## Facts

- Federal agents conducting surveillance in Newark, New Jersey, sat in an unmarked vehicle near Brunswick and Parkhurst Streets during an investigation of suspected drug activity.
- An agent testified that when the car arrived, most people dispersed, but Durrell Smith remained, watching the vehicle from across the street.
- Smith briefly left view and returned about a minute later, walking toward the vehicle under a streetlamp.
- The agent testified Smith held a handgun in his right hand at a downward angle and began turning his shoulder toward the officers as he neared the car.
- Agents exited the vehicle and arrested Smith before he reached them.
- Smith disputed that he intended to threaten or assault the officers, asserting his possession of the gun related to fear and self-defense rather than drug activity.
- The government moved in limine to admit evidence that in 2008 Smith had been observed selling drugs at the same corner.
- Over objection, the district court admitted the 2008 incident under Federal Rule of Evidence 404(b) as proof of motive and context for Smith’s approach to the vehicle with a firearm.

## Issues

1. Whether admitting evidence of alleged drug dealing at the same location two years earlier violated Rule 404(b) because its relevance depended on an impermissible propensity inference.
2. Whether any Rule 404(b) error was harmless as to Smith’s convictions on the affected counts.

## Decision

- The Third Circuit held the district court erred by admitting the 2008 drug-dealing evidence under Rule 404(b).
- The court found the government’s motive theory required an inference that because Smith previously dealt drugs there, he was likely dealing drugs there again at the time of the charged offense.
- The court rejected the claim that the evidence was permissible “background” or “context,” emphasizing the two-year gap and the absence of proof of a continuous drug operation linking the events.
- The court concluded the evidentiary error was not harmless because the challenged evidence went to the core disputed issue of Smith’s intent and created substantial risk of unfair prejudice.
- The court vacated Smith’s convictions on Counts 1 and 2 and remanded for a new trial on those counts.

## Legal Principles

- Under Rule 404(b), other-acts evidence offered for a non-propensity purpose is inadmissible if any step in the proponent’s reasoning depends on inferring the defendant’s character or propensity to commit the charged conduct.
- A proponent must articulate a “chain of logical inferences” for other-acts evidence in which no link is the inference that prior wrongdoing makes the charged wrongdoing more likely.
- Labeling other-acts evidence as “motive” or “context” does not cure a propensity-based rationale, particularly when separated by time and lacking a concrete non-propensity connection to the charged events.
- Even when a non-propensity purpose is asserted, Rule 403 requires exclusion when the risk of unfair prejudice substantially outweighs probative value, especially where the evidence bears directly on the central contested issue (such as intent).

## Conclusion

The Third Circuit vacated Smith’s convictions on two counts because evidence of alleged drug dealing two years earlier was used to support the government’s motive theory only by inviting the jury to infer current criminal intent from past conduct, a use barred by Rule 404(b) and not harmless in a case turning on intent.


United States v. Smith, 725 F.3d 340 (3d Cir. 2013)