concurring in part and dissenting in part:
I concur in the remand for resentencing, but dissent from the affirmance of admissibility of the prior attempted rape incident.
I
While I agree we must remand for resen-tencing because the district court erroneously concluded that the two counts of aggravated sexual abuse should not be grouped together, I write separately because I cannot subscribe to my colleagues’ reasoning.
Whether the two counts of aggravated sexual abuse should be grouped together under section 3D1.2(b) of the Sentencing Guidelines is a difficult question to resolve. The Guidelines recognize that “even if counts involve a single victim, the decision as to whether to group them together may not always be clear cut.” U.S.S.G. § 3D1.2 at commentary (background). We are advised that “[i]n interpreting this Part and resolving ambiguities, the court should look to the underlying policy of this Part.” Id. That policy is that “[a]ll counts involving substantially the same harm shall be grouped together into a single Group.” U.S.S.G. § 3D1.2.
I recognize that there is a certain artificiality inherent in a judicial inquiry into whether two counts of aggravated sexual abuse form the same harm to the victim, but just such an inquiry is demanded by the Guidelines. The inquiry must begin, as always, with the explicit language of the Guidelines. Section 3D1.2(b) states that “[cjounts involve substantially the same harm within the meaning of this rule ... when [they] involve the same victim and two or more acts or transactions connected by a common criminal objective_” Id. Accordingly, the proper inquiry is whether the two counts of aggravated sexual abuse were connected by a common criminal objective.
Remarkably, the Guidelines clearly envision circumstances under which two or more rapes will be grouped together for sentencing purposes. To illustrate, the examples provided in the commentary to section 3D1.2 state that two counts of assault on a federal officer for shooting at the same officer twice while attempting to prevent apprehension as part of a single criminal episode are to be grouped. Id. at commentary (note 3, example 4). In contrast, two counts of rape for raping the same person on different days are not to be grouped together. Id. (note 4, example 5). There must be circumstances, therefore, in which two counts of rape for raping the same person are to be grouped together.
The commentary to section 3D1.2 suggests that it is useful to ask how contemporaneous were two assaults in order to determine whether there was one composite harm. Placing too great an emphasis on elapsed time, however, obscures the proper inquiry under section 3D1.2(b). That inquiry is whether the counts are “part of a single course of criminal conduct with a single criminal objective and represent essentially one composite harm.” Id. (note 4). If so, the counts must be grouped.
In this case, Sneezer abducted the victim, drove to an isolated area, and parked. After unsuccessfully attempting rape inside the car he forced the victim outside, ordered her to lie on the ground, and began having sexual intercourse. After she complained about being cold and about the rocky surface, he gave her his shirt. He then had the victim lie on the hood of the car where he continued to have sexual intercourse with her. The victim again complained about being cold and the defendant told her to get into the car. As they were getting into the car, she escaped. Under these facts, I conclude that the two counts of aggravated sexual abuse form part of a single course of conduct with a common criminal objective — rape — and represent essentially the same harm.1
*927II
The majority holds that evidence of a rape three years prior to this incident was admissible under Rule 404(b). I fail to see any other purpose for the introduction of the five-year-old attempted rape charge than to demonstrate that the defendant acted in conformity with that prior bad act on this occasion. Therefore, I respectfully dissent.
I agree that Rule 404(b) is inclusionary. That is, evidence of prior crimes is not excluded unless its sole purpose is to “prove the character of a person to show action in conformity therewith.” Fed.R.Evid. 404(b); accord United States v. Diggs, 649 F.2d 731, 737 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). Under the law of this circuit, however, evidence of a prior bad act can only be introduced to prove a material issue, or essential element, of the crime. United States v. Ross, 886 F.2d 264, 267 (9th Cir.1989); United States v. Houser, 929 F.2d 1369, 1373 (9th Cir.1990).
The majority has failed to identify convincingly what material elements of the crime this evidence goes to prove. The trial court expressly held that knowledge and identity were not issues in dispute. The majority contends that the fact that Sneezer had previously been arrested and charged with attempted rape shows “motive, intent and the fact of a plan.” Opinion at 924. Those words, however, are not talismanic, the mere utterance of which enables the prosecution to introduce evidence of a prior crime. I am forced to conclude that the sole purpose for the introduction of this evidence was to show conformity with a prior bad act.
Intent was not a disputed issue in this case. Neither crime charged is a specific intent crime. In fact, the trial court refused to instruct the jury on voluntary intoxication because it held that kidnapping under 18 U.S.C. § 1201(a)(2) is a general intent crime, a conclusion this court affirms. In light of that, the majority cannot now validly hold that the defense made intent a material issue in this case. The evidence cannot be admissible to show intent. Cf. United States v. Hadley, 918 F.2d 848, 851 (9th Cir.1990) (evidence of prior sexual abuse relevant to material element because government had to demonstrate specific intent); United States v. Bradshaw, 690 F.2d 704, 709 (9th Cir.1982), cert. denied, 463 U.S. 1210, 103 S.Ct. 3543, 77 L.Ed.2d 1392 (1983) (in kidnapping case, evidence of prior sexual relations and drug use relevant to issue of consent, “the defendant’s chief defense at trial”).
Moreover, if admissible to prove intent, the prior crime must necessarily be similar to the charged offense. Ross, 886 F.2d at 267. The majority asserts that the prior incident was “nearly identical” to this incident. Opinion at 924. I am troubled by the vagueness of the characteristics listed in support of that assertion. For example, that Sneezer, “took off his clothes and hers, [and] laid on [each woman]” is hardly persuasive of such similarity as to be admissible here.
The lack of distinct similarities between the two incidents also undercuts the notion that they show a plan. True, the earlier incident also took place on the Navajo Reservation and involved abduction and transport by car to a remote area. But, no common scheme united these two crimes nor was there evidence they were part of an ongoing conspiracy. See United States v. Powell, 587 F.2d 443, 448 (9th Cir.1978). The earlier attempted rape charge was not connected in any way with the crimes charged here and, therefore, cannot be admitted under the “plan” exception to Rule 404(b).
*928“Motive” provides no better basis for introducing this evidence. Specific motive is not an element of either of the offenses charged. I do not see, and the majority has not explained, how motive is relevant to a disputed material issue in this particular ease. See United States v. Brown, 880 F.2d 1012, 1014 (9th Cir.1989). Evidence of motive is therefore inadmissible. Moreover, at least in relation to the aggravated sexual abuse charges, I do not see how evidence of an attempted rape five years before the trial would tell us anything about Sneezer’s motive in this case.
Because I am persuaded that it was an abuse of discretion to admit the evidence, I conclude that Sneezer’s convictions must be reversed unless its introduction was harmless error. Id. at 1016. The very purpose of Rule 404 is to exclude the inference that because the defendant had attempted rape before he is guilty of rape now. This particular type of bad character evidence is so prejudicial, and so likely to infect the jury, that I cannot conclude that its admission was harmless.
. The majority offers a reductio ad absurdum by urging that multiple rapes over several days might be grouped if the defendant had a uniform objective and plan to "abuse" his victim. The commentary itself lays such concern to rest. The problem is that "elapsed time” between events is not dispositive and such a test is useless to apply. Moreover, in a case like this, not *927only is the timing inquiry "repulsive and dispiriting,” but it asks the court to draw lines where there is no principled basis upon which to do so. My colleagues group these rapes because they were separated by only "a few minutes.” Where in the Guidelines or commentary can we find whether a few more minutes should matter? Is a fifteen minute separation between counts sufficient not to group them? An hour? Two hours separated by lunch? I suggest that the better view is that timing is merely one factor which helps us determine whether the counts involved substantially the same harm.