with whom Circuit Judges GINSBURG, SENTELLE, and HENDERSON join, dissenting:
Three decades ago, a unanimous Supreme Court said that although a defendant can waive his right to be confronted by the witnesses against him, “it has never been seriously suggested that he can thereby compel the Government to try the ease by stipulation.” Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965). Today our court does more than just suggest *1420the idea; the court imposes it as the law of this circuit.
The rationale sounds straightforward. Under Rule 404(b) of the Federal Rules of Evidence, the government may introduce evidence of a defendant’s other offenses to prove, among other things, his intent to commit the offense charged. But if a defendant offers to concede intent and agrees to a suitable jury instruction, the government “no longer needs to prove” intent. Maj. op. at 1411. Ergo, the government need not — and, under Rule 404(b) cannot — introduce evidence of the defendant’s other offenses.
The simplicity of this logic is an illusion, for having stated the rationale the majority quickly realizes the need to qualify it. And so the opinion announces more than a few conditions and exceptions and provisos. In the process, the Federal Rules of Evidence are rewritten; a model jury charge is invented; the complication of multi-defendant cases, common in the federal courts, is all but ignored; and trial judges are instructed to conduct some sort of limited, modified plea hearing which the majority writes into the Federal Rules of Criminal Procedure but does not bother to describe. There are many other loose ends, but as we shall see the devil is not just in the details.
I foresee the majority’s newly coined code, with all its many embellishments, creating such a mess in criminal trials that ultimately we will come to our senses and abandon it, unless higher authority or fresh legislation intervenes and does the job for us.1 I will get to the practical problems with the majority’s ruling, but I want to deal first with the theory underpinning it, a theory I consider quite flawed.
I
Let us begin by getting rid of any idea that we are dealing with stipulations. We most certainly are not. A stipulation is an agreement. No agreements were reached in the two cases before us. All we have here are defense offers to stipulate, offers the prosecution rejected in both cases. The initial question thus cannot be what consequences flow from a stipulation. It must be what effect a defense concession has on the presentation of the government’s ease. The majority gives this answer — whenever a defendant offers to concede an element of the offense, that element is “completely removed from the trial” and the government therefore cannot introduce other-offense evidence to prove it. Maj. op. at 1410-1411.
There are two things worth noticing about the majority’s proposition. The first is that it makes everything turn on what the defendant is conceding; nothing depends on the type of evidence the government has waiting in the wings. The government’s proof might be in the form of eyewitness testimony, or it might be a written confession, or it might be descriptions of the defendant’s other crimes. No matter. If the defendant concedes the element of intent, the government is barred from introducing evidence to prove it. Intent, then, becomes a non-issue, “completely removed from the trial,” a matter of no consequence in the case.
This is a revolutionary idea, and one that will have enormous repercussions in criminal trials. The logical consequence of the majority’s theory is breathtaking. The theory will bar not just Rule 404(b) evidence, but all other evidence of intent. Why? Because the other evidence of intent will be drained of its relevance. It will no longer relate — in the words of Rule 401 — to a fact of consequence at trial. The defendant’s concession will, according to the majority, have taken intent out of the case; Rule 402 will therefore demand exclusion of all evidence relating to intent.
In Crowder’s case, for instance, the government showed that he possessed a beeper when he was arrested. The presence of the beeper made it more likely that Crowder was *1421in the business of drug dealing, that he intended to distribute the drugs he possessed — the “ultimate fact” the majority says the government need not, and therefore cannot, prove on retrial. The government also presented expert testimony that the amount of drugs Crowder possessed could not have been for personal use. Again, this evidence related to Crowder’s intent to distribute. While the majority might like to limit its rule to other-offense evidence, maj. op. at 1414, the necessary and logical consequence of the majority’s theory is that neither the beeper nor the expert testimony would be relevant, intent already having been established as a result of the offer to stipulate. The same result — exclusion of prosecution evidence whenever the defense considers it strategically advantageous to offer a stipulation— will obtain in countless other cases.2
The second thing to notice about the majority’s proposition is that it thoroughly misstates the law. The Supreme Court could not be clearer on the subject: a defendant’s plea of “not guilty” puts the government to its proof on every element of the crime charged. Mathews v. United States, 485 U.S. 58, 65, 108 S.Ct. 883, 887-88, 99 L.Ed.2d 54 (1988). The defendant may choose to challenge each of those elements, to concede some and challenge others, or to sit back and do nothing. Whatever choice he makes, the government still bears the burden of proof. That is the very point of Estelle v. McGuire, 502 U.S. 62, 69, 112 S.Ct. 475, 480-81, 116 L.Ed.2d 385 (1991): the “prosecution’s burden to prove every element of the crime is not relieved by a defendant’s tactical decision not to contest an essential element of the offense.”
It necessarily follows that despite a defendant’s concession, whether in the form of an offer to stipulate or otherwise, the government’s proof of intent — including its Rule 404(b) evidence — remains relevant under Rule 401 because it tends to make a fact of consequence (intent) more likely than it would be without the evidence. The evidence therefore remains admissible despite the defendant’s concession because Rule 402 makes all relevant evidence admissible, unless some other rule excludes it. Discretion to exclude relevant evidence exists, but Rule 403 gives the discretion to the district court, not to the court of appeals. The point bears repeating — even if a defendant concedes intent, the government still must prove intent beyond a reasonable doubt.
The majority’s analysis of the Federal Rules of Evidence mentions none of this. It begins with Rule 404(b), and there it ends. The opinion describes Rule 404(b) as a “specialized rule of admissibility” for other-offense evidence. See maj. op. at 1414. It is more accurate to speak of it as a specialized rule of “relevancy,” as the framers of the rules suggested.3 The important point, lost in the majority opinion, is that this “specialized rule” specifically allows the government to introduce other-offense evidence to establish intent so long as intent remains at issue, as it surely does despite the defendant’s concession. Criminal defendants cannot block *1422the government’s evidence and dictate the prosecution’s trial strategy by conceding, admitting, refusing to contest, or — under “the weight of authority in the federal courts”— offering to stipulate to the fact the government’s evidence will tend to prove. 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5194, at 198-99 (1978).
Today’s ruling will mark the beginning of a sweeping change in the conduct of criminal trials, a change the Federal Rules of Evidence do not countenance. My colleagues in the majority do not see it that way, of course. Any right-minded prosecutor, they seem to think, ought to welcome the incentive the court is giving defendants to offer stipulations and thereby remove factual issues from the jury. The idea must be that prosecutors who nevertheless insist on using other-offense evidence must be moved by a desire to convince the jury the defendant is a bad person and, hence, guilty of the offense charged, the very thing Rule 404(b) forbids. I do not share this psychological insight about prosecutors. There is, the Supreme Court has reminded, a broad “public interest in having juries receive all probative evidence of a crime.” Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984); see United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974); Taylor v. Illinois, 484 U.S. 400, 411-12, 108 S.Ct. 646, 654, 98 L.Ed.2d 798 (1988). A prosecutor’s insistence on presenting the evidence promotes that public interest. That a prosecutor prefers live testimony and documentary evidence of intent to a cold — and, as we shall see, problematic — jury instruction on a stipulation seems to me a legitimate trial strategy, one that courts should not and cannot second guess. See, e.g., United States v. Allen, 798 F.2d 985, 1001 (7th Cir.1986) (recognizing that a “cold stipulation-can deprive [the government] of the legitimate moral force of [its] evidence, and ... can never fully substitute for tangible, physical evidence or the testimony of witnesses”); United States v. Pedroza, 750 F.2d 187, 201 (2d Cir.1984); United States v. Ellison, 793 F.2d 942, 949 (8th Cir.), cert. denied, 479 U.S. 937, 107 S.Ct. 415, 93 L.Ed.2d 366 (1986).
Underlying nearly all of the majority’s theory is the assumption that placing Rule 404(b) evidence before the jury is unduly prejudicial — prejudicial, that is, because the jury will reach its verdict on a basis other than the weight of the evidence. This is unsupportable. The majority would be correct only if juries routinely disregarded the standard cautionary instructions relating to such evidence. See Fed.R.Evid. 105. Yet there is no indication that juries do so. The majority acknowledges, maj. op. at 1415, that juries are “presumed to follow a trial court’s instructions.” United States v. Jackson, 627 F.2d 1198, 1213 (D.C.Cir.1980) (citing Shotwell Mfg. Co. v. United States, 371 U.S. 341, 367, 83 S.Ct. 448, 463-64, 9 L.Ed.2d 357 (1963)). Courts — including this one — have questioned the efficacy of jury instructions on other-offense evidence. See, e.g., United States v. Daniels, 770 F.2d 1111, 1118 (D.C.Cir.1985). But in adopting the Federal Rules of Evidence, Congress decided, as a general matter, that the “potential prejudicial effect of Rule 404(b) evidence” was not significant and that it was more important to ensure “that restrictions would not be placed on the admission of such evidence.” Huddleston v. United States, 485 U.S. 681, 688-89, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988). A limiting jury instruction, while not perfect, is the only way to protect the rights of the accused while giving effect to the intent of Congress. Cf. 1 Jack B. Weinstein et al., Weinstein’s Evidence ¶ 105[02] (1995).
I do not mean to minimize the danger of undue prejudice from other-offense evidence. See Fed.R.Evid. 404(a), advisory committee’s note (quoting Cal. Law Revision Comm’n, Rep., Rec. & Studies 615 (1964)). But district judges are far better situated to deal with this problem by applying Rule 403. As the Advisory Committee wrote, the district judge must determine whether the “undue prejudice” of other-offense evidence substantially “outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403.” Fed.R.Evid. 404(b), advisory committee’s note. While a defendant’s concession or offer to stipulate is not “proof,” it may serve the same function, and the trial judge should *1423factor it into the 403 balance. That is the analysis the Advisory Committee envisioned, see id., and it is one this court has endorsed. See United States v. Dockery, 955 F.2d 50 (D.C.Cir.1992). On the other hand, the majority precludes trial judges from reaching the crucial, ease-sensitive Rule 403 balancing and instead legislates into law the sort of “mechanical solution” to other-offense issues the framers of Rule 404 rejected. See Fed. R.Evid. 404(b), advisory committee’s note.
That is not the only way in which the majority has departed from the Federal Rules of Evidence. Indeed, it is not even the only way in which the majority has departed from Rule 404(b). The majority claims to ground its holding in Rule 404(b), but the holding itself applies only to some of the evidence Rule 404(b) specifically allows. The government may introduce other-offense evidence for “purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident____” Fed.R.Evid. 404(b). The majority, on the other hand, applies its exclusionary rule to two of these items — “intent” and “knowledge” — but not to “motive.” Why? Because the majority thinks it can formulate an airtight knowledge-and-intent jury instruction to offset its exclusion of the government’s evidence, but is unable to do the same with respect to evidence of motive. Yet the majority’s model instruction is itself riddled with holes. And just as bad, it is designed for one-defendant criminal trials despite the fact that, at least in drug cases, multi-defendant trials are the norm. I will have more to say on these subjects in a few moments, after we are done with the Federal Rules of Evidence.
In addition to Rule 404(b), Rule 401, the rule governing relevancy, undergoes a makeover. The majority declares that because a defendant’s offer to stipulate takes the issue of intent out of the case, the government’s evidence of intent is no longer admissible. The “because” is wrong for reasons I have already given. The other part of the proposition is wrong as well because the drafters of Rule 401 specifically rejected this very idea — namely, that evidence is relevant only when directed to a disputed fact. Rule 401 is derived from a provision of the California Evidence Code defining relevant evidence as evidence of “any disputed fact that is of consequence to the determination of the action.” Cal. Evid.Code § 210. In drafting Rule 401, the framers deleted the word “disputed.” The majority fails to comprehend the importance of that deletion. It represented “a significant change in the law, [and] the Advisory Committee did not flinch in acknowledging [its] intent. The Note states flatly: ‘The fact to which the evidence is directed need not be in dispute.’ ” 22 Wright & Graham, supra, § 5164 (quoting Fed.R.Evid. 401, advisory committee’s note).4 Professors Wright and Graham suggest that the framers’ decision to delete “disputed” was “sponsored” by the Justice Department to prevent courts from doing exactly what the majority is doing here: concluding “that the defense can bar the introduction of [other offense evidence] by offering to stipulate to the fact it is supposed to prove.” 22 Wright & Graham, supra, § 5164.
II
Legal theory aside, the majority’s revisions of the Federal Rules of Evidence strike me *1424as exceedingly unwise. For every loophole the majority creates and then tries to close, another opens, and with every exception and qualification the majority adds, more problems crop up. Rule 404(b) is a fairly straightforward rule; in the majority’s hands, it becomes as intricate as a Gothic carving.
A
Consider first the problems the majority creates and then at least tries to solve. My colleagues recognize that their holding might sweep much too broadly. Evidence of intent often goes to something more than just the element of intent. Maj. op. at 1412. The charge in these cases — possession with intent to distribute crack cocaine — illustrates the point. In proving that the defendant intended to distribute the crack, the government might simultaneously be showing the defendant’s motive to possess the crack, which Rule 404(b) permits. Intent would thereby serve as an intermediate fact from which the jury could infer another intermediate fact— motive — from which it could in turn infer the element of possession. Thus, the other-offense evidence of intent would have probative value not just on the intent element Crowder and Davis wanted to concede, but also on the possession element they hotly contested. The majority therefore must carve out an exception to its rule, which it does in this fashion: if the other-offense evidence offered to prove intent also may be used to infer motive and then possession, the majority’s Rule 404(b) per se exclusionary rule does not apply.
Next, to avoid impermissibly “weakening the government’s ability to prove its case,” the majority says that its rule will apply only when the defendant’s “offer to concede” is “unequivocal.” Maj. op. at 1411. What qualifies as “unequivocal”? The majority thinks the stipulations offered by Crowder and Davis do, but I cannot comprehend why. Both offers seem to me of uncertain and doubtful significance, which is how my dictionary defines “equivocal,” not its opposite. Take Crowder’s offer. He was willing to stipulate that “anybody who possessed those drugs possessed them with the intent to distribute.” But “anybody” was not on trial. Crowder was. And it was Crowder’s intent, not “anybody’s,” that the prosecution had to establish to the jury’s satisfaction. The stipulation Davis offered is of a piece. It mentioned only some hypothetical drug dealer, some “person.”5 Yet the prosecution’s evidence of Davis’s prior crack cocaine offenses' — offenses close in time and place to those charged in the indictment — was not meant to show that someone had intent and knowledge. The evidence was introduced to prove that Davis had the intent to distribute the crack and that Davis knew what he was possessing. Davis’s proposed stipulation could not possibly have substituted for such proof. It did not even mention him by name.
Even if one subscribed to the majority’s view that the proposed stipulations to intent were “unequivocal,” I cannot see how this could possibly lead to the banning of the Rule 404(b) evidence in Crowder’s trial. The government’s proof of Crowder’s other crime had legitimate probative force with respect to matters beyond those encompassed in his proposed stipulation. The prosecution introduced evidence of Crowder’s other crime to prove three things: Crowder’s “knowledge of the substance within his possession, his specific intent to distribute, and his modus operandi.” One of the charges against Crowder was possessing with intent to distribute crack cocaine.6 Crowder threw away a brown paper bag as he ran from the police to avoid arrest. The paper bag contained wax-paper *1425packets of heroin and ziplock bags of crack. Some of the ziplock bags were clear; others were dark. The clear bags contained a larger amount of crack than the dark bags. The government’s other-offense evidence showed that six months after his arrest here, the police caught Crowder selling crack cocaine on the same block. Crowder held up two ziplock bags to an undercover officer. One bag was clear; he offered it for $20. The other bag was dark; it contained a smaller amount of crack of less purity; he offered it for $10.7 As the government told the court, Crowder’s other offense was thus relevant to several matters “of consequence,” see Fed. R.Evid. 401, at trial. In terms of Rule 401, it was more probable with the evidence than without it that Crowder intended to distribute the crack cocaine in the brown paper bag. On the other occasion when he had crack cocaine in his possession, he sold it. It was more probable with the evidence than without it that Crowder knew the material in the ziplock bags was crack cocaine, just as he knew the substance in the ziplock bag he sold to the undercover officer was crack cocaine. And it was more probable with the evidence than without it that Crowder knowingly possessed the crack cocaine recovered from the brown paper bag. Those drugs, like the drugs recovered in Crowder’s sale to the undercover officer, were packaged in a distinctive manner. Crowder’s offer to stipulate dealt only with intent and therefore did not even come close to covering everything the government’s Rule 404(b) evidence legitimately proved against him.
The majority addresses a small part of this problem with yet another qualified exception, and yet another complication for our circuit’s district judges. Here is the qualification: the majority’s so-called per se exclusionary rule does not apply if the government introduces other-offense evidence to prove the defendant’s experience-based knowledge of the drug trade insofar as it may be probative of possession.8 Maj. op. at 1413-1414. In that event, admissibility will turn on probative value-unfair prejudice balancing pursuant to Rule 403. But this will be no ordinary balancing, and that is where the complication enters. The majority declares that, in conducting the Rule 403 inquiry, the trial judge must not give any thought to the probative value of such evidence regarding intent or knowledge because, as the majority sees it, the defendant’s concession will have removed those elements from the case. Maj. op. at 1412. But what if the trial judge decides to allow the other-offense evidence to come in? Then, the defendant, having conceded intent and knowledge solely to keep this evidence out, will have given up something for nothing. All bets will be off. The defendant’s concession will not hold. Intent and knowledge most certainly will be in the case, and the government’s Rule 404(b) evidence will wind up being used to prove them. Yet the majority instructs the district judges to pretend this will not happen, although it will, and to conduct these Rule 403 inquiries as if the defendant’s concession will remain after the reason for it is gone. More wheels within wheels.
B
Let us now move on to the majority’s model jury instruction, designed to offset barring the government’s evidence. First the reality — neither Crowder nor Davis proposed an instruction. If their counsel had one in mind, it naturally would have been the standard, universally accepted, charge on a *1426stipulation. This has the judge telling the jurors: “[Y]ou may accept the stipulation as evidence and regard that fact as proved. You are not required to do so, however, since you are the sole judge of the facts.” 1 Edward J. Devitt et al„ Federal Jury Practice and Instructions § 12.03 (4th ed.1992); see also Criminal Jury Instructions for the District of Columbia, supra, Instruction 2.04 (“Any stipulation of fact is undisputed evidence, and you may consider it undisputed evidence---- You may consider ... stipulated testimony as exactly what the witness would have said had s/he testified.”) (emphasis added).
Although defense counsel would gleefully accept such standard instructions on stipulations, the majority has to come up with something else. Under its theory, the jury instruction is to be the quid pro quo for barring the government’s evidence. It must give the government all it legitimately could have gained from introducing the other-offense evidence. A trial court’s telling the jurors they may consider the conceded elements as proven will not do the trick. For the government to get its due, the instruction must somehow guarantee that the jury will consider the conceded elements proved beyond a reasonable doubt.
Here, according to my colleagues, is what the district court may charge the jury on remand in Davis’s ease:
In order to sustain its burden of proof for the crime of possession of a controlled substance with the intent to distribute the substance ... the government must prove the following three (3) essential elements beyond a reasonable doubt:
One: The defendant Horace Davis possessed ... the controlled substance described in the indictment; and
Two: The defendant knew that this substance was crack cocaine; and
Three: The defendant intended to distribute the controlled substance.
By Davis’s agreement, the Government need not prove either knowledge or intent. Your job is thus limited to the possession element of the crime. Therefore, in order to meet its burden of proof, the Government must prove beyond a reasonable doubt only one element of the crime, that Horace Davis was in possession of the cocaine base charged in the indictment.
2 Edward J. Devitt et al„ Federal Jury Practice and Instructions § 54.07 (4th ed.1990); maj. op. at 1411.
This instruction — like the rule underlying it — flies in the face of Mathews v. United States, 485 U.S. at 65, 108 S.Ct. at 887-88, and Estelle v. McGuire, 502 U.S. at 69, 112 S.Ct. at 480-81: the government has the burden to prove every element of the offense charged, and the defendant’s tactical decision to “agree” that the “government need not prove” an element does not relieve the government of its burden.
That is only the first of several problems with this instruction. Here is another. In “agreeing” that he must be convicted if the government proves possession beyond a reasonable doubt, a defendant enters a partial plea of guilty, see United States v. Reedy, 990 F.2d 167, 169 n. 7 (4th Cir.), cert. denied, — U.S. -, 114 S.Ct. 210, 126 L.Ed.2d 166 (1993), and effectively waives his right to a jury trial on the stipulated issue, cf. Dockery, 955 F.2d at 55. It is not at all clear that a defendant can enter a partial plea of guilty. Compare United States v. Breitkreutz, 8 F.3d 688, 692 (9th Cir.1993), with United States v. Espinoza, 641 F.2d 153, 161 (4th Cir.), cert. denied, 454 U.S. 841, 102 S.Ct. 153, 70 L.Ed.2d 125 (1981). But it is clear that a defendant cannot waive his right to a jury trial unless the government agrees, which it did not in these cases. See Singer v. United States, 380 U.S. at 36, 85 S.Ct. at 790-91. To dispense with a jury trial, the defendant must obtain “the consent of the government,” Fed.R.Crim.P. 23(a), because “the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before” a jury, “the tribunal which the Constitution regards as most likely to produce a fair result.” 380 U.S. at 36, 85 S.Ct. at 790.
Consider how this “tribunal” — the jury— will understand the majority’s instruction. Any rational juror hearing this instruction would think: “Well, Davis ‘agrees’ that he knew that he possessed crack and that he *1427intended to sell the stuff he possessed. The judge has just told us to take these as givens. And so we have to decide — did Davis possess what he knew he possessed?”
Perhaps in a single defendant case, the judge could straighten things out a bit with some further instructions, although it is hard to imagine what these might be.9 But what if there are other defendants, as is common particularly in drug cases? In the typical multi-defendant drug case in which only some of the defendants seek to avoid Rule 404(b) evidence by proposing a Davis-like stipulation, the jury will hear — for the benefit of the remaining defendants — extensive instructions about the legal meaning of knowledge and intent. It will surely know the obvious — that the government cannot prove knowing possession without first proving possession. It will know as well that the government cannot prove possession with intent to distribute without first proving possession. And so when the judge instructs that for some of the defendants, knowledge and intent have already been proven — or conceded or “agreed” to, or whatever — the jury will, indeed logically must, conclude that the defendants possessed the drugs. And so, in an effort to protect defendants from being considered bad persons and hence guilty, my colleagues promulgate an instruction that convicts them by stipulation. There is truth to the adage that the main cause of problems is solutions.
To round things off, the majority’s instruction happens to be in direct conflict with a charge district judges have given juries for decades. The majority would have district judges tell jurors that while the offense of possession with intent to distribute has three elements, the government “need not prove” two of them. (This “need not” language, by the way, sounds like the government had a choice and decided to pass, which conveys a misleading, confusing and potentially prejudicial impression of the government’s case.) Until today, jurors in this circuit have been told that the government must prove “every element of the offense with which the defendant is charged.” Criminal Jury Instructions for the District of Columbia, supra, Instruction 2.08 (emphasis added). The majority acknowledges that the conflict between the two instructions would confuse jurors. Maj. op. at 1411. But rather than reconsider their new instruction, my colleagues simply eliminate the old one. This move would be startling enough if the majority offered some justification for it. It does not. There is absolutely no discussion of the now-abandoned instruction and not a hint of concern for the role it played in protecting defendants’ Fifth and Sixth Amendment rights. See United, States v. Gaudin, — U.S. -, -, 115 S.Ct. 2310, 2313, 132 L.Ed.2d 444 (1995) (explaining that the Fifth Amendment right to due process and the Sixth Amendment right to a trial by jury together “require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt”).
My colleagues have painted themselves into a corner. Despite their best efforts, they cannot come up with a jury instruction for Davis’s case — let alone one that can be used in other cases — that gives the government its due without either ignoring the nature of the stipulation offers, disregarding the Constitution and the Federal Rules of Criminal Procedure, or completely confusing the jurors. Perhaps there are other, better formulations waiting to be discovered, but I doubt it.
Suppose in possession-with-intent-to-distribute cases district courts told jurors that “the defendant has conceded the elements of knowledge and intent.” As I have already suggested, this could not work because it would never be true. The elements of intent and knowledge require proof that “the defen*1428dant knew that [the substance he possessed] was cocaine base” and that “the defendant intended to distribute this controlled substance.” 2 Devitt, supra, § 54.07 (emphasis added). For good reason, neither Davis nor Crowder offered to admit what he knew or what he intended; they offered to “admit” only that “the person” (Davis) and “anybody” (Crowder) who possessed the drugs intended to distribute them.10
Nor will it do for district judges to tell jurors that because the defendant does not “challenge” or “contest” the elements of intent and knowledge, they must convict if the government proves possession beyond a reasonable doubt. This version is closer to being right on the facts of these cases, but it does not avoid the problems just discussed, and it is in any event wrong on the law. As I have said several times now, a criminal defendant enjoys a presumption of innocence, e.g., Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692-93, 48 L.Ed.2d 126 (1976), and therefore need not “challenge” anything to win an acquittal. The government bears the burden of proving every element of an offense. In re Winship, 397 U.S. 358, 365, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). If the jury finds the government’s proof inadequate, it must reach a verdict of not guilty— even if the defendant has put on no defense. See United States v. Alston, 551 F.2d 315, 320 n. 21 (D.C.Cir.1976) (quoting Perez v. United States, 297 F.2d 12, 16 (5th Cir.1961)). Thus, telling jurors that one of the defendants does not “challenge” or “contest” certain elements falls far short of guaranteeing the government that the jurors will take those elements as proven beyond a reasonable doubt.
Ill
As application of the majority’s rule to these two cases illustrates, today’s decision raises a long list of difficult questions that will plague courts and counsel for years to come. My colleagues disavow any responsibility for answering most of them, but they cannot be ignored. Maj. op. at 1415-1416. The true test of any new rule is in its application.
And so one must ask what, exactly, is an “unequivocal” offer to stipulate? At what point — before trial, see Fed.R.Crim.P. 17.1, or during trial — must the defendant make his offer? 11 If the defendant’s offer is good even if made after the trial is underway, what is to be done about the prosecutor’s opening statement promising the jury that it will hear evidence of the defendant’s other crimes?12 How is a trial judge to determine *1429that a defendant’s offer to stipulate is “knowing and voluntary”? Maj. op. at 1411. Is a full Rule 11 hearing required, attended by all the protections given those who are pleading guilty? Will something less suffice? Is anything at all necessary?13 When, if ever, may a defendant withdraw an offer to stipulate and present evidence relating to the subject it covers? If the defendant takes the stand, may the prosecution impeach him with his prior offenses, as Rule 609(a) allows?
These are just a few of the obvious questions raised by today’s ruling. Many others will continue to bubble up the deeper we sink into this Serbonian Bog. Opportunities for gamesmanship will abound, as prosecutors invent additional reasons for introducing other-offense evidence and defense attorneys formulate the most innocuous-sounding, conditional stipulations they can dream up. Trial judges will be confounded and juries will be confused. Nothing in the Federal Rules of Evidence supports the majority’s theory, and a careful reading of those rules should have led to its rejection. We sit here in the peace and quiet of appellate chambers, unencumbered by the time pressures of trials, assisted by a bevy of able law clerks, studying a written record of who said what, surrounded by volumes of law books, computers close at hand. Before we start devising detailed procedural rules for the conduct of trials and the government’s trial strategy, we ought to remember that our rules will have to be administered in a far different setting, without many of the advantages we appellate judges enjoy. And we should recognize as well that federal trials, especially federal criminal trials, are already far too cumbersome and complicated, and already contain far too many traps for those who are conscientiously trying to perform their duty. With all respect, the majority’s decision only makes matters worse.
. The federal courts of appeals are increasingly divided on this issue, see maj. op. at 1409-1411, and the Supreme Court appears to be interested in addressing it. See United States v. Old Chief, 56 F.3d 75 (9th Cir.1995), cert. granted, -U.S. -, 116 S.Ct. 907, 133 L.Ed.2d 840 (1996); Hadley v. United States, 503 U.S. 905, 112 S.Ct. 1261, 117 L.Ed.2d 491, cert. dismissed as improvidently granted, 506 U.S. 19, 113 S.Ct. 486, 121 L.Ed.2d 324 (1992). As to the prospect of a legislative response, see infra note 4, discussing the California experience.
. Two examples should suffice. In an assault case, the prosecution seeks to introduce a doctor’s testimony describing the victim's wounds; the defendant, claiming the assault was justified, offers to stipulate that he attacked the victim. Under the majority's theory, the doctor's testimony must be excluded. But see Oregon v. Young, 52 Or. 227, 96 P. 1067, 1068 (1908) (allowing the testimony because "the right to offer and have received evidence relevant and material to the issue cannot be taken away by the defendant admitting or offering to admit that the part of the charge sought to be proven is true”). Or in a prosecution for distributing obscene material, the prosecution seeks to introduce the film. The defense offers to stipulate that the film is obscene. Parr v. United States, 255 F.2d 86, 88 (5th Cir.), cert. denied, 358 U.S. 824, 79 S.Ct. 40, 3 L.Ed.2d 64 (1958), holds that the film still may be introduced. The theory underlying the majority opinion in this case dictates the opposite result.
. See Fed.R.Evid. 401, advisory committee's note, describing Rule 404 as a rule addressing one of several frequently recurring "relevancy problems.” It is not strictly a rule of admissibility. Other-offense evidence offered for a legitimate purpose under Rule 404(b) is not automatically admissible; like other relevant evidence, it must pass the balancing test of Rule 403 before it can come in. United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (in banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979); FedR.Evid. 404(b), advisory committee's note; 2 Jack B. Weinstein et a., Weinstein’s Evidence ¶ 404[18] (1995).
. A defendant can, in some circumstances, concede away the government’s other-offense evidence under the California rule. See People v. Hall, 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826 (1980). In Hall, the Supreme Court of California explained that "if a defendant offers to admit the existence of an element of a charged offense, the prosecutor must accept that offer and refrain from introducing evidence of other crimes to prove that element to the jury.” 28 Cal.3d at 152, 167 Cal.Rptr. 844, 616 P.2d 826. Even though the state’s evidence code differed from the Federal Rules, the California court recognized some limitations that the majority today ignores: The other offense evidence would come in despite the offer to stipulate if it remained "relevant to an issue not covered by the stipulation” or if precluding it would "force the prosecution to elect between theories of guilt, or would hamper a coherent presentation of the evidence on the remaining issues.” Id. at 152— 53, 167 Cal.Rptr. 844, 616 P.2d 826.
This narrowly drawn rule was apparently too much for California’s voters, who overturned at least part of Hall with an amendment to the state's constitution. See People v. Bouzas, 53 Cal.3d 467, 476, 279 Cal.Rptr. 847, 807 P.2d 1076 (1991) (discussing Cal. Const. Art. I, § 28(f)).
. "Mr. Davis is willing to stipulate that the person who sold the undercover officer the drugs in this case had the intent to distribute any and all drugs recovered by the police, both through their purchase and through the seizure [of the drugs in the car], and that the individual also knew of the drugs recovered from the car.”
. For a jury to find a defendant guilty of that offense, the government must prove, among other things, that the defendant possessed crack cocaine, that he did so knowingly and intentionally — that is, "consciously, voluntarily and on purpose, and not mistakenly, accidentally or inadvertently” — and that when the defendant possessed the crack, he had the specific intent to distribute it. See Criminal Jury Instructions for the District of Columbia, Instruction 4.29(B) (4th ed.1993).
. The majority claims this evidence could not be admitted to show modus operandi because the apparent marketing tactics were not "strikingly similar.” Maj. op. at 1413. However, evidence is admissible to show modus operandi even if the similarity is not complete. ”[I]t is enough that the characteristics relied upon are sufficiently idiosyncratic to permit a fair inference of a pattern’s existence.” United States v. Sliker, 751 F.2d 477, 487 (2d Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1772, 84 L.Ed.2d 832 (1985) and 471 U.S. 1137, 105 S.Ct. 2679, 86 L.Ed.2d 697 (1985).
. Of course, a defendant's hands-on experience in the drug trade cannot alone prove that he possessed drugs on any given occasion. But it can show that he knew how to get drugs, what they looked like, where to sell them, and so forth. Evidence of a defendant's experience in dealing drugs — evidence, that is, of his "bad acts” — thus may be a "brick” in the "wall” of evidence needed to prove possession. See Fed.R.Evid. 401, advisory committee's note.
. In criminal cases, trial judges are not empowered to take issues of intent and knowledge from the jury. "[A] trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict, regardless of how overwhelmingly the evidence may point in that direction." United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 91 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977) (citations omitted). And we have said the prohibition applies even to "situations in which the judge's instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true.” United States v. Hayward, 420 F.2d 142, 144 (1969).
. To admit more would have been to admit their guilt, which neither Davis nor Crowder did. This is not to say that a defendant must always admit his guilt in order to offer a stipulation to an element of the offense. In a federal prosecution for bank fraud, for example, a defendant might offer to stipulate that the bank involved was a federally chartered or federally insured financial institution. See 18 U.S.C. § 1344. But in a prosecution for possession with intent to distribute a controlled substance, it is difficult if not impossible to articulate a coherent offer to stipulate that would not amount to an overall admission of guilt.
. The First Circuit, which follows the practice of banning Rule 404(b) evidence in the face of defense offers to stipulate, "favor[s] the practice of handling stipulations either pretrial ... or shortly after the trial has begun for the sake of clarity both at trial and on review.” United States v. Garcia, 983 F.2d 1160, 1176 (1993). But in a typical case, the trial judge might not decide whether to admit the government's other-offense evidence until after the trial has begun. Under the majority’s rule, must the defendant offer to stipulate and agree to the jury instruction before he knows whether the judge is going to admit the other-offense evidence?
.One court of appeals has tried to solve this problem by barring the government from mentioning its Rule 404(b) evidence in its opening statement and by allowing the government to present such evidence only in its rebuttal case. United States v. Colon, 880 F.2d 650, 660 (2d Cir.1989); United States v. Figueroa, 618 F.2d 934, 939 n. 1 (2d Cir.1980). This procedure, created by an appellate court, disregards the trial judge's usual discretion in controlling the "mode and order” of "presenting evidence,” see Fed. R.Evid. 611(a), and raises problems of its own:
For example, in a narcotics prosecution, the jury will often learn for the first time of a criminal defendant's uncharged misconduct ... during the government's rebuttal case (if the evidence is offered under Federal Rule of Evidence 404(b) to prove criminal intent). The jury may well wonder why the prosecutor held back this obviously important information during the government's case-in-chief and may speculate that the prosecutor is withholding other, equally important evidence. The appar*1429ently belated introduction of this evidence may give rise to other adverse inferences. For example, it may lead a jury to speculate that the evidence was fabricated at the last moment ... [or] that the government itself believed that its case was weak, and that is why it introduced this additional evidence as an apparent afterthought.
Bruce A. Green, "The Whole Truth?": How Rules of Evidence Make Lawyers Deceitful, 25 Loy. L.A. L.Rev. 699, 702-03 (1992).
. The Fourth Circuit apparently believes that a full Rule 11 hearing is required. See Espinoza, 641 F.2d at 162. But the First Circuit thinks something less is sufficient. The First Circuit admonishes district judges to "take steps to assure that the defendant is aware of the contents of the stipulation and of its implications before directing the jury that it may resolve the issue against the defendant.” United States v. Garcia, 983 F.2d at 1175-76. What "steps” must be taken neither the majority nor the Garcia court say. Nor are we told exactly what "implications” must be spelled out to the defendant, or how.