HENRY VANCE, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-194

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Sixth Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-14a) is reported
at 871 F.2d 572.  The opinion of the district court ruling on the
government's motion in limine (Pet. App. 15a-29a) and the opinion of
the district court denying petitioner's motion for a new trial (Pet.
App. 30a-41a) are unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on April 4, 1989.
A petition for rehearing was denied on June 6, 1989.  Pet. App. 42a.
The petition for a writ of certiorari was filed on August 3, 1989.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the district court erred in admitting, under Fed. R. Evid.
404(b), evidence of prior misconduct by petitioner that showed his
motive to commit the crime for which he was convicted.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Eastern District of Kentucky, petitioner was convicted on one count of
conspiracy to transport a firearm in interstate commerce with the
knowledge that it was to be used to commit murder, in violation of 18
U.S.C. 371, and on one count of transporting a firearm in interstate
commerce with the knowledge that it was to be used to commit murder,
in violation of 18 U.S.C. 924(b).  He was sentenced to an aggregate
term of 15 years' imprisonment.  The court of appeals affirmed.  Pet.
App. 1a-14a.

   1. The evidence at trial, the sufficiency of which is not in
dispute, is recounted in the government's brief in the court of
appeals.  It showed that petitioner participated in a plot that
resulted in the murder of the Florida state prosecutor who obtained
the conviction of petitioner's long-time friend, Mike Kelly, on drug
charges.  After Mike Kelly's conviction, his wife, Bonnie Kelly,
enlisted petitioner's aid in murdering the prosecutor.  Petitioner
initially agreed to have the prosecutor murdered in return for
$35,000, but he later backed out of that plan and returned Bonnie
Kelly's down payment.  After Bonnie Kelly told petitioner that she
planned to murder the prosecutor herself, petitioner provided her with
a gun that he said could not be traced.  Petitioner also told Bonnie
Kelly how to commit the murder and gave her instructions on how to
dispose of the gun.  On January 16, 1982, Bonnie Kelly murdered the
prosecutor at his home in Florida.  Petitioner agreed to provide a
false alibi for Bonnie Kelly and later told the authorities that he
had seen her in Kentucky at the time of the murder.  Gov't C.A. Br.
5-8.

   Prior to trial, the government filed a motion in limine seeking the
admission of evidence showing nine instances of prior misconduct by
petitioner.  Six of the acts involved prior criminal activity by
petitioner and one or both of the Kellys.  Pet. App. 3a.  The
government offered this evidence to explain why petitioner, a former
aide to the Governor of Kentucky and to the Speaker of the Kentucky
House of Representatives, would supply Bonnie Kelly with a weapon to
commit a murder.  The district court found that the evidence relating
to the six instances of petitioner's prior criminal involvement with
the Kellys "is probative on the issue of motivation in the transfer of
the pistol." Pet. App. 37a.  It acknowledged that the evidence would
be prejudicial to the defense, but concluded that it would not be
unfairly prejudicial, and ruled that the evidence was not rendered
inadmissible by Fed. R. Evid. 404(b).  Pet. App. 37a.  /1/ The court
excluded evidence of the three prior acts that did not involve the
Kellys because it concluded that they were irrelevant or that the
prejudicial effect of that evidence outweighed its probative value.
Id. at 38a-39a.

   After his conviction, petitioner filed a motion for a new trial on
the ground that the prior misconduct evidence had been improperly
admitted.  In its order denying the motion, the court noted that
"counsel for the defendant strenuously argued in his closing that
(petitioner) had no motive for giving Bonnie Kelly a gun." Pet. App.
21a.  The court again concluded, contrary to petitioner's contention,
that the challenged evidence "went directly to the issue of
(petitioner's) motive in supplying a gun to Bonnie Kelly." Id. at 22a.

   2. The court of appeals likewise rejected petitioner's claim that
the evidence of his prior misconduct should not have been admitted.
The court held that "the prior bad acts evidence was probative of
(petitioner's) motive, a permissible purpose for admission of evidence
under Rule 404(b) and a material issue in the case." Pet. App. 7a.
The court explained that by showing petitioner's prior criminal
involvement with the Kellys, the evidence suggested that petitioner
"might have been motivated to do all he could to assist the Kellys,
including assisting Bonnie Kelly in the murder of the prosecutor of
Mike Kelly." Id. at 8a.  In addition, the court of appeals held that
the probative value of the evidence outweighed its prejudicial effect,
and it noted that the district court had excluded evidence that did
not tie petitioner to the Kellys.  Id. at 8a-9a.  Judge Gibson
dissented because he concluded that the prior misconduct evidence did
not establish that petitioner had a motive to help Bonnie Kelly murder
her husband's prosecutor.  Id. at 12a-14a.

                               ARGUMENT

   1. Petitioner renews his claim (Pet. 8-12) that the district court
erred by admitting the evidence of his prior misconduct with the
Kellys.  Petitioner maintains that the prior misconduct evidence did
not show that he had a motive for providing Bonnie Kelly with a weapon
to commit the murder.  Instead, he claims, the evidence was admitted
to show that petitioner possessed a poor character in spite of his
social and political prominence.  This fact-bound claim does not merit
review.

   Rule 404(b) prohibits the introduction of evidence of prior
misconduct to prove the character of a person in order to show action
in conformity therewith.  It permits the use of such evidence for
other purposes, however, such as to show a person's motive.  Evidence
of motive "is admitted to show that the defendant has a reason for
having the requisite state of mind to do the act charged, and from
this mental state it is inferred that he did commit the act." J.
Weinstein & M. Berger, Weinstein's Evidence Paragraph 404 (14) (1989).
 The district court and the court of appeals both concluded that the
evidence of petitioner's prior criminal activity with the Kellys
showed that petitioner had a reason to supply the murder weapon to
Bonnie Kelly.  As the district court found, "(t)he evidence went
directly to the issue of (petitioner's) motive in supplying a gun to
Bonnie Kelly, the wife of his friend, Mike Kelly." Pet. App. 22a.

   Contrary to petitioner's contention (Pet. 10-12), the court of
appeals' decision did not rest on the premise that the evidence was
admitted to show that petitioner, a person of social and political
prominence, actually had a bad character.  Instead, the evidence
served to show that, notwithstanding the improbability that someone of
petitioner's apparent prominence would assist in a murder, petitioner
had a motive for supplying the pistol to Bonnie Kelly.  The district
court properly admitted the testimony for that purpose.

   2. Petitioner also contends (Pet. 12-18) that the court of appeals'
"inclusionary" approach to Rule 404(b) conflicts with the
"exclusionary" approach of other courts.  As an initial matter, the
approach that petitioner terms "inclusionary" is the correct approach,
as this Court's recent decision in Huddleston v. United States, 108 S.
Ct. 1496 (1988), confirms.  Rule 404(b) "protects against the
introduction of extrinsic act evidence when that evidence is offered
solely to prove character." 108 S. Ct. at 1500 (emphasis added).  If
the evidence is relevant to any other material issue in the case, it
is admissible, subject to a determination that the prejudicial effect
of the evidence outweighs its probative value.  Ibid.; see Fed. R.
Evid. 403.  As the Court noted in Huddleston, "Congress was not nearly
so concerned with the potential prejudicial effect of Rule 404(b)
evidence as it was with ensuring that restrictions would not be placed
on the admission of such evidence." 108 S. Ct. at 1501.

   The cases on which petitioner relies in support of his claim that
there is a conflict in the circuits were all decided before
Huddleston.  Moreover, those cases are not contrary to the decision
below.  In United States v. Shackleford, 738 F.2d 776, 782 (1984), the
Seventh Circuit stated that the prior misconduct evidence at issue
"would be admissible if it helped to establish that defendant
committed the crime by giving defendant a motive," as the courts below
held.  The court in Shackleford, however, found that motive was not at
issue in that case.  In this case, by contrast, motive was plainly at
issue, as petitioner's closing argument shows.  See Pet. App. 8a.
Petitioner's claim that this case conflicts with Shackleford is thus
based on his purely factual contention that the evidence at issue here
did not tend to show that he had a motive to aid in the murder of Mike
Kelly's prosecutor.

   Nor is the Seventh Circuit's decision in United States v. Beasley,
809 F.2d 1273 (1987), contrary to the decision here.  In Beasley the
government sought to introduce evidence of prior bad acts to establish
a "pattern" of misconduct.  The court noted, however, that evidence
may not be introduced to show a "pattern" of misconduct.  The court
noted, however, that evidence may not be introduced to show a
"pattern" of misconduct where the prosecution asks the jury to infer
from that "pattern" that the defendant must have also committed the
discrete act charged in the indictment.  "The inference from 'pattern'
by itself is exactly the forbidden inference that one who violated the
drug laws on one occasion must have violated them on the occasion
charged in the indictment.  Unless something more than a pattern and
temporal proximity is required, the fundamental rule is gone." Id. at
1278.  In addition, the court concluded, "(t)he record in this case
does not show that the district judge took into account the power of
this bad act evidence to impugn (the defendant's) character." Id. at
1279.  Here, by contrast, both the district court and the court of
appeals found that the evidence was admissible for a purpose other
than to impugn petitioner's character, and both courts found that the
probative value of the evidence that was admitted outweighed its
prejudicial effect.  Pet. App. 8a-9a, 37a.

   Finally, the decision in United States v. Foskey, 636 F.2d 517
(D.C. Cir. 1980), does not conflict with the decision here.  The
District of Columbia Circuit there stated that "evidence of a
defendant's prior 'bad acts' is excluded when its sole tendency is to
prove that the defendant is a person of bad character and thus
predisposed to commit the crime for which he is on trial." Id. at 523.
 That standard is entirely in accordance with the standard applied by
the court below.  The court concluded in Foskey that the prior
misconduct evidence that was admitted there to show intent did not do
so.  Having concluded that the evidence "was not relevant to any issue
in the case," the court further concluded that it "was extremely
prejudicial because it tended to prove only the defendant's criminal
predisposition." Id. at 526.  The courts below reached a different
conclusion, not because of any disagreement about the interpretation
of Rule 404(b), but because those courts found the evidence of
petitioner's criminal relationship with the Kellys probative as to
petitioner's motive, a disputed issue here.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   J. DOUGLAS WILSON

      Attorney

   OCTOBER 1989

   /1/ Specifically, the district court admitted evidence showing that
(1) petitioner and Bonnie Kelly created fake LSD to replace real LSD
that petitioner had stolen from a sheriff's office;  (2) petitioner
stole a machine gun and gave it to Mike Kelly for safekeeping;  (3)
petitioner, the Kellys, and another man set off a bomb in the front
yard of a county judge;  (4) petitioner and Mike Kelly stole a machine
gun from a police impoundment lot;  (5) petitioner and Mike Kelly
illegally manufactured silencer parts and altered weapons;  and (6)
Mike Kelly produced false identification papers for petitioner.  Pet.
App. 40a.