dissenting:
Because I cannot subscribe to the majority’s misapplication of the Rules of Evidence, I dissent. I would hold that the nebulous nature of the testimony concerning the prior drug transactions and the tenuous link that the evidence in question bore to the crime for which Moore and Bright were charged, combine to make it error to have admitted the evidence. This result is required by the Federal Rules of Evidence. Indeed, to me this is the classic case of the inadmissibility of prior “bad acts” testimony.
As an initial matter I am impelled to lodge my discomfort with the tenor of the majority opinion. The majority opinion goes to great lengths to convince the reader of the defendants’ guilt, placing emphasis on the defendants’ familiarity with the lexicon of narcotics and on the circu, es of the alleged, aborted sale. The n. ty even tries to assign sinister significance to a kitchen scale. Majority Opinion at 991 n. 52. It is difficult for me to understand the import and relevance that this orientation to microscopic details has to an analysis of whether the “bad acts” evidence is admissible. The only logical conclusion I thus can draw is that the majority would like to adopt a new doctrine of evidence: when defendants are “guilty of something” and are generally nefarious characters, any evidence tending to show their guilt is admissible. The majority may not accept the parentage for such a dogma, but the rhetoric leads to such a result ineluctably.
I. Factual Background
Less than a week before defendants were arrested, one Robin Smith contacted police, told them that defendant Moore was selling drugs, and offered to arrange a meeting between the police and Moore. Smith, who had been living with Moore for several weeks prior to the police tip, recently moved out of Moore’s house after a domestic argument. Smith’s only prior experience as an informant for the police occurred a few days earlier, when she volunteered to arrange another drug-related “set-up” unrelated to the instant case or to the defendants here.
The day after Smith called the police concerning Moore, the police authorized Smith to arrange a drug deal between Moore and an undercover police officer. That officer was to buy four ounces of cocaine and thirty pounds of marijuana from Moore. Over the next three days, Smith and Moore discussed sales price, quality of the drugs, and the date of the sale. On the fourth day, Smith telephoned Moore from police headquarters to finalize arrangements for the scheduled sale. The sale was to occur that evening in Smith’s motel room. During these recorded tele*993phone calls, Moore agreed to sell the requested amount of cocaine and marijuana to Smith's friend for $19,000.
As planned, Smith, Moore, and an undercover police officer met at the motel later that evening. Moore was accompanied by the co-defendant Perseval Bright. After a brief discussion of the sales price, Bright asked to see the money. Upon inspection, Bright alerted Moore to the abnormally “dusty” appearance of the money. Moore and Bright then announced that the deal was off and left together. The entire conversation in Smith’s room was monitored and recorded by the police through listening devices situated in an adjoining room.
Moore and Bright were apprehended in Bright’s truck 500 feet from the motel and arrested. The police recovered a small envelope containing marijuana from Bright’s pants pocket, and a plastic bag containing a small quantity of marijuana, a small piece of hashish, and a gun from the truck.
The following day, warrants to search Moore’s home and Bright’s residence were issued and executed. During the search of Moore’s home, police confiscated a full brick of marijuana (approximately 2 lbs.), a partial brick, several bags of marijuana, and a scale. Nothing was recovered during a partial search of Bright’s home. In fact, no cocaine or money was discovered during the entire course of this investigation.
At the trial’s opening, prior to jury selection, the prosecution announced its intention to introduce evidence of Moore’s and Bright’s alleged prior drug dealing, through testimony by Smith, to provide the “setting” for the crime, as proof of defendants’ intent to conspire to distribute narcotics, and to rebut any defense of entrapment. Defendants objected to the admission of this evidence and requested a ruling on the necessity of the evidence to the prosecution’s case. The judge ruled that the evidence, which consisted solely of Robin Smith’s earlier observations of alleged drug transactions involving Moore and/or Bright, was admissible.
Smith then testified, over defense objections, to earlier drug transactions that she allegedly had witnessed. This testimony was interspersed with her testimony concerning incidents directly related to the indictment. At no time during the course of the trial, either as the evidence was admitted or at the trial’s end, was the jury instructed as to the limited purpose for which the prior bad acts testimony was being admitted.
II. Discussion
Under the Federal Rules of Evidence, two rules provide the framework within which the admissibility of prior bad acts testimony must be considered. Such testimony must first satisfy Rule 404(b), which addresses the limited set of purposes for which prior bad acts testimony is deemed relevant. Even if relevant, however, evidence that a defendant has committed prior bad acts is likely to be prejudicial, for juries may be tempted to use evidence of previous transgressions as the basis for convicting a defendant of the crime for which he is charged. United States v. Shelton, 628 F.2d 54, 56 (D.C.Cir.1980). As a result, relevant prior bad acts testimony must also cross the hurdle of Rule 403, which requires the trial judge to exclude evidence
if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury____
Fed.R.Evid. 403. These rules must be applied in tandem to determine whether evidence that defendants have committed pri- or bad acts is admissible in a criminal case. Rule 404(b), the starting point for the analysis, 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.
*994Fed.R.Evid. 404(b). Satisfaction of the “other purposes” clause of 404(b) requires more than the prosecutor’s assertion that the evidence of defendant’s prior bad acts is offered under one of the excepted categories. United States v. Ring, 513 F.2d 1001, 1004 (6th Cir.1975). To fit within a category, the prosecutor initially must demonstrate that the limited purpose for which the evidence is offered is a material fact in dispute and that the evidence is relevant to establish the existence of this fact. To be relevant, evidence must have the tendency to make “the existence of [the fact] ... more probable or less probable than it would be without the evidence.” Fed.R. Evid. 401. To be deemed relevant under 404(b), evidence of prior bad acts also must be linked adequately to the crime charged. At a minimum, this requires that the prior bad acts be similar to the offense for which the defendant is charged. Moreover, when introduced to prove intent, the intent to commit both the prior bad acts and the offense charged must be substantially similar. See, e.g., United States v. DeLoach, 654 F.2d 763, 769 (D.C.Cir.1980), cert. denied, 450 U.S. 1004, 101 S.Ct. 1717, 68 L.Ed.2d 209 (1981); United States v. Foskey, 636 F.2d 517, 524 (D.C.Cir.1980). Equally important, the evidence that connects the defendant to the alleged prior bad acts must be stronger than mere speculation. United States v. Shelton, 628 F.2d 54, 57 (D.C.Cir.1980).
At the pretrial motion, the prosecutor sought to meet the burden of 404(a) by indicating that the prior acts evidence would be introduced to establish, inter alia, the defendants’ intent to commit the crime. Intent was an issue needing proof, and the testimony of Smith, however tangential, could have some relevance to defendants’ intent to commit the crime under the indictment.
Even if the evidence is found admissible under 404(b), the trial court still must apply the balancing test set forth in Rule 403. This Rule requires the trial court to balance the “probative value of and need for the evidence against the harm likely to result from its admission.” Fed.R.Evid. 403 Advisory Committee Note. By definition, this balancing is fact specific and will vary from case to case. Moreover, because the Rule 403 balancing is a matter within the discretion of the trial court, an appellate court will overturn the trial court’s balancing only where discretion has been abused. Miller v. Poretsky, 595 F.2d 780, 783 (D.C.Cir.1978); United States v. Day, 591 F.2d 861, 878-79 (D.C.Cir.1978).
Assuming that the evidence presented in this case survives the Rule 404(b) inquiry, I believe that it was an abuse of discretion to admit the prior bad acts evidence because the prejudice associated with the testimony so clearly outweighs any probative value it might have had. The initial focus is that part of the balance that addresses the probativeness of the proffered evidence. The record here revealed testimony that was noteworthy only for its vagueness and countless incidents of selective recall. Smith’s testimony concerning Moore’s and Bright’s prior “drug transactions” was very unspecific and contained so many gaps that the degree to which it was probative of any element in the indictable offense borders on the insignificant.
Not once did Smith recall the name of any person involved in the alleged drug transactions, the dates of the transactions, or even the number of transactions that she had observed. Indeed, her testimony is unclear about what actually transpired during these “drug transactions,” including the specific involvement, if any, of appellants Moore and Bright. See, e.g., Transcript at 188. Moreover, she frequently could not remember the amount of money exchanged or the type and quantity of drugs sold. For example, Smith recalls that Bright visited Moore early in the morning to show him what she described as cocaine; yet, on cross examination she admitted that the substance was not cocaine. Compare, e.g., id. at 191 with id. at 354-, At best, the only marginally probative sections of her testimony concerned a visit to Moore’s house by two men for the purpose of buying marijuana and one occasion when she allegedly brought an unidentified man *995to Moore’s house for the putative purpose of buying drugs. But her knowledge of those incidents stops there. The overwhelming import of her testimony was that she was a sideline observer of some activity that may have involved Moore or Bright in unlawful conduct. Testimony characterized by such significant gaps and inconsistencies is of minimal probative value.
The lack of specificity of the testimony admitted here can be strikingly contrasted with the prior bad acts evidence held admissible in United States v. Harrison, 679 F.2d 942, 948 (D.C.Cir.1982), a recent visitation by this court to this area of the law and a case upon which the majority relies. There the witness, who was the wife of the defendant, had observed a continuous course of drug dealing for eighteen months. She testified to all aspects of prior drug deals — the telephone calls concerning drug sales, the weighing of the marijuana, the distribution of marijuana to people who came to their house, and the handling of large amounts of money. Significantly, the witness had participated actively in the drug deals by helping her husband package the marijuana and, once, by counting over $2000 for him. The specificity of her testimony was corroborated by periodic telephone calls over a six month period to police in which she detailed her husband’s drug sales. She was also able to direct police to seventeen packages of marijuana in her basement and to a ledger listing names with numbers along side.
In comparison to the detail and depth of Mrs. Harrison’s testimony, that of Ms. Smith in the instant case is evanescent. Smith’s knowledge of Moore’s and Bright’s alleged bad acts, as revealed by her testimony, did not remotely approach Mrs. Harrison’s long-term observations of a continuous course of drug dealing. The majority dismisses the differences between Harrison and this case as minor. These differences, however, are substantial and directly relate to the probativeness of the bad acts testimony. Indeed, the differences serve to emphasize the fact that the legitimate probative consequences of Smith’s testimony are miniscule. Here the jury had to assimilate Smith’s contradictory, vague, and confusing statements into a coherent representation of Moore’s and Bright’s intent to possess and distribute narcotics. The high degree of vagueness in Smith’s testimony diminishes the probative value of her testimony to almost zero.
Turning to the prejudice side of the balance, the evidence and the mode of its presentation created a situation ripe for prejudice. Because Smith’s testimony consisted of only snippets from separate incidents, and contained no complete description of any single drug transaction, the jury was encouraged to bootstrap inferences upon inferences — to infer as much drug involvement as it desired from this gossamer web of evidence and then, from that, to infer that because of the prior bad acts the defendants were of bad character and thus should be convicted. A jury of laymen, unlimited as to the purpose for which such testimony could be used, could not help but treat Smith’s testimony as directly related to the conspiracy sub judice, and not just related to the question of intent.*
*996The prejudice also stems, in large part, from the manner in which the evidence was introduced. Our observation in United States v. Foskey is equally applicable here:
In reviewing the record, we take into account not only the evidence itself, but also the manner in which it was presented to the jury. The evidence we have culled from the record ... was presented in a disorganized and confusing fashion, raising serious doubts whether its import was even made clear to the jury.
636 F.2d at 524 n. 6. The witness here shifted between testimony concerning the offense charged and testimony concerning past acts. At certain points in her testimony about the crimes at trial, Smith interjected references to defendants’ alleged pri- or drug transactions. See, e.g., Transcript at 224. This movement between past acts and present acts invited the jury to consider prior act and present act testimony equally relevant, and to consider the prior bad acts testimony for more than its limited purpose. As we previously have noted: “Appropriate deference to [the interests sought to be served by the Federal Rules of Evidence] requires the prosecution to conduct its presentation of [bad acts] evidence in a manner likely to make clear to the jurors the limited purpose for which it is properly admissible.” United States v. DeLoach, 654 F.2d at 772 (Tamm, J., concurring) (emphasis added). The confused and disorganized mode of presentation increased to an unacceptable level the danger that the jury considered the alleged prior bad acts testimony beyond the limited purpose for which it could be admitted.
The context in which Smith’s testimony arose is an additional facet in our evaluation of the prejudicial impact of her bad acts testimony. A predominant feature of that context is the fact that conspiracy was the only charge upon which the jury convicted the defendants. As is the case with much complex, multi-defendant, multicount litigation, conspiracy trials may present a greater danger that the jury will misuse the prior bad acts testimony since the crime of conspiracy and the method of its proof, even without bad acts evidence, tends to be complex and a potential source of confusion for the jury. See, e.g., Marcante v. United States, 49 F.2d 156, 158 (10th Cir.1931) (noting in multi-defendant conspiracy case that “with inexperienced jurors, such complicated testimony is too apt to become but a confused jumble, and a verdict too apt to represent an impression that the defendants are guilty of something, with little reference to the crime with which they are charged”). See generally P. Marcus, Prosecution and Defense of Criminal Conspiracy Cases (1983). I find support for this observation in Justice Jackson’s statement of almost forty years ago:
The modern crime of conspiracy is so vague that it almost defies definition. Despite certain elementary and essential elements, it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid. It is always “predominantly mental in composition” because it consists primarily of a meeting of minds and an intent____ [E]ven when appropriately invoked, the looseness and pliability of the doctrine present inherent dangers which should be in the background of judicial thought wherever it is sought to extend the doctrine to meet the exigencies of a particular case.
Krulewitch v. United States, 336 U.S. 440, 446-49, 69 S.Ct. 716, 720-721, 93 L.Ed. 790 (1948) (Jackson, J., concurring) (footnotes omitted). Here, Smith’s vague and inferential bad acts testimony could not help but to aggravate the confusion, complexity, and “inherent dangers” that can be associated, even under the best of circumstances, with a conspiracy charge.
When the minimally probative weight of the prior bad acts testimony is balanced against the prejudice of its vague inferential character and the manner of its presentation, I can only conclude that the prejudice here so clearly outweighs the probativeness that the district court abused its discretion in admitting the evidence. See, e.g., United States v. Day, 591 F.2d 861, *997879 (D.C.Cir.1978). I would therefore vacate the convictions.
To reach the opposite result, the majority speculates about the impact that a jury instruction would have had if one had been given. Somehow able to discern the impact on the jury from a limiting instruction not given, the majority concludes that such an instruction would have cured the prejudice in Smith’s testimony. Majority opinion at 989-990. I disagree. The majority concedes, as it must, that a limiting instruction will not always overcome the prejudice associated with “bad acts” testimony. See Majority opinion at 990 n. 47; see also United States v. Kaplan, 510 F.2d 606, 611 (2d Cir.1974); United States v. Brown, 490 F.2d 758, 764 (D.C.Cir.1973); United States v. Bussey, 432 F.2d 1330, 1334 (D.C.Cir.1970). In Bussey, this court found that the evidence in question was of an insufficient weight to counterbalance its prejudicial impact on the jury. The court therefore held that a cautionary instruction during the general charge to the jury was inadequate to rectify the error caused by the testimony’s admission. Id. at 1334. So I would hold here. Given the hodge-podge nature of Smith’s testimony, it is inconceivable that any limiting instruction could have helped the jury separate the wheat from the chaff.
The majority’s obiter dictum about the effect of a limiting instruction and what purposes it serves when not given encourages an evasion of our central inquiry: whether the prejudice associated with the introduced “bad acts” testimony outweighs the testimony’s probativeness. The majority brushes aside this question with the speculative conclusion that a fictitious instruction would have cured the prejudice. In light of the majority’s expansive description of the curative powers of a limiting instruction — paradoxically, even when no such instruction is given — it is difficult to think of that case where the majority would conclude that a limiting instruction could not cure the prejudice. The majority thus comes close to reading Rule 403 out of existence when an instruction is given and, more disturbingly, when the defendant chooses not to seek an instruction. Rule 403 clearly was never intended to have such a limited role.
Rules 403 and 404(b) impose a difficult task on the trial court because evidentiary motions allow little time to reflect on the critical balancing of relevancy and prejudice. Yet, our system of justice relies heavily on the trial court’s ability to ensure a fair and accurate presentation to the jury of evidence of the crime charged.
The prosecution has a duty to assist the court in this effort and cannot treat Rules 403 and 404(b) as
obstacles to be cleared at all costs, even by cutting around corners whenever it is possible to do so. These rules were designed to ensure a defendant a fair and just trial based upon the evidence presented, not upon impermissible inferences of criminal predisposition or by confusion of the issues.
United States v. Foskey, 636 F.2d at 525. As was made clear in Foskey and Shelton, the prosecution, in deciding whether to offer prior bad acts evidence, must make its own first cut to screen out such bad acts testimony as cannot pass the balancing test. Unlike a civil trial, where counsel for both sides can fairly safely offer the judge any evidence he will accept, a criminal trial imposes the need for self-restraint on the prosecutor; he or she may not look for ways to lessen the primacy of the principle that a defendant is to be convicted for the activity described in the indictment, rather than character and prior conduct. Here, the prosecution used no such restraint.
III. Conclusion
For the reasons above, I would vacate the convictions and remand for a new trial on the conspiracy charges. I therefore must respectfully but vigorously
dissent.
The majority claims that part of my analysis of the prejudice inherent in Smith’s testimony involves an evaluation of witness credibility. Majority opinion at 989 n. 45. The criticism is made from whole cloth. The majority confuses an observation that testimony is vague with an attack on a witness’ veracity. These are two very distinct concepts. Vagueness goes to the lack of specificity in the witness’ testimony; veracity goes to the lack of honesty in the witness’ testimony.
In pursuing this misdirected attack, however, the majority has exposed its flank and has revealed the inconsistencies in its analysis. The majority concedes that in applying Rule 403, we must ask "whether the testimony, accepted as true, sufficiently advances the inquiry to offset any unfair prejudice.” Id. But by merging questions of vagueness and veracity, the majority sidesteps any real consideration of the fact that Smith’s testimony was so filled with gaps that it could play only a "very attenuated role in completing a complex chain of inferences." Id. It is beyond me how the majority can state that we must ask whether the evidence advances the relevant inquiry, but that in so asking we must ignore any lack of specificity in the testimony. Under such an approach, any conclusion as to the probativeness of the evidence is sure to be meaningless.