Second Circuit OKs ‘Good Acts' Evidence on Intent

On February 18, the United States Court of Appeals for the Second Circuit issued a significant decision in United States v. Cardenas, vacating a drug conspiracy conviction and remanding the case for a new trial. The opinion clarifies the scope of Federal Rule of Evidence 404(b) and its application to evidence of a third party's prior conduct—particularly where such evidence is offered to corroborate a defendant's testimony regarding intent and state of mind.

What Is Rule 404(b)?

Federal Rule of Evidence 404(b)(1) generally prohibits the admission of "evidence of any other crime, wrong, or act" to establish a person's character and prove that a person acted in conformity with a character trait on a particular occasion. Rule 404(b)(2), however, contains exceptions to Rule 404(b)(1). Rule 404(b)(2) permits the use of so-called other acts evidence for non-propensity purposes, such as proving motive, intent, knowledge, opportunity, absence of mistake, or lack of