What is the test for admitting evidence of bad conduct pursuant to Rule 404(b)?

MultiRegion, United States of America

The following excerpt is from U.S. v. Serhan, 12 F.3d 1110 (9th Cir. 1993):

We review for abuse of discretion a district court's decision to admit evidence of prior bad conduct pursuant to Rule 404(b). United States v. Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir.1993). We review de novo whether the evidence falls within the scope of Rule 404(b). Id.

Rule 404(b) is an inclusionary rule, and evidence is admissible under it unless " 'it proves nothing but the defendant's criminal propensities.' " United States v. Sneezer, 983 F.2d 920, 924 (9th Cir.1992), cert. denied, 114 S.Ct. 113 (1993). Relevant evidence of other bad acts, including crimes, is admissible under Rule 404(b) to prove intent. Id.; United States v. Boise, 916 F.2d 497, 501 (9th Cir.1990), cert. denied, 111 S.Ct. 2057 (1991). "Before the prosecution may use such evidence against a defendant, however, it must establish that the evidence is probative of a material issue in the case, and that sufficient evidence exists for the jury to find that the defendant committed the other acts." United States v. Ramirez-Jiminez, 967 F.2d 1321, 1325 (9th Cir.1992). Intent is an element of possession with intent to distribute heroin, 21 U.S.C. Sec. 841(a), and thus intent was a material issue in this case. "[I]f used to prove intent, the prior offense must be similar to the charged offense." Sneezer, 983 F.2d at 924.

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