The Full Fourth Circuit Should Grant Rehearing on the “Intrinsic Evidence” Doctrine

By Steve Klepper (Twitter: @MDAppeal)

On May 11, the Fourth Circuit published its opinion in United States v. Bajoghli, which held that a Virginia district judge abused his discretion in excluding evidence of acts that were either deleted from an indictment for healthcare fraud or that took place after the scheme was alleged to have ended. In the process, Bajoghli took an extreme view of the doctrine of evidence that is “intrinsic” to an indictment. If the defendant petitions for en banc review, the full Fourth Circuit should take the opportunity to cabin or abandon the “intrinsic evidence” doctrine.

A federal prosecutor has broad leeway to introduce evidence of uncharged bad acts. Rule 404(b) deems evidence of uncharged acts relevant to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” There are three main limitations on Rule 404(b) evidence. First, the rule requires notice of the proposed evidence in advance of trial. Second, a defendant is entitled to a jury instruction that the evidence may be considered only for the narrow permissible purpose. Third, and perhaps most importantly, such evidence is subject to heightened scrutiny under Rule 403 for “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”[1] Thus, a trial court should only admit Rule 404(b) evidence in proportion to the prosecution’s need for it.[2]

Federal courts, however, have allowed prosecutors to introduce evidence of uncharged acts, free from Rule 404(b)’s protections, by characterizing the evidence as “intrinsic” to, or “inextricably intertwined” with, the charged acts. According to Professor Milton Hirsch, until “about the year 1980, no one thought that evidence of uncharged crimes could be rendered admissible by the simple expedient of describing it as ‘inextricably intertwined’ with evidence of the crime or crimes actually pleaded in the indictment.”[3] But a “scant three or four years after the term was coined … ‘inextricably intertwined’ referred to a principle that bore no recognizable resemblance to its common law antecedents. It had become a doctrinal juggernaut capable of battering down ancient evidentiary walls[.]”[4]

Major evidentiary treatises have recognized the difficulty in defining the “intrinsic”/ “inextricably intertwined” doctrine.[5] Tenth Circuit Judge Harris Hartz recently observed that “the intrinsic/extrinsic dichotomy serves no useful function … [,] consumes unnecessary attorney and judicial time and effort … [,] is unclear and confusing, and can lead to substituting conclusions for analysis.”[6] The Supreme Court has never provided any guidance on the doctrine.

The D.C. Circuit was among the first federal appellate courts to put clear boundaries on the doctrine. Where a defendant was arrested for possessing counterfeit currency on two different dates, but where he was charged only for one incident, the evidence of the other arrest was not “intrinsic” to the indictment. Rather, it was admissible as Rule 404(b) intent or knowledge evidence – subject to Rule 404(b)’s protections – to defeat his claim that he didn’t know the bills were counterfeit. It “cannot be that all evidence tending to prove the crime is part of the crime. If that were so, Rule 404(b) would be a nullity.”[7]

The Seventh Circuit has gone further. In a criticized 1993 decision, Judge Michael Kanne authored an opinion extending the circuit’s “inextricably intertwined” case law to include events outside the time period covered by the indictment.[8] But in 2010, Judge Kanne, seeing the mischief that his opinion had worked, authored a panel opinion – with an “en banc footnote” – that discarded the doctrine entirely. The “inextricable intertwinement doctrine has … become overused, vague, and quite unhelpful” and “has outlived its usefulness,” and that “[h]enceforth, resort to inextricable intertwinement is unavailable when determining a theory of admissibility.”[9]

Unfortunately, the panel opinion in Bajoghli has broken the “intrinsic evidence” doctrine wide open. The Fourth Circuit accepted the government’s argument that the “evidence is intrinsic to the charged crimes; that is, it ‘bear[s] directly on the defendant’s intent as to the charged fraud (not some other crime) and [is] inextricably intertwined with how he committed the fraud and his efforts to conceal it once he learned [of the] investigation.”[10] According to the Fourth Circuit, the evidence was “intrinsic,” and therefore not subject to Rule 404(b)’s protections, because the government “intends to offer evidence of Bajoghli’s post-scheme conduct to prove his knowledge and intent to defraud, as is required by § 1347,”[11] the healthcare fraud statute.

The reasoning, then, is that the evidence was probative of intent and knowledge, and the government needed the evidence to show intent and knowledge. But Rule 404(b) directly addresses the subject, deeming “intent” and “knowledge” evidence to be relevant. There isn’t any dispute that Bojoghli’s post-scheme conduct was relevant. The dispute was admissibility, including conditions of admissibility, under Rule 404(b) and the heightened Rule 403 test that regulates the admissibility and volume of such evidence.

Make no mistake. The Bojoghli opinion threatens to render Rule 404(b) and its attendant protections a dead letter in a great number of cases. If Rule 404(b) is limited to knowledge or intent regarding uncharged crimes – and does not concern “other acts” evidence that is “directly” relevant to knowledge or intent for charged crimes – then the rule’s protections apply only to the most tangentially relevant evidence.

It’s possible that the full Fourth Circuit could find that, even applying the heightened Rule 403 scrutiny that accompanies Rule 404(b) evidence, the district judge abused his discretion in excluding the disputed evidence in its entirety. That’s not the problem. The problem is that Bojoghli’s unworkably broad formulation of “intrinsic” or “inextricably intertwined” evidence will bind district courts throughout the circuit.

Unfortunately, in the five years since the Seventh Circuit created a clear circuit split on “intrinsic evidence” doctrine, the Supreme Court has not granted any certiorari petitions raising the question. Rather than rely on the uncertain certiorari process – with all of the “vehicle” concerns that can sink a petition – the Fourth Circuit should take the opportunity to clarify its law now. If the defendant petitions for rehearing en banc, the full Fourth Circuit should hear the case. It can provide clear guidance on the doctrine, or it can reject the doctrine entirely. Whether the defendant wins or loses, the entire circuit will benefit from the clarity.


[1] United States v. Queen, 132 F.3d 991, 999-1000 (4th Cir. 1997).

[2] United States v. Long, 328 F.3d 655, 664 (D.C. Cir. 2003); Fed. R. Evid. 404, 1972 Advisory Committee Note (discretionary admission of “other acts” evidence should account for “availability of other means of proof”).

[3] Milton Hirsch, “This New-Born Babe an Infant Hercules”: The Doctrine of “Inextricably Intertwined” Evidence in Florida’s Drug Wars, 25 Nova L. Rev. 279, 280 (2000).

[4] Id. at 296.

[5] David P. Leonard, The New Wigmore: A Treatise on Evidence § 5.2 (2009) (“[T]reating … evidence as inextricably intertwined with the charged conduct invites sloppy, non-analytical decision-making …. [D]escribing uncharged misconduct as either ‘intrinsic’ or ‘extrinsic’ neither provides a predictable way to determine admissibility nor conduces to the sort of analysis that needs to be undertaken to determine admissibility.”); Saltzburg, Martin & Capra, Federal Rules of Evidence Manual ¶ 404.02[12] (10th ed. 2012) (“The ‘inextricably intertwined’ exception substitutes a careful analysis with boilerplate jargon.”); Wright & Graham, 22A Fed. Prac. & Proc. Evid. § 5239 (2d ed. supp. 2013) (sharply criticizing decisions applying overly expansive formulations that nullify Rule 404(b)’s protections).

[6] United States v. Irving, 665 F.3d 1184, 1215 (10th Cir. 2011) (Hartz, J., concurring).

[7] United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000).

[8] United States v. Hilgeford, 7 F.3d 1340, 1345 (7th Cir. 1993); see Stephen A. Saltzburg, Inextricably Intertwined? Maybe Not, 16 Crim. Just. 60, 61-62 (Spring 2001).

[9] United States v. Gorman, 613 F.3d 711, 719 (7th Cir. 2010).

[10] Slip op. at 15-16.

[11] Slip op. at 16.

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