dissenting.
I agree with the court that the evidence of appellant’s contemporaneous dealings in $28.00 television sets of dubious pedigree was clearly relevant. Appellant having obtained these suspiciously inexpensive new television sets from the same truckdriver who supplied him — at about the same time and in about the same manner — with Memorex videotapes from a stolen semitrailer, it seems to me equally clear that the introduction of the evidence was not unfairly prejudicial. “No strictly mechanical test provided by the appellate courts will help the trial judge much in sensitively drawing a fair balance,” 2 Weinstein & Berger, Weinstein’s Evidence, fl 404[10], at 404-73 (1985), but looking at the entire record in retrospect, I do not think the trial court’s determination was an abuse of discretion. If the trial court did abuse its discretion in admitting evidence of the entire course of dealings between appellant and his supplier, moreover, I believe that the error was harmless. Accordingly, I am constrained to dissent.
The supplier in question was introduced to appellant in December of 1984 as a truckdriver named Leroy Wesby. Mr. Wesby told appellant that he had 770 television sets for sale, and he asked if appellant knew anyone who might be interested in buying them. Appellant introduced the truckdriver to the owner of the “Magic Rent-To-Own” equipment rental business, Mr. Alphonse Lewis, who bought 500 of the sets and paid appellant a finder’s fee. Appellant testified that he and Mr. Lewis interviewed the truckdriver “for approximately five hours” to satisfy themselves that the goods had not been stolen; in all that time, however, they never asked him where he had acquired the property. Unlike Mr. Lewis, moreover, appellant never claimed that the truckdriver ever showed him a receipt or bill of sale for the television sets — or for the stolen Memorex tapes, or for any of the other merchandise he offered appellant from time to time. (Mr. Lewis testified that the truckdriver “did present to me a so-called bill of lading” for the television sets, but this so-called bill of lading was not introduced in evidence; Mr. Lewis claimed he was unable to find it at the time of trial.)
When the truckdriver sought appellant’s assistance in selling the stolen Memorex videotapes, appellant’s response, as described on cross-examination, fit the pattern that had been followed in the case of the television sets. Appellant asked if the tapes had been stolen, but (contrary to his testimony on direct examination) he did not inquire where they had come from, and he did not claim to have asked to see a receipt or bill of sale:
“Q. When Mr. Wesby called you and told you he had some tapes, did you ask him where he got them?
A. Not that I can remember.
Q. At that point, you weren’t concerned about the tapes being stolen?
A. At that — I did ask him if the material was stolen and we always talked about if the material is stolen.
Q. But you never asked where he got them from?
A. No.
Q. Did you ever ask to see a receipt or a bill of sale?
A. I always ask if the stuff was safe and if I could proceed in a businesslike manner in selling the materials.”
*879After Mr. Lewis had taken possession of the 500 television sets, appellant arranged for the resale of 38 of them, at $28.00 each (a sum out of which Mr. Lewis presumably-made a profit and appellant received a fee). The customer expressed an interest in buying more at that price. In order to be able to buy more television sets, as the customer testified, appellant told him that he would also have to take blank videocassette tapes, of which “they had just purchased a truckload____” The evidence thus showed not only that appellant had a common source for the television sets and the tapes, and that appellant was more interested in knowing that both products were “safe” than in knowing where they came from, but the evidence also showed that appellant tried to tie the tapes to the television sets in disposing of them. If the jury had been kept in the dark about the television sets, therefore, it could not have been given the full story on appellant’s sales efforts with respect to the tapes.
The story of how appellant sold the tapes is not uninstructive. Appellant was a construction contractor by trade, not a merchant. He had no established retail or wholesale business. When the Memorex tapes turned up, he went to the Magic Rent-To-Own store owned by his friend Mr. Lewis and prevailed upon the manager of the store, Karen Curry, to offer the tapes for sale in the store’s name. The manager was highly suspicious:
“... ‘Guy,’ I said, ‘Are they stolen?’ and he said ‘No, they’re not stolen.’ I said, ‘Are you sure they’re not stolen? Look me in the eye and tell me they’re not stolen.’
And he looked me in the eye and said, ‘Karen, the tapes aren’t hot. They’re not stolen.’ ”
The manager — who, unbeknownst to appellant, called the police about the tapes every day thereafter until a stolen property report finally surfaced — also testified that appellant told her he had got the tapes “directly from the manufacturer.” Appellant denied having said this, but offered no explanation of why the store manager (who was not a suspect) would have perjured herself.
The evidence is undisputed that the tapes were stolen, that appellant had not got them from the manufacturer, and that they were sold at a bargain price. The cost of manufacture alone came to more than $4.50 per tape, yet the evidence showed that on at least one sale from which appellant received part of the proceeds, the truckdriver-supplier, Mr. Wesby, cleared only about $2.00 per tape — less than half the cost of manufacture and about one third the usual wholesale price. Appellant may have believed the tapes were “safe,” as he testified, but the jury was entitled to be as skeptical as the store manager seems to have been about his claim that he did not know they had been stolen. That skepticism can only have been strengthened by the testimony of the FBI undercover agent to whom appellant was trying to sell refrigerators, television sets and movie tapes obtained from Mr. Wesby; although appellant denied, on the stand, that he had done so, the agent testified that appellant had told him at least some of these goods were “hot,” and this was confirmed by the transcript of a surreptitious tape recording of the conversation. Taken as a whole, the evidence strongly indicated, as the government suggested in final argument, that appellant was engaged in a “pattern of illegal activity” of which the stolen tapes and the television sets, both obtained from a common source, constituted integral parts.
The evidence relating to the television sets was no more prejudicial than that relating to any of the other merchandise supplied by the truckdriver, Mr. Wesby, and it may well have been less so, given the participation of Mr. Lewis (who is an attorney) in the “five-hour” interrogation of Mr.. Wesby about the TV sets. In any event, the trial judge’s charge to the jury minimized any risk of prejudice:
“You have heard evidence of the defendant’s possession of goods other than the tapes involved in this case.
*880The defendant is not on trial for activities pertaining to any goods other than the tapes.
This evidence is admitted only as it may bear on defendant’s intent, plan, knowledge, or absence of mistake or accident in this case.
It is not to be used by you to prove the character of the person to show that he acted in conformity with that character.”
I am by no means convinced that evidence as to the television sets would not have been admissible as part of the res gestae regardless of appellant’s state of mind, but if a showing that appellant knew the television sets were stolen was required, I cannot agree with the court that such showing had to be “clear and convincing.” The trial court charged the jury that it was the government’s burden to prove, beyond a reasonable doubt, that appellant knew the tapes were stolen, but I do not think it follows that the government had to prove, with equal certitude, that appellant knew the television sets had also been stolen. See United States v. Leonard, 524 F.2d 1076 (2d Cir.1975), cert. denied, 425 U.S. 958, 96 S.Ct. 1737, 48 L.Ed.2d 202 (1976), where the Court of Appeals for the Second Circuit held, in an opinion written by Judge Friendly, that if “the aggregate of the evidence” is sufficient to permit a finding, beyond reasonable doubt, of criminal intent as to the crime charged, a “preponderance [of the evidence] standard is sufficient” for the subsidiary facts offered to establish such intent. 524 F.2d at 1091. The contrary view set forth in cases such as United States v. Broadway, 477 F.2d 991, 995 (5th Cir.1973), said Judge Friendly, “appears to rest on a misconception.” 524 F.2d at 1090.1 This court itself has recently endorsed Judge Friendly's view, citing Leonard in support of the proposition that “[c]ourts may admit evidence of prior bad acts if the proof shows by a preponderanee of the evidence that the plaintiff did in fact commit the act.” United States v. Ebens, 800 F.2d 1422, 1432 (6th Cir.1986) (emphasis supplied).
In a carefully reasoned opinion handed down by the Court of Appeals for the Fifth Circuit, sitting en banc soon after the Federal Rules of Evidence became effective, that court also adopted Judge Friendly’s view and, overruling United States v. Broadway, All F.2d 991, supra, rejected the doctrine that evidence of similar wrong acts is admissible only if proof of their wrongness is “clear and convincing.” Noting that the Federal Rules of Evidence “place greater emphasis on admissibility of extrinsic offense evidence” than the Supreme Court, acting in its rule-making role, had done earlier, the court held that:
“The [trial] judge need not be convinced beyond a reasonable doubt that the defendant committed the extrinsic offense, nor need he require the Government to come forward with clear and convincing proof. [Footnote omitted.] The standard for the admissibility of extrinsic offense evidence is that of Rule 104(b): ‘The preliminary fact can be decided by the judge against the proponent only where the jury could not reasonably find the preliminary fact to exist.’ 21 Wright & Graham, Federal Practice and Procedure: Evidence § 5054, at 269 (1977).” United States v. Beechum, 582 F.2d 898, 910 n. 13 & 913 (5th Cir.1978).
The logic of the Fifth Circuit’s en banc decision in Beechum corresponds to that applied by Judge Learned Hand in United States v. Brand, 79 F.2d 605 (2d Cir.1935), cert. denied, 296 U.S. 655, 56 S.Ct. 381, 80 L.Ed.2d 466 (1936). In Brand, which affirmed a conviction for transporting a stolen automobile, the court flatly rejected the doctrine “that evidence of the receipt of other stolen goods is not admissible unless *881the prosecution proves that the accused knew them to have been stolen.” Id. at 606. The competence of evidence of other similar acts “does not depend upon conformity with any fixed conditions, such as upon direct proof of scienter,” Judge Hand wrote: “[t]he [trial] judge must decide each time whether the other instance or instances form a basis for sound inference as to the guilty knowledge of the accused in the transaction under inquiry; that is all that can be said about the matter.” Id. (emphasis supplied). In a passage highly pertinent to our case, where the evidence showed that the television sets, Memorex videotapes, refrigerators and movie tapes in which appellant was dealing all came from the same truckdriver-supplier, Judge Hand went on to say that “[i]f, for example, the subject of the indictment were the last of a series of purchases from the same thief, the earlier purchases would be competent, for thieves are unlikely to risk repeated transactions with innocent buyers.” Id. (emphasis supplied).
I would follow these well-reasoned decisions in preference to the contrary view adopted, initially, in some other circuits before the Federal Rules of Evidence came into existence. The contrary view seems to have been based on concerns now dealt with — adequately, in my judgment — in Rule 403 of the Federal Rules of Evidence.
Finally, if the trial court did err in this case by letting the jury know about the television sets, I am convinced that the error was harmless. It should be emphasized in this connection that appellant does not contend, and the record does not suggest, that the trial court’s allegedly erroneous evidentiary ruling presents any constitutional question. Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), dealt only with error of constitutional dimension, and it is only constitutional errors that cannot be deemed harmless unless harmless “beyond a reasonable doubt.” 3A C. Wright, Federal Practice and Procedure: Criminal 2d § 855, at 335 (1982); Connecticut v. Johnson, 460 U.S. 73, 88, n. 2, 103 S.Ct. 969, 978, n. 2, 74 L.Ed.2d 823 (1983) (Stevens, J., concurring in the judgment).
“The test announced in Chapman for determining when a constitutional error is harmless is more exacting than the test for harmlessness of errors that are not of constitutional dimension. The courts have not yet followed the lead of some commentators who argue that a single test should apply to both constitutional and non-constitutional error.” C. Wright, supra, § 855, at 335.
After a careful reading of the entire record, I am not persuaded that the facts of this case should prompt us to hold — as no other Federal Court of Appeals seems to have done — that non-constitutional error must be found harmless “beyond a reasonable doubt” before a conviction may be affirmed.
I believe one can say here, “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). Only this is required for affirmance of the conviction. Id. The conduct of the trial judge in this case was impeccable, the jury obviously bent over backward to be fair, and I see no reason for this court to require that appellant be retried.
. Quoting other Second Circuit precedent to the effect that the trial court’s determination on the prejudicial effect of "similar act" evidence “will rarely be reversed on appeal," Judge Friendly also stated that "the weighing of the probative value of the evidence against its potentially prejudicial effect is primarily for the trial judge who has a feel for the effect of the introduction of this type of evidence that an appellate court, working from a written record, simply cannot obtain." 524 F.2d at 1092.' In our circuit, similarly, ”[i]t is well settled that a trial judge’s discretion in balancing the probative value of evidence against its potential for unfair prejudice is very broad.” United States v. Dabisk, 708 F.2d 240, 243 (6th Cir.1983).