## Facts

- Police observed Rochelle Ardall Crowder exchange a small object for cash in an apparent street-level drug transaction in Washington, D.C.
- Crowder fled when approached; during pursuit he discarded a bag containing 93 ziplock bags of crack cocaine and 38 wax-paper packets of heroin.
- When arrested, Crowder had a beeper and $988 in small denominations.
- Before Crowder’s retrial, the government sought to introduce evidence that seven months later Crowder sold crack cocaine to an undercover officer on the same block, offered to show knowledge, intent, and modus operandi under Federal Rule of Evidence 404(b).
- Crowder objected and offered to stipulate that the seized drug quantities were consistent with distribution, effectively conceding intent to distribute.
- In a consolidated appeal, Horace L. Davis was convicted of distributing crack cocaine and possessing crack with intent to distribute; the government introduced evidence of prior drug transactions under Rule 404(b) to prove knowledge and intent, despite Davis’s effort to narrow or concede those issues.
- The Supreme Court vacated an earlier en banc D.C. Circuit decision and remanded for reconsideration in light of Old Chief v. United States.

## Issues

1. Whether a defendant’s unequivocal concession or stipulation to an element such as knowledge or intent can bar the government from introducing otherwise admissible Rule 404(b) other-acts evidence offered to prove that element.
2. Whether a defendant may, over the government’s objection, obtain a jury instruction removing the conceded element from the jury’s consideration.

## Decision

- The en banc D.C. Circuit held that a defendant’s offer to stipulate to an element does not preclude the government from introducing Rule 404(b) other-acts evidence to prove that element.
- The court rejected its prior categorical approach that treated concessions plus a corresponding instruction as rendering Rule 404(b) evidence inadmissible.
- The court concluded that Old Chief did not require exclusion of other-acts evidence offered to prove mental-state elements; admissibility remained subject to standard relevance analysis and Rule 403 balancing.
- The court upheld admission of the challenged other-acts evidence and affirmed the convictions.

## Legal Principles

- Rule 404(b) permits evidence of other acts for non-propensity purposes (including intent, knowledge, identity, plan, or absence of mistake) when relevant to an issue in the case.
- A defendant cannot, by unilateral concession, force the government to forgo otherwise admissible proof of an element or remove that element from the jury’s consideration.
- Old Chief’s approval of stipulations in a prior-conviction status context does not create a general rule requiring acceptance of stipulations to exclude other-acts evidence offered under Rule 404(b).
- Trial courts must evaluate Rule 404(b) evidence through ordinary relevance principles and Rule 403, weighing probative value against unfair prejudice, rather than applying a categorical exclusion triggered by a defense concession.

## Conclusion

The en banc court held that conceding knowledge or intent does not block the prosecution from offering Rule 404(b) other-acts evidence to prove those elements; courts instead assess admissibility under relevance and Rule 403, and the jury remains tasked with deciding all elements of the offense.


United States v. Crowder, 141 F.3d 1202 (D.C. Cir. 1998) (en banc)