US v. Loftis, No. 15-30262 (12-9-16)(Fisher w/Fletcher & N. Smith). Win the battle but lose the war? The 9th affirms the district court's order granting defendant's in limine motion to preclude uncharged evidence of wire fraud involving other victims than named in the indictment under FRE 404(b). The court said 404(b) barred the evidence unless it was inextricably interwoven with the charge or there was another basis. The govt appealed. The 9th in affirming gives a roadmap to the govt and court to bring the evidence in other than 404(b).
The 9th noted some ambiguity in the court's ruling. The 9th tries to clear it up by holding that the evidence of uncharged transactions is not evidence of "other crimes" under 404(b). Rather, it is evidence of the crime charged in the indictment, being the overall scheme to defraud. Thus, the evidence may come in to prove the charge of defrauding. FRE 404(b) is not the means because it is not "other" crimes or acts. It can also come, again not under 404(b) if the evidence possibly is inextricably interwoven with the scheme, as it appears to be here. The govt at trial can even find a 404(b) basis if it wants.
The 9th said it was not deciding whether FRE 403 might bar the evidence.
The decision is here: