concurring in part and dissenting in part:
I concur in Part II of the majority opinion relating to the issue of outrageous and egregious conduct, but I must respectfully dissent from Part III which holds that the trial court erred in admitting evidence of prior crimes and/or bad acts committed by Biswell pursuant to Fed.R.Evid. 404(b), 28 U.S.C.A. Thus, I would affirm the judgment.
I agree with the majority that the government’s justification for admission of the challenged testimony is without merit. Even so, the fact is that the trial judge did not accept the government’s justification and, instead, admitted the evidence on an entirely different ground, i.e., rule 404(b). *1320Thus the sole and exclusive inquiry on appeal should be whether the trial court erred, and not whether the government’s contentions on appeal are “untenable”. The trial court at no time indicated or ruled that the evidence was admissible under rule 404(a). Defense counsel was fully aware of the court’s basis.
The thrust of the government’s arguments below, and on appeal, is that Biswell invited testimony concerning his character when he questioned Officer Lara about the decision to target him. The government contends that by this questioning Biswell was “suggesting that something was irregular and unfair about Biswell’s being approached, while at the same time barring the prosecutors from responding to the suggestion with proof.” Appellee brief at 8-9. This proof, the government suggests, was evidence of Biswell’s prior misconduct.
I agree with the majority that a few questions by Biswell trying to elicit the name of the person or persons who suggested him as a target did not “open the door” to evidence of his character. During his questioning of Lara, Biswell did not inquire about the method used to select people; he merely elicited the names of Sergeants Bogle and Scott as the persons who had suggested him as a target. Thus, Biswell did not thereby place his character in evidence. See Fed.R.Evid. 404(a)(1).
As I have previously observed, it is highly significant that the trial court did not admit the challenged evidence on the basis that Biswell had “opened the door” regarding his character. See R., Vol. I p. 56. Before any of the officers testified as to prior bad acts by Biswell, Biswell’s counsel objected to that testimony on grounds of prejudice and he specifically alerted the court to rule 404(b). R., Vol. II p. 155.
This court has often held that evidence of other crimes, wrongs, or acts, while not admissible to show the criminal disposition of the defendant, is admissible under rule 404(b) for other purposes, such as proof of intent, motive, opportunity, plan, identity, knowledge, or absence of mistake or accident. United States v. Jacobson, 578 F.2d 863 (10th Cir.), cert. denied, 439 U.S. 932, 99 S.Ct. 324, 58 L.Ed.2d 327 (1978); United States v. Gano, 560 F.2d 990 (10th Cir.1977); United States v. Nolan, 551 F.2d 266, 270, 271 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191. (1977), and cases cited therein. Indeed, in Nolan we noted the breadth of rule 404(b) and stated, “[i]t would allow the admission of' uncharged illegal acts unless the only purpose for their admission is to prove the criminal disposition of the defendant.” 551 F.2d at 271. Accord, United States v. Tisdale, 647 F.2d 91 (10th Cir.1981), cert. denied, 454 U.S. 817, 102 S.Ct. 95, 70 L.Ed.2d 86 (1981).
Biswell’s defense to Count I of the indictment was that no food stamps changed hands; Biswell’s witnesses testified that Agent Barrett left them on the counter after he (Biswell) said he didn’t want them. R., Vol. II pp. 221, 223; R., Vol. Ill pp. 249-50, 318, 320, 330. In other words, Bis-well’s defense claim was one of innocent involvement in the transaction. Under these circumstances, evidence of Biswell’s prior misconduct was admissible under rule 404(b). Biswéll was charged with unauthorized possession of food stamps, to wit: accepting stolen food stamps as part of the purchase price of an automobile. Evidence that Biswell had previously been involved in receipt of stolen property and related activities is sufficiently probative evidence of his knowledge, or absence of mistake or accident, with respect to his unauthorized receipt of food stamps. See United States v. Tisdale, supra; United States v. Merryman, 630 F.2d 780 (10th Cir.1980).
The admission of 404(b) evidence “is a matter within the trial court’s discretion and requires a balancing of the probative value against the prejudicial effect.” United States v. Bridwell, 583 F.2d 1135, 1140 (10th Cir.1978); see United States v. Lucero, 601 F.2d 1147 (10th Cir.1979), and United States v. Nolan, supra. “In the exercise of this discretion, the court must determine *1321whether the probative value of evidence is substantially outweighed by the danger of prejudice. Rule 403, Fed.R.Evid.” United States v. Smith, 629 F.2d 650 (10th Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 532, 66 L.Ed.2d 291 (1980); see United States v. Parker, 604 F.2d 1327 (10th Cir.1979). In United States v. Carleo, 576 F.2d 846, 849-50 (10th Cir.), cert. denied, 439 U.S. 850, 99 S.Ct. 153, 58 L.Ed.2d 152 (1978), we stated:
We recognize, however, that even relevant evidence should be excluded under Rule 403 “if its probative value is substantially outweighed by the danger of unfair prejudice.” While trial courts have discretion in striking the balance between probative value and unfair prejudice, 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), and cases cited, they must be particularly sensitive to the potential prejudice that is always inherent in evidence of an accused’s prior uncharged crimes or wrongs. See United States v. Burkhart, 458 F.2d 201 (10th Cir.1972) (en banc). Although Rule 403 provides broad umbrella protection from unfair or undue prejudice, the specific provision in Rule 404(a) prohibiting evidence of uncharged crimes to show bad character or tendencies toward criminality not only reflects the special danger of other crimes evidence but should alert trial courts to be particularly careful in admitting such evidence. See id. at 204 and n. 3.
We are convinced that the trial court here acted with the sensitivity and caution that considerations of other crimes evidence require. The court called a recess in order carefully to consider the nature and purpose of the proffered evidence outside the presence of the jury before it was introduced. Moreover the jury was instructed immediately prior to the introduction of the testimony that it was “being received for the very limited purpose of shedding what light it may, if any, on the motive and intent of the defendant in the [jury’s] consideration of the charges made against him in this case.” Record, vol. 3, at 41. The court also cautioned the prosecution not to go into the details of Dickinson’s beating, and the government did not attempt to go beyond the scope of inquiry delineated by the court.
We commend the trial court for the manner in which he handled the offer of proof and introduction of this evidence. We hold the court did not abuse his discretion in determining that the probative value of the evidence was not “substantially outweighed by the danger of unfair prejudice.” His determination is supported by the explicit provisions of Rule 404(b) which, inter alia, allow evidence of other crimes, wrongs, or acts as proof of motive or intent. See United States v. Nolan, 551 F.2d at 270, and cases cited.
In the instant case, I am satisfied that the trial court did not abuse its discretion in receiving testimony under rule 404(b). Although the trial court did not call a recess, as in Carleo, supra, to consider the evidence before ruling on its admissibility, still the court entertained full arguments relative to admissibility before the bench and out of the hearing of the jury. R., Vol. II pp. 51-52, 155-56, 188-91. This was, in effect, the equivalent of the Carleo procedure. The trial court did not admonish the jury as to the evidence’s limited purpose at the time it was received; however, Biswell did not request a cautionary instruction. See United States v. Tisdale, supra. The trial court did give full cautionary instructions at the close of the trial. See infra.
The trial court did not make an express finding under rule 403 that the probative value of the evidence outweighed its prejudicial effect; however, such was implicit in the court’s ruling. Defense counsel made express objection on grounds of prejudice, R., Vol. II p. 151, supplemented by further objection specifically anchored to rule 404(b), both before the evidence was admitted. These timely objections were coupled with a continuing objection to the receipt of *1322such testimony, R., Vol. II p. 155, and defense counsel continued to object on grounds of prejudice to receipt of such testimony. R., Vol. II pp. 188-89. On such a record, I would hold that it is implicit that the trial court made the requisite finding by admitting the testimony in evidence. “It is apparent that under rules 404 and 403 the trial judge had to balance the danger of prejudice against the probative value of the testimony.” United States v. Tisdale, supra at 92. No prejudice to the defendant has been demonstrated from the trial court’s failure to make an express finding.
Biswell emphasizes that the conviction for receiving stolen property was nine years old. R., Vol. II p. 190; Appellant’s reply brief at 3. However, a trial judge has discretion to strike the balance between probative value and prejudice when ruling on the admissibility of 404(b) evidence. United States v. Hunter, 672 F.2d 815 (10th Cir.1982); United States v. Lucero, supra; United States v. Bridwell, supra; United States v. Nolan, supra. The trial court submitted full and complete instructions limiting the use of the challenged testimony at the conclusion of the trial:
Testimony has been presented of other acts, wrongs or crimes committed by the defendant at earlier times. This testimony was not offered to show that the defendant committed the offense with which he is charged here and you cannot consider it at all for that purpose. You can consider it only for the purpose of showing the defendant’s motives, intent, knowledge or absence of mistake or accident in this case. You can reject it entirely and not consider it at all if you see fit.
R., Vol. I p. 56. See also United States v. Tisdale, supra. Of course, in a practical sense, receipt of 404(b) evidence would be prejudicial to Biswell in the sense that it is adverse and certainly does indicate that he was not pure, innocent and naive. Here, however, the probative value substantially outweighed any possible prejudice. I would hold that no unfair prejudice accrued to Biswell due to the receipt of the 404(b) testimony.
I deem it significant that the jury acquitted Biswell of the second count of the indictment. This indicates that the jury carefully followed the instructions regarding the 404(b) testimony, and weighted the scale of credibility in favor of Biswell on the charge contained in Count II. Credibility of witnesses is a province exclusively for jury determination, and we will not weigh the credibility of witnesses on appeal. See United States v. Behrens, 689 F.2d 154 (10th Cir.1982); United States v. Watson, 594 F.2d 1330 (10th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979); United States v. Nolan, supra.
I would hold that the trial court did not abuse its discretion in allowing the testimony of prior convictions and bad acts in evidence, and would affirm.