How have the courts dealt with the improper use of Rule 404(b) of the Criminal Code by a prosecutor who described a defendant as the type of person who would commit the crime charged?

There is no question that the prosecutor's remarks were improper. Characterizations of a defendant as the "type of person" who would commit the crime charged are at the very heart of Rule 404(b)'s prohibition. See United States v. Brown, 880 F.2d 1012, 1014 (9th Cir.1989). On appeal, the government admits its error in having made this argument.

Although the prosecutor's argument was improper, the court's failure to strike it sua sponte was not plain error. Plain error is "a highly prejudicial error affecting substantial rights," and we reverse for plain error only in very exceptional situations, where reversal is necessary to prevent miscarriage of justice or preserve the integrity and reputation of the judicial process. United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979 (1979). "When the evidence against a defendant is so strong that the absence of prosecutorial misconduct would not have changed the jury's verdict, plain error will seldom be found." Id.