Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-18-2006

USA v. Williams
Precedential or Non-Precedential: Precedential

Docket No. 05-3772




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                                     PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                   No. 05-3772




         UNITED STATES OF AMERICA

                         v.

              RICHARD WILLIAMS,
               a/k/a Malik Nash Bey

                 Richard Williams,

                                         Appellant
                    _________

  On Appeal from the United States District Court
             for the District of New Jersey
               (D.C. Crim. No. 03-00664)
 District Judge: The Honorable Dennis M. Cavanaugh

      Submitted under Third Circuit LAR 34.1(a)
                   July 10, 2006
Before: SMITH, ALDISERT and ROTH, Circuit Judges.

              (Filed August 18, 2006 )
                      ____________

                OPINION OF THE COURT

Richard Coughlin
  Federal Public Defender
Peter M. Carter
  Assistant Public Defender
Candace Hom
  Research & Writing Attorney
Office of Federal Public Defender
972 Broad Street, Fourth Floor
Newark, NJ 07102

      Counsel for Appellant Richard Williams

Christopher J. Christie
  United States Attorney
George Leone
  Chief, Appeals Division
Mark E. Coyne
  Assistant United States Attorney
Office of United States Attorney
970 Broad Street
Newark, NJ 07102

      Counsel for Appellee United States of America


ALDISERT, Circuit Judge,


                             2
       This appeal requires us to consider the admissibility of
what is known as “reverse Rule 404(b)” evidence. See Rule
404(b), Federal Rules of Evidence. D efendant Richard
Williams was convicted of possession of a firearm by a felon
(18 U.S.C. § 922(g)(1)) after police discovered a semi-
automatic handgun in the bedroom in which he was
apprehended. At trial, Williams sought to introduce evidence
that another individual with whom he was arrested, Andre
Urlin, had previously been convicted of possessing a firearm.
The evidence was offered to show that the weapon found in the
bedroom belonged to Urlin rather than Williams. The District
Court excluded the evidence. On appeal, Williams contends
that the District Court erred and that, pursuant to our holding in
United States v. Stevens, 

(3d Cir. 1991),
evidence of crimes or bad acts committed by persons other than
the defendant (“reverse Rule 404(b) evidence”) is admissible so
long as its probative value is not substantially outweighed by
the risk of unfair prejudice, undue delay or confusion of the
issues.

        As explained herein, Williams misreads Stevens, and we
write to clarify that Rule 404(b)’s proscription against
propensity evidence applies regardless of by whom, and against
whom, it is offered. Under Stevens, we grant defendants more
leeway in introducing “bad acts” evidence under one of the
Rule 404(b) exceptions—requiring only that its probative value
is not substantially outweighed by Rule 403 considerations such
as unfair prejudice, undue delay or confusion of the issues. But
Stevens did not afford defendants more leeway in admitting
propensity evidence in violation of the prohibition of Rule
404(b). Because the only purpose for which Williams sought

                                3
to introduce Urlin’s prior conviction was to show that he has a
propensity to carry firearms, the District Court correctly
excluded the evidence. Accordingly, we will affirm Williams’
conviction. We will also reject his reasonableness challenge to
his sentence.

                               I.

        On May 16, 2003, detectives from the East Orange
Police Department responded to a report of drug activity at 12
Birchwood Avenue. After arriving at the scene, the detectives
surveilled the house from unmarked police cars. While they
were watching the house, the detectives saw a silver Audi sedan
pull into the driveway of the house. Williams and another man,
Leon Clark, exited the vehicle. A third man, Andre Urlin, was
waiting in the driveway for them. After Williams and Clark
exited the car, Urlin got in the driver’s side of the car and
parked it in the garage at the back of the house.

       Suspecting (correctly) that the car was stolen, one of the
detectives drove past the house to confirm the address and then
radioed his back-up to detain Urlin, Williams and Clark. Once
the detectives converged on the scene, Williams fled up the
driveway and into the house. As he fled, one of the detectives
observed that he was clutching a “machine-pistol type weapon”
against his chest. The detective cried out “Gun!” and chased
Williams into the house.

       The detective chased Williams through the first floor of
the house, losing sight of him only as he turned the corners. He
and another detective finally cornered Williams in a bedroom,

                               4
where he was crouching over a bed with his back to the door.
They apprehended, searched and handcuffed him. Finding no
weapon, one of the detectives began searching the bedroom.
She found a gun—a semi-automatic Cobray-Leinard, Model
PM-11, nine-millimeter handgun loaded with a clip containing
two hollow-point bullets and 18 “full metal jacket”
bullets—hidden between the mattress and the box-spring of the
bed over which Williams had been found crouching. The
weapon had a long shoelace tied to it, serving as a strap. A
consensual search of the house subsequently revealed 27
glassine envelopes of heroin, $2,455 in cash and a second stolen
Audi. Two other individuals were also found in the home.

       Williams, Urlin and Clark were arrested. A criminal
history check revealed that Williams had several prior
convictions, including a felony conviction for aggravated
assault. Williams was subsequently turned over to the United
States Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) and charged with possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1).

        Prior to trial, Williams filed a motion in limine for
admission of “reverse [Rule] 404(b)” evidence that Urlin had
recently been convicted for possession of a firearm by a felon.
Williams contended that this evidence was admissible to show
that Urlin, rather than Williams, had possessed the weapon in
question. The District Court delayed a ruling on the question
until the close of evidence, at which time it denied the motion
without explanation. The jury returned a verdict of guilty.

       The Presentence Investigation Report, to which Williams

                               5
did not object, stated that Williams’ Guidelines range was 51 to
63 months’ imprisonment, based on a total offense level of 20
and a criminal history category of IV.1 At his July 27, 2005
sentencing, Williams requested a 41-month sentence, ten
months below the applicable Guidelines range. He asserted that
he had a troubled childhood and a history of alcohol and
marijuana abuse, and that he was denied rehabilitative
opportunities while incarcerated in New Jersey.             The
government opposed the request, noting that Williams was
convicted of possessing a very powerful weapon loaded with
hollow-point bullets and that he had an “abysmal criminal
history.” It requested a 63-month sentence.

       The District Court agreed with the government that
Williams’ offense was very serious and that his criminal record
was “terrible.” It also considered and rejected Williams’
contention that his upbringing warranted a lesser sentence. It
sentenced Williams to 63 months’ imprisonment and three
years’ supervised release. The judgment of conviction and
sentence was entered on August 1, 2005, and Williams filed a
timely notice of appeal.

                              II.

       The District Court had subject matter jurisdiction


  1
    In addition to his felony conviction for aggravated assault,
for which he served six years in prison, Williams had prior
convictions for joyriding and receipt of stolen property. He was
also a suspected member of the Bloods street gang.

                               6
pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction
over Williams’ claims of error at trial under 28 U.S.C. § 1291.
Although the government contests our jurisdiction to review
Williams’ sentence for reasonableness, this Court held that we
have jurisdiction to review sentences for reasonableness under
18 U.S.C. § 3742(a)(1). See United States v. Cooper, 

, 327 (3d Cir. 2006); but see 

(Aldisert, J. concurring and dissenting).

       We review the District Court’s evidentiary rulings for
abuse of discretion. United States v. Versaint, 

,
831 (3d Cir. 1988). Under the abuse of discretion standard, an
evidentiary ruling is to be reversed only if arbitrary or irrational.
United States v. Universal Rehab. Servs., 

, 665 (3d
Cir. 2000).

                                III.

                                 A.

      At the center of this case is this Court’s decision in
United States v. Stevens, our seminal case addressing the
admissibility of what is known as “reverse Rule 404(b)”
evidence. “In contrast to ordinary ‘other crimes’ evidence
[under Rule 404(b)], which is used to incriminate criminal
defendants, ‘reverse [Rule] 404(b)’ evidence is utilized to
exonerate defendants.” 

.2 Such


  2
      Federal Rule of Evidence 404(b) provides, in relevant part:


                                 7
evidence is most commonly introduced by a defendant to show
that someone else committed a similar crime or series of crimes,
implying that he or she also must have committed the crime in
question. See 2 Wigmore on Evidence § 304, at 252 (J.
Chadbourn rev. ed. 1979).

        In Stevens, we held that the district court erred in
excluding reverse Rule 404(b) evidence of a similar robbery
involving a victim who failed to identify the defendant as the

. The evidence was offered to show
that the same person committed both robberies and that because
the defendant was not identified as the perpetrator of the first
robbery, he was not the perpetrator of the second. 

Although one of the robberies involved a sexual assault and the
other did not, both crimes: (1) took place within a few hundred
yards of one another; (2) were armed robberies; (3) involved a
handgun; (4) occurred between 9:30 p.m. and 10:30 p.m.; (5)
were perpetrated on military personnel; and (6) involved a black
assailant who was described similarly by his victims. 

robberies also occurred within days of one another, and the
fruits of both robberies were discovered in similar locations. 

Wrongs, or Acts. – Evidence of
       other crimes, wrongs, or acts is not admissible to
       prove the character of a person in order to show
       action in conformity therewith. It may, however,
       be admissible for other purposes, such as proof of
       motive, opportunity, intent, preparation, plan,
       knowledge, identity, or absence of mistake or
       accident[.]

                                8
        At issue in Stevens was what degree of similarity should
be required when a defendant offers evidence of bad acts
committed by a third party. The government argued that the
same standard of similarity should apply regardless of who
offers the evidence, and that the two robberies did not satisfy
the high standard that would apply if it sought to introduce
evidence of bad acts by a defendant. 

see, e.g.,
Carter v. Hewitt, 

, 968 (3d Cir. 1980) (observing
that the degree of similarity required to prove “identity” is
extremely high when the government seeks to introduce a
defendant’s bad acts). Specifically, it contended that the
defendant must show that there has been more than one similar
crime or that the other crime was sufficiently similar to be
called a “signature” crime. 

. We
disagreed, concluding that Rule 404(b) was primarily intended
to protect defendants and that “a lower standard of similarity
should govern ‘reverse Rule 404(b)’ evidence because prejudice
to the defendant is not a factor.” 

conclusion
in terms of the Federal Rules of Evidence, we stated that “a
defendant may introduce ‘reverse 404(b)’ evidence so long as
its probative value under Rule 401 is not substantially
outweighed by Rule 403 considerations.” 

   3
       Rule 401 of the Federal Rules of Evidence provides:

         “Relevant evidence” means evidence having any
         tendency to make the existence of any fact that is
         of consequence to the determination of the action

                                 9
       Williams reads this language in Stevens to mean that
evidence of bad acts involving someone other than the
defendant is admissible whenever its probative value is not
substantially outweighed by Rule 403 considerations, regardless
of the purpose for which it is admitted: propensity, identity,
motive or otherwise. Williams’ defense in this case is that Urlin
possessed the gun, not him. He argues that Urlin’s prior
conviction “rationally tends to disprove his [own] guilt”—the
import of the conviction being that Urlin has a propensity to
possess firearms and that, therefore, the gun recovered from
under the mattress was likely Urlin’s.4




       more probable or less probable than it would be
       without the evidence.

       Rule 403 of the Federal Rules of Evidence provides:

       Although relevant, evidence may be excluded if
       its probative value is substantially outweighed by
       the danger of unfair prejudice, confusion of the
       issues, or misleading the jury, or by
       considerations of undue delay, waste of time, or
       needless presentation of cumulative evidence.
   4
    Although Williams carefully avoids labeling Urlin’s prior
conviction “propensity evidence,” he nonetheless maintains that
Stevens rejected “hard and fast” preconditions to the
admissibility of reverse Rule 404(b) evidence and that the
purpose for which the evidence is offered is irrelevant.

                               10
       Williams misreads Stevens. This Court has never held
that Rule 404(b)’s prohibition against propensity evidence is
inapplicable where the evidence is offered by the defendant. In
Stevens, it was indisputable that the evidence was being offered
to show identity, i.e., that the perpetrator of the second robbery
was the same as the perpetrator of the first because of the
similarity of the crimes. Rule 404(b) expressly permits such
evidence of other similar crimes to prove identity. See Rule
404(b), Federal Rules of Evidence (bad acts evidence may be
admitted to prove “motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake”) (emphasis
added); see, e.g., United States v. Powers, 

, 361
(7th Cir. 1992) (holding that other bank robberies and attempted
robbery of which defendant had been convicted were
sufficiently similar to the charged offense to render identity
evidence admissible). The evidence was not being used to
show that the perpetrator of the first robbery committed the
second robbery simply because he had a general propensity to
commit robberies.

        It was implicit in Stevens that we do not begin to balance
the evidence’s probative value under Rule 401 against Rule 403
considerations unless the evidence is offered under one of the
Rule 404(b) exceptions. That the prohibition against propensity
evidence applies regardless of by whom—and against
whom—it is offered is evident from Rule 404(b)’s plain
language, which states that “[e]vidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in
order to show action in conformity therewith.” Rule 404(b),
Federal Rules of Evidence (emphasis added). Rather than
restricting itself to barring evidence that tends to prove “the

                               11
character of the accused” to show conformity therewith, Rule
404(b) bars evidence that tends to prove the character of any
“person” to show conformity therewith. Although, under
Stevens, a defendant is allowed more leeway in introducing
non-propensity evidence under Rule 404(b), he or she is not
allowed more leeway in admitting propensity evidence in
violation of Rule 404(b). United States v. McCourt, 

, 1234 n.8 (9th Cir. 1991) (explaining language from
United States v. Aboumoussallem, 

, 911 (2d Cir.
1984), that is virtually identical to that used in Stevens). We
therefore reject Williams’ argument, and affirm that the
prohibition against the introduction of bad acts evidence to
show propensity applies regardless of whether the evidence is
offered against the defendant or a third party.5 See United


    5
       We acknowledge that there might be cases in which an
application of Rule 404(b)’s prohibition against propensity
evidence arguably encroaches on a defendant’s right to present
a full defense. See Crane v. Kentucky, 

, 690 (1986)
(holding that “the Constitution guarantees criminal defendants
a meaningful opportunity to present a complete defense”)
(internal quotation marks and citations omitted). The Advisory
Committee Notes following Rule 401 explain that rules such as
Rule 404 and those that follow are meant to prohibit certain
types of evidence that are otherwise clearly “relevant evidence,”
but that nevertheless create more prejudice and confusion than
is justified by their probative value. This, however, is a
sweeping and non-individualized judgment, and the drafters
have provided exceptions to this general rule for certain types of
crimes. See Rules 413, 414 & 415, Federal Rules of Evidence

                               12
States v. Lucas, 

, 605 (6th Cir. 2004) (“[W]e
affirm that prior bad acts are generally not considered proof of
any person’s likelihood to commit bad acts in the future and
that such evidence should demonstrate something more than
propensity.”) (emphasis added); 

(“Evidence of ‘other crimes, wrongs, or acts,’ no matter by
whom offered, is not admissible for the purpose of providing
propensity or conforming conduct, although it may be
admissible if offered for some other relevant purpose.”); United
States v. White, 136 Fed. Appx. 540, 541 n.2 (3d Cir. 2005)


(providing that evidence of the defendant’s commission of an
offense of sexual assault or child molestation is admissible for
any purpose). Under exceptional circumstances, therefore, it
could plausibly be argued that a defendant has a constitutional
right to present propensity evidence otherwise barred by Rule
404(b). See Holmes v. South Carolina, 

, 1731-
1733 (2006) (observing that “[s]tate and federal rulemakers have
broad latitude under the Constitution to establish rules excluding
evidence from criminal trials” and that rules restricting the
ability of a defendant to offer evidence that another person
committed a crime are “widely accepted,” but that evidence
rules that significantly infringe upon the interest of the accused
and are disproportionate to the purposes they are designed to
serve are impermissible). But we need not reach this question
here; the evidence of Urlin’s prior conviction—even if used to
show propensity—has minimal probative value. Indeed, even
if we adopted Williams’ reading of Stevens, we would
nonetheless hold that the District Court did not exceed the
permissible bounds of its discretion in excluding the evidence.

                               13
(unpublished) (“[A]s opposed to Rule 404(a), which relates to
character evidence of an accused, witness or victim, Rule
404(b) applies to other acts evidence regarding a ‘person.’”)
(citing 

); cf. United States v. Sturm, 

, 751 (3d Cir. 1982) (affirming exclusion under Rule
404(b) of evidence that witness had been involved in a prior
arson-extortion scheme).

                               B.

       Perhaps anticipating our conclusion that Urlin’s prior
conviction was not admissible to show that he had a propensity
to possess weapons, Williams argues in the alternative that
Urlin’s prior conviction was admissible to prove opportunity
and identity, which are among the several purposes for which
such testimony can be introduced under Rule 404(b). See Rule
404(b), Federal Rules of Evidence. This argument is not
convincing. First, we fail to see how the prior conviction could
supply Urlin with the “opportunity” to commit the crime for
which Williams is charged. There was no evidence that Urlin’s
prior conviction involved the same gun, or even the same type
of gun (which might imply that he had continued access to the
type of gun in question).

        Second, although a prior conviction need not rise to level
of a “signature crime” to justify admission under Rule 404(b)’s
identity exception, see 

, Urlin’s prior
conviction is simply too generic to prove identity. As in
Stevens, we balance the probative value of the evidence under
Rule 401 against the countervailing Rule 403 considerations to
determine whether the prior bad act is admissible to prove the

                               14
identity of the perpetrator. Looking first at Rule 401, the
evidence of Urlin’s prior conviction is not probative of the
identity of the handgun’s owner. There is no evidence that
Urlin was arrested with the same model or in the same location,
or that the two crimes share any facts in common other than that
they both involved a gun. The mere prior possession of a
firearm, without more, is not by any means a distinctive act, and
does not prove identity.6 See United States v. Spencer, 

, 745 (9th Cir. 1992) (“[I]f the characteristics of both the
prior offense and the charged offense are not in any way
distinctive, but are similar to numerous other crimes committed
by persons other than the defendant, no inference of identity can
arise.”) (quoting United States v. Perkins, 

, 1400
(9th Cir. 1991)). Moreover, even assuming that the information
had some minimal probative value, it would be substantially
outweighed by the risk of unfair prejudice and confusion of the
issues. See 

& n.2 (observing that unfair
prejudice is viewed not only from the defendant’s perspective)
(citing Rule 403, Federal Rules of Evidence, Advisory
Committee Notes (“‘Unfair prejudice’ within its context means
an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.”)).


   6
     According to a report commissioned by the United States
Department of Justice, National Institute of Justice, in 1994, 44
million Americans owned 192 million firearms, 65 million of
which were handguns. See P.J. Cook & J. Ludwig, Guns in
America: Results of a Comprehensive National Survey on
Firearms Ownership and Use (1997), at
http://www.ncjrs.gov/pdffiles/165476.pdf.

                               15
        Ultimately, Urlin’s prior conviction was only probative
inasmuch as it showed that he had a propensity to carry a
weapon—the purpose proscribed by Rule 404(b). Williams’
protestations to the contrary are not persuasive. As we stated in
United States v. Morley, 

(3d Cir. 1999), “a
proponent’s incantation of the proper uses of such evidence
under the rule does not magically transform inadmissible
evidence into admissible evidence.” 

He or she
“must clearly articulate how that evidence fits into a chain of
logical inferences, no link of which may be the inference that
the defendant has the propensity to commit the crime charged.”

States v. Himelwright, 

, 782 (3d
Cir. 1994)). Williams has not done that here. We therefore
conclude that the District Court did not err in excluding
evidence of Urlin’s conviction, as it was not admissible to show
propensity and was not probative of identity or opportunity. See

(holding that companion’s prior
conviction for possessing and selling cocaine was not
admissible to show that defendant did not possess the cocaine
in question because it showed propensity and was not probative
of knowledge or intent); 

(holding that
companion’s prior bad act of “[h]iding a gun under a car seat is
not a distinctive crime, and cannot be used to satisfy the
‘identity’ exception to Rule 404(b)”).

                              IV.

      Williams also challenges the reasonableness of his
sentence. The District Court explained Williams’ sentence as
follows:


                               16
The Court has considered the appropriate
sentence and the factors as set forth in 18 U.S.C.
§ 3553; and, of course, the guidelines now, since
the Supreme Court’s recent decisions, are
advisory as opposed to mandatory, but the Court
must, of course, consider those guidelines, and I
have, and I will use the guidelines.

Mr. Williams was convicted after a trial. I sat and
heard the evidence, and there is no question in my
mind that the jury was correct in their findings.
The evidence in my view was overwhelming that
Mr. Williams was, in fact, at the location with the
group of people that were there and he did, in
fact, have in his possession the weapon.

And as I recall, it was an automatic weapon . . .
[w]ith hollowpoint bullets. . . . We just recently
saw the tragedy of a young police officer that was
killed here in Newark because someone felt it
appropriate to have a weapon. For the life of me,
I don’t understand this whole routine with the
weapons, but I have absolutely no patience for
anybody that feels that they’re going to carry
weapons and use them in the city against
innocent people or, worse yet, law enforcement.

This gentleman has a terrible record. I did look at
the arguments made by Mr. Carter with respect to
the unfortunate upbringing, perhaps, that he went
through; and, while that is unfortunate, there are

                        17
       many young men and women who go through
       similar situations and don’t resort to the type of
       life that Mr. Williams apparently has chosen to
       resort.

                             ***

       This case is a total offense level of 20 with a
       criminal history category of IV, which would call
       for a guideline range of between 51 and 63
       months, no eligibility for probation, a supervised
       release range of two or three years, and a fine of
       $7,500 to $75,000. . . . So with all those things
       considered, pursuant to the Sentencing Reform
       Act of 1984, it’s the judgment of this Court that
       the Defendant, Richard Williams, is hereby
       committed to the custody of the Bureau of
       Prisons to be imprisoned for a term of 63 months.

App. at 16-17 (emphasis added).

       Williams argues that because his conviction involved
neither gun violence toward innocent bystanders nor the death
of a police officer, recent news reports and the judge’s personal
feelings toward gun violence were irrelevant to his sentencing
and were not proper considerations under 18 U.S.C. § 3553(a).
He contends that the District Court’s consideration of
extraneous factors resulted in an unreasonable sentence under
United States v. Booker, 

, 261 (2005) (holding that



                               18
we review federal criminal sentences for reasonableness).7

       We can discern no error in the judge’s references to a
recent shooting and the evils of gun violence in general. Gun
violence is a serious problem in the United States, and the
possession by a convicted felon of a nine-millimeter handgun
loaded with hollow-point and “full metal jacket” bullets is
certainly related to other instances of gun violence, regardless
of whether Williams himself used or intended to use the weapon
against a person. Read in context, the judge’s comments were
designed to explain “the seriousness of the offense,” 18 U.S.C.
§ 3553(a)(2)(A), and to illustrate the need “to afford adequate
deterrence to criminal conduct” involving firearms, 18 U.S.C.
3553(a)(2)(B). We fail to apprehend how this consideration
resulted in an unreasonable sentence.

      Moreover, even assuming that the judge’s comment
evinced some personal disdain for gun-related crimes, this also
would not make Williams’ sentence unreasonable. Although
the Sentencing Guidelines were designed to limit judicial


   7
     Williams does not contend that the District Court failed to
sufficiently address his arguments that he has a history of drug
and alcohol abuse and that he was not afforded sufficient
rehabilitative opportunities while incarcerated in New Jersey.
See 

(holding that the record must
indicate that the sentencing court gave meaningful consideration
to the § 3553(a) factors and that it addressed all arguments
raised by the parties that rest upon “a ground of recognized legal
merit”).

                               19
discretion in sentencing to ensure more uniform sentences, it
did not eradicate all judicial discretion. Unless a judge employs
a personal sentencing policy or practice rather than individually
considering the facts of each case, see United States v. King, 

, 591 (3d Cir. 1995) (“The sentencing jurisprudence .
. . disapproves of sentencing ‘practices’ in favor of case-by-case
consideration.”); United States v. Thompson, 

(3d
Cir. 1973), a judge may be less lenient towards certain types of
crimes without violating the Constitution or the dictates of
reasonableness. We will therefore affirm Williams’ sentence.

                               IV.

        Our decision today should not be read to narrow or
restrict the scope of our holding in Stevens. Although some
courts have read Stevens to hold that we apply a straightforward
balancing test anytime a defendant offers evidence that another
person committed the crime, even to show propensity, see, e.g.,

(majority opinion) & 610 (Rosen, J.
dissenting and arguing for adoption of Stevens test), Stevens did
not even discuss propensity evidence. And it certainly did not
create an exception to Rule 404(b)’s plain proscription against
“[e]vidence of other crimes, wrongs, or acts . . . to prove the
character of a person in order to show action in conformity
therewith.” Rather, Stevens held that when a defendant offers
evidence of prior bad acts by a third party to prove identity or
opportunity—or for one of the other permissible purposes under
Rule 404(b)—we apply a much less stringent test of similarity
than we do when the government offers such evidence against
a defendant. But we only reach this test if the evidence is being
admitted under one of the Rule 404(b) exceptions. The

                               20
evidence does not pass muster under the Stevens balancing test
if, as here, it is solely probative of a third party’s propensity to
commit similar crimes. For the foregoing reasons, we will
affirm the judgment of the District Court.

          ___________________________________




                                21