United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 22, 2007 Decided April 13, 2007

No. 05-3027

UNITED STATES OF AMERICA,

APPELLEE

v.

DEON DOUGLAS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 02cr00487-01)

Neil H. Jaffee, Assistant Federal Public Defender, argued the

cause for the appellant. A. J. Kramer, Federal Public Defender,

was on brief for the appellant.

Patricia A. Heffernan, Assistant United States Attorney,

argued the cause for the appellee. Jeffrey A. Taylor, United

States Attorney, and Roy W. McLeese III and David B.

Goodhand, Assistant United States Attorneys, were on brief.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.
2

1

The facts are taken from evidence adduced both during the April

24, 2003 in limine hearing on the Rule 404(b) evidence and at trial.

KAREN LECRAFT HENDERSON, Circuit Judge: Deon Douglas

(Douglas) was indicted on one charge of possessing with intent

to distribute (PWID) five grams or more of crack cocaine in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). The

government moved to admit evidence of Douglas’s prior arrest

for PWID pursuant to Federal Rule of Evidence 404(b) (Rule

404(b)), arguing that it was relevant to Douglas’s knowledge

and intent regarding the pending PWID charge. In response,

Douglas asserted that the prejudicial impact of the evidence

substantially outweighed its probative value, making it

inadmissible under Federal Rule of Evidence 403 (Rule 403).

After conducting two evidentiary hearings, the district court

admitted the prior arrest evidence and a jury convicted Douglas

on the PWID charge. Douglas now appeals. As set forth below,

we affirm the district court’s admission of the Rule 404(b)

evidence.

I.

On November 7, 2002, members of the Metropolitan Police

Department’s (MPD) “Focused Mission Team” drove “between

three and four” unmarked vehicles into the cul-de-sac at 59th

Place in northeast Washington D.C., “a high drug area for sales

of crack cocaine.” 2/19/04 Tr. 155–56, 158.1

 As the officers

entered 59th Place they observed Douglas standing in the culde-sac “beside a blue . . . Honda Prelude,” id. at 157, and

“leaning towards” a nearby idling car “to talk to someone in the

car,” 2/20/04 (a.m.) Tr. 6–7. Douglas “looked square, directly

towards” the approaching vehicles “and then immediately took

off running” in the direction of East Capitol Street. 2/19/04 Tr.

47–48; 2/20/04 (a.m.) Tr. 7. In response, three MPD officers
3

2

Neither of the other two officers chasing Douglas observed much

of the pursuit through the alleyway. Officer Airey Moore (Moore) ran

past the alley and straight to East Capitol Street and thus lost sight of

both Douglas and Sheldon once they entered the alley. See 2/19/04

Tr. at 159–60; 181–82. Officer James Black (Black) testified that,

because he was “a little bit slower than everybody else,” he was “a

little further back” during the chase through the alley and

consequently lost sight of Douglas. 2/20/04 (a.m.) Tr. 8. Although

Black did see Douglas run within a few feet of the trash can at the

intersection of Sixtieth Street and East Capitol Street, he was too far

away to observe what, if anything, Douglas did as he passed the trash

can. See 2/20/04 (p.m.) Tr. 37–38.

exited their vehicles and pursued Douglas. 2/19/04 Tr. 48,

158–59; 2/20/04 (a.m.) Tr. 7–8. The officer leading the pursuit,

Peter Sheldon (Sheldon), followed “about . . . 5 to 10 feet”

behind Douglas as he ran down an alley and past the intersection

of East Capitol Street and Sixtieth Street. 2/19/04 Tr. 48. As

the two men ran through the alley, Sheldon noticed that Douglas

had a clear plastic bag, resembling “[a] sandwich bag,” in his

hand. Id. at 103. Thereafter, Sheldon observed Douglas

“throwing [the plastic bag] into the trash can” at the intersection

of East Capitol Street and Sixtieth Street—where the alley

reconnects with the main roadway—“and then continuing down

the sidewalk.” Id. at 106.2

Sheldon stopped abruptly “to recover whatever [Douglas]

had tossed in the trash can.” Id. at 49. The other officers,

however, rushed past Sheldon and maintained the pursuit

through a wooded area between Sixtieth Street and Southern

Avenue, id. at 161; 2/20/04 (a.m.) Tr. 14, ultimately

apprehending Douglas “crouched down behind some bushes
4

3

Upon apprehending Douglas, Officer Black searched him and

recovered a Honda key. See 2/20/04 (a.m.) Tr.16–17; 2/20/04 (p.m.)

Tr. 17. Black then walked Douglas back to 59th Place and opened the

Honda Prelude with Douglas’s key. See 2/20/04 (p.m.) 17. A license

plate check indicated that the Honda was not registered and Officer

Black therefore entered the vehicle in search of evidence of

ownership. See 2/20/04 (a.m.) Tr. 18, 22. Inside the car, Black

discovered documents bearing Douglas’s name as well as a gun

hidden in the car’s sunroof. Id. at 23–24, 33–34.

4

The indictment also charged Douglas with possession of a firearm

by a felon in violation of 18 U.S.C. § 922(g)(1) and using, carrying

and possessing a firearm during a drug trafficking offense in violation

of 18 U.S.C. § 924(c)(1). Appx. at 19–20.

kneeling in the dirt,” id. at 14–15.3 While the other officers

continued to chase Douglas, Sheldon looked into the trash can,

which “was almost half-filled with water,” and observed the

clear plastic bag floating with other debris. 2/19/04 Tr. 50. A

crime scene search officer then arrived to photograph the plastic

bag inside the trash can, id. at 109–10, after which Sheldon

removed the plastic bag and discovered that it “contained 54

Ziplocs . . . packaged with a white rock substance,” id. at 55.

Sheldon “conducted a field test” of the white substance, “which

had a positive color reaction for the presence of cocaine,” id.,

and a Drug Enforcement Administration (DEA) chemist

subsequently confirmed that the recovered plastic bag contained

7.4 grams of crack cocaine, 2/23/04 Tr. 99, 103, 104.

Based on these events, Douglas was indicted on one count

of PWID five grams or more of crack cocaine in violation of 21

U.S.C. § 841(a)(1) and 841(b)(1)(B)(iii).4 See Appendix for

Appellant (Appx.) at 20. The government moved in limine to

admit evidence pursuant to Rule 404(b) establishing that, on

August 24, 2001, Douglas was arrested at 58th Street in
5

5

The government’s in limine motion was heard by a different

district judge from the district judge who presided at Douglas’s trial.

northeast Washington, D.C. for selling crack cocaine to an

undercover MPD officer. See id. at 22–23. The government

argued the evidence was admissible under Rule 404(b) because

it “illustrate[d] [Douglas’s] opportunity to possess the cocaine”

found in the trash can upon his arrest on November 7, 2002 as

well as “his motive and intent to distribute it, and the absence of

mistake.” Id. at 24. Douglas responded by asserting that the

probative value of his August 2001 PWID arrest was

substantially outweighed by its unfairly prejudicial impact

because, “[e]ven with a limiting instruction, jurors will have a

difficult time resisting the natural human impulse to make the

impermissible inference that someone who has previously

broken the law is more likely to break the law on a subsequent

occasion,” Appx. at 35, and thus the evidence should be

excluded under Rule 403. Following an evidentiary hearing, the

district court granted the government’s motion in limine,

concluding that the prior arrest evidence was “proffered for

reasons other than to show bad character, specifically, that . . .

Douglas had the intent to commit the crime charged . . . and had

knowledge,” 4/24/03 Tr. 111–12, and, consequently, admissible

under Rule 404(b), id. at 114.5

At trial, the government provided the testimony of Officers

Sheldon, Black and Moore to describe their pursuit and arrest of

Douglas on November 7, 2002. In addition, the government

presented the testimony of an expert in narcotics sales and

distribution in Washington, D.C, 2/20/04 (p.m.) Tr. 73, who

stated that an individual drug user “buy[s] a little bit [of crack]

at a time to satisfy [his] craving,” id. at 97, and thus would not

have purchased the quantity of crack cocaine discovered in the
6

trash can by Sheldon; instead, the expert opined, such a quantity

was likely intended for sale, id. at 96–98. Douglas sought to

impeach Sheldon, the only witness linking Douglas to the plastic

bag, by noting that Sheldon’s trial testimony regarding the

recovery and field testing of the crack cocaine, see 2/19/04 Tr.

111 (“I conducted the field test.”), differed from his earlier

testimony in support of the government’s in limine motion, id.

at 112–14. Douglas also presented a forensic chemist as an

expert witness, see 2/24/04 Tr. 80–83, to challenge the DEA’s

methodology in testing the substance recovered from the ziplock

bags, id. at 103–04, 117–18. Indeed, Douglas’s expert opined

that the DEA’s method did not “substantiate[]” the conclusion

that the recovered substance was crack cocaine, 2/25/04 Tr. 42,

as opposed to “imitation crack” such as hard soap, id. at 40.

Before the government presented evidence of Douglas’s

August 2001 PWID arrest at trial, Douglas renewed his

objection to its admissibility. See 2/19/04 Tr. 209. The district

court, believing that under Rule 403 “it’s really necessary to

hear [the Rule 404(b) evidence] in order to determine whether

or not that evidence should really come in,” 2/20/04 (a.m.) Tr.

49, heard—in the absence of the jury—the government’s

evidence of Douglas’s prior PWID arrest, namely testimony of

the arresting officers and the undercover officer to whom

Douglas sold the crack cocaine, see 2/23/04 Tr. 5–40. After

hearing further arguments from the parties, the district court

admitted the evidence because Douglas’s August 2001 PWID

arrest “would go to the question of intent to distribute, which is

a required element of the charged offense.” Id. at 64. Indeed,

the district court concluded that “the fact of [prior] distribution

of drugs certainly goes to the fact that the possession of the

drugs [in the charged offense] was, indeed, with the specific

intent to distribute,” id. at 64–65, and that the link to intent “and
7

perhaps . . . knowledge would make this evidence admissible”

under Rule 404(b), id. at 65.

Thus, on the afternoon of February 23, 2004, the government

presented the Rule 404(b) evidence of Douglas’s August 2001

PWID arrest. The following day, the district court instructed the

jury on the proper use of this evidence:

If you consider this evidence, you may use that evidence

only to help you decide whether the government has

proven beyond a reasonable doubt that the defendant

possessed the evidence in this case with the specific

intent to distribute cocaine base, and that he acted

knowingly and intentionally and with knowledge that the

substance in fact was cocaine base.

You may not consider that evidence for any other

purpose. You may not consider the evidence to

conclude that the defendant has a bad character or that

he has a criminal personality. The law does not permit

you to convict a defendant simply because you believe

he has committed other things not specifically charged

in this case.

You may not conclude from this evidence that because

the defendant may have allegedly sold cocaine to an

undercover police officer on August 24, 2001, that he

necessarily committed the acts charged in the indictment

in this case.

You may . . . only consider the evidence for the limited

purpose of showing whether the defendant, if he

possessed cocaine in this case, did so knowingly and

intentionally with the specific intent to distribute.
8

6

In his closing argument, the prosecutor stated that the evidence

was relevant only to show “that [Douglas] knows what crack cocaine

. . . looks like . . . [a]nd . . . that [Douglas’s] intent was to distribute the

crack cocaine that he had on November 7, 2002.” 2/26/04 Tr. 45–46.

7

The jury acquitted Douglas of the two counts related to the gun

discovered in the Honda Prelude. See Appx. at 67–68.

The defendant is on trial only for the crime charged in

this case, and you may only consider the prior alleged

acts on the issue of intent and knowledge.

2/24/04 Tr. 37–38. The district court repeated this instruction

verbatim in its closing charge to the jury. See 2/26/04 Tr.

92–93.6 The jury subsequently convicted Douglas of PWID

crack cocaine on November 7, 2002.7

Douglas moved for a new trial, claiming that the district

court erred in admitting the evidence of his August 2001 PWID

arrest, see Mot. for a New Trial, reprinted in Appx. at 39–45,

which motion the district court denied, see Mem. Order on Mot.

for New Trial at 12, reprinted in Appx. at 66. The district court

emphasized the government’s affirmative duty to prove

Douglas’s knowing possession of, and specific intent to

distribute, the crack cocaine, see id. at 57–58, and again found

the evidence of Douglas’s prior arrest relevant to the permissible

purposes of establishing his knowledge, possession and

intent regarding the drugs discovered on November 7, 2002, id.

at 58–60; see id. at 60 (“In sum, the Court finds that there were

at least three permissible avenues by which the 404(b) evidence

became relevant to this prosecution.”). Because it was relevant

for permissible purposes, the district court turned to “whether

the 404(b) evidence was properly admitted under [Rule 403].”

Id. at 61. The district court found the Rule 404(b) evidence
9

probative given the impeachment of the government’s witnesses

and the fact that none of the other evidence indicative of

Douglas’s intent and knowledge was “overwhelming.” Id. at

62–63. Moreover, “the jury was instructed on how the 404(b)

evidence should be used,” thereby protecting Douglas from the

danger of unfair prejudice and rendering the evidence admissible

under Rule 403. Id. at 63. Accordingly, the district court denied

Douglas’s new trial motion. Id. at 66. Douglas now appeals.

II.

“A proper analysis under Rule 404(b) begins with the

question of relevance: is the other crime or act relevant and, if

so, relevant to something other than the defendant’s character or

propensity [to commit crime]? If yes, the evidence is admissible

unless excluded under other rules of evidence such as Rule

403.” United States v. Bowie, 232 F.3d 923, 930 (D.C. Cir.

2000). Douglas argues that evidence of his prior PWID arrest

is both irrelevant to any purpose other than his criminal

propensity and unfairly prejudicial under Rule 403. “We review

a claim that a district court improperly admitted evidence under

Rule 404(b) solely to determine whether the court abused its

discretion.” United States v. Pindell, 336 F.3d 1049, 1056–57

(D.C. Cir. 2003); see also United States v. Cassell, 292 F.3d

788, 792 (D.C. Cir. 2002) (district court’s Rule 404(b) ruling

afforded “much deference on review”) (internal quotation

omitted). Moreover, because the “trial court is in the best

position to perform [the] subjective balancing” required by Rule

403, “its decision should be reviewed only for grave abuse.” Id.

at 795–96 (internal quotation omitted).

A.

Rule 404(b) provides 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.” Fed.
10

8

Although Douglas contested the third part of the Bowie

test—evidentiary sufficiency—in his new trial motion, see Mot. for a

New Trial at Appx. 65–66, he does not raise this challenge on appeal.

See Appellant’s Br. at 12–30.

R. Evid. 404(b). Yet the rule permits such evidence for other

purposes, including proof of motive, intent, knowledge, identity

and absence of mistake. Id. Indeed, “Rule 404(b) is a rule of

inclusion rather than exclusion,” Bowie, 232 F.3d at 929,

“prohibiting the admission of other crimes evidence ‘in but one

circumstance’—for the purpose of proving that a person’s

actions conformed to his character.” United States v. Crowder,

141 F.3d 1202, 1206 (D.C. Cir. 1998) (en banc) (quoting United

States v. Jenkins, 928 F.2d 1175, 1180 (D.C. Cir. 1991)).

“Rule 404(b) thus is not so much a character rule as a special

aspect of relevance” because it “does not prohibit character

evidence generally, only that which lacks any purpose but

proving character.” Bowie, 232 F.3d at 930 (emphasis added).

Accordingly, 

[A] Rule 404(b) objection will not be sustained if: 1) the

evidence of other crimes or acts is relevant in that it has

‘any tendency to make the existence of any fact that is of

consequence to the determination of the action more

probable or less probable than it would be without the

evidence;’ 2) the fact of consequence to which the

evidence is directed relates to a matter in issue other than

the defendant’s character or propensity to commit crime;

and 3) the evidence is sufficient to support a jury finding

that the defendant committed the other crime or act.

Bowie, 232 F.3d at 930 (quoting Fed. R. Evid. 401). Under this

standard, the district court properly admitted evidence of

Douglas’s August 2001 PWID arrest.8
11

To support a conviction for PWID, the government had to

prove beyond a reasonable doubt that, on November 7, 2002,

Douglas (1) possessed a controlled substance; (2) knowingly and

intentionally and; (3) with the specific intent to distribute

that controlled substance. See 21 U.S.C. § 841(a)(1) and

841(b)(1)(B). The elements of the charged crime, therefore,

made both intent and knowledge matters of consequence to

Douglas’s case. “Intent and knowledge are also well-established

non-propensity purposes for admitting evidence of prior crimes

or acts.” Bowie, 232 F.3d at 930; see also Fed. R. Evid. 404(b).

Evidence that Douglas previously possessed and distributed

crack cocaine to an undercover police officer “has a tendency to

make” it “more probable,” Fed. R. Evid. 401, both that he knew

the nature of the substance—crack cocaine—he was charged

with possessing on November 7, 2002, and that he intended to

distribute it, see Cassell, 292 F.3d at 793 (“[I]n cases where a

defendant is charged with unlawful possession of something,

evidence that he possessed the same or similar things at other

times is often quite relevant to his knowledge and intent with

regard to the crime charged.” (internal citations omitted)).

Douglas challenges this conclusion by first arguing that his

prior arrest is not relevant because he did not dispute the

elements of knowledge and intent—the permissible nonpropensity purposes—at trial and, as a result, the only purpose

served by the evidence was to indicate criminal propensity. See

Appellant’s Br. at 10, 18. Yet “[a] defendant’s offer to stipulate

or concede an element of an offense . . . does not deprive the

government’s evidence of relevance,” Crowder, 141 F.3d at

1206 (citing Old Chief v. United States, 519 U.S. 172, 179

(1997)). Even if a defendant concedes an element of an offense,

the government still has the burden of proving that element to

the jury beyond a reasonable doubt. See, e.g., Cassell, 292 F.3d

at 794 (“It is fundamental to the criminal law of the United
12

States that the prosecution must prove every element of the

offense beyond a reasonable doubt.”). Indeed, the “standard rule

[is] that the prosecution is entitled to prove its case by evidence

of its own choice” because the “evidentiary account of what a

defendant has thought and done can accomplish what no abstract

statements [or stipulation] ever could.” Crowder, 141 F.3d at

1207 (quoting Old Chief, 519 U.S. at 187) (alteration added);

see also id. (“[T]he prosecution cannot be forced to stipulate

away the force of such evidence.”). Thus, “ ‘evidentiary

relevance under Rule 401 [is not] affected by the availability of

alternative proofs of the element,’ such as a defendant’s

concession or offer to stipulate.” Id. at 1206 (quoting Old Chief,

519 U.S. at 179) (alteration in original).

Douglas next asserts that, in light of the government’s other

evidence establishing knowledge and intent, his August 2001

PWID arrest did not make the existence of those elements “more

probable,” relying on our decision in United States v. Linares,

367 F.3d 941 (D.C. Cir. 2004). See Appellant’s Br. at 18–22.

The defendant in Linares was convicted of possession of a

firearm by a felon. See Linares, 367 F.3d at 945. At trial, the

government introduced evidence of the defendant’s past

possession of firearms under Rule 404(b). Id. On appeal, we

concluded the evidence was irrelevant under Rule 404(b), id. at

952, because “[g]iven the evidence in th[e] case,” “Linares’s

previous possession of a pistol [did not] make[] it any more

likely that he knowingly possessed a gun” at the time of his later

felon-in-possession arrest. Id. at 946. Specifically, the

government presented direct evidence, in the form of eyewitness

accounts, that Linares possessed the gun and that he knew that

the object was a gun—by testimony that he fired the gun—when

he possessed it. See id. at 946–47. In those circumstances, the

Rule 404(b) evidence provided no additional probative value

and was therefore not relevant. See id. at 952. “Indeed, no
13

9

Douglas misconstrues our holding in Linares in arguing that, in

light of the government’s other evidence establishing his knowledge

and intent, his August 2001 PWID arrest did not make the existence

of those elements “more probable,” thereby rendering the evidence

irrelevant under Rule 404(b). See Appellant’s Br. at 18–22. While

Douglas reads Linares to find prior bad act evidence irrelevant if the

government’s other evidence is sufficient to establish the elements of

the offense, the Supreme Court has made clear that “evidentiary

relevance under Rule 401 [is not] affected by the availability of

alternative proofs of the element.” Old Chief, 519 U.S. at 179.

Indeed, Douglas’s reading of Linares appears to combine Rule 403’s

balancing of probative value against unfairly prejudicial impact with

the Rule 404(b) relevance inquiry. See Appellant’s Br. at 21 (given

the government’s other evidence of intent and knowledge, “the

introduction of the [Rule 404(b) evidence] offered little, if any,

probative value beyond its tendency to show that Douglas was a drug

dealer”); see also id. at 19–21 (describing Linares and asserting “this

case is controlled by Linares”); cf. Linares, 367 F.3d at 947 (“[T]rial

judges should not . . . allow the government to introduce 404(b)

evidence to prove an element that the government’s evidence has, by

completely precluding an acquittal based on the failure to prove that

element, effectively (though not formally) eliminated.”). But both the

Supreme Court and we have repeatedly kept separate the relevance

and prejudice inquiries: “If . . . relevant evidence is inadmissible in the

presence of other evidence related to it, its exclusion must rest not on

reasonable jury could have acquitted Linares based on the belief

that the government proved possession but failed to prove

knowing possession.” Id. at 946–47. Instead, “[i]f the jury

believed the[] eyewitnesses, then Linares possessed the gun

knowingly” and thus the prior possession evidence was

inadmissible because the government could not use it “to prove

an element that the government’s evidence ha[d], by completely

precluding an acquittal based on a failure to prove that element,

effectively (though not formally) eliminated.” Id. at 947.9
14

the ground that the other evidence has rendered it ‘irrelevant,’ but on

its character as unfairly prejudicial, cumulative or the like, its

relevance notwithstanding.” Old Chief, 519 U.S. at 179; see also

Crowder, 141 F.3d at 1206 (quoting Old Chief, 519 U.S. at 179). To

the extent that Douglas reads Linares to hinge relevance under Rule

404(b) on the “availability of alternative proofs,” Old Chief, 519 U.S.

at 179, that interpretation is plainly foreclosed by Old Chief and

Crowder.

Yet Linares carefully distinguished the factual scenario

presented here. The Linares decision rested largely on the

conclusion that the government’s eyewitness evidence already

established Linares’s possession of the gun and that no

reasonable jury could believe that he possessed the gun without

knowing that it was a gun. Id. Linares distinguished cases such

as Crowder—a PWID case—in which specific intent constitutes

an element of the crime. See id. at 948, 951–52. In those cases,

“a reasonable jury could . . . conclude[] that although [the

defendant] possessed the crack . . . , the government had failed

to prove beyond a reasonable doubt that he intended to

distribute it.” Id. at 952. Indeed, proof of intent is one of the

core bases for admitting evidence of other crimes or bad acts.

See Huddleston v. United States, 485 U.S. 681, 685 (1988).

Consequently, Linares’s relevance analysis is unsuitable to

assess the relevance of Douglas’s prior PWID arrest to his intent

regarding the crack cocaine he was charged with possessing on

November 7, 2002.

In addition, on the element of knowledge, Linares

distinguished possession of firearms from cases involving

possession of drugs. See Linares, 367 F.3d at 951. While a

reasonable jury could not believe that a defendant possessed a

firearm “without recognizing the nature of the object in his

hand,” a reasonable jury could conclude that a defendant
15

10While the government argues that Douglas “contended at trial

that the recovered substance was not crack cocaine and his expert

testified that it could have been hard soap,” Appellee’s Br. at 40, that

contention relates not to Douglas’s knowledge, but to his expert’s

assertion that the DEA’s method of analyzing the recovered crack

cocaine was faulty, see 2/25/04 Tr. 40; see also 2/24/04 Tr. 102–04,

117–18. That Douglas did not expressly claim that he believed the

charged with PWID possessed—and knew that he possessed—a

“white powdery substance,” but nonetheless believed it to be

some “innocuous substance” such as “flour.” Id. Thus, Linares

is also distinguishable on the element of knowledge in a drug

possession case because a person may possess, unlike a gun, a

drug without realizing that it is an illegal substance.

Still, Douglas relies on Linares to challenge the relevance of

his prior arrest, arguing that the government’s evidence—absent

the Rule 404(b) evidence—already established the elements of

intent and knowledge, thereby making the Rule 404(b) evidence

relevant only to criminal propensity. See Appellant’s Br. at

20–22. With respect to knowledge, Douglas claims that,

because Sheldon testified that Douglas carried the crack cocaine

in clear plastic bags, “no reasonable jury could have acquitted

him on the basis that the government had proved possession

but not knowing possession.” Appellant’s Br. at 20. But, as

Linares noted in distinguishing drug possession cases, “a

reasonable jury could . . . conclude[] that [the defendant]

thought the white powdery substance was flour (or some other

innocuous substance).” Linares, 367 F.3d at 951 (emphasis

added). Although Douglas did not assert a lack of knowledge

defense at trial, the government was not thereby relieved of its

burden of proving knowledge beyond a reasonable doubt. See

Crowder, 141 F.3d at 1209 (Rule 404(b) evidence admissible

even if defendant offers to stipulate to relevant elements).10
16

white substance to be “imitation crack,” 2/25/04 Tr. 40, does not

render Linares applicable here given that Linares distinguished PWID

cases, specifically Crowder, based on what a reasonable jury “could”

conclude about a defendant’s knowledge. Linares, 367 F.3d at 951.

Indeed, Crowder involved a defendant who stipulated to—rather than

simply failed to challenge—knowledge, see Crowder, 141 F.3d at

1209, a circumstance that, according to Linares, could permit a

reasonable jury to infer a lack of knowledge, see Linares, 367 F.3d at

951.

Because the evidence of Douglas’s prior arrest for PWID made

it more probable that he knew the substance he was charged

with possessing on November 7, 2002 was indeed crack cocaine,

the evidence is relevant to the permissible Rule 404(b) purpose

of proving Douglas’s knowledge.

Moreover, the only evidence—aside from the Rule 404(b)

evidence—the government presented to establish Douglas’s

intent to distribute crack cocaine was a narcotics expert who

testified that the quantity of drugs discovered on November 7,

2002 was consistent with an intent to distribute. See 2/20/04

(p.m.) Tr. 96–98. Yet this evidence “mentioned only some

hypothetical drug dealer.” Crowder, 141 F.3d at 1208. In

contrast, “the prosecution’s evidence of [Douglas’s] prior crack

cocaine sales—sales close in time and place to those charged

in the indictment—was not meant to show that someone had

intent” but rather “that [Douglas] had the intent to distribute the

crack.” Id. (emphasis in original). Indeed, the expert’s

testimony regarding a hypothetical drug dealer “could not

possibly have substituted for such proof” since “[i]t did not even

mention [Douglas] by name.” Id. With merely hypothetical

expert testimony, the “concrete evidence of [Douglas’s] actions”

when he was earlier arrested for PWID makes it more probable

that he intended to distribute the crack cocaine as alleged in the
17

indictment. Id. After all, “[o]n the other occasion when he had

crack cocaine in his possession, he sold it.” Id. at 1209.

Accordingly, the evidence of Douglas’s prior PWID arrest is

relevant to the permissible Rule 404(b) purpose of establishing

his intent to distribute crack cocaine on November 7, 2002.

In sum, because the prior arrest evidence makes it more

probable that Douglas knew that he possessed crack cocaine on

November 7, 2002 and that he intended to distribute it, the

evidence is relevant to non-propensity purposes. And “if

[relevant] evidence is offered for a purpose Rule 404(b) permits,

such as proving knowledge or intent, Rule 404(b) does not

require that the evidence be excluded” simply because it may

also suggest criminal propensity. Id. (internal quotation

omitted). Accordingly, the district court did not abuse its

discretion in admitting Douglas’s August 2001 PWID arrest

under Rule 404(b).

B.

Yet it is “the opportunity to seek . . . admission,” rather than

admission itself, that Rule 404(b) guarantees. Crowder, 141

F.3d at 1206. Although evidence of a prior bad act is relevant

to a non-propensity purpose, it is nonetheless inadmissible “if its

probative value is substantially outweighed by the danger of

unfair prejudice.” Fed. R. Evid. 403. But “Rule 403 ‘tilts, as do

the rules as a whole, toward the admission of evidence in close

cases,’ even when other crimes evidence is involved.” Cassell,

292 F.3d at 795 (quoting United States v. Moore, 732 F.2d 983,

989 (D.C. Cir. 1984)). Indeed, in adopting the Federal Rules of

Evidence, the Congress was concerned “with ensuring that

restrictions would not be placed on the admission” of other

crimes evidence. Crowder, 141 F.3d at 1210. Consequently, “it

is a sound rule that the balance should generally be struck in

favor of admission when the evidence indicates a close
18

11As Douglas points out, the district court did not expressly

perform the Rule 403 balancing until his new trial motion. See Mem.

Order on Mot. for New Trial at Appx. 61–63. But “[w]e do not . . .

prescribe any specific form this balancing must take, and will not

reverse for failure to make a formal Rule 403 finding if the applicable

considerations are apparent from the record.” Bowie, 232 F.3d at 931.

Here, the district court, specifically “looking at [Rule] 403,”

conducted a hearing on the admissibility of the Rule 404(b) evidence

during the trial, believing that under Rule 403 “it’s really necessary to

hear [the evidence] in order to determine whether or not that evidence

should really come in.” 2/20/04 (a.m.) Tr. 49. Moreover, the district

court’s disposition of Douglas’s new trial motion manifests careful

consideration of the required Rule 403 balancing. See Mem. Order on

Mot. for New Trial at Appx. 61–63.

relationship to the event charged.” Cassell, 292 F.3d at 795

(internal quotation omitted). Moreover, because “the trial court

is in the best position to perform this subjective balancing . . .

its decision should be reviewed only for ‘grave abuse.’ ” Id. at

795–96 (quoting United States v. Washington, 969 F.2d 1073,

1081 (D.C. Cir. 1992) (internal quotation omitted)).11

As with his relevance challenge to the Rule 404(b) evidence,

Douglas challenges the probative value of his prior PWID arrest

in light of the government’s other evidence. See Appellant’s Br.

at 25–28. The other evidence, however, was not without holes.

See supra pp. 12–13. Specifically, Douglas sought to impeach

the only witness—Sheldon—who observed the plastic bags in

his hand during the chase, see 2/19/04 Tr. 111–14; Douglas’s

expert witness contested the government’s methodology in

determining that the recovered plastic bags contained crack

cocaine, see 2/24/04 Tr. 80–83, 103–04, 117–18; and the

government’s only other evidence of intent consisted of the

testimony of a narcotics expert regarding the likely intent of a
19

hypothetical crack cocaine dealer, see 2/20/04 (p.m.) Tr. 96–98.

In this context, the concrete evidence of Douglas’s prior arrest

was highly probative, particularly regarding intent where “some

hypothetical individual was not on trial, [Douglas] was.” Bowie,

232 F.3d at 932; see also Crowder, 141 F.3d at 1208. Further,

the probative value of another crime is significant “when the

evidence indicates a close relationship to the event charged,”

Cassell, 292 F.3d at 795, as it does here where Douglas’s prior

arrest involved sale of the same substance in almost the same

neighborhood. In light of the record, the district court’s

conclusion that the Rule 404(b) evidence had significant

probative value, see Mem. Order on Mot. for New Trial at Appx.

62–63, was not a “grave abuse” of discretion, Cassell 292 F.3d

at 796.

With regard to the unfairly prejudicial impact of admitting

evidence of Douglas’s August 2001 PWID arrest, such evidence

almost unavoidably raises the danger that the jury will

improperly “conclude that because [Douglas] committed some

other crime, he must have committed the one charged in the

indictment.” Crowder, 141 F.3d at 1210. This danger, however,

“cannot give rise to a per se rule of exclusion.” Id.; see also

Cassell, 292 F.3d at 796. Indeed, the district court instructed the

jury of the permissible and impermissible uses of the evidence

and the record indicates no other “compelling or unique

evidence of prejudice in th[e] case.” United States v. Mitchell,

49 F.3d 769, 777 (D.C. Cir. 1995) (internal quotation omitted).

Here, the district court carefully instructed the jury on the proper

use of the Rule 404(b) evidence both on the morning after

introduction of the evidence, see 2/24/04 Tr. 37–38, and in its

final charge to the jury, see 2/26/04 Tr. 92–93, cautioning that

it “may only consider the evidence for the limited purpose of

showing whether the defendant, if he possessed cocaine in this

case, did so knowingly and intentionally with the specific intent
20

to distribute,” 2/24/04 Tr. 38. Indeed, the district court

emphasized its limiting instructions in finding no unfair

prejudice in the admission of Douglas’s prior PWID arrest. See

Mem. Order on Mot. for New Trial at Appx. 63. Moreover,

“[g]iven the likeness of the [two] allegations” of PWID and “the

coincidence of the locations involved . . . , there is ‘no

compelling or unique evidence of prejudice in this case that

warrants upsetting the trial court’s determination.’ ” United

States v. Burch, 156 F.3d 1315, 1324 (D.C. Cir. 1998) (quoting

United States v. Washington, 969 F.2d 1073, 1081 (D.C. Cir.

1992)). On this record, the district court’s conclusion that the

Rule 403 balancing tilted in favor of admission, see Mem. Order

on Mot. for New Trial at Appx. 63, was not a “grave abuse” of

discretion, Cassell, 292 F.3d at 796.

For the foregoing reasons, we affirm the district court’s

admission of the evidence of Douglas’s August 2001 PWID

arrest.

So ordered.