Whether evidence falls within Rule 404(b)

QUESTIONS PRESENTED Federal Rule of Evidence 404(b) provides that “evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). In the case below, the district court admitted a prior state-court conviction into evidence, reasoning that it was part of the charged crime and therefore did not fall within Rule 404(b). The Fourth Circuit, after noting a split among the circuits as to the appropriate standard of review, applied an abuse-of-discretion standard and affirmed. The Fourth Circuit concluded that the district court had not abused its discretion in deeming the prior conviction “intrinsic” to the charged crime. The questions presented are: 1. Should the issue of whether evidence falls within Rule 404(b) be reviewed for abuse of discretion (as the Fourth Circuit and other circuits have held) or de novo (as the Third and Ninth Circuits have held)? 2. What is the proper test to determine whether conduct is an “other” act such that it falls within the scope of Rule 404(b)? i