“When Uncharged Crimes are Admissible”

By: Mark Eiglarsh


Your client is charged with trafficking stolen guns. During the Government's opening statement, the prosecutor passionately tells the jury, "You're going to hear that the defendant was also involved in burglarizing a pawn shop, from which numerous firearms were stolen." Like a brand new "Jack–in–the–Box," you jump to your feet and exclaim: "Objection!" Once you recover your composure, you advise the judge that evidence of the burglary should not be admitted as it is evidence of uncharged crimes, and would unfairly prejudice the jury. Should the evidence be admitted by the judge?


Evidence of uncharged criminal activities is inadmissible unless the uncharged acts arose from the same transaction, are necessary to complete the story of the crime, or are "inextricably intertwined" with the evidence regarding the charged offense. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir.2000). Even if the evidence meets one of these exceptions, it may still be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice." United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir.1992) (quoting Fed.R.Evid. 403).

In U.S. v. Daniel, appellants were indicted in the Southern District of Florida on ten counts related to drugs and guns. At the start of the trial, the government introduced evidence about a burglarized pawn shop from which thirty–three firearms were stolen. Appellants objected, but the government replied that the burglary helped the government tell the story of the weapons trafficking charges, because the burglary explains from where the appellants obtained the guns they were dealing. The appellants on appeal argued that the admission of testimony regarding the uncharged burglary was impermissible use of evidence of unrelated bad acts that was also unfairly prejudicial to the appellants.

In upholding the conviction, the 11th Circuit Court gave the district court tremendous deference in reviewing the evidentiary issues involved in the case. The Court stated that it will not disturb a district court's decision concerning a Rule 404(b) determination absent an abuse of discretion. U.S. v. Baker, 432 F.3d 1189, 1205 (11th Cir.2005). Furthermore, the 11th Circuit found that the probative value of admitting the uncharged burglary was not substantially outweighed by the danger of unfair prejudice.


Unfortunately for your gun dealing client, the evidence of the burglary will probably be admitted. In relying upon the Daniel case, the court will likely find that the testimony regarding the pawn shop burglary is "inextricably intertwined" with the charged offense(s) as it explains where your client obtained the guns that he was dealing.

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