dissenting.
I must respectfully dissent. In reading the record, it is difficult for me to hold that the defendant received a fair trial. As the majority states, the defendant was convicted of two counts of assault resulting in serious bodily injury, one count of assault with a dangerous weapon, and one count of a lesser-included offense of simple assault. There is no question that all of the participants in the events leading up to the assault charges in this case, including the defendant and both victims, were involved in a night of drinking. The defendant, who suffered cuts and bruises, asserted that the stabbing was in self-defense.
The main difficulty with this case is that the government was allowed to introduce evidence in its case-in-chief of a domestic quarrel between the defendant and his girlfriend which occurred some two years prior to the events giving rise to the defendant’s conviction. The evidence about the domestic incident was offered by the government through the testimony of the defendant’s girlfriend, Sundown White Lance. She testified that during this domestic dispute the defendant ripped a phone off the wall and held her in her apartment against her will for over three hours. She alleged that the defendant held a knife in his hand as he was choking her and threatened to kill her. According to White Lance, however, the defendant never opened the knife.
I fail to see that the domestic altercation as described by White Lance in any way manifests an intent to assault so as to be admissible under Federal Rule of Evidence 404(b). There is no question that the evidence of the domestic dispute demonstrated that the defendant has violent tendencies. In fact, during the motion in limine concerning White Lance’s testimony, the government stated to the court, “And the testimony will show, if the Court allows it, that the defendant is a very aggressive person.” Tr. at 14. This kind of propensity evidence, however, is exactly what Rule 404 was enacted to prohibit. See United States v. Millard, 139 F.3d 1200, 1204 (8th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 376, 142 L.Ed.2d 311 (1998).
Evidence is only admissible under Rule 404(b) “when it is (1) relevant to a material issue; (2) proved by a preponderance of the evidence; (3) higher in probative value than in prejudicial effect; and (4) similar in kind and close in time to the crime charged.” United States v. McCarthy, 97 F.3d 1562, 1572 (8th Cir.1996), cert. denied, 519 U.S. 1139, 117 S.Ct. 1011, 136 L.Ed.2d 888 (1997) (citation omitted). The evidence of the defendant’s domestic dispute with White Lance does not meet this test. First, it is not relevant or similar in kind to the present assault charges. A domestic quarrel manifests a totally different environmental circumstance than the alleged assault involved here. There should be little doubt that the evidence of the two year old domestic altercation between the defendant and White Lance failed to provide any related evidence of intent to commit the current offenses. Although the earlier incident was also an assault, ripping a phone off the wall and holding his girlfriend against her will hardly shows that the defendant intended to use a knife to wound other persons in a drunken brawl. The alleged similarities of the incidents are based on the fact that the defendant used a knife in both incidents, even though he used a closed knife during the altercation with his girlfriend. Once again, however, this does not manifest the *546requisite intent to stab another person some two years later. See United States v. Johnson, 879 F.2d 331 (8th Cir.1989) (holding that a prior incident where the defendant threatened his aunt with a knife was inadmissible to show his state of mind at the time of the offense because it was remote in time and unconnected to the events surrounding the charged murder).
Further, the third prong of the test is also violated in this situation. The Supreme Court has stated, “Although ... ‘propensity evidence’ is relevant, the risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment — creates a prejudicial effect that outweighs ordinary relevance.” Old Chief v. United States, 519 U.S. 172, 181, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (quoting U.S. v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)). In Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 93 L.Ed. 168 (1948), the Supreme Court also stated that the difficulty with 404(b) evidence is that “it is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” Under the facts of this case, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See Fed.R.Evid. 403; United States v. Sostarich, 684 F.2d 606 (8th Cir.1982) (holding that certain prior act testimony was inadmissible under 403).
I respectfully submit that trial courts are too prone to rely upon the broad principles of admissibility set forth in Rule 404(b) and too often disregard the general rule prohibiting propensity evidence. In doing so, the courts tend to ignore the more significant standard relating to undue prejudice in Rule 403. Under the circumstances of this case, Rule 403 should prevent the use of prior act evidence because of the danger of unfair prejudice. I would hold that the district court abused its discretion in allowing the government to prove its case in the manner in which it did. It is often said that a defendant is not entitled to a perfect trial; only a fair one. In this case he was denied both.