a wide margin. The Government represents that it does not have an eyewitness to the shooting or the altering of the shotguns who can identify Day in court.21 It does have, however, what it considers to be the weapon used in the killing and the automobile in which the shooting occurred. That gun, as well as other sawed-off weapons and the discarded portions of their barrels, were all found at the house in which Day was arrested; the car was found parked nearby, and its keys were seized from the room in which Day was sleeping just before his capture. Also found in the bedroom were hacksaws and pants stained with blood of the victim’s type. The same kind of blood was also found on the murder weapon and the ear.
A jury could surely draw an inference of identity from these direct post-offense links tending to connect Day with the car and the shotguns, including the murder weapon.22 Unsatisfied, however, the Government would undertake to demonstrate that Day had possession of all of these just a day or two prior to the murder. That would obviously be relevant evidence, and the District Judge did nothing to preclude proof of *892exactly those facts.23 The problem is that the Government wishes to go further than showing mere possession; it wants to show how control was acquired — that is, through the commission of certain other crimes. But why is that pertinent? I say that it is not relevant,24 and certainly not “highly probative,”25 and that the “how” could serve only to tar the accused’s character. The blood-stained pants, just as the gun and the car, link Day to the homicide, but the Government has manifested no disposition to show how Day originally came into possession of those pants — perhaps because the acquisition did not involve any known impropriety.
In sum, under the District Judge’s pretrial rulings the prosecution can offer evidence tending to establish a number of facts growing out of the commission of other crimes: that Day and the victim had a dispute over the shotguns and that Day acquired the death weapon and the automobile a few days before the shooting. More than that will unnecessarily and unfairly sully the accused with the aura of other criminality. Showing how the guns and the car were acquired — as opposed to the fact that they were possessed — would justifiably be ruled irrelevant had the acquisitions been perfectly innocent.26 No different result should follow when that evidence is prejudical in nature.27
I am thus unable to perceive any justification at all for injecting the spectre of the automobile theft into this case. The Irving’s robbery might make some small contribution toward one specific issue,28 but even were it necessary to reach the step of balancing prejudice against this quantum of probative value, I could not concur in the court’s unmistakable instruction that admission should probably be the result.29 In the first place, balancing is traditionally left to the discretion of the trial court,30 and dis*893cretion fettered so narrowly as by the strong language of the majority opinion here is no discretion at all. Having balanced, the court remands for balancing.
Nor do I agree with the directions given. Whatever limited relevance one sees in the evidence of Day’s other sins pales in comparison to its potential for prejudice. Though the court seemingly has a difficult time in perceiving what that prejudice might be,31 I have no problem at all. The possibility of prejudice inheres in all other-crimes evidence: “Evidence of a prior crime ‘is always . . . prejudicial to a defendant [because it] diverts the attention of the jury from the question of the defendant’s responsibility for the crime charged to the improper issue of his bad character.’ ”32 Though the other crimes here do not overshadow the grave offenses for which Day will actually stand trial, it takes no great familiarity with human nature to know that jurors might well reason that a person who commits armed robbery and steals weapons and an automobile is capable of homicide, and that if a murder occurs and is linked to him in any way he probably is responsible.
Similarly, I am unable to see the importance of the fact that Day knows the nature of the evidence and cannot contend that it is unreliable because he pleaded guilty to the other crimes.33 The immateriality of those considerations becomes obvious when one recalls the purpose of the other-crimes rule. We are not concerned with whether the accused actually engaged in prior wrongdoing but with whether he is innocent or guilty of the offense with which he is currently charged. No matter how certain we are that the accused committed crime X, we are not permitted to conclude from that knowledge that he committed crime Y.
II. THE MASON HEARSAY TESTIMONY
I am in complete accord with the court’s application of Judge MacKinnon’s perceptive opinion in Brown34 to the bulk of the statements made by Williams to Mason.35 I *894cannot, however, reconcile Brown with admission of (a) the slip bearing appellees’ names and a telephone number, (b) testimony by Mason that when Williams turned the slip over he made a statement or (c) evidence that Mason called the police after the shooting and gave them the information on the slip — when it is combined with the first two.36
To begin with, if testimony averring the mere delivery of the slip is as “neutral” as the court labels it,37 then by the same token it is also quite irrelevant. And if the writing on the slip does “not assert anything except that Beanny and/or Eric might have a particular telephone number” and “is not being offered as proof that Beanny and/or Eric had that telephone number,”38 what possible justification is there for allowing its admission? If as the court holds,39 Mason cannot reveal to the jury the content of Williams’ statement accompanying the delivery, what is accomplished by showing simply that a statement was made? And if Mason’s post-homicide call to the police conveyed nothing but valueless data on the slip, what importance would it have to the issues? Regardless of hearsay analysis, here, as with the proffered but so far rejected testimony that Williams said his leg was hurting, the “evidence is admissible only if it is relevant and fairly probative on a material issue in the case.”40
The court suggests that this evidence “tends to show a current association between Williams and individuals named ‘Beanny’ and ‘Eric’.”41 This theory was never mentioned by the Government in any of its lengthy pretrial filings, probably because it has a long line of witnesses, including Mason himself, who could testify directly to the undisputed fact that Williams knew Day and Sheffey and had been in contact with them shortly before the murder. The simple fact is that “in actuality, the Government seeks to have something more inferred”42: that Williams feared Day and Sheffey.
Thus, I cannot subscribe to my colleagues’ theory that these items of evidence are innocuous. On the contrary, I have no difficulty in recognizing the implications they are apt to have for lay jurors. The only consequence thus far emerging43 toward which these evidentiary items could contribute is that the jury will infer that Williams told Mason something about Day and Sheffey that would indicate that they were the parties who shot Williams an hour later. Thus, not from the content of Williams’ statement to Mason but simply from its making, and from the turnover of a slip of paper naming both Day and Sheffey coupled with transmittal of that information to *895the police, “[t]he jury is being asked to infer . that Day,” and Sheffey as well, “bore ill will toward Williams and had reason to cause him harm.”44
That the inference arising from Williams’ delivery of the note is somewhat less obvious than that which would spring from the excluded content of his concomitant statement — his instruction to Mason to communicate with the police if he had not returned to his home by the following afternoon— does not mean that it is appreciably less potent. The urgent and threatening circumstances surrounding the episode are enough to demonstrate that Williams intended the utterance of the statement, as well as its content, as an assertion that he feared Day and Sheffey,45 and thus it can be no more reliable than the words themselves. Consequently, even assuming that Mason’s description of the physical events would not be hearsay when viewed completely in isolation, it does not follow that the inferences the jury may well draw,46 and that the Government patently wants drawn,47 from Williams’ behavior are unburdened by the dangers of hearsay.48
I submit that, in the milieu in which it was made, the fact of Williams’ statement does not qualify under the hearsay-rule exception for nonassertive nonverbal conduct. I say, too, that the text of Williams’ note— plainly intended as a message from Williams to the police, through the medium of transmittal by Mason — deserves the usual fate of unmitigated hearsay. I think, in sum, that each of the evidentiary items under discussion is inadmissible even if accompanied by a limiting instruction.49 Since Williams cannot be confronted nor his perception, memory, narrative-accuracy and sincerity tested,50 I would exclude not only the statement but also all its behavioral trappings. Because the court refuses to uphold the District Judge on this score and on his rejection of the other-crimes evidence *896implicating Day, I must respectfully dissent.
. See Part II infra.
. See Part I infra at notes 6-21.
. See Part I infra at notes 22-30.
. United States v. James, 181 U.S.App.D.C. 55, 62, 555 F.2d 992, 999 (1977).
. United States v. Haldeman, 181 U.S.App.D.C. 254, 311, 559 F.2d 31, 88 (1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977), and cases cited in note 145; see Fed.R.Evid. 403.
. See, e. g., United States v. James, supra note 4, 181 U.S.App.D.C. at 63 & n.46, 555 F.2d at 1000 & n.46 (“such an inference is so weak as to bring into serious question whether its contribution to the accuracy of the trial process outweighed the likelihood that its dramatic flavor would derange it”); United States v. Goodwin, 492 F.2d 1141, 1152 (5th Cir. 1974) (“[a]lthough intent was an element of the crimes charged, that issue was never seriously disputed at trial” and thus there was a “total absence of need for the evidence”); United States v. Coades, 549 F.2d 1303, 1306 (9th Cir. 1977).
. United States v. Spletzer, 535 F.2d 950, 956 (5th Cir. 1976); see United States v. Jardan, 552 F.2d 216, 219 (8th Cir.), cert. denied, 433 U.S. 912, 97 S.Ct. 2982, 53 L.Ed.2d 1097 (1977) (“the Government is entitled to anticipate the obvious defense of lack of intent,” which was an element of the crime). See also United States v. Adcock, 558 F.2d 397, 402 (8th Cir.), cert. denied, 434 U.S. 921, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977); United States v. Maestas, 554 F.2d 834, 836 n.2, 837 & n.3 (8th Cir. 1977).
. Fed.R.Evid. 404(b).
. See United States v. Rice, 550 F.2d 1364, 1372 (5th Cir.), cert. denied, 434 U.S. 954, 98 S.Ct. 479, 54 L.Ed.2d 312 (1977) (exclusion of fact of prior criminality required because prosecution’s purpose could have been accomplished by evidence that did not intimate illegality); United States v. Spletzer, supra note 7, 535 F.2d at 956 (prejudicial elements of evidence not needed to fulfill the purpose asserted may not be admitted); United States v. McFadyen-Snider, 552 F.2d 1178, 1183 (6th Cir. 1977) (court must look to the “real reason” the prosecution wants the evidence of prior misconduct admitted).
. E. g., United States v. Haldeman, supra note 5, 181 U.S.App.D.C. at 312, 559 F.2d at 89 (1976) (prior-crime evidence was admissible because desire to conceal identities of those involved in earlier wrongdoing was a possible motive for the crime being tried).
. There appears to be no reason why the Government could not have its witness Plater testify that on December 14, 1976 — 49 hours before the shooting — he saw Day enter and drive away a 1974 Buick Electra 225 with a green body and tan roof and bearing a specific license plate number. Similarly, the Irving’s witnesses could, for all we know, testify that on December 15 — 31 hours before the homicide — Day left the sporting goods store in possession of full-length shotguns bearing particular serial numbers. The Government has not yet given either the District Judge or this court any reason why the evidence just mentioned could not realistically be developed at trial without mention of the fact of prior criminality, and the burden is surely on the Government to support its request for a pretrial ruling on admissibility. Should it eventuate that the element of illegality cannot feasibly be excised from evidence establishing the occurrences probative on disputed material issues, and should the trial judge thereupon find that the balancing process favors admission, Day would then have to decide whether to stipulate to his possession of the automobile and the weapons at the critical times in order to avoid admission. See United States v. Durcan, 539 F.2d 29, 30 (9th Cir. 1976) (trial court should have compelled Government’s acceptance of stipulation by individual accused of smuggling goods from Canada that he had acquired the articles in Canada; improper to allow Government to reject stipulation and instead introduce evidence that the items were stolen in Canada).
. See notes 8-10 supra and accompanying text.
. Transcript of Oct. 25, 1977, Hearing at 69-70; see United States v. Keliey, 545 F.2d 619, 623 (8th Cir. 1976), cert. denied, 430 U.S. 933, 97 S.Ct. 1555, 51 L.Ed.2d 777 (1977) (District Court’s determination that other-crimes evidence was simply irrelevant to any material issue “will not be disturbed absent a clear showing of abuse of discretion”).
. Majority Opinion (Maj. Op.), 192 U.S.App.D.C. at -, 591 F.2d at 876.
. The court’s reliance on United States v. Bobbitt, 146 U.S.App.D.C. 224, 228, 450 F.2d 685, 689 (1971), and Wakaksan v. United States, 367 F.2d 639, 645 (8th Cir. 1966), is misplaced. See Maj. Op., 192 U.S.App.D.C. at --, 591 F.2d at 876. The bad-acts evidence held admissible in those cases concerned the accused’s history of threatening or abusing the victim; the fact of a “prior criminal relationship” was not the linchpin. Indeed, Bobbitt provides an instructive contrast to the court’s approach:
The question before us is subject to the consideration giving the court greater discretion for admitting other crimes on the basis of materiality to the issue of motive. The prior relationship between the parties is obviously material in determining what motive the defendant might have had to shoot decedent. Here, where there was other evidence that there had been ‘bad blood’ between appellant and the deceased the judge did not abuse his discretion in admitting evidence of a prior threat with shotgun.
146 U.S.App.D.C. at 228, 450 F.2d at 689. Similarly, other precedents sanctioning admission of evidence of the defendant’s prior crimes to prove motive involved evidence indicating a rather specific reason for the defendant to commit the charged crime. E. g., United States v. Dansker, 537 F.2d 40, 57-58 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).
. 2 J. Weinstein & M. Berger, Evidence fl 404[09], at 404-53 (1977).
. Maj. Op., 192 U.S.App.D.C. at -, 591 F.2d at 876.
. See text infra at notes 31-33.
. See text infra at notes 25-29.
. Maj. Op., 192 U.S.App.D.C. at -, 591 F.2d at 877.
. Brief for Appellant at 13-14. Mason did see the shooting and did identify Day as the assailant to the grand jury. He was, however, apparently unable to select Day from a lineup.
. The Government does not agree that this circumstantial evidence is sufficient to overcome a motion for a judgment of acquittal, and concludes “that without the use of the ‘other crimes’ evidence the Government will be effectively disabled from providing answers to these questions [of identity and intent].” Brief for Appellant at 14. Even were this true, which of course, I do not consider, inadmissible evidence is not rendered admissible simply because the Government otherwise would have difficulty proving its case.
. Indeed, the Government could have argued that because Day’s plea of guilty to the earlier crimes was an admission of the facts alleged in the counts charging those offenses, conceivably he is collaterally estopped from denying that he had possession of the automobile on December 14 or of the shotguns on December 15. This “difficult issue” is not presented to us, however. See United States v. Cheung Kin Ping, 555 F.2d 1069, 1076 (2d Cir. 1977).
. In United States v. Durcan, supra note 11, the Ninth Circuit dealt with a legally similar case in which the accused was charged with smuggling and with causing entry of goods into the United States by means of a false statement. The trial court allowed the prosecution to introduce evidence that the items in question had been stolen in Canada, although the accused offered to stipulate that he had “acquired” them in that country. On appeal the court reversed, 539 F.2d at 30, and in a later opinion explained its rationale in language directly showing its applicability to this case: “All the prosecution had to prove in Durcan was where the goods were acquired, no[t] how.” United States v. Kalama, 549 F.2d 594, 596 (9th Cir. 1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1147, 51 L.Ed.2d 564 (1977).
. Maj. Op., 192 U.S.App.D.C. at -, 591 F.2d at 877. The court has developed a theory under which the evidence of the automobile theft would be relevant to proving that Day helped steal the shotguns, which itself would be probative of his possession of the weapons. Id. 192 U.S.App.D.C. at -, 591 F.2d at 874. Even if the fact that the shotguns possessed had been stolen was probative of anything, the Government had two eyewitnesses from the Irving’s robbery who identified Day at the first trial, and thus there is no need in that regard for trying to tie Day to the Irving’s robbery through the automobiles.
. See Fed.R.Evid. 401 — 402; United States v. Morgan, 189 U.S.App.D.C. 155, 158, 581 F.2d 933, 936 (1977), (“[t]he district court has wide discretion to admit or exclude evidence where the question is one of relevancy or materiality”).
. Fed.R.Evid. 403 assumes that evidence analyzed under it has already been determined relevant.
. See text supra at note 14.
. See Maj. Op., 192 U.S.App.D.C. at -, 591 F.2d at 877-879.
. United States v. Robinson, 560 F.2d 507, 514-515 (2d Cir. en banc 1977); United States v. Myers, 550 F.2d 1036, 1045 (5th Cir. 1977); United States v. Czarnecki, 552 F.2d 698, 702 (6th Cir.), cert. denied, 431 U.S. 939, 97 S.Ct. 2652, 53 L.Ed.2d 257 (1977); United States v. Harris, 542 F.2d 1283, 1317 (7th Cir. 1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977); United States v. Parker, 549 F.2d 1217, 1222 (9th Cir.), cert. denied, 430 *893U.S. 971, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977); United States v. Nolan, 551 F.2d 266, 271 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977). In a pretrial appeal such as this, a District Judge’s generally superior ability “to evaluate the impact of the evidence, since he sees the witnesses, defendant, jurors, and counsel, and their mannerisms and reactions,” United States v. Robinson, supra, 560 F.2d at 514, may not be implicated because the record before him is as cold as when it reaches us. Nonetheless, the District Judge was still more familiar with the entire context of the case than we are likely to be. In any event, because our criminal justice system is based on the philosophy that malfunctions ordinarily should harm the interests of the state and not the individual, see Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L.J. 1299, 1306 (1977); cf. Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 1341-1342, 2 L.Ed.2d 1460, 1472-1473 (1958), the judge’s discretion in admitting other crimes evidence may well be narrower than in excluding it.
. See Maj. Op., 192 U.S.App.D.C. at-, 591 F.2d at 877-878.
. United States v. James, supra note 4, 181 U.S.App.D.C. at 63, 555 F.2d at 1000, quoting United States v. Phillips, 401 F.2d 301, 305 (7th Cir. 1968) (emphasis supplied).
. Maj. Op., 192 U.S.App.D.C. at -, 591 F.2d at 877-878.
. United States v. Brown, 160 U.S.App.D.C. 190, 490 F.2d 758 (1973).
. The Government relies primarily on United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977), in which the Ninth Circuit approved the admission of testimony — hearsay testimony — that a kidnap victim had said just before his disappearance that he was going to meet one of the defendants at a certain spot. The question whether a declarant’s statement of his own intentions can be used to establish inferentially another’s intentions is not the issue involved in this case, and even by analogy Pheaster is no help to the Government. The trial in Pheaster occurred prior to the effective date of the Federal Rules of Evidence, and the court indicated that under those rules state-of-mind hearsay evidence may not be used to establish the happening of past events. Id. at 380; see H.R.Rep.No.650, 93d Cong., 1st Sess. 13-15, U.S.Code Cong. & Admin.News 1974, p. 7051; Advisory Committee’s Note to Fed.R. Evid. 803(3). The court also noted that the decision it reached was not compatible with the opinion in Brown. See 544 F.2d at 380 n.18.
. See Maj. Op., 192 U.S.App.D.C. at -----, 591 F.2d at 883-886.
. Id. 192 U.S.App.D.C. at -, 591 F.2d at 885. It seems clear from the court’s opinion that it would be highly improper for the Government to attempt to argue to the jury that it should draw any prohibited inference from this “neutral” evidence.
. Id. 192 U.S.App.D.C. at----, 591 F.2d at 883.
. Id. 192 U.S.App.D.C. at-----, 591 F.2d at 881-883.
. Id. 192 U.S.App.D.C. at----, 591 F.2d at 887.
. Id. 192 U.S.App.D.C. at ---, 591 F.2d at 883 (emphasis in original).
. Id. 192 U.S.App.D.C. at --, 591 F.2d at 881. The court suggests that the Government’s access to direct evidence of the fact that Williams associated with Day and Sheffey “does not provide a reason to exclude the testimony [the slip and testimony concerning its delivery and Mason’s call to the police] that we hold to be properly admissible.” Id. 192 U.S.App.D.C. at -, 591 F.2d at 886. As one distinguished work on this subject has put it, however, “where the danger of the jury’s misuse of the evidence for the incompetent purpose is great, and its value for the legitimate purpose is slight or the point for which it is competent can readily be proved by other evidence, the judge’s power to exclude the evidence altogether [should] be recognized.” McCormick, Evidence 136 (2d ed. 1972) (emphasis supplied).
. Like the court, id. 192 U.S.App.D.C. at -, 591 F.2d at 883. I have no occasion to comment upon the proper course should Day or Sheffey eventually raise issues of self-de-" fense or mistake.
. Id. 192 U.S.App.D.C. at ----, 591 F.2d at 881-882.
. See Fed.R.Evid. 801(a) and the Advisory Committee’s Note thereto; 4 J. Weinstein & M. Berger, Evidence fi 803(3)[5], at 803-118 (1977).
. In Brown, supra note 34, there was only one level of inference to deal with because the victim had expressly stated that he was afraid of the accused. We were concerned, however, that the jury might infer that Brown “had done things in the past to [the victim] to justify this fear, or that Brown had explicitly threatened [the victim’s] life in the past.” 160 U.S.App.D.C. at 200, 490 F.2d at 778. Here we have two levels of inference. From Williams’ strange conduct the jury may conclude that he dreaded Day, and then it may draw the Brown inference that Day had done something to warrant Williams’ apprehension. The first inference is so strongly compelled by the evidence the court rules admissible that this situation cannot possibly be distinguished from that in Brown on the basis of the purposes of the hearsay rule.
. See 4 J. Weinstein & M. Berger, Evidence H 801(a)[01], at 801-50 (1977), citing United States v. Barash, 365 F.2d 395 (2d Cir. 1966), after remand, 412 F.2d 26 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969) (opponent of introduction need not establish that conduct was intended as assertion if proponent is using it for that purpose or if the conduct on its face is equivalent to a statement).
. See Maj. Op. at note 46, quoting 4 J. Weinstein & M. Berger, Evidence fl 801(c)[01], at 801-63 (1977) (inquiry should focus “ ‘on the hearsay dangers posed’ ”); McCormick, Evidence § 250, at 599 (2d ed. 1972). Conduct may often be less dangerous than statements because it frequently entails the declarant’s reliance upon the veracity of the assertion implied, and thus removes the declarant’s possible lack of sincerity. No such reliance is to be found where, as here, the conduct is consciously assertive in nature. Williams’ actions here, even if not consciously intended as an assertion themselves, were merely necessary accompaniment to the oral statement excluded by the court, and thus cannot possibly be any more reliable.
. See United States v. Brown, supra note 34, 160 U.S.App.D.C. at 206, 490 F.2d at 774.
. See Moore v. United States, 429 U.S. 20, 22, 97 S.Ct. 29, 30, 50 L.Ed.2d 25, 28 (1976). “No liberalization of evidentiary rules can circumscribe the fundamental right to confrontation and cross-examination.” United States v. Rogers, 549 F.2d 490, 499 n.11 (8th Cir. 1976), cert. denied, 431 U.S. 918, 97 S.Ct. 2182, 53 L.Ed.2d 229 (1977). Because I believe admission of this evidence is improper under the Federal Rules of Evidence, I have no need to reach the constitutional issue.