Rule 404

On the evening of April 15, 1989, two white Air Force police officers named Jane Smith and Tony McCormack were walking back to their dormitories at Fort Dix, New Jersey, after seeing a movie. They sat under a glass-enclosed bus shelter to avoid light rain. A black male wearing a wool cap and tan nylon jogging suit entered the shelter, drew a small silver handgun, robbed McCormack of his wallet containing an unsigned $100 money order, and forced Smith to perform fellatio on him while threatening to shoot McCormack. After the assailant fled when a car drove by, the victims contacted military police. Investigator Christine Amos suggested they look at a wanted board containing eight posters with composite sketches and photographs. McCormack immediately identified a photograph of defendant Richard Stevens, and Smith agreed it resembled the attacker though he appeared heavier in the photo. Smith then went to Walson Army Community Hospital where a doctor administered a rape crisis kit and attempted to secure semen samples from her saliva and clothing, producing three glass slides. The FBI laboratory later performed serological testing on one slide containing sufficient semen, which consumed all material on the slide and prevented DNA testing. A consent order had directed the FBI to preserve samples if possible after its own tests so Stevens could conduct DNA testing. The government made remaining materials available to the defense nearly six weeks later, but testing proved inconclusive. Stevens was indicted on charges of aggravated sexual assault and robbery within the special territorial jurisdiction of the United States. Stevens's first trial ended in a mistrial after the jury deadlocked. At the second trial in March 1990, the district court permitted expert testimony on cross-racial identifications, weapon focus, and stress but excluded testimony on the lack of correlation between confidence and accuracy in identifications. The court also excluded testimony from Tyrone Mitchell, who had been robbed at gunpoint three days later at Fort Dix in a similar manner; Mitchell did not identify Stevens, and the fruits of both crimes ended up near Fort Meade, Maryland. The jury convicted Stevens on both counts, and the district court sentenced him to 168 months of incarceration. Stevens appealed, challenging the destruction of the semen sample, the wanted board identification, the admission of pretrial services testimony, the limits on expert testimony, and the exclusion of the Mitchell evidence. The Third Circuit reviewed the record developed at the Wade hearing, the Brady motion hearing, the Downing hearing on expert testimony, and the trial proceedings.

In 1993, Johnny Lynn Old Chief was arrested following a fracas that involved at least one gunshot. The ensuing federal charges included not only assault with a dangerous weapon and using a firearm in relation to a crime of violence but violation of 18 U.S.C. § 922(g)(1). The earlier crime charged in the indictment against Old Chief was assault causing serious bodily injury. Old Chief's 1988 conviction arose from an incident in which he knowingly and unlawfully assaulted Rory Dean Fenner, resulting in serious bodily injury, in violation of federal law on an Indian reservation. He received a sentence of five years' imprisonment, as reflected in the order of judgment and commitment dated December 18, 1988. Before trial, Old Chief filed a motion asking the district court to bar the government from mentioning or introducing evidence of the name and nature of his prior conviction. He offered instead to stipulate that he had been convicted of a crime punishable by imprisonment exceeding one year and proposed a jury instruction stating that fact. The Assistant United States Attorney refused to join in a stipulation, insisting on his right to prove his case his own way, and the District Court agreed, ruling orally that, "If he doesn't want to stipulate, he doesn't have to." The district court denied the motion, ruling that the government was not required to stipulate. At trial, over renewed objection, the Government introduced the order of judgment and commitment for Old Chief's prior conviction. This document disclosed that on December 18, 1988, he "did knowingly and unlawfully assault Rory Dean Fenner, said assault resulting in serious bodily injury," for which Old Chief was sentenced to five years' imprisonment. The jury found Old Chief guilty on all counts. Old Chief appealed to the Ninth Circuit, which affirmed the district court's evidentiary ruling. The Supreme Court granted certiorari to resolve a split among the circuits on the admissibility of the details of prior convictions when a defendant offers to stipulate.

In 1995 Samuel Mullet purchased land in Jefferson County, Ohio. That land became the Bergholz Amish community in 2001 when a sufficient number of ordained ministers qualified it as a separate Amish church district. The new community appointed Mullet as its bishop. As bishop, Mullet controlled all aspects of life in the Bergholz compound and had the ability to order the shunning of community members who failed to follow the tenets of their Amish faith. In 2006 Mullet excommunicated several church members who questioned Bergholz community practices and his leadership. Included in the group were Lavern and Mattie Troyer, whose son Aden was married to Mullet's daughter Wilma, as well as Melvin and Anna Shrock, whose son Emanuel was married to Mullet's daughter Linda. The excommunications led to family divisions, including a divorce and a custody dispute. Amish bishops from across the country met and voted unanimously to reverse the excommunications. From September 6 to November 9, 2011, several Bergholz community members committed five separate attacks on nine different individuals connected to the community by family or religious ties. The assailants sliced off the men's beards and cut the women's hair. The victims were seen as Amish hypocrites by the assailants. A federal grand jury indicted sixteen members of the Bergholz community for violating and conspiring to violate the Hate Crimes Prevention Act, as well as other charges. At trial, the government presented evidence that the assaults were motivated by the victims' religion, while the defendants presented evidence of personal and family disputes as alternative motives. The jury convicted all sixteen defendants of at least one hate-crime violation. The district court instructed the jury that the victims' religion need only be a significant motivating factor even if other reasons existed. The defendants twice requested a but-for causation instruction, which the court rejected. The defendants appealed their convictions to the United States Court of Appeals for the Sixth Circuit.

On July 31, 2003, Eric Besore contacted DEA task force officer Steven Thibodeau to arrange a controlled purchase of drugs from an individual nicknamed Hoot. Besore had previously agreed to assist Thibodeau with drug investigations in exchange for help dismissing a criminal speeding charge. Thibodeau and other agents gave Besore $1,000, equipped him with an electronic transmitting device resembling a pager, searched him and his vehicle, and sent a surveillance team including Thibodeau and Barry Kelly to monitor the transaction in Westbrook, Maine. Besore drove to a parking lot at King and Brown Streets. Kelly parked nearby to record transmissions from the device while Thibodeau maintained contact by cell phone. After a uniformed officer stopped a nearby vehicle, Besore moved his car up the street. Thibodeau later observed Besore in the driver's seat of his car with a black male later identified as Dwayne J. Anderson in the passenger seat. Kelly saw Anderson exit Besore's car and enter a green Subaru parked behind it. Besore then drove away and met Thibodeau, handing him a plastic bag containing a substance that field-tested positive for cocaine base. Thibodeau placed the substance in evidence envelope 159263, locked it in the DEA safe, and mailed it to the DEA laboratory in New York. Chemist Brian O'Rourke later confirmed the substance was cocaine base weighing 6.1 grams. On October 23, 2003, a grand jury indicted Anderson for knowingly and intentionally distributing five or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). A two-day jury trial began on April 7, 2004, in the District of Maine. At trial the government introduced a copy of the recording from Besore's transmitting device along with a transcript prepared by the prosecutor. Kelly authenticated the transcript by comparing it to the tape. The court gave limiting instructions that the tape was the evidence and any discrepancies must be resolved in favor of the tape. Besore did not appear despite a government subpoena. The defense requested a missing witness instruction, which the court denied. The court also excluded evidence of Besore's prior felony conviction for tampering with a witness during cross-examination of Thibodeau and admitted the drugs over a chain-of-custody objection. The jury convicted Anderson after nearly two hours of deliberation. The PSR calculated a base offense level of 26 based on 6.1 grams of crack cocaine. It classified Anderson as a career offender, though the government later conceded he lacked the required predicate offenses and should be placed in criminal history category III. At sentencing on April 27, 2005, the district court found the substance was crack cocaine, set the Guidelines range at 78 to 97 months, and imposed a sentence of 78 months' imprisonment, five years of supervised release, and a $100 assessment. Anderson timely appealed both conviction and sentence.

On the afternoon of July 8, 1985, a man wearing a ski mask and armed with a small pistol robbed the First Pennsylvania Bank in Frederiksted, St. Croix, Virgin Islands. The robber took over $7,000 in cash from a bank teller, approximately $5,000 in cash from a customer, and personal and travelers’ checks. The culprit ran from the bank, scurried around in the street momentarily, and then commandeered a passing taxi van. While driving away from the scene, the robber pulled off his ski mask. An eyewitness who had slipped out of the bank during the robbery saw the maskless man and identified him at trial as petitioner Reuben Dowling. Other witnesses testified that they had seen Dowling driving the hijacked taxi van outside of Frederiksted shortly after the bank robbery. Following his arrest, Dowling was charged with the federal crimes of bank robbery, 18 U.S.C. § 2113(a), and armed robbery, § 2113(d), as well as crimes under Virgin Islands law. Dowling pleaded not guilty to all charges. His first trial ended with a hung jury. He was tried again and convicted, but the Third Circuit reversed this conviction on appeal. After a third trial, Dowling was convicted on most of the counts. The trial judge sentenced him to 70 years’ imprisonment. During petitioner’s third trial, the Government called Vena Henry to the stand over objection. Ms. Henry testified that a man wearing a knitted mask with cutout eyes and carrying a small handgun had, together with a man named Delroy Christian, entered her home in Frederiksted approximately two weeks after the First Pennsylvania Bank robbery. A struggle ensued. She unmasked the intruder and identified him as Dowling. Based on this incident, Dowling had been charged under Virgin Islands law with burglary, attempted robbery, assault, and weapons offenses. He had been acquitted after a trial held before his third trial in the bank robbery case. The Government elicited Henry’s testimony to strengthen its identification of Dowling as the bank robber through similarities in the mask and gun. It also sought to link Dowling with Delroy Christian. Christian had been seen in a white Volkswagen parked in front of the bank with the car door open into the street the day before the robbery. Before opening statements, the Government disclosed its intention to call Ms. Henry and explained its rationale under Rule 404(b) of the Federal Rules of Evidence. After a hearing, the District Court characterized the testimony as highly probative circumstantial evidence and ruled that it was admissible under Rule 404(b). When Henry left the stand, the District Court instructed the jury that petitioner had been acquitted of robbing Henry and emphasized the limited purpose for which Henry’s testimony was being offered. On appeal, the Third Circuit determined that the District Court should not have admitted Henry’s testimony but nevertheless affirmed Dowling’s conviction, holding that the admission was harmless under the non-constitutional standard. Dowling claimed that the Third Circuit was wrong when it found that the admission of Henry’s testimony did not offend the Constitution and therefore declined to apply the Chapman v. California harmless-error standard. The Supreme Court granted certiorari to consider Dowling’s contention that Henry’s testimony was inadmissible under both the Double Jeopardy and the Due Process Clauses of the Fifth Amendment.