How are the courts to properly apply Fed. R. Evid. 404(b)?

QUESTION PRESENTED FOR REVIEW ISSUE I Rule 404 of the Fed. R. Evid. was adopted to safeguard defendants from the inherent prejudice that evidence of bad acts and bad character could trigger. At the same time, Rule 404(b) provided some avenues for admitting such evidence as long as it was for a proper purpose not implicating criminal propensity, and as long as the prejudice did not overwhelm the probative value of the evidence. The operation of Rule 404(b) is a source of concern because it often enables the government to present highly prejudicial evidence of other criminal conduct by defendants which can distract from the main issues and facts in the case. The federal circuit courts are in conflict regarding how to properly apply Rule 404(b). The Third Circuit requires a strong connection between the evidence to be introduced and a proper 404(b) purpose that permits its admission, all in the context of the material issues of the trial. This application of Rule 404(b) is a substantive analysis, and it requires the proponent of the evidence to establish a real non-propensity purpose which is supported by a link of inferences which does not include a propensity link. In contrast, the Eleventh Circuit takes a more theoretical approach to Rule 404(b). The Eleventh Circuit allows admission of the evidence even if there is a weak connection between the evidence and its stated 404(b) purpose within the context of the material issues of the trial. This allows the government to use the evidence for propensity purposes as long as it has cited to one of the 404(b) reasons listed in the i rule, regardless of whether or not that reason is actually at issue in the case. Accordingly, the Question Presented is: How are the courts to properly apply Fed. R. Evid. 404(b)? Should they apply the Third Circuit’s more substantive approach which requires a close connection between the 404(b) purpose and the material issues in the case, as explained in United States v. Caldwell, 760 F.3d 267 (3d Cir. 2014)? Alternatively, should the courts apply the Eleventh Circuit’s more theoretical approach which requires a lower connection between the 404(b) purpose and the material issues in the case, and allows explicit propensity purposes to be presented or dominate at trial, as demonstrated in Petitioner’s case? ii Issue II This case also presents an important federal issue that has not been, but should be decided by this Court concerning the operation of the fraud loss guidelines, U.S.S.G. §2B1.1, in the aftermath of Kisor v. Wilkie, 139 S.Ct. 2400 (2019). The question is: Whether Kisor v. Wilkie, 139 S.Ct. 2400 (2019) precludes deference to guideline commentary that expands the fraud guideline text in U.S.8.G. §2B1.1? ili INTERESTED PARTIES There are no